Amicus Curiae Brief — Idaho v. Wright

FILED

APR 2 1890

SOE F SAPNIOL, JR.

CRERK.

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1989

THE STATE OF IDAHO,

Petitioner,

V.

LAURA LEE WRIGHT,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of Idaho

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

NATMAN SCHAYE* BARBARA C. SATTLER

National Association of National Association of

Criminal Defense Lawyers Criminal Defense Lawyers

P.O. Box 608 177 North Church, Suite 315

Tucson, AZ 85702 Tucson, AZ 85701

(602) 743-9940 (602) 624-0040

*Council of Record

BEST AVAILABLE COPY —

TABLE OF CONTENTS

Statement of Interest of the

ee a a ee a a a a

Summary of the Argument ........ 3

Argument:

I

II

CERTIORARI WAS IMPROVIDENTLY

GRANTED IN THIS MATTER ...... 8

A. Petitioner Misstates the Issue

Presented by this Action. .. 9

B. Petitioner Seeks to have this

Court Function as a Trier of

PeGe « «© 6 &@ 8 6 6 eee 6 Ue UO

THE ADMISSION OF HEARSAY STATEMENTS

OF A MENTALLY INCOMPETENT WITNESS

THAT DO NOT FALL WITHIN AN

ESTABLISHED EXCEPTION TO THE HEARSAY

RULE VIOLATES THE CONFRONTATION

CLAUSE ..++++-e++s+ 2 © © © « odJ

a

A. Presumptively Unreliable Hearsay TABLE OF AUTHORITIES

from a Mentally Incomptenten

Witness Vilates the Cases:

Confrontation Clause. ... .13 .

B. Petitioner's Request that the Pour dearly 535 United ‘etl 31

Court Fashion a Code of Evidence . ses

Applicable Only to Child

Witnesses in Sexual Abuse Cases Se Ge ae felt is70). . .15, 31

Must be Rejected. ..... «19

C. Petitioner's Proposed "Totality <x x aoe: 198, 2802 (1988)

of the Circumstances" Test Would

Seriously Impair the +25, 30

Effectivednss of the

Dutton v. Evans

Confrontation Clause. ... .30 400 U.S. 74, 89 (1970). .... .15

~~~, + «6 6 «© 6 © @6© © © © © © 0 0a Larsen v. State,

686 P. 2d 583, 586 (Wyo. 1984). .22

Lindsey v. State,

465 N.E. 2d 721 (Ind. 1984). . . 22

Mancusi v. Stubbs,

408 U.S. 204 (1972) ...... .3l

Mattox v. United States,

156 U.S. 237, 242-243 (1895). . .20

Ohio v. Roberts,

448 U.S. 56, 66 (1980)

14,18,19,31

Smallwood v. State,

165 Ga. App. 473

301 S.E. 2d 670, 670-671, (1983)

-22

State v. Myatt, 5 WIGMORE, Evidence, Subsection 1445

697 P.2d 836, 842 (Kan. 1985) . .33 (Chadbourn re. 1979).18

State V. Roberts, S. Rep. No. 93-1277, at 19-20,

139 Ariz. 117 93rd Cong., 2d Sess.

677 P.2d 280, 286 (App. 1983) . .17 is. 2 Ss « «ss. 6 ¢.3.2 one

State v. Superior Court,

149 Ariz. 397, Witnesses: Child Comptency

719 P.2d 283, 287 (App. 1986) . .22

State v. Wright,

116 Idaho 382,

775 P.2d 1224, 1231 1989)

oe eee ee 86 ew 6 0 6 le Be Bee SS

United States v. Inadi,

475 U.S. 387, 394 (1986)

-21, 30, 31

Wheeler v. United States,

159 U.S. 523, 524 (1895). ... .16

Constitution, Statutes and Rules:

U.S. Const. Amen. VI

(Confrontation Clause)

passim

Federal Rules of Evidence

Rule 803(2,4) . . .. «+ « «+ «26

Rule 804(b)(5). ... «+ « «34

Idaho Rules of Evidence:

Rule 60l(a). .... +. + «13

Miscellaneous:

STATEMENT OF INTEREST

OF THE AMICUS CURIAE

The National Association of Criminal

Defense Lawyers ("NACDL") is a District of

Columbia non-profit corporation with a

membership of more than five thousand

lawyers throughout the United States.

NACDL was organized more than thirty years

ago to promote study and research in the

defense of criminal cases, as well to

improve the quality and integrity of the

criminal defense bar.

One of the most important objectives

of NACDL is the protection of individual

rights guaranteed under the laws and the

Constitution of the United States. NACDL

seeks to ensure that every person accused

of crime receives a fair trial, and that

those wrongfully accused are exonerated.

2

The Amicus Curiae Committee of NACDL

has concluded that the issues presented in

this case are so vitally important that

NACDL should offer its assistance to the

Court. The question presented is whether

unreliable hearsay evidence in the form of

a statement from a mentally incompetent

person may be admitted in a criminal

trial. The Court's decision may well have

a profound impact on the Confrontation

Clause and the rights of the criminally

accused throughout the United States.

Without necessarily endorsing NACDL's

position, the parties have consented to

the filing of this brief pursuant to Rule

36.2 of the Rules of this Court: Mr.

James T. Jones, Attorney General of the

State of Idaho, on behalf of Petitioner,

and Mr. Rolf M. Kehne, on behalf of

Respondent. Letters of consent are being

3

filed with the Clerk of this Court on the

date of the filing of this brief.

SUMMARY OF ARGUMENT

I. Petitioner asserts that the Idaho

Supreme Court erroneously reversed

Respondent's conviction on the grounds

that an out of court statement made by a

mentally incompetent person which fell

within no established hearsay exception

violated the Confrontation Clause.

Petitioner claims that the state court

adopted a rigid standard requiring that

three specific criteria be met before any

similar hearsay statement could be

admitted at trial. Petitioner urges that

the appropriate test would consider the

totality of the circumstances regarding

such evidence.

A. Petitioner erroneously interprets

the state court's decision. That court

4

did, in fact, apply a totality of the

circumstances test. Because the issue

presented to this Court misstates the

ruling below, certiorari was improvidently

granted and this matter should. be

immediately returned to the state court.

B. Petitioner urges that this Court

employ the totality of the circumstances

test that was, in reality, applied by the

court below. While NACDL submits that

this test is inappropriate in the present

case, should this Court employ’ the

totality of the circumstances standard, it

would be in a position to do no more than

review the factual findings of the lower

court. On this independent ground, this

matter should be remanded without opinion.

II.A. The hearsay declaration at

issue is a statement elicited from a two

and one-half year old infant who was found

4a

to be mentally incompetent to testify at

the time of trial. Her out of court

statement does not fall within any

established exception to the hearsay rule.

The Idaho Supreme Court found that the

introduction of the statement under the

residual exception to the hearsay rule

violated the Confrontation Clause.

Hearsay statements which fall within

no recognized exception to the hearsay

rule are presumed to be unreliable under

the Confrontation Clause. Statements made

by a mentally incompetent witness must

also be presumed to be unreliable.

Hearsay declarations which fall into both

of the foregoing categories must therefore

be deemed unreliable as a matter of law.

The introduction of such evidence violates

the Confrontation Clause.

5

B. Petitioner seeks a broad exception

to the Confrontation Clause and the rules

of evidence that would allow presently

inadmissible hearsay statements by alleged

victims in all child sexual abuse cases to

be admitted. Petitioner requests a ruling

that far exceeds the scope of the issue

presented here, the use of hearsay

statements by a non-testifying,

incompetent witness.

Petitioner complains that prosecutors

are unable to introduce hearsay

declarations in some child sexual abuse

cases under the current law. The

declarations to which Petitioner refers

are inadmissible because of the simple

fact that they are untrustworthy and will

impede the search for truth which lies at

the heart of the Confrontation Clause.

6

C. The totality of the circumstances

approach advocated by Petitioner would

require trial courts to abandon the

established Confrontation Clause _ and

hearsay standards in child sexual abuse

cases, and substitute an ad hoc approach.

Such a system would result in inconsistent

and arbitrary application of the

Confrontation Clause. It would also

present an exception to the hearsay rule

so broad that it would endanger the fair

and dependable system of justice that has

been developed through the careful

balancing of the government's ability to

enforce the laws and the citizen's right

to a fair trial based upon competent

evidence.

ARGUMENT

I

CERTIORARI WAS IMPROVIDENTLY

GRANTED IN THIS MATTER

At Respondent's state court trial,

the prosecution was allowed to introduce

hearsay statements made by a two and one-

half year old child who was so immature as

to be mentally incompetent to testify.

Those out of court statements fell within

no established exception to the hearsay

rule.

On appeal, the Idaho Supreme Court

reversed. After considering all of the

circumstances surrounding the making of

the challenged hearsay, the court ruled

that the statement lacked the necessary

ae

8

indicia of reliability to comply with the

dictates of the Confrontation Clause.

State v. Wright, 116 Idaho 382, 775 P.2d

1224, 1231 (1989).

A. Petitioner Misstates the Issue

Presented by this Action.

Petitioner seeks to have this Court

decide a question that is not presented by

the ruling below. Petitioner claims that

the state court held that’ hearsay

statements of a small child may never be

admitted unless they are: 1) tape

recorded; 2) not prompted by leading

questions; and 3) not elicited by an

interviewer with preconceived ideas of the

anticipated substance of the allegations.

Brief for Petitioner ("Pet.Br."), at 4l.

The Idaho Supreme Court made no such

ruling.

Instead, the court simply and

correctly found that the hearsay

statements of the incompetent child were

inadmissible under any recognized hearsay

exception, were unreliable, and therefore

violated the Confrontation Clause. Id. at

1227, 1231.

While the court did emphasize the

absence of a recording, the suggestive

questioning, and the interviewer's

preconceived ideas of the child's

ahlegetions, the opinion does not create a

blanket requirement that those three

criteria must be present in every case for

such evidence to be admissible. 775 P.2d

at 1227, 1230-1231.

The issue presented by Petitioner is

not raised by the decision of the court

below. It is therefore submitted that

certiorari was granted based upon an

Ww

erroneous characterization of the Idaho

Supreme Court's decision.

B. Petitioner Seeks to have this Court

Function as a Trier of Fact.

In reaching its decision, the Idaho

Supreme Court examined all of the facts

Surrounding the challenged hearsay; it did

not set out a series of rigid rules which

must be met to conform to the dictates of

the Confrontation Clause. Id. at 1227-

1231. Petitioner, misinterpreting that

opinion, asks this Court to apply the same

totality of the circumstances test that

was applied below.

Assuming that the totality of the

circumstances test is applicable to this

It

case, Petitioner is seeking to have this

Court act solely as a trier of fact. The

Court's only function would be to decide

whether the factual findings of the lower

court were correct. For this matter to

involve a question of law, the Court would

have to find that, no matter how

suggestive the questioning and no matter

how impressionable the child, resulting

inculpatory allegation are invariably

trustworthy.

Under this country's constitutional

system of government, this Court sits to

decide questions of law, not to resolve

factual disputes or enact de facto

legislative doctrines that exceed the

scope of the issues presented by an

‘NACDL contends that the totality

of circumstances standard is not

applicable to the facts presented

See Argument II, infra.

lé

individual case. Petitioner is asking the

Court to assume a legislative function.

No question of law is presented. A remand

without decision is therefore required.

II

THE ADMISSION OF HEARSAY STATEMENTS

OF A MENTALLY INCOMPETENT WITNESS

THAT DO NOT FALL WITHIN AN

ESTABLISHED EXCEPTION TO THE

HEARSAY RULE VIOLATES THE

CONFRONTATION CLAUSE

A. Presumptively Unreliable Hearsay from

a Mentally Incompetent Witness

Violates the Confrontation Clause.

Two undisputed truths dictate the

result that must be reached in this case.

First, the hearsay declarant, aged three

years, one month at the time of trial, was

13

“incapable of receiving just impressions

of the facts .. . or of relating them

truly."* Rule 601(a), Idaho Rules of

Evidence. Both the prosecutor and defense

attorney agreed that she was therefore

incompetent as a witness. J.A. 39.

Secondly, the infant's hearsay

statement falls within no established

exception to the hearsay rule. The

statement therefore bears none of the

indicia of reliability that accompany

hearsay that falls within such an

exception. Ohio v. Roberts, 448 U.S. 56,

66 (1980).

Under these facts, the Idaho Supreme

Court correctly held that the admission of

2

For example, after giving non-

responsive answers when asked how

Old she was, the three year old

eventually stated that she was six

years of age. Joint Appendix

("J.A.") at 32-34.

14

the challenged evidence violated the

Confrontation Clause. NACDL submits,

however, that the state court erred in

applying a totality of the circumstances

standard. Where, as here, the declarant

is so incompetent that she cannot testify,

and the statements are not sufficiently

reliable to fall within a recognized

exception, the hearsay is so inherently

suspect that its admission violates the

Confrontation Clause.

The search for truth is the

cornerstone of the Sixth Amendment. "The

decisions of this Court make it clear that

the mission of the Confrontation Clause is

to advance a practical concern for the

accuracy of the truth-determining process

in criminal trials by assuring that the

trier of fact [has] a satisfactory basis

for evaluating the truth of the prior

I5

statement.'” Dutton v. Evans, 400 U.S.

74, 89 (1970), quoting California v.

Green, 399 U.S. 149, 161 (1970).

It is difficult to conceive of

hearsay less reliable than the statements

of a two and one-half year old infant.

Indeed, this Court recognized ninety five

years ago that, "[N]o one would think of

calling as a witness an infant only two or

three years old..." Wheeler v. United

States, 159 U.S. 523, 524 (1895).

Perhaps evidencing recognition of

this devastating flaw in its case,

Petitioner fails to address the

reliability of the infant-declarant in its

brief.’ It simply defies logic and common

*Similarly, Amici American Professional

Society on the Abuse of Children, et al.,

writing in support of Petitioner, discuss,

at pages 12-25, of their brief, numerous

studies that have focused on the mental

processes of children. Virtually all of

16

sense to contend that a statement made by

an infant, then thirty months of age,

could, without more, be said to provide

indicia of reliability.

The courts have been virtually

unanimous in their refusal to allow

incompetent children to testify in civil

or criminal proceedings, Note, Witnesses:

Child Competency Statutes, 60 A.L.R.4th

369 ( ). Obviously, the danger of

misleading the trier of fact is even

greater when the incompetent declarant is

not seen in court, but is instead heard

those studies were equivocal in their

findings and focused on children

significantly older than the declarant

in this case. More importantly, it is

undisputed that the declarant in issue

here was correctly found to be too

immature to provide meaningful testimony.

17

through the voice of another.’ Professor

Wigmore clearly supports this principle,

"If the declarant would have been

disqualified to take the stand by reason

of infancy, . . . his extrajudicial

declarations must also be inadmissible."

5 Wigmore, Evidence, §1445 (Chadbourn rev.

1979).

For purposes of the case at issue, it

is unnecessary for the Court to decide

whether the rule announced by Professor

Wigmore should be adopted in its entirety.

Here, the Court must simply recognize that

out of court statements made by

incompetent witnesses are presumptively

unreliable. Although there might be

situations in which the circumstances

‘This danger is particularly great when

the witness is an expert. See, e.g.,

State v. Roberts, 139 Ariz. 117, 677 P.2d

280, 286 (App. 1983).

18

Surrounding a hearsay statement by such a

witness would bring it within a "firmly

rooted hearsay exception” that would

provide “indicia of reliability", such

circumstances clearly do not exist in the

present case. Ohio v. Roberts, 448 U.S.

at 66. Because the statement at issue

here comes within no established hearsay

exception, it must be presumed that the

Statement is unreliable. Id.

The issue before the Court is whether

the purpose of the Confrontation Clause,

the search for truth, will be aided by the

admission of a presumptively unreliable

hearsay statement elicited from an infant

who cannot be relied upon to follow the

witness’ oath to testify truthfully. The

answer to that question must be no.

B. Petitioner's Request that the Court

Fashion a Code of Evidence Applicable

tg

Only to Child Witnesses in Sexual

Abuse Cases Must be Rejected.

The right of confrontation stands at

the forefront of the constitutional

provisions designed to advance the search

for truth and to ensure that’ the

wrongfully accused are set free. This

Court has long recognized the importance

of the Confrontation Clause:

The primary object of the

constitutional provision in

question was to prevent

depositions or ex parte

affidavits, such as were

sometimes admitted in civil

cases, [from] being used against

the prisoner in lieu of a

personal examination and cross-

examination of the witness in

which the accused has an

opportunity, not only of testing

the recollection and sifting the

conscience of the witness, but

of compelling him to stand face

to face with the jury in order

that they may look at him, and

judge by his demeanor upon the

stand and the manner in which he

gives his testimony whether he

is worthy of belief.

20

Mattox v. United States, 156 U.S. 237,

242-243 (1895). The right to confront and

cross-examine witnesses has not diminished

with time, "If the declarant is available

and the same information can be presented

to the trier of fact in the form of live

testimony with full cross-examination and

the opportunity to view the demeanor of

the declarant, there is little

justification for relying on the weaker

version." United States v. Inadi, 475

U.S. 387, 394 (1986).

With cavalier disregard for the right

of confrontation and the search for truth,

Petitioner asks this Court to enact a

broad exception to the Sixth Amendment,

applicable to all alleged victims in child

sexual abuse cases. If a "child

exception" to the hearsay rule was

legitimized, prosecutors would have an

21

incentive to present their cases through

adult witnesses. The defendant's right to

confront the accuser would be cast aside.

The jury would be forced to make its

decision without’ being granted the

opportunity to independently evaluate the

credibility of the most important witness.

By making these contentions,

Petitioner again asks the Court to make

rulings that far exceed the boundaries of

the issues presented here. The inquiry in

this case focuses solely upon the

admissibility of an out of court statement

made by a witness who, due to

incompetency, does not testify at trial.

Since many children are competent to

testify by the age of four or five, the

"See, e.g., State v. Superior Court,

149 Ariz. 397, 719 P.2d 283, 287 (App.

1986) (three year old); Lindsey v. State,

465 N.E.2d 721 (Ind. 1984) (five year

22

resolution of this matter will affect a

limited class of cases.

In the vast majority of child sexual

abuse cases, the alleged victim is able to

testify, thus allowing the trier of fact

to make a meaningful assessment of the

witness' credibility. The Confrontation

Clause issue in such cases is far

different from the issue presented here,

in which the declarant was neither seen by

the jury nor available for cross-

examination. The Court must decline

Petitioner's invitation to create law to

govern controversies that are

fundamentally different from this

litigation.

Old); Larsen v. State, 686 P.2d 583, 586

(Wyo. 1984) (five year old); Smallwood v.

State, 165 Ga. App. 473, 301 S.E.2d 670,

670-671 (1983) (four year old).

23

Petitioner raises a number of other

arguments that are either specious® or

bear no relation to the issues at hand.

Petitioner claims that the dictates of the

Confrontation Clause should be relaxed

because child sexual abuse cases,

particularly those that are non-violent

and occur in the home, may be difficult to

discover. Pet.br. 24-25. Even if this

largely unsupported claim is accepted as

true, it does not support a conclusion

that alleged victims should be excused

from testifying at trial. Petitioner

cannot seriously argue that children will

*Among those claims is an argument that

the statement at issue here is somehow

similar to a co-conspirator statement.

Pet.Br. 26. In light of the fact that

co-conspirator statements are spontaneous,

made while the conspiracy is in progress,

and fall within a well established hearsay

exception, Petitioner's argument is with-

out foundation.

24

somehow learn that they will not be called

to the witness stand and, as a result,

will reveal that they have been sexually

abused.

Petitioner also seeks to chip away at

the Confrontation Clause by arguing that

hearsay should be admitted because some

children, though intellectually capable of

testifying, may be too intimidated or

fearful’ to do so. Pet.Br. 25-28. Once

again, Petitioner forwards a claim that is

irrelevant to this case. At no stage of

the proceedings, did the state allege that

the declarant could meet the competency

standard, but was unable to testify

because she was afraid.

"Petitioner, presuming guilt in all

cases, ignores the fact that the wit-

ness' fear may arise from being required

to face the person who is wrongfully

accused. See Coy v. Iowa, 108 S.Ct.

2798, 2802 (1988).

25

Should such a situation arise, there

are practical and reasonable solutions far

superior to substituting hearsay for live

testimony. Familiarizing the child with

the courtroom and the personnel, and

allowing the presence of a trusted adult

are likely to resolve problems of this

nature. Regardless, the resolution of

that predicament will have to await a case

in which such a problem actually occurs.

Petitioner next complains that

prosecutors are sometimes unable to

introduce out of court statements made by

children, citing the excited utterance and

medical diagnosis exceptions® to the

hearsay rule. Rules 803(2,4), Fed. R. Ev.

“The Court has not yet ruled as to the

validity of either exception under the

Confrontation Clause.

26

Pet.Br. 30-32. Neither exception is

applicable to the statement at issue here.

Simply put, if a statement by any

person, child or adult, is not made in a

state of excitement, the declaration does

not provide the indicia of reliability

upon which the exception is based.

Similarly, if an individual does not

recognize the importance of providing

accurate information to a treating

physician, the foundation for the medical

diagnosis” exception, and its reliability,

"It is interesting to note that Peti-

tioner contends that children's state-

ments are often inadmissible because

"the child is too young to understand

the doctor-patient relationship... ."

Pet.Br. 30. The Solicitor General, on

the other hand, writing as Amicus in

support of Petitioner, forwards the

inconsistent argument that the statement

at issue in the present case is reliable

because it was made under circumstances

resembling the “medical diagnosis"

scenario. Brief for the United States,

at 18-24.

2?

are absent. The fact that out of court

statements may sometimes lack the indicia

of reliability that prosecutors want, does

not provide a rational basis for lowering

the standards of the Confrontation Clause.

Petitioner further solicits the Court

to reduce the right of confrontation based

upon a claim that in some child sexual

abuse cases, it is difficult to obtain a

conviction because the alleged victim's

report is the only evidence of guilt.

Pet.Br. 24-25. Petitioner offers no

evidence indicating that there are fewer

successful prosecutions of child sex

crimes than other crimes. In fact, just

the opposite may be true. Many jurors

undoubtedly find it difficult to maintain

their objectivity when the victim of the

charged offense is a child.

28

More importantly, Petitioner

overlooks the fact that the prosecutor's

difficulty in proof may arise from the

innocence of the accused. Weakening the

rights of confrontation and_ cross-

examination carries with it the danger of

wrongful conviction, a danger that this

Court has battled to prevent for more than

two centuries.

The Court must refuse Petitioner's

request that it reach far beyond the

issues presented by this case to establish

new constitutional rules for child sexual

abuse prosecutions. In essence, the Court

is being asked to reduce the prosecutor's

burden in such cases by allowing the

presentation of inherently suspect

evidence. Such a result is in direct

opposition to the search for truth which

29

lies at the heart of the Confrontation

clause.

In the final analysis, the Court's

answer to Petitioner's contentions was

preordained:

That face-to-face presence may,

unfortunately, upset the

truthful rape victim or abused

child; but by the same token it

may confound and undo the false

accuser, or reveal the child

coached by a malevolent adult.

It is a truism that

constitutional protections have

costs.

Coy v. Iowa, 108 S.Ct. at 2802.

c. Petitioner's Proposed "Totality of

the Circumstances" Test Would

Seriously Impair the Effectiveness of

the Confrontation Clause.

This Court has considered the

admissibility of hearsay evidence under

the Confrontation Clause on numerous

occasions. In each such case, The Court

30

has meticulously examined the applicable

hearsay exception and its potential impact

on the right of confrontation under the

Sixth Amendment. In at least three

opinions, it has been stated, "The Court

has not sought to map out a theory of the

Confrontation Clause that would determine

the validity of all. . . hearsay

“exceptions.''" United States v. Inadi,

475 U.S. at 392, quoting Ohio v. Roberts,

448 U.S. at 64-65, quoting California v.

Green, 399 U.S. at 162.

Over the past two decades, the Court

has issued decisions which detail the

relationship between the Confrontation

Clause and two firmly established

exceptions to the hearsay rule - prior

31

testimony and co-conspirator

statements. Numerous exceptions that

have been in existence since the birth of

this nation have yet to be considered by

the Court.

Petitioner is seeking to have the

Court take a quantum leap far beyond

"mapping out a theory". Petitioner asks

that the Court take several unprecedented

steps. Petitioner calls for a hearsay

exception that applies only to a limited

class of witnesses. This exception is

only to be applied to a specified category

of cases. Most disturbing, in applying

this exception, the trial courts will not

ohio v. Roberts, 448 U.S. at 66;

Mancusi v. Stubbs, 408 U.S. 204 (1972);

California v. Green, supra.

“Bourjaily v. United States, 107 S.Ct.

2775, 2782 (1987); United States v. Inadi,

475 U.S. at 393-396.

32

be guided by the centuries of practice and

study that can be called upon to ensure

fair and even application of the hearsay

exceptions contained in the Federal Rules

of Evidence and their state counterparts.

The adoption of Petitioner's

"totality of the circumstances" plan would

force trial judges to devise ad hoc

rulings under the Confrontation Clause.

Arbitrariness would seriously impede the

search for truth. Petitioner recognizes

that attempts to expand established

hearsay exceptions results in the

"destruction of the certainty and

integrity of the exceptions." Pet.Br. 3l,

n.10, quoting State v. Myatt, 697 P.2d

836, 842 (Kan. 1985). The "solution"

proposed by Petitioner would be far worse.

The pitfalls that such a "totality of

the circumstances" approach represents

33

extend well beyond prosecutions for child

sexual abuse. If such an approach is

appropriate for children who are alleged

to be victims of such crimes, why should

it not apply to all juvenile witnesses?

Would it not also be appropriate to extend

this newly designed concept to all sexual

offenses? The carefully crafted

interrelationship between the

Confrontation Clause and the hearsay rule,

developed through decades of painstaking

trial and error, would be in grave danger

of extinction.

Petitioner seeks to create an

illusion of symmetry, however, by

Suggesting that the same standard of

admissibility be used in child sex cases

as is applied under the residual

exceptions to the hearsay rules, Rules

803(24) and 804(b)(5), Fed. R. Ev. These

34

exceptions cannot appropriately be used to

create broad exceptions to the right of

confrontation or to the rules of evidenc2.

The drafters of the Rules of Evidence

recognized that these residual provisions

should be applied "rarely, and only in

exceptional circumstances." Senate

Committee on Judiciary, Report on Federal

Rules of Evidence, 93rd Congress, Second

Session Report No. 93-1277, at 19-20

(October 18, 1974). The drafters warned

that "an overly broad residual hearsay

exception could emasculate the hearsay

rule and the recognized exceptions or

vitiate the rationale behind codification

of the rules." Id. at 19.

Again, Petitioner attempts to draw

the Court far beyond the bounds of the

issues presented here - the admissibility

35

of hearsay statements made by an

incompetent child and falling within no

recognized exception to the hearsay rule.

Dissatisfied that some out of court

statements by children are unreliable and

therefore cannot be admitted either under

the Confrontation Clause or the rules of

evidence, Petitioner asks this Court to

assume a legislative function. Adoption

of the evidentiary scheme proposed by

Petitioner would strike a crippling blow

to the search for truth in our system of

criminal justice.

As parents, we fear for the safety of

our children; but as a nation, we must.

fear even more deeply for our childrens'

right to live in a society in which a

citizen accused of crime receives a fair

trial based upon competent evidence. We

owe our children that much.

36

CONCLUSION

It is respectfully submitted that the

Court should rule that certiorari was

improvidently granted and remand this

matter to the state court without further

review. In the alternative, the judgement

of the Idaho Supreme Court should be

affirmed on the grounds that the admission

of hearsay statements of a mentally

incompetent witness which do not fall

within any established hearsay exception

violates the dictates of the Confrontation

Clause of the Sixth Amendment to the

United States Constitution.

Respectfully submitted,

NATMAN SCHAYE*

P.O. Box 608

Tucson, Arizona 85702

(602) 743-9940

BARBARA M. SATTLER

177 North Church Avenue

37

Suite 315

Tucson, Arizona 85701

For Amicus Curiae

National Association of

Criminal Defense Lawyers

*Counsel of Record

Counsel also wish to thank Gary

Occhipinti, law student, University of

Arizona, for his assistance in the

preparation of this brief.