# Respondents Brief — White v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 346

## Text

- por weeny Wy We
No. 90-6113 : JUL 31 199)

In The

Supreme Court of the United States
October Term, 1991

@
| RANDALL D. WHITE,

Petitioner,
vs.

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

S

On Writ Of Certiorari To The Appellate Court
Of Illinois, Fourth Judicial District

¢

BRIEF FOR RESPONDENT
¢

RoLAND W. Burris
Attorney General
State of Illinois

ROsALYN B. Kaplan
Solicitor General
State of Illinois

TERENCE M. MaApDseEN

ARLEEN C. ANDERSON”
Douc.as K. SMITH
Assistant Attorneys General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-3692

Counsel for Respondent
“Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY?

QUESTION PRESENTED FOR REVIEW

Whether the Confrontation Clause requires the pros-
ecution to show that a child declarant is unavailable to
testify before the child’s out-of-court statements may be
admitted against the defendant at trial?

TABLE OF CONTENTS

Page
QUESTION PRESENTED ..................000ce0e- i
es Fo eer iv
SIAT Eee: OF THE CAGE... ... 2c. cesissscncvsen 1
SUMMARY OF ARGUMENT....................... 3

ARGUMENT:

I.

THE CONFRONTATION CLAUSE DOES NOT
REQUIRE A SHOWING OF UNAVAILABILITY AS
A CONDITION TO THE ADMISSION OF A
CHILD VICTIM’S STATEMENTS IN A SEXUAL
ABUSE PROSECUTION WHEN INTRODUCED
UNDER MOST RECOGNIZED HEARSAY EXCEP-
CRITE «vc vcernscnssaeeunnewae beter e hea REORIEES
A. The Primary Object Of The Confrontation Clause

Was To Prevent Trial By Ex Parte Affidavit And

Other Weak Substitutes For Live Testimony....

B. Under The Common Law, The Use Of Many Of
Today’s Frequently Used Hearsay Exceptions
Was Not Conditioned Upon The Unavailability
oR 8 ree ere

C. An Unavailability Requirement For All Hearsay
Exceptions Used In Child Sexual Abuse Cases
Would Offer No Significant Benefit, But Would
Place Significant Burdens On The Prosecution
And The Criminal Justice System..............

D. There Are Compelling Public Policy Reasons
Why A Child’s Out-Of-Court Statements Are
Admissible Without Regard To Availability ....

14

18

22

a

LTT

TABLE OF CONTENTS - Continued

Page

E. Not Only Legal Precedent, But Practicality

Requires That This Court Reject Petitioner’s Pro-
posed “Rule Of Necessity.” ..................:.

Il.

IF PROOF OF UNAVAILABILITY IS REQUIRED
FOR ADMISSION OF SPONTANEOUS DECLARA-
TIONS AND STATEMENTS MADE TO MEDICAL
PERSONNEL FOR PURPOSES OF TREATMENT
OR DIAGNOSIS, THE STATE MADE A “GOOD-
FAITH EFFORT” TO CALL THE DECLARANT AS
A WITNESS IN THIS CASE, ONLY TO FIND
THAT SHE WAS EMOTIONALLY OR PSYCHO-
LOGICALLY “UNAVAILABLE.” .............

fee ahh RN Perri oer rere

26

28
31

iv

TABLE OF AUTHORITIES

Page
Cases:
Altmeyer v. State, 496 N.E.2d 1328 (Ind. App. 1
RES eer nr aT re eee, 29
Barber v. Page, 390 U.S. 719 (1968).................... 8

Bourjaily v. United States, 483 U.S. 171 (1987)..... 18, 23
California v. Green, 399 U.S. 149 (1970) ........... 14, 17
Coy v. lowa, 487 U.S. 1012 (1988).................... 21
Dutton v. Evans, 400 U.S. 74 (1970) (plurality opin-

Red EW ee kee SEES 406 R4H) CK NS ev GOK. 14, 17, 18
Glendening v. State, 503 So.2d 335 (Fla. Dist. Ct.

ER aaa ss ak cen chien tee ee CAE eee eens 29
Idaho v. Wright, 497 U.S. , 110 S.Ct. 3139 (1990)... . 28
Kennedy v. Upshaw, 66 Tex. 442, 1 S.W. 308 (1886).... 11
Lee v. Illinois, 476 U.S. 530 (1986) ........ 3, 13, 14, 28
Mancusi v. Stubbs, 408 U.S. 204 (1972)..........0..... 8
Maryland v. Craig, 497 US. , 110 S.Ct. 3157

o_O SSR ESR Pa Aer rarre 6, 23, 24
Massachusetts Bonding & Insurance Co. v. Norwich

Pharmacal Co., 18 F.2d 934 (2d Cir. 1927).......... 16
Mattox v. United States, 156 U.S. 237 (1895)........ 8, 23

Meaney v. United States, 112 F.2d 538 (2d Cir. 1940)... 11

Missourt, Kansas & Texas Railway Co. v. Dalton, 56
Tex.Civ.App. 82, 120 S.W. 240 (1909).............. 1]

Motes v. United States, 178 U.S. 458 (1900)............ 8
Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989) ....... 24

TABLE OF AUTHORITIES — Continued

Page
Ohio v. Roberts, 448 U.S. 56 (1980)... ............ passim
People v. Johnson, 146 Ill.App.3d 640, 497 N.E.2d
S08 (IB. Ape. 5 Dihet. ISGR) ... 6. cece cccnneenes 29
Reynolds v. United States, 98 U.S. 145 (1879) .......... 8
Roosa v. Boston Loan Co., 132 Mass. 439 (1882)....... 11
Shell Oil Co. v. Industrial Commission, 2 I1.2d 590,
toe! 8 | rerrerr rere rr rT ee rrr eer 1]
State v. Sheppard, 197 N.J. Super. 411, 484 A.2d
1330 (1984)... Ceara ey Tere ere eee ee

State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987)... . 29
United States v. Inadi, 475 U.S. 387 (1986)........ passim

CONSTITUTIONAL PROVISION:

United States Constitution, Amendment VI...... passim

FrepeRAL STATUTES:

Federal Rules of Evidence:

Rules 803(1)-(24)..... Sate Wied ae oa ce oir a
Rule 803(4)....... Bs Sate bass et etl a ond ty ae
EN WED GOP sia Cece Mieewevecsesueess haned 16
eee MR Nt a a te Ee 8
Rule 804(b)(1) advisory committee’s note.........., 8
Oe Fr Pri seer es ee ere eae 14
a re Tre aaa ee
Re nek sca k red beewek tee eener ren 4, 6, 19, 20

vi

TABLE OF AUTHORITIES - Continued

Page
State STATUTES:
cs kc toaesg kee ed bh veneeseusee ds 20
ES was coh nck ak oes ¥e Go ehs eRe senate 20
i MR: We I OD oss vccuecccscevacynesaseves 20
le PU TM TD BOI v5 inc cccccesvcccesucsuceess 20
Ne odds os woh cepaseabuwaescan coun 20
Se I II sino we kn oe occ chunaseuchaakes 20
Ray Sn aaa: s bog Gace wows nie nace eee 20
os ne ku e's b.Vuwree KRW aa Ss dees 8 20
Ill. Rev. Stat. 1989, Ch. 110A, § 238................. 20
NS IT ok 5 0g o 30h 06300405 60.K0 65 Ck av oan ens 20
ae ae ac aeeapcabewsenernavesie os 20
ee 20
ER ado Ts a gis «ois & be sk wae balks eae wes 20
I MG 4 ad sk Ga nen Lk oe eva b ow sasesere 20
SN RTs a gp 6 vi vkcd se ves veneaneeo econ 20
eg oa i nid ds 45 S63 Koos oO eC CENA EK 20
ee ss xk onc cds as aban deter hu eEae oe ees 20
on iy a ae 5 yu ev vn ower nceeen acess 20
ee ee ee on ceusucduncccubesncens 20
Pn MY TI II So vos cc ccawevcancssnnsncnee#s 20
Se ES I os 6's as new Sack b cdweeneesadeuadn vues 20

vii

TABLE OF AUTHORITIES - Continued

Page
nT I 0 kc ys 64:64 50 4 Kasse hee ud de eiN eee 20
ee ee Ser err 20
I 5 bey wo s4es-s cea cnke dune ounaee as 20
EE nh cae a6 eben kskarsseseneesvaueses 20
ee n-ne chan ehaseekbunconcekes 20
Re I Oe I oi vn ceccedsccdanvcnss ee
EE Sins cu den edness bees és0ens ous neheNs 20
S.D. Codified Laws © 19-16-37 .... 2... ccc ccecces 20
Ty Ee en ree rr eee 20
eR ee errr yr eee 20
rer re rere error ry ere 20
se SR ere ara re eee 20
EE van boo ka cde oa coWuesetnespeunes 20
Ne EE I no ae dae eaehesacerccckasduensbedees 20
MISCELLANEOUS:
A.D. Yarmey, The Psychology of Eyewitness Testt-
ERT PET ere CTT TT ere Tey 24
81 Am. Jur. 2d Witnesses § 494 (1976)............... 20
E. Cleary, McCormick on Evidence § 292 (3d ed.
DCs Knee etiat wat ay cus kaha ee dees 11, 16, 19
Graham, The Confrontation Clause, the Hearsay Rule,
and Child Sexual Abuse Prosecutions: The State of
the Relationship, 72 Minn. L. Rev. 523 (1988)....... 25

Vili

TABLE OF AUTHORITIES - Continued
Page

Haddad, The Future of Confrontation Clause Devel-
opments: What Will Emerge When the Supreme
Court Synthesizes the Diverse Line of Confrontation
Decisions, 81 J]. Crim. L. & Criminology 77 (1990) .13, 17

Johnson & Foley, Differentiating Fact from Fantasy:
The Reliability of Children’s Memory, 40 J. Soc.
Issues (no. 2) 33, 34 (1984)

Note, A Comprehensive Approach to Child Hearsay
Statements in Sex Abuse Cases, 83 Colum. L. Rev.
1745 (1983)

Note, Declarations Against Interest: A Critical
Review of the Unavailability Requirement, 52 Cor-
ee OS eee 15

Recent Development, The Confrontation Clause
Applied to Miner Victims of Sexual Abuse, 42
Vand. L. Rev. 1511 (1989)

1 J. Stephen, A History of the Criminal Law of Eng-
land 326 (1883)

Stevens & Berliner, Special Techniques for Child Wit-
nesses, The Sexual Victimology of Youth 246 (L.
Schultz ed. 1980)

5 J. Wigmore, Evidence (Chadbourn rev. 1974) 10, 14, 15
6 J. Wigmore, Evidence (Chadbourn rev. 1974) ....10, 11

No. 90-6113
@

In The

Supreme Court of the United States

October Term, 1991
+

RANDALL D. WHITE,

Petitioner,
VS.

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

¢

On Writ Of Certiorari To The Appellate Court
Of Illinois, Fourth Judicial District
o

BRIEF FOR RESPONDENT
4

STATEMENT OF THE CASE

The Statement of the Case contained in Petitioner's
brief is generally correct. However, Respondent wishes to
correct one inaccuracy, as well as recite a few additional
salient facts which are contained in the record.

First, Petitioner states that “[flollowing the admission
of the hearsay testimony, S.G. was brought to the court-
room for the purpose of testifying, but did not take the
stand.” (Brf. for Pet. at 2) This statement is not entirely
correct. Following the admission of the testimony of the
baby sitter, Toni DeVore (Vol. VI, R. 6-37), Dr. Michael
Meinzen (Vol. VI, R. 43-63), and S.G.’s mother, Tammy
Grigsby (Vol. VI, R. 64-97), the State attempted to call S.G.

to the stand. (J.A. 12) When she failed to take the stand at
that time, the State instead called Officer Terry Lewis.
(| A. 12) After Lewis testified, the State attempted to
recall SG. (J.A. 13) When S.G. again failed to take the
stand, the case was recessed until the following morning.
‘Vol VI, R. 123) At that time, the State called the emer-
gency room nurse, Cheryl Reents. (Vol. VII, R. 5-16)

The Petitioner’s Statement of the Case also fails to
apprise the Court of other evidence in the case which
corroborated S.G.’s hearsay statements. Although Peti-
tioner states that the baby sitter was awakened by S.G.'s
screams at 4:00 a.m., the evidence also showed that S.G.’s
mother observed Petitioner leaving a tavern at approx-
imately 3:30 a.m. that morning. (Vol. VI, R. 73-74) The
tavern was only a five-minute drive from the Grigsby
residence. (Vol. VI, R. 75)

Moreover, the baby sitter testified that S.G. did not
have any marks on her face or neck when she was put to
bed the previous evening. (Vol. VI, R. 21) However, the
following morning, she noticed a scratch on S.G.’s neck
(Vol. VI, R. 21)

S.G.’s mother also testified that she noticed S.G. had
bruises or red marks on her neck which were not there
the previous night when she left the house. (Vol. VI, R.
81) Ms. Grigsby also checked S.G.’s vaginal area and
found that it was “a little red.” (Vol. VI, R. 81)

Officer Lewis noticed a small cluster of fresh
scratches on the right side of S.G.’s mouth. There were
also two long parallel scratches on the left side of S.G.’s

neck. (Vol. VI, R. 112-13) The scratches had actually bro-
ken the skin, but were no longer bleeding. (Vol. VI, R.
113)

Nurse Reents also testified as to the bruising on the
left side of S.G.’s neck. (Vol. VII, R. 12) This was con-
firmed by Dr. Meinzen who described the bruising as
extending over S.G.’s sternocleidomastoideus muscle.
(Vol. VI, R. 51-52)

SUMMARY OF THE ARGUMENT

I. This Court has closely scrutinized the admission
of hearsay which is most analogous to ex parte affidavits
or depositions and has concluded that such evidence is
merely “a weak substitute for live testimony” which
offends the purposes of the Confrontation Clause. If,
however, hearsay has evidentiary value independent of
whatever testimony the declarant may later give in court,
and does not bear a notable similarity to ex parte affi-
davits or depositions, as is the case with custodial confes-
sions, a separate inquiry into unavailability is not
mandated under the Confrontation Clause. United States
v. Inadi, 475 U.S. 387 (1986); Lee v. Illinois, 476 U.S. 530,
548 n.2 (1986) (Blackmun, J., dissenting).

The hearsay statements admitted in this case have
never been considered “weak substitutes for live testi-
mony.” Both spontaneous declarations and statements
made for purposes of medical treatment gain their proba-
tive value from the circumstances in which they were
made. Consequently, the use of such statements has never

been conditioned upon the unavailability of the declar-
ant.

Under the common law, the use of many of today’s
most common hearsay exceptions was not conditioned
upon a showing of unavailability. Moreover, Federal Rule
of Evidence 803 includes 24 exceptions similarly not con-
ditioned on such a showing. If the Petitioner's interpreta-
tion of the Confrontation Clause were correct — 1.e., that
the hearsay statements of a non-testifying child victim in
a sexual abuse case may be admitted only upon a Ccase-
specific finding of unavailability - the use of all the
common-law hearsay exceptions not conditioned upon a
showing of unavailability, as well as all federal and state
exceptions based thereon, would violate the Constitution.
Such an approach could lead to a quagmire, in that courts
would be forced to develop a separate body of hearsay
law, applicable only in criminal cases and only when the
prosecution offers the hearsay.

Moreover, an unavailability requirement for all hear-
say exceptions used in ‘child sexual abuse cases would
offer no significant benefit. First, unless the prosecution
simply fails to produce an available child declarant for
trial, the rule never actually serves to exclude evidence.
In addition, the Compulsory Process Clause would assist
any defendant in obtaining the testimony of a child
declarant whose hearsay statement was admitted against
him. Finally, most states have either hostile witness pro-
visions or rules comparable to Federal Rule of Evidence
806 which allows the defendant to examine, as if under
cross-examination, any hearsay declarant he may call as a
witness.

An unavailability rule would, however, impose sig-
nificant burdens on both the criminal justice system and
the prosecution. First, a rule requiring a determination of
unavailability, every time the prosecution seeks to admit
a child’s hearsay statement, automatically adds another
avenue of appellate review for defendants in the ever-
growing number of sexual abuse cases. Moreover, in
every such case, the prosecution would be required to
ensure the child victim’s continuing availability for trial.
In many sexual abuse cases, if the child manages to hold
up emotionally until the time of trial, prosecutions are
abandoned or result in generous plea agreements simply
because the child either “freezes” when he or she gets to
court, or is unable to give adequate testimony on the
witness stand.

Several important state interests would be furthered
if the prosecution is not constitutionally required to pro-
duce an available child victim for trial before introducing
his or her out-of-court statements in a sexual abuse case.
Indeed, this would be accomplished without sacrificing
the Confrontation Clause’s truth-seeking function.

First, if the state is not required to produce available
child declarants, the state interest in preventing trauma
to child witnesses in abuse cases is obviously advanced.
At the same time, however, the accuracy of the evidence
before the trier of fact is enhanced, thereby advancing
both the societal interest in accurate fact-finding and the
truth-seeking goal of the Clause. Indeed, the Court has
recognized that “where face-to-face confrontation causes
significant emotional distress in a child witness, there is
evidence that such confrontation would in fact disserve

the Confrontation Clause’s truth-seeking goal.” Maryland
v. Craig, 497 U.S. __, 110 S.Ct. 3157, 3169 (1990).

There are other compelling reasons why an
unavailability requirement for child hearsay declarants in
sexual abuse cases would impede accurate fact-finding.
Children may have difficulty testifying at trial due to
inferior long-term and short-term memories. Moreover, a
child may experience guilt or fear when testifying, partic-
ularly when the defendant is a parent or relative who
may have, over time, extracted a promise of secrecy from
the ambivalent child by using coercion, threats, subtle
persuasion, or bribes. Thus, the account given closer in
time to the actual event is likely to be the more accurate.
Additionally, given the impressionable nature of children,
use of the prior, more contemporaneous account
decreases the chances that any intervening outside influ-
ence by an adult was exerted over the child. Indeed, due
to the unique circumstances surrounding a child’s in-
court testimony, especially in a sexual abuse case, his or
her out-of-court statements are comparable, in terms of
probative value, to the statements of co-conspirators
analyzed in /nadi.

Il. If proof of unavailability is required for admis-
sion of spontaneous declarations and statements made to
medical personnel for purposes of treatment or diagnosis,
the state made a “good-faith effort” to call the declarant
as a witness in this case, only to find that she was
emotionally or psychologically “unavailable.”

If, as Petitioner suggests, the trial court was obligated
to make a “case-specific finding of necessity,” the State
should be given the opportunity to prove S.G.’s

unavailability on remand before Petitioner is granted a
new trial.

ARGUMENT

I. THE CONFRONTATION CLAUSE DOES NOT
REQUIRE A SHOWING OF UNAVAILABILITY AS
A CONDITION TO THE ADMISSION OF A CHILD
VICTIM’S STATEMENTS IN A SEXUAL ABUSE
PROSECUTION WHEN INTRODUCED UNDER
MOST RECOGNIZED HEARSAY EXCEPTIONS.

A. The Primary Object Of The Confrontation
Clause Was To Prevent Trial By Ex Parte Affi-
davit And Other Weak Substitutes For Live Tes-
timony.

The right of confrontation originated in response to
the practice of trying criminal defendants solely on the
basis of ex parte affidavits or depositions, in lieu of a
personal examination and cross-examination. Defendants
were denied not only the opportunity of testing the recol-
lection and sifting the conscience of a sworn witness
before the trier of fact, but of the symbolic act of chal-
lenging their accuser face to face in an open and even
contest in a public trial. See generally 1 J. Stephen, A
History of the Criminal Law of England 326 (1883).

An ex parte affidavit or deposition is generally noth-
ing but a less desirable substitute for live testimony.
Either can be as detailed and sweeping as the examina-
tion of a live witness. Both are usually created in contem-
plation of litigation and, therefore, are subject to the self-
serving influences associated with preparing for trial.

Similar factors come into play when the prosecution
seeks to admit testimony from a prior judicial proceeding
in place of live testimony at trial. See, e.g., Fed. R. Evid.
804(b)(1). Like an affidavit or deposition, former testi-
mony is merely a weaker substitute for live testimony.
Even if the declarant was under oath and subject to cross-
examination at the time of his former testimony, the trier
of fact’s opportunity to observe his or her demeanor is
what in a large measure confers depth and meaning upon
oath and cross-examination. Fed. R. Evid. 804(b)(1) advi-
sory committee’s note.

In Ohio v. Roberts, 448 U.S. 56 (1980), the Court exam-
ined the unavailability requirement found in a long line
of Confrontation Clause cases involving former testi-
mony.' The Court summarized this case law, stating that
“liJn the usual case .. . the prosecution must either
produce, or demonstrate the unavailability of, the declar-
ant whose statement it wishes to use against the defen-
dant.” 448 U.S. at 65.

Six years later, the Court disavowed any suggestion
that, under Roberts, no out-of-court statement would be
admissible without a showing of unavailability. In United
States v. Inadi, 475 U.S. 387 (1986), a case involving the use
of co-conspirator statements of a non-testifying declarant,
the Court's first step was to limit Roberts to the particular
situation presented by it — the State’s attempted use of the
preliminary hearing testimony of a witness not produced

' See Reynolds v. United States, 98 U.S. 145 (1879); Mattox v.
United States, 156 U.S. 237 (1895); Motes v. United States, 178
U.S. 458 (1900); Barber v. Page, 390 U.S. 719 (1968); Mancusi v.
Stubbs, 408 U.S. 204 (1972).

at the defendant's subsequent state criminal trial. 475 U.S.
at 393. The Court reasoned that former testimony seldom
has evidentiary value of its own, but is intended solely to
replace live testimony. /d. at 394. If the declarant is avail-
able and the same information can be presented in the
form of live testimony, there is little justification for rely-
ing on the weaker version. /d. The Court continued that
“longstanding principles of the law of hearsay, also appli-
cable to Confrontation Clause analysis, favor admitting
the better evidence.” Id. at 394. If, however, the declarant
is unavailable, no “better” version of the evidence exists,
and, out of necessity, the law allows the admission of the
former testimony as a substitute for the live testimony. /d.
at 394-95.

The situation is quite different when a declarant’s in-
court testimony would fail to reproduce a significant
portion of the evidentiary value of his out-of-court state-
ments. For example, because the statements of co-con-
spirators are made while the conspiracy is in progress,
the statements provide evidence of the conspiracy’s con-
text that cannot be duplicated, even if the declarant testi-
fies to the same matters in court. Inadi, at 395-96. This is
especially true in that the declarant and the defendant
will have changed from partners in crime to suspects or
defendants in a criminal trial, each possessing informa-
tion potentially damaging to the other? Id. at 395. In

2 Petitioner’s attempt to distinguish Inadi solely on the
»asis of the special relationship between co-conspirators is
superficial at best. He ignores the Court's core point in the case
which is that co-conspirator statements derive much of their
probative value from the fact that “they are made in a context
very different from trial.” 475 U.S. at 396.

10

other words, because it is made in a context very different
from trial, there is a necessity*® for resorting to the out-of-
court account.

Like the out-of-court statements of co-conspirators,
virtually all admissible hearsay, other than former testi-
mony, has irreplaceable probative value independent of
whatever testimony the declarant may later give at trial.
The two hearsay exceptions utilized in this case are illus-
trative of this point.

A spontaneous declaration or excited utterance gains
its probative significance from the consideration that in
the stress of nervous excitement, the reflective faculties
are stilled and the utterance becomes the unreflecting and
sincere expression of one’s actual impression and belief. 6
J. Wigmore, Evidence, § 1749, at 199. Accordingly, such an
extrajudicial assertion is better than is likely to be
obtained from the same person on the stand, and it fol-
lows that unavailability of the witness need never be
shown under this exception. /d. § 1748, at 199.

Statements made for purposes of medical treatment
also gain their probative value from the fact that they are
made at a time when circumstances lessen the possible
inducement to misrepresent. Their value rests on the
likelihood that the patient believes that the effectiveness
of the treatment he receives may depend largely upon the

* “Necessity” in the sense that the declarant’s out-of-court
assertion “may be such that we cannot expect, again, or at this
time, to get evidence of the same value from the same or other
sources.” 5 J. Wigmore, Evidence, § 1421 (Chadbourn rev. 1974)
(emphasis in original).

11

accuracy of the information he provides the physician. E.
Cleary, McCormick on Evidence § 292, at 839 (3d ed. 1984).
Statements of physical or mental condition made on the
stand, where there is ample opportunity for deliberate
misrepresentation and small means for checking it with
other evidence or testing it by cross-examination, are
comparatively inferior to the extrajudicial statements
made to a physician. Accordingly, it follows that
unavailability of the declarant is not a condition prece-

dent to the use of such statements. 6 J. Wigmore, supra,
§ 1714, at 90.

Courts have drawn a distinction between statements
made to a physician consulted for purposes of treatment
and those made to a physician for purposes of medical
diagnosis, including those made to enable the doctor to
testify. The distinction is based on the conclusion that
where the declarant does not anticipate that his treat-
ment’s effectiveness will depend on the truthfulness of
his statements, the rationale underlying the exception
does not exist. E. Cleary, supra, § 293, at 841. This distinc-
tion, however, does not warrant treating such statements

4 Because of the strong assurance of reliability, courts have
expanded the exception to include statements concerning past
symptoms if regarded by the patient as related to treatment.
Roosa v. Boston Loan Co., 132 Mass. 439 (1882); Kennedy v.
Upshaw, 66 Tex. 442, 1 S.W. 308 (1886); Missouri, Kansas & Texas
Railway Co. v. Dalton, 56 Tex.Civ.App. 82, 120 S.W. 240 (1909);
Meaney v. United States, 112 F.2d 538 (2d Cir. 1940); see Fed. R.
Evid. 803(4). In some cases, the special assurance of reliability
~ the patient’s belief that accuracy is essential to effective
treatment - also applies to statements concerning cause. Shell
Oil Co. v. Industrial Commission, 2 IIl.2d 590, 119 N.E.2d 224
(1954); see Fed. R. Evid. 803(4).

12

differently with respect to the requirement of
unavailability. See Fed. R. Evid. 803(4) (availability of
declarant immaterial regardless of whether statement is
made for purposes of diagnosis or treatment). Although
the probative value of statements made only for the pur-
pose of enabling the physician to testify does not rest on
the same rationale underlying statements made for pur-
poses of treatment, the statements are still made in a
“context very different from trial” and derive their signif-
icance from the circumstances in which they were made.
As stated above, statements of pain or symptoms made in
court, where there is abundant opportunity for fabrica-
tion and limited means for effectively exposing inac-
curacies through cross-examination, are proportionately
inferior to extrajudicial statements made to a physician,
even if solely for the purpose of enabling the doctor to
give his expert opinion later at trial. The declarant is less
likely to contrive symptoms when consulting a member
of the medical profession who he or she realizes has the
ability to evaluate the accuracy of the statements made.
See E. Cleary, supra, § 293, at 842 (“[t]he general reliance
upon ‘subjective’ facts by the medical profession and the
ability of its members to evaluate the accuracy of state-
ments made to them is considered sufficient protection
against contrived symptoms.” ).

There is, however, a type of admissible hearsay
which — although it has independent evidentiary value
derived from the context in which it was made - bears
such similarity to ex parte affidavits or depositions as to
call for close examination under the Confrontation
Clause: third-party custodial confessions. Custodial con-
fessions can include all the detail of an affidavit or

13

deposition, and like the affidavits and depositions used
to convict during the seventeenth century, they are ordi-
narily obtained ex parte, in contemplation of litigation,
and with the participation of the prosecution. Since a
custodial confession shares so many of the characteristics
of an affidavit or deposition, it, like former testimony, is
nothing more than a “weak substitute for live testimony”
and is thus subject to an unavailability requirement. See
Lee v. Illinois, 476 U.S. 530, 548 n.2 (1986) (Blackmun, J.,
dissenting) (” . . . [A] specific showing of unavailability is
not always required. | nonetheless assume, for purposes
of discussion, that in relevant respects Thomas’ custodial
confession is more like the prior judicial testimony at
issue in Roberts than like the contemporaneous co-con-
spirator statements involved in Inadi, and thus that both
Roberts requirements had to be satisfied”).

In short, this Court has closely scrutinized the admis-
sion of hearsay which is most analogous to ex parte affi-
davits or depositions, the quintessential “weak
substitutes for live testimony” which the Confrontation
Clause was developed to prevent. If, however, hearsay
has evidentiary value independent of whatever testimony
the declarant may later give in court, and does not bear a
notable similarity to ex parte affidavits or depositions as is
the case with custodial confessions, a separate inquiry
into unavailability is not mandated under the Confronta-
tion Clause. See also Haddad, The future of Confrontation
Clause Developments: What Will Emerge When the Supreme
Court Synthesizes the Diverse Line of Confrontation Deci-
sions, 81 ].Crim.L. & Criminology 77, 82 (1990). The hearsay
admitted in this case fulfills both criteria.

14

B. Under the Common Law, the Use of Many of
Today’s Frequently Used Hearsay Exceptions Was
Not Conditioned Upon the Unavailability of the
Declarant.

This Court has held that although the Confrontation
Clause differs in significant ways from the common-law rule
against introduction of hearsay, the two “stem from the same
roots,” (Dutton v. Evans, 400 U.S. 74, 86 (1970) (plurality
opinion)), and “protect similar values.” California v. Green, 399
U.S. 149, 155 (1970). Accordingly, analysis under the Con-
frontation Clause “is informed . . . by hearsay principles
developed over time by courts and legislatures.” Lee v. Illi-
nois, 476 U.S. at 551 (Blackmun, J., dissenting).

Under the common law, the use of many of today’s
most common hearsay exceptions was not conditioned
upon a showing of unavailability of the declarant. Only if
the exception originated as a result of necessity, due to
the great difficulty or impossibility of proving certain
facts by living witnesses, was unavailability required.®

> Two hearsay exceptions which have historically required
unavailability are dying declarations and declarations about
family history. See Fed. R. Evid. 804(b)(2) and 804(b)(4). How-
ever, both exceptions have independent probative value
derived from the circumstances in which they were made and,
accordingly, would not constitutionally require a showing of
unavailability under the Court’s reasoning in Inadi.

An anomaly is the declaration against proprietary or pecu-
niary interest which gains its evidentiary value from the con-
sideration that a statement asserting a fact against one’s
interest is unlikely to be deliberately false or heedlessly incor-
rect. 5 J. Wigmore, supra, § 1457. Although the unavailability

(Continued on following page)

15

For example, the hearsay exception for public records
was not conditioned upon a showing of unavailability at
common law. Given the volume of business in public
offices, the official written statement of a public official,
for whom it would also be practically inconvenient to
regularly appear in court, is thought to be more reliable
than his present memory if he were to take the stand. E.
Cleary, supra, § 315, at 889. Although necessity plays a
part in the rationale underlying this exception, the over-
riding impetus appears to have been the preference for
resorting to the earlier statement, thought to be more
valuable than a later statement made by the declarant at
trial. Consequently, unavailability was not a requirement.

Although the hearsay exception for regularly kept
records included a requirement of unavailability at com-
mon law,® by the middle of the twentieth century, that

(Continued from previous page)

requirement at common law, apparently based on the impos-
sibility of obtaining the declarant’s testimony on the stand, has
continued and is now largely standardized, its logic has been
questioned in that the rationale which admits other hearsay
statements without regard to the availability of the declarant
seems equally applicable to declarations against interest. See,
e.g., 5 J. Wigmore, supra, § 1455, at 324; Note, Declarations
Against Interest: A Critical Review of the Unavailability Require
ment, 52 Cornell L. Rev. 301 (1967). Additionally, under the
reasoning of Inadi, a showing of unavailability would not be
constitutionally required for the use of statements falling
under this exception.

6 At common law, if the person who made a business
record were present as a witness, the record could be used to
refresh his recollection, or if still unable to recall the facts, his
testimony might qualify the record as past recollection

(Continued on following page)

16

requirement had virtually disappeared for the same rea-
sons it was disregarded in the public records exception.
E.g., Massachusetts Bonding & Insurance Co. v. Norwich
Pharmaca! Co., 18 F.2d 934, 938 (2d Cir. 1927) (“It ought to
appear that... . the missing entrants, if called, would in
the nature of things have no recollection of the events
recorded and could do no more than corroborate the
existing testimony as to the course of business in which
they had a part.”).

Termed in the Advisory Committee Notes a “syn-
thesis” of the common-law hearsay exceptions in which
unavailability of the declarant is irrelevant, Federal Rule
of Evidence 803 includes 24 exceptions similarly not con-
ditioned on such a showing. See Fed. R. Evid. 803(1)-(24).
Only five of the hearsay exceptions recognized in the
federal rules require the unavailability of the declarant.
See Fed. R. Evid. 804(b)(1)-(5).

lf the Petitioner’s interpretation of the Confrontation
Clause were correct — 1.e., that the hearsay statements of a
non-testifying child victim in a sexual abuse case may be
admitted only upon a case-specific finding of
unavailability —- the use of all the common-law hearsay
exceptions not conditioned upon a showing of
unavailability, as well as all federal and state exceptions

(Continued from previous page)

recorded. If, however, the declarant were unavailable, then
these avenues to admissibility for the business record could
not be used. Thus, a need for a special hearsay exception for
business records arose. As sometimes happens, the reason why
the rule came into existence was incorporated into the rule as a
requirement. E. Cleary, supra, § 311, at 880.

17

based thereon, would violate the Constitution. Commen-
tators have predicted that, generally, such an approach
could lead to a “quagmire,” in that courts would be
forced to develop a separate body of hearsay law, appli-
cable only in criminal cases”? and only when the prosecu-
tion offers the hearsay. See Haddad, supra, 81 |.Crim.L. &
Criminology at 80.

This Court should be most reluctant to utilize the
Confrontation Clause as a vehicle for examining estab-
lished evidentiary law. See Dutton v. Evans, 400 U.S. at 96
(Harlan, J., concurring) (“[t]he [confrontation] clause is
simply not well designed for taking into account the
numerous factors that must be weighed in passing on the
appropriateness of rules of evidence.”). Both the Court
and individual justices have frequently observed as well
that the Confrontation Clause should not be interpreted
in a way that would curtail development of the law of
evidence. See, e.g., Ohio v. Roberts, 448 U.S. at 64-65;
Dutton v. Evans, 400 U.S. at 80, 86 n.17; id. at 95-96
(Harlan, J., concurring); California v. Green, 399 US. at
171-72 (Burger, C.J., concurring).

Finally, if the hearsay exceptions that are not condi-
tioned upon a showing of unavailability are not presump-
tively harmonious with the Confrontation Clause, this
Court will eventually be forced to examine al! such
exceptions with respect to the question of unavailability,

? If limited solely to the facts of this case, Petitioner’s
proposed rule would, oddly enough, require courts to develop
a separate body of hearsay principles applicable only to non-
testifying victims in child sexual abuse prosecutions.

18

including the firmly rooted ones. This would be a dupli-
cative and time-consuming process, found by the Court
to be unnecessary with respect to the question of
reliability where the evidence falls within a firmly rooted
hearsay exception. Roberts, 448 U.S. at 66; Bourjaily v.
United States, 483 U.S. 171, 182-83 (1987) (independent
indicia of reliability not required when hearsay statement
falls within exception for co-conspirator statements).

C. An Unavailability Requirement for All Hearsay
Exceptions Used in Child Sexual Abuse Cases
Would Offer No Significant Benefit, But Would
Place Significant Burdens on the Prosecution and
the Criminal Justice System.

In Roberts, the Court noted that a demonstration of
unavailability is not required where the utility of trial
confrontation is remote. 448 U.S. at 65 n.7 (citing Dutton
v. Evans). In Inadi, the Court also relied on this reasoning
in concluding that the Confrontation Clause does not
require the unavailability of the declarant before admit-
ting co-conspirator statements.

First, the Court found that an unavailability require-
ment would not serve to actually exclude any evidence
“unless the prosecution makes the mistake of not produc-
ing an otherwise available witness.” Inadi, 475 U.S. at 396.
In other words, if the declarant is truly unavailable, or is
available and produced by the prosecution, his out-of-
court statements are invariably admitted. Consequently,
the Court continued, “the unavailability rule cannot be
defended as a constitutional ‘better evidence rule.’ ” /d.
(Compare the so-called “best evidence” rule: “ .. . the
best evidence the nature of the case will admit. . . shall

19

always be required, if possible to be had; but if not
possible then the best evidence that can be had shall be
allowed.” E. Cleary, supra, § 229, at 703.)

Second, the Inadi Court reasoned that an
unavailability rule would not produce much testimony
that “adds anything to the ‘truth-determining process’
over and above what would be produced without such a
rule.” Id. If the prosecution decides not to call the declar-
ant, but the defendant still wants to secure the declarant’s
testimony, he has several options available. Specifically,
the Sixth Amendment guarantees a defendant the right of
compulsory process to obtain the presence of witnesses in
his defense. Id. at 397. Also, under Federal Rule of Evi-
dence 806, if the defendant does call the declarant as a
witness, he is entitled to examine him or her on the
statement as if under cross-examination. Id. The Court
thus concluded that if the defense chooses not to sub-
poena such a declarant, “either as a witness favorable to
the defense, or as a hostile witness, or for cross-examina-
tion under Federal Rule of Evidence 806, then it is diffi-
cult to see what, if anything, is gained by a rule that

requires the prosecution to make that declarant ‘avail-
able.’ ” Id. at 398.

The reasoning of /nadi applies not just to co-conspira-
tor statements, but to all admitted hearsay. Unless the
State simply fails to produce an available witness, an
unavailability rule never serves to actually exclude evi-
dence. Moreover, the Compulsory Process Clause would
assist any defendant in obtaining the testimony of a hear-
say declarant whose statement was admitted against him.
In Illinois specifically, if the declarant is unwilling or
hostile, he or she may be examined by the defendant as if

20

under cross-examination. Ill. Rev. Stat. 1989, Ch. 110A,
§ 238 (made applicable to criminal cases by § 433). Similar
provisions are followed by statute or court rule in many
states. See generally 81 Am. Jur. 2d Witnesses § 494 (1976).
Finally, most states have adopted rules identical or simi-
lar to Federal Rule of Evidence 806.5 Accordingly, for the
Same reasons that the Court concluded that an
unavailability requirement for co-conspirator declarants
would not promote truth-finding, likewise, the truth-
seeking process would not be enhanced by a general rule
requiring the prosecution to assure the availability of all

* The following states have rules comparable to Federal
Rule of Evidence 806:

Alaska: Alaska R. Evid. 806; Arizona: Ariz. R. Evid.
806; Arkansas: Ark. Unif. R. Evid. 806; California:
Cal. Evid. Code § 1203; Colorado: Colo. R. Evid. 806:
Delaware: Del. Unif. R. Evid. 806; Florida: Fla. Stat.
§ 90.806; Hawaii: Hawaii R. Evid. 806; lowa: lowa R.
Evid. 806; Kentucky: Ky. R. Evid. 806; Louisiana: La.
Code of Evid. art. 806; Maine: Me. R. Evid. 806;
Michigan: Mich. R. Evid. 806; Minnesota: Minn. R.
Evid. 806; Mississippi: Miss. R. Evid. 806; Missouri:
Mo. R. Evid. 806; Montana: Mont. R. Evid. 806;
Nebraska: Neb. Rev. Stat. § 27-806; Nevada: Nev.
Rev. Stat. 51.069; New Hampshire: N.H. R. Evid. 806;
New Mexico: N.M. R. Evid. 806; North Carolina:
N.C. R. Evid. 806; North Dakota: N.D. R. Evid. 806;
Ohio: Ohio R. Evid. 806; Oklahoma: Okla. Stat. tit.
12, § 2806; Oregon: Or. Evid. Code § 40.475; Rhode
Island: R.I. R. Evid. 806; South Dakota: S.D. Codified
Laws § 19-16-37; Tennessee: Tenn. R. Evid. 806; Ver-
mont: Vt. R. Evid. 806; Washington: Wash. R. Evid.
806; West Virginia: W. Va. R. Evid. 806; Wisconsin:
Wis. R. Evid. 908.06; and Wyoming: Wyo. R. Evid.
806.

21

children whose hearsay statements are introduced against
the defendant in sexual abuse cases.

Such a rule would, however, impose significant bur-
dens. First, the Inadi Court’s concerns about the “substan-
tial burden on the entire criminal justice system” (475
U.S. at 398) apply with equal or greater force to Peti-
tioner’s proposed rule. A constitutional rule mandating a
determination of unavailability every time the prosecu-
tion seeks to admit a child’s hearsay statement automat-
ically adds another avenue of appellate review for
defendants in the ever-growing number of sexual abuse
cases.”

Moreover, an unavailability requirement in such
cases places a significant practical burden on the prosecu-
tion. In every case involving the use of a child’s prior out-
of-court statements which disclose an alleged act of sex-
ual abuse, the prosecution would be required to ensure
the child’s continuing availability for trial. In State v.
Sheppard, the New Jersey Superior Court noted the fol-
lowing with respect to the difficulties attending the pre-
sentation of children’s testimony in abuse cases:

In most cases, prosecutions are abandoned or
result in generous plea agreements, either
because the child’s emotional condition pre-
vents [him or] her from testifying or makes the
testimony obviously inaccurate or inadequate.

% Between 1976 and 1985, the number of reported inci-
dents of child maltreatment rose from .67 million to over 1.9
million (11.7% of the 1985 cases alleged sexual abuse). Coy v.
lowa, 487 U.S. 1012, 1031 (1988) citing to Am. Ass‘n for Protect-
ing Children, Highlights of Official Child Neglect and Abuse Repor-
ting 1985, pp. 3, 18 (1987) (Blackmun, J., dissenting).

22

One attorney, who had handled 30 to 40 of these
cases for the State, was able to complete a trial
in only one. In most, while the child victim was
able to provide her with information sufficient
to support a prosecution and was sometimes
able to appear with difficulty before a grand
jury, [he or] she could not testify in court face-
to-face with the accused and other relatives. The
victim either refused to testify or “froze” when
she got to court. Children who did testify, e.g.,
before a grand jury, frequently “forgot” details,
changed stories, or presented inconsistent facts.
Ultimately, many broke down, cried, ignored
questions and eventually refused to answer.

197 N.J. Super. 411 at 417, 484 A.2d 1330 at 1333 (1984).

Finally, as the Court noted with respect to co-conspir-
ator declarants in Inadi, an unavailability rule would
impose these burdens regardless of whether either party
actually desired to examine the child at trial. 475 U.S. at
399.

D. There Are Compelling Public Policy Reasons Why
A Child’s Out-of-Court Statements Are Admissible
Without Regard to Availability.

Several important state interests would be furthered
if the prosecution is not constitutionally required to pro-
duce an available child victim for trial before introducing
his or her out-of-court statements in a sexual abuse case.
Indeed, this would be accomplished without sacrificing
the Confrontation Clauses’ truth-seeking function.

The Court's precedents establish that “the Confronta-
tion Clause reflects a preference for face-to-face confron-
tation at trial.” Roberts, 448 U.S. at 63. This preference,

23

however, “must occasionally give way to considerations
of public policy and the necessities of the case.” Mattox,
156 U.S. at 243.

The states possess several substantial interests with
respect to the prosecution of child sexual abuse cases.
Generally, a state has a strong interest in criminal justice;
conviction rates for juvenile sex abuse cases remain
strikingly low while reports of abuse continue to escalate
annually. Recent Development, The Confrontation Clause
Applied to Minor Victims of Sexual Abuse, 42 Vand.L.Rev.
1511, 1512 (1989). In addition, the State has a strong
societal interest in the physical and psychological well-
being of minors who are victims of sexual abuse. Mary-
land v. Craig, 497 US. __, 110 S.Ct. 3157, 3167 (1990).
Accordingly, the Court has held that, if the State makes
an adequate showing of necessity,'? it may resort to the
use Of special procedures implemented specifically for
the purpose of allowing a child witness in an abuse case
to avoid face-to-face confrontation with the defendant at
trial. Id. at 3169.

The Court’s precedents also recognize “ ‘a societal
interest in accurate fact-finding which may require con-
sideration of out-of-court statements.’ ” /d. at 3165, quot-
ing Bourjaily, 483 U.S. at 182. The Court has attempted to

'© Because the necessity is based solely on furthering the
state interest in protecting child witnesses from testifying in the
presence of the defendant in a child abuse case, the requisite
finding must be a case-specific one in which the trial court
concludes that the particular child witness who seeks to testify
would. be traumatized by testifying in the presence of the
defendant. Craig, 110 S.Ct. at 3169 (emphasis added).

24

harmonize this interest with the goals of the Clause — one
of which is also to promote the truth-seeking process in
criminal trials.

If the prosecution is not required to produce avail-
able child hearsay declarants in sexual abuse cases, the
state interest in preventing trauma to child witnesses in
such cases is obviously furthered. At the same time,
however, the accuracy of the evidence before the trier of
fact is enhanced, thereby advancing both the societal
interest in accurate fact-finding and the truth-seeking
goal of the Clause. Indeed, the Court has recognized that
“where face-to-face confrontation causes significant emo-
tional distress in a child witness, there is evidence that
such confrontation would in fact disserve the Confronta-
tion Clause’s truth-seeking goal.” Craig, 110 S.Ct. at 3169
(emphasis in original; citations omitted). See also Note, A
Comprehensive Approach to Child Hearsay Statements in Sex
Abuse Cases, 83 Colum. L. Rev. 1745, 1751-52 (1983); Recent
Development, supra, 42 Vand. L. Rev. at 1513.

There are other compelling reasons why admitting a
child declarant’s out-of-court statements, without regard
to availability, promotes accurate fact-finding. A growing
body of academic literature buttresses many jurists’ con-
clusion!! that a child’s in-court testimony fails to repro-
duce a significant portion of the evidentiary value of his
or her out-of-court statements. The child may have diffi-
culty testifying at trial due to fading memory,'? as well as

11 See e.g., Nelson v. Farrey, 874 F.2d 1222, 1230 (7th Cir.
1989).

12 A.D. Yarmey, The Psychology of Eyewitness Testimony
204-05 (1979) (children posses inferior long-term and short-

(Continued on following page)

25

guilt or fear, particularly when the abuser is a parent or
relative who may have, over time, extracted a promise of
secrecy from the ambivalent child by using coercion,
threats, subtle persuasion, or bribes.'> Thus, the account
given closer in time to the actual event is likely to be the
more accurate. Moreover, given the impressionable
nature of children, use of the prior, more contemporane-
ous account decreases the chances that any intervening
outside influence by an adult was exerted over the
child.'* Indeed, it should be noted that due to the unique
circumstances surrounding a child’s in-court testimony,
especially in a sexual abuse case, his or her out-of-court
statements are comparable, in terms of probative value,
to the statements of co-conspirators analyzed in /Inadi.

Finally, because many children are unable to testify
in open court, or are so overwhelmed on the witness

(Continued from previous page)

term memories when compared to adults); Stevens & Berliner,
Special Techniques for Child Witnesses, The Sexual Victimology of
Youth 246, 254 (L. Schultz ed. 1980) (child’s memory of detail
blurs quickly). But see Johnson & Foley, Differentiating Fact from
Fantasy: The Reliability of Children’s Memory, 40 ].Soc.Issues (no.
2) 33, 34, 36 (1984) (there is considerable evidence that children
typically recall less than adults, but available evidence does
not necessarily support assertion that “forgetting occurs more
rapidly in children.”).

'3 Sexual Assault of Children and Adolescents 85-98 (A.W.
Burgess ed. 1978).

'4 See Graham, The Confrontation Clause, the Hearsay Rule,
and Child Sexual Abuse Prosecutions: The State of the Relationship,
72 Minn. L. Rev. 523, 532 n.39 (1988) (suggestiveness by an
authority figure, especially a parent involved in a custody
dispute, should not be underestimated).

26

stand as to prevent the possibility of effective testimony,
rates of conviction for child sex abuse cases will remain
low unless the prosecution is able to resort to the use of a
child’s out-of-court statements —- which often constitute
the only proof of the crime,'5 - without regard to avail-
ability. In essence then, an unavailability rule, as Peti-
tioner proposes, would prevent the efficient and effective
prosecution of child abusers and ultimately result in the
impediment of the State’s significant interest in criminal
justice.

E. Not Only Legal Precedent, but Practicality
Requires that this Court Reject Petitioner’s Pro-
posed “Rule of Necessity.”

In sum, it is the admission of hearsay which amounts
to nothing more than a “weak substitute for live testi-
mony” that disserves the symbolic and truth-seeking
goals of the Confrontation Clause. Accordingly, such
hearsay requires an inquiry into unavailability in that it
can only be used when use of live testimony is not
possible.

The hearsay statements admitted in this case have
never been considered “weak substitutes for live testi-
mony.” Both spontaneous declarations and statements
made for purposes of medical treatment gain their proba-
tive value from the circumstances in which they are
made. Consequently, the use of such statements has never
been conditioned upon the unavailability of the declar-
ant.

15 See Note, supra, 83 Colum. L. Rev. at 1749.

27

Moreover, due to the unique circumstances surround-
ing a child’s in-court testimony, especially as the com-
plainant in a sexual abuse case, his or her out-of-court
statements, made closer in time to the actual event, have
probative value which will most likely not be duplicated
on the witness stand. The situation in the case at bar
buttresses this assertion. S.G. was apparently so emo-
tionally distraught by the time she was called to testify
that she could not even take the stand, let alone give
adequate testimony.

From a practical standpoint, it must be kept in mind
that if this Court adopts a rule such as Petitioner pro-
poses, all of the federal and state hearsay exceptions, as
well as their common-law antecedents, would violate the
Constitution, not only in child sexual abuse cases, but
most likely in all criminal cases. In light of the fact that an
unavailability requirement for all hearsay exceptions,
even if limited to child abuse cases, would offer no signif-
icant benefit, but would place considerable burdens on
the prosecution and the criminal justice system, such a
rule should be rejected.

Finally, Petitioner does not dispute the trial court’s
conclusion that S.G.’s out-of-court statements fell within
the common law hearsay exceptions for spontaneous dec-
larations and the Illinois statutory exception for state-
ments made to medical personnel for purposes of
treatment or diagnosis. Indeed, the admissibility of the
evidence under state law is not the issue here; rather the
question is whether, because S.G. did not take the stand,
nor was she declared “unavailable” by the trial court, the
admission of he~ hearsay statements denied Petitioner his
rights under ths Confrontation Clause. As fully set out

28

above, the use of these two exceptions has never been
conditioned upon a showing of unavailability; nor does
the Confrontation Clause require that it must.'® There-
fore, assuming, arguendo, that the prosecution did not
make a showing of unavailability in this case, the admis-
sion of S.G.’s out-of-court statements did not violate Peti-
tioner’s sixth amendment right to confrontation.

Il. IF PROOF OF UNAVAILABILITY IS REQUIRED
FOR ADMISSION OF SPONTANEOUS DECLARA-
TIONS AND STATEMENTS MADE TO MEDICAL
PERSONNEL FOR PURPOSES OF TREATMENT
OR DIAGNOSIS, THE STATE MADE A “GOOD-
FAITH EFFORT” TO CALL THE DECLARANT AS
A WITNESS, ONLY TO FIND THAT SHE WAS
EMOTIONALLY OR PSYCHOLOGICALLY
“UNAVAILABLE.”

If the Petitioner is correct in his assertion that the
State may not introduce spontaneous declarations or

‘6 These two exceptions are firmly rooted in that they
“possess the imprimatur of judicial and legislative experience.”
Idaho v. Wright, 497 U.S. __, 110 S.Ct. 3139, 3147 (1990). How-
ever, that is not to say that a showing of unavailability is
always required in cases in which the prosecution must show
the “particularized guarantees of trustworthiness” of hearsay
which does not fall within a well-recognized hearsay excep-
tion. Indeed, it appears that such a particularized showing of
reliability can be made without regard to unavailability. See Lee
v. Illinois, 476 U.S. at 548 n.2 (Blackmun, J., dissenting) (custo-
dial confession, which is presumptively unreliable, is more like
prior judicial testimony than like co-conspirator statements,
and thus both unavailability and reliability requirements of
Roberts must be satisfied). This is important in child sexual
abuse cases in that the hearsay statements of children do not
always fit within firmly rooted hearsay exceptions.

29

statements made to medical personnel for purposes of
treatment or diagnosis without producing the declarant
or showing his or her unavailability, Petitioner was still
not denied his sixth amendment rights in this case.
Indeed, the prosecution made a sufficient showing of
unavailability.

Acting under the assumption that “the Confrontation
Clause generally requires a showing of unavailability,”
(Ohio v. Roberts, 448 U.S. at 66), jurists and scholars have
considered the admissibility of the out-of-court state-
ments of non-testifying children. Many have found psy-
chological unavailability satisfactory to meet the Roberts
unavailability requirement. See, e.g., State v. Robinson, 153
Ariz. 191, 735 P.2d 801, 813 (1987) (affirming trial court's
finding of unavailability because of existing mental infir-
mity based solely on expert testimony “indicating the
[child] would be uncommunicative if asked about the
assault and could be further traumatized by courtroom
proceedings”); Glendening v. State, 503 So.2d 335, 337 (Fla.
Dist. Ct. App. 1987) (upholding special hearsay statute
with unavailability provision for absence due to substan-
tial likelihood of severe emotional or mental harm);
Altmeyer v. State, 496 N.E.2d 1328, 1331 (Ind. App. 1 Dist.
1986) (finding child unavailable, though competent,
because trial “participation would be a traumatic experi-
ence”); People v. Johnson, 146 Ill.App.3d 640, 497 N.E.2d
308, 312 (Ill.App. 5 Dist. 1986) (child witness who is
physically present is nevertheless “unavailable” for con-
frontation purposes if psychologically unable to testify);
see also Comment, Sexually Abused Infant Hearsay Excep-
tion: A Constitutional Analysis, 8 ].Juv.Law 59, 70 (1984)
(concluding that “child’s incompetence or refusal to

30

answer questions when on the stand does not preclude
such admission [of hearsay] and can, therefore, be consid-
ered equivalent to legal unavailability”).

The Confrontation Clause also requires that the pros-
ecution make a “good-faith effort” to obtain the presence
of the declarant at trial. Ohio v. Roberts, 448 U.S. at 74. The
ultimate question is whether the witness is unavailable
depite the “good-faith efforts” undertaken prior to trial to
locate and present that witness. /d.

In the instant case, the State clearly made a “good-
faith effort” to present S.G. as a witness; she was called to
the witness stand twice. However, the child was emo-
tionally unavailable to testify. At that time, defense coun-
sel acknowledged that S.G. did not testify because she
was emotionally distressed. (J.A. 14)

This Court has made it clear that “[t]he law does not
require the doing of a futile act.” Ohio v. Roberts, 448 U.S.
at 74. As is apparent from the record in this case, the
calling of S.G. as a witness was just such an act. The law
required nothing more of the State.

If, as Petitioner suggests, the trial court was obligated
to make a “case-specific finding of necessity,” the State
should be given an opportunity to prove unavailability
on remand before Petitioner is granted a new trial.
Requiring a new trial without a remand hearing would
needlessly penalize society, as well as waste judicial and
prosecutorial resources if, upon remand, the State is able
to show that S.G. was indeed unavailable. In such case,
her out-of-court statements were properly admitted and
thus there would be no need for a new trial. If S.G. was in
fact unavailable, as Respondent maintains she was,

31

allowing the prosecution to prove her unavailability after
the introduction of her statements, as opposed to before,
does not in any way alter the proof of Petitioner’s guilt.

S

CONCLUSION

For all of the foregoing reasons, the People of the
State of Illinois respectfully request that the decision of
the Appellate Court of Illinois, Fourth Judicial District, be
affirmed.

Respectfully submitted,

RoLtaNbD W. Burris
Attorney General
State of Illinois

RosaALyn B. Kaplan
Solicitor General
State of Illinois

TERENCE M. MaApsEN

ARLEEN C. ANDERSON*
Douctas K. SmitH
Assistant Attorneys General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-3692

Counsel for Respondent
“Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0134%3A06. Public record. Not legal advice.