Reply Brief — White v. Illinois

{| Adareme. Court, U8

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No. 90-6113 Voi 2 199)

ir. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

RANDALL D. WHITE,

Petitioner,

V.

ILLINOIS,

Respondent.

On Writ of Certiorari to the

Appeilate Court of Illinois

Fourth Judicial District

REPLY BRIEF FOR PETITIONER

DANIEL D. YUHAS

Deputy Defender

GARY R. PETERSON *

Assistant Defender

Office of the State Appellate

Defender

Fourth Judicial District

400 S. 9th Street, Suite 102

P.O. Box 5750

Springfield, IL 62705-5750

(217) 782-3654

Counsel tor Petitioner

* Counsel of Record

a el

TABLE OF CONTENTS

ARGUMENT: Page

THE CONFRONTATION CLAUSE REQUIRES

THAT THE HEARSAY STATEMENTS OF A

NON-TESTIFYING COMPLAINING WITNESS

IN A CHILD ABUSE PROSECUTION SHOULD

BE ADMITTED ONLY UPON A CASE-SPECIFIC

FINDING OF NECESSITY: THE TRIAL COURT

SHOULD HEAR EVIDENCE AND DETERMINE

IF THE CHILD IS UNAVAILABLE TO

TT been Ay Se 1

A. Respondent Mistakes the Confrontation Clause

EE IE Ta ee ee RT 2

B. Respondent’s Assumptions Regarding the Reli-

ability of Child Hearsay Are Suspect —.............. 4

C. Respondent Overstates the Burdens Associated

with the Unavailability Requirement ................. ~

1. The Unavailability Requirement Is Perfectly

Compatible with the Federal Rules of Evi-

a a ae ehammiendiesse 8

2. The Unavailability Requirement Does Not

Apply to Every Hearsay Exception ............ 9

38. The Unavailability Rule Does Not Impose a

Significant Burden on the Appellate Courts

Which Already Deal with the Unavailability

Requirement on a Regular Basis _...... eaieaeaaiee 10

4. The Burden on the Prosecution to Identify,

Locate, and Produce Its Complaining Wit-

ness Is Not Insuperable .................................. 11

D. Respondent’s Attempt to Shift the Burden of

Production to the Defendant Violates the Sixth

Amendment and Undermines the Truth-Seeking

er Cer IAS yl noe IE RES ER RN OC 11

1. Respondent Confuses the Compulsory Process

Clause with the Confrontation Clause ...... _ 12

ii

TABLE OF CONTENTS—Continued

2. Respondent’s Burden-Shifting Proposal Vio-

lates the Sixth Amendment by Subverting

the Defendant’s Right to the Orderly Intro-

Braet CE TED cccecececsicestkciantnnanneens

3. Respondent’s Burden-Shifting Proposal Sub-

verts the Truth-Seeking Process —..................

E. The Prosecution Failed to Establish that the

Complaining Witness Was Unavailable to Testify

GD hice nenn sensantemeeatinustenmiannniaaee

een

Page

13

15

16

19

iii

TABLE OF AUTHORITIES

CASES: Page

Chambers v. Mississippi, 410 U.S. 284 (1978) ___.. 2

Coy v. Iowa, 487 U.S. 1012 (1988) 17

Faretta v. California, 422 U.S. 806 (1975)... ae 13

Goldade v. State, 674 P.2d 721 (Wyo. 1983)... 7

Idaho v. Wright, 111 L.Ed.2d —— (19—)........... 3,11

Maryland v. Craig, 497 U.S. ——, 111 L.Ed.2d 666

tr Se 2,3, 17

New York Life Ins. Co. v. Taylor, 79 App.D.C. 66,

Tn eeessteceuseescss 14

Ohio v. Roberts, 448 U.S. 56 (1980) ....... 3,9, 11, 12,18

State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985). 7

State v. Robinson, 153 Ariz. 191, 735 P.2d 801

EELS 6

United States v. Inadi, 475 U.S. 387 (1985) 10, 11, 12,

14, 15

CONSTITUTIONAL PROVISIONS:

U.S. Const., amend. VI ................. SS 6 3

STATE STATUTES:

Ill.Rev.Stat., 1987, Ch. 38,§ 106A-3 0 18

Ill.Rev. Stat., 1987, Ch. 383, § 115-10... nea 10

FEDERAL RULES OF EVIDENCE:

Fed.R.Evid. 803(1)-(4), (24) 2.0.2.2... eee. 8,9, 10

EES I

Fed.R.Evid., art. VIII, Advisory Committee Note —s_—- 8, 9

MISCELLANEOUS:

Binder, Hearsay Handbook, § 6.08 (1975) ae 5,9

Black’s Law Dictionary (5th ed. 1979) 13

Christiansen, The Testimony of Child Witnesses:

Fact, Fantasy, ond the Influence of Pretrial In-

terviews, 62 Wash.L.Rev. 705 (1987) 4,5

Davenport, The Confrontation Clause and the Co-

Conspirator Exception in Criminal Prosecutions:

A Functional Analysis, 85 Harv.L.Rev. 1378

EE EE 16

Graham, The Confrontation Clause, the Hearsay

Rule, and Child Abuse Prosecutions: The State

of the Relationship, 72 Minn.L.Rev. 523 (1988)... 5,13

iv

TABLE OF AUTHORITIES—Continued

Kirkpatrick, Confrontation & Hearsay: Exemp-

tions from the Constitutional Unavailability Re-

quirement, 70 Minn.L.Rev. 655 (1986) ...............

Lampert & Saltzburg, A Modern Approach to Evi-

dence, 519 (2d ed. 1982) ........................-------cecceeeee

Note, The Testimony of Child Victims in Sex Abuse

Prosecutions: Two Legislative Innovations, 98

Harv.L.Rev. 806 (1985)... RES

Westen, Order of Proof: An Accused’s Right to

Control the Timing and Sequence of Evidence

in His Defense, 66 Calif.L.Rev. 934 (1978) -......

Page

10

10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-6113

RANDALL D. WHITE,

Petitioner,

Vv.

ILLINOIS,

Respondent.

On Writ of Certiorari to the

Appellate Court of Illinois

Fourth Judicial District

REPLY BRIEF FOR PETITIONER

ARGUMENT

THE CONFRONTATION CLAUSE REQUIRES THAT

THE HEARSAY STATEMENTS OF A NON-TESTIFY-

ING COMPLAINING WITNESS IN A CHILD ABUSE

PROSECUTION SHOULD BE ADMITTED ONLY UPON

A CASE-SPECIFIC FINDING OF NECESSITY: THE

TRIAL COURT SHOULD HEAR EVIDENCE AND DE-

TERMINE IF THE CHILD IS UNAVAILABLE TO

TESTIFY.

Respondent argues that the prosecution should be al-

lowed to substitute admissible hearsay for the testimony

of the complaining witness in child abuse prosecutions,

reasoning that such a procedure would spare the child

witness the trauma of testifying. However, while Re-

spondent’s argument correctly identifies the state’s inter-

est in the welfare of the child witness, it overlooks the

defendant’s countervailing Sixth Amendment right to the

adversarial testing of the prosecution’s evidence before

the trier of fact.

2

These competing interests were recently addressed in

Maryland v. Craig, 497 U.S. ——, 111 L.Ed.2d 666

(1990), where the Supreme Court enunciated a rule of

necessity. By requiring the prosecution to either pro-

duce the child witness or demonstrate her unavailability,

the rule of necessity properly balances the state’s inter-

est in the welfare of the child witness with the defend-

ant’s constitutional right to confront his accuser, thereby

“preserv[ing] the adversary nature of the trial.” Mary-

land v. Craig, 111 L.Ed.2d at 686. An examination of

Respondent’s argument fails to reveal any convincing

reason why the rule of necessity should not be applied

here.

A. Respondent Mistakes the Confrontation Clause for a

Rule of Evidence.

Respondent likens the Confrontation Clause to a “better

evidence rule” and reasons that admissible hearsay satis-

fies the confrontation right because such evidence is pre-

sumptively reliable and has independent probative value.

Pursuant to this evidentiary analysis, Respondent con-

cludes that if an out-of-court statement falls within an

exception to the hearsay rule it has sufficient reliability

to satisfy Confrontation Clause requirements, regardless

of the defendant’s inability to cross-examine the absent

declarant.

Such reasoning, however, mistakes the Confrontation

Clause for the hearsay rule. While reliability is the pri-

mary justification for exempting an out-of-court state-

ment from the hearsay rule (Chambers v. Mississippi,

410 U.S. 284, 298 (1978)), the core purpose of the Con-

frontation Clause is to assure the accused the oppor-

tunity to confront his accuser. Notwithstanding Respond-

ent’s attempt to redefine the confrontation right in evi-

dentiary terms, the language of the Sixth Amendment

speaks for itself:

3

In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him...

U.S. Const., amend. VI.

Accordingly, this Court recently reiterated that the

Confrontation Clause contains not only a reliability re-

quirement, but an unavailability rule as well:

[The] confrontation clause “operates in two separate

ways to restrict the range of admissible hearsay.

First, in conformance with the Framers’ preference

for face-to-face accusation the Sixth Amendment es-

tablishes a rule of necessity. Jn the unusual case .. .,

the prosecution must either produce or demonstrate

the unavailability of, the declarant whose statement

it wishes to use against the defendant.”

Second, once a witness is shown to be unavailable,

“his statement is admissible only if it bears adequate

‘indicia of reliability’. Reliability can be inferred

without more in a case where the evidence falls within

a firmly rooted hearsay exception .. .”

Idaho v. Wright, 111 L.Ed.2d at 651-52 quoting Ohio

v. Roberts, 448 U.S. 56, 66 (1980) (citations omitted;

emphasis added).

Although the foregoing language clearly states that the

rule of necessity applies “in the uswal case’, Respondent

argues that the unavailability requirement was intended

to apply only in the case of former testimony, reasoning

that former testimony “is intended solely to replace live

testimony.” (State’s Brief at 10) However, such reason-

ing overlooks the fact that under the procedure advocated

by Respondent, hearsay testimony would be substituted

for the live testimony of the child witness. For this very

reason, the admission of the absent declarant’s out-of-

court statements in this case is analogous not only to the

use of former testimony, but the use of closed-circuit tes-

timony as well. See Maryland v. Craig, 111 L.Ed.2d 686

4

(applying unavailability requirement to the use of closed-

circuit testimony in lieu of the child complainant’s live

testimony at trial).

Respondent reasons that unlike former testimony, vir-

tually all other admissible hearsay “has irreplaceable pro-

bative value independent of whatever testimony the de-

clarant may later give at trial.” (State’s Brief at 10;

emphasis added) However, such reasoning overlooks the

fact that in this case the declarant did not later testify

at trial. Therefore, regardless of whatever probative

value the hearsay may have had to the prosecution’s case

against the accused, the fact remains that the hearsay

was also used to replace the declarant’s live testimony.

Respondent concludes this evidentiary analysis by sug-

gesting that the unavailability requirement offers no sig-

nificant benefit because it “never serves to actually ex-

clude evidence.” (State’s Brief at 19) However, unlike

the hearsay rule, the purpose of the Confrontation Clause

is not to exclude evidence, but rather to guarantee the

defendant an adversary proceeding. The unavailability

requirement implements this guarantee by ensuring that

the accused will be given the opportunity to confront his

accuser, if at all possible.

B. Respondent’s Assumptions Regarding the Reliability

of Child Hearsay Are Suspect.

Respondent’s argument is premised on the assumption

that child hearsay, when admitted under a recognized ex-

ception to the hearsay rule, is inherently reliable and ab-

solutely trustworthy. This premise is suspect for several

reasons.

Recent research has shown how easy it is for young-

sters to stray from the truth. The young child is more

vulnerable to suggestion than an adult and more likely

to confuse memory of fact with memory of fantasy.

Christensen, The Testimony of Child Witnesses: Fact,

Fantasy, and the Influence of Pretrial Interviews, 62

5

Wash.L.Rev. 705, 708-11 (1987). Cautioning that the

problem of suggestiveness by an authority figure ‘should

not be underestimated,” one commentator has explained

that:

A child’s complaint of sexual abuse might have re-

sulted from a desire to please, from fear, or ‘rom

uncritical acceptance of what the child thinks the

authority figure believes has happened. Very young

children especially might over time accept the sug-

gested event as true and recall it as if it had really

occurred.

Graham, The Confrontation Clause, the Hearsay Rule,

and Child Abuse Prosecutions: The State of the Rela-

tionship, 72 Minn.L.Rev. 523 at n.39 (1988).

Furthermore, child hearsay is not necessarily rendered

trustworthy by the mere fact that it falls within a recog-

nized exception to the hearsay rule. The instant case is

illustrative.

Hearsay testimony in this case was admitted against

the accused pursuant to the spontaneous declaration or

excited utterance exception to the hearsay rule. It has

been recognized that “[e]xcited utterances vary tre-

mendously in their trustworthiness.” Binder, Hearsay

Handbook, $ 6.08 at 80 (1975). In fact, although spon-

taneous declarations are considered reliable, it has been

noted that the entire basis for the exception is subject to

question:

While psychologists would probably concede that ex-

citement minimizes the possibility of reflective self-

interest influencing the declarant’s statements, they

have questioned whether this might be outweighed by

the distorting effect of shock and excitement upon the

declarant’s observation and judgment.

Hearsay Handbook, § 297 at 855.

Nevertheless, even assuming the reliaibility of “spon-_

taneous” statements that are “made nearly simultaneously

6

with the relevant event” (Brief of Solicitor General at

13), the rationale underlying the exception is certainly

inapplicable to the hearsay testimony of the police officer

that was admitted against the accused in this case. The

police officer interviewed the child approximately 45 min-

utes after the relevant event. (J.A. 34) After putting

the child at ease by talking about cartoons, the officer

elicited the child’s version of the incident through the use

of leading questions. (Vol. VI, R. 110-12)

In light of the foregoing circumstances, it is clear that

the child was not “excited” when she responded to the

police officer’s questions, the child’s answers to the leading

questions cannot fairly be characterized as “spontaneous,”

and it cannot be said that the interview was “simulta-

neous” with the relevant event. Nevertheless, the Illinois

Appellate Court held that the child’s statements were

spontaneous declarations, reasoning that “([t]he trial

court has considerable discretion in determining whether

a statement is admissible as a spontaneous declaration,

and its decision will not be reversed absent an abuse of

that discretion.” (J.A. 36)

The Illinois Appellate Court also upheld the admission

of statements the child made to medical personnel, pur-

suant to an admittedly “liberal” interpretation of the

medical treatment exception. (J.A. 38) The rationale for

this exception is that a patient’s selfish interest in receiv-

ing appropriate treatment guarantees the trustworthi-

ness of the statement. It is far from clear, however, that

the five-year-old child in this case recognized a selfish

interest related to treatment. See State v. Robinson, 153

Ariz. 191, 199, 735 P.2d 801 (1987) (recognizing that

young children do not always grasp the relationship be-

tween their statements and treatment). In fact, the rec-

ord reveals that the child advised the medical personnel

that she was not injured; the examination revealed “no

tenderness, no soreness of any kind” (Vol. VI, R. 57):

and the examining physician testified that all his findings

were “negative.” (Vol. VI, R. 57)

7

Furthermore, although the hearsay was admitted under

the medical treatment exception, the statements did not

pertain to medical treatment at all. Rather, the hearsay

testimony merely reiterated the child’s version of the

incident. While acknowledging that the hearsay related

to the “details of the alleged offense” rather than “pres-

ently existing bodily condition,” the Illinois Appellate

Court concluded that:

[S]ection 115-13 [statutory hearsay exception] was

designed, in part, to sever the artificial. restraints

heretofore imposed by case law on the ability of a

physician to testify about what his or her patient

told the physician for purposes of medical diagnosis

or treatment.

(J.A. 39)

The Illinois Appellate Court’s “liberal” analysis in this

case is illustrative of the fact that “the hearsay rule is

applied more liberally than it is written” (Lampert &

Saltzburg, A Modern Approach to Evidence, 519 (2d ed.

1982)), especially in child abuse cases. See State v.

Myatt, 237 Kan. 17, 23, 697 P.2d 836, 842 (1985) (not-

ing that courts have “tended to stretch existing hearsay

exceptions’ in child abuse cases). For example, in Gold-

ade v. State, 674 P.2d 721, 725 ( Wyo. 1983), the court

adinitted hearsay- statements against the defendant in a

child abuse prosecution, stating:

If the goal of our court were simply to pursue the

common-law tradition of stare decisis, then the cited

authorities must be recognized as supporting the posi-

tion of the appellant [to exclude the statement]. In

this instance, however, the function of the court must

be to pursue the transcendent goal of addressing the

most pernicious social ailment which afflicts our so-

ciety, family abuse, and more specifically, child abuse.

Significantly, the liberal application of hearsay exemp-

tions in child abuse prosecutions eviscerates the tradi-

tional rationale for exempting the out-of-court statements

8

from the hearsay rule. Under these circumstances, a judi-

cial determination that an out-of-court statement falls

within an exception to the hearsay rule is no guarantee

that the statement is either reliable, trustworthy, or

accurate.

C. Respondent Overstates the Burdens Associated with

the Unavailability Requirement.

Respondent argues that the unavailability requirement

imposes “significant burdens on the prosecution and the

criminal justice system.” (State’s Brief at 18) However,

the burdens referred to by Respondent are either over-

stated or non-existent.

1. The Unavailability Requirement Is Perfectly Com-

patible with the Federal Rules of Evidence.

Respondent argues that the unavailability requirement

renders “all of the federal and state hearsay exceptions,

as well as their common-law antecedents,” unconstitu-

tional. (State’s Brief at 27) However, this concern is

unwarranted since the Confrontation Clause and the Fed-

eral Rules of Evidence are perfectly compatible.

The introductory wording of Federal Rule of Evidence

803 does not state that an exception listed therein is

admissible, but merely that it is “not excluded by the

hearsay rule.” The Advisory Committee’s Note explains:

In recognition of the separateness of the confronta-

tion clause and the hearsay rule, and to avoid inviting

collisions between them or between the hearsay rule

and other exclusionary principles, the exceptions set

forth in Rules 803 and 804 are stated in terms of

exemption from the general exclusionary mandate of

the hearsay rule, rather than in positive terms of

admissibility.

Fed.R.Evid., art. VIII, Advisory Committee Note.

Accordingly, the Federal Rules of Evidence specifically

recognize that “the impact of the [confrontation] clause

9

clearly extends beyond the confines of the hearsay rule.”

Fed.R.Evid., art. VIII, Advisory Committee Note; em-

phasis added.

The unavailability doctrine is compatible with state and

common law hearsay exceptions as well. The criminal

justice system recognizes the separateness of the Con-

frontation Clause and the hearsay rule. Unlike civil

litigation, the procedure for admitting hearsay assertions

in a criminal prosecution involves a two-step analysis.

First, it must be asked if the assertion comes within an

exception to the hearsay rule. If the answer is yes, then

it must be determined whether the admission of that

assertion violates the defendant’s constitutional right to

confront the witnesses against him. Hearsay Handbook,

§ 6.06 at 78.

Respondent’s argument overlooks the fact that exce)-

tions to the hearsay rule, whether statutory or common

law, normally encompass both civil and criminal proceed-

ings. Thus, a two-step inquiry is necessary in criminal

proceedings to ensure that a defendant’s constitutional

rights are protected.

2. The Unavailability Requirement Does Not Apply to

Every Hearsay Exception.

Respondent argues that the application of the unavail-

ability requirement to “all of the federal and state hear-

say exceptions . . . would place considerable burdens on

the prosecution and the criminal justice system.” (State’s

Brief at 27) However, the unavailability requirement

does not apply to all hearsay exceptions.

In Ohio v. Roberts, 448 U.S. 56, 65 n.7 (1980), the

Court held that unavailability is not required where the

“utility of confrontation” is remote. Accordingly, the

unavailability requirement is not applicable to many of

the exceptions recognized by Federal Rule of Evidence

803, ¢.g., business records, market reports, learned trea-

tises, and other regularly maintained forms of evidence.

10

Given the nature of the hearsay offered under these

exceptions, the utility of trial confrontation is likely to

be remote.'

In fact, this is one reason that co-conspirator state-

ments were exempted from the unavailability require-

ment in United States v. Inadi, 475 U.S. 387 (1985).

The Court concluded that the utility of confrontation was

remote since the co-conspirator declarant was considered

so unimportant that neither side had subpoenaed him.

The same cannot be said about the prosecution’s com-

plaining witness in the present case who was the only

witness to the alleged crime and whose out-of-court state-

ments constituted the bulk of the prosecution’s case

against the accused.

3. The Unavailability Rule Does Not Impose a Sig-

nificant Burden on the Appellate Courts Which AI-

ready Deal with the Unavailability Requirement on

a Regular Basis.

Respondent argues that the unavailability requirement

places a substantial burden on the appellate courts.

(State’s Brief at 21) However, the appellate courts, and

trial courts as well, already deal with the unavailability

requirement on a regular basis. For instance, evidence

law already imposes an unavailability requirement for

a number of hearsay exceptions. See Fed.R.Evid. 803.

Moreover, child hearsay statutes in many states, includ-

ing Illinois (Ill.Rev.Stat., 1987, Ch. 383, § 115-10), im-

pose unavailability requirements. See Note, The Testi-

mony of Child Victims in Sex Abuse Prosecutions: Two

Legislative Innovations, 98 Harv.L.Rev. 806, 812 (1985)

‘It has been suggested that the unavailability requirement was

intended to apply to the first four exceptions (¢.g., present sentence

impression, excited utterance, existing mental, physical, or emo-

tional condition, and statements made for medical treatment), as

well as the residual exception. Fed.R.Evid, 803(1)-(4), (24),

Kirkpatrick, Confrontation & Hearsay: Exemptions from the Con-

stitutional Unavailability Requirement, 70 Minn.L.Rev. 655 n.132

(1986).

11

(citing statutes). Under these circumstances, the con-

Stitutional unavailability requirement causes little addi-

tional work.

4. The Burden on the Prosecution to Identify, Locate,

and Produce Its Complaining Witness Is Not In-

superable.

This Court has held the application of the unavailabil-

ity rule to co-conspirator hearsay would impose a signifi-

cant burden by requiring the prosecution “to identify

with specificity each declarant, locate those declarants,

and then endeavor to ensure their continuing availability

for trial.” United States v. Inadi, 475 U.S. at 399. Since

co-conspirators are often incarcerated, the requirement

of producing them at trial burdens prison officials and

creates the risk of escape.

Obviously, the foregoing reasoning has limited applica-

tion here. The prosecution should have little difficulty

identifying and locating its own complaining witness.

Nevertheless, Respondent argues that the prosecution

should not be burdened with ensuring the complainant’s

continuing availability for trial, reasoning that the child’s

emotional condition may prevent her from testifying.

(State’s Brief at 21) This reasoning is obviously flawed

since if the child is incapable of testifying, she need not

be produced as a witness. As this Court has stated, “the

prosecution must either produce or demonstrate the un-

availability of, the declarant whose statement it wishes

to use against the defendant.” Jdaho v. Wright, 111

L.Ed.2d at 651-52, quoting Ohio v. Roberts, 448 U.S. at

65-66 (emphasis added).

D. Respondent’s Attempt to Shift the Burden of Produc-

tion to the Defendant Violates the Sixth Amendment

and Undermines the Truth-Seeking Process.

Since the proponent of evidence carries the burden of

“establishing [the] predicate” for its introduction, the

12

burden is on the prosecution to either “produce or demon-

strate the unavailability of the declarant whose statement

it wishes to use against the defendant.” Ohio v. Roberts,

448 U.S. at 75. Respondent argues that this burden

should be shifted to the defense, reasoning that the de-

fendant should be required to subpoena the complaining

witness and obtain her testimony under the Compulsory

Process Clause. (State’s Brief at 19) However, Re-

spondent fails to explain how this procedure would fur-

ther “the state’s interest in preventing trauma to child

witnesses in such cases...” (State’s Brief at 24) More-

over, Respondent’s proposal violates the Sixth Amend-

ment and would subvert the truth-seeking process.

1. Respondent Confuses_ the Compulsory Process

Clause with the Confrontation Clause.

Respondent’s reasoning erroneously equates the right

of confrontation with the right to compulsory process.

The two are not the same. The Sixth Amendment guar-

antees the accused two distinct rights: confrontation and

compulsory process. The defendant is guaranteed “com-

pulsory process for obtaining witnesses in his favor.”

The defendant is also given the right “to be confronted

with the witnesses against him.” Thus, Respondent’s

attempt to merge the two clauses sets the Sixth Amend-

ment into conflict with itself.

Respondent points to Jnadi where this Court held that

the “defendant himself can call and cross-examine” his

co-conspirator. United States v. Inadi, 475 U.S. at 399.

However, Jnadi’s logic is inapplicable here because the

relationship between the accused and his accuser is

entirely different from the relationship between co-

conspirators.

By definition, statements admitted under the co-

conspirator exception were made while the conspiracy

was in progress, at a time when the co-conspirator was

a cohort of the defendant. Accordingly, an absent co-

13

conspirator cannot be considered a “witness against the

accused” simply because co-conspiratory hearsay is ad-

mitted at trial.

Unlike the co-conspirator, however, the complainant in

a criminal case is, by definition, a witness against the

accused.” Unlike co-conspirator hearsay, the complain-

ant’s out-of-court statements are accusatory in nature.*

Thus, unlike the co-conspirator, it ean hardly be said that -

the prosecution’s complaining witness is a witness favor-

able to the defendant within the meaning of the Con-

frontation Clause, especially in the present case where

the complainant’s out-of-court accusations constituted the

bulk of the evidence against the accused.

2. Respondent’s Burden-Shifting Proposal Violates the

Sixth Amendment by Subverting the Defendant’s

Right to the Orderly introduction of Evidence.

The right to the “orderly introduction of evidence” is

implicit in the Sixth Amendment. Faretta v. California,

422 U.S. 806, 818 (1975). Respondent’s burden-shifting

proposal subverts this constitutional right by allowing the

prosecution to substitute belated for timely cross-

examination. The proposed procedure allows the prosecu-

tion to introduce the complainant’s testimony via hearsay

witnesses, while requiring the defendant to wait until

his case-in-chief to cross-examine the declarant.

’ It has been recognized that the right to cross-examine

a prosecution’s witness immediately following the conclu-

*“Complainant .. . one who instigates prosecution or who prefers

accusation against suspected person.” Black’s Law Dictionary (5th

ed. 1979).

*It has been suggested that the phrase “witness against” a de-

fendant be limited to those witnesses who testi fy in court on behalf

of the prosecution or whose out-of-court statements are “accusa-

tory” in nature. Graham, The Confrontation Clause, the Hearsay

Rule, and Child Sexual Abuse: The State of the Relationship, 72

Minn.L.Rev. 523, 585 (1988).

14

sion of his direct examination is at the heart of the Con-

frontation Clause:

The gross order-of-proof in American criminal pro-

cedure is dictated partly by tradition and partly by

constitutional compulsion. Thus, tradition provides

that as between two sides, the prosecution presents

its case first and the defendant presents his case

second. In addition, however the sixth amendment

entitles a defendant to interrupt the prosecution’s

case-in-chief by intervening to elicit evidence in his

defense by means of cross-examination. . .. Indeed,

the right of a defendant to interrupt the state’s pres-

entation of evidence by cross-examining prosecution

witnesses is at the core of the sixth amendment right

of confrontation.

Westen, Order of Proof: An Accused’s Right to Con-

trol the Timing and Sequence of Evidence in His

Defense, 66 Calif.L.Rev. 934, 981-83 (1978), (em-

phasis added).

Accordingly, it has been noted that “only a lawyer with-

out trial experience would suggest that the limited right

to impeach one’s own witness is the equivalent of the

right to immediate cross-examination which has always

been regarded as the greatest safeguard of American

trial procedure.” United States v. Inadi, 475 U.S. at 410

(Marshall, J., dissenting), quoting New York Life Ins.

Co. v. Taylor, 79 App.D.C. 66, 74, 147 F.2d 297, 305

(1945).

Significantly, this Court has never hinted, even slightly,

that the Sixth Amendment permits the prosecution to

introduce an ex parte affidavit or a video statement of

the complaining witness merely because the accused may

later call and examine the complainant during his case-

in-chief. There is no valid reason to permit such a

burden-shifting procedure when the prosecution relies

upon the complainant’s unsworn verbal hearsay rather

than written affidavits or closed-circuit testimony.

15

3. Respondent’s Burden-Shifting Proposal Subverts

the Truth-Seeking Process.

In Inadi, the Court concluded that the application of

the unavailability requirement to co-conspirator hearsay

would add little to the “truth-determining process,” since

“only those declarants that neither side believes will be

particularly helpful will not have been subpoenaed as

witnesses.” United States v. Inadi, 475 U.S. at 396-97.

Respondent attempts to extend Inadi’s logic to this case

by noting that the prosecutor might decide “not to call”

the complaining witness. (State’s Brief at 19)

However, Respondent’s logic again overlooks the criti-

cal distinction between co-conspirators and complaining

witnesses. Since the co-conspirator is often facing indict-

ment himself, he “has little incentive to aid the prosecu-

tion” and will have a motive to testify falsely. United

States v. Inadi, 475 U.S. at 396. Under those circum-

stances, the unavailability requirement adds little to the

truth-seeking process.

The same cannot be said when the prosecution declines

to call the only witness to the alleged crime, simply be-

cause the prosecutor determines that the complainant’s

testimony will not be “particularly helpful.” Absent the

unavailability requirement, the prosecution can build a

case on hearsay without encountering any of the risks of

calling the complaining witness to the stand. Such a pro-

cedure subverts the truth-seeking process by allowing the

prosecution to rely on witnesses who know nothing except

what the absent declarant said, thereby eliminating the

incentive for the prosecutor to make the fullest presenta-

tion of evidence. As one commentator has noted:

[T]he purpose of the [unavailability] rule is to force

the prosecutor to put forward the best case he has

against the defendant. There is something innately

unfair and reminiscent of trial by affidavit in a proc-

ess that allows the prosecutor to build a case with

hearsay, while the defendant is forced to scramble

16

about and exhaust his own, often scarce resources to

attempt to produce the declarants.

Davenport, The Confrontation Clause and the Co-

Conspirator Exception in Criminal Prosecutions: A

Functional Analysis, 85 Harv.L.Rev. 1378, 1403

(1972).

Certainly, the truth-determining process is better served

by requiring the prosecution to present all, not just part,

of the relevant evidence.

If the prosecution’s proposal is implemented, the jury

may often be deprived of the most significant evidence

in the case: the testimony of the only eyewitness to the

crime. For instance, after interviewing the complaining

witness the prosecutor might conclude that the complain-

ant’s testimony could actually damage the prosecution’s

case against the accused. Accordingly, the prosecutor

may elect not to call the complainant to the stand, thereby

shifting the burden of production to the defendant. How-

ever, in criminal cases, especially child abuse prosecu-

tions, the defense often has not had the opportunity to

interview the complaining witness prior to trial. Time-

worn admonitions tell the advocate not to call someone

without knowing what she will say. Moreover, the de-

fense risks angering the jury by calling the child, espe-

cially under circumstances like the present case where

the complainant appears before the jury emotionally

distraught.

In such a situation, the complaining witness might not

be called to the stand. Common sense, however, dictates

that the testimony of the only eyewitness would have

aided the jury and advanced the truth-seeking process.

E. The Prosecution Failed to Establish that the Com-

plaining Witness Was Unavailable to Testify at Trial.

The defendant agrees with Respondent’s premise that

“a child witness who is physically present is nevertheless

‘unavailable’ for confrontation purposes if psychologically

able to testify.” (State’s Brief at 29) However, the de-

17

fendant challenges Respondent’s conclusion that a suffi-

cient showing of unavailability was made in this case

where “S.G. was apparently so emotionally distraught by

the time she was called to testify that she could not take

the stand...” (State’s Brief at 27; emphasis added).

This Court has held that the requisite finding of un-

availability must be “a case-specific one,” based upon

evidence presented at a hearing. Maryland v. Craig, 111

L.Ed.2d at 685. The trial court must find that the child

witness would be traumatized, not by the courtroom gen-

erally, but by the presence of the defendant. Maryland v.

Craig, 111 L.Ed.2d at 685. Finally, the trial court must

find that “the emotional distress suffered by the child is

more than de minimus, i.e., more than ‘mere nervousness

or excitement or some reluctance to testify.’” Maryland

v. Craig, 111 L.Ed.2d at 685. Accordingly, in Coy v.

Iowa, 487 U.S. 1012 (1988), this Court held that the

right of face-to-face confrontation could certainly not be

denied where no individualized findings had been made

that the witness needed special protection.

In this case, the record does not reveal whether the

“apparent” distress suffered by the child was the result

of reluctance to testify, nervousness, excitement, the

courtroom generally, or the presence of the defendant.

Furthermore, there was no hearing on the issue of un-

availability and there were no findings by the trial court.

Finally, Respondent suggests that if the record fails

to establish that S.G. was unavailable to testify, the

prosecution should be given an opportunity to make such

a showing on remand before petitioner is granted a new

trial.t (State’s Brief at 30) However, Respondent’s

* Respondent fails to explain how such a showing could be made.

The defendant’s trial occurred over three years ago. Even if it

can be shown that S.G. is unavailable to testify now, it would not

necessarily mean that she would have been unavailable to testify at

trial.

18

argument overlooks the fact that the prosecution not

only had the opportunity, but the obligation, to establish

S.G.’s unavailability prior to the introduction of the hear-

say testimony. Ohio v. Roberts, 448 U.S. at 65.

Significantly, in light of the age of the child and nature

of the proceedings, it is not unreasonable to suggest that

the prosecutor should have known that S.G.’s debut as a

witness could be an emotionally trying experience.’ Yet,

the prosecutor did not seek a pretrial ruling concerning

unavailability, nor did he move for the closed-circuit

viewing of the child’s testimony pursuant to the applica-

ble provisions of the Illinois Code of Criminal Procedure

(Ill.Rev.Stat., 1987, Ch. 38, § 106A-3).

In fact, the prosecutor did not attempt to call S.G. to

the witness stand until after her out-of-court statements

had already been introduced through the testimony of

five different witnesses. By waiting to call S.G. until the

conclusion of his case-in-chief, the prosecutor may have

been hoping to gain some strategic advantage. However,

since the Confrontation Clause requires a showing of

unavailability as a precondition to the admission of hear-

say statements by a non-testifying declarant, the prose-

cutor risked inducing a mistrial if the complainant did

not testify.

5 In fact, prior to calling S.G. to the stand, the prosecutor moved

for the exclusion of spectators, recognizing that it “is incredibly

difficult for anyone even an adult to testify about acts such as are

alleged here and for the child this is doubly more so.” (J.A. 7).

19

CONCLUSION

For the foregoing reasons, and for the reasons set

forth in the Petitioner’s Brief, it is respectfully requested

that this Honorable Court reverse the judgment of the

Illinois Appellate Court and remand this cause for a

new trial.

Respectfully submitted,

DANIEL D. YUHAS

Deputy Defender

GARY R. PETERSON *

Assistant Defender

Office of the State Appellate

Defender

Fourth Judicial District

400 S. 9th Street, Suite 102

P.O. Box 5750

Springfield, IL 62705-5750

(217) 782-3654

Counsel for Petitioner

* Counsel of Record