Amicus Curiae Brief — White v. Illinois

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Supreme Court, US

FiL ED

_ UL 3 1 199)

No. 90-6113

OFFICE UF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1991

RANDALL D. WHITE, PETITIONER

STATE OF ILLINOIS

ON WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

FOURTH JUDICIAL CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

During petitioner’s trial on charges arising from a

sexual assault, the State introduced evidence of out-of-

court statements by the victim that were admissible un-

der hearsay exceptions for spontaneous declarations and

for statements made to medical personnel for purposes

of medical treatment. The question presented is whether

the Confrontation Clause required the State to demon-

strate that the victim was unavailable to testify at trial

before the victim’s out-of-court statements would be

admissible.

(1)

TABLE OF CONTENTS

Interest of the United States 0... ...... Sr

es seuvcesoucccecusvecsce

a wesuntenmeooonecs

Argument:

I. The Confrontation Clause did not require the

II.

State to show that S.G. was unavailable before

her out-of-court statements could be admitted

i ssauoewetooveveoce

A. A showing of unavailability is not a general

precondition for the admission of all out-

of-court declarations offered against a crimi-

a LE Se

. The rationale of the unavailability require-

ment does not apply to the hearsay excep-

tions at issue in this case .....................0000......

S.G. was not a “witness against’ petitioner

within the meaning of the Confrontation Clause.

A. The Confrontation Clause was not designed

to police the development of exceptions to

a ceséuuveunecs

B. This Court’s decisions do not require the

court to hold that every hearsay declarant

whose statement is offered by the prosecution

is a “witness against” the defendant

SG Ee

Cases:

TABLE OF AUTHORITIES

Aveson V. Kinnaird, 6 East 188, 102 Eng. Rep.

A (so aa

Barber v. Page, 380 U.S. 719 (1968) 000. .

Berger V. California, 393 U.S. 314 (1969)

Bourjaily v. United States, 483 U.S. 171 (1987)

(IIT)

Page

. 19, 27

Cases—Continued : Page

Bridges Vv. Wixon, 326 U.S. 135 (1945) ..... aaa 4 26

Brookhart v. Janis, 384 U.S. 1 (1966) 0000000... 26

Bruton v. United States, 391 U.S. 123 (1968)... 26

California v. Green, 399 U.S. 149 (1970) ..... 7, 19, 23, 26

Commonwealth v. Hackett, 84 Mass. (2 Allen) 136

RRC ne at eeu dT tea eh Don ct 13

Commonwealth v. M’Pike, 57 Mass. (3 Cush.) 181

IN ETT alt ea A ns ae . 13

Coy V. Iowa, 487 U.S. 1012 (1988) .........00000 17, 21

Delaney Vv. United States, 263 U.S. 586 (1924)... 26

Diaz v. United States, 223 U.S. 442 (1912) .......... 26

Douglas v. Alabama, 380 U.S. 415 (1965) _..... nee 26

Dowdell v. United States, 221 U.S. 325 (1911)... 26

Dutton v. Evans, 400 U.S. 74 (1970) 0.0000... 19, 20, 26

Ferrior Vv. Duckworth, 902 F.2d 545 (7th Cir.),

cert. denied, 111 S. Ct. 526 (1990) 0. 14

Gannett Co. v. DePasquale, 443 U.S. 368 (1979)... 22

Howe V. Plainfield, 41 N.H. 135 (1860) ......... pleePe 14

Idaho V. Wright, 110 S. Ct. 3139 (1990) ..13, 14, 19, 27, 28

Insurance Co. V. Mosley, 75 U.S. (8 Wall.) 397

REREAD epee EY ae 9 OE he SE 13

Kentucky v. Stincer, 482 U.S. 730 (1987) ........... 16

Kirby v. United States, 174 U.S. 47 (1899) ........... 26

Lee V. Illinois, 476 U.S. 5380 (1986) -.............00.0...... Es 19

Mancusi Vv. Stubbs, 408 U.S. 204 (1972) ..00000..... 26

Maryland v. Craig, 110 S. Ct. 3157 (1990)... 16, 17, 18,

19, 20

Mattox v. United States, 156 U.S. 237 (1895)... 20, 24,

26, 27

Morgan V. Foretich, 846 F.2d 941 (4th Cir. 1988)... 14

Motes v. United States, 178 U.S. 458 (1900) ...... 26, 27

Ohio v. Roberts, 448 U.S. 56 (1980) 4, 6, 7, 8, 19,

20, 25, 27

Patton v. Freeman, 1 N.J.L. 113 (1791) 24

People Vv. Hughey, 194 Cal. App. 3d 1383, 240 Cal.

nn ee 14

Pointer Vv. Texas, 380 U.S. 400 (1965) ............ pct? 25, 26

Puleio Vv. Vose, 830 F.2d 1197 (1st Cir. 1987)........ 13

Reynolds v. United States, 98 U.S. 145 (1878) 26

Roberts v. Russell, 392 U.S. 293 (1968) —...... 26

Robertson Vv. Baldwin, 165 U.S. 275 (1897)... 26

Cases—Continued : Page

Salinger v. United States, 272 U.S. 542 (1926) ........ 24

Snowden V. United States, 2 App. D.C. 89 (1893) .. 13

Snyder Vv. Massachusetts, 291 U.S. 97 (1934) 26

State Vv. Palomo, 113 Wash. 2d 789, 783 P.2d 575

(1989), cert. denied, 111 S. Ct. 80 (1990) _........ 14

Tennessee V. Street, 471 U.S. 409 (1985) ............... 16

Thompson V. Trevanion, 90 Eng. Rep. 179 (1693) .. 13

United States v. Inadi, 475 U.S. 387 (1986) 4, 7, 8, 9, 10,

12,14

United States v. Iron Shell, 633 F.2d 77 (8th Cir.

1980), cert. denied, 450 U.S. 1001 (1981) ...... 14

United States v. Owens, 484 U.S. 554 (1988) 7

Constitution, statute, and rules:

U.S. Const. :

I eer eres Soak ke Ee s 22

Amend. VI (C onfrontation I se ole passim

Amend. XIV _........... FS e 25

Business Records Act, 28 U. S, C. 1732. aoe eR 12

Fed. R. Evid. :

Rule 801(d) —....... oe aaa tea Rater ates 8

RITES BEIM SRLS 9

Rule 803 PN a ARIA RE Alene rh tl ae Ce RW 8,12

Advisory Committee note (28 U.S.C. App. at 777-

IEE scaoscckeaseaicis rata eM PADS ONS te IMS . 11,12

Rule 803 (2) ................ ia De 1

EES RED: SEE EP OSNS T TART We OD 1

Miscellaneous:

1 Annals of Congress 756 (1789) (reprinted in 5

P. Kurland & R. Lerner, The Founders’ Con-

ea 23

3 W. Blackstone, Commentaries on the Law of

Sn emneoadaebonian 24

E. Cleary, McCormick on Evidence (3d ed.

ne ein herays 12, 13,14

E. Dumbauld, The Bill of Rights (1957) .......... 23

9 W. Holdsworth, History of the English Law

| RRR eae raverrene tennant Cheer an 21-22, 23

Pollitt, The Right of Confrontation: Its History

and Modern Dress, 8 J. Pub. L. 381 (1959) 21, 23

Miscellaneous—Continued : Page

B. Schwartz, The Bill of Rights: A Documentary

History (1971):

nnn tt iascenaaioeianimesaadammaaipaies 12

ne ceeanaetnnamnniainedtn 12

1 J. Stephen, A History of the Criminal Law of

I I aoa isc coher iheiesicieniaeninetninneenicnbinnss 21, 22, 23

J. Story, Commentaries on the Constitution of the

a cccinanlinlbcdiouadeniiniitiiie 24

2 N. Webster, An American Dictionary of the

English Language (1828) ........................ Oe Re 18

4 J. Weinstein & M. Berger, Weinstein’s Evidence

6 FR | eeeanen 13,14

J. Wigmore on Evidence (Chadbourne rev. ed.

1974):

ae Ce eee 12, 21, 23, 24, 25

ar ae 13, 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-6113

RANDALL D. WHITE, PETITIONER

Vv.

STATE OF ILLINOIS

ON WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

FOURTH JUDICIAL CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

Under Fed. R. Evid. 803(2) and 803(4), evidence of

excited utterances and statements to medical personnel

for purposes of medical treatment are admissible regard-

less of whether the declarant is available to testify. This

case presents the question whether the Confrontation

Clause allows the introduction of such statements if the

declarant is available but does not testify at trial. The

Court’s answer to that question will govern the use of

those types of statements in both state and federal pros-

ecutions, and it may also affect a number of other hear-

say exceptions recognized by the Federal Rules of

Evidence.

STATEMENT

1. During the early morning hours of April 16, 1988,

Tony DeVore was babysitting for S.G., a four-year-old

(1)

girl, and S.G.’s three-year-old brother. After putting the

children to bed in their mother’s bedroom, DeVore fell

asleep on a couch downstairs. At around 4 a.m., DeVore

was awakened by S.G.’s scream. DeVore went upstairs

and saw petitioner, whom she had met, leave the bedroom.

Petitioner told DeVore that S.G. “woke up screaming.”

Petitioner then left the house. S.G. was crying when

DeVore reached the bedroom. DeVore testified that when

she asked S.G. what had happened, S.G. replied that

“Randy” had put his hand over her mouth, choked her,

threatened to whip her and to have DeVore whip her if

she screamed, and touched her in her “private places” —

i.e., the vaginal area, (Petitioner and S.G.’s mother had

dated one another, and S.G. had met petitioner.) J.A. 19-

21; VI R. 11-12, 15-17, 24, 89.’

S.G.’s mother, Tammy Grigsby, arrived home shortly

thereafter. After speaking briefly with DeVore, Grigsby

asked S.G., who appeared scared and “a little hyper,”

what had happened. According to Grigsby’s trial testi-

mony. S.G. replied that “she woke up and that Randy

was in the room. And that he put his hand on her mouth

and told her that if she screamed that he would, you

know, whip her, and Tony |DeVore] would whip her too.

And then she said that he put his mouth on her front

part.” J.A, 21-22; VI R. 77-80.

Grigsby called the police. and Officer Terry Lewis ar-

rived at 4:47 a.m. When Lewis spoke with her, S.G.

seemed upset, nervous, and uneasy, but was cooperative.

In response to Lewis’s questions, 8.G. provided a descrip-

tion of the incident that was essentially identical to her

statements to DeVore and Grigsby, except that S.G. told

Lewis that Randy had gotten her underpants wet by

“nullfing] her pants to one side and us!ing] his tongue

on her private parts, what she called her private parts.”

J.A. 22-23; VI R. 109-112.

1 Citations to “VI R.” and “VII R.” refer to the two-volume trial

transcript.

At 8 a.m. the same morning, S.G. was taken to a hos-

pital emergency room. An emergency room nurse, Chery]

Reents, spoke with S.G. in order to obtain a history to

assist in $.G.’s treatment and diagnosis. In response to

Reents’ questions vegarding whether she had_ been

touched anywhere other than her mouth and neck, S.G.

replied that she had been touched on her “front part”

by Randy’s mouth. Similarly, S.G. told Dr. Michael

Meinzen, the physician on duty at the emergency room,

that “Randy” had “put his hands over her mouth and on

her neck” and had “put his mouth down there,” pointing

in the direction of her genitalia. J.A. 24-26; VI R. 47-51;

VIT R. 8-12.

At petitioner’s trial, DeVore, Grigsby, Lewis, Reents,

and Meinzen were permitted, over petitioner’s objections,

to testify regarding S.G.’s statements. The State made

two attempts to ca'l S.G. as a witness, but she experi-

enced “emotional difficulty” when she was brought to the

courtroom and left without testifying. J.A. 14; see id. at

12-15; VI R. 106-107, 122-123; VII R. 2-5. Petitioner

mad no effort to call S.G. to the stand, and the trial

court was not asked by either party to determine whether

she was legally available to testify. See VI R. 105-106.

2. The Appellate Court of Illinois, Fourth Judicial

Circuit, affirmed the convictions. The court held that

S.G.’s statements to DeVore, Grigsby, and Officer Lewis

were admissible under the State’s exception to the hear-

say rule for “spontaneous declarations.” Under Illinois

law, that exception authorizes admission of “state-

ment{s] relating to a startling event or condition made

while the declarant was under the stress of excitement

cause by the event or condition.” J.A. 27: see id. at

33-36. Similarly, the court found that S.G.’s statements

to nurse Reents and Dr. Meinzen were admissible under

a state statute providing for the xudmission of “state-

ments made by the victim [of specified offenses] to medi-

cal personnel for purposes of medical diagnosis or treat-

ment.” J.A. 37-39.

The appellate court rejected petitioner’s contention that

the Confrontation Clause prohibited the admission of

S.G.’s statements because she was not shown to be un-

available to testify. Following this Court’s decision in

l’nited States v. Inadi, 475 U.S. 387, 391-394 (1986),

the state court held that with respect to most types of

hearsay, “[w]hether the out-of-court declarant is un-°

available is totally irrelevant to the determination of

whether an out-of-court statement of that declarant is

admissible under an exception or exemption to the hear-

say rule.” J.A. 42.

SUMMARY OF ARGUMENT

S.G.’s out-of-court statements were admitted under two

well-recognized exceptions to the hearsay rule: the ex-

ception for excited utterances, and the exception for

statements made to medical personnel for purposes of

diagnosis or treatment. The rules of evidence in Illinois,

as in the federal courts and other American jurisdictions,

provide that out-of-court statements are admissible under

those exceptions regardless of whether the declarant is

available to testify. We submit that the Confrontation

Clause does not override those well-settled hearsay excep-

tions and require that such statements be excluded un-

less the declarant testifies or is shown to be unavailable.

I. In Ohio v. Roberts, 448 U.S. 56, 65 (1980), this

Court stated that “the prosecution must either produce,

or demonstrate the unavailability of, the declarant” in

order to introduce evidence of an out-of-court statement.

Althongh Roberts characterized that principle as a gen-

eral one, the Court in United States v. Inadi, 475 U.S.

387, 392-394 (1986), made clear that the quoted lan-

guage from Roberts was intended to apply only to prior

testimony. the kind of evidence at issue in that case.

Inedi set forth two reasons why a requirement of un-

availability should not be extended to all hearsay excep-

tions. Both reasons are applicable to the statements at

issue here. First, some hearsay declarations are made

under circumstances that make them highly probative in

their own right, without regard to what the declarant

might say as a witness at trial. Like the co-conspirator

declarations at issue in /nadi, the victim’s statements in

this case were not merely a less desirable substitute for

in-court testimony, but carried special guarantees of re-

liability derived from the setting in which they were

made. §.G.’s statements to her babysitter, her mother,

and Officer Lewis were made when the assault was fore

most in her mind and while she was still under the emo-

tiona! effect of the incident. Under those circumstances,

a declarant is unlikeiy to have suffered loss of memory

about the events or to have had sufficient opportunity to

fabricate a false account of it. Similarly, S.G.’s state

ments to the nurse and doctor in the emergency room

were likely to be reliable because they were made short!y

after the event and for the purpose of obtaining medical

treatment. In that setting, a declarant typically per-

ceives that it is impertant to give a careful and accurate

account of the events that led to the need for medical

treatment, and the risk of fabrication or careless recount-

ing is therefore minimized.

Second, the burdens and benefits associated with peti-

tioner’s position weigh heavily against it. A requirement

that the prosecutor »roduce the declarant or demonstrate

the declarant’s unavailability as a condition of introduc-

ing the declarant’s sut-of-court statements into evidence

would impose a purnoseless burden on prosecutors and

the courts. To preserve their ability to introduce out-of-

court statements, prosecutors would have to produce—or

demonstrate the unavailability of—even those declarants

whorn neither side wishes to examine. Courts would be

called upon to resolve inevitable disputes over whether

declarants were truly unavailable. That burden is unnec-

essary to protect defendants, who may exercise their

right to compulsory process to secure the presence of any

available witnesses they actually wish to examine.

II. More fundamentally, S.G. was not a “witness

against” petitioner within the meaning of tne Confronta-

tion Clause. That term should be reserved, in accordance

with its ordinary meaning, for live witnesses and those

declarants whose pricr testimony, affidavits, confessions,

or other similar statements are made in the course of or

in anticipation of litigation. Statements made without a -

view to pending or anticipated legal proceedings do not

constitute testimony by a “‘witness.”’

The history of the Confrontation Clause does not sup-

port the view that al! hearsay declarants are “witnesses.”

The common-law right to confrontation, which was incor-

porated in the Bill of Rights, arose in response to the

once-common English practice of using depositions, affi-

davits, and other similar statements in lieu of live testi-

mony in criminal trials. There is no indication in the

historica! materials that the common-law confrontation

right was meant as a general limitation on the develop-

ment of the hearsay rule and its exceptions.

Fer nearly 200 years, the hearsay rule and its excep-

tions evolved in this country without any suggestion by

this Court that all persons who make out-of-court state

ments that are later introduced into evidence are “wit-

nesses against’ a defendant. Most of this Court’s Con-

frontation Clause cases, like Ohio v. Roberts, involved

prior testimony or its functional! equivalent. With re

gard to such statements, it is historically accurate to say

that the declarants serve as “witnesses against” the de-

fendant. It was therefore proper for the Court to re-

quire the prosecution to produce the declarant or estab-

lish his unavailability as a precondition to introducing

his out-of-court statement. But the historical concerns

addressed by the Confrontation Clause do not justify ex-

tending that requirement to all out-of-court statements.

A declarant who makes a statement for reasons unrelated

to vending or anticipated litigation is not a “witness

against’ the defendant even if the statement is_ ulti-

mately used to aid in the defendant’s prosecution. State-

ments of that kind, including the statements at issue in

this ense, are therefore properly regulated by the rules

of hearsay, not by the Confrontation Clause.

ARGUMENT

I. THE CONFRONTATION CLAUSE DID NOT RE-

QUIRE THE STATE TO SHOW THAT 58S.G. WAS

UNAVAILABLE BEFORE HER OUT-OF-COURT

STATEMENTS COULD BE ADMITTED INTO EVI-

DENCE

A. A Showing of Unavailability Is Not A General Pre-

condition For The Admission Of All Out-Of-Court

Declarations Offered Against A Criminal Defendant

Petitioner contends that the Confrontation Clause es-

tablishes a “rule of necessity” under which a declarant’s

out-of-court statements are inadmissible unless the

declarant is shown to be unavailable to testify at trial.

As support for that view, petitioner relies primarily on

Ohio Vv. Roberts, 448 U.S. 56 (1980). In Roberts, the

Court observed that “|{i]n the usual case (including cases

where prior cross-examination has occurred), the prose-

cution must either produce, or demonstrate the unavail-

ability of, the declarant whose statement it wishes to use

against the defendant.” 448 U.S. at 65.° As the IIli-

“It is unclear whether petitioner is arguing for a rule that would

exclude out-of-court statements unless the prosecution either pro-

duced the declarant or demonstrated the declarant’s unavailability

(the principle articulated in Roberts) or the broader rule that would

permit the admission of out-of-court statements only if the prosecu-

tion could demonstrate the unavailability of the declarant, 7.¢., 2

rule that would exclude out-of-court statements even if the declarant

was produced at trial and testified as a witness. See Pet. Br. 12-14.

In anv event, the broader rule has been squarely rejected by this

Court. See United States Vv. Inadi, 475 U.S. 387, 392 (1986) (‘if

the declirant either is unavailable, or is available and produced by

the prosecution, the statements can be introduced anyway”); Cali-

fornia Vv. Green, 399 US. 149, 153-164 (1970); see also United States

V. Owens, 484 U.S. 554, 560 (1988) (no need to show “indicia of

nois Appellate Court recognized, however, that principle

cannot be extended to all out-of-court statements. In

particular, it does not apply to out-of-court statements

of the sort at issue in this case.

Roberts itself noted that “[a] demonstration of un-

availability * * * is not always required.” 448 U.S. at

65 n.7. Moreover, in United States v. Inadi, 475 U.S.

at 392, the Court rejected the argument that under Rob-

erts “no out-of-court statement would be admissible with-

out a showing of unavailability.” To interpret the Con-

frontation Clause to require a showing of unavailability

as a prerequisite to the admission of any out-of-court

statement would render unconstitutional many of the

hearsay exceptions long recognized in both federal and

state law, since most exceptions to the hearsay rules do

not require that the declarant be shown to be unavailable.

See, e.g., Fed. R. Evid. 801(d), 803. The Court in /nadi

made it clear that Roberts “does not stand for such a

wholesale revision of the law of. evidence, nor does it

support such a broad interpretation of the Confrontation

Clause.” 475 U.S. at 392. Rather, the Court held the

principle of Roberts to apply only to prior testimony, a

kind of hearsay for which a showing of unavailability has

traditionally been required under both the Confronta-

tion Clause and the rules of evidence. The Court ex-

plained (475 U.S. at 394):

Roberts must be read consistently with the ques-

tion it answered, the authority it cited, and its own

facts. All of these indicate that Roberts simply re-

affirmed a longstanding rule * * * that applies un-

availability analysis to prior testimony. Roberts can-

not fairly be read to stand for the radical proposition

that no out-of-court statement can be introduced by

the government without a showing that the declarant

is unavailable.

reliability” of out-of-court statements when a hearsay declarant “is

present at trial and subjected to unrestricted cross-examination”

regarding those statements) .

Inadi identified the considerations that distinguish prior

testimony from other types of hearsay for purposes of

the unavailability requirement. In Jnadi, the government

introduced evidence of out-of-court statements by sev-

eral members of a drug conspiracy as substantive evi-

dence against a defendant charged with participation in

the scheme. The statements were admitted under the co-

conspirator exception to the hearsay rule, which does not

require a showing that a declarant-is unavailable to

testify at trial. See Fed. R. Evid. 801(d)(2)(E). Re-

lying on Roberts, the Third Circuit held that the Con-

frontation Clause prohibited the introduction of a co-

conspirator’s otherwise admissible statements unless the

prosecution either produced the co-conspirator to testify

or demonstrated his unavailability. This Court reversed,

holding that the unavailability rule, “developed in cases

involving former testimony, is not applicable to co-con-

spirators’ out-of-court statements.” 475 U.S. at 394.

The Court noted that there is a fundamental difference

between prior testimony and co-conspirator statements

with respect to their evidentiary significance. Former

testimony, the Court explained, “is only a weaker substi-

tute for live testimony.” 475 U.S. at 394. For that rea-

son, “|i]f the declarant is available and the same infor-

mation can be presented to the trier of fact in the form

of live testimony, with full cross-examination and the

opportunity to view the demeanor of the declarant, there

is little justification for relying on the weaker version.”

Ibid. By contrast, the Court continued, statements by co-

conspirators in furtherance cf a conspiracy “are made

in a context very different from trial, and therefore are

usually irreplaceable as substantive evidence.” Jd. at

395-396. The Court explained (id. at 395):

Because they are made while the conspiracy is in

progress, such statements provide evidence of the

conspiracy’s context that cannot be replicated, even

if the declarant testifies to the same matters in court.

* * * Conspirators are likely to speak differently

when talking to each other in furtherance of their

illegal aims than when testifying on the witness

stand. Even wnen the declarant takes the stand,

his in-court testimony seldom will reproduce a sig-

nificant portion of the evidentiary value of his state-

ments during the course of the conspiracy.

In addition, the 7Jnadi Court determined that there is

“little, if any, benefit to be accomplished by the * * *

unavailability rule” adopted by the court of appeals in

that case. 475 U.S. at 396. The rule would not serve

to enhance the quality of the evidence introduced during

a trial, the Court pointed out, “because it does not actu-

ally serve to exclude anything, unless the prosecution

makes the mistake of not producing an otherwise avail-

able witness.” Jbid. In view of the defendant’s right to

compel the attendance of any available witness, the Court

continued, “it is difficult to see what, if anything, is

gained by a rule that requires the prosecution to make

that declarant ‘available.’” Jd. at 398. The Court also

noted that the task of producing or demonstrating the

unavailability of each co-conspirator declarant, whether

or not either party wished to elicit his testimony, would

“nlace[] a significant practical burden on the prosecu-

tion.” Jd. at 399. The Court concluded that “|a]ny

marginal protection to the defendant by forcing the gov-

ernment to cai] as witnesses those co-conspirator declar-

ants who are available, willing to testify, hostile to the

defense, and yet not already subpoenaed by the prosecu-

tion, when the defendant himself can call and cross-

examine such declarants, cannot support an unavailabil-

ity rule.” Jd. at 399-400.

B. The Rationale Of The Unavailability Requirement

Does Not Apply To The Hearsay Exceptions At

Issue In This Case

The Court’s reasoning in /nadi is equally applicable *»

the hearsay exceptions at issue in this case. §.G.’s out-

of-court statements were admitted precisely because they

had the same kind of special probative value as the co-

conspirator statements at issue in Jnadi. Moreover, ex-

tension of the unavailability requirement to the hearsay

exceptions at issue here would impose the same burdens

on the administration of criminal justice that the Court

identified in /nadi.

The law of evidence recognizes that in-court testimony

is not always preferable as evidence to out-of-court state-

ments. In-court testimony is usually given long after the

event, at a time when the legal consequences of the testi-

mony are plainly in view. As a result, witnesses who

have an interest in the outcome of the case have both the

opportunity and the incentive to shape their testimony

accordingly. Similarly, disinterested witnesses are ex-

posed to attempts by parties to influence their recollec-

tions and testimony. Courtroom procedures—an oath, the

witness’s face-to-face encounter with the jury and the

parties, and cross-examination—serve to counter, but can-

not eliminate, those features of live testimony.

A number of hearsay exceptions, including those at

issue in /nadi and in this case, recognize that out-of-court

statements made without a view to pending or anticipated

litigation, in settings that tend to assure their reliability,

have special probative value. Those statements are ad-

mitted even though they have not been subjected to the

safeguards devised for in-court testimony. Because such

evidence has different sources of reliability than the pro-

cedural safeguards that surround live testimony, it is

admitted even if the declarant is available to testify at

trial.

The theory underlying these exceptions, which “finds

vast support in the many exceptions to the hearsay rule

developed by the common law,” is that “under appropri-

ate circumstances a hearsay statement may possess cir-

cumstantial guarantees of trustworthiness sufficient to

justify nonproduction of the declarant in person.” Fed.

R. Evid. 803 Advisory Committee Note, 28 U.S.C. App.

at 777. Congress has subscribed to that view through its

enactment of the Federal Rules of Evidence and the Bus-

iness Records Act, 28 U.S.C. 1732.

By contrast, the principal justification for receiving

prior testimony, the form of hearsay at issue in Roberts,

is necessity. Like live testimony, prior testimony is given

with a view to its legal consequences, but it is inferior

to live testimony in at least two respects. The jury is

denied the opportunity to examine the witness’s demeanor,

and the prior testimony may not have been given at a

point when the parties had an interest in fully develop-

ing the witness’s testimony for purposes of the trial.

Thus, if a witness is available to testify at trial, there is

little justification for admitting prior testimony in lieu

of live testimony. Inadi, 475 U.S. at 394. See generally

5 J. Wigmore, Evidence §§ 1420-1421 (Chadbourne rev.

1974).

1. The hearsay exception for “spontaneous declara-

tions’—under which S.G.’s statements to her babysitter,

her mother, and Officer Lewis were admitted into evi-

dence-——has the same basic justification as the exception

for co-conspirator statements. Excited utterances are ad-

missible because “circumstances may produce a condi-

tion of excitement which temporarily stills the capacity

of reflection and produces utterances free of conscious

fabrication.” Fed. R. Evid. 803 Advisory Committee

Note, 28 U.S.C. App. at 778; 6 J. Wigmore, supra, § 1747,

at 195; E. Cleary, McCormick on Evidence § 297 (3d

ed. 1984) [hereinafter McCormick on Evidence]. State-

ments made under the influence of a startling event, like

statements made by co-conspirators in furtherance of a

3 Consistent with the rationale of the exception, excited utterances

are not admissible unless they result from an event “sufficiently

startling to render inoperative the normal reflective thought proc-

esses of an observer,” McCormick on Evidence § 297, at 854, and

“ltl}he utterance must have been made before there has been time

to contrive and misrepresent,” 6 J. Wigmore, supra, § 1750, at 202.

The state court rejected petitioner’s argument that S.G.’s statements

to her mother and Officer Lewis did not satisfy the second require-

ment of the exception. See J.A. 33-36.

conspiracy, are thus unlikely to be influenced by the de-

clarant’s calculation of their effect on a future trial. See

Idaho v. Wright, 110 S. Ct. 3139, 3149 (1990). More-

over, they are made within a short time of the pertinent

events, which reduces the risk of inaccurate reporting

due to loss of memory. For these reasons, the law of evi-

dence in the federal courts, Illinois, and other American

jurisdictions excludes excited utterances from the gen-

eral prohibition on the use of out-of-court statements as

substantive evidence.‘

For the same reason, excited utterances are admis-

sible without regard to whether the declarant is available

to testify at trial. The excitement resulting from a start-

ling event “justiflies] dispensing with any requirement

that the declarant be unavailable, because it suggests that

his testimony on the stand, given at a time when his

powers of reflection and fabrication are operative, is at

least no more reliable than his out-of-court statement.”

McCormick on Evidence § 297, at 855. To paraphrase

Inadi, because excited utterances are made nearly simul-

taneously with the relevant event, under circumstances

that suppress the declarant’s capacity to engage in con-

scious falsification, they “provide evidence * * * that can-

4 The exception for excited utterances is one of the oldest excep-

tions to the hearsay rule, having emerged before the end of the 18th

century. 6 J. Wigmore, supra, § 1747, at 195; see Thompson v.

Trevanion, 90 Eng. Rep. 179 (1693) (admitting evidence of state-

ment by injured woman “immediate upon the hurt received, and

before that she had time to devise or contrive any thing for her own

advantage”). The exception grew out of the principle that state-

ments constituting part of the res gestae of an event are admissible.

See, ¢.g., Insurance Co. V. Mosley, 75 U.S. (8 Wall.) 397, 405-408

(1869); Snowden v. United States, 2 App. D.C. 89, 93-97 (1893);

Commonwealth v. Hackett, 84 Mass. (2 Allen) 136, 139-140 (1861);

Commonwealth Vv. M’Pike, 57 Mass. (3 Cush.) 181, 184 (1849). The

exception is very widely recognized, see 6 J. Wigmore, supra, § 1750,

at 204-221 n.3; 4 J. Weinstein & M. Berger, Weinstein's Evidence

as a “firmly rooted” hearsay exception. E.g., Puleio v. Vose, 830

F.2d 1197, 1206 (1st Cir. 1987) (citing cases).

not be replicated, even if the declarant testifies to the

same matter in court.” 475 U.S. at 395.°

2. The same reasoning applies to statements made to

medical personnel for purposes of medica] diagnosis or

treatment—the exception authorizing the admission of

S.G.’s statements to her nurse and doctor. The justifica-

tion for admitting such statements is that persons seek-

ing medical. attention have special incentives, distinctly

different from those motivating in-court witnesses, to

speak truthfully with respect to matters pertinent to

their treatment. The reliability of such statements is

“assured by the likelihood that the patient believes that

the effectiveness of che treatment he receives may depend

largely upon the accuracy of the information he provides

the physician.” McCormick on Evidence § 292, at 8389;

see Idaho v. Wright, 110 S. Ct. at 3149.° In keeping

5In addition to the Illinois Court of Appeals in this case, other

state courts have held that no constitutional unavailability require-

ment limits the admissibility of excited utterances. People V.

Hughey, 194 Cal. App. 3d 1383, 240 Cal. Rptr. 269 (1987); State v.

Pelomo, 113 Wash. 2d 789, 783 P.2d 575 (1989), cert. denied, 111

S. Ct. 80 (1990). See also Ferrier v. Duckworth, 902 F.2d 545

(7th Cir.), cert. denied, 111 S. Ct. 526 (1990).

‘Statements regarding physical pain have been received in evi-

dence since the 17th century, when the hearsay rule itself emerged.

6 J. Wigmore, supra, § 1718, at 101 & n.1. See Barber v. Merriam,

93 Mass. (11 Allen) 322, 324-326 (1865); Howe v. Plainfield, 41

N.H. 135, 136 (1860); Aveson v. Kinnaird, 6 East 188, 102 Eng.

Rep. 1258 (1805). The hearsay exception for statements to medical

personnel is very widely recognized. See McCormick on Evidence

§ 292, at 839-840; 4 J. Weinstein & M. Berger, Weinstein’s Evi-

dence © 803(4)(2} (1990 & April 1991 Supp.).

The justification for this hearsay exception is fully applicable

to children, as long as their statements are made for the purpose of

medical treatment or diagnosis. Morgan v. Foretich, 846 F.2d 941,

949-950 (4th Cir. 1988) (citing cases). Indeed, in some instances,

a child’s motivation to speak truthfully to a doctor may be even

stronger than that of an adult. See id. at 949; United States v. Iron

Shell, 633 F.2d 77, 84 (8th Cir. 1980), cert. denied, 450 U.S. 1001

(1981).

with that rationale, such statements are admitted re-

gardless of whether the declarant is available. As in the

case of excited utterances, the special reliability of state-

ments made to medical personnel for diagnosis and treat-

ment justifies dispensing with the requirement of a show-

ing that the declarant is unavailable to testify at trial,

since the out-of-court statement may well have greater

probative value than testimony given by the declarant

from the witness stand.

3. Contrary to petitioner’s contention (Br. 26-28), the

Confrontation Clause does not justify distinguishing be-

tween statements by a co-conspirator and those of a

“complaining witness,” on the theory that a co-conspira-

tor is less likely to seek to incriminate the future de-

fendant. S.G.’s statements were admissible in this case

precisely because they were unlikely to be influenced by

the motivations characteristic of a “complaining wit-

ness” —i.e., a person who has consciously invoked the aid

of the police and the criminal justice system by accusing

an individual of a crime. There are differences between

a frightened child, a patient seeking treatment, and a co-

conspirator seeking to advance a criminal enterprise. In

terms of the evidentiary significance of their out-of-court

statements, however, they all fall on the same side of the

line that Jnadi drew between testimonial declarations and

statements made for other purposes. All three statements

are made under conditions that give them special proba-

tive value and distinguish them from live testimony or

the accusations characteristic of a “complaining witness.”

4. As in Inadi, the rule petitioner advocates would

impose severe burdens on the criminal justice system

without providing any significant benefit to defendants.

Requiring the production of the declarant or proof of the

declarant’s unavailability in this setting would saddle

the prosecution with the task of producing witnesses

neither side wishes to examine, without enhancing the de-

fendant’s access to any witnesses he could not secure

through his own efforts. In this case, for example, there

is not the slightest doubt that the State cculd have either

produced the declarant or established that she was legally

unavailable to testify. In fact, at one point S8.G. was

physically present in the courtroom. Whether or not she

was legally available to testify, then, her statements

would have been admissible even if an “unavailability”

requirement were extended to a case such as this one.

It is equally clear that the absence of an unavailability

requirement did not unfairly disadvantage petitioner. If

he had wanted to examine S8.G., he could have subpoenaed

her to testify, and the trial court would then have de-

termined S.G.’s legal availability. Petitioner made no

attempt to obtain live testimony from S.G. Indeed, there

is no indication that petitioner argued in the trial court,

as he did on appeal, that the State was required to pro-

duce S.G. for examination. The record thus justifies the

‘nference that the defense saw more advantage in the

preservation of a legal argument based on Roberts than

it did in the opportunity to question 8.G. in the presence

of the jury.

- The effect of an unavailability requirement is to re-

quire the prosecution to produce each hearsay declarant

whose statement it wishes to introduce—on pain of los-

ing the evidence—even if the defense hus no intention

of examining any of them.’ The “mission” of the Con-

frontation Clause is “to advance the accuracy of the

truth-determining process in criminal trials.” Tennessee

v. Street, 471 U.S. 409, 415 (1985). See Maryland vy.

Craig, 110 S. Ct. 3157, 3163 (1990) ; Kentucky v. Stincer,

482 U.S. 730, 737 (1987). That goal is not advanced

by the purposeless expenditure of effort inherent in peti-

tioner’s position.

Petitioner’s argument for extending Roberts to a case

such as this one gains no support from this Court’s de-

7 Similarly, the courts would be called upon to resolve factual

questions regarding the availability of declarants that the defense

had no interest in subpoenaing or examining, solely to determine

whether the declarants’ out-of-court statements were admissible.

cisions addressing the manner in which witnesses may

give live testimony in child abuse cases. Maryland v.

Craig, supra; Coy Vv. Iowa, 487 U.S. 1012 (1988). See

Pet. Br. 22-25. The only issue in those cases was the

extent of a defendar..’s right to engage in face-to-face

confrontation with a witness who actually testifies at

trial. As the Court noted in Coy, 487 U.S. at 1016, that

question is distinct from the extent to which the Con-

frontation Clause limits the use of hearsay evidence.

Inadi establishes that co-conspirator statements are ad-

missible without any showing of availability, but it does

not suggest that the government could call the declarant

to the stand without affording the defendant an o»por-

tunity for face-to-face confrontation. The converse is also

true. The fact that a showing of particularized neces-

sity is required before a child witness is permitted to give

live testimony by closed circuit television does not suggest

that the same showing must be made to admit out-of-

court statements that are admissible under the law of evi-

dence and the reasoning of Jnadi. Because the principles

of Inadi apply to the hearsay exceptions at issue in this

case, the admission of the evidence was therefore consist-

ent with the Confrontation Clause, without the need for

a special showing of necessity based on the legal unavail-

ability of the declarant.

Il. S.G. WAS NOT A “WITNESS AGAINST” PETI-

TIONER WITHIN THE MEANING OF THE CON-

FRONTATION CLAUSE

There is another, more fundamental reason to conclude

that the admission of S.G.’s out-of-court statements was

not contingent on a showing that she was unavailable:

S.G. was not a “witness against” petitioner within the

meaning of the Confrontation Clause. The text of the

Clause, its history, and the holdings (as well as most of

the reasoning) of this Court’s decisions are all consistent

with that view.

At the time the Sixth Amendment was adopted, as now,

a “witness” was understood to be “one who gives testi-

mony” or who “testifies,” i.e., “[i]n judicial proceedings,

‘one who] make[s] a solemn declaration under oath, for

the purpose of establishing or making proof of some fact

to a court.” Maryland v. Craig, 110 S. Ct. 3157, 3173

(1990) ‘(Sealia, J., dissenting) (quoting 2 N. Webster,

An American Dictionary of the English Language

(1828)).5 When she made the statements admitted into

evidence in this case, S.G. was not speaking in that

capacity. She was not giving “testimony,” and her state-

ments were not made “for the purpose of establishing or

making proof of some fact.”

A frightened child responding to questions from her

mother and others while under the emotional influence of

an assault is not acting as a “witness against” an indi-

vidual who may subsequently be charged with a crime

arising from the incident. The same is true of a young

patient who describes the nature of an assault to medical

personnel in order to enable them to ascertain her condi-

tion and design an appropriate course of medical treat-

ment. Indeed, as we have shown, the law of evidence

authorizes the admission of such statements precisely he-

cause they are given under circumstances fundamentally

different from those surrounding testimony by a “wit-

ness.” For purposes of the Confrontation Clause, the

term “witness against” more fittingly describes those in-

dividuals who actually provide in-court testimony or the

functional equivalent—i.e., affidavits, depositions, prior

“As Justice Scalia has noted, the term “witness” also referred to

any person who was present at an event. As used in the Sixth

Amendment, however, the term plainly was not intended to carry

that broader meaning. Persons who merely observe matters perti-

nent to a criminal prosecution are not witnesses “against” the

defendant, and it has never been suggested that the Sixth Amend-

ment entitles a defendant to confront observers who contribute

nothing to the evidence in a trial. See Maryland v. Craig, 110

S. Ct. at 3173-3174 (Sealia, J., dissenting).

testimony, or other statements (such as confessions) that

are made with a view to legal proceedings.

To be sure, this Court’s recent decisions have suggested

that all hearsay is subject to scrutiny under the Confron-

tation Clause—thereby assuming that all hearsay declar-

ants are “witnesses against” a defendant within the

meaning of the Confrontation Clause.’ But that assump-

tion has never been explained or justified. It appears to

have arisen from the view that only two polar interpreta-

tions of the Confrontation Clause are possible—one that

would limit the term “witnesses” to persons who actually

appear at a defendant’s trial, and the other that would

reach all hearsay declarants.'" This case warrants con-

®See Maryland v. Craig, 110 S. Ct. at 3165. For instance,

Bourjaily v. United States, 483 U.S. 171, 181-184 (1987), applied

Confrontation Clause scrutiny to statements, made by co-conspir-

ators in furtherance of a conspiracy, that were not made by a

“witness against” the defendants as we understand that term.

The Court found, in any event, that the statements were ad-

missible. In other cases, the Court has reiterated the “general

approach” to hearsay that it first articulated in Ohio v. Roberts,

448 U.S. at 65, in a manner suggesting that Confrontation Clause

analysis is applicable to all out-of-court statements. See, e.g., Lee

V. Illinois, 476 U.S. 530, 543 (1986); Idaho v. Wright, 110 S. Ct.

at 31416-3148.

1 Justice Harlan’s concurring opinions in California v. Green,

399 U.S. 149, 172-189 (1970), and Dutton v. Evans, 400 U.S. 74,

93-100 (1970), are the only opinions that have devoted serious

attention to the question whether all hearsay declarants are “wit-

nesses” within the meaning of the Confrontation Clause. In Green,

Justice Harlan identified two “polar readings” of the Clause with

respect to that question--one that would “confer nothing more

than a right to meet face to face all those who appear and give

evidence at trial’ and the other that would create “a blanket

prohibition on the use of any hearsay testimony.” 399 U.S. at

175. Rejecting the view that any distinctions could be drawn

among categories of hevrsay, Justice Harlan in Green argued for

a modified version of the broader interpretation, under which

all available hearsay deciarants would be required to be produced

at trial. /d. at 182. A tew months later, however, Justice Harlan

sideration of an intermediate interpretation—under which

the term “witnesses” would be applied to those individ-

uals who are speaking with a view to legal proceedings,

not to all persons who have occasion to make statements

that may later be admitted into evidence.

A. The Confrontation Clause Was Not Designed To

Police The Development Of Exceptions To The

Hearsay Rule

In one of its earliest decisions under the Confrontation

Clause, Mattox v. United States, 156 U.S. 237, 242

(1895), the Court stated:

The primary object of the [Confrontation Clause |

was to prevent depositions or ex parte affidavits, such

as were sometimes admitted in civil cases, being used

avainst the prisoner in lieu of a personal examina-

tion and cross-examination of the witness in which

the accused has an opportunity, not only of testing

the recollection and sifting the conscience of the wit-

ness, but of compelling him to stand face to face

with the jury * * *.

That is an accurate characterization of the historical

roots of the Confrontation Clause. The common-law right

abandoned that position in favor of the view that the Confronta-

tion Clause provides only a right to confront those who appear and

give evidence at trial. Dutton v. Evans, 400 U.S. at 93-100.

Opinions expressing the views of the Court have devoted little

attention to the question whether all hearsay declarants should

be deemed “witnesses” for purposes of the Confrontation Clause.

In Ohio Vv. Roberts, for instance, the Court observed that “[t]he

historical evidence leaves little doubt * * * that the Clause was

intended to exciude some hearsay,” 448 U.S. at 63, and the Court

then articulated an analytical framework that on its face would

reach all hearsay, id. at 65-66. The framework articulated in Ohio

Vv. Roberts has been reiterated in subsequent cases without critical

examination of its premise as to the meaning of the term “wit-

nesses” in the Confrontation Clause. F.g., Maryland yv. Craig,

1108S. Ct. at 3165.

of confrontation that the Framers incorporated in the

Sixth Amendment arose to protect criminal defendants

from the once-common practice of admitting statements

to examining magistrates, affidavits, and other similar

hearsay in lieu of live testimony in criminal trials. There

is no historical basis, however, for regarding the right

of confrontation as a general limitation on the admission

of hearsay evidence, and in particular as a limitation on

hearsay exceptions of the sort that are at issue here.

1. Although the concept of confrontation dates back to

Roman times, see Coy v. lowa, 487 U.S. at 1015-1016,

the common-law right to confrontation did not begin to

emerge until the 16th century. Prior to that period,

juries rarely heard witnesses, but typically obtained in-

formation “by consulting informed persons not called into

court.” 5 J. Wigmore, supra, § 1364, at 13. See Pollitt,

The Right of Confrontation: Its History and Modern

Dress, 8 J. Pub. L. 381, 386-387 (1959). By the end of

the 16th century, it had become common for the Crown

to offer evidence in criminal proceedings. 9 W. Holds-

worth, History of the English Law 224 (1926). Even

so, a criminal trial in that period did not consist of the

structured presentation of evidence through live witnesses

that is now taken for granted.

A trial was preceded by an aggressive investigation by

examining magistrates. Those officials interrogated the

prisoner, accomplices, and other persons with relevant

information. See 1 J. Stephen, A History of the Criminal

Law of England 221, 325 (1883). The magistrates’ ex-

aminations were “intended only for the information of

the court. The prisoner had no right to be, and probably

never was present. * * * |{T|he depositions were to be

returned to the court, but there is evidence to show that

the prisoner was not allowed even to see them.” /d. at

221. After the investigation was complete, the prisoner

was arraigned and a jury was sworn. The trial itself

consisted principally of an “altercation between the ac-

cused, and the prosecutor and his witnesses.” 9 W. Holds-

worth, supra, at 225. See 1 J. Stephen, supra, at 325-326

(“the whole trial, in fact, was a long argument between

the prisoner and the counsel for the Crown, in which

they questioned each other and grappled with each other’s

arguments with the utmost eagerness and closeness of

reasoning”’)."

There was no requirement that the prosecution rely on

live testimony. To the contrary, in courts of common

law

{t]he proof was usually given by reading depositions,

confessions of accomplices, letters, and the like; and

this occasioned frequent demands by the prisoner to

have his “accusers,” 7.e., the witnesses against him,

brought before him face to face, though in many

cases the prisoners appear to have been satisfied with

the depositions.

1 J. Stephen, supra, at 326; see 9 W. Holdsworth, supra,

at 228. Similarly, in the Star Chamber, “the evidence of

witnesses was given upon affidavit.” 1 J. Stephen, supra,

at 338.

The notorious trial of Sir Walter Raleigh for treason

in 1603 was illustrative of this feature of early English

criminal procedure, The crucial evidence against Raleigh

included the deposition of one Cobham and a letter that

Cobham wrote thereafter, both of which implicated

Raleigh in a plot to seize the throne. Raleigh had a

written retraction from Cobham and _ believed that

Cobham would testify in his favor at trial. The court

—_—

11 The deficiencies in this procedure led to recognition of a

number of common-law rights of criminal procedure—many of

which were subsequently embodied in the Fifth and Sixth Amend-

ments. Stephen noted that 16th century trials differed from those

of his day in a number of “important particulars,” one of which

was that “[t]he witnesses were not necessarily (to say the very

least) confronted with the prisoner.” 1 J. Stephen, supra, at 350.

See 9 W Holdsworth, supra, at 224; Gannett Co. v. DePasquale,

443 U.S. 368, 421 (1979) (opinion of Blackmun, J.).

nevertheless rejected Raleigh’s demand that Cobham be

called as a witness. Pollitt, supra, 8 J. Pub. L. at 389.

See 1 J. Stephen, supra, at 333-336; 9 W. Holdsworth,

supra, at 216-217, 226-228.

The right of confrontation emerged to put an end to

~this abuse. Although it is uncertain precisely when the

right was formally recognized, the practice of requiring

live witnesses in place of depositions and affidavits was

well established by the mid-1600s. See Pollitt, supra, 8

J. Pub. L. at 389-390; 5 J. Wigmore, supra, § 1364, at

23 n.47.

2. A number of state constitutions adopted after the

Declaration of Independence recognized a right to con-

frontation.'* The Sixth Amendment’s Confrontation

Clause appears to be patterned after those provisions. In

particular, the confrontation provision in the Virginia

Declaration of Rights is likely to have influenced James

Madison when, in the First Congress, he proposed the

amendments that ultimately became the Bill of Rights.

See 1 B. Schwartz, The Bill of Rights: A Documentary His-

tory 235, 265, 278, 282, 287, 323, 341, 377 (1971) (Va., Pa.,

Del., Md., N.C., Vt., Mass., N.H.); Pollitt, supra, 8 J. Pub. L. at

397-299.

The records of the Constitutional Convention, state ratifying

conventions, the First Congress, and proceedings culminating in

the adoption of the Bil! of Rights include only brief and unen-

lightening references to the right to confrontation. In several

state ratifying conventions, there were complaints about the fail-

ure of the Constitution to include a guarantee of individual rights

comparable to those in the state constitutions, and in several

instances those discussions touched briefly on the right to con-

frontation. See 2 B. Schwartz, supra, at 665, 690, 841, 913. When

the First Congress enacted a resolution proposing the Bill of

Riehts, however, there was no significant discussion of that right.

See 1 Annals of Congress 756 (1789) (reprinted in 5 P. Kurland

& KR. Lerner, The Founders’ Constitution 262 (1987). See gen-

erally E. Dumbauld, The Bill of Rights 33-49, 53-54 (1957): Cal-

ifornia V. Green, 399 U.S. at 175-177 (Harlan, J., concurring).

The history of the Confrontation Clause thus supports

Justice Story’s observation that the Clause simply codi-

fied the common-law right that had earlier been recog-

nized in England, end “follow[ed] out the established

course of the common law in all trials for crimes.” J.

Story, Commentaries on the Constitution of the United

States 664 (1833). This Court has drawn the same con-

clusion:

The right of confrontation did not originate with the

provision in the Sixth Amendment, but was a com-

mon-law right having recognized exceptions. The

purpose of that provision, this Court has often said,

is to continue and preserve that right, and not to

broaden it or disturb the exceptions.

Salinger v. United States, 272 U.S. 542, 548 (1926). Ac-

cord Mattox v. United States, 156 U.S. at 243.

3. The right to confrontation is a feature of criminal

procedure intended to benefit the defendant. By contrast,

the hearsay rule is a feature of the law of evidence ap-

plicable to all litigants in both civil and criminal pro-

ceedings. During the 17th century in England, “the ap-

preciation of the impropriety of using hearsay statements

by persons not called [grew] steadily”; by the early 18th

century, the generai prohibition on the introduction of

hearsay “receive|d| a fairly constant enforcement.” 5

J. Wigmore, supra, §$ 1364, at 18. From the outset, how-

ever, the hearsay rule was subject to exceptions. Scholars

have found that at least the following exceptions had

taken shape by the late 18th century: dying declarations,

regularly kept records, co-conspirator declarations, evi-

dence of pedigree and family history, and various kinds

of reputation evidence.'* We have found no evidence that

4 Patton Vv. Freeman, 1 N.J.L. 113, 115 (1791) (co-conspirator

declarations); 5 J. Wigmore, supra, § 1430, at 275 (dying declara-

tions); id. § 1518, at 426-428 (regularly kept records); id. § 1476,

at 350 (declarations against interest); id. §735, at 78-84 (past

recollection recorded); id. § 1480, at 363 (pedigree and family

history); id. § 1580, at 544 (reputation evidence). See also 3 W.

Blackstone, Commentaries on the Law of England 368 (1768).

the common-law right of confrontation or the Confronta-

tion Clause was regarded as a check on these exceptions

or on the development of the hearsay rule in general.

B. This Court’s Decisions Do Not Require The Court

To Hold That Every Hearsay Declarant Whose

Statement Is Offered By The Prosecution Is A “Wit-

ness Against” The Defendant

During the past 200 years, the hearsay rule has evolved

in both state and federal law. A major aspect of that de-

velopment has been the recognition of exceptions, like

those at issue here, that authorize the admission of out-

of-court statements regardless of the declarant’s avail-

ability. During virtually all of that period, courts regu-

larly rejected arguments that the Confrontation Clause

rerulates the admissibility of all out-of-court state-

ments.'®

Until very recently, this Court’s cases also provided no

support for such a contention. Until Ohio v. Roberts, all

The Confrontation Clause was “incorporated” in the Four-

teenth Amendment and applied to the States in 1965. Pointer v.

Texas, 380 U.S. 400, 408-406 (1965). Prior to that time, the con-

stitutions of virtually every State contained a provision substan-

tially cauivalent to the Confrontation Clause. 5 J. Wigmore, supra,

§$ 1297, at 155-158 n.1. Many state decisicns had rejected claims

that admission of hears: within exceptions to the hearsay rule

violated state constitutional provisions. Jd. § 1397, at 159-162.

Wigmore’s position was that the Confrontation Clause “does not

prescribe what kinds of testimonial statements (dying declara-

tions or the like) shall be given infrajudicially—this depends on

the law of evidence for the time being—but only what mode of

procedure shall be followed—i.e., a cross-examining procedure—

in the case of such testimony as is required by the ordinary law

cf evidence to be given infrajudicially.” 5 J. Wigmore, supra,

§ 1397, at 159. In our view, however, this Court’s cases establish

that prior testimony (and other statements of the same basic

character) are made by a “witness against’ the defendant within

the meaning of the Confrontation Clause, and a state statute pur-

porting to admit that testimony in lieu of a live appearance by an

available witness would be unconstitutional.

but two of this Court’s cases applying the Confrontation

Clause to hearsay involved prior testimony or confessions

—statements functionally identical to those whose use in

early English trials led to recognition of the common-law

right to confrontation."* The two exceptions held that

the admission of statements by co-conspirators in further-

ance of a conspiracy did not viclate the Confrontation

Clause.'? Nothing in this Court’s cases suggested that the

Confrontation Clause was applicable to all out-of-court

statements.

16 See Reynolds v. United States, 98 U.S. 145, 158-161 (1878)

(testimony at a prior trial) ; Mattox v. United States, 156 U.S. at

240-244 (same); Motes vy. United States, 178 U.S. 458, 471-474

(1900) (testimony at “preliminary trial”); Pointer v. Teras, 380

U.S. at 406-408 (preliminary hearing testimony); Dowglas v. Ala-

bama, 380 U.S. 415, 418-420 (1965) (co-defendant’s confession to

police); Brookhart v. Janis, 384 U.S. 1, 4 (1966) (same): Barber

Vv. Page, 390 U.S. 719, 722-725 (1968) (preliminary hearing testi-

mony); Berger v. California, 393 U.S. 314 (1969) (same): Bruton

V. United States, 391 U.S. 123, 126-128 & n.83 (1968) (co-defendant’s

confession); Roberts v. Russell, 392 U.S. 2983 (1968) (same): Cali-

fornia V. Green, supra (preliminary hearing testimony and state-

ment to police officer); Mancusi v. Stubbs, 408 U.S. 204, 213-216

(1972) (prior testimony). See also Robertson v. Baldwin, 165 U.S.

275, 282 (1897); Kirby v. United States, 174 U.S. 47, 54-61 (1899):

Dowdell Vv. United States, 221 U.S. 325, 329-330 (1911): Diaz v.

United States, 223 U.S. 442, 449-452 (1912): Snyder v. Massachu-

setts, 291 U.S. 97, 107 (1934); Bridges v. Wiron, 326 U.S. 135, 153-

154 (1945).

17 Dutton Vv. Evans, 400 U.S. 74 (1970); Delaney v. United States,

263 U.S. 586, 590 (1924). In Dutton, no majority of the Court

agreed on a common approach to the Confrontation Clause. Four

Justices joined a plurality opinion that emphasized their intention

not to constitutionalize all aspects of the hearsay rule, 400 U.S, at

86 & n.17, and rested on narrow factual grounds, id. at 87-90. Jus-

tice Harlan provided the fifth vote; as noted, he concluded that the

Confrontation Clause did not regulate the scope of exceptions to the

hearsay rule. Jd. at 93-100. In Delaney, the Court rejected out of

hand the argument that the admission of co-conspirator statements

violated the Confrontation Clause, holding that the admissibility of

such statements is “much in the discretion of the trial judge.” 262

U.S. at 590.

The view that the Confrontation Clause applies some

limitations on all hearsay gained its first support in this

Court from the “general approach” articulated in Ohio

V. Roberts, 448 U.S. at 65. The breadth of that approach,

however, was unnecessary to the decision of that case.

The hearsay at issue in Roberts, as in many of the

Court’s prior cases, was the preliminary hearing testi-

mony of a witness who could not be located at the time of

trial. This Court heid that the testimony was admissible

because it had been “tested with the equivalent of sig-

nificant cross-examination” and the witness was unavail-

able to testify at trial. 448 U.S. at 70, 77. Nothing in

the facts of the case called for the formulation of a test

going beyond the kinds of out-of-court statements to

which the Confrontation Clause had already been rou-

tinely applied; indeed, the principles articulated in Mat-

tox Vv. United States, supra, and Motes v. United States,

supra. were sufficient to decide the case.

In Jnadi, the Court made clear that Roberts did not

dictate application of a “rule of necessity” to out-of-court

statements other than prior testimony. Nevertheless, the

second aspect of the “general approach” described in

Roberts, which mandates an inquiry into the reliability

of out-of-court statements, has been applied in subsequent

cases. Thus, the Court has held that the admission of an

out-cf-court statement is prohibited by the Confrontation

Clause unless the statement “falls within a firmly rooted

hearsay exception,” Bourjaily v. United States, 483 U.S.

171, 183 (1987), or possesses “particularized guarantees

of trustworthiness,” /daho v. Wright, 110 S. Ct. at 3146-

3147.

It is difficult to attribute that kind of inquiry to the

Framers of the Bill of Rights. In particular, it is un-

likely that the Framers recognized a distinction between

those hearsay exceptions that might be adopted and ulti-

mately regarded as ‘‘firmly rooted” and those that would

not acquire that status. And it seems equally unlikely

that the Framers intended the right of confrontation to

be transformed into a general test of the reliability of

out-of-court statements. Yet the Court has been driven

to that construction of the Confrontation Clause because,

starting from the premise that all ovt-of-eourt declarants

are “witnesses against” the defendant, the plain lan-

cuage of the Confrontation Clause would appear to pro-

hibit the admission of any out-of-court statements

ugainst a defendant in a criminal case, a position with

no historical support whatsoever."*

Where the consequences of following a premise to its

‘ogiea! conclusion are themselves illogical, it is the prem-

ise that may be at fault. In this case, the premise—that

the term “witnesses against” refers to all hearsay

declarants—has crent into the law without close analysis,

and it is contrary to the natural meaning of the term

“witness,” the history of the concept of confrontation as

incornorated into the Constitution, and the absence for

nearly 200 years of constitutional scrutiny of the evolu-

tion of the hearsay rule. The broad conception of the

term “‘witnesses against” that underlies Roberts and some

of the Court’s subsequent Confrontation Clause cases

should thus be re-examined. S.G. should not be consid-

ered a “witness against” petitioner within the meaning

of the Confrontation Clause, and her out-of-court state-

18 The only case in which the “general approach” from Roberts

has been employed to exclude evidence other than prior testimony

or testimonial statements to law enforcement authorities is Idaho

Vv. Wright, supra. In Wright, however, the Court did not address

the question whether the child declarant was acting as a witness

when she made statements to a pediatrician that were excluded

under the Confrontation Clause. Moreover, the questioning in that

case oecurred after the declarant had been taken into custody by

police, and the state court’s characterization of the questioning sug-

gests that it was designed to develop evidence for a criminal case.

See 110 S. Ct. at 3148. The questioning therefore may be regarded

as functionally equivalent to other forms of official interrogation

that result in statements by a “witness.” The decision in Wright

is therefore not necessarily inconsistent with our position.

ments should not be excluded on Confrontation Clause

grounds.

CONCLUSION

The judgment of the Appellate Court of Illinois, Fourth

Judicial District, should be affirmed.

Respectfully submitted.