Amicus Curiae Brief — White v. Illinois

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7 FIitLkEbD

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| OFFICE J& CLERK

In The

Supreme Court of the United States

October Term, 1991

RANDALL D. WHITE,

Petitioner,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Writ of Certiorari To The Appellate Court Of Illinois,

Fourth Judicial District

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONER

Natman Schaye

National Association of

Criminal Defense Lawyers

Post Office Box 608

Tucson, Anzona 85702

(602) 743-9940

Counsel of Record

———e6V7”_———"- —— ooo

TABLE OF CONTENTS

STATEMENT OF INTEREST

OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT “ee a oe

ARGUMENT -- THE ELIMINATION OF THE

UNAVAILABILITY REQUIREMENT FOR

CHILDREN WOULD SEVERELY DAMAGE THE

CONFRONTATION CLAUSE AND THE SEARCH

FOR TRUTH IN CRIMINAL TRIALS °

I. The lower court clearly erred

II. The unavailability requirement

10

11

16

16

18

19

CONCLUSION

iii

TABLE OF AUTHORITIES

Cases Page

Barber v. Page, 390 U.S. 719 (1968) . 12

, 497 U.S. , 110 S.Ct.

DE. . 5 6 « «6 « 35 6, 10, -23

Kentucky v. Stincer, 482 U.S. 730

TTEUET. <5 5 6 « « « « 16, 1?

Mancusi v. Stubbs, 408 U.S. 204 (1972) 12

Maryland v. Craig, 497 U.S. ___, 110 S.Ct.

3157 (1990) ... - « 5S, 15, 17, 18

Ohio v. Roberts, 448 U.S. 56 (1980)12, 13

1 | 487 U.S. 815

(1988) ... . : oe ae

United States v. Candoli, 870 F.2d 496

>

United States v. Cecil, 836 F.2d 1431

(4th Cir.), cert. denied, 487 U.S. 1205

(1988) a se 6 & © © «© ¢ © © 27

United States v. Inadi, 475 U.S. 387

nie es 6 6 -e © © © «© « e « 12, 16

Constitution and Rules Page

U.S. Const. Amend. VI... .. . .passim

Pea. R. Bvid. 803(2) ...-+-+-e« e+e 28

Pees Me BEG. BO3(4) . ~. - « © oe « @ 24

iv

Other authorities Page

B. Mosteller, "Child Sexual Abuse and

Statements for the Purpose of Medical

Diagnosis or Treatment", 67 N.C.L. Rev.

257 (1989) tse ee @ ee 6 6 ee we Se SC 25

G.S. Goodman, "The Child Witness: An

Introduction", 40 Journal of Social Issues

1 (1984) c-e @ © @ "oe ee £6) 8 2 os 21

J. Weinstein & M. Berger, Weinstein’s

Evidence (1990) ...+«-e«-e«-e«e«-+«-+-+ 24

L. Berliner and M.K. Barbieri, "The

Testimony of the Child Victim of Sexual

Assault", 40 Journal of Social Issues 125

(1984) . . . 7 _ . . . * * * . . * . 21

L. Kohlberg, "The Development of

Children’s Orientations Toward A Moral

Order, 6 Vita Humana 11 (1963) ... 22

L.G. Arthur, Child Sexual Abuse: Improving

the System’s Response (1989) .... 21

W. Blackstone, Commentaries on the Laws of

England (1769) ... ++ « «© « «© « « 22

Woodbridge, "Physical and Mental Infancy

in the Criminal Law", 87 U. Pa. L.R. 426

(1939) : + oe ee ee Se eS ee ee 22

STATEMENT OF INTEREST

OF THE AMICUS CURIAE

The National Association of Criminal

Defense Lawyers (NACDL) is a District of

Columbia non-profit corporation. NACDL is

made up of more than 5,000 lawyers and

25,000 affiliate members. NACDL was

formed more than thirty years ago to

advance the study of criminal law, as well

as to promote the expertise and integrity

of criminal defense attorneys.

One of NACDL’s most important

objectives is to preserve’ individual

rights and liberties established by the

Constitution of the United States. NACDL

seeks to ensure that all persons accused

of crimes receive a fair trial, and that

the wrongly accused are exonerated. There

is no right more important to these

objectives than the Sixth Amendment right

to confront witnesses.

2

The Amicus Curaie Committee of NACDL

has concluded that this case could have a

great impact on the ability of jurors to

accurately determine guilt or innocence in

criminal trials. Due to the importance of

this case, NACDL offers its assistance to

this Court.

3

SUMMARY OF ARGUMENT

This Court has consistently, and

wisely, interpreted the Confrontation

Clause to prohibit prosecutors’ from

substituting hearsay for the testimony of

an available witness. While this rule is

not without exception, it provides the

presumption to be followed in considering

the admissibility of hearsay at trial.

Idaho v. Wright, 497 U.S. __, 110 S.Ct.

3139, 3146-3147 (1990)(citing cases). The

Illinois appellate court’s conclusion to

the contrary iS unsupported by the

decisions of this Court.

The adoption of a "juvenile exception"

to the unavailability requirement of the

Sixth Amendment would create confusion in

the trial courts and therefore disparate

treatmen: of defendants. Further, the

4

likelihood of conviction of innocent

people would be substantially increased.

The Court has painstakingly analyzed

the application of the unavailability

requirement to cases involving established

exceptions to the hearsay rule. The

abolition of the unavailability

requirement for juveniles is

unprecedented; it would create confusion

in the courts resulting in the disparate

treatment of Similarly situated

defendants. The scope and application of

this exception to the general rule would

be undefined as to the age or maturity of

the children to whom it applied, as well

as the nature of the offenses which would

be included. This Court must not open

this Pandora’s box of litigation.

Further, the elimination of the

unavailability requirement on a broad

5

basis would have little benefit, while

Significantly damaging the certainty and

accuracy of the fact finding process in

the nation’s trial courts.

The only benefit that could be derived

from the elimination of the unavailability

requirement would be to spare children who

truly are the victims of crime from the

anxiety of testifying in court. While

testifying is unpleasant for any victin,

child or adult, the experience frequently

causes no undue distress for children. In

cases in which a child would be

traumatized by testifying before a

defendant, this Court has already approved

procedures that adequately protect the

child, while preserving the integrity of

the fact finding process. Maryland v.

Craig, 497 U.S. __, 110 S.Ct. 3157

(1990).

6

The damage to the search for truth

caused by eliminating the unavailability

requirement for juveniles would be

profound and extensive. Due to the

limited cognitive and perceptual abilities

of children, as well as their

susceptibility to suggestions from adults,

the likelihood of inaccurate claims of

abuse at the hands of a particular

individual are greater for children than

adults. The ability to confront and

cross-examine therefore increases as the

age of the accuser decreases.

Further, should the unavailability

requirement be eliminated, the only Sixth

Amendment standard for determining the

admissibility of out-of-court statements

by children would be the test of

reliability. In Idaho v. Wright, the

Court indicated, in dicta, that statements

7

by child declarants which fall within

established exceptions to the hearsay rule

should be deemed "reliable" for purposes

of the Confrontation Clause.

The exceptions to the hearsay rule are

based on logical conclusions that the

circumstances surrounding the making of

such statements render misrepresentation

unlikely. The logical bases for these

exceptions often apply weakly, if at all,

to children. While an adult is unlikely

to mislead a treating physician, a small

child is unlikely to appreciate the

significance of the doctor-patient

relationship. The spontaneous utterance

of a child is far more likely to be the

result of fantasy than is the case with an

adult.

The elimination of the unavailability

requirement would provide a means and an

8

incentive for prosecutors to conduct

trials based on hearsay. Children who are

alleged victims of abuse will be sent for

treatment, conveniently resulting in

admissible evidence through expert

witnesses. Innocent defendants’ will

become the victims of erroneous

accusations.

The dictates of the Confrontation

Clause require that the decision of the

Illinois appellate court be reversed. The

Court must hold that the prosecution’s

duty to either produce the declarant or

make a showing of unavailability is not a

product of the age or maturity of the

alleged victim, or the nature of the

charged offense.

9

ARGUMENT

THE ELIMINATION OF THE UNAVAILABILITY

REQUIREMENT FOR CHILDREN WOULD SEVERELY

DAMAGE THE CONFRONTATION CLAUSE AND THE

SEARCH FOR TRUTH IN CRIMINAL TRIALS

I. The lower court clearly erred in

analysis

In interpreting the Confrontation

Clause, this Court has never departed from

the presumption that prosecutors must

produce available witnesses whose

statements will be admitted in support of

conviction. In its most recent decision

addressing this issue, the Court again

stated that, "{[I]n the usual case ..., the

prosecution must either produce or

demonstrate the unavailability of, the

declarant whose statement it wishes to use

10

against the defendant." Idaho v. Wright,

497 U.S. , 110 S.Ct. 3139, 3146 (1990),

quoting Ohio v. Roberts, 448 U.S. 56, 65

(1980). The Court also again made it

clear that the Confrontation Clause will

prohibit the prosecution from introducing

hearsay which may be admissible under the

rules of evidence. Id. at 3146.

The Illinois appellate court, which

issued its opinion prior to the decision

in Wright, was therefore clearly incorrect

in its conclusion that witness

unavailability is irrelevant to’ the

Confrontation Clause. (J.A. 42). No

further discussion on this point is

necessary.

II. The unavailability requirement must

apply equally to juveniles and adults

The Court in Wright declined to address

the question of whether an exception to

11

the unavailability requirement may exist

for hearsay statements made by children

alleged to be victims of abuse. 110 S.Ct.

at 3147. To design such an exception

would be contrary to the Court’s prior

Confrontation Clause decisions, would

create confusion and disparate treatment

of defendants in trial courts, and would

significantly increase the likelihood of

innocent defendants being wrongfully

convicted.

A. Confusion in the courts/disparate

treatment of defendants

This Court has wisely refused any

Suggestion to create broad, untested

exceptions to the unavailability

requirement. The Court has_ instead

carefully analyzed the application of this

requirement to specific, tested and

established exceptions to the hearsay

12

rule. In three decisions spanning a

period of twelve years, the Court

concluded that prosecutors may not

substitute prior testimony for live

testimony from an available witness. Ohio

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

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

Barber v. Page, 390 U.S. 719 (1968).

Similarly, in United States v. Inadi,

475 U.S. 387 (1986), the Court conducted a

painstaking analysis of the applicability

of the unavailability requirement’ to

another well established hearsay

exception, statements by co-conspirators.

The Court reviewed the benefits and

burdens to the parties that would result

from requiring the prosecution to call co-

conspirators to the witness stand. Id. at

394-400. Due to the peculiar nature of

co-conspirators’ statements, the Court

13

found the general rule of unavailability

to be inapplicable. Id, at 399-400.

The Court must continue this carefully

reasoned approach to defining the

relationship between the Confrontation

Clause and the hearsay rule, and, as in

Qhio v. Roberts, “reject the invitation to

overrule a near century of jurisprudence."

448 U.S. at 67, n.9. Should the Court

attempt to fashion an unavailability

exception for hearsay from children, years

of confusion and disparate treatment of

offenders will occur in the trial courts

while attempts are made to define this

unprecedented exception not only to the

Sixth Amendment, but to the laws of the

United States and England.

Courts would be forced to define the

scope and limits of this exception to the

unavailability requirement in an ad hoc

14

manner. Where would the exception begin

and end? Would it apply only to cases in

which a child was the alleged victim? If

so, what offenses would fall within the

scope of the exception? Would it be used

in cases when a child witnesses a heinous

crime against another? If the exception

applied only to victims, would the result

not be to allow the use of hearsay when

the juvenile’s testimony is crucial to the

prosecution’s case, while requiring

confrontation when the young witness gives

evidence of limited significance?

Would this new exception apply to all

minors under a given age? Would it not be

better to base the decision on the actual

maturity of the individual child? a

Kentucky v. Stincer, 482 U.S. 730, 741,

n.11 (1987), quoting Wheeler vy. United

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

15

the trial court be required to hear

testimony to determine whether the child

was sufficiently sophisticated or vigorous

to withstand the stress of giving

testimony? If so, would it not be best to

employ the balance struck by the Court in

Maryland v. Craig, allowing witnesses --

specifically found to face undue trauma

should they appear in open court in a

particular case -- to testify outside of

the defendant’s presence? 697 U.S.

110 S.Ct. 3157, 3169 (1990).

These questions are not raised, and

therefore cannot be answered, in the

present case. Thompson v. Oklahoma, 487

U.S. 815, 838 (1988). Years, if not

decades, of appellate decisions would be

required to define and limit a "juvenile

exception" to the unavailability

requirement. Should the Court create such

16

an exception, it would head off on a path

never before seen or contemplated, a path

which would cut through the heart of the

Sixth Amendment. Certainty and fairness

would be replaced by puzzlement and

disparity. The Court must avoid this

departure from the well defined path

created by well reasoned precedent.

B. Benefit versus burden analysis

Should any doubt remain as to the

continuing validity of the unavailability

requirement as applied to children, that

doubt is cast aside by a balancing of

benefits and detriments such as _ was

conducted in United States v. Inadi, 475

U.S. at 394-400.

1. Benefit - Protection of

, ‘]

The only benefit that would come from

allowing prosecutors to substitute hearsay

17

for live testimony would be the protection

of minor witnesses from the anxiety of

appearing in court. While the protection

of children is a most legitimate concern,

it cannot support such a broad

restructuring of the Confrontation

Clause.

First, there is no persuasive evidence

that children find testifying any more

disturbing than do adults in any given

case. Kentucky v. Stincer, 482 U.S. at

746, n.20. If such compelling evidence

existed, the Court, in Maryland v. Craig,

would have had no reason to require that a

witness be allowed to testify on a one-

way video system only upon the

presentation of compelling evidence that

the specific witness would be traumatized

by appearing before the accused in open

court. 110 S.Ct. at 3169.

18

Secondly, the Court, in Maryland v.

Craig, has already approved of a procedure

which protects juveniles who would be

Significantly traumatized by testifying in

court in the presence of the accused. Id.

After the trial court makes such a finding

with regard to a particular child, that

witness is permitted to testify outside of

a courtroom without seeing the accused.

id. Any remaining benefit that would

arise from generally excusing minors from

testifying is far outweighed by the damage

that such a rule would cause.

~~ - Confusi di x

Should the Court created a "juvenile

exception" to the Confrontation Clause, it

will, as set forth at pages 13-15, above,

cause years of confusion and attendant

disparate treatment of persons accused of

crimes involving children.

A "juvenile exception" to the

unavailability requirement would seriously

damage trial courts’ ability to serve the

search for truth and the exoneration of

the falsely accused. This exception would

greatly increase the likelihood that the

judicial system would accomplish that

which it is designed to prevent -- the

conviction and punishment of the falsely

accused.

The potential for wrongful allegations

are greater when the accuser is a child as

opposed to an adult. While both may have

discernible motives, such as hatred or

jealousy, for making spurious claims

against another, children are also subject

to making such claims as a result of their

20

immature mental processes or the influence

of incompetent or malevolent adults.’

Judge Lindsay Arthur, Senior Judicial

Scholar for the National Council of

Juvenile and Family Court Judges, noted

some of the risks which arise when a young

child is the alleged victim and key

witness in an abuse prosecution:

The first interview with the

child is crucial. The credibility

' Of the child must be determined. .

-If the interviewer comes on too

strong, the child may suffer...

trauma. If the interviewer is

hostile, the child may close up. If

the interviewer is suggesting or

demanding, the child may parrot what

the interviewer wants, then and

afterwards. If the interviewer is

‘The author wishes to thank fellow

NACDL member Gregory D. Smith, Esq., for

his assistance in preparing this portion

of the brief. Mr. Smith is the national

chair of the American Bar

Association/Young Lawyers Division

Juvenile Justice Committee and also

teaches criminal law and juvenile law at

Austin Peay University in Clarksville,

Tennessee.

21

too sympathetic, the child may

exaggerate to get more sympathy.

Children, more than adults,

react to their questioners. They

may be more concerned with what the

questioner wants than they are with

the actual facts. They may fear the

questioner and not want to cross

him. They may feel the questioner

knows more of the facts than they

do, so they adapt their version to

his. They may respect the

questioner and want to help hin.

Children, more than adults, are

suggestible. Ideas can be planted

in their heads, it may render all of

their subsequent testimony

inadmissible. If imaccuracies can

be planted, innocent people may be

hurt.

L.G. Arthur, Child Sexual Abuse: Improving

the System’s Response 15 (1989). See also

G.S. Goodman, "The Child Witness: An

Introduction", 40 Journal of Social Issues

1 (1984); L. Berliner and M.K. Barbieri,

"The Testimony of the Child Victim of

Sexual Assault", 40 Journal of Social

Issues 125 (1984).

Studies have demonstrated that very

young children are limited not only in

22

their abilities to accurately relate past

events, but also in understanding moral

concepts such as being truthful while

under oath. See, e.g., L. Kohlberg, "The

Development of Children’s Orientations

Toward A Moral Order, 6 Vita Humana 11, 30

(1963); Woodbridge, "Physical and Mental

Infancy in the Criminal Law", 87 U. Pa.

L.R. 426, 429 (1939).

The limitations on children’s abilities

to discern right from wrong have long been

recognized in the law. Blackstone

acknowledged an irrebuttable presumption

that children under the age of seven years

are doli incapax (incapable of criminal

intent) because of their limited ability

to separate the permissible from the

impermissible. Ww. Blackstone, 4

Commentaries on the Laws of England 21-24

(1769). This Court continues to recognize

23

that children cannot be expected to meet

the same moral and ethical standards as

adults. Thompson v. Oklahoma, 487 U.S. at

825, n.23.

Dangers of wrongful conviction are

therefore increased when the _ alleged

victim and key witness is a child. It is

particularly important in such cases that

the alleged victim appear before the jury

where falsehoods may be uncovered through

cross-examination.

b. Hearsay by juveniles

In Idaho v. Wright, 110 S.ct. at 3149,

the Court indicated, in dicta, that

statements falling within firmly rooted

exceptions to the hearsay -rule will be

deemed reliable for purposes of the Sixth

Amendment regardless of whether’ the

declarant is. a child or an adult. Should

the unavailability requirement be

24

eliminated for juveniles, any such hearsay

statements would presumably be deemed

admissible without further inquiry.

The same cognitive limitations which

make children’s allegations suspect apply

to statements which fall within long

recognized exceptions to the hearsay rule.

The rationale supporting such exceptions

is often lacking when the declarant is a

child. For example, evidence is admitted

under the medical diagnosis exception’

based upon the reasonable premise that an

individual will not mislead a physician

charged with the victim’s health and well

being. 4 J. Weinstein & M. Berger,

Weinstein’s Evidence 4803(4)[01] (1990).

While this premise is quite reasonable

when applied to adults, it is highly

unlikely that a child appreciates the

*Fed. R. Evid. 803(4).

25

importance of the physician-patient

relationship. B. Mosteller, "Child Sexual

Abuse and Statements for the Purpose of

Medical Diagnosis or Treatment", 67 N.C.L.

Rev. 257, 266 (1989).

Similarly, excited utterances* are

deemed admissible because adults. are

expected to respond to similar startling

events in comparable ways. Children find

the world to be a far more astonishing

place than do adults. Children are

significantly more subject to fits of

fantasy. In short, they may react to an

exciting event which may be exciting, or

may exist, only in the child’s eyes.

It therefore again stands to reason

that confrontation and cross-examination

are more important when a witness is a

minor. The unavailability requirement of

*Fed. R. Evid. 803(2).

26

the Confrontation Clause must apply, at

the very least, with equal force to

juveniles.

c. Trial by hearsay

Should the unavailability requirement

be eliminated for hearsay from juveniles,

prosecutors would be provided with a tool

for conducting trials = hearsay.

Undoubtedly, public and political pressure

would encourage the use of that tool in

virtually every case.

Children who are the subject of alleged

abuse are treated by medical

professionals. It would require little,

if any, prodding by a zealous prosecutor

or police officer to create evidence

admissible under the medical diagnosis

exception to the hearsay rule. The

allegations could then be presented to the

jury not by a child who may not convince,

27

but by a qualified medical expert. It

requires a small step indeed for jurors to

infer that this expert would not repeat a

child’s claims without being confident of

their veracity. This circumstance comes

far too close to allowing expert testimony

on the credibility of a crucial witness.

See, e.g., United States v. Candoli, 870

F.2d 496, 506 (9th Cir. 1989); United

States v. Ceci], 8336 F.2d i431, 1442 (4th

Cir.), cert. denied, 487 U.S. 1205

(1988)(citing cases). Convictions of

innocent people are certain to follow.

CONCLUSION

Our society abhors crimes against

children, and properly so. This truism

requires that special care be taken to see

that the innocent are not falsely

convicted of such crimes.

28

Confrontation and cross-examination may

not always be sufficient to overcome false

accusations by a confused child who, with

or without the influence of an incompetent

examiner or malevolent parent, has placed

the weight of the government against one

who has done no wrong. Confrontation and

cross-examination remain, however, the

finest instruments for the prevention of a

wrongful conviction. They must not be

removed from the Constitution simply

because an alleged victim happens to be of

tender years.

It is therefore respectfully submitted

that this Court must reverse the judgement

of the lower court and hold that the

prosecutor’s duty under the Confrontation

Clause to either produce the declarant or

make a showing of unavailability does not

vary with the age or maturity of the

29

declarant, or with the nature of the

charged offense.‘

‘The author wishes to thank Robert

Hoffman, an NACDL member and third year

student at the University of Arizona

College of Law, for his’ valuable

assistance in the preparation of this

brief.