# Amicus Curiae Brief — White v. Illinois

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0134%3A09

## Record

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

## Text

| [supreme Court, a |
7 FIitLkEbD
JUN
| 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0134%3A09. Public record. Not legal advice.