Amicus Curiae Brief — White v. Illinois

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TABLE OF CONTENTS

TABLE OF AUTHORITIES sees

INTEREST OF AMICUS CURIAE .....

SUMMARY OF ARGUMENT ...........

ARGUMENT

THE CONFRONTATION CLAUSE

IS NOT VIOLATED AND THERE

NEED NOT BE A SHOWING OF

UNAVAILABILITY WHERE THE

STATEMENTS OF THE FOUR-

YEAR OLD VICTIM OF SEXUAL

ABUSE FELL WITHIN "FIRMLY

ROOTED" EXCEPTIONS TO THE

HEARSAY RULE FOR EXCITED

UTTERANCES OR SPONTANEOUS

DECLARATIONS, AND FOR

MEDICAL TREATMENT............

CONCLUSION —_—s nncccccccccccccccccees

TABLE OF AUTHORITIES

Page

Cases:

Bourjaily v. United States,

483 U.S. 171 (1987) 10, 11

13, 18

Coy v. lowa,

487 U.S. 1012 (1988) .... 13, 22

Dutton v. Evans,

400 U.S. 74 (170) _..... 25

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

110 S.Ct. 3139, 111 L.Ed.2d

DE -“ceeeceeves 6, 7, 1l,

12, 15, 24,

25, 26, 27

Insurance Co. v. Mosley,

75 U.S. (8 Wall.) 397

ee ee 14, 15

Jones v. United States, 231

F.2d 244 (D.C. Cir.

Te pececce 19

Kentucky v. Stincer,

482 U.S. 730 (1987) 10

Martinez v. Sullivan, 881 F.2d

921 (10th Cir. 1989), cert. denied

sub nom. Martinez v. Tansy,

__ Bue. _, 490 S.Ct.

ke cee e cee 14

Maryland v. Craig, 497 U.S. _.,

110 S.Ct. 3157, 111 L.Ed.2d

EE eae ns 6, 9,

15, 22

Mattox v. United States,

156 U.S. 237 (1895) _.........

Michigan v. Lucas, U.S. ,

111 S.Ct. 1743 (1991) ......

Morgan v. Foretich, 846 F.2d

941 (4th Cir. 1988), reh. and

reh. in banc denied “as

Myatt v. Hannigan, 910 F.2d 680

¢). Ge Se re

Ohio v. Roberts,

448 U.S. 56 (1980) __..........

People v. Brown 70 NY2d

fs eerere Terre ree

People v. Randall White, 198

Ill.App.3d 641, 555 N.E.2d 1241

(4th Dist.), pet. for leave to

app. denied, — =e

N.E.2d 705 (1990), cert. granted,

Cf. san. See

ee... "i staduan ered aa

Pointer v. Texas,

380 U.S. 400 (1965) _—...........

8, 9, 12

7, 9, 10,

11, 12, 16,

17, 24

Puleio v. Vose, 830 F.2d 1197 (lst

Cir. 1987), cert. denied, 485

FS fl eer

State v. Ochoa, 576 F.2d 854

(Fla. 3rd Dist. Ct. App.

Pi = 8 eee dauuteneeeweews

United States v. Inadi,

475 U.S. 387 (1986) _...........

11, 17

United States v. Iron Shell, 633

F.2d 77 (8th Cir. 1980), cert.

denied, 450 U.S. 1001 (1981) ....

United States v. Nick, 604

F.2d 1199 (9th Cir. 1979) ......

Constitutional Provisions:

U.S. Const. Amend. VI

U.S. Const. Amend. XIV ...

Federal Statutes and Rules:

Fed. R. Evid. 803(2)

Fed. R. Evid. 803(4)

State Statutes:

Ill. Rev. Stat., ch. 38,

§115-10 (1987) .......

Ill. Rev. Stat., ch. 38,

S125-13 (IGT) sw woe es

N.Y. Crim. Proc. Law,

a re re

N.Y. Family Court

ie SE 0b oa cs 559 ekkeas

N.Y. Family Court

eG Me | Wau bakNe esx

N.Y. Family Court

ee OU, eee

N.Y. Family Court

Act, §1011 et seq.

26, 27

N.Y. Family Court

BGG, FR keeccccsececes 5

N.Y. Penal Law,

Article 190 ssn cccccces 3, 3

Other Authorities:

Annotation, Admissibility of Testimony

Regarding Spontaneous Declarations

Made by One Incompetent to Testify

at Trial, 15 A.L.R. 4th

1043 (1982) ......... 19

DeStefano, Youth Sex-Crime

Rate on Rise, N.Y.

Newsday, April 7,

Pn © “eeeaees 660 4

(3rd Ed., 1984) ....... 26

Mosteller, Child Sexual

Abuse and Statements for

the Purposes of Diagnosis or

Treatment, 67 N.C.L. Rev.

el, eee 25

J. Weinstein & M. Berger,

Weinstein's Evidence

Se ae | eheewee cee 20, 21, 26

6 Wigmore on Evidence,

§1749 (Chadbourne Rev.,

OO Fe a 13, 20

Yun, J., A Comprehensive

Approach to Child Hearsay

Statements in Sex Abuse

Cases, 83 Colum. L.

Ste ME. aucedsdeesnes< 23

No. 90-6113

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

RANDALL D. WHITE,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, FOURTH

JUDICIAL DISTRICT

BRIEF OF AMICUS CURIAE

THE CITY OF NEW YORK

INTEREST OF AMICUS CURIAE

The Corporation Counsel of the City of

New York generally acts as the presentment

agency of juvenile delinquency petitions in

Family Court in the City of New York. See

N.Y. Family Court Act, §§ 254; 301.2.

The Corporation Counsel prosecutes

juveniles between the ages of 7 to 13-years

old in Family Court for acts which, if

committed by an adult, constitute the crimes

of Rape in the first degree, Sodomy in the

first degree, and Aggravated Sexual Abuse

in the first degree. See N.Y. Penal Law,

§§ 130.35, 130.50, 130.70.

The Corporation

Counsel also prosecutes youths between the

ages of 7 to 15-years old in Family Court for

acts constituting the crimes of Aggravated

Sexual Abuse in the second degree, Rape in

the third degree, Sodomy in the_ third

degree, and Sexual Abuse in the first

through third degrees, id., §§ 130.67,

lwith respect to youths between the ages of

14 to 15-years old, they may be prosecuted

as designated offenders in Family Court or

as adult juvenile offenders in Supreme

Court, by the Office of the District

Attorney. See N.Y. Family Court Act,

§§ 254-a, 301.2(8).

130.25, 130.40, 130.65, 130.60, 130.55, and

the crimes of Attempted Rape, Attempted

Sodomy, Attempted Sexual Abuse, = and

Sexual Misconduct. Id., §§ 110.00, 130.35,

130.25, 130.50, 130.40, 130.20. As_ in

criminal cases, the burden of proof required

in all juvenile delinquency fact-finding

hearings is “proof beyond a_ reasonable

doubt." N.Y. Family Court Act, §342.2(2).

In 1989, the Family Court Division of

the Office of Corporation Counsel established

a special Sex Crimes Prosecution Unit to

handle the growing number’ of cases

involving arrests of juveniles for rape and

other serious sex offenses committed by

juveniles, often in the home, the

neighborhood, or in the schools. According

to State statistics, sex crime arrests for

youths age 17 and younger, totaled 634 in

1988, up 19 percent from 531 arrests in

1986, and the arrests of youngsters for

forcible rape rose to 266 in 1988, a 27

percent increase over 1986. Indeed, in

1988, children age 12 years old and younger

were arrested more often than 13 and

14-year olds for sex crimes, _ including

forcible rape. See DeStefano, Youth

Sex-Crime Rate on Rise, N.Y. Newsday,

April 7, 1989, p. 7.

As a result, and due to the populous

jurisdiction of the five boroughs of the City

of New York, the Corporation Counsel is one

of the largest prosecutors of sex crimes in

the country.

The high cost to society to care for

victims and perpetrators of sexual abuse and

crimes, which often continues ‘sto, if not

throughout, their adult lives, cannot be

disputed. By aggressively trying to

intervene when an individual is young, the

Corporation Counsel and the City of New

York hope to _ rehabilitate youthful sex

offenders and thereby to avoid repetition of

such heinous acts and crimes.

Accordingly, the City of New York and

its Corporation Counsel have a great interest

in the Sixth Amendment standards to be

applied in such cases. This is particularly

true since we are often dealing with the

youngest of the victims, as weil as_ the

youngest of the perpetrators.”

SUMMARY OF ARGUMENT

In the instant case, petitioner's Sixth

Amendment right to confrontation was not

2 As a separate matter, in_ civil child

protective proceedings, the New York City

Human Resources Administration, acting as a

child protective agency through designated

Special Assistant Corporation Counsels, may

file Family Court Act, Article X, child

protective petitions as to child abuse and

neglect, including sexual and physical, by

parents or lawful guardians. See N.Y.

Family Court Act, §1011 et seq. The

standard of proof in these civil Article 10

fact-finding hearings is by a preponderance

of the evidence. Id., §1046(b)(i).

violated by the introduction at trial of the

hearsay statements of the four-year old child

victim, where such statements fell within the

well-established _— excited utterance/

spontaneous declaration exception to the

hearsay rule. We submit that in Maryland

v. Craig, 497 U.S. __, 110 S.Ct. 3157, 111

L.Ed.2d 666 (1990) and Idaho v. Wright, 497

U.S. __, 110 S.Ct. 3139, 111 L.Ed.2d 638

(1990), which were decided after the Illinois

appellate decision in this case, this Court

did not change this important, "firmly

rooted” hearsay exception, with its

exceedingly strong indicia of _ reliability.

Under the circumstances of this case, where

the statements of the four-year old girl were

fresh and made in response to a startling

event, there need be no_ showing of

unavailability of the witness by the

prosecution, and certainly no per se rule

requiring a showing of necessity should be

established. For the same reasons, the

statements made by the four-year old girl to

the treating medical personnel were also

properly admitted into evidence, as

statements made to medical personnel for

purposes of treatment. ’

3In this brief, the City will only address the

question of whether the two "firmly rooted”

hearsay exceptions at issue herein require a

showing of unavailability, and not the factual

issues of what such a showing requires or

whether such a showing was established in

the instant case, i.e., that the prosecution

made a "good-faith effort to produce the

witness or demonstrate her unavailability”.

Ohio v. Roberts, 448 U.S. 56, 74 (1980).

See also Idaho v. Wright, supra, 497 U.S.

at _, lll L.Ed.2d at 652 (case did "not

raise the question of whether, before a

child's out-of-court statements are admitted,

the Confrontation Clause’ requires’ the

prosecution to show that a child witness is

unavailable at trial -- and, if so, what that

showing requires").

ARGUMENT

THE CONFRONTATION CLAUSE IS

NOT VIOLATED AND THERE NEED

NOT BE A SHOWING OF UNAVAIL-

ABILITY WHERE THE STATE-

MENTS OF THE FOUR-YEAR OLD

VICTIM OF SEXUAL ABUSE FELL

WITHIN "FIRMLY ROOTED"

EXCEPTIONS TO THE HEARSAY

RULE FOR EXCITED UTTERANCES

OR SPONTANEOUS DECLARA-

TIONS, AND FOR MEDICAL

TREATMENT .

The Sixth Amendment provides: "In all

criminal prosecutions, the accused _ shall

enjoy the right ... to be confronted with the

witnesses against him.” U.S. Const.

Amend. VI. It is applicable to the states

through the Fourteenth Amendment. Pointer

v. Texas, 380 U.S. 400, 403-406 (1965);

U.S. Const. Amend. XIV.

The right of confrontation embodied in

the Sixth Amendment’ has never been

regarded as absolute, but rather in certain

cases must give way to competing interests

in the criminal trial process. Mattox vy.

United States, 156 U.S. 237 (1895).

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

S.Ct. 3157, __, 111 L.Ed.2d 666, 679-680

(1990) (Confrontation Clause permits, where

necessary, the admission of certain hearsay

statements despite the defendant's inability

to confront the declarant at trial). Ct.

Michigan v. Lucas, ___ U.S. __, lll S.Ct.

1743, 1747-1748 (1991) (Sixth Aanendment

"not so rigid" so as to prohibit preclusion,

in certain circumstances, of probative

evidence based on failure to comply with

rape-shield statute or valid discovery rules).

For, if taken literally, the Confrontation

Clause would mean that no_ out-of-court

statements could be admitted against a

criminal defendant unless the defendant had

the opportunity to cross-examine’ the

declarant. Mattox v. United States, supra,

156 U.S. at 243. Ohio v. Roberts, 448 U.S.

56, 63 (1980).

Accordingly, this Court has "attempted

to harmonize the goal of the Confrontation

Clause, placing limits on the _ kinds of

evidence that may be received against a

defendant" and the "functional purpose" of

an opportunity for cross-examination, "with

a societal interest in accurate fact-finding.

which may require consideration of

out-of-court statements." Bourjaily v.

United States, 483 U.S. 171, 182 (1987).

See also Kentucky v. Stincer, 482 U.S. 730,

737 (1987).

In Ohio v. Roberts, 448 U.S. 56

(1980), with respect to admission of

out-of-court statements in the form of prior

testimony, this Court required the

prosecution, “as a general matter only," to

demonstrate both: (1) the unavailability of

the declarant, and (2) that the statement

"falls within a firmly’ rooted hearsay

exception." Id. at 65. The Court noted,

however, that "[a] demonstration of

unavailability" is not always required. Id.

at 65 n.7.

Thereafter, this Court held in United

States v. Inadi, 475 U.S. 387 (1986), that

unavailability is not required when the

hearsay statement is the _ out-of-court

declaration of a co-conspirator. Id. at

392-400. This Court stated that Ohio v.

Roberts did not "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."

Id. at 392-394. Rather, the Ohio v. Roberts

unavailability requirement was applicable only

when the hearsay statement is a weak

substitute for in-court testimony, not when

the statements have "independent evidentiary

significance" different from that provided by

in-court testimony. United States v. Inadi,

supra, 475 U.S. at 394. See also Bourjaily

v. United States, supra, 483 U.S. at

182-183.

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

S.Ct. 3139, 111 L.Ed.2d 638 (1990), this

Court used the Ohio v. Roberts "approach"

in evaluating the admission oof an

out-of-court statement of an_ unavailable

child, which was admitted under a statutory

"residual hearsay" exception. The Court

held that, under all the _ circumstances

therein, particularly the fact that it was not

a "firmly rooted" exception and _ lacked

"indicia of reliability," there was a

Confrontation Clause _ violation. Id., 111

L.Ed.2d at 652.

A. Excited Utterances/Spontaneous

Declarations.

In contrast, the instant case involves

excited utterances or spontaneous

declarations which, in addition to dying

declarations, see Mattox v. United States,

supra, are one of those categories of "firmly

rooted" hearsay evidence, Coy v. Iowa, 487

U.S. 1012, 1021, and 1033 n.6 (1988), citing

Bourjaily v. United States, supra, 483 U.S.

at 183, admissible without a _ case-specific

inquiry or showing of unavailability.

Due to their "superior trustworthiness"

and of their "... being better than is likely

to be obtained from the same person upon

the stand,” a necessity arises for allowing

the use of spontaneous declarations even

though they are hearsay statements. 6

Wigmore on Evidence, §1748, p. 199

(Chadbourne Rev., 1974). The special

justification for exempting such statements

from cross-examination stems from the

circumstances in which they were given,

i.e., “in the stress of nervous excitement

the reflective faculties may be stilled and the

utterance become the unreflecting and

sincere expression of one's actual

impressions and belief." Id. According to

Wigmore, "[i]t follows that the death,

absence, or other unavailability of the

declarant need never be shown under this

exception -- a proposition never disputed

(emphasis added)." Id., p. 199.

As far back as 1869, in Insurance Co.

v. Mosley, 75 U.S. (8 Wall.) 397, 408 (1869)

(hereafter Mosley), this Court stated:

The res gestae are the statements

of the cause made... almost

contemporaneously with its

occurrence, and those relating to

the consequences made while the

latter subsisted and were in

progress.... Rightly guarded in

its practical application, there is

no principle in the law of evidence

more safe in its results.... In the

ordinary concerns of life, no one

would doubt the truth of these

declarations, or hesitate to regard

them, uncontradicted, as

conclusive. Their probative force

would not be questioned. Unlike

much other evidence, equally

cogent for all the purposes of

moral conviction, they have the

sanction of law as well as_ of

reason.

See Martinez v. Sullivan, 881 F.2d 921, 928

(10th Cir. 1989), cert. denied sub nom.

Martinez v. Tansy, U.S. __, 110 S.Ct.

740 (1990) (citing Mosley with approval and

endorsing "excited utterance” exception as

firmly enough rooted in our jurisprudence so

that reliability can be inferred within the

rationale of Roberts); Puleio v. Vose, 830

F.2d 1197, 1206 (ist Cir. 1987), cert.

denied, 485 U.S. 900 (1988) (citing Mosley

and "long and_ storied" English common

lineage and holding that a special evidentiary

treatment accorded to spontaneous

exclamations is... "steeped in our

jurisprudence"); People v. Brown, 70 NY2d

513, 517 (1987) (citing Mosley).

| More recently, this Court explained in

Idaho v. Wright, supra, that "[t]he basis

for the "excited utterance" exception ... is

that such’ statements are given under

circumstances that eliminate the possibility of

fabrication, coaching, or confabulation, and

therefore the circumstances surrounding the

making of the statement provide sufficient

assurance that the statement is trustworthy

and th ¢ cross- examination would be

superfluous.” Id., 497 U.S. at __, 110

S.Ct. at __, 111 L.Ed.2d at 655 (citations

omitted).

Indeed, even though some members of

this Court have expressed the view that the

Confrontation Clause requires "face-to-face"

confrontation when a child witness actually

testifies at trial, Maryland v. Craig, 497

U.S. at __, 110 S.Ct. at __, 111 L.Ed.2d

at 689 (dissenting opinion by Scalia, J.),

there has been universal recognition that

"there are, after all, many exceptions to the

Confrontation Clause's hearsay rule." Id.,

111 L.Ed.2d at 690. Also continually

endorsed is the principle that there are valid

exceptions to the Ohio vy. Roberts "general

requirement . of unavailability" of the

declarant, including that of statements by

co-conspirators, whose effect cannot’ be

replicated by live testimony because they

"derive [their] significance from the

circumstances" in which [they were made."

Id. at 691, quoting United States v. Inadi,

supra, 475 U.S. at 395.

In the instant case, petitioner conceded

that at least one type of the five sets of

out-of-court statements, i.e., those made to

the babysitter after the child screamed and

the babysitter went up to the bedroom and

saw petitioner, who was in the house without

permission, leaving the bedroom, met the

criteria for admission as _ spontaneous

declarations. People v. Randall White, 198

Ill.App.3d 641, 555 N.E.2d 1241 (4th Dist.),

pet. for leave to app. denied, __ Ill. __,

561 N.E.2d 705 (1990), cert. granted,

U.S. » Ill §.Ct. 1681 (1991). He

contends nonetheless that the prosecution

must either produce the child for

cross-examination or demonstrate the child's

unavailability under Ohio v. Roberts, supra

(see Pet. br., passim). This argument

should be rejected since, as demonstrated

above, the excited utterance/spontaneous

declaration exception is "steeped in our

jurisprudence." Bourjaily v. United States,

483 U.S. at 183. Even the Roberts decision

upon which petitioner relies so _ heavily,

notes that "[a] demonstration of

unavailability" is not always required. Id.,

448 U.S. at 65 n.7.

The admission of such statements under

this exception is crucial, especially in a case

such as this one where the four-year old

victim was likely incompetent to testify.

See, e.g., United States v. Nick, 604 F.2d

1199, 1202 (9th Cir. 1979) (three-year old

"could not have been subjected to cross-

examination even if he had been called as a

witness by reason of his tender years," yet

his statements were admissible in criminal

proceeding under the spontaneous declaration

exception); Jones v. United States, 231 F.2d

244 (D.C. Cir. 1956) (five-year old was

incompetent to testify as a witness but

statements to her mother were admissible as

spontaneous declarations in criminal

proceeding).