# Amicus Curiae Brief — White v. Illinois

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0134%3A11

## Record

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

## Text

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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

il

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

19

24

7, 9, 10,
11, 12, 16,
18

15

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) _...........

15

27

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.

iv

26, 27

24

26

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,

j

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,

10

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

11

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

12

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

13

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.

14

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

15

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

16

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

17

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

18

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).

See also Annotation, Admissibility of
Testimony Regarding Spontaneous
Declarations Made By One Incompetent to
Testify at Trial, 15 A.L.R. 4th 1043 (1982).
Cf. Morgan v. Foretich, 846 F.2d 941 (4th
Cir. 1988), reh. and reh. in banc denied
(fact that four-year old girl was presumably
incompetent to testify did not’ bar
admissibility of her out-of-court statements
as excited utterances in civil damages lawsuit
for alleged sexual abuse).

In fact, Dean Wigmore finds that the

principle of the excited utterance § and

19

spontaneous declaration exception "obviates
the usual sources of untrustworthiness” in
childrens' testimony. 6 Wigmore on
Evidence, supra, §1751, p. 223.

In addition to the common-law excep-
tion, Rule 803(2) of the Federal Rules of
Evidence expressly provides that:

The following are not excluded by

the hearsay rule, even though the
declarant is available as a witness:

* * *

(2) Excited utterance. A
statement relating to a_ startling
event or condition made while the
deciarant was under the stress of
excitement caused by the event or
condition.
Fed. R. Evid. 803(2) (emphasis added); see
4 J. Weinstein & M. Berger, Weinstein's
Evidence, 7803(2)(01) (1990 Ed.). The rule
has been adopted verbatim in at least 22
states, with several more states adopting
extremely similar rules. See =

M 803(2)(02), pp. 803-96--803-103, for

compilation of state statutes.

20

Rule 803 of the Federal Rules of
Evidence "proceeds upon the theory that
under appropriate circumstances a hearsay
statement may possess circumstantial
guarantees of trustworthiness sufficient to
justify nonproduction of the declarant in
person at the trial even though he may be
available." J. Weinstein & M. Berger,
Weinstein's Evidence, p. 803-33 (1990 Ed.).

Petitioner evidences a fundamental
misconception when he_ speaks of this
exception as a "shield [for] the child witness
from the trauma of testifying.” See Pet.
br., pp. 19, 28-32. Petitioner does not
even address the evidentiary values behind
the exception, but merely states that the
rationale for the exception is not the same as
for co-conspirator statements (Pet. br., pp.
26-28). The long-standing — significant

evidentiary purposes that this exception

21

serves cannot be reduced or dismissed in
such a manner. Ante, pp. 13-21.

In fact, the "shield" devices petitioner
discusses are at issue only when a child
actually testifies at trial. As part of the
growing recognition of the serious pervasive
problem of sex abuse of children, this Court
is well aware that state legislatures have
devised various alternatives to ease the
trauma for when a child testifies in open
court. See Coy v. lowa, supra, 487 U.S. at
1022-1023 (concurring opinion by Justice
O'Connor); Maryland v. Craig, supra, 497
U.S. at __, 110 S.Ct. at __, 111 L.Ed.2d
at 683-684. For example, in the State of
New York, these alternatives include the use
of videotaping under limited circumstances,
see N.Y. Crim. Proc. Law, §109.32, and the
use of closed-circuit television under limited

circumstances. Id., Art. 65.

22

The existence of such _ possibilities,
however, does not, as petitioner suggests in
his brief (Pet. br., pp. 30-32), give any
substance to any abrogation of the "firmly
rooted" utterance/spontaneous' declaration
exception. If, for all the above
well-recognized reasons, the use of such
evidence is warranted because it is, in fact,
often the best evidence, the use of devices
fostered to cope with the difficulties of.
children testifying in open court is not

dictated. 4

fin fact, one commentator has suggested that
the valuable purposes of admitting a child's
out-of-court statements under this exception
may be limited because some courts have
taken an overly-restrictive view of when a
child's, as opposed to an adult's, statements
fit within the contours of the exception.
See Yun, J., A Comprehensive Approach _ to
Child Hearsay Statements in Sex Abuse
Cases, 83 Colum. L. Rev. 1745, 1755-1759
(1983).

23

Moreover, as the Court below noted in

its decision, People v. Randall White, supra,

198 Ill. App.3d. at 660, 555 N.E.2d at 1253,
even though Illinois has a separate and
newer statutory exception to the hearsay
rule for statements by child sex abuse
victims, see Ill. Rev. Stat. ch. 38, §115-10
(1987), the instant case does not involve
that relatively new and not yet “firmly
rooted exception." Cf. Myatt v. Hannigan,
910 F.2d 680, 683-685 (10th Cir. 1990)
(because Kansas child hearsay statute was
not a “firmly rooted hearsay exception,” it
required establishing on a case-by-case basis
both "adequate indicia of reliability" and
"particularized guarantees of
trustworthiness"). Cf. Idaho v. Wright,
supra (overturning admission of 24-year old
child's out-of-court statement under State of
Idaho's "residual hearsay" exception, which

is not aé_é§ firmly’ rooted’ exception for

24

Confrontation Clause purposes and there was
no showing of trustworthiness or reliability) ;

Dutton v. Evans, 400 U.S. 74 (1970)

(plurality opin.) (reliability inquiry required
when evidentiary rule deviates from
common-law approach).

In sum, for all these reasons, the
excited utterance/spontaneous' declaration
exception does not require a showing of
unavailability .

B. Medical Treatment Exception.

In Idaho vy. Wright, supra, in addition
to discussing the basis for the
well-established "excited utterance”
exception, this Court noted that, similarly,
"dying declaration" and "medical treatment
exceptions to the hearsay rule" are based on
the belief that persons making’ such
statements are highly unlikely to lie. Id.,
497 U.S. at __, 111 L.Ed.2d at 655, citing,

inter alia, Mosteller, Child Sexual Abuse and

25

Statements for the Purposes of Medical

Diagnosis or Treatment, 67 N.C.L. Rev. 257
(1989). See McCormick on Evidence, §292
(3rd Ed., 1984).

In this case, an Illinois statute, Ill.
Rev. Stat. ch. 38, §115-13 (1987), codifies
this long-standing, "firmly rooted" medical
treatment exception. There is thus no
conflict with Idaho v. Wright, supra (see
Pet. br., p. 22, n.3), which addresses a

separate, statutory "residual hearsay" rule,
and, indeed, expressly recognizes’ the
medical treatment exception. So too, Rule
803(4) of the Federal Rules of Evidence
provides a hearsay exception for statements
made for the purpose of medical diagnosis or
treatment, regardless of the availability of
the declarant. Fed. R. Evid. 803(4).
J. Weinstein & M. _ Berger, Weinstein's
Evidence, pp. 803-36, 803 (4)[01], pp.

803-143--803-151 (1990 Ed.); State v. Ochoa,

26

576 F.2d 854, 855-858 (Fla. 3rd Dist. Ct.
App. 1991) (distinguishing between medical
treatment exception and statutory residual

hearsay exception as in Idaho v. Wright).

Cf. United States v. Iron Shell, 633 F.2d 77
(8th Cir. 1980), cert. denied, 450 U.S. 1001
(1981).

Accordingly, the statements to the
nurse and doctor were properly admitted
under this exception.

C. Summary.

In conclusion, the two "firmly rooted"

hearsay exceptions here serve society's

long-standing interest in accurate
fact-finding, without violating the
Confrontation Clause. For all the above

reasons, therefore, the City of New York
respectfully urges this Court to affirm the

order below.

27

CONCLUSION
THE ORDER BELOW SHOULD BE AFFIRMED.

Respectfully submitted,

VICTOR A. KOVNER,

Corporation Counsel of
The City of New York,

Attorney for Amicus Curiae
The City of New York.

LEONARD J. KOERNER, *

PAMELA SEIDER DOLGOW,

ELIZABETH S. NATRELLA,
of Counsel.

July 26, 1991

*Counsel of Record.

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0134%3A11. Public record. Not legal advice.