Amicus Curiae Brief — White v. Illinois

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No. 90-6113 JUL 97 199}

IN THE SUPREME COURT OF THE UNIFED.STATRS cirak

OCTOBER TERM, 1991

RANDALL D. WHITE,

Petitioner,

Vv.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Writ of Certiorari from

the Supreme Court of Illinois

AMICI CURIAE BRIEF OF THE STATE OF CALIFORNIA ex rel.

DANIEL E. LUNGREN, ATTORNEY GENERAL, and the STATES

ALABAMA, ALASKA, COLORADO, CONNECTICUT,

FLORIDA, IDAHO, IOWA, KANSAS, KENTUCKY,

MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN,

MINNESOTA, MISSISSIPPI, MONTANA, NEVADA, NEW

HAMPSHIRE, NEW JERSEY, OHIO, PENNSYLVANIA,

SOUTH CAROLINA, UTAH, VERMONT, VIRGINIA,

WEST VIRGINIA, AND WYOMING

Attorneys for Amicus DANIEL E. LUNGREN,

Curiae State of Attorney General

California ex. rel. GEORGE WILLIAMSON, Chief

Daniel E. Lungren, Assistant Attorney General

Attorney General ARNOLD O. OVEROYE, Senior )

Assistant Attorney General

KAREN L. ZISKIND,

Deputy Attorney General

JANET E. NEELEY,

Deputy Attorney General

JANET G. BANGLE,

Deputy Attorney General,

Counsel of Record

P.O. Box 944255

Sacramento, California 94244-2550

Telephone: (916) 324-5284

(Continued on inside cover)

BEST AVAILABLE COPY

eral General

State State of Mississippi

CHARLES E. COLE MARC RACICOT

State of Alaska State of Montana

GALE A. NORTON FRANKIE SUE DEL PAPA

General aay

State of Colorado State of Nevada

RICHARD BLUMENTHAL JOHN P. ARNOLD

State of Connecticut State of New Hampshire

ROBERT A. ROBERT J. DEL TUFO

ay sone

General State of New Jersey

State of Florida

LARRY ECHOHAWK LEE FISHER

State of idaho State of Ohio

BONNIE CAMPBELL ERNEST D. PREATE, JR.

State of lowa State of Pennsylvania

ROBERT T. STEPHAN T. TRAVIS MEDLOCK

State of Kansas State of South Carolina

FRED COWAN PAUL VAN DAM

MICHAEL E. CARPENTER JEFFREY L. AMESTOY

State of Maine State of Vermont

J. JOSEPH CURRAN, JR. MARY SUE TERRY

State of Maryland State of Virginia

SCOTT HARSHBARGER MARIO J. PALUMBO

Commonweaith of State of West Virginia

Massachusetts

FRANK J. KELLEY JOSEPH B. MEYER

HUBERT H. HUMPHREY it!

State of Minnesota

BEST AVAILABL

QUESTION PRESENTED

Does the Confrontation Clause require the prosecution to

show that a child witness is unavailable to testify before the

child’s out-of-court declarations are admitted against a

criminal defendant at trial?

-ji-

TABLE OF CONTENTS

QUESTION PRESENTED

INTEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

THE CONFRONTATION CLAUSE DOES NOT

REQUIRE THE PROSECUTION TO SHOW

THAT A WITNESS IS UNAVAILABLE TO

TESTIFY BEFORE HEARSAY EVIDENCE MAY

BE ADMITTED IN A CRIMINAL TRIAL IF THE

EVIDENCE IS OTHERWISE NECESSARY

UNAVAILABILITY OF THE DECLARANT

SHOULD NOT BE REQUIRED AS A

CONDITION OF ADMISSIBILITY OF A CHILD

VICTIM’S OUT-OF-COURT STATEMENT

UNDER THE EXCEPTION TO THE HEARSAY

RULE FOR SPONTANEOUS STATEMENTS

A. The Exception for Spontaneous Statements

-ill-

B. A Spontaneous Statement is Important

Evidence that Cannot be Replicated, and

So the Requirement of Necessity is

Satisfied

Il UNAVAILABILITY OF THE DECLARANT

SEOULD NOT BE REQUIRED AS A

CONDITION OF ADMISSIBILITY OF A CHILD

VICTIM’S OUT-OF-COURT STATEMENT

UNDER THE EXCEPTION TO THE HEARSAY

RULE FOR STATEMENTS MADE FOR

PURPOSES OF MEDICAL DIAGNOSIS AND

TREATMENT

A. The Exception for Statements Made for

Purposes of Medical Diagnosis or

Treatment

B. A Statement Made for Purposes of

Medical Diagnosis or ‘Treatment is

Important Evidence that Cannot be

Replicated, and So the Requirement of

Necessity is Satisfied

-jV-

IV THE CONFRONTATION CLAUSE DOES NOT

REQUIRE THE PROSECUTION TO

DEMONSTRATE PARTICULARIZED

GUARANTEES OF TRUSTWORTHINESS PRIOR

TO THE ADMISSION OF EVIDENCE UNDER

THE EXCEPTIONS TO THE HEARSAY RULE

FOR SPONTANEOUS STATEMENTS OR

STATEMENTS MADE FOR PURPOSES OF

MEDICAL DIAGNOSIS OR TREATMENT

A. Reliability of an Out-of-Court Statement

Can Be Inferred When It Falls Within a

Firmly Rooted Hearsay Exception

B. The Exception for Spontaneous Statements

is Firmly Rooted

C. The Exception for Statements Made for

Purposes of Medical Diagnosis or

Treatment is Firmly Rooted

CONCLUSION

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TABLE OF CASES

Bacon v. Charlton

7 Cush. 581 (Mass. 1851)

Barber v. Page

390 U.S. 719 (1968)

Bourjaily v. United States

483 U.S. 171 (1987)

California v. Green

399 U.S. 149 (1970)

Cisambers v. Mississippi

410 U.S. 284 (1983)

Commonwealth v. Fuller

506 N.E.2d 852 (Mass. 1987)

Drake v. State

761 P.2d 879 (Okla. Cr. 1988)

Drumm vy. Commonwealth

783 S.W. 2d 380 (Ky. 1990)

Globe Newspaper Co. v. Superior Court

457 U.S. 596 (1982)

43, 47

Cases

Goldade v. State

674 P.2d 721 (Wyo. 1983)

Haggins v. Warden

715 F.2d 1050 (6th Cir. 1983)

Harrison v. United States

435 A.2d 734 (D.C. App. 1981)

Idaho v. Wright

497 US. ___

110 S. Ct. 3139 (1990)

In re Rachel T.

549 A.2d 27 (Md. App. 1988)

Johnson v. State

732 S.W.2d 817 (Ark. 1987)

Lancaster v. People

615 P.2d 720 (Colo. 1980)

Mancusi v. Stubbs

408 U.S. 204 (1972)

9, 23, 47, 51

37, 38

-vii-

Cases

Maryland v. Craig

497 US. ___

110 S. Ct. 3157 (1990)

Mattox v. United States

156 U.S. 237 (1985)

Miller v. State

531 N.E.2d 466 (Ind. 1988)

Mobile & Montgomery R.R. v. Ashcraft

48 Ala. 15 (1872)

Morgan v. Foretich

846 F.2d 941 (4th Cir. 1988)

Mouzone v. State

452 A.2d 661 (Md. 1982)

Nelson v. Farrey

874 F.2d 1222 (7th Cir. 1989)

New York v. Ferber

458 U.S. 747 (1982)

8, 9, 43

7, 9, 45

34, 37

37, 42

-Viii-

Cases

Ohio v. Roberts

448 U.S. 56 (1980)

People v. Farmer

765 P.2d 940 (Cal. 1989)

People v. Gallego

802 P.2d 169 (Cal. 1990)

People v. Galloway

726 P.2d 249 (Colo. App. 1986)

People v. Grover

451 N.E.2d 587 (Ill. App. 1983)

People v. Jones

792 P.2d 643 (Cal. 1990)

People v. Stritzinger

668 P.2d 738 (Cal. 1983)

Puleio v. Vose

830 F.2d 1197 (1st Cir. 1987)

Snyder v. Massachusetts

291 U.S. 97 (1934)

Page

8-11, 13, 14, 18, 33, 43-45, 52

46, 49

34, 37

21, 37

46-48

Cases

Souder v. Commonwealth

719 S.W. 2d 730 (Ky. 1986)

Stallnacker v. State

715 S.W.2d 883 (Ark. App. 1986)

State v. Aguallo

350 S.E.2d 76 (N.C. 1986)

State v. Bawdon

386 N.W.2d 484 (S.D. 1986)

State v. Campbell

705 P.2d 691 694 (Or. 1985)

State v. Deanes

374 S.E.2d 249 (N.C. 1988)

State v. Doe

719 P.2d 554 (Wa. 1986)

State v. Edward Charles L.

398 S.E.2d 123 (W. Va. 1990)

State v. Jeffers

661 P.2d 1105 (Ariz. 1983)

34, 37

26, 27

Cases Page

State v. Kuone

757 P.2d 289 (Kan. 1988) 26

State v. Lanam

459 N.W. 2d 656 (Minn. 1990) 26

State v. Maldonado

536 A.2d 600 (Conn. App. 1988) 34, 37, 41, 52

State v. Moen

786 P.2d 111 (Or. 1990) 37

State v. Palomo

783 P.2d 757 (Wash. 1989) 49

State v. Porter

281 S.E.2d 377 (N.C. 1981) 49

State v. Robinson

735 P.2d 812 (Ariz. 1987) 21, 27, 34, 37, 41

State v. Ryan

691 P.2d 197 (Wa. 1984) 27

State v. Sheppard

484 A.2d 1330 (N.J. 1984) 27

Cases

State v. Ucero

450 A.2d 809 (R.I. 1982)

State v. Wyss

370 N.W.2d 745 (Wis. 1985)

United States v. Cree

778 F.2d 474 (8th Cir. 1985)

United States v. Deland

22 M.J. 70 (C.M.A. 1986)

United States v. Inadi

475 U.S. 387 (1986)

United States v. Iron Shell

633 F.2d 77 (8th Cir. 1980)

United States v. Iron Thunder

714 F.2d 765 (9th Cir. 1983)

United States v. Moore

791 F.2d 566 (7th Cir. 1986)

United States v. Provost

875 F.2d 172 (8th Cir. 1989)

45, 50, 52

10-14, 18, 24, 28, 29, 43, 45

33, 34, 35

-xii-

Cases

United States v. Quick

22 M.J. 722 (A.C.M.R. 1986)

United States v. Renville

779 F.2d 430 (8th Cir. 1985)

W.C.L. v. People

685 P.2d 176 (Colo. 1984)

White v. Illinois

198 Ill.App.3d 641

555 N.E.2d 1241 (1990)

Constitutional Provisions

United States Constitution

Sixth Amendment

Federal and State Court Rules

Federal Rules of Evidence

Rule 803

Rule 803, Advisory Committee Notes

Rule 803(2)

Page

28, 40, 41

33, 35, 37

32, 50

17, 35

-xili-

Rule 803(4)

Alaska Rules of Evidence

Rule 803(2) (1979)

Rule 803(4) (1979)

Arizona Rev. Stat. Ann. Rules of Evidence

Rule 803(2) (1977)

Rule 803(4) (1977)

Arkansas Statutes Annotated

§ 28-1001, Uniform Rules of Evidence

Rule 803(2) (1976)

Rule 803(4) (1976)

California Evidence Code

§ 1240 (1965)

Colorado Rules of Evidence

Rule 803(2) (1980)

Rule 803(4) (1980)

Delaware Uniform Rules of Evidence

Rule 803(2) (1980)

Rule 803(4) (1980)

Page

31, 52

-XIV-

Florida Stat. Ann. Evid. Code

§ 90.803(2) (1979)

§ 90.803(4) ( 1979)

Hawaii Rules of Evidence

Rule 803(b)(2) (1981)

Rule 803(b)(4) (1981)

Idaho Rules of Evidence

Rule 803(2) (1985)

Rule 803(4) (1985)

Illinois Rev. Stat. Criminal Code

§ 115-13 (1987)

Iowa Rules of Evidence

Rule 803(2) (1983)

Rule 803(4) (1983)

Louisiana Code of Evidence

Article 802(2) ( 1989)

Article 803(4) (1989)

Maine Rev. Stat. Ann., Rules of Evidence

Rule 803(2) (1976)

Rule 803(4) (1983)

Michigan Rules of Evidence

Rule 803(2) (1978)

Rule 803(4) (1978)

Minnesota Rules of Evidence

Rule 803(2) (1977)

Rule 803(4) (1977)

Mississippi Rules of Evidence

Rule 803(2) (1986)

Rule 803(4) (1986)

Montana Rev. Codes Ann.

§ 93-3002, Rules of Evidence

Rule 803(2) (1977)

Rule 803(4) (1977)

Nebraska Rev. Stat.

§ 27-803(1) (1975)

§ 27-803(3) (1985)

Nevada Rev. Stat., tit. 4

§ 51.095 (1971)

§ 51.115 (1971)

-XVI1-

New Hampshire Rules of Evidence

Rule 803(2) (1985)

Rule 803(4) (1985)

New Mexico Stat. Ann. Rules of Evidence

Rule 803(2) (1976)

Rule 803(4) (1976)

North Carolina Rules of Evidence

Rule 803(2) (1984)

Rule 803(4) (1984)

North Dakota Rules of Evidence

Rule 803(2) (1977)

Rule 803(4) (1977)

Ohio Rules of Evidence

Rule 803(2) (1980)

Rule 803(4) (1980)

Oklahoma Stat. Ann., tit. 12

§ 2803(2) (1978)

§ 2803(4) (1978)

-XVll-

Oregon Evidence Code

Rule 803(2) (1982)

Rule 804(4) (1982)

Rhode Island Rules of Evidence

Rule 803(2) (1987)

Rule 803(4) (1987)

South Dakota Rules of Evidence

§ 19-16-6 (1978)

§ 19-16-8 (1978)

Tennessee Rules of Evidence

Rule 803(2) (1990)

Rule 803(4) (1990)

Texas Rules of Evidence

Rule 803(2) (1983)

Rule 803(4) (1983)

Utah Rules of Evidence

Rule 802(2) (1983)

Rule 803(4) (1983)

-XVili-

Vermont Rules of Evidence

Rule 803(2) (1983)

Rule 803(4) (1983)

Washington Rules of Evidence

Rule 803(a)(2) (1979)

Rule 803(4) (1979)

West Virginia Rules of Evidence

Rule 803(2) (1985)

Rule 803(4) (1985)

Wisconsin Stat. Ann.

§ 908.03(2) (1974)

§ 908.03(4) (1974)

Wyoming Rules of Evidence

Rule 803(2) (1978)

Rule 803(4) (1978)

Other Authorities

Berliner & Barbieri, The Testimony of the Child Victim

of Sexual Assault, 40 J. Social Issues 125 (1984)

E. Cleary, McCormick on Evidence (3d ed. 1984)

§ 291

§ 292 33,

§ 297 15, 17,

Gard, Jones on Evidence (6th ed. 1972)

§ 10:7 50,

Graham, Indicia of Reliability and Face to Face

Confrontation: Emerging Issues in Child Sexual Abuse

Prosecutions, 40 U. Miami L. Rev. 19 (1985)

Libai, The Protection of the Child Victim of a Sexual

Offense in the Criminal Justice System, 15 Wayne L.

Rev. 977 (1969)

4 Louisell & Mueller, Federal Evidence (1980)

§ 439

§ 444

R. Mosteller, Child Sexual Abuse and Statements for

the Purpose of Medical Diagnosis or Treatment, 67

N.C.L. Rev. 257

. 1-

Page No. 90-6113

J. Myers, Hearsay Statements by the Child Abuse Victim, IN THE SUPREME COURT OF THE UNITED STATES

38 Baylor L. Rev. 777 17

Summit, The Child Abuse Accommodation Syndrome, 7 OCTOBER TERM, 1991

Child Abuse & Neglect 177 (1983) 20

RANDALL D. WHITE,

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

(1988) 1 803(2)[01] 16

1 803(4)[01] 30, 33 ”

5 Wigmore Evidence PEOPLE OF THE STATE OF ILLINOIS,

§ 1364 7 Respondent.

§ 1395 7

§ 1397 7 On Writ of Certiorari from

§ 1420 24 the Supreme Court of Illinois

§§ 1420-1421 14

§§ 1420-1422 14

AMICI CURIAE BRIEF OF THE STATE OF CALIFORNIA ex rel.

; DANIEL E. LUNGREN, ATTORNEY GENERAL, and the STATES

6 Wigmore Evidence OF |

§ 1714 31, 39, 50 ALABAMA, ALASKA, COLORADO, CONNECTICUT,

§ 1719 31 FLORIDA, IDAHO, IOWA, KANSAS, KENTUCKY.

§ 1747 17. 31. 47 MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN,

» 3, MINNESOTA, MISSISSIPPI, MONTANA, NEVADA, NEW

§ 1748 22 HAMPSHIRE, NEW JERSEY, OHIO, PENNSYLVANIA,

SOUTH CAROLINA, UTAH, VERMONT, VIRGINIA,

WEST VIRGINIA, AND WYOMING

Amici file this brief pursuant to Rule 37.5 of the

Rules of the Supreme Court of the United States.

INTEREST OF AMICI

This brief is respectfully submitted in support of

respondent, the State of Illinois, which urges affirmance of

White v. Illinois, 198 Ill.App.3d 641, 555 N.E.2d 1241

(1990), a decision of the Fourth District Appellate Court

of Illinois. That court upheld the admission of hearsay

evidence by a child sexual abuse victim without a showing

that the child was unavailable to testify. The Supreme

Court of Illinois denied leave to appeal.

The states have a strong interest in the effective

prosecution of child abusers, and the admission of reliable

hearsay evidence is often essential to maintaining this

interest. Frequently, a child victim’s out-of-court

statements regarding the offense will be the best evidence

in the case. Under these circumstances, reliance on the

a -3-

out-of-court-statements is necessary, and the utility of

confrontation is slight.

The states also have a compelling interest in

protecting the emotional well-being of child abuse victims.

In a great number of these cases, this interest can best be

effectuated if the child is not required to be examined

through the judicial process.

If a child’s out-of-court statements are made

under circumstances rendering it likely that their probative

value and reliability cannot be duplicated even if he or she

testifies at trial, and if the utility of confrontation is

negligible, the states’ interest in protecting child victims

from further trauma warrants limiting a defendant’s right

to confront the witness against him by admitting the

statement without a showing that the child is unavailable

to testify. | Accordingly, amici oppose Mr. White’s

contention that the Confrontation Clause compels the

prosecution to produce a hearsay declarant or to show the

child declarant is unavailable prior to the admission of an

-4.

out-of-court statement that meets the foundational

requirements for admission under the exceptions to the

hearsay rule for either spontaneous statements or

statements made for purposes of medical treatment or

diagnosis.

SUMMARY OF ARGUMENT

The Confrontation Clause of the Sixth

Amendment guarantees a defendant the right to be

confronted with the witnesses against him. The right is

not absolute, however, and it may be limited if competing

interests and the necessities of the case _ dictate.

Accordingly, this Court has held that hearsay evidence may

be admitted in a criminal trial, without offending the

Confrontation Clause, if the evidence is both necessary and

reliable.

The rule of necessity is satisfied if either the

declarant of the out-of-court statement is unavailable to

testify or the out-of-court assertion is evidence that cannot

be replicated even if the declarant testifies. Evidence

admitted under the two exceptions to the hearsay rule at

issue in this case, the exception for spontaneous statements

and the exception for statements made for purposes of

medical diagnosis or treatment, particularly when the

declarant is a victim of child abuse, is probative evidence

-6-

that cannot be replicated. Hence, the rule of necessity is

satisfied, and the child need not be shown to be

unavailable to testify before her out-of-court statements

are admitted.

Additionally, these two exceptions are firmly

rooted exceptions to the hearsay rule. Accordingly,

reliability of statements that meet the foundational

requirements of these exceptions can be inferred, and no

showing of particularized guarantees of trustworthiness

need be made.

ARGUMENT

THE CONFRONTATION CLAUSE DOES NOT

REQUIRE THE PROSECUTION TO SHOW THAT

A WITNESS IS UNAVAILABLE TO TESTIFY

BEFORE HEARSAY EVIDENCE MAY BE

ADMITTED IN A CRIMINAL TRIAL IF THE

EVIDENCE IS OTHERWISE NECESSARY

The Confrontation Clause of the Sixth

Amendment provides, "In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the

witnesses against him." The primary object of this

provision was to prevent the early common law practice of

using secret, ex parte depositions, made by persons not in

court, as evidence against an accused. See California v.

Green, 399 U.S. 149, 156-157 (1970); Mattox v. United

States, 156 U.S. 237, 243 (1985); 5 Wigmore, Evidence, §

1364, at 13-14, 28, § 1395, at 150, § 1397, at 159

(Chadbourn rev. 1974) [hereafter "5 Wigmore]. The

theory underlying the Confrontation Clause is that the

many possible sources of inaccuracy and trustworthiness

-8-

that may underlie the assertions of a witness can best be

brought to light through cross-examination of the witness

while he testifies under oath in the jury’s presence. See

Maryland v. Craig, 497 US. 110 S. Ct. 3157, 3163

(1990); Green, supra, at 158.

The right of confrontation is not absolute,

however. This Court has found that competing interests,

if closely examined, may justify limiting the right of

confrontation at trial. Ohio v. Roberts, 448 U.S. 56, 64

(1980); Chambers v. Mississippi, 410 U.S. 284, 295 (1973).

"Significantly, every jurisdiction has a strong interest in

effective law enforcement, and in the development and

precise formulation of the rules of evidence applicable in

criminal proceedings." Roberts, supra, at 64, citing Snyder

v. Massachusetts, 291 U.S. 97 (1934), and California v.

Green, supra, 399 U.S. 149. |

Thus, the Court has consistently held that the

Confrontation Clause does not necessarily prohibit the

admission of hearsay statements against a criminal

-9.

defendant, even though the admission of such statements

might be thought to violate the literal terms of the Clause.

Idaho v. Wright, 497 U.S. __, 110 S. Ct. 3139, 3145-3146

(1990)4/ The Court has recognized that the general rule

set forth in the Clause must occasionally give way to the

necessities of the case. Maryland v. Craig, supra, 110 S. Ct.

at 3165-3166; Mattox v. United States, supra, 156 U.S. at

243 (1985).

In Ohio v. Roberts, supra, 448 U.S. 56, this Court

laid out a general approach for determining when hearsay

statements may be admitted without violating

Confrontation Clause requirements. The approach strikes

a delicate balance between the states’ interest in law

enforcement and a defendant’s right to confront the

witnesses against him and to assure the accuracy of the

1. Likewise, this Court has held that the Confrontation Clause

does not prohibit a child witness in a child abuse case from testifying

against a defendant at trial, outside the defendant’s physical presence,

by way of one-way closed circuit television, even though the use of

such a procedure might seem to violate the literal terms of the Clause.

See Maryland v. Craig, supra, 110 S. Ct. 3157.

-10-

truth-finding function. "First, in conformance with the

Framers’ preference for face-to-face accusation, the Sixth

Amendment establishes a rule of necessity. In the usual

case ; . . , the prosecution must either produce, or

demonstrate the unavailability of, the declarant whose

statement it wishes to use against the defendant.[2/]"_ /d.

at 65. In addition, the hearsay statement must bear

adequate "indicia of reliability" to ensure accuracy in the

fact-finding process. Jbid.

Five years after Roberts, in United States v. Inadi,

475 U.S. 387 (1986), this Court considered the question of

whether the Confrontation Clause requires a showing of

unavailability as a condition to admission of the out-of-

court statements of a non-testifying co-conspirator. /d. at

2. The Court noted here, in a footnote, that a demonstration of

unavailability is not always required. Roberts, supra, 448 U.S. at 65

n. 7. It continued, "In Dutton v. Evans, 400 U.S. 74 (1970), for

example, the Court found the utility of trial confrontation to be

sufficiently remote that it did not require the prosecution to produce

a seemingly available witness." Roberts, supra, at 65 n. 7.

Sis

391.2’ Citing the statement in Roberts that the Sixth

Amendment establishes a rule of necessity, the Court of

Appeals had held that the Confrontation Clause established

an independent requirement that the prosecution, as a

condition to admission of any out-of-court statement, was

required to show the unavailability of the declarant. /d. at

391-392. This Court disagreed, declaring that the lower

court’s interpretation of Roberts would effectuate a

"wholesale revision of the law of evidence" and would too

broadly interpret the Confrontation Clause. Jd. at 392-

394.

The Court then declared that there are good

reasons why the unavailability rule, which was developed

in cases involving former testimony, is not applicable to

3. The Court noted in /nadi that the reliability of the out-of

court statements was not at issue in the case. The Court of Appeals

had determined that whether or not the statements were reliable, their

admission violated the Sixth Amendment because the prosecution had

not shown that the declarant was unavailable to testify. /nadi, supra,

at 391 n.3.

co-conspirators’ out-of-court statements.

<32.

Inadi, supra, 475 U.S. at 394.

"Unlike some other exceptions to the hearsay rules,

or the exemption from the hearsay definition

involved in this case, former testimony often is only

a weaker substitute for live testimony. It seldom

has independent evidentiary significance of its own,

but is intended to replace live testimony. If the

declarant is available and the same information can

be presented to the trier of fact in the form of live

testimony . . . there is little justification for relying

on the weaker version... .

"Those same principles do not apply to co-

conspirator statements. Because they are made

while the conspiracy is in progress, such statements

provide evidence of the conspiracy’s context that

cannot be replicated, even if the declarant testifies

to the same matters in court... . [] In addition,

the relative positions of the parties will have

changed substantially between the time of the

statements and the trial. . . . [C]o-conspirator

statements derive much of their value from the fact

that they are made in a context very different from

trial, and therefore are usually irreplaceable as

substantive evidence."

Id. at 395-396.

United States v.

2%.

The Court found, in the context of co-

conspirators’ statements, that the benefits of an

unavailability rule would be slight, for it would contribute

little to the truth determining process. United States v.

Inadi, supra, 475 U.S. at 396-398. The burden that such a

rule would impose would be significant, however: it would

automatically add another avenue of appellate review in

these complex cases, and it would place a significant

practical burden on the prosecution. J/d. at 398-399.

Accordingly, the Court declined to require a showing of

the declarant’s unavailability as a prerequisite to the

admission of a co-conspirator’s hearsay statement. /d. at

400.

Read together, Roberts and Inadi explain that

the rule of necessity for resorting to out-of-court

statements may be satisfied in one of two ways. First, the

declarant of the out-of-court statement may be unavailable

to testify, so that if his statement is not admitted, his

knowledge will be left unused altogether. Or, the out-of-

-14-

cOurt assertion may be such that it is not possible to get

evidence of the same value from any other source, so that

if the extrajudicial statement is not used, the trier of fact

is denied important evidence. See United States v. Inadi,

supra, 475 U.S. 387; Ohio v. Roberts, supra, 448 U.S. 56;

see also 5 Wigmore, supra, §§ 1420-1421, at 251-253.

Regardless of which way the necessity requirement is

satisfied, if the out-of-court statement is trustworthy, so

that the test of confrontation would be of minimal benefit,

its admission is constitutionally permissible. See Inadi,

supra; Roberts, supra; see also 5 Wigmore, supra, §§ 1420-

1422, at 251-253.

-15-

UNAVAILABILITY OF THE DECLARANT

SHOULD NOT BE REQUIRED AS A CONDITION

OF ADMISSIBILITY OF A CHILD VICTIM’S

OUT-OF-COURT STATEMENT UNDER THE

EXCEPTION TO THE HEARSAY RULE FOR

SPONTANEOUS STATEMENTS

A. The Exception for Spontaneous Statements

An exception to the hearsay rule for certain

statements made under the influence of a startling event

is universaily recognized*/ E. Cleary, McCormick on

4. A majority of states have adopted either the Federal Rule of

Evidence on spontaneous statements, Rule 803(2), or a draft version

thereof: Alaska Rules of Evid., Rule 803(2) (1979); Ark. Stat. Ann. §

28-1001 Uniform Rules of Evid., Rule 803(2) (1976); Ariz. Rev. Stat.

Ann. Rules of Evid., Rule 803(2)(1977); Colo. Rules of Evid., Rule

803(2) (1980); Del. Uniform Rules of Evid., Rule 803(2) (1980); Fla.

Stat. Ann. Evid. Code § 90.803(2) (1979); Hawaii Rules of Evid., Rule

803(b)(2) (1981); Idaho Rules of Evid., Rule 803(2) (1985); lowa

Rules of Evid., Rule 803(2) (1983); La. Code of Evid., Art. 802(2)

(1989); Me. Rev. Stat. Ann., Rules of Evid., Rule 803(2) (1976); Mich.

Rules of Evid., Rule 803(2) (1978); Minn. Rules of Evid., Rule 803(2)

(1977); Miss. Rules of Evid., Rule 803(2) (1986); Mom. Rev. Codes

Ann. § 93-3002, Rules of Evid., Rule 803(2) (1977); Neb. Rev. Stat.

§27-803(1) (1975); Nev. Rev. Stat. tit. 4, § 51.095 (1971); N.H. Rules

of Evid., Rule 803(2) (1985); N.M. Stat. Ann. Rules of Evid., Rule

803(2) (1976); N.C. Rules of Evid., Rule 803(2) (1984); N.D. Rules of

Evid., Rule 803(2) (1977); Ohio Rules of Evid., Rule 803(2) (1980);

Okla. Stat. Ann. tit. 12, § 2803(2) (1978); Or. Evid. Code, Rule 803(2)

(1982); R.I. Rules of Evid., Rule 803(2) (1987); S.D. Rules of Evid.,

-16-

Evidence (3d ed. 1984) § 297, at 854 [hereafter

"McCormick"}. The foundational requirements for

admission of a statement under this exception are three-

fold. First, there must be an event that excites the

declarant. Second, the statement must be made during

the period of excitement caused by the event. And, third,

the statement must "relate" to the startling event. 4 J.

Weinstein & M. Berger, Weinstein’s Evidence 1 803(2)[01],

at 803-87 to -94 (1988) [hereafter "Weinstein"]; 4 Louisell

& Mueller, Federal Evidence (1980) § 439, at 494-495

(hereafter. "Louisell & Mueller"].2/ § The principle

§ 19-16-6 (1978); Tenn. Rules of Evid., Rule 803(2) (1990); Tex. Rules

of Evid., Rule 803(2) (1983); Utah Rules of Evid., Rule 802(2) (1983);

Vt. Rules of Evid., Rule 803(2) (1983); Wash. Rules of Evid., Rule

803(a)(2) (1979); W. Va. Rules of Evid., Rule 803(2) (1985); Wis. Stat.

Ann. § 908.03(2) (1974); Wyo. Rules of Evid., Rule 803(2) (1978).

Other states, which have not adopted the Federal Rules

of Evidence, have either codified a spontaneous statement hearsay

exception, ¢.g., Calif. Evid. Code § 1240 (1965), or have case law

establishing such an exception, ¢.g., Mouzone v. State, 452 A.2d 661

(Md. 1982); Commonwealth v. Fuller, 506 N.E.2d 852 (Mass. 1987);

Souder v. Commonwealth, 719 S.W. 2d 730 (Ky. 1986).

5. In determining whether these foundational requirements for

admission of the hearsay statement are met, courts consider a variety

of factors, including: lapse of time from the event to the statement;

whether the statement was made at the first safe opportuaity,; whether

it.

underlying this exception is based on the experience that

when these requirements are met, a stress of nervous

excitement may be produced that stills the declarant’s

reflective faculties and powers of fabrication, so that the

utterance that occurs is a spontaneous and sincere

expression of the declarant’s impressions and belief. 6

Wigmore, Evidence, § 1747, at 195, 199 (Chadbourn rev.

1976) [hereafter "6 Wigmore]; McCormick, supra, § 297,

at 855; Fed. Rules of Evid., Rule 803, Advisory Committee

Notes.

the statement was made when the excitement was rekindled; the

declarant’s emotional condition, including crying or sleep patterns;

speech pattern of the declarant; declarant’s physical condition

(statements made during a period of injury or pain caused by the

event are likely made during the stress of excitement caused by the

event); age of the declarant; nature of the event; content of the

Statement; spontaneity; whether the statement was elicited by

questions; explicit language; whether there are circumstantial

guarantees of reliability (corroborating evidence); and the totality of

the circumstances. J. Myers, Hearsay Statements by the Child Abuse

Victim, 38 Baylor L. Rev. 775, 863-875.

-18-

B. A Spontaneous Statement is Important Evidence that

Cannot be Replicated, and So the Requirement of

Necessity is Satisfied

As in Jnadi, there are sound reasons to find that

unavailability of the declarant is not required when a

statement is admitted under the spontaneous statement

exception to the hearsay rule. Like in /nadi, the rule of

necessity is satisfied by virtue of the fact that the out-of-

court statement is important evidence that cannot be

replicated even if the declarant testifies in court.

A spontaneous statement clearly has independent

evidentiary significance. Unlike the former testimony at

issue in Roberts, a spontaneous statement is not similar to

live trial testimony. Rather, there is a_ significant

evidentiary difference between spontaneous statements and

trial testimony, so that the former is not merely a weaker

substitute for the latter. Compare also Mancusi v. Stubbs,

408 U.S. 204 (1972) [witness’ testimony from first trial

-19-

imtroduced at trial; Barber v. Page, 390 U.S. 719 (1968)

[witness’ preliminary hearing testimony offered at trial].

Because of the context in which a spontaneous

statement is made, the circumstances surrounding the ~

statement, and concomitantly the reliability of the

statement, cannot be duplicated. The statement is an

unsolicited utterance made without consideration for its

testimonial value.

In the same way that the position of co-

conspirators vis a vis each other often changes by the time

of trial, the relationship of a victim of child abuse and her

abuser, when the abuser is a person known to the child,

often changes between the time of the crime and trial. It

is an indisputable fact that children frequently are

ambivalent about identifying family members, friends, or

acquaintances as perpetrators of abuse. But, in the heat

of the moment following the crime, while the pain, the

humiliation, and the fear of the abuse is still fresh, a child

may make a spontaneous utterance regarding the abuse.

-20-

Not infrequently, however, when the delirium of the event

has worn off, she®/ comes to comprehend the consequences

of her actions -- she may have to go to court and testify;

she may be removed from the home; she may cause the

breakup and financial ruin of her family, and she may

cause the incarceration of a person for whom she cares

-- and she recants. See Johnson v. State, 732 S.W.2d 817,

823 (Ark. 1987); Summit, The Child Abuse Accommodation

Syndrome, 7 Child Abuse & Neglect 177 (1983). Thus, the

child is likely to speak differently when under the stress of

the event than she would when testifying on the witness

stand.

Moreover, in child abuse cases in particular, the

fact that the out-of-court statement was made near the

time of the abuse may make it more credible than the

victim’s in-court testimony. Children frequently cannot

recall for any significant period of time the details of their

21.

ie State v. Edward Charles L., 398 S.E.2d 123, 132-

133 (W. Va. 1990); see People v. Jones, 792 P.2d 643 (Cal.

1990). Thus, a spontaneous statement, made near the time

of the abuse, will often be a more accurate statement of

what occurred. Certainly, since the defense bar routinely

argues that a child victim’s testimony is tainted by law

enforcement personnel, mental health professionals, child

protective agency workers, and prosecuting attorneys, they

cannot reasonably be heard to complain that the admission

of a child’s statement made before these people have

extensive contact with the child is not more reliable than

her subsequent testimony.~’

As aptly noted by Professor Wigmore, a

spontaneous statement is “better than is likely to be

6. For simplicity’s sake, amici use the feminine pronoun when

referring to child victims and the masculine pronoun when referring

to prosecutors and doctors.

7. “Indeed, common sense suggests that ‘[sjome of the most

powerful potential evidence .. . lies in the child’s prior out-of-out

statements. When a child first reveals that there has been sexual

abuse, the content and manner of the revelation is often striking in its

clarity and ring of truth.” State v. Robinson, 735 P.2d 801, 812 (Ariz.

1987), quoting Berliner & Barbieri, The Testimony of the Child Victim

of Sexual Assault, 40 J. Social Issues 125, 133 (1984).

obtained from the same person upon the stand.” 6

Wigmore, supra, § 1748, at 199 [emphasis added]. Hence,

it has long been recognized that the superior

trustworthiness of a spontaneous statement creates a

necessity for resorting te it for unbiased testimony. J/bid.,

citing, e.g., Mobile & Montgomery RR. v. Ashcraft, 48 Ala.

15, 31 (1872) ["We regard these declarations as . . . more

convincing . . . than the testimony of the persons

themselves some time after the occurrence").£/

The high degree of reliability of a spontaneous

statement, particularly when the declarant is a child,

significantly diminishes the importance of cross-

examination; it is “unlikely that even skillful cross-

examination will adduce a persuasive repudiation of the

prior statement. Indeed, as this Court has noted,

8. Professor Wigmore continued, "It follows that death, absence,

Or other unavauability of the declarant need never be shown under this

exception -- a proposition never disputed.” 6 Wigmore, supra, § 1748,

~ 199 {emphasis in original]. See also McCormick, supra, § 297, at

24.

"The basis for the ‘excited utterance’ exception...

is that such statements are given under

circumstances that eliminate the possibility of

fabrication, coaching, or confabulation, and that

therefore the circumstances surrounding the making

of the statement provide sufficient assurance that

the statement is trustworthy and that cross-

examination would be superfluous."

Idaho v. Wright, supra, 110 S. Ct. at 3149 [emphasis added].

For a number of reasons, then, a spontaneous

statement, particularly one made by a child abuse victim,

is likely to be more reliable and more probative than

would be her reconstructed version of events given on the

witness stand some months or years after the abuse

occurred. At the very least, it is important evidence that

cannot be reproduced. Either way, 4 requirement that the

prosecution eithes produce the child or demonstrate her

unavailability before her out-of-court spontaneous

statement is admitted “is not likely to produce much

-24-

testimony that adds anything to the ‘truth-determining

process.” Jnadi, supra, 475 U.S. at 396.2!

But, such a rule would impose a significant

burden upon the People, and it would serve as a practical

bar to the use of statements offered under a well-

established hearsay exception. As in Jnadi, a constitutional

rule requiring a determination of availability each time the

prosecution seeks to introduce a child’s spontaneous

Statement necessarily would add another avenue of

appellate review in these cases, thus imposing a substantial

burden on the entire criminal justice system. See Inadi,

supra, 475 U.S. at 398-399. Additionally, and more

important, such a rule would require the prosecution to

choose between foregoing the use of important evidence

9. As Wigmore has stated, "If a statement has been made under

such circumstances that even a skeptical caution would look upon it

as trustworthy (in the ordinary instance) in a high degree of

probability, it would be pedantic to insist on a test whose chief object

is already secured." 5 Wigmore, supra, § 1420, at 252.

-25-

or subjecting the child to what well may be another

traumatic and emotionally damaging ordeal.

If an unavailability rule applies, a prosecutor

who desires to introduce a child victim’s out-of-court

statement will have three options.

He may produce the child. The likely result, of

course, will be that the child will be cross-examined about

painful and embarrassing issues in a courtroom setting in

the presence of not only the defendant, but also the judge,

the jury, counsel, and court personnel, and this experience

may cause the child further lasting emotional harm:

"Psychiatrists have identified components of

the legal proceedings that are capable of putting a

child victim under prolonged mental stress and

endangering his emotional equilibrium: repeated

interrogations and cross-examination, facing the

accused again, the official atmosphere in court, the

acquittal of the accused for want of corroborating

evidence to the child’s trustworthy testimony, and

the conviction of a molester who is the child’s

parent or relative."

-26-

Libai, The Protection of the Child Victim of a Sexual Offense

in the Criminal Justice System, 15 Wayne L. Rev. 977, 984

(1969).

Or, the prosecutor may forego using the child’s

out-of-court statements. This may well mean that the state

will be forced to attempt to prove its case without the

most probative evidence it possesses.

Finally, he may attempt to demonstrate the

child’s unavailability. But that attempt, even if successful,

will require the child to be examined, either in court or by

an expert witness.

For example, if a child is incompetent to testify

as a witness, she is, as a practical matter, unavailable

because she cannot be subjected to cross-examination.

See, e.g., Lancaster v. People, 615 P.2d 720, 723 (Colo.

1980); State v. Kuone, 757 P.2d 289, 294-295 (Kan. 1988);

State v. Lanam, 459 N.W. 2d 656, 659 (Minn. 1990), cert.

denied, __ U.S. __, 111 S. Ct. 693; State v. Deanes, 374

S.E.2d 249, 259 (N.C. 1988), cert. denied, 490 U.S. 1101

(1989). A court may not make a finding of unavailability,

however, unless the prosecution has produced the child for

a competency examination and established incompetency.

See e.g., Deanes, supra, at 259; State v. Campbell, 705 P.2d

694, 705 (Or. 1985); Siate v. Ryan, 691 P.2d 197, 203 (Wa.

1984).

Likewise, if the victim is one of the many

children whose fear of testifying or of facing the defendant

makes it psychologically impossible for her to proceed, she

is unavailable. See State v. Doe, 719 P.2d 554, 557 (Wa.

1986); State v. Sheppard, 484 A.2d 1330, 1334-1337 (N.J.

1984). But, the court cannot make that finding unless the

child has been examined either by an expert or by the

judge and the court has determined that the potential

psychological injury would render the child’s testimony

relatively impossible. See, e.g., State v. Robinson, supra,

735 P.2d at 813-814; People v. Stritzinger, 668 P.2d 738,

746-747 (Cal. 1983) Miller v. State, 531 N.E.2d 466, 468

(Ind. 1988).

-28-

Each of these three options carries a price, and

the prosecutor will be faced with the difficult decision of

determining which price to pay: the loss of probative

evidence or the potential additional traumatization of the

child victim. -

The burdens imposed by an unavailability rule

would exist even if it turned out that neither the

prosecution nor the defense desired to examine the victim

at trial. Jnadi, supra, 475 U.S. at 398. As this Court has

reasoned, under these circumstances, "it is difficult to see

what, if anything, would be gained by a rule that requires

the prosecution to make the declarant ‘available.”" [bid.+°’

In sum, then, the reliability and the probative

value of an out-of-court statement that satisfies the

10. In Jnadi, the Court noted that the defendant’s counsel

apparently concluded that the absent declarant’s testimony would not

have been particularly helpful. The defendant could have demanded

the declarant’ presence, and the Compulsory Process Clause of the

Sixth Amendment would have required his production, but no such

request was made. Jnadi, supra, 475 U.S. at 397-398; see United States

v. Quick, 22 M.J. 722, 726 and 727 n. 4 (A.C.M.R. 1986), aff'd, 26 M.J.

460 (C.M.A. 1988).

-29-

foundational requirements for admission as a spontaneous

statement is reliable evidence that cannot be replicated in

court, and this is particularly true when the declarant is a

child. Hence, consistent with /nadi, the necessity for

resorting to this evidence is satisfied, and no showing of

the declarant’s unavailability should be required prior to

the admission of her statement.

OF ADMISSIBILITY OF A CHILD VICTIM’S

OUT-OF-COURT STATEMENT UNDER THE

EXCEPTION TO THE HEARSAY RULE FOR

STATEMENTS MADE FOR PURPOSES OF

MEDICAL DIAGNOSIS AND TREATMENT

A. The Exception for Statements Made for Purposes of

Medical Diagnosis or Treatment

All jurisdictions make an exception to the

hearsay rule for statements made with a view to treatment.

Weinstein, supra, 9 803(4)[01], at 803-143. The scope of

the exception varies considerably, however: some courts

admit only statements of present symptoms; others have

extended the rule to admit, in addition, statements that

describe past symptoms and the nature and cause of the

injury insofar as they bear on treatment. See ibid.

In its narrowest form, the exception, insofar as

it permits a doctor to testify to a patient’s out-of-court

report of present symptoms, is closely related to the

exception for spontaneous statements22/ It is grounded in

11. This scope of the exception has been accepted as a specific

doctrine since the early 1800's, and for more than a hundred years

prior to that time, it was accepted as an indefinite doctrine that did

-31-

the recognition that a _person’s expressions of

contemporaneous bodily feelings, pain or malady “are the

natural and necessary language of emotion, of the existence

of which, from the very nature of the case, there can be

no other evidence." Bacon v. Charlton, 7 Cush. 581, 586

(Mass. 1851), quoted in 6 Wigmore, supra, § 1719, at 103;

see McCormick, supra, § 291, at 838-839,42/

The broadest scope of the exception is set forth

in Rule 803(4) of the Federal Rules of Evidence, which

has provided the model for the definition of the medical

exceptions in the majority of American jurisdictions42/

not distinguish clearly between this and the exception for spontaneous

declarations. Wigmore, supra, § 1714, at 90-91, § 1747, at 196.

12. Despite occasional indications to the contrary, statements of

present bodily conditions, because of the rationale underlying them,

generally need not have been made to a physician to qualify for

admission under this hearsay exception. McCormick, supra, § 291, at

838.

13. The following states have aGopted Rule 803(4) verbatim or

with only minor stylistic changes: Alaska Rules of Evid., Rule 803(4)

(1979); Ariz. Rev. Stat. Ann. Rules of Evid., Rule 803(4) (1977); Ark.

Unif. Rules of Evid., Rule 803(4) (1976); Colo. Rules of Evid., Rule

803(4) (1980); Del. Uniform Rules of Evid., Rule 803(4) (1980);

Hawaii Rules of Evid., Rule 803(b)(4) (1981); Iowa Rules of Evid.,

Rule 803(4) (1983); Drumm vy. Commonwealth, 783 S.W. 2d 380 (Ky.

1990); La. Code of Evid., Art. 803(4) (1989); Me. Rev. Stat. Ann.,

Rules of Evid., Rule 803(4) (1983); Miss. Rules of Evid., Rule 803(4)

(1986); Mont. Rev. Codes Ann. § 93-3002, Rules of Evid., Rule 803(4)

(1977); Neb. Rev. Stat. § 27-803(3) (1985); Nev. Rev. Stat. tit. 4, §

-32-

Under this rule, statements regarding not only present

symptoms, bv* *lso statements of medical history and those

regarding causation and fault, are admissible if the

statements are reasonably pertinent to diagnosis or

treatment.44/

§ 27-803(3) (1985); Nev. Rev. Stat. tit. 4, § 51.115 (1971); N.M. Stat.

Ann. Rules of Evid., Rule 803(4) (1976); N.C. Rules of Evid., Rule

-803(4) (1984); N.D. Rules of Evid., Rule 803(4) (1977); Ohio Rules

of Evid., Rule 803(4) (1980); Or. Evid. Code, Rule 804(4) (1982);

S.D. Rules of Evid., §19-16-8 (1978); Tenn. Rules of Evid., Rule

803(4) (1990); Tex. Rules of Evid., Rule 803(4) (1983); Utah Rules of

Evid., Rule 803(4) (1983); Wash. Rules of Evid., Rule 803(4) (1979);

W. Va. Rules of Evid., Rule 803(4) (1985); Wis. Stat. Ann. § 908.03(4)

(1974); Wyo. Rules of Evid., Rule 803(4) (1978).

The following states have adapted the federal rule in

various ways: Fla. Stat. Ann. Evid. Code § 90.803(4) (1979); Idaho

Rules of Evid., Rule 803(4) (1985); Ill. Rev. Stat. Criminal Code §

115-13 (1987); Mich. Rules of Evid., Rule 803(4) (1978); Minn. Stat.

Ann. Evid. Rule 803(4) (1977); N.H. Rules of Evid., Rule 803(4)

(1985); Okla. Stat. Ann. tit. 12, § 2803(4) (1978); R.L. Rules of Evid.,

Rule 803(4) (1987); Vt. Rules of Evid., Rule 803(4) (1983).

14. Federal Rule 803 states:

"The following are not excluded by the hearsay rule,

pe though the declarant is available as a witness:

"(4) STATEMENTS FOR PURPOSES OF MEDICAL

DIAGNOSIS OR TREATMENT. Statements for purposes of

medical diagnosis or treatment and describing medical history,

OF past Or present symptoms, pain, or sensations, or the

inception or general character of the Cause or external source

thereof insofar as reasonably pertinent to diagnosis or

treatment."

-33-

Two independent rationales Support this

exception. First, it is recognized that the patient’s belief

that an accurate and truthful statement is important to

proper treatment ensures its reliability. See United States

v. Renville, 779 F.2d 430, 436 (Sth Cir. 1985); United States

v. [ron Shell, 633 F.2d 77, 83-84 (8th Cir. 1980), cert.

denied, 450 US. 1001 (1981). Additionally, it is

acknowledged that a physician who views the patient’s

medical history, including cause and fault, as related to

diagnosis and treatment would reasonably be expected to

communicate this to the patient so as to assure a reliable

response. McCormick, supra, § 292, at 840. And, as

Professor Weinstein has recognized, "[a] fact reliable

enough to serve as the basis for a diagnosis is also reliable

enough to escape hearsay proscription." Weinstein, supra,

1 803(4)[01], at 803-146. This principle acknowledges the

fact that life and death decisions are made by physicians in

reliance on the facts related by the patient, and thus they

should have sufficient trustworthiness to be admissible in a

court of law. Jron Shell, supra, at 84,45/

15. In Ohio v. Roberts, supra, 448 U.S. 56, the Court stated that

the reliability of business records comes from the fact that "records of

regularly conducted activities cannot fulfil their function . . . unless

they are accurate. Thus, the motive for accuracy is great, while the

motive to falsify is virtually non-existent.” /d. at 66.

-34.

Consistent with the two policy justifications

supporting the rule, the courts have employed a two-part

test for the admissibility of hearsay statements under this

exception. First, the declarant’s motive in making the

Statement must be consistent with the purposes of

promoting diagnosis and treatment.4£/ Second, the content

of the statement must be such as is reasonably relied upon

by a physician in treatment or diagnosis. United States v.

Iror Shell, supra, 633 F.2d at 84; see also Morgan v.

Foretich, 846 F.2d 941, 949 (4th Cir. 1988); State v.

Robinson, supra, 735 P.2d at 809; Stallnacker v. State, 715

S.W.2d 883, 884 (Ark. App. 1986); People v. Galloway, 726

P.2d 249, 252-253 (Colo. App. 1986); State v. Maldonado,

536 A.2d 600, 602 (Conn. App. 1988).

It has been recognized by a number of courts

that the cause of a condition is often relevant to

The two-part rationale underlying the exception for

purposes of medical diagnosis or treatment is analogous to that

underlying the exception for business records: if a patient does not

speak truthfully to her physician, and if the physician does not

carefully consider those statements as they relate to a proper diagnosis

and treatment, the purposes of seeking and dispensing medical care are

thwarted.

16. Ifa child, because of her tender years, is unable to appreciate

the doctor’s role, her statements will not satisfy the foundational

requirements for admission under this exception. See W.C.L. v. People,

685 P.2d 176, 181 (Colo. 1984).

-35-

diagnosing that condition and deciding upon a course of

treatment. See, e.g., United States v. Iron Shell, supra, 633

F.2d at 84-85; United States v. Iron Thunder, 714 F.2d 765,

772-773 (9th Cir. 1983). The victim’s statements often

Suggest to the doctor the nature of the problem, and

information regarding what happened may provide

guidelines for the physician’s examination by pinpointing

areas of the body to be examined more closely and

narrowing the examination by eliminating other areas. See

Iron Shell, supra, at 84.

Ordinarily, statements as to fault, including those

identifying the victim’s assailant, do not qualify as necessary

for diagnosis or treatment. United States v. Iron Shell,

supra, 633 F.2d at 84; Fed. Rules of Evid., Rule 803,

Advisory Committee Notes. Statements of identity seldom

are made for the purpose of promoting effective treatment,

and physicians rarely have any reason to rely on statements

of identity in treating or diagnosing a patient. United

States v. Renville, supra, 779 F.2d at 436.

This general rule does not apply in many child

abuse cases, however, because in many of these cases the

abuser’s identity is critical to effective diagnosis and

treatment. The Eighth Circuit has explained this exception

to the general rule as follows:

-36-

Child abuse involves not only physical abuse, but

emotional and psychological injuries as well, and the nature

and extent of a child’s psychological injuries often depend

upon the identity of the abuser. Additionally, physicians

have a legal obligation to prevent an abused child from

being returned to an environment in which she cannot be

adequately protected from recurrent abuse, and this

obligation is most immediate where the abuser is a

member of the victim’s household. Information that the

abuser is a member of the household is therefore

‘reasonably pertinent’ to a course of treatment that

includes removing the child from the home. When the

physician makes clear to the victim that the inquiry into

the abuser’s identity is important to diagnosis and

treatment and the victim manifests such an understanding,

the victim’s motivation to speak truthfully is the same as

that which insures reliability when she recounts the

chronology of events or details symptoms of somatic

distress. Additionally, statements of identity to a physician

_ by a child who has been abused by a family member are

of a type physicians reasonably rely on in formulating a

diagnosis and course of treatment. Admission of these

Statements, therefore, is fully consistent with the two-part

rationale underlying the exception to the hearsay rule for

37.

Statements made for purposes of medical diagnosis or

treatment. United States v. Renville, supra, 779 F.2d at 437-

438.

This rule has been adopted by a number of

jurisdictions+’ Subsequent cases have noted that the

reason for admitting statements regarding the perpetrator’s

identity may apply in some other limited circumstances.42/

17. E.g., Morgan v. Foretich, supra, 846 F.2d 941, 949-950;

United States v. Deland, 22 M.J. 70 (C.M.A. 1986), cert. denied, 479

U.S. 856; State v. Robinson, supra, 735 P.2d at 810; Stalinacker v. State,

supra, 715 S.W.2d at 884-885: People v. Galloway, 726 P.2d 249, 252-

253 (Colo. App. 1986); State v. Maldonado, 536 A.2d 600, 603 (Conn.

App. 1988), app. denied, 541 A.2d 1239 (Conn. 1988); In re Rachel T.,

549 A.2d 27, 34-35 (Md. App. 1988); State v. Aguallo, 350 S.E.2d 76,

80-81 (N.C. 1986); Goldade v. State, 674 P.2d 721, 722-728 (Wyo.

1983), cert. denied, 467 U.S. 1253 (1984); see also Nelson v. Farrey, 874

F.2d 1222, 1224-1229 (7th Cir. 1989), cert. denied, an, or, 198

S. Ct. 835 (1990); Drake v. State, 761 P.2d 879, 882-883 (Okla. Cr.

1988); State v. Ucero, 450 A.2d 809, 814-815 (R.I. 1982).

18. In United States v. Provost, 875 F.2d 172, (8th Cir.), cert.

denied, __ U.S. __, 110 S. Ct. 170 (1989), the court admitted

evidence regarding the victim’s half-brother, who did not continuously

reside with the child victim of sexual assault. /d. at 176-177. This

ruling is consistent with the well-recognized fact that child abuse, and

particularly sexual abuse, is frequently committed by persons who do

not live with the child but who have recurring access to-the child. See

People v. Jones, supra, 792 P.2d 643.

In State v. Moen, 786 P.2d 111 (Or. 1990), the court

admitted evidence regarding the son-in-law of the adult victim of a

homicide. The statements made by the victim to her doctor before her

murder, explaining her depression, directly related to her illness, and

-38-

B. A Statement Made for Purposes of Medical Diagnosis

or Treatment is Impcrtant Evidence that Cannot be

Replicated, and So the Requirement of Necessity is

Satisfied

As with co-conspirator statements and

spontaneous statements, there is good justification for

concluding that the declarant need not be shown to be

unavailable when her testimony is admitted under an

exception to the hearsay rule for statements made for

medical purposes. Here, too, the rule of necessity is

satisfied by virtue of the fact that the out-of-court

statement, particularly when the declarant is a child, is

probative evidence that cannot be duplicated even if the

declarant testifies in court.

Under the narrower view of the exception, which

limits admission to statements regarding present symptoms,

the analysis is virtually identical to that for spontaneous

statements. First, the statement has independent

the information was used to diagnose and treat that illness. Hence,

her statements *were made for the purpose of medical diagnosis or

treatment. Jd. at 118-121.

In addition, in sexual assault cases, the identity of the

perpetrator may well be relevant to diagnosis and treatment if an

examination of the perpetrator will assist in determining whether the

victim may have a sexually transmitted disease. See In re Rachel T.,

supra, 549 A.2d at 35. This would apply, of course, whether the victim

is a child or an adult.

-39-

evidentiary significance, and thus it is not a weaker

Substitute for live testimony. Second, because the patient

is describing her own physical sensations, the risks of

misperception and faulty recollection are less than would

be a subsequent recitation of recollected facts. And, third,

much of the reliability of the statement is derived from the

context in which the statement was made, particularly when

the statement is made to a doctor. Accordingly, as

Professor Wigmore has explained, the probability that the

person’s testimony on the stand will be in value equal or

superior to the hearsay statement is small, and thus it is

desirable to resort to the hearsay statement. 6 Wigmore,

supra, § 1714, at 90.

Under the broadest view of the exception, the

analysis is somewhat different. The conclusion, however,

is the same.

The evidentiary value of a statement made for

purposes of medical diagnosis or treatment differs

significantly from trial testimony. Although both represent,

for the most part, the declarant’s recollection of past

events, the circumstances under which that recollection js

elicited differ, and the value of the out-of-court statement

cannot be reproduced.

-40-

A child’s motive for testifying and her motive

for providing information to a doctor are wholly dissimilar.

Simply stated, it is in a patient’s selfish interest to be

truthful with her physician. "Like the co-conspirator who

does not tell knowing falsehoods during the course of the

conspiracy because of his vested interest in its successful

outcome, a person who is seeking relief from a physical

ailment or injury does not intentionally mislead a listener

whose effectiveness in responding depends upon the

accuracy of the information he receives." United States v.

Quick, supra, 22 M.J. at 726-727.

As discussed previously, however, by the time of

trial, she undoubtedly will have an increased awareness of

the ramifications of her statements. In spite of the oath,

she may well believe that it could be detrimental to her

Own interest, as well as the interest of her family, to testify

truthfully. Ante, at 19-20. Hence, her testimony is likely

to be less honest than is her out-of-court statement, which

was made in a more relaxed atmosphere and at a time

when her sense of self-preservation was strongest.

Additionally, because of the circumstances under

which a child’s statement for purposes of medical

treatment is made, the statement carries strong assurances

of accuracy that cannot be duplicated even if the child

-4]-

testifies at trial. Most commonly, the statement is made

Shortly after the offense occurred. See, e.g, State v.

Robinson, supra, 735 P.2d at 804; People v. Galloway, supra,

726 P.2d at 251; State v. Maldonado, supra, 536 A.2d at

601. In every case, it will have been made closer to the

time of the offense than would be her in-court testimony.

And, because the doctor has a business duty to maintain

patient records, the child’s statement will be memorialized.

Hence, although months or years may pass between the

time of the offense and the time of trial, the statement will

provide an accurate record of the child’s perceptions at a

time when the incident was fresh in her mind.

Accordingly, the out-of-court statement will be superior in

evidentiary quality to her testimony on the witnéss stand.

See United States v. Quick, supra, 22 M.J. at 727.

A child’s testimony in court will rarely, if ever,

recapture the evidentiary significance of her statements

made during the course of a medical examination. Stated

otherwise, those statements are irreplaceable as substantive

evidence. Moreover, given the rationales underlying the

exception to the hearsay rule that permits their admission,

they possess a high degree of reliability that renders it

unlikely that cross-examination would adduce evidence that

-42-

persuasively undermines their value. Indeed, as the

Seventh Circuit Court of Appeais has aptly stated,

"[W]e should not allow labels and lawyers’ pieties to

delude us into believing that cross-examination of a

four-year-old child concerning sexual abuse by her

father a year earlier is a more effective method of

discovering the truth than listening to and weighing

the testimony of a competent psychologist who

interviewed the child over a period of many months

in a setting designed to elicit truthful

communication. There is no basis for believing that

T’s testifying would have enhanced the accuracy of

the jury’s determination."

Nelson v. Farrey, supra, 874 F.2d at 1230.

Accordingly, as in Jnadi, a requirement that the

prosecution either produce the child or demonstrate her

unavailability before her out-of-court statement is admitted

"is not likely to produce much testimony that adds anything

to the ‘truth-determining process.” Jnadi, supra, 475 U.S.

at 396. As noted previously, however, such a rule would

impose a substantial burden upon the People, and it would

serve as a practical bar to the use of reliable hearsay

evidence, ante, at 24-28, and this would be true even in a

case in which neither the prosecution nor the defense

wished to examine the declarant at trial, Jnadi, supra, 475

U.S. at 399.

-43-

This Court has recognized that the states have

a compelling interest in accurate fact-finding and effective

law enforcement. Bourjaily v. United States, 483 U.S. 171,

182 (1987); Ohio v. Roberts, supra, 448 U.S. at 64. It has

also recognized that the states have a strong interest in

safeguarding the psychological well-being of children.

Maryland v. Craig, supra, 110 S. Ct. at 3167; New York v.

Ferber, 458 U.S. 747, 756-757 (1982); Globe Newspaper Co.

v. Superior Court, 457 U.S. 596, 607 (1982). A requirement

that the prosecution demonstrate a child’s unavailability

before her out-of court statements to her doctor can be

introduced will thwart the states’ efforts to protect both of

those interests while doing little to assure the integrity of

the fact-finding process. Accordingly, when, in a child

abuse case, the foundational requirements for the

admission of a statement under the exception to the

hearsay rule for statements made for Purposes of medical

diagnosis or treatment are met, "[aJny marginal protection

to the defendant by forcing the government to call as [a

witness a child who is] available, willing to testify, hostile

to the defense, and yet not already subpoenaed by the

prosecution, when the defendant himself can call and cross-

examine [the child], cannot support an unavailability rule."

Inadi, supra, 475 US. at 399-400.

THE CONFRONTATION CLAUSE DOES NOT REQUIRE

THE PROSECUTION TO DEMONSTRATE

PARTICULARIZED GUARANTEES OF

TRUSTWORTHINESS PRIOR TO THE ADMISSION OF

EVIDENCE UNDER THE EXCEPTIONS TO THE

HEARSAY RULE FOR SPONTANEOUS STATEMENTS

OR STATEMENTS MADE FOR PURPOSES OF

MEDICAL DIAGNOSIS OR TREATMENT

A. Reliability of an Out-of-Court Statement Can Be

Inferred When It Falls Within a Firmly Rooted Hearsay

Exception

As discussed previously, if the rule of necessity

for admitting hearsay evidence is satisfied, the evidence

may be admitted if it bears sufficient "indicia of reliability’

to ensure accuracy in the fact-finding process. Ohio v.

Roberts, supra, 448 U.S. at 65. This Court has declared

that certain hearsay exceptions rest upon such solid

foundations that admission of virtually any evidence within

them comports with constitutional protection. Roberts,

19. As noted above, a hearsay statement may be admitted without

violating the Confrontation Clause if it is both necessary and reliable.

Ante, at 9-14. Although the question presented, as phrased by the

petitioner, does not speak to this second requirement, amici

respectfully ask this Court to address this point and to find that both

the exception for spontaneous statements and that for statements made

for purposes of medical diagnosis or treatment are firmly rooted, so

that the reliability of evidence falling within them can be inferred

without more.

-45-

supra, at 66. Thus, "[rJeliability can be inferred without

more in a case where the evidence falls within a firmly

rooted hearsay exception. In other cases, the evidence

must be excluded, at least absent a showing of

particularized guarantees of trustworthiness." Jbid.

The Roberts Court gave four examples of firmly

rooted hearsay exceptions: dying declarations, cross-

examined prior-trial testimony, public records, and business

records. Ohio v. Roberts, supra, 448 U.S. at 66. These

were not, however, intended to be the only exceptions

classified as firmly rooteé. Thus, /nadi added the co-

conspirator exception to the list.

This Court has not identified specifically the

material from which the foundations of a firmly rooted

exception are to be built. In Roberts, however, the Court

indicated that an exception is firmly rooted if it is such as

to guarantee the reliability of virtually any evidence falling

under that exception. Ohio v. Roberts, supra, 448 U.S. at

66, citing Mattox v. United States, supra, 156 U.S. at 244.

Accordingly, as stated by one state supreme court, "the

question of whether a hearsay exception is ‘firmly rooted’

does not turn upon how long the rule has been accepted

but rather how solidly it is grounded on considerations of

reliability and trustworthiness--the very reasons for the right

to confrontation." State v. Wyss, 370 N.W.2d 745, 759

(Wis. 1985).

-46-

B. The Exception for Spontaneous Statements is Firmly

Rooted

It has long been recognized that when a person

is truly excited and she makes a statement about a

concurrently or recently perceived event before having the

Opportunity to think through the possible consequences of

her utterance, it is likely to be a reliable statement. See

People v. Farmer, 765 P.2d 940, 951 (Cal. 1989). The

exception to the hearsay rule for spontaneous statements

was followed in English common law, and American cases

employing the exception date back to the nineteenth

century. Puleio v. Vose, 830 F.2d 1197, 1206 (1st Cir.

1987), cert. denied, 485 U.S. 990 (1988).22’ "To borrow a

20. According to Professor Wigmore,

"The limits of the exception may be elusive and the practice

in different courts may vary. But that the core and substance

of such an exception is universally accepted cannot be open to

doubt. [%] Historically, this conscious recognition appears in

England before the end of the 1700s . . . though it is only

within the last few generations that it is firmly and

unquestionably established. Such is, however, the inherent

congruity of the doctrine that we are still able to resort to the

earliest precedent for a succinct and accurate statement of the

principle.” |

-47-

phrase succinctly employed in the Court’s . . . recent

refinement of the principle, the special evidentiary

treatment accorded to spontaneous exclamations, is, we

think, ‘steeped in our jurisprudence.” Puleio, supra, 830

F.2d at 1206, citing Bourjaily v. United States, supra, 483

U.S. at 183.

Recently this Court said,

"[I]f the declarant’s truthfulness is so clear from the

surrounding circumstances that the test of cross-

examination would be of marginal utility, then the

hearsay rule does not bar admission of the

Statement at trial. The basis for the ‘excited’

utterance exception, for example, is that such

Statements are given under circumstances that

eliminate the possibility of fabrication, coaching, or

confabulation, and that therefore the circumstances

surrounding the making of the statement provide

sufficient assurance that the statement is trustworthy

and that cross examination would be superfluous."

Idaho v. Wright, supra, 110 S. Ct. at 3149 [emphasis added].

6 Wigmore, supra, § 1747, at 195.

-48-

Stated otherwise, the foundational requirements

for admission of a _ hearsay statement under the

spontaneous statement exception are themselves the

guarantees of the _ statement’s reliability. These

requirements virtually assure that there is minimal chance

that the statement will be inaccurate due to the declarant’s

misperception, fabrication, or faulty recall. (See ante, at

16-23.

Accordingly, the First Circuit Court of Appeals

has declared, "In our view, it is indisputable that use of

such spontaneous exclamations falls within one of the most

deeply embedded of hearsay exceptions." Puleio v. Vose,

supra, 830 F.2d at 1206. A number of other courts have

agreed. E.g., Haggins v. Warden, 715 F.2d 1050, 1056-1058

(6th Cir. 1983), cert. denied, 464 U.S. 1071 (1984); United

States v. Moore, 791 F.2d 566, 574 (7th Cir. 1986); United

States v. Cree, 778 F.2d 474, 502 (8th Cir. 1985) (Oliver, J.,

dissenting); State v. Jeffers, 661 P.2d 1105, 1123 (Aniz.

1983), cert. denied, 464 U.S. 865 (1983); People v. Gallego,

-49-

802 P.2d 169, 198 (Cal. 1990); Harrison v. United States,

435 A.2d 734, 736 (D.C. App. 1981); People v. Grover, 451

N.E.2d 587, 591 (Ill. App. 1983); State v. Porter, 281

S.E.2d 377, 381 n. 1 (N.C. 1981); State v. Bawdon, 386

N.W.2d 484, 487 (S.D. 1986); State v. Palomo, 783 P.2d

757, 578 n. 3 (Wash. 1989), cert. denied, US. __, 111

S. Ct. 80 (1990).

The historical reasons for believing that

spontaneous statements are inherently reliable have

withstood the test of time. People v. Farmer, supra, 765

P.2d at 951. Accordingly, amici submit these statements

fall within a firmly rooted exception to the hearsay rule,

and a court need not independently inquire into their

reliability.

C. The Exception for Statements Made for Purposes of

Medical Diagnosis or Treatment is Firmly Rooted

The exception to the hearsay rule for purposes

of medical diagnosis or treatment lacks the storied lineage

-50-

of that for spontaneous statements. The exception, as

broadened to admit not only statements of present and

past symptoms, but also statements of medical history and

cause, has been widely accepted for slightly more than a

decade’ See Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat.

1939, enacting Federal Rules of Court, Rule 803; ante, at

31 and n. 13.

As discussed previously, however, strong

assurance of the reliability of statements made for medical

purposes derives from the likelihood that the patient

21. The exception for the admission of statements for the

purpose of medical treatment, insofar as it permits a doctor to relate

a patient’s report of present symptoms, has long been recognized.

State v. Wyss, supra, 370 N.W.2d 745 at 758; Wigmore, supra, § 1714,

at 90. Because the patient is describing her own physical sensations,

the risks of misperception and of faulty recollection are minimal.

Louisell & Mueller, supra, § 444, at 593. In addition, her interest in

obtaining proper treatment gives her every reason to speak truthfully

and carefully. /bid. Accordingly, there is scarcely any dissent from the

belief that a patient’s recital of present symptoms and complaints for

the purpose of diagnosis and treatment are inherently trustworthy,

McCormick, supra, § 292, at 839-840; Gard, Jones on Evidence, § 10:7,

at 270 (6th ed. 1972), and this exception is said to be among the most

solidly founded within the hearsay rules, R. Mosteller, Child Sexual

Abuse and Statements for the Purpose of Medical Diagnosis or Treatment,

67 N.C.L. Rev. 257, 257.

-51-

understands the seriousness of the matter, and she realizes

that the effectiveness of the treatment she receives will

depend largely upon the accuracy of the information she

provides. Accordingly, she is motivated to be truthful and

careful, so that risks of insincerity and ambiguity are

likewise minimal. Ante, at 31-33; see also Idaho v. Wright,

supra, 110 S. Ct. at 3149. In addition, the doctor’s interest

in obtaining accurate and truthful information ensures that

there is minimal risk of misperception on his part, that any

ambiguities that might occur in his conversation with the

declarant will be cleared away, and that there will be

virtually no risk of misrecollection on his part. Ante, at

33.

The majority of jurisdictions?’ thus have

recognized that the foundational requirements for

admission of a statement made for purposes of medical

diagnosis or treatment are themselves the guarantees of

the statement’s reliability: if the victim’s motives are

22. See footnote 13 and accompanying text.

-52-

consistent with the purpose of the rule, and if it is

reasonable for the physician to rely on the information in

diagnosis or treatment, the statement is inherently reliable

and trustworthy. Accordingly, although the exception, as

set forth in Rule 803(4) of the Federal Rules of Evidence

and similar state statutes, ‘is relatively new in the

jurisprudence, it is solidly grounded on the considerations

of reliability underlying the right to confrontation and,

hence, it is properly classified as "firmly rooted" within the

meaning of Ohio v. Roberts, supra, 448 U.S. 56. See State

v. Maldonado, supra, 536 A.2d 600, 604; State v. Wyss,

supra, 370 N.W.2d at 759; Gard, Jones on Evidence, supra,

§ 10:7, at 270; Graham, Jndicia of Reliability and Face to

Face Confrontation: Emerging Issues in Child Sexual Abuse

Prosecutions, 40 U. Miami L.Rev. 19, 44 (1985).

-53-

CONCLUSION

For the foregoing reasons, amici respectfully

request that the decision of the Fourth District Appellate

Court of the State of Illinois be affirmed.

DATED:

Respectfully submitted,

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General

KAREN L. ZISKIND, Deputy

Attorney General

JANET E. NEELEY, Deputy

Attorney General

JANET G. BANGLE, .

Deputy Attorney General,

Counsel of Record

Attorneys for Amicus Curiae

State of California ex rel.

Daniel E. Lungren, Attorney

General

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.