# Amicus Curiae Brief — White v. Illinois

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## Record

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

## Text

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

OF
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

be
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

I

Il

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

15

15

-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

18

30

30

38

-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

44

44

46

49

53

-\-

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)

31

19

43, 47

16

37

31

43

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)

37
48

49

9, 23, 47, 51
37, 38

20

26

18

-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

27

22

34, 37

16

37, 42

43

-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

49

21, 37

27

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)

16

34, 37

37

49

27

26, 27

27

21

48

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)

37

45, 50, 52

48

37

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

33, 34, 35

35

48

37

-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

34

»

32, 50
17, 35
15

-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

15
31

15
31

15
31

16

15
31

15
31

-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)

32

15
31

15
31

15
31

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)

15
32

-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)

21

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

31
50
22

52

52

26

16
50

50

. 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.

4

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.

Mi
ARGUMENT

I

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-

II

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

I.

(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

'

EE

-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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0134%3A13. Public record. Not legal advice.