IDAHO v. WRIGHT
Legal provision: Right to Confront and Cross-Examine, Compulsory Process
Argument of James Thomas Jones
Chief Justice Rehnquist: We'll hear argument next in No. 89-260, Idaho against Laura Lee Wright.
You may proceed whenever you're ready.
Mr. Jones: Mr. Chief Justice, may it please the Court.
We are here today because the Idaho Supreme Court has misread the requirements of the confrontation clause of the Sixth Amendment.
By imposing three rigid preconditions to the admissibility of hearsay statements of unavailable child witnesses, the court has made it almost impossible to get this kind of evidence into the fact-finding process.
In essence, the court has held that the confrontation clause requires the hearsay declarations of child sex abuse witnesses to be videotaped, the product of non-leading, open-ended questions and elicited by an interviewer with no preconception of what the child should be disclosing.
The State of Idaho submits that this three-part test cannot be sustained by a reasonable reading of the confrontation clause, and that it is in fact in conflict with the purpose of the clause to advance the accuracy of the truth determining process in criminal trials.
In its effort to protect the confrontation rights of the defendant, the court has made it extremely difficult to get reliable hearsay statements made by child victims and witnesses before the trial courts.
And of course that is evidence that is critical in many of these cases.
Unknown Speaker: General Jones, may I ask, initially there were two counts, were there not?
Mr. Jones: Yes.
Unknown Speaker: And the conviction under the first count was reversed, was it?
Mr. Jones: The conviction for the lewd conduct with the younger daughter was reversed.
Unknown Speaker: Yes.
Mr. Jones: The conviction for lewd conduct with the older daughter, the five-and-a-half-year old, was not appealed from.
Unknown Speaker: Well, at some stage, and I'm not quite clear from the record when, the second count was dismissed, was it not?
Mr. Jones: No, Your Honor, the second count was not dismissed.
Laura Lee Wright is in the state penitentiary on her conviction on the count of molesting the five-and-a-half-year old.
The count of molesting the two-and-a-half-year old is before the Court.
The conviction was reversed on that count.
Unknown Speaker: And that's before us, is it?
Mr. Jones: That is the count that is before the Court at this point.
Unknown Speaker: Now, was there a dismissal on the... by the local prosecutor after the remand from the Supreme Court of Idaho, and then that dismissal was vacated?
Mr. Jones: Oh, I see what you're getting at.
After... after the Court granted certiorari, we found out that the prosecutor and the defense counsel had gone into the court and had stipulated for a dismissal in exchange for an agreement that had to do with termination of the parental rights of Mrs. Wright to the two-and-a-half-year old daughter.
The matter was brought to the attention of the trial court.
There was a hearing--
Unknown Speaker: Well was that... was on that motion to reinstate the count two?
Mr. Jones: --That is correct.
That is correct.
And then, after a hearing, the charge that was dismissed was reinstated.
It was on the ground of inadvertence under rule 60 of the Idaho rules--
Unknown Speaker: Well, didn't the trial court dismiss that count, though, before we granted certiorari?
Mr. Jones: --The count was dismissed before cert. was granted.
Unknown Speaker: Yes.
Mr. Jones: And it was after cert. was granted that we found out that the charge had been dismissed.
It was not dismissed by our office, but by the county prosecuting attorney and by defense counsel.
We were not notified.
Unknown Speaker: Well, he had authority to do what he did, did he not?
He had authority to--
Mr. Jones: Yes, he had the authority to do that.
Unknown Speaker: --Well, what... what was left of the case when the count was dismissed?
Mr. Jones: Well, we... we went into the--
Unknown Speaker: I mean this all happened while cert. was pending, but before we had acted on the petition for certiorari, did it not?
Mr. Jones: --Let's see.
The dismissal took place, I believe, in November of last year.
And cert. was granted after the dismissal, but before the charge was reinstated.
Unknown Speaker: Yes.
Mr. Jones: Right.
Unknown Speaker: What was the case that was here while the count was dismissed, before it was reinstated?
Mr. Jones: We believe that... that, while there was still the ability to go into the court to seek reconsideration of the dismissal order, and while we were operating under the inadvertent impression that the case was still pending, that the dismissal was not final.
Unknown Speaker: Sort of a contingent future case or controversy in a way.
Mr. Jones: I--
Unknown Speaker: The case is presently pending for retrial in the Idaho District Court, depending on the outcome of the case here?
Mr. Jones: --That is correct.
That is correct.
Unknown Speaker: And when you filed your petition, the... the count was still--
Mr. Jones: The count was still pending at the time we filed our petition.
Unknown Speaker: --Exactly And... and at the time the response to the petition was filed?
Mr. Jones: There was no response.
The court requested the response to the petition, but none was filed.
Now, had there been one, presumably all of us would have known that the case had been... that the dismissal order had been made.
But we were not advised.
The counsel for the... for Wright was requested on at least one occasion to file the response.
None was filed.
I think it was after the second request for a response that the case was dismissed.
Unknown Speaker: Was the dismissal with the understanding that a new trial would follow?
And was that conceded?
Mr. Jones: The dismissal was without prejudice, which would have given the prosecutor, had it wished, the ability to go ahead and--
Unknown Speaker: Even though the case had proceeded to judgment?
Mr. Jones: --That is correct.
We pointed out to the court that the dismissal had been made without prejudice, and that certainly the understanding was that that could have been refiled.
It was primarily an exchange of getting the case resolved so that they could terminate the parental rights of the mother.
And as I take it now, the question of whether parental rights have been fully terminated depends on whether this Court affirms or reverses.
Unknown Speaker: Unless there are further questions from the Court, why don't you proceed to the merits of the case, Mr. Jones?
Mr. Jones: Thanks, Mr. Chief Justice.
Essentially, we're saying that the Idaho Supreme Court, in looking at the case, had obtained the misimpression that instead of looking at all of the circumstances to see whether the hearsay statement was admissible, only focused on three circumstances.
That is, whether leading questions had been involved, whether there was a videotaping of the interview between the young girl and the pediatrician and whether he had a preconception of what was going to be disclosed.
I'd like to go into basically the... the testimony that's at issue.
Unknown Speaker: xxx... as the case comes to us, are we... must we assume that these witnesses were unavailable?
Mr. Jones: I'm going to cover that, Justice White.
Unknown Speaker: Are you going to get to that?
Mr. Jones: Because... in fact, I was doing a little bit of quick research during the previous argument.
The older girl, the five-and-a-half-year old, Jeannie, testified at trial as to the acts that had been carried out... the sexual acts that had been carried out against her and against her younger sister, by both of the defendants.
A number of witnesses, a couple of police officers, three doctors and a social worker came in and essentially verified that Jeannie had told them basically the same thing during interview sessions shortly after the sexual abuse became known.
The younger girl, Kathy, was found by the trial judge to be not capable of communicating to the jury and was not permitted to testify.
However, Dr. Jambura, a pediatrician, testified as to statements that had been made to him by Kathy during an examination that took place after she was taken from Wright's home, a day after.
During the course of the examination he checked out the medical situation, and found that there had been some abrasions in the vagina.
And after that he asked her some questions.
And four of those are relevant today.
The first question was: "Do you play with Daddy"?
--referring to Giles, the co-defendant.
"Does Daddy play with you? "
"Does Daddy touch you with his pee-pee? "
And at this point, in order to aid in answering the question, he drew a picture, and she added a penis to it.
And the final question was: "Do you touch his pee-pee"?
After making no initial response to the last question, the girl said,
"Daddy does do this with me, but he does it a lot more with my sister than with me. "
Her responses were admitted by the trial judge under Idaho's residual hearsay exception on the court's finding that they were reliable and that their circumstantial guarantees of trustworthiness were equivalent to statements permitted under some of the firmly rooted hearsay exemptions.
Unknown Speaker: Why was she... why was she unavailable for... for testifying in trial?
Mr. Jones: The trial judge, in the presence of the attorneys and the parties conducted... but out of the presence of the jury, conducted a voir dire examination and asked the young girl, Kathy, the... three years old at that time, a number of questions, and at the time of trial he determined that she was not capable of communicating with the jury and made that determination under Idaho law--
Unknown Speaker: You mean that child was just an incompetent witness?
Is that it?
Mr. Jones: --The child was not incompetent.
The judge did not hold that.
The judge held that her testimony in the courtroom setting would not have been useful, that she could not have communicated to the jury, and any--
Unknown Speaker: Well, isn't that tantamount to, quote, "incompetence of a witness" as that term is normally understood?
Mr. Jones: --Well, under Idaho law there are two parts of incompetence.
Number one, inability to communicate with the jury.
Number two, which the Court did not find, inability to understand what you're talking about.
Unknown Speaker: But either one means that the witness is not able to be called as a witness in a trial.
Mr. Jones: That would be correct.
Unknown Speaker: And we take the case on that assumption, that this young child had been determined not to be someone who could be called to testify at trial?
Mr. Jones: At that time, that's correct.
Unknown Speaker: But you're making the argument that that same child at an earlier time, outside the courtroom setting, would be competent, in effect, and that her testimony should come in under some hearsay exception?
Mr. Jones: Right, the judge was making--
Unknown Speaker: Is that right?
Is that your argument?
Mr. Jones: --That's correct.
Unknown Speaker: Now, have most courts held that if a witness is found to be incompetent that the only kind of out-of-court statements that could come in would be what we call the excited utterance, or res gestae statements?
Mr. Jones: Most of the courts have dealt with those kinds of statements, but there have been two circuit decisions... Nelson against Farrey and U.S. against Dorian, Seventh and Eighth Circuit cases, where a child has not come in, been essentially determined incompetent to testify in the courtroom setting, but their hearsay statements were admitted as being reliable at the time that they were made.
Unknown Speaker: Competence was... based on... was it based on the fact that testifying in the presence of the defendant would render... that she just would be incapable of doing that in the presence of the defendant?
Mr. Jones: The Court didn't specifically say, in the presence of the defendant.
The Court essentially said that in the courtroom setting this particular child, based upon his voir dire at that time, would not be productive, that--
Unknown Speaker: Do you suppose he would have come out if... if... if the... if... would that child have been competent to testify under the Maryland procedure?
Mr. Jones: --It's a possibility.
There was no determination by the judge as to the particular effect that the parents or the defendants would have on that child, whether the child would be traumatized.
The... the inquiry was not so much the trauma to be visited on the child, but the ability of the child to relate at that particular time and place the facts that--
Unknown Speaker: Yes, but that... and that's what incompetence to testify usually means.
It means that the child is too young to give a coherent account, that the child's understanding of questions and... and sense of reality to frame the responses is inadequate.
It has nothing to do with whether it's in a courtroom setting or not, does it?
Mr. Jones: --Well, it does to a degree, because here we were looking at a particular statement made by this child in an interview session between the child and a pediatrician, and we were not looking at the total range of everything that the child said.
Unknown Speaker: No, I'm not talking about at that stage.
I'm talking about the stage the judgment of incompetence to testify is made.
I had thought that usually that means, when a court makes that determination, that this child is... is just... or it could be an incompetent person.
That the person doesn't understand questions, cannot intelligently respond to answers.
It has nothing to do with courtroom trauma, that he could do it in another setting but can't do it in a courtroom.
Now, which did your court find here?
Mr. Jones: Well, the court found that the child would not be competent to relate facts in the courtroom setting.
Unknown Speaker: Just in the courtroom setting?
Mr. Jones: In the courtroom setting.
Unknown Speaker: --Well, that's not really incompetence as I normally understand it, incompetence to testify.
Mr. Jones: The judge did, however, look very carefully at all circumstances surrounding the making of the statement to the pediatrician, and he said this statement, when considering it in the totality of the circumstances, is a reliable statement and should be let in.
He made a distinction between... between competence and reliability.
I'd like to just point out the things that he looked at to determine that the statement was reliable.
He said, number one, that there was physical evidence to corroborate that sex abuse occurred.
Number two, that there was no motive for the two-and-half-year-old younger daughter to make up a story of this nature.
Number three, the nature of the statements themselves as to the sexual abuse are such that they fall outside the general believability that a child could make them up, or would make them up.
Number four, that the younger daughter was in the custody of the defendants at the time the injuries occurred.
Number five, that the older daughter testified that it was the younger daughter's mother and father who were the perpetrators of the sexual abuse.
And number six, that the perpetrators were well-known to the victim.
He said, looking at that statement in that context, the statement is reliable.
It meets the reliability requirements of the Ohio against Roberts case, and therefore it should be admitted.
He also found that essentially she was unavailable, and I would submit--
Unknown Speaker: And the... the Idaho Supreme Court proceeded on the basis that... that if the procedures they thought should have been followed had been followed, that the statements perhaps could be admitted--
Mr. Jones: --Certainly, if it had--
Unknown Speaker: --So they didn't... they didn't decide on the basis that that... of incompetency?
Mr. Jones: --No.
As a matter of fact, in the companion case--
Unknown Speaker: And that's the decision we're reviewing, is--
Mr. Jones: --Right.
In the decision in the companion case, Giles, they said the testimony was properly admitted.
That was three months prior.
No problem for hearsay purposes.
The only difference between this case is, they looked at it from the confrontation clause standpoint and said, well, it was fine for hearsay rules but it's not fine for confrontation clause purposes.
If I might, Mr. Chief Justice, I'd like to reserve the rest of my time.
Unknown Speaker: --Very well, General Jones.
Argument of William C. Bryson
Mr. Bryson: Thank you, Mr. Chief Justice, and may it please the Court:
In our view, the Idaho Supreme Court made a legal error in this case that's best summed up by pointing to three critical factors that the court did not consider or even mention in its opinion:
First, the corroboration in this case.
This Court and others have pointed out again and again in the confrontation clause context and others that the degree of corroboration for a particular statement is a very important indicium of reliability of the statement.
The second, the spontaneity of the statement.
While the Idaho Supreme Court is very critical of the doctor for asking leading questions, the court overlooks the fact that the one... the one response that the child made which is the critical response in this case,
"He does it with me but he does it more with my sister than with me. "
wasn't in response... wasn't responsive to a leading question.
It was blurted out in the course of the doctor's questioning.
Unknown Speaker: But it... it's not what we'd call an excited utterance or a res gestae--
Mr. Bryson: --No.
Normally, that's right, and... and we're not urging that it should be construed in that way.
But I think what's important in term... determining whether it bears the indicia of reliability is that it was spontaneous and volunteered.
It was not a nod or a yes, sir, yes, sir, yes, sir type response to a doctor's leading questions.
Third is the fact that this child, the younger child was in the custody of the defendants until just before the physical examination, and so the theory of the case, the theory of defense in this case, which is that the second set of parents must have... or somebody else must have programmed this child to make these statements, just won't wash with respect to this child, this younger child, because she wouldn't have had any opportunity to be programmed.
She was with the defendants throughout the period up until the time that she went to the doctor.
Unknown Speaker: --Mr. Bryson, what you refer to as these... this corroboration resembles to a certain extent a harmless error analysis.
Mr. Bryson: Well, there is... there is a certain degree of... of parallelism.
I think in Dutton v. Evans, Justice Stewart's opinion points out that one of the reasons that the evidence was admissible was that it really did not--
Unknown Speaker: Didn't prove much.
Mr. Bryson: --It didn't prove much, I guess is the point, and I think Justice Blackmun wrote a separate opinion in that case pointing out and relying on the harmless error factor.
It is true that where you have overwhelming evidence, corroborative evidence that supports the reliability of a statement, you may also have something that approaches harmless error.
Of course, harmless error isn't an issue in this case as it comes to this Court.
But, nonetheless, I think it's important to focus on each of the various features of corroboration to show how reliable this statement was even though, of course, it wasn't subject to cross-examination.
Unknown Speaker: Well, do you... do you think here that the out-of-court statements fall within the state's residual hearsay exception?
Mr. Bryson: I think they... the out-of-court statement fell... the state did hold in the other case, the Giles case, that it fell within the state's residual hearsay exception.
I think it would also... they would also fall within the Federal exception.
I don't... In other words, the--
Unknown Speaker: And would you take the position that anytime it falls within such an exception that it automatically can come in under the confrontation... despite the confrontation clause?
Mr. Bryson: --Your Honor, the way--
Unknown Speaker: Is it a firmly rooted exception if it's in the residual exception category?
Mr. Bryson: --Your Honor, my answer to that question is that the residual exceptions are written in order to try to incorporate this Court's confrontation clause jurisprudence.
In other words, they require, among other things, specific indicia of reliability.
So I think if a court, a Federal court, let's say, applying the Federal residual exceptions correctly, finds that something falls within the residual exception, it would almost necessarily have also made the findings necessary to satisfy the confrontation clause.
But now, of course, a state would be free to construe its residual exception more broadly than that, and if it did then you would have to view the confrontation clause inquiry separately.
So I would say normally my answer to your question is yes but not necessarily, particularly depending on the way the particular clause was... was construed in the case.
Unknown Speaker: Well, what... what's the effect of the finding that the witness is incompetent to testify?
Mr. Bryson: Well, Your Honor, I think where the finding is... and by the way, the finding in this case was... was not objected to by... indeed, both sides concurred that the witness was incapable of testifying in court.
Where the finding is simply that the witness cannot communicate in court and it doesn't suggest what normally we think of by incompetence, which is that the witness is incapable of observing or reporting in any context, then the problem is just one of unavailability.
It doesn't... in other words, the finding of incompetence in this case, if that's what it was, was not a finding that went to the child's ability to... to observe and communicate.
It went to the child's ability to testify in court, and on that there was no dispute among the parties.
Now, if I may point to the... the corroboration that's present in this case.
Number one, there's clear physical... evidence of physical abuse to the younger daughter.
The pediatrician found strong basis for a belief that there had been physical abuse.
Two, testimony in court from the older daughter, which is essentially, you could use the expression, an interlocking statement with that of the younger daughter because both of them said that the parents had abused each of them.
That was the testimony of the older daughter.
It was the statement of the younger daughter.
They were interlocking in that sense.
The third piece of corroborative evidence, there was physical abuse of the older child.
Again, the medical evidence on this is clear, and the... by the way, that was corroborated not by... just by Dr. Jambura but by two other doctors.
And fourth, out-of-court statements, which were admitted without objection, of the older daughter detailing in... extensively to a number of different people, including the therapist, the various incidents of... of abuse with respect to both daughters.
So this is a very well corroborated out-of-court statement.
You seldom see this degree of corroboration.
Unknown Speaker: Mr. Bryson, I'm sorry to interrupt again and to ask a question on this, but it troubles me, and I'm going to do it anyway.
What if the finding of the trial court is in the traditional sense of incompetence of a witness to testify?
Would you be here urging that if you find all these outside things, then that testimony ought to come in?
Mr. Bryson: If the... if the trial court finds that the witness is truly incapable of observing... let's take it out of the child area and say this is the person of such low mental capacity that the person is... the trial judge's judgment is that person is incapable of making observations and reporting them to anyone in any context.
Then I would think that would be a serious problem for admissibility in that setting because the judge would have found that there is no basis for believing that the statement is reliable because the judge would have found that this can't have happened.
Unknown Speaker: And do we know for sure what the finding was here?
Mr. Bryson: Yes.
The judge at joint appendix 39 makes a finding that the child is incapable of communicating with the jury, and that was the whole thrust of the... of the colloquy that preceded it, and it was the basis on which the Idaho Supreme Court took this case.
Now, I want to emphasize again, there are--
Unknown Speaker: What page is that [inaudible] on?
Mr. Bryson: --I think it's JA 39, I believe, is the place where the actual finding is made, the unobjected-to finding, on the top of the right-hand side, I think.
The... there was, according to the Idaho Supreme Court, a flaw in the interrogation, and I'd like to address that briefly.
The principal claim is the doctor must have been biased, and here I think the Idaho Supreme Court really went wrong.
Doctors do get as much information about a case in advance to aid their diagnosis as they can; and yet, the Idaho Supreme Court seemed to take the view that if this doctor had advance information that suggested there may have been child abuse in this case, that his report of the statement was somehow impeached, somehow unreliable.
Unknown Speaker: Did it say automatically--
Mr. Bryson: No.
Unknown Speaker: --or was it just one of the factors?
Don't you think it is a proper factor in deciding whether a prior examination was reliable or not, whether the person had an objective in mind in making the examination?
Mr. Bryson: I think those are two different things.
I don't think there's any indication in this record that this doctor had an objective in mind.
This doctor... there's no suggestion that this doctor was trying to find child abuse.
Unknown Speaker: Well, no, but he was looking for child abuse.
Mr. Bryson: He certainly was, just as a doctor would look for evidence of whatever particular malady the person... the patient came to him complaining of.
But that doesn't mean that it's more like that you are suspicious of the doctor--
Unknown Speaker: Oh, it's a lot more reliable if the child blurts out something relating to sex abuse in a... in a conversation that had nothing to do with that subject, where the doctor was trying to find something else.
Mr. Bryson: --That... that--
Unknown Speaker: And she said, you know, daddy... daddy did something else to me.
That would... wouldn't that be more reliable?
Mr. Bryson: --That would be very reliable, but you're going to have a lot of cases in which a child will be taken to a doctor for a question of whether this... there's evidence of child abuse where the doctor knows that there is a suggestion of child abuse.
Unknown Speaker: That's right.
Mr. Bryson: And the medical exception, and I would... I would--
Unknown Speaker: But without saying that that disqualifies it automatically, don't you agree that that renders it less reliable than the same information elicited in the different context?
Mr. Bryson: --Well, it... to the extent that if it's blurted out in the context where no questions on that subject had been asked at all, I would think it would be extremely reliable.
So yes to that extent.
But the Idaho Supreme Court said something very different.
They said you have to be dubious of this evidence because of the doctor's advance knowledge, and I would point out--
Thank you very much.
Unknown Speaker: Thank you, Mr. Bryson.
Argument of Rolf Michael Kehne
Mr. Kehne: May it please the Court:
I have two general responses to our state attorney general and Mr. Bryson.
First of all I'd like to talk about this notion that we can cure a confrontation violation by corroboration.
I would submit, as Professor Burger pointed out very eloquently for... for her brief for the ACLU, that all the corroboration in the world will not cure a violation of the confrontation clause.
If we take the state's argument to its extreme, then we will have trial judges saying, I believe this defendant is guilty and I am sure of it beyond a reasonable doubt.
Therefore, it is okay for me to allow in hearsay evidence of robbery victims, eye witnesses, anybody else that the state says we cannot procure today.
They are unavailable to us.
And according to the state's theory, this Court should affirm because the trial judge had a lot of other evidence to corroborate that determination that yes, well, it doesn't matter, this defendant's guilty anyway.
And I don't think this Court's opinions have ever suggested that that could be the case.
It may be that we can imagine some way of conducting criminal trials that will lead to just as reliable results as the way we do it, but the fact is, in this country we do it by allowing defendants to confront their accusers.
It doesn't matter--
Unknown Speaker: We haven't... we have used language like that, though.
How do you explain that language in our cases?
We have talked about corroboration as being one of the elements that will allow in hearsay.
Mr. Kehne: --If it is corroboration surrounding the circumstance of the making of the statement.
Let me submit to the Court that the true standard is whether or not confrontation and cross-examination would be useful to the accused and would be useful to the jury.
If the truth or falsity of the statement is determined solely by the nature of its making, the circumstances of its making and so forth, it really doesn't matter if we don't confront and cross-examine.
I think of the classic example of the little kid who is too young to testify who comes running out of the perpetrator's bedroom holding a genital area and saying, he hurt me, he hurt me.
I don't see any need for us to cross-examine that statement.
Nor would it do us any good, nor would it give the jury any better information, because all the things relevant to whether or not the statement is reliable evidence are found in the circumstances of the making of the statement against.
Unknown Speaker: So you say there's a difference between the kind of indicia of reliability which attend the exception itself and corroboration by just other accumulated evidence?
Mr. Kehne: Exactly, Mr. Chief Justice.
So I think it's wrong for the state to argue that we can allow this statement in because another witness... an entirely other witness... corroborates the statement, either the medical doctor's physical findings or the girl's sister.
That would be more like the situation I brought up before, where the trial judge rules, I believe the person is guilty because I see all this corroborative evidence, therefore I'll let in hearsay from the victims of the crime, the eye witnesses and so forth.
And I don't think the Court has ever suggested that we could do that.
The other matter I'd like to bring to the Court's attention to start out with is, we submit the Attorney General of the State of Idaho has misrepresented to the Court the opinion of the Idaho Supreme Court.
And I challenge Mr. Jones in his rebuttal to the Court to show us any place in the text of the opinion... now, I'm not talking about what one justice wrote in a dissent or another justice wrote in a concurrence in another case, but in the text of the opinion that says, we will not let in any of these statements if there are any leading questions.
Unknown Speaker: It's not an easy set of opinions to figure out, Mr. Kehne.
Mr. Kehne: I agree with that.
It could have been drafted a little more elegantly.
But it never suggests... the court below never suggests that these three criteria... absence of leading questions, absence of preconception by the interviewer and of existence of a videotape... are hard, fast, inflexible criteria, the absence of one of which would mean that the statement can't be admitted into evidence no matter how reliable it is, based on other circumstances.
Unknown Speaker: Do you disagree with what the court seems to have indicated, that if... that if these deficiencies hadn't existed, if there had to have been videotape, no leading questions and no preconception, that the statement could have been admitted?
Mr. Kehne: No, I don't disagree that if there had been all those I would have no problem with them letting this statement in.
I... I have a problem, I disagree with the state's position that the Idaho Supreme Court is holding that if only one was missing--
Unknown Speaker: What would... what would the presence of those... what would the presence of those procedures have done that would make you say it would be all right?
Mr. Kehne: --All right--
Unknown Speaker: It would... really just reliability, isn't it?
Mr. Kehne: --It... it's just reliability, that... that we could see--
Unknown Speaker: And we do judge this case on the basis that the witness is unavailable?
Mr. Kehne: --Yes, we do.
Unknown Speaker: Um-hum.
Mr. Kehne: But it's reliability that comes from the circumstances in which the statement was made, as opposed to corroboration by other witnesses.
We take the instance of leading questions--
Unknown Speaker: So you say that even if this... you say that as long as there was a... that the... that there was this indicia of reliability... sufficient indicia of reliability, that the confrontation clause would not be violated by admitting the testimony?
Mr. Kehne: --That is my opinion, and I believe that is what the Idaho Supreme Court said, contrary to what the Attorney--
Unknown Speaker: Even though... even though it would be sort of a new sort of a holding?
Mr. Kehne: --It would be an expansion of an exception to the confrontation clause, yes.
The problem with leading questions is, as research shows, you can create a memory in a child.
If you have the child repeat it, and the child is young enough, the child will not be able to tell whether that... won't be able to distinguish that memory from an event that really happened.
In other words--
Unknown Speaker: Mr. Kehne, anybody who's tried lawsuits knows that you have to lead to a certain extent to get the witness to focus on, you know, what... what's the subject of the inquiry, rather than whether it's raining or sunny outside.
Mr. Kehne: --I agree with that completely, and I believe the Idaho Supreme Court does, too, that it is okay to use sparing, judicious use of leading questions.
Our point is that if you use them, even if you have to use them to a great deal, we will be protected if you videotape the entire procedure so we can see it again, so our experts can see it again and talk to the jury about it, and so the jurors themselves can see it and they can say, okay, the experts say you can lead a child into saying something that wasn't true.
Let me see exactly what happened, and I'll decide for myself if that happened in this case.
Unknown Speaker: Of course, you could have cross-examined the doctor here.
Mr. Kehne: No.
I... I disagree with that, Mr. Chief Justice.
I could... we could have cross-examined the doctor till we were blue in our faces, but it wouldn't have shown the doctor's nonverbal communications, which everybody agrees is pertinent, the child's nonverbal communication, and while it might have shown the doctor... if he was intentionally manufacturing evidence, it might have shown that, but if he's innocently doing it, and he's doing it without even being aware of, all the cross-examination in the world won't help us there.
Unknown Speaker: But you could ask him why he used these leading questions, and you could also argue to the jury, perhaps not as effectively as with a videotape, that this is something that can produce untruthful answers.
Mr. Kehne: That's right.
We can make that argument, and it is so less effective that I don't think it's fair or within what the court ought to allow in the confrontation clause because it just seems rational that the state's going to come back and say well, it could have happened, but have you shown us any evidence that it did?
Unknown Speaker: Well, of course a video--
Mr. Kehne: Well, of course we haven't.
Unknown Speaker: --A videotape wouldn't show you that either, unless it's a very unusual videotape, maybe a split screen with one half of it on the questioner and the other half on the child.
You're talking about nonverbal suggestions made.
That wouldn't come out on the video.
What kind of a videotape are you talking about?
Mr. Kehne: Well, that's exactly how we do it in Idaho now, is a split screen, where both--
Unknown Speaker: With one showing the questioner and the other half showing the--
Mr. Kehne: --Yes.
Unknown Speaker: --the person being interrogated?
Mr. Kehne: Yes, Justice Scalia.
Both people are on the videotape and the entire thing is video-recorded from the very time the interviewer meets the child until the end of the interview.
Unknown Speaker: Excuse me.
You say that that's the way you do it in Idaho for... for--
Mr. Kehne: In our local community.
Partly as a result of the decision below we now have a central screening facility called Children at Risk Evaluation Screening, and if a social worker even suspects sex abuse, a doctor, a minister, a divorce lawyer... anybody involved in this whole system... the child is taken to the CARES program for the screening, which is done on videotape.
It's a practical thing, a practical result that has happened as a result of the decision below, and it's something that could happen nationwide if the Court affirms.
Unknown Speaker: --Well, Mr. Kehne, it obviously is desirable, if... if the testimony can be obtained that way.
Do you take the position that the Federal Constitution requires it?
Mr. Kehne: Absolutely, I do.
Unknown Speaker: Despite any other indicia of reliability that a particular case might pose?
Mr. Kehne: Excuse me, Justice O'Connor.
I may have misstated myself.
Am I... if you're asking me do I require or do I say the Constitution requires videotaping in every circumstance, my answer is no.
It is one of the factors that the Court should look at in deciding admissibility under the Constitution.
But if it is necessary to use leading questions, if instead of an inadvertent--
Unknown Speaker: And in examining children I think almost all states and the Federal Rules as well would allow the use of leading questions in examining child witnesses, would they not?
Mr. Kehne: --Yes, they would.
Of course, if this child, as was talked about earlier, if the child comes up with a statement about sexual abuse on his own or on her own, that lends a lot of credibility to it.
If the examiner is specifically trying to investigate it and the investigator has some beliefs ahead of time, the investigator is more likely to ask leading questions.
Again, neither the state... neither the state supreme court nor I have any problem with that or the preconception, nor do we always say there should be a videotape.
Our problem is the interrelationship of those factors.
The stronger the interrogator holds a preconception, the more likely the interrogator is to suggest a memory to the child of something it didn't even have, whether consciously and viciously or completely accidentally.
If the interrogator believes this is what happens and asks leading questions, it's more likely that that's what he's going to get out.
If the interrogator finds that he needs to use extremely blatantly leading questions, well, that may... in a proper case that may be necessary.
And there again, we don't have a problem with that, but videotape it so we can protect ourselves.
Unknown Speaker: So you take the position that if a child witness is unable to testify in a courtroom in the presence of a defendant, that it depends on the totality of the circumstances whether the out-of-court statements may come in?
Mr. Kehne: Yes, Justice O'Connor.
If I may clarify a little bit, the totality of circumstances surrounding the statement, not what other witnesses may corroborate or other witnesses may say--
Unknown Speaker: Mr. Kehne--
Mr. Kehne: --and that's how I see the holding below.
Unknown Speaker: --Mr. Kehne, what happens if you... you have this... this videotape and the child does indeed say this but the defendant says the child hasn't been with me for a year now.
Let's say it's my son, and I say all of this has been planted in the child's mind.
The child does believe it, as you say, but it... the child's been led to believe it by the parents.
Now, how does the defendant possibly establish that if he cannot place the child in front of the jury?
Does the defendant have a shot for a private videotaping at which he can get a social worker on his side to try to probe with the same kind of leading questions as to whether, if indeed you can find out that kind of thing, whether the other parent planted this thought in the child's mind.
What is... what is the defense against that kind of activity?
Mr. Kehne: In our jurisdiction, the trial courts are pretty nice and kind about giving us access to victims for things such as that.
The problem with it is if instead of having this interview videotaped and it's the first interview of the child, if the parents have been feeding the kid... or somebody else... has been implanting this in the child's mind for a significant period of time before the video camera comes on, then there is no way to get at the truth at that point.
That's why I think it's important that it's the initial interviews that be videotaped or as close to the initial interviews as possible.
It does us no good after we've been talking to the child for a year, all of a sudden to turn the video camera.
Unknown Speaker: How can you say that there's any inherent indicia of reliability and yet at the same time say what you've just told me?
There are inherent indicia of reliability but, to tell you the truth, we can't really tell whether the child knows this because it happened or knows it because somebody has persuaded him that it--
What kind of inherent reliability is that?
Mr. Kehne: If we have the record of the first time it came out or at least the first time that somebody tried to interrogate the child about it, then we can get to the basis of it.
If somebody's been interrogating the child and leading the child for a year before the videotape goes on, then there... it doesn't help.
Unknown Speaker: Well, I wouldn't like to be a defendant in such... in such circumstances.
I get no shot at the child.
The child is... is excluded from the trial, and a videotape is put on, and... and all I can do is I can just ask the jury to believe that the child's been fed all of this by some malicious person over the past year, and I get no... no chance to prove it in any other fashion.
And that... that's the system you... you say is constitutional.
Mr. Kehne: Justice Scalia, you're pointing up another possibility not presented by this case, and I don't know if this is where you were going, but I... I believe the Court should leave this possibility open.
And there is a whole'nother side to the potential of solving this dilemma, and that is to say that state competency rules will just fall in the face of the confrontation challenge, that if you want to let these hearsay statements in, then you put the child on the stand so the jury can see exactly what the trial judge saw that led the judge to believe the child could not testify reliably.
Now, I'm excluding the situation where the child is traumatized, but wouldn't it have been helpful for this jury to hear the... the colloquy on the voir dire to determine competency?
"Hi, Kathy. "
"Can you tell me your name? "
"Are you kind of scared? "
"Can you tell me your name and tell me how old you are? "
"Can you tell me the names of the toys you have that you are holding? "
"That's your name, okay. "
"How old are you, Kathy? "
"How old are you? "
"My... Kathy Wright".
"Can you tell me the names of your father and your mother? "
"Can you tell me what they are? "
"Do you know where you are right now? "
"Can you tell me how old you are, Kathy? "
"Do you know how many years you've been alive? "
"Six years. "
"How old do you think you are? "
And, of course, she was three years old.
Wouldn't it have been helpful for the jury to see that before they decide whether or not they're going to believe this child?
Unknown Speaker: xxx bit more than just the inability to testify in a courtroom, isn't it?
Mr. Kehne: That is the record in the case before the Court.
Unknown Speaker: Well, Mr. Kehne, the finding of the court that we have here is basically the statement by the court:
"Is there any disagreement that she is not capable of communicating to a jury? "
That was the question the trial judge asked.
Both counsel agreed that she was not capable of communicating to the jury.
What is the nature of that finding?
Is it... is it that she's not able to respond to questions and make observations?
Mr. Kehne: The finding is, and amply supported by the record, that child cannot respond to simple questions with simple answers.
Unknown Speaker: So you disagree with the characterization of that finding by counsel on the other side?
Mr. Kehne: I certainly do.
That's competence like witness competence has always been talked about.
Unknown Speaker: I thought you had settled that we... just to the contrary earlier in your argument, that both sides had agreed that this person was unavailable but not that the witness was incompetent in the technical sense?
Mr. Kehne: The word "competence" wasn't used.
That is our rule.
The rule that the judge applied, the trial judge, is our rule of witness competence.
We don't have one of those rules that say if you're under ten or if you're under five.
It's can you communicate and are you capable of receiving just impressions, and based on that record the trial judge correctly concluded this child was not and is incompetent under Idaho law.
Unknown Speaker: Was this... was it the same judge who conducted the voir dire of the child in person and who later admitted the declaration of the doctor... the declaration to the doctor?
Mr. Kehne: It was, Mr. Chief Justice.
Unknown Speaker: So, at the time the trial judge admitted the declaration, he must not have felt that this witness was... or the declarant was incompetent?
Mr. Kehne: It's... it's hard to tell that.
Unknown Speaker: Well, you know, I would think it would be a very strange judge who would admit a statement to a doctor by a witness whom he regarded as incompetent or by a declarant whom he regarded as incompetent.
Mr. Kehne: Well, if a child is incompetent at one time, that doesn't necessarily mean she's incompetent at another time.
And what is important is what this judge looked at in order to rule that that statement is admissible, and that is the testimony of the girl's sister, the testimony of the doctor and his physical findings... in other words, all this corroboration from other unrelated evidence which we should not look at in a confrontation clause analysis.
For hearsay rule purposes, it's fine.
And the Idaho Supreme Court said under our hearsay rule that's fine and it will be admitted.
When we're talking confrontation, whether the defendant will have the right to have that person in front of the jury where they can see demeanor evidence and the defendant can cross-examine that witness, then we're just talking about the circumstances of the statement, and that's another matter.
Unknown Speaker: May I ask you a question?
Suppose... the doctor here testified that, Dr. Jambura, in his professional judgment there had been some kind of abuse of the child.
Would the statement made by the child to the doctor have been admissible, in your judgment, if the judge had given an instruction to the jury that it is not admitted for the purpose of deciding the truth of the matter asserted in the statement but rather... merely as basis for the doctor's professional opinion?
Mr. Kehne: Well, I... first of all, I don't think that would be allowable under Idaho law.
Second of all, I think it's stretching the effectiveness of instructions to the jury a little bit to admit it and say, but you have to ignore it, as far as determining what the truth is.
Unknown Speaker: Well, that's done all the time with a lot of hearsay statements.
Mr. Kehne: It... it is.
But if we're talking about something so direct and central to the crime, my understanding is this Court has put some restrictions on a court's ability to do that.
Specifically, the case where--
Unknown Speaker: But, see, the witness being confronted, then, would be the doctor, not the child.
Because you're asking the doctor for the basis for the doctor's expert opinion, which did get in, which wasn't objected to, that... namely, that the child had been physically abused and so forth.
And one of the things the doctor no doubt relied on is that the child told him he was abused... told him that she was abused.
But you think that would... that would all be inadmissible, even under that circumstance?
Mr. Kehne: --Yes, I would.
I... again, it may be that that would be admissible under the hearsay rule.
That doesn't mean it would be admissible under the confrontation clause.
I submit that it would not.
Unknown Speaker: But the issue, I suppose, is which is the witness that the defendant has the right to confront, the doctor or the child?
Mr. Kehne: Right.
And I think it ought to be the one who says you're guilty.
Namely, the child.
Unknown Speaker: Well, they're both saying he's guilty.
Mr. Kehne: Well, that's true.
Unknown Speaker: The doctor says it, too.
Mr. Kehne: That's true.
But it's the child who made the hearsay statement.
So we should... yes.
And for that reason we should have a right to confront them both.
Unknown Speaker: Yes.
May I ask you another question now that I've got you interrupted?
Did you try this case?
Mr. Kehne: No, sir, I did not.
Unknown Speaker: What sentence did the defendant get?
Mr. Kehne: 20 years on each count.
Unknown Speaker: On each.
And were they concurrent sentences?
Mr. Kehne: Yes, sir.
Unknown Speaker: What interest does the defendant have in the outcome of this appeal?
Mr. Kehne: She is filing a petition for post-conviction relief on the other count.
And she is still hopeful of getting completely out of prison.
The other count wasn't raised on direct appeal because there were issues that were not properly in the record, one of the worst being that one public defender represented both the defendants, and that never should have happened.
And she still intends to file that petition.
One reason we're holding off is we're waiting to see the outcome of this proceeding.
Our suggestions of videotaping have been objected to by the other side.
The child advocate amici have said, well, it's not practical.
They've said... and I'm paraphrasing now... that, well, these disclosures come out in a variety of circumstances, few of them lend themselves to videotaping.
And I'll agree with that.
I just wonder what the heck it has to do with the situation before the Court, where young Kathy Wright was ripped out of her parent's home because the cops and the social workers had specific information from Kathy's sister that she'd been sexually abused.
They took her into protective custody.
They had sole control over her.
They chose the doctor and took her to that doctor solely for the purpose of investigating sexual abuse.
While I think the child advocates are right to say, we just can't expect videotaping of spontaneous statements, we have no problem with that.
What we're concerned about is where leading questions are used and the interrogator had preconceptions.
And there is absolutely no good reason on Earth that we can see why the interrogation could not have been videotaped.
We would submit that use of videotape fulfills some of the very values that the confrontation clause was designed to secure, and does it in similar ways to cross-examination.
Unknown Speaker: xxx.
Were you in the appellate proceedings before the Idaho Supreme Court?
Mr. Kehne: Yes, sir.
Unknown Speaker: And did you make the suggestions that... of what might... what might be required, the videotaping, the--
Mr. Kehne: Yes, yes.
If there is a videotape the jury can see demeanor.
Of course, the Court has said again and again, U.S. v. Mattox, just one of many examples, that one of the purposes of the confrontation is preservation of demeanor evidence.
If a videotape is presented, it preserves evidence of any tainting, any suggestion by the interviewer.
And in that respect, it serves, like cross-examination, as a means for an innocent accused to protect himself or herself.
If a memory like this has been suggested to a child and repeated, cross-examination at trial is apt to offer an innocent accused impotent protection, because the memory has already been confabulated and entrenched in the child as a memory of a real event.
On the other hand, the videotaping of the actual interview where the suggestion occurred will offer us a lot of protection, akin to that that cross-examination ordinarily offers for other witnesses.
We aren't suggesting that all these things have to be videotaped.
We're only suggesting that a videotape provides the state or the government an excellent means of proving those indicia of reliability required by this Court's opinions.
Unknown Speaker: --[inaudible] insist on there being a trial run before they... with the defendant in the room?
Mr. Kehne: I'm not sure I understand.
Unknown Speaker: Well, you don't think that the defendant... that... you wouldn't say the defendant had to be present at the interview?
Mr. Kehne: No, because it's impractical.
Because these interrogations usually occur before there's any charge, and of course before the defendant has notice of what's going on.
It's an investigation.
The defendant doesn't have a right to counsel at that point, or at least--
Unknown Speaker: But you don't... you don't... you wouldn't insist... you wouldn't insist that after that, that you actually have the... a pretrial confrontation between the victim and the defendant to see if the defendant... to see if the victim really is unavailable to testify?
Mr. Kehne: --If that's what we're relying on.
In the case of Kathy it wasn't.
She just can't answer questions.
If the state is relying on the fact that the child is too afraid to talk in front of the defendant, yes, I would insist on, well, let's actually see it.
If... I hope that answers your question.
If there are no other questions, I'm about out of time, and I have nothing else.
Unknown Speaker: Thank you, Mr. Kehne.
General Jones, you have two minutes remaining.
Rebuttal of James Thomas Jones
Mr. Jones: Thanks, Mr. Chief Justice.
We're not here to suggest that the Court permit all hearsay statements of young children in, or that unreliable statements be permitted in evidence.
What we're asking is that the trial court be permitted to look at all of the circumstances surrounding the making of the statement.
And if the Court finds that there are guarantees of trustworthiness, as required both by Roberts and by the Idaho Rules of Evidence, that the statement go in.
In this case, we had a young girl who was taken out of the home of the defendant.
The next day she was examined.
The doctor found vaginal injuries that occurred two or three days before, at the time she was in the custody of both of the defendants.
At the time the doctor finished his medical examination, he asked her some questions.
When he drew a figure, she added a penis to it... a two-and-a-half-year-old girl doesn't necessarily know what a penis is.
She, in response to questions, volunteered a statement that Daddy does this to me, but he does it to my sister a lot more than me.
There was corroborating testimony IN... over and above those circumstances from the older girl to talk about the sexual abuse visited on both of the girls.
And in addition to all that, in the Giles case, the Idaho Supreme Court said this statement... by a majority opinion, they said this statement is reliable.
And they gave it their stamp of approval.
The only reason we're--
Chief Justice Rehnquist: Thank you, General Jones.
The case is submitted.
Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.