Delaney, H. Jean

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 66 Number 4 Article 9 1990 Criminal Law: Admission of Child Sexual Abuse Vicitim's Hearsay Statements Violated Defendant's Confrontation Rights as Statements Lacked Particularized Guarantees of Trustworthiness H. Jean Delaney Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Delaney, H. Jean (1990) "Criminal Law: Admission of Child Sexual Abuse Vicitim's Hearsay Statements Violated Defendant's Confrontation Rights as Statements Lacked Particularized Guarantees of Trustworthiness," North Dakota Law Review: Vol. 66 : No. 4 , Article 9. Available at: https://commons.und.edu/ndlr/vol66/iss4/9 This Note is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. CRIMINAL LAW: ADMISSION OF CHILD SEXUAL ABUSEVICTIM'S HEARSAY STATEMENTS VIOLATEDDEFENDANT'S CONFRONTATION RIGHTS ASSTATEMENTS LACKED "PARTICULARIZEDGUARANTEES OF TRUSTWORTHINESS"Laura Lee Wright and Robert L. Giles were alleged to havesexually abused Wright's two daughters.' Wright and Giles werecharged and jointly tried on two counts of "lewd conduct with aminor under [sixteen],..." a felony under Idaho law.2 The trialcourt determined that Kathy, the younger child, who was onlythree years of age, would not be a competent witness as she wouldnot be able to communicate to the jury.3 Over the defendants'objection, the trial judge allowed a pediatrician, Dr. John Jambura,to testify as to statements made to him by Kathy.4 Kathy's state-ments were made in response to certain leading questions asked ofthe girl by Dr. Jambura, during an examination for possible sexualabuse.5 At trial, the jury convicted both Wright and Giles.'Wright appealed.7 The Idaho Supreme Court held that the admis-1. Idaho v. Wright, 110 S. Ct. 3139, 3143 (1990). Wright allegedly restrained herdaughters while Giles had sexual intercourse with them. Id.2. Id.3. Id. at 3143. At the time Wright and Giles were charged, the older daughter was 5-1/2 years of age, and Kathy was 2-1/2. Id.4. Wright, 110 S. Ct. at 3143. Kathy's statements to Dr. Jambura were admitted underIdaho's residual hearsay exception. Id. at 3144. The exception provides in relevant part:Rule 803. Hearsay exceptions; availability of declarant immaterial. - Thefollowing are not excluded by the hearsay rule, even though the declarant isavailable as a witness....(24) Other exceptions. A statement not specifically covered by any of theforegoing exceptions but having equivalent circumstantial guarantees oftrustworthiness, if the court determines that (A) the statement is offered asevidence of a material fact; (B) the statement is more probative on the point forwhich it is offered than any other evidence which the proponent can procurethrough reasonable efforts; and (C) the general purposes of these rules and theinterests of justice will best be served by admission of the statement intoevidence....IDAHO R. EVID. 308.5. Wright, 110 S. Ct. at 3143-44. Dr. John Jambura, a pediatrician, conducted medicalexaminations of the two girls which indicated the existence of sexual abuse. Id. Dr.Jambura asked Kathy several questions during his examination of her: "Do you play withdaddy? Does daddy play with you? Does daddy touch you with his pee-pee? Do you touchhis pee-pee?" Id. at 3144. Kathy answered affirmatively to the first three questions. Id. at3144. Kathy did not respond to the last question. Id. at 3144. However, after Dr. Jamburaasked the last question, and after a period of silence, Kathy volunteered to Dr. Jambura that"daddy does do this with me, but he does it a lot more with my sister than with me." Id. at3144.6. Wright, 110 S. Ct. at 3145. Both Wright and Giles were "convicted of two counts oflewd conduct with a minor under 16 .. " Id.7. Id. Wright and Giles separately appealed their convictions only involving theyounger child, Kathy. Id. See State v. Giles, 115 Idaho 984, 772 P.2d 191 (1989XGiles'appeal).NORTH DAKOTA LAW REvIEwsion of Kathy's statements violated Wright's sixth amendment con-frontation clause rights, and reversed and remanded.8 The UnitedStates Supreme Court affirmed the judgment of the SupremeCourt of Idaho and held that the admission of Kathy's hearsaystatements violated Wright's confrontation clause rights as thestate failed to show that the statements contained the "particular-ized guarantees of trustworthiness" necessary to satisfy therequirements of the confrontation clause.9 Idaho v. Wright, 110 S.Ct. 3139 (1990).The sixth amendment's confrontation clause provides that"[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."'10 A strict read-ing of the confrontation clause would prohibit the admission of anystatements made by a declarant who does not testify at trial." 1 TheCourt, however, has consistently rejected such a strict interpreta-tion as "unintended and too extreme."'" Rather, the Court hasheld that in limited situations, the admission of certain hearsaystatements does not violate a defendant's confrontation clauserights. 13The United States Supreme Court, in Ohio v. Roberts,'.'articulated two general requirements that should be met in orderfor the admission of a nontestifying declarant's statement to satisfythe confrontation clause. 15 The first requirement is that of "neces-sity.""6 The state must show that the declarant is not available totestify.' 7 The second requirement is that the unavailable declar-ant's statement must contain ample "indicia of reliability."' 8  If8. State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989).9. Wright, 110 S. Ct. at 3152-53.10. Id. at 3145 (quoting U.S. CONST. amend VI).11. Id.12. Id. at 3145-46 (citations omitted).13. Id. Not all hearsay that is admissible under a state's evidence rules satisfies therequirements of the confrontation clause. Id. at 3146. To satisfy the confrontation clause,the State must produce the declairant at trial, if possible. Id. (quoting Ohio v. Roberts, 448U.S. 56, 65 (1980)). If the declarant is unavailable, the declarant's statements must be veryreliable to be admissible under the clause. Id. (quoting Roberts, 448 U.S. at 66).14. 448 U.S. 56 (1980).15. Ohio v. Roberts, 448 U.S. 56, 65 (1980), applied in Wright, 110 S. Ct. at 3146-49.16. Wright, 110 S. Ct. at 3146 (quoting Roberts, 448 U.S. at 65). The confrontationclause has traditionally been interpreted to reflect a "preference for face-to-faceaccusation .... Id. Therefore, to satisfy this preference, the declarant must be produced attrial to testify, if possible. Id.17. Id. But see United States v. Inadi, 475 U.S. 387 (1986Xunavailability requirementnot applied to nontestifying co-conspirator).18. Wright, 110 S. Ct. at 3146 (quoting Roberts, 448 U.S. at 66). In order to satisfy therequirements of the confrontation clause, a statement of an unavailable declarant must be"so trustworthy that cross-examination of the declarant would be of marginal utility." Id. at3150.744 [Vol. 66:743CASENOTEthese two requirements are satisfied, admission of the hearsaystatement does not violate the defendant's rights under the con-frontation clause. 19In Idaho v. Wright,20 the United States Supreme Courtaddressed the issue of whether the admission of Kathy's state-ments to Dr. Jambura violated Laura Lee Wright's confrontationclause rights.2 ' Under the Roberts test, in order for the admissionof Kathy's statements to satisfy the requirements of the confronta-tion clause, Kathy must have been unavailable to testify.22 InWright, the Court did not determine the precise requirements fora showing of unavailability sufficient to satisfy the Roberts test.'Instead, the Court merely assumed that for a determination of thecase, Kathy "was an unavailable witness within the meaning of theConfrontation Clause."''The second requirement under Roberts is that the statementmust contain ample "indicia of reliability."' A hearsay statementmeets the reliability requirement when the statement is so reliablethat cross-examination of the declarant is unnecessary to deter-mine the truthfulness of the statements.2 6 The requirement of suf-ficient trustworthiness can be satisfied in one of two ways: "wherethe hearsay statement 'falls within a firmly rooted hearsay excep-tion' or where it is supported by 'a showing of particularized guar-antees of trustworthiness.' "27Statements that are admissible under "a firmly rooted hearsayexception" automatically meet the reliability requirement. 2These statements have been traditionally accepted as trustworthy,19. Id. at 3146.20. 110 S. Ct. 3139 (1990).21. Idaho v. Wright, 110 S. Ct. 3139, 3147 (1990).22. Id. In Wright, the Court did not address the issue of whether, prior to theadmission of a child's hearsay statements, the prosecution is required by the confrontationclause to show that the child is an unavailable witness. Id. at 3147. The trial judge haddetermined that Kathy was not a competent witness. Id. at 3143. Therefore, for theCourt's determination of the case, the Court merely assumed any unavailabilityrequirement under the clause was satisfied. Id. at 3147.23. Id.24. Id.25. Id. at 3146-47.26. Id. at 3150. The main purpose of the confrontation clause is to guarantee thetrustworthiness "of the evidence against a criminal defendant by subjecting it to rigoroustesting in the context of adversary proceeding before the trier of fact." Maryland v. Craig,110 S. Ct. 3157, 3163 (1990). If the evidence is sufficiently trustworthy, "rigorous testing inthe context of an adversarial proceeding" serves little purpose in guaranteeing thereliability of the evidence. Wright, 110 S. Ct. at 3149.27. Wright, 110 S. Ct. at 3147 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)).28. Id. Hearsay statements of a declarant, admissible under a "firmly rooted"exception are considered to be "so trustworthy that adversarial testing would add little totheir reliability." Id. at 3149.1990] 745746 NOnTH DAKOTA LAW REVIEW [Vol. 66:743generally due to the circumstances under which they are made. 9Hearsay statements that are admissible under "firmly rooted"exceptions are made under circumstances where the declarant haslittle opportunity or desire to lie.30 Thus, such statements are con-sidered trustworthy, and cross examination of the declarant isunnecessary. 31In Wright, the trial court had admitted Kathy's statementunder Idaho's "residual hearsay exception."3 2 Statements admit-ted under a "residual hearsay exception" are those that do not fall"within a recognized hearsay exception [but] might neverthelessbe sufficiently reliable to be admissible at trial."' 33 As the "residualhearsay exception" permits the admission of statements not fallingwithin a traditionally recognized hearsay exception, the Court rea-soned that the exception is not a "firmly rooted" one.34 Therefore,as Kathy's statements to Dr. Jambura were not admitted under a"firmly rooted" exception, the statements were not automaticallysufficiently reliable to satisfy the clause.35 Therefore, admission ofthe statements violated Wright's confrontation clause rights unlessthe statements were shown to bear "particularized guarantees oftrustworthiness. "36As with hearsay statements falling under a "firmly rooted"exception, in order for their admission to be consistent with theconfrontation clause, statements having "particularized guaran-tees of trustworthiness" need to be so reliable that cross examina-tion of the declarant is unnecessary.37 In Wright, the Court29. Id. Statements that are admissible under a "firmly rooted" hearsay exception aremade in circumstances that guarantee the reliability of the statement. Id. The Court, inWright, noted that"[tihe basis for the 'excited utterance' exception ... is that such statements aregiven under circumstances that eliminate the possibility of fabrication, coaching,or confabulation, and that therefore, the circumstances surrounding the makingof the statement provide sufficient assurances that the statement is trustworthyand that cross-examination would be superfluous."Id.30. Id. The Court noted that declarant's excited utterances, dying declarations, andstatements made for the purpose of medical treatment, are all made under circumstancesin which the declarant either has no opportunity, or no desire to be untruthful. Id.31. Id.32. Id. at 3147. See supra note 4 (partial text of relevant rule).33. Wright, 110 S. Ct. at 3147.34. Id.35. Id. at 3147-48.36. Id. at 3148. The Court, in Wright, stated that hearsay statements that are notadmissible under a "firmly rooted" exception are presumed to be unreliable, and therefore,must be excluded at trial, unless the state shows that the statements contain "particularizedguarantees of trustworthiness." Id. (quoting Lee v. Illinois, 476 U.S. 530,543 (1986); Ohio v.Roberts, 448 U.S. 56, 66 (1980)).37. Id. at 3149.1990] CASENOTE 747limited the circumstances under which a determination of the req-uisite trustworthiness could be made. s The Court limited the cir-cumstances to "those that surround the making of the statementand that render the declarant particularly worthy of belief."39The Court reasoned that the basis for allowing the admission ofany hearsay is that the circumstances under which the statementwas made assures the reliability of the statement.40 Therefore, adetermination of sufficient trustworthiness must be made withoutresort to other evidence that helps to corroborate the possibletrustworthiness of the statement.41The trial court had found that Kathy's statements to Dr.Jambura were adequately trustworthy, thus satisfying the require-ments of the confrontation clause.42 In making its determination,the trial court considered that the medical examination of Kathyindicated the probability of sexual abuse; that Kathy was inWright's care; and that Kathy's sister identified Wright as the cul-prit.43  The factors considered by the trial court were not con-nected with the circumstances under which Kathy's statementswere made.44 Instead, the factors tended to support the truthful-ness of the statements.45 As corroborating evidence is inapplicableto a determination of reliability sufficient to satisfy the confronta-tion clause, the United States Supreme Court reasoned that thefactors should not have been considered in determining the admis-sibility of Kathy's statements.4638. Id. at 3148-50.39. Id. at 3148 (emphasis added). A court must look at all of the circumstances thatresult in the statement being made to determine if the statement contains sufficientreliability to satisfy the confrontation clause. Id.40. Id. at 3149. See supra note 30 (circumstances under which excited utterances aremade assure the statement's reliability).41. Wright, 110 S" Ct. at 3150. But see Idaho v. Wright, 110 S. Ct. 3139(1990XKennedy, J., dissenting). In his dissent, Justice Kennedy argued that corroboratingevidence should not be categorically excluded in determining the trustworthiness ofhearsay statements for confrontation clause purposes. Id. at 3153-56. In determining thetrustworthiness of hearsay statements, courts have, consistently preferred the presence ofevidence that corroborates the statement. Id. at 3154-55. Justice Kennedy noted thatevidence that confirms the truth of a statement is often the most reliable way to determinewhether the statement is worthy of belief. Id. at 3153. In Wright, Kathy's statements werecorroborated by several factors. Id. at 3156. Justice Kennedy would have had thecorroborating factors considered in the determination of whether Kathy's statementscontained the "particularized guarantees of trustworthiness" necessary for admission underthe confrontation clause. Id. at 3157. The Idaho Supreme Court, in its determination of thetrustworthiness of Kathy's hearsay statements, did not consider the corroborating evidence.Id. at 3157. Therefore, Justice Kennedy would have reversed the judgment of the IdahoSupreme Court, and remanded. Id. at 3157.42. Wright, 110 S. Ct. at 3152.43. Id.44. Id.45. ld.46. Id.NORTH DAKOTA LAW REVIEWThe trial court had determined that there existed no reasonfor Kathy to fabricate the allegation, and that it was unlikely that achild of Kathy's age would do so.!7 As these factors "surround themaking of the statement," they were properly considered by thetrial court when a determination of sufficient trustworthiness wasmade.4" However, all of the circumstances under which the state-ments were made must be considered in determining the trust-worthiness of the statements.49 The Court reasoned that under a"totality of the circumstances" analysis, the state had not met itsburden of showing the necessary "particularized guarantees oftrustworthiness" of Kathy's statements.5° Because sufficient trust-worthiness is required before hearsay statements can be admittedwithout violation of the confrontation clause, admission of thestatements violated Laura Lee Wright's confrontation clauserights.51 Therefore, the United States Supreme Court affirmed thejudgment of the Idaho Supreme Court.52H. Jean Delaney47. Id.48. Id. The Court noted several factors that are properly considered in determiningthe trustworthiness of hearsay statements made by child sexual abuse victims: "spontaneityand constant repetition"; "mental state of the declarant"; "use of terminology unexpectedin a child of similar age"; and "lack of motive to fabricate." Id. at 3150 (citations omitted).49. Id. at 3152. See supra note 5 (the circumstances under which Kathy's statementswere made included leading questions asked of Kathy by Dr. Jambura). See also State v.Wright, 116 Idaho 382, , 775 P.2d 1224, 1227-30 (1989Xdiscussing the development of thecognitive abilities of a child and problems in obtaining accurate data from children).50. Wright, 110 S. Ct. at 3152-53.51. Id. at 3153.52. id.748 [Vol. 66:743

Criminal Law: Admission of Child Sexual Abuse Vicitim\u27s Hearsay Statements Violated Defendant\u27s Confrontation Rights as Statements Lacked Particularized Guarantees of Trustworthiness

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Criminal Law: Admission of Child Sexual Abuse Vicitim\u27s Hearsay Statements Violated Defendant\u27s Confrontation Rights as Statements Lacked Particularized Guarantees of Trustworthiness

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