White v. Illinois/Opinion of the Court

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Opinion of the Court
Concurring Opinion

In this case we consider whether the Confrontation Clause of the Sixth Amendment requires that, before a trial court admits testimony under the "spontaneous declaration" and "medical examination" exceptions to the hearsay rule, the prosecution must either produce the declarant at trial or the trial court must find that the declarant is unavailable. The Illinois Appellate Court concluded that such procedures are not constitutionally required. We agree with that conclusion.

Petitioner was convicted by a jury of aggravated criminal sexual assault, residential burglary, and unlawful restraint. Ill.Rev.Stat., ch. 38, &Par; 12-14, 19-3, 10-3, (1989). The events giving rise to the charges related to the sexual assault of S.G., then four years old. Testimony at the trial established that in the early morning hours of April 16, 1988, S.G.'s babysitter, Tony DeVore, was awakened by S.G.'s scream. DeVore went to S.G.'s bedroom and witnessed petitioner leaving the room and petitioner then left the house. 6 Tr. 10-11. DeVore knew petitioner because petitioner was a friend of S.G.'s mother, Tammy Grigsby. Id., at 27. DeVore asked S.G. what had happened. According to DeVore's trial testimony, S.G. stated that petitioner had put his hand over her mouth, choked her, threatened to whip her if she screamed and had "touch[ed] her in the wrong places." Asked by DeVore to point to where she had been touched, S.G. identified the vaginal area. Id., at 12-17.

Tammy Grigsby, S.G.'s mother, returned home about 30 minutes later. Grigsby testified that her daughter appeared "scared" and a "little hyper." Id., at 77-78. Grigsby proceeded to question her daughter about what had happened. At trial, Grigsby testified that S.G. repeated her claims that petitioner choked and threatened her. Grigsby also testified that S.G. stated that petitioner "put his mouth on her front part." Id., at 79. Grigsby also noticed that S.G. had bruises and red marks on her neck that had not been there previously. Id., at 81. Grigsby called the police.

Officer Terry Lewis arrived a few minutes later, roughly 45 minutes after S.G.'s scream had first awakened DeVore. Lewis questioned S.G. alone in the kitchen. At trial, Lewis' summary of S.G.'s statement indicated that she had offered essentially the same story as she had first reported to DeVore and to Grigsby, including a statement that petitioner had "used his tongue on her in her private parts." Id., at 110-112.

After Lewis concluded his investigation, and approximately four hours after DeVore first heard S.G.'s scream, S.G. was taken to the hospital. She was examined first by Cheryl Reents, an emergency room nurse, and then by Dr. Michael Meinzen. Each testified at trial and their testimony indicated that, in response to questioning, S.G. again provided an account of events that was essentially identical to the one she had given to DeVore, Grigsby, and Lewis.

S.G. never testified at petitioner's trial. The State attempted on two occasions to call her as a witness but she apparently experienced emotional difficulty on being brought to the courtroom and in each instance left without testifying. App. at 14. The defense made no attempt to call S.G. as a witness and the trial court neither made, nor was it asked to make, a finding that S.G. was unavailable to testify. 6 Tr. 105-106.

Petitioner objected on hearsay grounds to DeVore, Grigsby, Lewis, Reents, and Meinzen being permitted to testify regarding S.G.'s statements describing the assault. The trial court overruled each objection. With respect to DeVore, Grigsby, and Lewis the trial court concluded that the testimony could be permitted pursuant to an Illinois hearsay exception for spontaneous declarations. [1] Petitioner's objections to Reents' and Meinzen's testimony was similarly overruled, based on both the spontaneous declaration exception and an exception for statements made in the course of securing medical treatment. [2] The trial court also denied petitioner's motion for a mistrial based on S.G.'s "presence [and] failure to testify." App. 14.

Petitioner was found guilty by a jury, and the Illinois Appellate Court affirmed his conviction. It held that the trial court operated within the discretion accorded it under state law in ruling that the statements offered by DeVore, Grigsby and Lewis qualified for the spontaneous declaration exception and in ruling that the statements offered by Reents and Meinzen qualified for the medical examination exception. 198 Ill.App.3d 641, 647, 657, 144 Ill.Dec. 722, 727-732, 555 N.E.2d 1241, 1246-1251 (1990). The court then went on to reject petitioner's Confrontation Clause [3] challenge, a challenge based principally on language contained in this Court's decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). It concluded that our later decision in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), foreclosed any rule requiring that, as a necessary antecedent to the introduction of hearsay testimony, the prosecution must either produce the declarant at trial or show that the declarant is unavailable. The Illinois Supreme Court denied discretionary review, and we granted certiorari, 500 U.S. ----, 111 S.Ct. 1681, 114 L.Ed.2d 76 (1991), limited to the constitutional question whether permitting the challenged testimony violated petitioner's Sixth Amendment Confrontation Clause right. [4]

We consider as a preliminary matter an argument not considered below but urged by the United States as amicus curiae in support of respondent. The United States contends that petitioner's Confrontation Clause claim should be rejected because the Confrontation Clause's limited purpose is to prevent a particular abuse common in 16th and 17th century England: prosecuting a defendant through the presentation of ex parte affidavits, without the affiants ever being produced at trial. Because S.G.'s out-of-court statements do not fit this description, the United States suggests that S.G. was not a "witness against" petitioner within the meaning of the Clause. The United States urges this position, apparently in order that we might further conclude that the Confrontation Clause generally does not apply to the introduction of out-of-court statements admitted under an accepted hearsay exception. The only situation in which the Confrontation Clause would apply to such an exception, it argues, would be those few cases where the statement sought to be admitted was in the character of an ex parte affidavit, i.e., where the circumstances surrounding the out-of-court statement's utterance suggest that the statement has been made for the principal purpose of accusing or incriminating the defendant.

Such a narrow reading of the Confrontation Clause, which would virtually eliminate its role in restricting the admission of hearsay testimony, is foreclosed by our prior cases. The discussions in these cases, going back at least as far as Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), have included historical examination of the origins of the Confrontation Clause, and of the state of the law of evidence existing at the time the Sixth Amendment was adopted and later. We have been careful "not to equate the Confrontation Clause's prohibitions with the general rule prohibiting the admission of hearsay statements," Idaho v. Wright, (1990) 497 U.S. ----, ----, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638 (citations omitted). Nonetheless we have consistently sought to "stee[r] a middle course," Roberts, supra, 448 U.S., at 68, n. 9, 100 S.Ct., at 2540, n. 9, that recognizes that "hearsay rules and the Confrontation Clause are generally designed to protect similar values," California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970), and "stem from the same roots." Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970). In Mattox itself, upon which the Government relies, the Court allowed the recorded testimony of a witness at a prior trial to be admitted. But, in the Court's view, the result was justified not because the hearsay testimony was unlike an ex parte affidavit, but because it came within an established exception to the hearsay rule. We think that the argument presented by the Government comes too late in the day to warrant reexamination of this approach. [5]

We therefore now turn to petitioner's principal contention that our prior decision in Roberts requires that his conviction be vacated. In Roberts we considered a Confrontation Clause challenge to the introduction at trial of a transcript containing testimony from a probable-cause hearing, where the transcript included testimony from a witness not produced at trial but who had been subject to examination by defendant's counsel at the probable-cause hearing. In the course of rejecting the Confrontation Clause claim in that case, we used language that might suggest that the Confrontation Clause generally requires that a declarant either be produced at trial or be found unavailable before his out-of-court statement may be admitted into evidence. However, we think such an expansive reading of the Clause is negated by our subsequent decision in Inadi, supra.

In Inadi we considered the admission of out-of-court statements made by a co-conspirator in the course of the conspiracy. As an initial matter, we rejected the proposition that Roberts established a rule that "no out-of-court statement would be admissible without a showing of unavailability." 475 U.S., at 392, 106 S.Ct., at 1124. To the contrary, rather than establishing "a wholesale revision of the law of evidence" under the guise of the Confrontation Clause, ibid., we concluded that "Roberts must be read consistently with the question it answered, the authority it cited, and its own facts." Id., at 394, 106 S.Ct., at 1125. So understood, Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding. Ibid.

Having clarified the scope of Roberts, the Court in Inadi then went on to reject the Confrontation Clause challenge presented there. In particular, we refused to extend the unavailability requirement established in Roberts to all out-of-court statements. Our decision rested on two factors. First, unlike former in-court testimony, co-conspirator statements "provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court," Inadi, 475 U.S., at 395, 106 S.Ct., at 1126. Also, given a declarant's likely change in status by the time the trial occurs, simply calling the declarant in the hope of having him repeat his prior out-of-court statements is a poor substitute for the full evidentiary significance that flows from statements made when the conspiracy is operating in full force. Ibid.

Second, we observed that there is little benefit, if any, to be accomplished by imposing an "unavailability rule." [6] Such a rule will not work to bar absolutely the introduction of the out-of-court statements; if the declarant either is unavailable, or is available and produced for trial, the statements can be introduced. Id., at 396, 106 S.Ct., at 1126-1127. Nor is an unavailability rule likely to produce much testimony that adds meaningfully to the trial's truth-determining process. Ibid. Many declarants will be subpoenaed by the prosecution or defense, regardless of any Confrontation Clause requirement, while the Compulsory Process Clause [7] and evidentiary rules permitting a defendant to treat witnesses as hostile will aid defendants in obtaining a declarant's live testimony. Id., at 396-398, 106 S.Ct., at 1126-1128. And while an unavailability rule would therefore do little to improve the accuracy of factfinding, it is likely to impose substantial additional burdens on the factfinding process. The prosecution would be required to repeatedly locate and keep continuously available each declarant, even when neither the prosecution nor the defense has any interest in calling the witness to the stand. An additional inquiry would be injected into the question of admissibility of evidence, to be litigated both at trial and on appeal. Id., at 398-399, 106 S.Ct., at 1127-1128.

These observations, although expressed in the context of evaluating co-conspirator statements, apply with full force to the case at hand. We note first that the evidentiary rationale for permitting hearsay testimony regarding spontaneous declarations and statements made in the course of receiving medical care is that such out-of-court declarations are made in contexts that provide substantial guarantees of their trustworthiness. [8] But those same factors that contribute to the statements' reliability cannot be recaptured even by later in-court testimony. A statement that has been offered in a moment of excitement-without the opportunity to reflect on the consequences of one's exclamation-may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom. Similarly, a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony. They are thus materially different from the statements at issue in Roberts, where the out-of-court statements sought to be introduced were themselves made in the course of a judicial proceeding, and where there was consequently no threat of lost evidentiary value if the out-of-court statements were replaced with live testimony.

The preference for live testimony in the case of statements like those offered in Roberts is because of the importance of cross examination, "the greatest legal engine ever invented for the discovery of truth." Green, 399 U.S., at 158, 90 S.Ct., at 1935. Thus courts have adopted the general rule prohibiting the receipt of hearsay evidence. But where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.

We therefore think it clear that the out-of-court statements admitted in this case had substantial probative value, value that could not be duplicated simply by the declarant later testifying in court. To exclude such probative statements under the strictures of the Confrontation Clause would be the height of wrong-headedness, given that the Confrontation Clause has as a basic purpose the promotion of the " 'integrity of the factfinding process.' " Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, 2802, 101 L.Ed.2d 857 (1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 2662, 96 L.Ed.2d 631 (1987). And as we have also noted, a statement that qualifies for admission under a "firmly rooted" hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability. Wright, 497 U.S., at ----, 110 S.Ct., at 3149. Given the evidentiary value of such statements, their reliability, and that establishing a generally applicable unavailability rule would have few practical benefits while imposing pointless litigation costs, we see no reason to treat the out-of-court statements in this case differently from those we found admissible in Inadi. A contrary rule would result in exactly the kind of "wholesale revision" of the laws of evidence that we expressly disavowed in Inadi. We therefore see no basis in Roberts or Inadi for excluding from trial, under the aegis of the Confrontation Clause, evidence embraced within such exceptions to the hearsay rule as those for spontaneous declarations and statements made for medical treatment.

As a second line of argument, petitioner presses upon us two recent decisions involving child-testimony in child-sexual assault cases, Coy v. Iowa, supra, and Maryland v. Craig, 497 U.S. ----, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Both Coy and Craig required us to consider the constitutionality of courtroom procedures designed to prevent a child witness from having to face across an open courtroom a defendant charged with sexually assaulting the child. In Coy we vacated a conviction that resulted from a trial in which a child witness testified from behind a screen, and in which there had been no particularized showing that such a procedure was necessary to avert a risk of harm to the child. In Craig we upheld a conviction that resulted from a trial in which a child witness testified via closed circuit television after such a showing of necessity. Petitioner draws from these two cases a general rule that hearsay testimony offered by a child should be permitted only upon a showing of necessity i.e., in cases where necessary to protect the child's physical and psychological well-being.

Petitioner's reliance is misplaced. Coy and Craig involved only the question of what in-court procedures are constitutionally required to guarantee a defendant's confrontation right once a witness is testifying. Such a question is quite separate from that of what requirements the Confrontation Clause imposes as a predicate for the introduction of out-of-court declarations. Coy and Craig did not speak to the latter question. As we recognized in Coy, the admissibility of hearsay statements raises concerns lying at the periphery of those that the Confrontation Clause is designed to address, 487 U.S., at 1016, 108 S.Ct., at 2800. There is thus no basis for importing the "necessity requirement" announced in those cases into the much different context of out-of-court declarations admitted under established exceptions to the hearsay rule.

For the foregoing reasons, the judgment of the Illinois Appellate Court is



^1  The spontaneous declaration exception applies to "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." 198 Ill.App.3d 641, 647, 144 Ill.Dec. 722, 727, 555 N.E.2d 1241, 1246 (1990). (Decision of the Illinois Appellate Court for the Fourth District).

^2  Illinois Rev.Stat., ch. 38, ¶ 115-13 (1989), provides:

"In a prosecution for violation of Section 12-13, 12-14, 12-15 or 12-16 of the 'Criminal Code of 1961', statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule."

^3  "In all criminal prosecutions, the accused shall enjoy the right to ..... be confronted with the witnesses against him......" U.S.C.onst., Amdt. VI.

^4  We take as a given, therefore, that the testimony properly falls within the relevant hearsay exceptions.

^5  We note also that the position now advanced by the United States has been previously considered by this Court but gained the support of only a single Justice. See Dutton, supra, 400 U.S., at 93-100, 91 S.Ct., at 221-225 (Harlan, J., concurring).

^6  By "unavailability rule," we mean a rule which would require as a predicate for introducing hearsay testimony either a showing of the declarant's unavailability or production at trial of the declarant.

^7  "In all criminal prosecutions, the accused shall enjoy the right ..... to have compulsory process for obtaining witnesses in his favor." U.S.C.onst., Amdt. VI.

^8  Indeed, it is this factor that has led us to conclude that "firmly rooted" exceptions carry sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause. See Idaho v. Wright, 497 U.S. ---- - ----, 110 S.Ct. 3139, 3141-3142, 111 L.Ed.2d 638 (1990); Bourjaily v. United States, 483 U.S. 171, 182-184, 107 S.Ct. 2775, 2782-2783, 97 L.Ed.2d 144 (1987). There can be no doubt that the two exceptions we consider in this case are "firmly rooted." The exception for spontaneous declarations is at least two centuries old, see 6 J. Wigmore, Evidence, § 1747, 195 (J. Chadbourn rev. 1976), and may date to the late 17th century. See Thompson v. Trevanion, 90 Eng.Rep. 179 (K.B.1694). It is currently recognized under the Federal Rules of Evidence, Rule 803(2), and in nearly four-fifths of the States. See Brief of Amici Curiae for the State of California, et al., pp. 15-16, n. 4 (collecting state statutes and cases). The exception for statements made for purposes of medical diagnosis or treatment is similarly recognized in the Federal Rules of Evidence, Rule 803(4), and is equally widely accepted among the States. See Brief of Amici Curiae for the State of California, et al., at 31-32, n. 13 (same).

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).