Idaho v. Wright/Dissent Kennedy

by Anthony Kennedy

Justice KENNEDY, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice BLACKMUN join, dissenting.

The issue is whether the Sixth Amendment right of confrontation is violated when statements from a child who is unavailable to testify at trial are admitted under a hearsay exception against a defendant who stands accused of abusing her. The Court today holds that it is not, provided that the child's statements bear "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). I agree. My disagreement is with the rule the Court invents to control this inquiry and with the Court's ultimate determination that the statements in question here must be inadmissible as violative of the Confrontation Clause.

Given the principle, for cases involving hearsay statements that do not come within one of the traditional hearsay exceptions, that admissibility depends upon finding particular guarantees of trustworthiness in each case, it is difficult to state rules of general application. I believe the Court recognizes this. The majority errs, in my view, by adopting a rule that corroboration of the statement by other evidence is an impermissible part of the trustworthiness inquiry. The Court's apparent ruling is that corroborating evidence may not be considered in whole or in part for this purpose. ^[1] This limitation, at least on a facial interpretation of the Court's analytic categories, is a new creation by the Court; it likely will prove unworkable and does not even square with the examples of reliability indicators the Court itself invokes; and it is contrary to our own precedents.

I see no constitutional justification for this decision to prescind corroborating evidence from consideration of the question whether a child's statements are reliable. It is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence. In the context of child abuse, for example, if part of the child's hearsay statement is that the assailant tied her wrists or had a scar on his lower abdomen, and there is physical evidence or testimony to corroborate the child's statement, evidence which the child could not have fabricated, we are more likely to believe that what the child says is true. Conversely, one can imagine a situation in which a child makes a statement which is spontaneous or is otherwise made under circumstances indicating that it is reliable, but which also contains undisputed factual inaccuracies so great that the credibility of the child's statements is substantially undermined. Under the Court's analysis, the statement would satisfy the requirements of the Confrontation Clause despite substantial doubt about its reliability. Nothing in the law of evidence or the law of the Confrontation Clause countenances such a result; on the contrary, most federal courts have looked to the existence of corroborating evidence or the lack thereof to determine the reliability of hearsay statements not coming within one of the traditional hearsay exceptions. See 4 D. Louisell & C. Mueller, Federal Evidence § 472, p. 929 (1980) (collecting cases); 4 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 804(b)(5)[01] (1988) (same). Specifically with reference to hearsay statements by children, a review of the cases has led a leading commentator on child witness law to conclude flatly: "If the content of an out-of-court statement is supported or corroborated by other evidence, the reliability of the hearsay is strengthened." J. Myers, Child Witness Law and Practice § 5.37, p. 364 (1987). ^[2] The Court's apparent misgivings about the weight to be given corroborating evidence, see ante, at 824, may or may not be correct, but those misgivings do not justify wholesale elimination of this evidence from consideration, in derogation of an overwhelming judicial and legislative consensus to the contrary. States are of course free, as a matter of state law, to demand corroboration of an unavailable child declarant's statements as well as other indicia of reliability before allowing the statements to be admitted into evidence. Until today, however, no similar distinction could be found in our precedents interpreting the Confrontation Clause. If anything, the many state statutes requiring corroboration of a child declarant's statements emphasize the relevance, not the irrelevance, of corroborating evidence to the determination whether an unavailable child witness' statements bear particularized guarantees of trustworthiness, which is the ultimate inquiry under the Confrontation Clause. In sum, whatever doubt the Court has with the weight to be given the corroborating evidence found in this case is no justification for rejecting the considered wisdom of virtually the entire legal community that corroborating evidence is relevant to reliability and trustworthiness.

Far from rejecting this commonsense proposition, the very cases relied upon by the Court today embrace it. In Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), we considered whether the confession of a codefendant that "interlocked" with a defendant's own confession bore particularized guarantees of trustworthiness so that its admission into evidence against the defendant did not violate the Confrontation Clause. Although the Court's ultimate conclusion was that the confession did not bear sufficient indicia of reliability, its analysis was far different from that utilized by the Court in the present case. The Court today notes that, in Lee, we determined the trustworthiness of the confession by looking to the circumstances surrounding its making, see ante, at 821; what the Court omits from its discussion of Lee is the fact that we also considered the extent of the "interlock," that is, the extent to which the two confessions corroborated each other. The Court in Lee was unanimous in its recognition of corroboration as a legitimate indicator of reliability; the only disagreement was whether the corroborative nature of the confessions and the circumstances of their making were sufficient to satisfy the Confrontation Clause. See 476 U.S., at 546, 106 S.Ct., at 2064 (finding insufficient indicia of reliability, "flowing from either the circumstances surrounding the confession or the 'interlocking' character of the confessions," to support admission of the codefendant's confession) (emphasis added); id., at 557, 106 S.Ct., at 2070 (BLACKMUN, J., dissenting) (finding the codefendant's confession supported by sufficient indicia of reliability including, inter alia, "extensive and convincing corroboration by petitioner's own confession" and "further corroboration provided by the physical evidence"). See also New Mexico v. Earnest, 477 U.S. 648, 649, n., 106 S.Ct. 2734, 2735, n., 91 L.Ed.2d 539 (1986) (REHNQUIST, J., concurring); Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219-220, 27 L.Ed.2d 213 (1970) (plurality opinion).

The Court today suggests that the presence of corroborating evidence goes more to the issue whether the admission of the hearsay statements was harmless error than whether the statements themselves were reliable and therefore admissible. See ante, at 823. Once again, in the context of interlocking confessions, our previous cases have been unequivocal in rejecting this suggestion:

"Quite obviously, what the 'interlocking' nature of the codefendant's confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant's own confession it is more likely to be true." Cruz v. New York, 481 U.S. 186, 192, 107 S.Ct. 1714, 1719, 95 L.Ed.2d 162 (1987) (emphasis in original).

It was precisely because the "interlocking" nature of the confessions heightened their reliability as hearsay that we noted in Cruz that "[o]f course, the defendant's confession may be considered at trial in assessing whether his codefendant's statements are supported by sufficient 'indicia of reliability' to be directly admissible against him." Id., at 193-194, 107 S.Ct., at 1719 (citing Lee, supra, 476 U.S., at 543-544, 106 S.Ct., at 2063-2064). In short, corroboration has been an essential element in our past hearsay cases, and there is no justification for a categorical refusal to consider it here.

Our Fourth Amendment cases are also premised upon the idea that corroboration is a legitimate indicator of reliability. We have long held that corroboration is an essential element in determining whether police may act on the basis of an informant's tip, for the simple reason that "because an informant is shown to be right about some things, he is probably right about other facts that he has alleged." Alabama v. White, 496 U.S. 325, 331, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990). See also Illinois v. Gates, 462 U.S. 213, 244, 245, 103 S.Ct. 2317, 2335, 2336, 76 L.Ed.2d 527 (1983); Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969); Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960).

The Court does not offer any justification for barring the consideration of corroborating evidence, other than the suggestion that corroborating evidence does not bolster the "inherent trustworthiness" of the statements. Ante, at 822. But for purposes of determining the reliability of the statements, I can discern no difference between the factors that the Court believes indicate "inherent trustworthiness" and those, like corroborating evidence, that apparently do not. Even the factors endorsed by the Court will involve consideration of the very evidence the Court purports to exclude from the reliability analysis. The Court notes that one test of reliability is whether the child "use[d] . . . terminology unexpected of a child of similar age." Ante, at 821. But making this determination requires consideration of the child's vocabulary skills and past opportunity, or lack thereof, to learn the terminology at issue. And, when all of the extrinsic circumstances of a case are considered, it may be shown that use of a particular word or vocabulary in fact supports the inference of prolonged contact with the defendant, who was known to use the vocabulary in question. As a further example, the Court notes that motive to fabricate is an index of reliability. Ibid. But if the suspect charges that a third person concocted a false case against him and coached the child, surely it is relevant to show that the third person had no contact with the child or no opportunity to suggest false testimony. Given the contradictions inherent in the Court's test when measured against its own examples, I expect its holding will soon prove to be as unworkable as it is illogical.

The short of the matter is that both the circumstances existing at the time the child makes the statements and the existence of corroborating evidence indicate, to a greater or lesser degree, whether the statements are reliable. If the Court means to suggest that the circumstances surrounding the making of a statement are the best indicators of reliability, I doubt this is so in every instance. And, if it were true in a particular case, that does not warrant ignoring other indicators of reliability such as corroborating evidence, absent some other reason for excluding it. If anything, I should think that corroborating evidence in the form of testimony or physical evidence, apart from the narrow circumstances in which the statement was made, would be a preferred means of determining a statement's reliability for purposes of the Confrontation Clause, for the simple reason that, unlike other indicators of trustworthiness, corroborating evidence can be addressed by the defendant and assessed by the trial court in an objective and critical way.

In this case, the younger daughter's statements are corroborated in at least four respects: (1) physical evidence that she was the victim of sexual abuse; (2) evidence that she had been in the custody of the suspect at the time the injuries occurred; (3) testimony of the older daughter that their father abused the younger daughter, thus corroborating the younger daughter's statement; and (4) the testimony of the older daughter that she herself was abused by their father, thus corroborating the younger daughter's statement that her sister had also been abused. These facts, coupled with the circumstances surrounding the making of the statements acknowledged by the Court as suggesting that the statements are reliable, give rise to a legitimate argument that admission of the statements did not violate the Confrontation Clause. Because the Idaho Supreme Court did not consider these factors, I would vacate its judgment reversing respondent's conviction and remand for it to consider in the first instance whether the child's statements bore "particularized guarantees of trustworthiness" under the analysis set forth in this separate opinion.

For these reasons, I respectfully dissent.

Notes

1. The Court also states that the child's hearsay statements are "presumptively unreliable." Ante, at 818. I take this to mean only that the government bears the burden of coming forward with indicia of reliability sufficient for the purposes of the Confrontation Clause, and that if it fails to do so the statements are inadmissible. A presumption of unreliability exists as a counterweight to the indicia of reliability offered by the government only where there is an affirmative reason to believe that a particular category of hearsay may be unreliable. See, e.g., Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 (1986) ("[A] codefendant's confession is presumptively unreliable as to the passages detailing the defendant's conduct or culpability because those passages may well be the product of the codefendant's desire to shift or spread blame, curry favor, avenge himself, or divert attention to another").
2. A sampling of cases using corroborating evidence as to support a finding that a child's statements were reliable includes: United States v. Dorian, 803 F.2d 1439, 1445 (CA8 1986); United States v. Cree, 778 F.2d 474, 477 (CA8 1985); United States v. Nick, 604 F.2d 1199, 1204 (CA9 1979); State v. Allen, 157 Ariz. 165, 176-178, 755 P.2d 1153, 1164-1166 (1988); State v. Robinson, 153 Ariz. 191, 204, 735 P.2d 801, 814 (1987); State v. Bellotti, 383 N.W.2d 308, 315 (Minn.App.1986); State v. Soukup, 376 N.W.2d 498, 501 (Minn.App.1985); State v. Doe, 94 N.M. 637, 639, 614 P.2d 1086, 1088 (App.1980); State v. McCafferty, 356 N.W.2d 159, 164 (S.D.1984); United States v. Quick, 22 M.J. 722, 724 (A.C.M.R.1986). Numerous other cases rely upon corroboration pursuant to state statutory rules regarding hearsay statements by children. See Myers § 5.38.

Aside from Lee v. Illinois, supra, discussed infra, at 831-832, the only case cited by the Court for the proposition that corroborative evidence is irrelevant to reliability is State v. Ryan, 103 Wash.2d 165, 174, 691 P.2d 197, 204 (1984).

The Court quotes the opinion out of context. In holding that corroborating evidence could not be used to demonstrate reliability, the Washington Supreme Court was not interpreting the Confrontation Clause; rather, its opinion clearly reveals that the court's holding was an interpretation of a Washington statute, Wash.Rev.Code § 9A.44.120 (1989), which provided that hearsay statements from an unavailable child declarant could be admitted into evidence at trial only if they were reliable and corroborated by other evidence. The portion of the opinion following the sentence quoted by the majority reveals the true nature of its holding:

"The trial court was apparently persuaded that the statements of the children must be reliable, if, in hindsight they prove to be true. RCW 9A.44.120 demands more.

"The statute requires separate determinations of reliability and corroboration when the child is unavailable. The word 'and' is conjunctive. . . . The Legislature would have used the word 'or' had it intended the disjunctive. . . . Although defendant's confession was offered as corroboration, wholly absent are the requisite circumstantial guarantees of reliability." State v. Ryan, supra, at 174, 691 P.2d, at 204 (citations omitted; emphasis added).

Other States also have expressly recognized the need for, and legitimacy of, considering corroborating evidence in determining whether a child declarant's statements are trustworthy and should be admitted into evidence. See Ariz.Rev.Stat.Ann. § 13-1416 (1989); Ark.Rule Evid. 803(25)(A); Cal.Evid.Code Ann. § 1228 (West 1990); Colo.Rev.Stat. § 13-25-129 (1987); Fla.Stat. § 90.803(23) (1989); Idaho Code § 19-3024 (1987); Ill.Rev.Stat., ch. 38, ¶ 115-10 (1989); Ind.Code § 35-37-4-6 (1988); Md.Cts. & Jud.Proc.Code Ann. § 9-103.1 (1989); Minn.Stat. § 595.02(3) (1988); Miss.Code.Ann. § 13-1-403 (Supp.1989); N.J.Rule Evid. 63 (1989); N.D.Rule Evid. 803(24); Okla.Stat., Tit. 12, § 2803.1 (1989); Ore.Rev.Stat. § 40.460 (1989); 42 Pa.Cons.Stat. § 5985.1 (1989); S.D. Codified Laws § 19-16-38 (1987); Utah Code Ann. § 76-5-411 (1990).