Mass. Decisions, 1-620 N.E.2d 547 N.E.2d 8, 406 Mass. 1201, Opinion of Ju...
Copyright (c) West Publishing Co. 1993 No claim to original U.S. Govt. works.
________________________________________________________________________________
-------------------------- Page 547 N.E.2d 8 follows ---------------------------
406 Mass. 1201
OPINION OF the JUSTICES TO THE SENATE.
Supreme Judicial Court of Massachusetts.
Nov. 28, 1989.
Questions were propounded by the Senate to the Justices of the Supreme
Judicial Court relating to a bill authorizing the admissibility of
out-of-court statements of child victims of sexual assault. The Justices of
the Supreme Judicial Court were of the opinion that the bill, if enacted,
would be in contravention of article of the Massachusetts Constitution in that
it would deny a person the right "to meet the witnesses against him face to
face."
Questions answered.
CRIMINAL LAW k662.8
110k662.8 k. Out-of-court statements and hearsay in general.
Mass. 1989.
Senate bill authorizing admissibility of out-of-court statements of child
victims of sexual assault, if enacted into law, would contravene article of
the Massachusetts Constitution in that it would deny a person the right "to
meet the witnesses against him face to face." M.G.L.A. Const. Pt. 1, Art. 12.
[406MASS1202] On Nov. 28, 1989, the Justices submitted the following answer
to questions propounded to them by the Senate.
To The Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit their
response to the questions set forth in an order adopted by the Senate on July
19, 1989, and transmitted to this court on July 25, 1989. (FN1) The order
indicates that there is pending before the General Court a bill printed as
Senate No. 795 entitled, "An Act authorizing the admissibility of out-of-court
statements of child victims of sexual assault." A copy of the bill was
transmitted with the order. The order recites: "Senate bill No. 795 would,
in part, permit certain statements made 'out-of-court' by a child under the
age of ten years to be admissible as evidence in a criminal or civil
proceeding under certain conditions...." (FN2)
-------------------------- Page 547 N.E.2d 9 follows ---------------------------
[406MASS1203] The order also indicates that grave doubt exists as to the
constitutionality of the bill, if enacted into law, and requests our opinion
on these questions:
"1. Would said bill, Senate No. 795, if enacted into law, be in
contravention of Article XII of Part the First of the Constitution of
Massachusetts in that it would deny a person the right 'to meet the
witnesses against him face to face'?
"2. Would said bill, if enacted into law, be in contravention of Article
VI of the Amendments to the Constitution of the United States in that it
would deprive a person of the right 'to be confronted with the witnesses
against him'?"
We answer the first question in the affirmative. Consequently, we consider
it unnecessary to answer the second question.
[406MASS1204] 1. Conflicting Considerations. Before beginning our
examination of Senate No. 795, we delineate the tension which underlies the
questions presented. Two major interests are inextricably in conflict: the
significant societal interest in reducing the trial-related trauma of child
victims of sexual assault and in having their evidence submitted to the fact
finder so that pernicious malefactors may be brought to justice; and the
constitutional and societal imperatives of assuring the integrity of the
fact-finding process and of honoring the time-honored rights of an accused to
confront his accusers in a court of law.
Indeed, the Supreme Judicial Court often has recognized the tension between
these conflicting, and valid, interests. "This court is acutely aware of the
plight of child sexual assault victims and traditionally has been sensitive
toward meeting the needs of these young witnesses. See, e.g., Globe
Newspaper Co. v. Superior Court, 379 Mass. 846, 858-860, 401 N.E.2d 360
(1980), rev'd, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).
'[S]afeguarding the physical and psychological well-being of a minor' is
indeed a compelling State interest. Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). We are
cognizant ... that the problem of sexual abuse is widespread." Commonwealth
v. Bergstrom, 402 Mass. 534, 552, 524 N.E.2d 366 (1988).
On the other hand, "[s]ociety may justify a person's conviction only after
a trial scrupulous in its adherence to a process which, so far as humanly
possible, assures that the innocent are not mistakenly deprived of liberty.
The right of the accused to be tried in the manner which our Constitution
[art. 12] guarantees cannot dissolve under the pressures of changing social
circumstances or societal focus." Id. at 553, 524 N.E.2d 366.
a. Sexual abuse of children. Most briefs before the court, and much of
the pertinent literature, relate the special difficulty in prosecuting
allegations of sexual abuse of children. As the briefs recite, and our
experience confirms, the victim and the perpetrator may be the only
witnesses; corroborative evidence may be absent or inconclusive; the victim
may retract a true account of an incident of sexual abuse because of fear,
guilt, shame, or self-blame; the victim may refuse to [406MASS1205] testify
or be an ineffective witness; and the victim may feel punished if removed
from home for protection or guilty if the alleged offender is removed from the
home. Skoler, New Hearsay Exceptions for a Child's Statement of Sexual Abuse,
18 J. Marshall L.Rev. 1, 5-7, 41-42 (1984). Moreover, there may be trauma for
the child in preparing for, and testifying at, a trial. Id. at 6-7.
Parents may be reluctant to have their child subjected to the further trauma
of being the chief prosecution witness at an adult criminal trial. Note, The
Sexually Abused Infant Hearsay Exception: A Constitutional Analysis, 8
J.Juv.L. 59, 60 (1984).
-------------------------- Page 547 N.E.2d 10 follows --------------------------
In addition, it is claimed that a child's memory fades rapidly over time;
that the account given closer to the actual event is more likely to be
accurate; and that the inability to remember details may be significant given
the lapse of time between the offense and the trial. Note, A Comprehensive
Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745,
1749-1751 (1983). See Note, Minnesota's Hearsay Exception for Child Victims
of Sexual Abuse, 11 Wm. Mitchell L.Rev. 799, 800-802 & nn. 2-9 (1985). One
response, represented in Senate No. 795, is that of rendering certain
out-of-court statements of child victims of sexual abuse admissible at trial.
b. Confrontation. We are asked to consider this proposed remedy in light
of the cited State and Federal constitutional provisions which provide for a
person's right to confront the witnesses against him. These provisions have a
rich heritage.
The United States Supreme Court, in discussing the Sixth Amendment's right
of confrontation, stated that the specific language "comes to us on faded
parchment" and that its lineage may be traced to the beginnings of Western
legal culture. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 2800, 101 L.Ed.2d
857 (1988). Almost one century ago, the Court stated that the primary object
of that provision of the Sixth Amendment is "to prevent depositions or ex
parte affidavits ... being used against the prisoner." Mattox v. United
States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). Accord
Commonwealth v. Millen, 289 Mass. 441, 455, 194 N.E. 463 (1935) (art. 12).
Rather, the preference is for cross-examination (under [406MASS1206] oath) in
which the accused might test the recollection, and sift the conscience, of the
witness and in which the jury might determine whether he or she is worthy of
belief, by his or her demeanor and the manner in which the witness gives
testimony. Mattox v. United States, supra 156 U.S. at 242-243, 15 S.Ct. at
339-340. More recently, Justice Marshall observed that the drafters of the
Sixth Amendment may have been influenced by the plight of Sir Walter Raleigh
who had been condemned on the basis of a deposition by an alleged accomplice
who had recanted. United States v. Inadi, 475 U.S. 387, 411, 106 S.Ct. 1121,
1134, 89 L.Ed.2d 390 (1986) (Marshall, J., dissenting).
As for the States, one commentator suggests that the expressed intentions
of the British to try colonists in England for crimes allegedly committed in
the colonies, thus involving the use of depositions or ex parte affidavits by
the prosecution, led to the inclusion in the Virginia Declaration of Rights of
1776 of the right of confrontation. Larkin, The Right of Confrontation: What
Next?, 1 Tex.Tech.L.Rev. 67, 77 (1970). He states that, if the Colonial
legislators had not intended to give the accused the benefit of face-to-face
cross-examination of the witness personally and in the presence of the trier
of fact who could judge his demeanor and credibility, the indications are that
they would have chosen different language. Id. Massachusetts, he notes, used
"the more graphic and explicit 'to meet the witnesses against him face to
face' " instead of the word "confront" used by other States. Id. at 78.
See Clinton, The Right to Present A Defense: An Emergent Constitutional
Guarantee in Criminal Trials, 9 Ind.L.Rev. 713, 730 (1976). A purpose of the
early State provisions may have been to preserve in criminal cases the
hard-won principle of the hearsay rule which had been accepted in England for
over one hundred years. McCormick, Evidence Sec. 252, at 750 (3d ed.1984).
See Note, Coy v. Iowa: The Right to Face-to-Face Confrontation, 26
Hous.L.Rev. 739, 748 (1989).
The Supreme Judicial Court recently focused on the intersection of these
considerations: the difficulty of prosecuting cases of alleged sexual abuse
of children and the commands [406MASS1207] of art. 12. In Commonwealth v.
Bergstrom, supra 402 Mass. at 541-542, 524 N.E.2d 366, we acknowledged the
court's acute awareness of the plight of child sexual assault victims but
stated that "[c]onstitutional language more definitively guaranteeing the
right to a direct confrontation
-------------------------- Page 547 N.E.2d 11 follows --------------------------
between witness and accused is difficult to imagine."
2. Article 12. We examine the bill under that portion of art. 12 of the
Commonwealth's Declaration of Rights which specifies:
"No subject shall be held to answer for any crimes or offense, until the
same is fully and plainly, substantially and formally, described to him;
or be compelled to accuse, or furnish evidence against himself. And every
subject shall have a right to produce all proofs, that may be favorable to
him; to meet the witnesses against him face to face ..." (emphasis added).
Over a century and one-half ago, the court stated that art. 12 "was made to
exclude any evidence by deposition, which could be given orally in the
presence of the accused." Commonwealth v. Richards, 18 Pick. 434, 437
(1836). In discussing the admissibility of certain dying declarations, the
court explained that, because they are made under the apprehension of
immediate death, they are entitled to all the credit which would be given to
them if the declarant had made them under oath. Id. The court also stated it
significant that testimony as to what a deceased witness testified in a former
trial be between the same parties on the same issue. Id. at 437-438.
Moreover, the court added that the whole of what the deceased witness said
should be proved because some part of what was said and not recollected might
limit and qualify the meaning of the words which are recollected. Id. at
439. Even the entire statement can be defective, the court added, because
one does not receive "a true representation of the countenance, manner and
expression of the deceased witness." Id.
[406MASS1208] Thus, early precedent, as well as more recent decisions,
clearly demonstrates that two of the major protections guaranteed by the right
of confrontation are that the probative statement be one given under oath (or
its functional equivalent) and that, ordinarily, the cognate witness be
subject to cross-examination. See California v. Green, 399 U.S. 149, 158, 90
S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) (one aspect of the confrontation right
is that a witness knowingly shall give testimony under oath); Commonwealth
v. Bergstrom, 402 Mass. 534, 541, 524 N.E.2d 366 (1988) (same).
Although the situation discussed in the Richards opinion is not identical
to what might arise if the pending bill were to become law, the court's
discussion of why dying declarations are not excluded by art. 12, and its
examination of the admissibility of the testimony at a prior trial of a
deceased witness, are instructive. Dying declarations are treated as if given
under oath, and prior recorded testimony was given under oath. The pending
bill would not require that the out-of-court statement have been given under
oath, or in circumstances inherently demonstrating a special guarantee of
reliability (e.g., in a dying declaration with knowledge of impending death,
or a spontaneous excited utterance). Instead, the bill requires that the
judge make findings, describing facts with particularity, demonstrating that
"the time, content and circumstances ... provide sufficient safeguards of
reliability."
We draw additional insight from the court's subsequent explanation that the
reason for the admission, at a second trial, of testimony given at the
original trial of the same case by a witness since deceased or insane is based
"upon necessity and has for its end the attainment of substantial justice."
See Ibanez v. Winston, 222 Mass. 129, 130, 109 N.E. 814 (1915). Furthermore,
the court has said that the principle of the Richards case "permitted the
admission of kinds of evidence not thought of at the time of the adoption of
the Constitution if falling within the settled rules of the common law."
Commonwealth v. Gallo, 275 Mass. 320, 330-331, 175 N.E. 718 (1931), and cases
cited. See Commonwealth v. Siegfriedt, 402 Mass. 424, 430, 522 N.E.2d 970
(1988).
[406MASS1209] Gallo reminds us that the guarantee of art. 12 "is not to be
tested by a mere enumeration of specific instances of the admission or
exclusion of ... evidence." Commonwealth v. Gallo, supra, 275 Mass.
-------------------------- Page 547 N.E.2d 12 follows --------------------------
at 333, 175 N.E. 718. This is because art. 12 "states a great principle of
government for the security of liberty and the ascertainment of truth in
prosecutions for crime." Id. The purpose of the article is to render beyond
the possibility of alteration, except by the people, the principle already
established as part of the common law, while encompassing certain
well-recognized exceptions, that witnesses should confront the accused face to
face. Id.
The court in Gallo determined that there was no error of law and no
violation of art. 12 as a consequence of the admission at a second trial of
the testimony given at the first trial by a witness who had disappeared and
who could not be produced in person. Id. at 328, 334, 175 N.E. 718. The
witness had been cross-examined fully on behalf of the defendant, and her
testimony had been taken stenographically. Id. at 328, 175 N.E. 718. The
court noted that one of the main purposes of the common law rule regarding the
production of testimony in criminal cases, that its credibility be tested by
cross-examination, had been achieved. Id. at 333-334, 175 N.E. 718. We add,
to highlight the contrast with the procedure provided in the pending bill,
that the testimony also had been given under oath and had been preserved
accurately. In terms pertinent here, the court stated: "Changed conditions
afford no warrant for straining the Constitution. But they require that the
common law within the limits of the Constitution shall adapt its principles to
meet present needs." Id. at 334, 175 N.E. 718.
Although the requirements of confrontation may be subject to "limited
exceptions," we stated in Commonwealth v. Bergstrom, supra 402 Mass. at 545,
524 N.E.2d 366:
"As a constitutional minimum, if the prosecution can demonstrate that a
declarant whose statement it wishes to use against the defendant is
unavailable to testify during the trial, that statement may be admissible
if imbued with such trustworthiness and indicia of
reliability[406MASS1210] that 'there is no material departure from the
reason of the general rule.' Ohio v. Roberts, 448 U.S. 56, 65 [100 S.Ct.
2531, 2538, 65 L.Ed.2d 597] (1980), quoting Snyder v. Massachusetts, 291
U.S. 97, 107 [54 S.Ct. 330, 332-33, 78 L.Ed. 674] (1934). See
Commonwealth v. Bohannon, 385 Mass. 733, 742-743 [434 N.E.2d 163] (1982).
Hearsay exceptions that provide particularized guarantees of
trustworthiness may be constitutionally valid. Commonwealth v. Trigones,
397 Mass. 633, 637-638 [492 N.E.2d 1146] (1986). Absent a showing of
unavailability at the time of trial, however, even reliable hearsay
evidence is inadmissible. See Commonwealth v. Bohannon, supra [385 Mass.]
at 744-749 [434 N.E.2d 163]."
We turn now to a more focused examination of Senate Bill 795.
3. Senate No. 795. In Commonwealth v. Bohannon, 385 Mass. 733, 740-749,
434 N.E.2d 163 (1982), the court focused on two critical factors which are of
primary concern in our evaluation of the pending bill: the unavailability of
the witness and the reliability of the prior testimony. Id. at 741, 434
N.E.2d 163. After noting that the necessities of the case and the attainment
of justice (considerations also before us now) warrant the admissibility of
hearsay in some cases, the court examined the concepts of unavailability and
reliability in detail. Id. at 741-749, 434 N.E.2d 163.
The prosecution bears the burden of establishing the necessity for
admission of the prior statement through establishing the person's
unavailability at the time of the trial. Id. at 742, 434 N.E.2d 163.
Moreover, the degree of good faith and due diligence required exceeds that
necessary in other situations. Id. at 745, 434 N.E.2d 163. The court
divided reliability into two segments--the reliability of the testimony when
given, and the accuracy of the evidence of that testimony. Id. at 746, 434
N.E.2d 163. Reliability, we said, could be assured by the circumstances
attending the giving of the testimony and the manner in which it is preserved
and restated. (FN3) Id. at 747, 434 N.E.2d 163, and cases cited.
-------------------------- Page 547 N.E.2d 13 follows --------------------------
[406MASS1211] a. Availability. The pending bill reflects the
consideration by its drafters of the essential elements of availability and
reliability. Proposed Sec. 82(a ) specifies the circumstances under which a
child shall be deemed to be unavailable. They include death, then existing
physical or mental illness or infirmity, exemption by "ruling of the court" on
the basis of privilege, a refusal to testify concerning the subject matter of
the statement or testimony as to a lack of memory, absence in the face of
process or other reasonable means of procuring the child's attendance,
incompetence, or a finding beyond a reasonable doubt that testifying would be
likely to cause severe and long-lasting psychological or emotional trauma.
(FN4) We note that there is no explicit requirement of good faith and due
diligence in establishing unavailability. See Commonwealth v. Bohannon,
supra 385 Mass. at 745, 434 N.E.2d 163 (greater good faith and due diligence
required to show unavailability when offering former testimony against an
accused).
We are reluctant to recognize, on the information before us, that a child
who has made an out-of-court statement properly would be deemed unavailable
because (as the pending bill seems to provide) the child refuses to testify.
See Commonwealth v. Kirouac, 405 Mass. 557, 562-563, 542 N.E.2d 270 (1989).
The trial judge would be required to make findings demonstrating that the
child is unavailable as a witness. We do not, however, equate a refusal to
testify, for example, with that measure of necessity which we have held
permits the use of prior testimony. See Commonwealth v. Brusgulis, 398 Mass.
325, 332, 496 N.E.2d 652 (1986).
[406MASS1212] b. Reliability. Even if we were to assume that the
applicable standards of unavailability would be met, (FN5) we must consider
the question of reliability. The pending bill specifies that a trial judge
must make specific findings on the record, describing facts with particularity
which demonstrate that "the time, content and circumstances of the statement
provide sufficient safeguards of reliability." Thus, a judge would not be
required to consider the traditional indicia of reliability, such as whether
the statement was given under oath, in a prior proceeding, accurately recorded
and preserved, and with an opportunity for cross-examination by counsel for
the defendant.
Should a child's hearsay statements be admitted under the standards of
Senate 795, an appellate court would be required to review findings that "the
time, content and circumstances of the statement provide sufficient safeguards
of reliability." We note that, under the bill, the judge need not hold a
separate hearing or meet with the declarant.
In evaluating this proposed standard we turn to our experience with other
exceptions to the hearsay rule. A dying declaration, for example, is not
admissible unless the declarant has lost all hope of recovery and speaks under
a sense of impending death and is unavailable because of death. See
Commonwealth v. Polian, 288 Mass. 494, 497, 193 N.E. 68 (1934), and cases
cited. (FN6) Here, the child might not feel the
-------------------------- Page 547 N.E.2d 14 follows --------------------------
same obligation to [406MASS1213] tell the truth which we attribute to one who
speaks under a sense of impending death.
Massachusetts also recognizes a declaration against penal interest as an
exception to the hearsay rule. See Commonwealth v. Galloway, 404 Mass. 204,
207, 534 N.E.2d 778 (1989). For such a statement to be admissible, the
declarant must be unavailable; the statement must tend to subject the
declarant to criminal liability to such an extent "that a reasonable man in
his position would not have made the statement unless he believed it to be
true"; and, if offered in exculpation, the statement must be corroborated by
circumstances which clearly indicate its trustworthiness. Id. at 207-208,
534 N.E.2d 778, and cases cited. Unlike a person who makes a declaration
against penal interest, children who make out-of-court statements which would
be admissible under the pending bill are not required to have an appreciation
of the possible consequences of their statements.
Other exceptions to the hearsay rule, including certain guilty pleas,
implied admissions, and spontaneous exclamations, as well as declarations as
to physical condition (but not the narration of the circumstances), mental
condition (state of mind), and pedigree are part of our law. P.J. Liacos,
Massachusetts Evidence 278-356 (5th ed. 1981 & Supp.1985). The proposed
change represents more than a mere extension of the principles which underlie
the mentioned exceptions to the hearsay rule. The pending bill would render
admissible statements which could be the products of reflection, which would
be about the conduct of other (named) persons, and which need not have been
accurately preserved in their entirety. (FN7)
[406MASS1214] We consider the bill's requirement that the trial judge make
specific findings demonstrating that the time, content and circumstances of
the child's statement provide sufficient safeguards of reliability. Here, we
evaluate the possible effectiveness of these provisions by identifying factors
which might undermine the reliability of a statement, and then determining
whether this proposed mechanism is sufficiently sensitive to them. We assume
again that the child will not be available as a witness. (FN8)
Ambiguity, insincerity, faulty perception, and erroneous memory have been
described as the four possible inaccuracies in the inferential chain which
links a statement of one not subject to contemporaneous in-court
cross-examination about that statement, to an event that the statement is
supposed to reflect. (FN9) See Tribe, Triangulating Hearsay, 87 Harv.L.Rev.
957, 958 (1974). We do not doubt that a trial judge would be able to consider
the statement's degree of ambiguity when determining its reliability.
However, we do not know at what point the statement would be so ambiguous as
to be unreliable.
-------------------------- Page 547 N.E.2d 15 follows --------------------------
In this context it is important to understand that the bill presupposes the
exception to apply to the major or complaining witness, not to other
witnesses. See Commonwealth v. Kirouac, 405 Mass. 557, 561, 542 N.E.2d 270
(1989) (materiality of the witness's direct testimony must be weighed). If we
assume that the issue of ambiguity would be appropriately resolved at trial,
we are less sanguine about identifying insincerity. [406MASS1215] The bill
seems to assume that the judge might gauge more accurately the sincerity of a
statement the more closely in time it follows the event at issue (and in light
of its content and circumstances). But, what assurance is available as the
timing of the statement renders it less comparable to a spontaneous utterance,
or even to a fresh complaint? There are too many instances in which the
sincerity of a statement may not be discernible from consideration of the
time, content, and circumstances. For example, a statement given long after
the incident and following many opportunities for possibly prejudicial
conversations with, or solicitations by, other persons might be either an
absolutely accurate and, therefore, reliable statement or one which has been
so shaped by the passage of time and the intervening conversations that it is
not reliable. See Commonwealth v. Bergstrom, supra at 539 n. 4, 524 N.E.2d
366.
The two other factors, faulty perception and erroneous memory, generate
even greater concern. A statement which is both unambiguous and sincere might
have been influenced by faulty perception or erroneous memory, or both. We
are especially skeptical of the effectiveness of an examination of time,
content, and circumstances in revealing any measure of the latter two factors
in a proffered statement. Moreover, we add that, when making the statement,
the child might not be aware of its immediate solemnity or of its possible use
in criminal proceedings. In summary, we are not sufficiently confident that a
rigorous review of the time, content, and circumstances pertaining to a
statement will identify sufficient safeguards of its reliability. The pending
bill would ask a trial judge to determine the probative value of an
out-of-court statement without requiring him or her to examine its essence.
(FN10) We do not consider these procedures to be an adequate substitute for
the right to cross-examine before a jury. [406MASS1216] See Commonwealth v.
Amirault, 404 Mass. 221, 234-235, 535 N.E.2d 193 (1989).
We are of opinion that the pending bill does not assure the measure of
reliability which we require of exceptions to constitutional aspects of the
hearsay rule. (FN11) The proposed review of the time, content, and
circumstances does not compensate adequately for the absence of a statement
made under oath and subject to cross-examination. Although a statutory
approach allowing a judge to determine the reliability of the statements of an
unavailable witness on a case-by-case basis might pass constitutional muster,
this is not such a bill. We venture no opinion on whether a statute more
closely adhering to the common law safeguards of reliability might suffice.
We recognize that the relationship between the foundation of the hearsay
rule and the command of art. 12 is complex, and we seek to avoid
constitutionalizing the hearsay law of the Commonwealth. (FN12)
-------------------------- Page 547 N.E.2d 16 follows --------------------------
However, we conclude that the pending bill would contravene that portion of
art. 12 which entitles a person "to meet the witnesses against him face to
face." (FN13)
[406MASS1217] c. Corroboration. We reach this result, notwithstanding the
portion of the proposed statute which supplements that portion concerning the
judge's obligation to make findings, with the provision that the child giving
the statement testify as a witness or be unavailable as a witness "and there
is corroborative evidence of the sexual contact." This requirement of
corroboration enhances the pending bill, but not sufficiently to
counterbalance the noted objections. The bill would render admissible a
statement describing any act, the circumstances, or which identifies the
perpetrator. However, if the child is not available as a witness,
corroboration of the sexual contact would be required. We recognize that the
very nature of the offenses at issue renders it unlikely that corroboration of
the circumstances, or of the perpetrator, will be available. Corroborative
evidence of the sexual contact would be helpful to the trier of fact. If all
doubt as to whether "the sexual contact " occurred were eliminated, that
necessarily would not remove our concerns regarding the possible unreliability
of the statement concerning the circumstances and, more significantly, the
identity of the perpetrator.
As we read the statute, the out-of-court statement of a child who is
unavailable as a witness would be admissible as to the act, the circumstances,
and the identity of the perpetrator, and the corroborative evidence need only
pertain to the sexual contact. Thus, the only evidence of the identity of the
perpetrator which might be before the trier of fact could be an uncorroborated
portion of the child's statement. There may be instances in which it might be
established readily and beyond a reasonable doubt that the sexual contact
occurred and that the person identified in the child's statement was the only
person under the particular circumstances who had an opportunity to commit the
offense alleged. Nevertheless, we can also conceive of there being numerous
instances in which persons might be convicted of such offenses, although there
be conflicting evidence and with the only evidence of identity being the
statements, the essences of which may never have been appropriately tested.
[406MASS1218] Our commitment to the sanctity of the fact-finding process
precludes us from permitting such risks to become part of the Commonwealth's
jurisprudence. This commitment must be one of the guiding principles, no
matter how reprehensible the offense. Moreover, the court recently stated:
"Article 12 does not discriminate against classes of defendants nor
distinguish among categories of crimes." Commonwealth v. Bergstrom, 402
Mass. 534, 546-547 & n. 13, 524 N.E.2d 366 (1988). (FN14)
4. Determining the truth. We underscore that our response to the request
of the Senate is not only confined to the pending bill but also to limited
aspects thereof (criminal proceedings in which the victim does not testify).
(FN15) We neither pass judgment on all features of the legislation nor
reject all possible variations on the concept. We do not dispute the
seriousness of allegations of sexual abuse of children, the
------------------------- Page 547 N.E.2d 17. follows --------------------------
special complexities of prosecuting and defending against them, and the impact
which some victims may experience in preparing for, and participating in,
trials. Scholars, legislators, attorneys, and other concerned persons
throughout the nation have sought to develop an appropriate accommodation
between the interests of the victims and the provisions of State
Constitutions. We reiterate that our response does not proclaim that all
similar attempts will inevitably conflict with the requirements of our State
Constitution.
More specifically, we reemphasize what we stated in Commonwealth v.
Brusgulis, 398 Mass. 325, 332, 496 N.E.2d 652 (1986): "Judges have
considerable latitude in devising procedures and modifying the usual rules of
trial to accommodate child and other witnesses with special needs, so long as
the defendant's fair [406MASS1219] trial rights are not violated." Later, in
Commonwealth v. Bergstrom, supra 402 Mass. at 553, 524 N.E.2d 366, the court
stated that the decision ought not to be taken as precluding the use by law
enforcement agencies, lawyers, and trial judges of methods designed to
minimize the stress and trauma which might be imposed on victims and
witnesses. See Commonwealth v. Amirault, supra 404 Mass. at 243-244, 535
N.E.2d 193. (FN16)
5. Conclusion. For the reasons set forth above, we conclude, and in
response to question number 1 we state, that Senate No. 795 would, if enacted
into law, contravene that portion of art. 12 which provides that every subject
shall have a right "to meet the witnesses against him face to face." As a
result, we beg to be excused from answering question number 2.
The foregoing opinion and answer is submitted by the Chief Justice and the
Associate Justices subscribing hereto on the 28th day of November, 1989.
PAUL J. LIACOS
HERBERT P. WILKINS
RUTH I. ABRAMS
JOSEPH R. NOLAN
NEIL L. LYNCH
FRANCIS P. O'CONNOR
JOHN M. GREANEY
FN1. We invited interested persons to file briefs on or before August 28,
1989, and thereafter approved requests that the deadline be extended to
September 28, and then to October 4, 1989. We acknowledge the assistance of
briefs from: the Administrative Justice of the Juvenile Court Department;
the Attorney General, the Massachusetts District Attorneys' Association, the
district attorneys for the Eastern, Hampden, Northern, Plymouth, Suffolk,
Worcester, Cape and Islands, and Northwestern Districts; the Committee for
Public Counsel Services; the Department of Social Services and the Office for
Children; the Massachusetts Committee for Children and Youth and the
Massachusetts Child Welfare League of America Executives Group; the
Massachusetts Society for the Prevention of Cruelty to Children; the National
Association of Social Workers; and Attorney Jacqueline Y. Parker.
FN2. The bill provides--
"Chapter 233 of the General Laws is hereby amended by adding the following
sections:
"Section 81. (a ) The out-of-court statement of a child under the age of
ten describing any act of sexual contact performed on or with the child,
the circumstances under which it occurred, or which identifies the
perpetrator is admissible in any criminal or civil proceeding provided that
the judge shall make and enter specific findings on the record, describing
facts with particularity, demonstrating that:
"(1) the time, content and circumstances of the statement provide
sufficient safeguards of reliability; and
"(2) the child giving the statement testifies as a witness; or
"(3) the child is unavailable as a witness and there is corroborative
evidence of the sexual contact.
"(b ) The proponent of the statement shall give the adverse party
reasonable notice of his intention to offer the statement and of the
particulars of the statement.
"Section 82. (a ) A child shall be deemed unavailable as a witness for the
purposes of utilizing out-of-court statements under the provisions of
section eighty-one if:
"(1) the witness is unable to be present or to testify because of death or
then existing physical or mental illness or infirmity; or
"(2) the witness is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of his statement;
or
"(3) the witness persists in refusing to testify concerning the subject
matter of his statement or testifies to a lack of memory of the subject
matter of his statement; or
"(4) the witness is absent from the hearing and the proponent of his
statement has been unable to procure his attendance by process or other
reasonable means; or
"(5) the court finds beyond a reasonable doubt that testifying would be
likely to cause severe and long-lasting psychological or emotional trauma;
or
"(6) the witness is not competent to testify.
"(b ) A finding of unavailability under (a )(5) above shall be supported by
expert testimony."
FN3. See Commonwealth v. Siegfriedt, 402 Mass. 424, 428, 522 N.E.2d 970
(1988); Commonwealth v. Salim, 399 Mass. 227, 235, 503 N.E.2d 1267 (1987);
Commonwealth v. Trigones, 397 Mass. 633, 637, 492 N.E.2d 1146 (1986);
Commonwealth v. Furtick, 386 Mass. 477, 480, 436 N.E.2d 396 (1982).
------------------------- Page 547 N.E.2d 17_ follows --------------------------
FN4. Some of these categories are similar to provisions in Fed.R.Evid. 804(a)
(1989) and Proposed Mass.R.Evid. 804(a). Many of the circumstances of
unavailability set forth in the bill, e.g., death, physical illness or
infirmity, privilege, and absence from the jurisdiction are recognized at
common law. See, e.g., Commonwealth v. Bohannon, supra 385 Mass. at 740-749,
434 N.E.2d 163, and authorities cited; Commonwealth v. Canon, 373 Mass. 494,
499-500, 368 N.E.2d 1181 (1977) (privilege against self-incrimination), cert.
denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978); Commonwealth v.
DiPietro, 373 Mass. 369, 367 N.E.2d 811 (1977) (statutory privilege);
Commonwealth v. Clark, 363 Mass. 467, 295 N.E.2d 163 (1973) (missing
witness); Commonwealth v. Gallo, 275 Mass. 320, 331, 175 N.E. 718 (1931)
(death, insanity).
FN5. We put aside for the moment the bill's provision for hearsay as
probative evidence even when the child is available. See Sec. 81(a )(2), note
2, supra. See also note 8, infra.
FN6. Under our common law humane practice, after the judge has found the
facts making a dying declaration admissible, the defendant has a second
opportunity to have it excluded from consideration by the jury if they also do
not find those facts by a preponderance of the evidence. Commonwealth v.
Polian, 288 Mass. 494, 498-499, 193 N.E. 68 (1934). However, the preliminary
findings of the judge are critical to the proper determination of the
admissibility of a dying declaration; thus, we do not imply that a provision
in the bill adding the concept of the humane practice is necessary, or that,
if present, such a provision would cure the defects in the bill on which we
focus our discussion.
FN7. The Federal rules contain provisions for the admission of:
"A statement not specifically covered by any of the foregoing exceptions
but having equivalent circumstantial guarantees of trustworthiness, if the
court determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for which
it is offered than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes of these rules
and the interests of justice will best be served by the admission of the
statement into evidence." Fed.R.Evid. 803(24) and 804(b)(5) (1989).
We note that the Federal rule is more restrictive than the pending bill in
that the statement must be "more probative on the point ... than any other
evidence which the proponent can procure through reasonable efforts."
FN8. In Commonwealth v. Bergstrom, 402 Mass. 534, 544, 524 N.E.2d 366
(1988), the court noted "that we have never interpreted art. 12 as permitting
introduction of an available witness's testimony outside a defendant's
presence."
FN9. We recognize that reliability may be subdivided differently, but use
these categories for illustrative purposes.
FN10. In discussing the competency of a child as a witness, the court
identified, as the crucial consideration, her capacity to observe, remember,
and give expression to that which she had seen, heard, or experienced.
Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E. 495 (1921).
FN11. Without the witness under oath solemnifying the occasion, the jury's
observing the witness and the defendant's cross-examining the witness, that
testimony may be unreliable "because faults in the perception, memory, and
narration ... will not be exposed." 4 J. Weinstein & M. Berger, Weinstein's
Evidence 800-11 (1984).
FN12. The state of the relationship between the confrontation clause and the
hearsay rule has been described as moving "from complex, to confusing, to
downright confused" when the "concepts of the importance of the testimony, the
utility of cross-examination, and the burden ... of producing an available
declarant or establishing unavailability are added to traditional reliability
confrontation clause analysis, and the concepts of necessity and the adversary
system are addressed in the hearsay analysis." Graham, The Confrontation
Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of
the Relationship, 72 Minn.L.Rev. 523, 524 (1988).
FN13. In a reference to certain United States Supreme Court decisions, it was
stated that "the basic notions behind the hearsay rule are beginning to
acquire a constitutional dimension"; and that this may require careful
consideration whether proposals to chip away at the rule by new exceptions are
faced with a constitutional roadblock in criminal cases. Liacos, Sixth
Amendment: The Right of Confrontation, 33 Am. Trial Law J. 243, 262 (1970).
------------------------- Page 547 N.E.2d 17_ follows --------------------------
FN14. In order to obtain guidance on the issues we have identified, we
reviewed decisions from other jurisdictions. Our examination did not yield
material or reasoning which alters the result we reach.
FN15. Although Senate No. 795 would apply to both criminal and civil
proceedings, we confine our analysis to the former because questions 1 and 2
ask whether the bill, if enacted, would contravene the confrontation right of
art. 12 and the Sixth Amendment. See Commonwealth v. McGruder, 348 Mass.
712, 716, 205 N.E.2d 726 (1965) (art. 12 right of confrontation not applicable
to civil proceedings), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d
312 (1966).
FN16. The underlying issues are before the court with increasing frequency.
See, in addition to Bergstrom, Commonwealth v. Dockham, 405 Mass. 618, 542
N.E.2d 591 (1989); Commonwealth v. Tufts, 405 Mass. 610, 542 N.E.2d 586
(1989); Commonwealth v. Kirouac, 405 Mass. 557, 542 N.E.2d 270 (1989);
Commonwealth v. Amirault, 404 Mass. 221, 535 N.E.2d 193 (1989).
(
geocities.com/jgharris7/witchhunt) (
geocities.com/jgharris7)