# White v. Illinois

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## Concurring Opinion

    Thomas
United States Supreme Court
502 U.S. 346
White v. Illinois
No. 90-6113 Argued: Nov. 5, 1991. --- Decided: Jan 15, 1992
Syllabus
At petitioner White's trial on charges related to a sexual assault upon S.G., a 4-year-old girl, the trial court ruled that testimony recounting S.G.'s statements describing the crime that was offered by her babysitter, her mother, an investigating officer, an emergency room nurse, and a doctor was admissible under state-law hearsay exceptions for spontaneous declarations and for statements made in the course of securing medical treatment. The trial court also denied White's motion for a mistrial based on S.G.'s presence at trial and failure to testify. White was found guilty by a jury, and the Illinois Appellate Court affirmed his conviction, rejecting his Sixth Amendment Confrontation Clause challenge that was based on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. The court concluded that this Court's later decision in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390, 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.
Held: The Confrontation Clause does not require that, before a trial court admits testimony under the spontaneous declaration and medical examination exceptions to the hearsay rule, either the prosecution must produce the declarant at trial or the trial court must find that the declarant is unavailable. Pp. 352-358.
(a) This Court rejects the argument of the United States as amicus curiae that the Confrontation Clause's limited purpose is to prevent the abusive practice of prosecuting a defendant through the presentation of ex parte affidavits, without the affiants ever being produced at trial, that the only situation in which the Clause would apply to the introduction of out-of-court statements admitted under an accepted hearsay exception would be those few cases where the statement was in the character of such an ex parte affidavit, and that S.G. was not a "witness against" White within the meaning of the Clause because her statements did not fit this description. Such a narrow reading of the Clause, which would virtually eliminate its role in restricting the admission of hearsay testimony, is foreclosed by this Court's decisions, see, e.g., Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, and comes too late in the day to warrant reexamination. Pp. 352-353.
(b) Although Roberts contains language that might suggest that the Confrontation Clause generally requires that a declarant be produced at trial or be found unavailable before his out-of-court statement may be admitted into evidence, such an expansive reading was negated by the Court's decision in Inadi, supra, 475 U.S., at 392-400, 106 S.Ct., at 1124-1129. As Inadi recognized with respect to co-conspirator statements, the evidentiary rationale for admitting testimony regarding such hearsay as 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. But those same factors that contribute to the statements' reliability cannot be recaptured 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 a 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. Where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. Establishing a generally applicable unavailability rule would have few practical benefits while imposing pointless litigation costs. Pp. 353-357.
(c) White misplaces his reliance on Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857, and Maryland v. Craig, 497 U.S. ----, 110 S.Ct. 3157, 111 L.Ed.2d 666, from which he draws 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. Those cases involved only the question of what in-court procedures are constitutionally required to guarantee a defendant's confrontation rights once a child witness is testifying, and there is no basis for importing their "necessity requirement" into the much different context of out-of-court declarations admitted under established exceptions to the hearsay rule. Pp. 357-358.
198 Ill.App.3d 641, 144 Ill.Dec. 722, 555 N.E.2d 1241 (1990), affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and in which SCALIA and THOMAS, JJ., joined except for the discussion rejecting the United States' proposed reading of the "witness against" Confrontation Clause phrase. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined.
Gary R. Peterson, Springfield, Ill., for the petitioner.
Arleen C. Anderson, Chicago, Ill., for respondent.
Stephen L. Nightingale, Washington, D.C., as amicus curiae, supporting the respondent.
THE CHIEF JUSTICE delivered the opinion of the Court.

## Notes

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).
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