William H. Rehnquist: We'll hear argument next in No. 89-260, Idaho against Laura Lee Wright. General Jones. You may proceed whenever you're ready.
James Thomas Jones: Mr. Chief Justice, may it please the Court. We are here today because the Idaho Supreme Court has misread the requirements of the confrontation clause of the Sixth Amendment. By imposing three rigid preconditions to the admissibility of hearsay statements of unavailable child witnesses, the court has made it almost impossible to get this kind of evidence into the fact-finding process. In essence, the court has held that the confrontation clause requires the hearsay declarations of child sex abuse witnesses to be videotaped, the product of non-leading, open-ended questions and elicited by an interviewer with no preconception of what the child should be disclosing. The State of Idaho submits that this three-part test cannot be sustained by a reasonable reading of the confrontation clause, and that it is in fact in conflict with the purpose of the clause to advance the accuracy of the truth determining process in criminal trials. In its effort to protect the confrontation rights of the defendant, the court has made it extremely difficult to get reliable hearsay statements made by child victims and witnesses before the trial courts. And of course that is evidence that is critical in many of these cases.
William J. Brennan, Jr.: General Jones, may I ask, initially there were two counts, were there not?
James Thomas Jones: Yes.
William J. Brennan, Jr.: And the conviction under the first count was reversed, was it?
James Thomas Jones: The conviction for the lewd conduct with the younger daughter was reversed.
William J. Brennan, Jr.: Yes.
James Thomas Jones: The conviction for lewd conduct with the older daughter, the five-and-a-half-year old, was not appealed from.
William J. Brennan, Jr.: Well, at some stage, and I'm not quite clear from the record when, the second count was dismissed, was it not?
James Thomas Jones: No, Your Honor, the second count was not dismissed. Laura Lee Wright is in the state penitentiary on her conviction on the count of molesting the five-and-a-half-year old. The count of molesting the two-and-a-half-year old is before the Court. The conviction was reversed on that count.
William J. Brennan, Jr.: And that's before us, is it?
James Thomas Jones: That is the count that is before the Court at this point.
William H. Rehnquist: Now, was there a dismissal on the... by the local prosecutor after the remand from the Supreme Court of Idaho, and then that dismissal was vacated?
James Thomas Jones: Oh, I see what you're getting at. After... after the Court granted certiorari, we found out that the prosecutor and the defense counsel had gone into the court and had stipulated for a dismissal in exchange for an agreement that had to do with termination of the parental rights of Mrs. Wright to the two-and-a-half-year old daughter. The matter was brought to the attention of the trial court. There was a hearing--
William J. Brennan, Jr.: Well was that... was on that motion to reinstate the count two?
James Thomas Jones: --That is correct. That is correct. And then, after a hearing, the charge that was dismissed was reinstated. It was on the ground of inadvertence under rule 60 of the Idaho rules--
William J. Brennan, Jr.: Well, didn't the trial court dismiss that count, though, before we granted certiorari?
James Thomas Jones: --The count was dismissed before cert. was granted.
William J. Brennan, Jr.: Yes.
James Thomas Jones: And it was after cert. was granted that we found out that the charge had been dismissed. It was not dismissed by our office, but by the county prosecuting attorney and by defense counsel. We were not notified.
William J. Brennan, Jr.: Well, he had authority to do what he did, did he not? He had authority to--
James Thomas Jones: Yes, he had the authority to do that.
William J. Brennan, Jr.: --Well, what... what was left of the case when the count was dismissed?
James Thomas Jones: Well, we... we went into the--
William J. Brennan, Jr.: I mean this all happened while cert. was pending, but before we had acted on the petition for certiorari, did it not?
James Thomas Jones: --Let's see. The dismissal took place, I believe, in November of last year. And cert. was granted after the dismissal, but before the charge was reinstated.
William J. Brennan, Jr.: Yes.
James Thomas Jones: Right.
William J. Brennan, Jr.: What was the case that was here while the count was dismissed, before it was reinstated?
James Thomas Jones: We believe that... that, while there was still the ability to go into the court to seek reconsideration of the dismissal order, and while we were operating under the inadvertent impression that the case was still pending, that the dismissal was not final.
Antonin Scalia: Sort of a contingent future case or controversy in a way. [Laughter]
James Thomas Jones: I--
William H. Rehnquist: The case is presently pending for retrial in the Idaho District Court, depending on the outcome of the case here?
James Thomas Jones: --That is correct. That is correct.
Byron R. White: And when you filed your petition, the... the count was still--
James Thomas Jones: The count was still pending at the time we filed our petition.
Byron R. White: --Exactly And... and at the time the response to the petition was filed?
James Thomas Jones: There was no response. The court requested the response to the petition, but none was filed. Now, had there been one, presumably all of us would have known that the case had been... that the dismissal order had been made. But we were not advised. The counsel for the... for Wright was requested on at least one occasion to file the response. None was filed. I think it was after the second request for a response that the case was dismissed.
Anthony M. Kennedy: Was the dismissal with the understanding that a new trial would follow? And was that conceded?
James Thomas Jones: The dismissal was without prejudice, which would have given the prosecutor, had it wished, the ability to go ahead and--
Anthony M. Kennedy: Even though the case had proceeded to judgment?
James Thomas Jones: --That is correct. We pointed out to the court that the dismissal had been made without prejudice, and that certainly the understanding was that that could have been refiled. It was primarily an exchange of getting the case resolved so that they could terminate the parental rights of the mother. And as I take it now, the question of whether parental rights have been fully terminated depends on whether this Court affirms or reverses.
William H. Rehnquist: Unless there are further questions from the Court, why don't you proceed to the merits of the case, Mr. Jones?
James Thomas Jones: Thanks, Mr. Chief Justice. Essentially, we're saying that the Idaho Supreme Court, in looking at the case, had obtained the misimpression that instead of looking at all of the circumstances to see whether the hearsay statement was admissible, only focused on three circumstances. That is, whether leading questions had been involved, whether there was a videotaping of the interview between the young girl and the pediatrician and whether he had a preconception of what was going to be disclosed. I'd like to go into basically the... the testimony that's at issue.
Byron R. White: xxx... as the case comes to us, are we... must we assume that these witnesses were unavailable?
James Thomas Jones: I'm going to cover that, Justice White.
Byron R. White: Are you going to get to that? All right.
James Thomas Jones: Because... in fact, I was doing a little bit of quick research during the previous argument. The older girl, the five-and-a-half-year old, Jeannie, testified at trial as to the acts that had been carried out... the sexual acts that had been carried out against her and against her younger sister, by both of the defendants. A number of witnesses, a couple of police officers, three doctors and a social worker came in and essentially verified that Jeannie had told them basically the same thing during interview sessions shortly after the sexual abuse became known. The younger girl, Kathy, was found by the trial judge to be not capable of communicating to the jury and was not permitted to testify. However, Dr. Jambura, a pediatrician, testified as to statements that had been made to him by Kathy during an examination that took place after she was taken from Wright's home, a day after. During the course of the examination he checked out the medical situation, and found that there had been some abrasions in the vagina. And after that he asked her some questions. And four of those are relevant today. The first question was: "Do you play with Daddy"? --referring to Giles, the co-defendant. "Does Daddy play with you? " "Does Daddy touch you with his pee-pee? " And at this point, in order to aid in answering the question, he drew a picture, and she added a penis to it. And the final question was: "Do you touch his pee-pee"? After making no initial response to the last question, the girl said, "Daddy does do this with me, but he does it a lot more with my sister than with me. " Her responses were admitted by the trial judge under Idaho's residual hearsay exception on the court's finding that they were reliable and that their circumstantial guarantees of trustworthiness were equivalent to statements permitted under some of the firmly rooted hearsay exemptions.
Byron R. White: Why was she... why was she unavailable for... for testifying in trial?
James Thomas Jones: The trial judge, in the presence of the attorneys and the parties conducted... but out of the presence of the jury, conducted a voir dire examination and asked the young girl, Kathy, the... three years old at that time, a number of questions, and at the time of trial he determined that she was not capable of communicating with the jury and made that determination under Idaho law--
Byron R. White: You mean that child was just an incompetent witness? Is that it?
James Thomas Jones: --The child was not incompetent. The judge did not hold that. The judge held that her testimony in the courtroom setting would not have been useful, that she could not have communicated to the jury, and any--
Sandra Day O'Connor: Well, isn't that tantamount to, quote, "incompetence of a witness" as that term is normally understood?
James Thomas Jones: --Well, under Idaho law there are two parts of incompetence. Number one, inability to communicate with the jury. Number two, which the Court did not find, inability to understand what you're talking about.
Sandra Day O'Connor: But either one means that the witness is not able to be called as a witness in a trial.
James Thomas Jones: That would be correct.
Sandra Day O'Connor: And we take the case on that assumption, that this young child had been determined not to be someone who could be called to testify at trial?
James Thomas Jones: At that time, that's correct.
Sandra Day O'Connor: But you're making the argument that that same child at an earlier time, outside the courtroom setting, would be competent, in effect, and that her testimony should come in under some hearsay exception?
James Thomas Jones: Right, the judge was making--
Sandra Day O'Connor: Is that right? Is that your argument?
James Thomas Jones: --That's correct. That's correct.
Sandra Day O'Connor: Now, have most courts held that if a witness is found to be incompetent that the only kind of out-of-court statements that could come in would be what we call the excited utterance, or res gestae statements?
James Thomas Jones: Most of the courts have dealt with those kinds of statements, but there have been two circuit decisions... Nelson against Farrey and U.S. against Dorian, Seventh and Eighth Circuit cases, where a child has not come in, been essentially determined incompetent to testify in the courtroom setting, but their hearsay statements were admitted as being reliable at the time that they were made.
Byron R. White: Competence was... based on... was it based on the fact that testifying in the presence of the defendant would render... that she just would be incapable of doing that in the presence of the defendant?
James Thomas Jones: The Court didn't specifically say, in the presence of the defendant. The Court essentially said that in the courtroom setting this particular child, based upon his voir dire at that time, would not be productive, that--
Byron R. White: Do you suppose he would have come out if... if... if the... if... would that child have been competent to testify under the Maryland procedure?
James Thomas Jones: --It's a possibility. There was no determination by the judge as to the particular effect that the parents or the defendants would have on that child, whether the child would be traumatized. The... the inquiry was not so much the trauma to be visited on the child, but the ability of the child to relate at that particular time and place the facts that--
Antonin Scalia: Yes, but that... and that's what incompetence to testify usually means. It means that the child is too young to give a coherent account, that the child's understanding of questions and... and sense of reality to frame the responses is inadequate. It has nothing to do with whether it's in a courtroom setting or not, does it?
James Thomas Jones: --Well, it does to a degree, because here we were looking at a particular statement made by this child in an interview session between the child and a pediatrician, and we were not looking at the total range of everything that the child said.
Antonin Scalia: No, I'm not talking about at that stage. I'm talking about the stage the judgment of incompetence to testify is made. I had thought that usually that means, when a court makes that determination, that this child is... is just... or it could be an incompetent person. That the person doesn't understand questions, cannot intelligently respond to answers. It has nothing to do with courtroom trauma, that he could do it in another setting but can't do it in a courtroom. Now, which did your court find here?
James Thomas Jones: Well, the court found that the child would not be competent to relate facts in the courtroom setting.
Antonin Scalia: Just in the courtroom setting? Well, that's--
James Thomas Jones: In the courtroom setting.
Antonin Scalia: --Well, that's not really incompetence as I normally understand it, incompetence to testify.
James Thomas Jones: The judge did, however, look very carefully at all circumstances surrounding the making of the statement to the pediatrician, and he said this statement, when considering it in the totality of the circumstances, is a reliable statement and should be let in. He made a distinction between... between competence and reliability. I'd like to just point out the things that he looked at to determine that the statement was reliable. He said, number one, that there was physical evidence to corroborate that sex abuse occurred. Number two, that there was no motive for the two-and-half-year-old younger daughter to make up a story of this nature. Number three, the nature of the statements themselves as to the sexual abuse are such that they fall outside the general believability that a child could make them up, or would make them up. Number four, that the younger daughter was in the custody of the defendants at the time the injuries occurred. Number five, that the older daughter testified that it was the younger daughter's mother and father who were the perpetrators of the sexual abuse. And number six, that the perpetrators were well-known to the victim. He said, looking at that statement in that context, the statement is reliable. It meets the reliability requirements of the Ohio against Roberts case, and therefore it should be admitted. He also found that essentially she was unavailable, and I would submit--
Byron R. White: And the... the Idaho Supreme Court proceeded on the basis that... that if the procedures they thought should have been followed had been followed, that the statements perhaps could be admitted--
James Thomas Jones: --Certainly, if it had--
Byron R. White: --So they didn't... they didn't decide on the basis that that... of incompetency?
James Thomas Jones: --No. As a matter of fact, in the companion case--
Byron R. White: And that's the decision we're reviewing, is--
James Thomas Jones: --Right. In the decision in the companion case, Giles, they said the testimony was properly admitted. That was three months prior. No problem for hearsay purposes. The only difference between this case is, they looked at it from the confrontation clause standpoint and said, well, it was fine for hearsay rules but it's not fine for confrontation clause purposes. If I might, Mr. Chief Justice, I'd like to reserve the rest of my time.
William H. Rehnquist: --Very well, General Jones. Mr. Bryson?
William C. Bryson: Thank you, Mr. Chief Justice, and may it please the Court: In our view, the Idaho Supreme Court made a legal error in this case that's best summed up by pointing to three critical factors that the court did not consider or even mention in its opinion: First, the corroboration in this case. This Court and others have pointed out again and again in the confrontation clause context and others that the degree of corroboration for a particular statement is a very important indicium of reliability of the statement. The second, the spontaneity of the statement. While the Idaho Supreme Court is very critical of the doctor for asking leading questions, the court overlooks the fact that the one... the one response that the child made which is the critical response in this case, "He does it with me but he does it more with my sister than with me. " wasn't in response... wasn't responsive to a leading question. It was blurted out in the course of the doctor's questioning. It was--
Sandra Day O'Connor: But it... it's not what we'd call an excited utterance or a res gestae--
William C. Bryson: --No. Normally, that's right, and... and we're not urging that it should be construed in that way. But I think what's important in term... determining whether it bears the indicia of reliability is that it was spontaneous and volunteered. It was not a nod or a yes, sir, yes, sir, yes, sir type response to a doctor's leading questions. Third is the fact that this child, the younger child was in the custody of the defendants until just before the physical examination, and so the theory of the case, the theory of defense in this case, which is that the second set of parents must have... or somebody else must have programmed this child to make these statements, just won't wash with respect to this child, this younger child, because she wouldn't have had any opportunity to be programmed. She was with the defendants throughout the period up until the time that she went to the doctor.
William H. Rehnquist: --Mr. Bryson, what you refer to as these... this corroboration resembles to a certain extent a harmless error analysis.
William C. Bryson: Well, there is... there is a certain degree of... of parallelism. I think in Dutton v. Evans, Justice Stewart's opinion points out that one of the reasons that the evidence was admissible was that it really did not--
William H. Rehnquist: Didn't prove much.
William C. Bryson: --It didn't prove much, I guess is the point, and I think Justice Blackmun wrote a separate opinion in that case pointing out and relying on the harmless error factor. It is true that where you have overwhelming evidence, corroborative evidence that supports the reliability of a statement, you may also have something that approaches harmless error. Of course, harmless error isn't an issue in this case as it comes to this Court. But, nonetheless, I think it's important to focus on each of the various features of corroboration to show how reliable this statement was even though, of course, it wasn't subject to cross-examination.
Sandra Day O'Connor: Well, do you... do you think here that the out-of-court statements fall within the state's residual hearsay exception?
William C. Bryson: I think they... the out-of-court statement fell... the state did hold in the other case, the Giles case, that it fell within the state's residual hearsay exception. I think it would also... they would also fall within the Federal exception. I don't... In other words, the--
Sandra Day O'Connor: And would you take the position that anytime it falls within such an exception that it automatically can come in under the confrontation... despite the confrontation clause?
William C. Bryson: --Your Honor, the way--
Sandra Day O'Connor: Is it a firmly rooted exception if it's in the residual exception category?
William C. Bryson: --Your Honor, my answer to that question is that the residual exceptions are written in order to try to incorporate this Court's confrontation clause jurisprudence. In other words, they require, among other things, specific indicia of reliability. So I think if a court, a Federal court, let's say, applying the Federal residual exceptions correctly, finds that something falls within the residual exception, it would almost necessarily have also made the findings necessary to satisfy the confrontation clause. But now, of course, a state would be free to construe its residual exception more broadly than that, and if it did then you would have to view the confrontation clause inquiry separately. So I would say normally my answer to your question is yes but not necessarily, particularly depending on the way the particular clause was... was construed in the case.
Sandra Day O'Connor: Well, what... what's the effect of the finding that the witness is incompetent to testify?
William C. Bryson: Well, Your Honor, I think where the finding is... and by the way, the finding in this case was... was not objected to by... indeed, both sides concurred that the witness was incapable of testifying in court. Where the finding is simply that the witness cannot communicate in court and it doesn't suggest what normally we think of by incompetence, which is that the witness is incapable of observing or reporting in any context, then the problem is just one of unavailability. It doesn't... in other words, the finding of incompetence in this case, if that's what it was, was not a finding that went to the child's ability to... to observe and communicate. It went to the child's ability to testify in court, and on that there was no dispute among the parties. Now, if I may point to the... the corroboration that's present in this case. Number one, there's clear physical... evidence of physical abuse to the younger daughter. The pediatrician found strong basis for a belief that there had been physical abuse. Two, testimony in court from the older daughter, which is essentially, you could use the expression, an interlocking statement with that of the younger daughter because both of them said that the parents had abused each of them. That was the testimony of the older daughter. It was the statement of the younger daughter. They were interlocking in that sense. The third piece of corroborative evidence, there was physical abuse of the older child. Again, the medical evidence on this is clear, and the... by the way, that was corroborated not by... just by Dr. Jambura but by two other doctors. And fourth, out-of-court statements, which were admitted without objection, of the older daughter detailing in... extensively to a number of different people, including the therapist, the various incidents of... of abuse with respect to both daughters. So this is a very well corroborated out-of-court statement. You seldom see this degree of corroboration.
Sandra Day O'Connor: Mr. Bryson, I'm sorry to interrupt again and to ask a question on this, but it troubles me, and I'm going to do it anyway. What if the finding of the trial court is in the traditional sense of incompetence of a witness to testify? Would you be here urging that if you find all these outside things, then that testimony ought to come in?
William C. Bryson: If the... if the trial court finds that the witness is truly incapable of observing... let's take it out of the child area and say this is the person of such low mental capacity that the person is... the trial judge's judgment is that person is incapable of making observations and reporting them to anyone in any context. Then I would think that would be a serious problem for admissibility in that setting because the judge would have found that there is no basis for believing that the statement is reliable because the judge would have found that this can't have happened.
Sandra Day O'Connor: And do we know for sure what the finding was here?
William C. Bryson: Yes. The judge at joint appendix 39 makes a finding that the child is incapable of communicating with the jury, and that was the whole thrust of the... of the colloquy that preceded it, and it was the basis on which the Idaho Supreme Court took this case. Now, I want to emphasize again, there are--
Antonin Scalia: What page is that [inaudible] on?
William C. Bryson: --I think it's JA 39, I believe, is the place where the actual finding is made, the unobjected-to finding, on the top of the right-hand side, I think. The... there was, according to the Idaho Supreme Court, a flaw in the interrogation, and I'd like to address that briefly. The principal claim is the doctor must have been biased, and here I think the Idaho Supreme Court really went wrong. Doctors do get as much information about a case in advance to aid their diagnosis as they can; and yet, the Idaho Supreme Court seemed to take the view that if this doctor had advance information that suggested there may have been child abuse in this case, that his report of the statement was somehow impeached, somehow unreliable.
Antonin Scalia: Did it say automatically--
William C. Bryson: No.
Antonin Scalia: --or was it just one of the factors? Don't you think it is a proper factor in deciding whether a prior examination was reliable or not, whether the person had an objective in mind in making the examination?
William C. Bryson: I think those are two different things. I don't think there's any indication in this record that this doctor had an objective in mind. This doctor... there's no suggestion that this doctor was trying to find child abuse.
Antonin Scalia: Well, no, but he was looking for child abuse.
William C. Bryson: He certainly was, just as a doctor would look for evidence of whatever particular malady the person... the patient came to him complaining of. But that doesn't mean that it's more like that you are suspicious of the doctor--
Antonin Scalia: Oh, it's a lot more reliable if the child blurts out something relating to sex abuse in a... in a conversation that had nothing to do with that subject, where the doctor was trying to find something else.
William C. Bryson: --That... that--
Antonin Scalia: And she said, you know, daddy... daddy did something else to me. That would... wouldn't that be more reliable?
William C. Bryson: --That would be very reliable, but you're going to have a lot of cases in which a child will be taken to a doctor for a question of whether this... there's evidence of child abuse where the doctor knows that there is a suggestion of child abuse.
Antonin Scalia: That's right.
William C. Bryson: And the medical exception, and I would... I would--
Antonin Scalia: But without saying that that disqualifies it automatically, don't you agree that that renders it less reliable than the same information elicited in the different context?
William C. Bryson: --Well, it... to the extent that if it's blurted out in the context where no questions on that subject had been asked at all, I would think it would be extremely reliable. So yes to that extent. But the Idaho Supreme Court said something very different. They said you have to be dubious of this evidence because of the doctor's advance knowledge, and I would point out-- Thank you very much.
William H. Rehnquist: Thank you, Mr. Bryson. Mr. Kehne.
Rolf Michael Kehne: May it please the Court: I have two general responses to our state attorney general and Mr. Bryson. First of all I'd like to talk about this notion that we can cure a confrontation violation by corroboration. I would submit, as Professor Burger pointed out very eloquently for... for her brief for the ACLU, that all the corroboration in the world will not cure a violation of the confrontation clause. If we take the state's argument to its extreme, then we will have trial judges saying, I believe this defendant is guilty and I am sure of it beyond a reasonable doubt. Therefore, it is okay for me to allow in hearsay evidence of robbery victims, eye witnesses, anybody else that the state says we cannot procure today. They are unavailable to us. And according to the state's theory, this Court should affirm because the trial judge had a lot of other evidence to corroborate that determination that yes, well, it doesn't matter, this defendant's guilty anyway. And I don't think this Court's opinions have ever suggested that that could be the case. It may be that we can imagine some way of conducting criminal trials that will lead to just as reliable results as the way we do it, but the fact is, in this country we do it by allowing defendants to confront their accusers. It doesn't matter--
Antonin Scalia: We haven't... we have used language like that, though. How do you explain that language in our cases? We have talked about corroboration as being one of the elements that will allow in hearsay.
Rolf Michael Kehne: --If it is corroboration surrounding the circumstance of the making of the statement. Let me submit to the Court that the true standard is whether or not confrontation and cross-examination would be useful to the accused and would be useful to the jury. If the truth or falsity of the statement is determined solely by the nature of its making, the circumstances of its making and so forth, it really doesn't matter if we don't confront and cross-examine. I think of the classic example of the little kid who is too young to testify who comes running out of the perpetrator's bedroom holding a genital area and saying, he hurt me, he hurt me. I don't see any need for us to cross-examine that statement. Nor would it do us any good, nor would it give the jury any better information, because all the things relevant to whether or not the statement is reliable evidence are found in the circumstances of the making of the statement against.
Antonin Scalia: So you say there's a difference between the kind of indicia of reliability which attend the exception itself and corroboration by just other accumulated evidence?
Rolf Michael Kehne: Exactly, Mr. Chief Justice. So I think it's wrong for the state to argue that we can allow this statement in because another witness... an entirely other witness... corroborates the statement, either the medical doctor's physical findings or the girl's sister. That would be more like the situation I brought up before, where the trial judge rules, I believe the person is guilty because I see all this corroborative evidence, therefore I'll let in hearsay from the victims of the crime, the eye witnesses and so forth. And I don't think the Court has ever suggested that we could do that. The other matter I'd like to bring to the Court's attention to start out with is, we submit the Attorney General of the State of Idaho has misrepresented to the Court the opinion of the Idaho Supreme Court. And I challenge Mr. Jones in his rebuttal to the Court to show us any place in the text of the opinion... now, I'm not talking about what one justice wrote in a dissent or another justice wrote in a concurrence in another case, but in the text of the opinion that says, we will not let in any of these statements if there are any leading questions.
Antonin Scalia: It's not an easy set of opinions to figure out, Mr. Kehne.
Rolf Michael Kehne: I agree with that. It could have been drafted a little more elegantly. But it never suggests... the court below never suggests that these three criteria... absence of leading questions, absence of preconception by the interviewer and of existence of a videotape... are hard, fast, inflexible criteria, the absence of one of which would mean that the statement can't be admitted into evidence no matter how reliable it is, based on other circumstances.
Byron R. White: Do you disagree with what the court seems to have indicated, that if... that if these deficiencies hadn't existed, if there had to have been videotape, no leading questions and no preconception, that the statement could have been admitted?
Rolf Michael Kehne: No, I don't disagree that if there had been all those I would have no problem with them letting this statement in. I... I have a problem, I disagree with the state's position that the Idaho Supreme Court is holding that if only one was missing--
Byron R. White: What would... what would the presence of those... what would the presence of those procedures have done that would make you say it would be all right?
Rolf Michael Kehne: --All right--
Byron R. White: It would... really just reliability, isn't it?
Rolf Michael Kehne: --It... it's just reliability, that... that we could see--
Byron R. White: And we do judge this case on the basis that the witness is unavailable?
Rolf Michael Kehne: --Yes, we do.
Byron R. White: Um-hum.
Rolf Michael Kehne: But it's reliability that comes from the circumstances in which the statement was made, as opposed to corroboration by other witnesses. We take the instance of leading questions--
Byron R. White: So you say that even if this... you say that as long as there was a... that the... that there was this indicia of reliability... sufficient indicia of reliability, that the confrontation clause would not be violated by admitting the testimony?
Rolf Michael Kehne: --That is my opinion, and I believe that is what the Idaho Supreme Court said, contrary to what the Attorney--
Byron R. White: Even though... even though it would be sort of a new sort of a holding?
Rolf Michael Kehne: --It would be an expansion of an exception to the confrontation clause, yes. The problem with leading questions is, as research shows, you can create a memory in a child. If you have the child repeat it, and the child is young enough, the child will not be able to tell whether that... won't be able to distinguish that memory from an event that really happened. In other words--
William H. Rehnquist: Mr. Kehne, anybody who's tried lawsuits knows that you have to lead to a certain extent to get the witness to focus on, you know, what... what's the subject of the inquiry, rather than whether it's raining or sunny outside.
Rolf Michael Kehne: --I agree with that completely, and I believe the Idaho Supreme Court does, too, that it is okay to use sparing, judicious use of leading questions. Our point is that if you use them, even if you have to use them to a great deal, we will be protected if you videotape the entire procedure so we can see it again, so our experts can see it again and talk to the jury about it, and so the jurors themselves can see it and they can say, okay, the experts say you can lead a child into saying something that wasn't true. Let me see exactly what happened, and I'll decide for myself if that happened in this case.
William H. Rehnquist: Of course, you could have cross-examined the doctor here.
Rolf Michael Kehne: No. I... I disagree with that, Mr. Chief Justice. I could... we could have cross-examined the doctor till we were blue in our faces, but it wouldn't have shown the doctor's nonverbal communications, which everybody agrees is pertinent, the child's nonverbal communication, and while it might have shown the doctor... if he was intentionally manufacturing evidence, it might have shown that, but if he's innocently doing it, and he's doing it without even being aware of, all the cross-examination in the world won't help us there.
William H. Rehnquist: But you could ask him why he used these leading questions, and you could also argue to the jury, perhaps not as effectively as with a videotape, that this is something that can produce untruthful answers.
Rolf Michael Kehne: That's right. We can make that argument, and it is so less effective that I don't think it's fair or within what the court ought to allow in the confrontation clause because it just seems rational that the state's going to come back and say well, it could have happened, but have you shown us any evidence that it did?
Antonin Scalia: Well, of course a video--
Rolf Michael Kehne: Well, of course we haven't.
Antonin Scalia: --A videotape wouldn't show you that either, unless it's a very unusual videotape, maybe a split screen with one half of it on the questioner and the other half on the child. You're talking about nonverbal suggestions made. That wouldn't come out on the video. What kind of a videotape are you talking about?
Rolf Michael Kehne: Well, that's exactly how we do it in Idaho now, is a split screen, where both--
Antonin Scalia: With one showing the questioner and the other half showing the--
Rolf Michael Kehne: --Yes.
Antonin Scalia: --the person being interrogated?
Rolf Michael Kehne: Yes, Justice Scalia. Both people are on the videotape and the entire thing is video-recorded from the very time the interviewer meets the child until the end of the interview.
Antonin Scalia: Excuse me. You say that that's the way you do it in Idaho for... for--
Rolf Michael Kehne: In our local community. Partly as a result of the decision below we now have a central screening facility called Children at Risk Evaluation Screening, and if a social worker even suspects sex abuse, a doctor, a minister, a divorce lawyer... anybody involved in this whole system... the child is taken to the CARES program for the screening, which is done on videotape. It's a practical thing, a practical result that has happened as a result of the decision below, and it's something that could happen nationwide if the Court affirms.
Sandra Day O'Connor: --Well, Mr. Kehne, it obviously is desirable, if... if the testimony can be obtained that way. Do you take the position that the Federal Constitution requires it?
Rolf Michael Kehne: Absolutely, I do.
Sandra Day O'Connor: Despite any other indicia of reliability that a particular case might pose?
Rolf Michael Kehne: Excuse me, Justice O'Connor. I may have misstated myself. Am I... if you're asking me do I require or do I say the Constitution requires videotaping in every circumstance, my answer is no. It is one of the factors that the Court should look at in deciding admissibility under the Constitution. But if it is necessary to use leading questions, if instead of an inadvertent--
Sandra Day O'Connor: And in examining children I think almost all states and the Federal Rules as well would allow the use of leading questions in examining child witnesses, would they not?
Rolf Michael Kehne: --Yes, they would. Of course, if this child, as was talked about earlier, if the child comes up with a statement about sexual abuse on his own or on her own, that lends a lot of credibility to it. If the examiner is specifically trying to investigate it and the investigator has some beliefs ahead of time, the investigator is more likely to ask leading questions. Again, neither the state... neither the state supreme court nor I have any problem with that or the preconception, nor do we always say there should be a videotape. Our problem is the interrelationship of those factors. The stronger the interrogator holds a preconception, the more likely the interrogator is to suggest a memory to the child of something it didn't even have, whether consciously and viciously or completely accidentally. If the interrogator believes this is what happens and asks leading questions, it's more likely that that's what he's going to get out. If the interrogator finds that he needs to use extremely blatantly leading questions, well, that may... in a proper case that may be necessary. And there again, we don't have a problem with that, but videotape it so we can protect ourselves.
Sandra Day O'Connor: So you take the position that if a child witness is unable to testify in a courtroom in the presence of a defendant, that it depends on the totality of the circumstances whether the out-of-court statements may come in?
Rolf Michael Kehne: Yes, Justice O'Connor. If I may clarify a little bit, the totality of circumstances surrounding the statement, not what other witnesses may corroborate or other witnesses may say--
Antonin Scalia: Mr. Kehne--
Rolf Michael Kehne: --and that's how I see the holding below. Excuse me.
Antonin Scalia: --Mr. Kehne, what happens if you... you have this... this videotape and the child does indeed say this but the defendant says the child hasn't been with me for a year now. Let's say it's my son, and I say all of this has been planted in the child's mind. The child does believe it, as you say, but it... the child's been led to believe it by the parents. Now, how does the defendant possibly establish that if he cannot place the child in front of the jury? Does the defendant have a shot for a private videotaping at which he can get a social worker on his side to try to probe with the same kind of leading questions as to whether, if indeed you can find out that kind of thing, whether the other parent planted this thought in the child's mind. What is... what is the defense against that kind of activity?
Rolf Michael Kehne: In our jurisdiction, the trial courts are pretty nice and kind about giving us access to victims for things such as that. The problem with it is if instead of having this interview videotaped and it's the first interview of the child, if the parents have been feeding the kid... or somebody else... has been implanting this in the child's mind for a significant period of time before the video camera comes on, then there is no way to get at the truth at that point. That's why I think it's important that it's the initial interviews that be videotaped or as close to the initial interviews as possible. It does us no good after we've been talking to the child for a year, all of a sudden to turn the video camera.
Antonin Scalia: How can you say that there's any inherent indicia of reliability and yet at the same time say what you've just told me? There are inherent indicia of reliability but, to tell you the truth, we can't really tell whether the child knows this because it happened or knows it because somebody has persuaded him that it-- What kind of inherent reliability is that?
Rolf Michael Kehne: If we have the record of the first time it came out or at least the first time that somebody tried to interrogate the child about it, then we can get to the basis of it. If somebody's been interrogating the child and leading the child for a year before the videotape goes on, then there... it doesn't help.
Antonin Scalia: Well, I wouldn't like to be a defendant in such... in such circumstances. I get no shot at the child. The child is... is excluded from the trial, and a videotape is put on, and... and all I can do is I can just ask the jury to believe that the child's been fed all of this by some malicious person over the past year, and I get no... no chance to prove it in any other fashion. Right? And that... that's the system you... you say is constitutional.
Rolf Michael Kehne: Justice Scalia, you're pointing up another possibility not presented by this case, and I don't know if this is where you were going, but I... I believe the Court should leave this possibility open. And there is a whole'nother side to the potential of solving this dilemma, and that is to say that state competency rules will just fall in the face of the confrontation challenge, that if you want to let these hearsay statements in, then you put the child on the stand so the jury can see exactly what the trial judge saw that led the judge to believe the child could not testify reliably. Now, I'm excluding the situation where the child is traumatized, but wouldn't it have been helpful for this jury to hear the... the colloquy on the voir dire to determine competency? "Hi, Kathy. " "Can you tell me your name? " No response. "Are you kind of scared? " "Can you tell me your name and tell me how old you are? " "Kathy Wright". "Can you tell me the names of the toys you have that you are holding? " "That's your name, okay. " "How old are you, Kathy? " "How old are you? " "My... Kathy Wright". "Can you tell me the names of your father and your mother? " "Can you tell me what they are? " "What"? "Do you know where you are right now? " "No". "Can you tell me how old you are, Kathy? " "Do you know how many years you've been alive? " "Six. " "Six years. " "How old do you think you are? " "Six years". And, of course, she was three years old. Wouldn't it have been helpful for the jury to see that before they decide whether or not they're going to believe this child?
Byron R. White: xxx bit more than just the inability to testify in a courtroom, isn't it?
Rolf Michael Kehne: That is the record in the case before the Court.
Sandra Day O'Connor: Well, Mr. Kehne, the finding of the court that we have here is basically the statement by the court: "Is there any disagreement that she is not capable of communicating to a jury? " That was the question the trial judge asked. Both counsel agreed that she was not capable of communicating to the jury. What is the nature of that finding? Is it... is it that she's not able to respond to questions and make observations?
Rolf Michael Kehne: The finding is, and amply supported by the record, that child cannot respond to simple questions with simple answers.
Sandra Day O'Connor: So you disagree with the characterization of that finding by counsel on the other side?
Rolf Michael Kehne: I certainly do. That's competence like witness competence has always been talked about.
Byron R. White: I thought you had settled that we... just to the contrary earlier in your argument, that both sides had agreed that this person was unavailable but not that the witness was incompetent in the technical sense?
Rolf Michael Kehne: The word "competence" wasn't used. That is our rule. The rule that the judge applied, the trial judge, is our rule of witness competence. We don't have one of those rules that say if you're under ten or if you're under five. It's can you communicate and are you capable of receiving just impressions, and based on that record the trial judge correctly concluded this child was not and is incompetent under Idaho law.
William H. Rehnquist: Was this... was it the same judge who conducted the voir dire of the child in person and who later admitted the declaration of the doctor... the declaration to the doctor?
Rolf Michael Kehne: It was, Mr. Chief Justice.
William H. Rehnquist: So, at the time the trial judge admitted the declaration, he must not have felt that this witness was... or the declarant was incompetent?
Rolf Michael Kehne: It's... it's hard to tell that.
William H. Rehnquist: Well, you know, I would think it would be a very strange judge who would admit a statement to a doctor by a witness whom he regarded as incompetent or by a declarant whom he regarded as incompetent.
Rolf Michael Kehne: Well, if a child is incompetent at one time, that doesn't necessarily mean she's incompetent at another time. And what is important is what this judge looked at in order to rule that that statement is admissible, and that is the testimony of the girl's sister, the testimony of the doctor and his physical findings... in other words, all this corroboration from other unrelated evidence which we should not look at in a confrontation clause analysis. For hearsay rule purposes, it's fine. And the Idaho Supreme Court said under our hearsay rule that's fine and it will be admitted. When we're talking confrontation, whether the defendant will have the right to have that person in front of the jury where they can see demeanor evidence and the defendant can cross-examine that witness, then we're just talking about the circumstances of the statement, and that's another matter.
John Paul Stevens: May I ask you a question? Suppose... the doctor here testified that, Dr. Jambura, in his professional judgment there had been some kind of abuse of the child. Would the statement made by the child to the doctor have been admissible, in your judgment, if the judge had given an instruction to the jury that it is not admitted for the purpose of deciding the truth of the matter asserted in the statement but rather... merely as basis for the doctor's professional opinion?
Rolf Michael Kehne: Well, I... first of all, I don't think that would be allowable under Idaho law. Second of all, I think it's stretching the effectiveness of instructions to the jury a little bit to admit it and say, but you have to ignore it, as far as determining what the truth is.
John Paul Stevens: Well, that's done all the time with a lot of hearsay statements.
Rolf Michael Kehne: It... it is. But if we're talking about something so direct and central to the crime, my understanding is this Court has put some restrictions on a court's ability to do that. Specifically, the case where--
John Paul Stevens: But, see, the witness being confronted, then, would be the doctor, not the child. Because you're asking the doctor for the basis for the doctor's expert opinion, which did get in, which wasn't objected to, that... namely, that the child had been physically abused and so forth. And one of the things the doctor no doubt relied on is that the child told him he was abused... told him that she was abused. But you think that would... that would all be inadmissible, even under that circumstance?
Rolf Michael Kehne: --Yes, I would. I... again, it may be that that would be admissible under the hearsay rule. That doesn't mean it would be admissible under the confrontation clause. I submit that it would not.
John Paul Stevens: But the issue, I suppose, is which is the witness that the defendant has the right to confront, the doctor or the child?
Rolf Michael Kehne: Right. And I think it ought to be the one who says you're guilty. Namely, the child.
John Paul Stevens: Well, they're both saying he's guilty.
Rolf Michael Kehne: Well, that's true.
John Paul Stevens: The doctor says it, too.
Rolf Michael Kehne: That's true. But it's the child who made the hearsay statement. So we should... yes. And for that reason we should have a right to confront them both.
John Paul Stevens: Yes. May I ask you another question now that I've got you interrupted? Did you try this case?
Rolf Michael Kehne: No, sir, I did not.
John Paul Stevens: What sentence did the defendant get?
Rolf Michael Kehne: 20 years on each count.
John Paul Stevens: On each. And were they concurrent sentences?
Rolf Michael Kehne: Yes, sir.
John Paul Stevens: What interest does the defendant have in the outcome of this appeal?
Rolf Michael Kehne: She is filing a petition for post-conviction relief on the other count. And she is still hopeful of getting completely out of prison. The other count wasn't raised on direct appeal because there were issues that were not properly in the record, one of the worst being that one public defender represented both the defendants, and that never should have happened. And she still intends to file that petition. One reason we're holding off is we're waiting to see the outcome of this proceeding. Our suggestions of videotaping have been objected to by the other side. The child advocate amici have said, well, it's not practical. They've said... and I'm paraphrasing now... that, well, these disclosures come out in a variety of circumstances, few of them lend themselves to videotaping. And I'll agree with that. I just wonder what the heck it has to do with the situation before the Court, where young Kathy Wright was ripped out of her parent's home because the cops and the social workers had specific information from Kathy's sister that she'd been sexually abused. They took her into protective custody. They had sole control over her. They chose the doctor and took her to that doctor solely for the purpose of investigating sexual abuse. While I think the child advocates are right to say, we just can't expect videotaping of spontaneous statements, we have no problem with that. What we're concerned about is where leading questions are used and the interrogator had preconceptions. And there is absolutely no good reason on Earth that we can see why the interrogation could not have been videotaped. We would submit that use of videotape fulfills some of the very values that the confrontation clause was designed to secure, and does it in similar ways to cross-examination.
John Paul Stevens: xxx. Were you in the appellate proceedings before the Idaho Supreme Court?
Rolf Michael Kehne: Yes, sir.
Byron R. White: And did you make the suggestions that... of what might... what might be required, the videotaping, the--
Rolf Michael Kehne: Yes, yes. If there is a videotape the jury can see demeanor. Of course, the Court has said again and again, U.S. v. Mattox, just one of many examples, that one of the purposes of the confrontation is preservation of demeanor evidence. If a videotape is presented, it preserves evidence of any tainting, any suggestion by the interviewer. And in that respect, it serves, like cross-examination, as a means for an innocent accused to protect himself or herself. If a memory like this has been suggested to a child and repeated, cross-examination at trial is apt to offer an innocent accused impotent protection, because the memory has already been confabulated and entrenched in the child as a memory of a real event. On the other hand, the videotaping of the actual interview where the suggestion occurred will offer us a lot of protection, akin to that that cross-examination ordinarily offers for other witnesses. We aren't suggesting that all these things have to be videotaped. We're only suggesting that a videotape provides the state or the government an excellent means of proving those indicia of reliability required by this Court's opinions.
Byron R. White: --[inaudible] insist on there being a trial run before they... with the defendant in the room?
Rolf Michael Kehne: I'm not sure I understand. I'm sorry.
Byron R. White: Well, you don't think that the defendant... that... you wouldn't say the defendant had to be present at the interview?
Rolf Michael Kehne: No, because it's impractical. Because these interrogations usually occur before there's any charge, and of course before the defendant has notice of what's going on. It's an investigation. The defendant doesn't have a right to counsel at that point, or at least--
Byron R. White: But you don't... you don't... you wouldn't insist... you wouldn't insist that after that, that you actually have the... a pretrial confrontation between the victim and the defendant to see if the defendant... to see if the victim really is unavailable to testify?
Rolf Michael Kehne: --If that's what we're relying on. In the case of Kathy it wasn't. She just can't answer questions. If the state is relying on the fact that the child is too afraid to talk in front of the defendant, yes, I would insist on, well, let's actually see it. Prove it. Demonstrate it. If... I hope that answers your question. If there are no other questions, I'm about out of time, and I have nothing else. Thank you.
William H. Rehnquist: Thank you, Mr. Kehne. General Jones, you have two minutes remaining.
James Thomas Jones: Thanks, Mr. Chief Justice. We're not here to suggest that the Court permit all hearsay statements of young children in, or that unreliable statements be permitted in evidence. What we're asking is that the trial court be permitted to look at all of the circumstances surrounding the making of the statement. And if the Court finds that there are guarantees of trustworthiness, as required both by Roberts and by the Idaho Rules of Evidence, that the statement go in. In this case, we had a young girl who was taken out of the home of the defendant. The next day she was examined. The doctor found vaginal injuries that occurred two or three days before, at the time she was in the custody of both of the defendants. At the time the doctor finished his medical examination, he asked her some questions. When he drew a figure, she added a penis to it... a two-and-a-half-year-old girl doesn't necessarily know what a penis is. She, in response to questions, volunteered a statement that Daddy does this to me, but he does it to my sister a lot more than me. There was corroborating testimony IN... over and above those circumstances from the older girl to talk about the sexual abuse visited on both of the girls. And in addition to all that, in the Giles case, the Idaho Supreme Court said this statement... by a majority opinion, they said this statement is reliable. And they gave it their stamp of approval. The only reason we're--
William H. Rehnquist: Thank you, General Jones. The case is submitted.
Speaker: The honorable court is now adjourned until Monday next at ten o'clock.


John G. Roberts, Jr.: We will hear argument next this morning in Case 10-5258, McNeill v. United States. Mr. Gordon.
Stephen C. Gordon: Mr. Chief Justice, and may it please the Court: When this Court construes a statute, the words of the statute matter, the purpose of the statute matters, and the results produced by that construction matter. When Congress defined in the Armed Career Criminal Act a 10 years or more is prescribed by law, it meant for Federal courts to look to the law presently in effect in that State. This is the most natural reading of the statute, and words matter. It is also consistent with ACCA's purpose, which is punish the Federal firearms offense, and if we are going to punish--
Sonia Sotomayor: Counsel, I -- I have just one problem, which is under your theory, I understand it, if a State increases a penalty, makes what would have been a penalty for a misdemeanor now a felony, then that defendant is a career criminal, by your logic.
Stephen C. Gordon: --Uh--
Sonia Sotomayor: So the person who thought that at the time they committed the crime they were committing a low-level crime is now a felon; is that your theory of the case?
Stephen C. Gordon: --If -- if a State were to increase a penalty -- say from originally it was 5 years, increased it to 10 years, the defendant was convicted at a time when it was 5 years -- if the legislature increased the penalty, if the defendant possessed a firearm, yes, he would be facing--
Sonia Sotomayor: What -- what -- what logic do you think there is in that, why Congress would want to punish someone now for -- for criminal activity that they thought was lesser, and the State thought was lesser, at an earlier time, less reprehensible?
Stephen C. Gordon: --Because the purpose of the Armed Career Criminal Act is not to enhance a sentence because of the prior conviction. It is because the Federal firearm offense at the time it was committed is more serious based on -- based on its repetitive nature, as this Court has said. So therefore looking to, when the defendant commits the offense, what his status is at that time under the law we think makes sense and is consonant with the purpose of what ACCA is trying to do. ACCA is not trying to punish the State offense at the time. And of course the converse, Your Honor, is that by adopting the government's reading, is individuals who at a time committed an offense when a State at that time viewed an offense as more serious but now has changed its view of the offense, does not view it as being as serious, that person also would receive a 15-year mandatory minimum sentence.
Ruth Bader Ginsburg: Mr. Gordon, the State does regard it -- it does -- prescribe 10 years for this defendant because it's made a -- made the change not retroactive. So a maximum of 10 years is prescribed for Mr. McNeill, and all others who committed the offense prior to the change in law. So it is -- it is the State's current position that for this defendant the maximum is 10 years.
Stephen C. Gordon: Yes, Justice Ginsburg, that's correct. Where we fundamentally disagree with the government and with the Fourth Circuit is on the significance of retroactivity. We -- the statute requires -- or the statute directs us to look at the penalty that is prescribed for the offense, the offense in its generic context. It -- it is not about what the circumstances of the defendant were that produced the particular conviction for him. No one who commits the trafficking offenses that Mr. McNeill committed today is going to be facing a 10-year sentence. It's not going to happen to anyone who commits the offense from today forward. And we think that is where the statute directs us to look: What is the penalty for the generic offense?
Samuel A. Alito, Jr.: Suppose -- what would happen in this situation? A defendant is convicted under a State statute that says that anybody who sells between 1 ounces -- 1 ounce and 5 ounces of a particular controlled substance is guilty of a felony and may be punished by imprisonment for a certain amount of time. And then the State repeals that provision altogether and enacts a new provision that says anybody who sells between 1 ounces -- 1 ounce and 8 ounces is punishable by a certain penalty. And now the question comes up what -- what penalty does the court look at with respect to the earlier offense that no longer exists for which the defendant was convicted?
Stephen C. Gordon: There -- there are two possible answers, Justice Alito. First, the court could look to what the offense is now, could look back to what the defendant did consistent with Shepard and so forth, and see if the defendant's conviction contains the element of the -- the elements that apply to the present offense. If the court could not do that, then the conviction would count for purposes of the defendant's criminal history. It would not count as an ACCA predicate, and the district court would then be limited to a 10-year sentence as opposed to a 15-to-life sentence. So consistent with -- with its purpose, we think that the statute should be read as speaking to the time, not of the State conviction -- not of the State sentence.
Ruth Bader Ginsburg: Mis--
Stephen C. Gordon: Yes?
Ruth Bader Ginsburg: --Mr. Gordon, is this -- is this essentially an academic question? Because this district judge said that he would impose the same sentence as a variant even if he couldn't do it under the guidelines, even if it were an incorrect calculation. He said: This criminal record is violent and astonishing; essentially, I'm going to throw the book at him, and I'm going to do it through a variant if that's no -- if there's no other way. So isn't that -- I mean, isn't this an -- an exercise, essentially an academic exercise, if -- if your -- your client would end up in the same place?
Stephen C. Gordon: Well, Justice Ginsburg, it may be an academic exercise for Mr. McNeill or for the Mr. McNeills of the world. The judge would -- if this Court were to agree with us, the judge could impose consecutive sentences on a remand and still achieve the same sentence, yes. For someone whose only offense, however, is a 922(g) conviction, then it makes a huge difference because, rather than looking at a 15-year mandatory minimum penalty, the defendant would be looking at no more than 10 years. So, the judge's -- it would be significantly cabined in -- in that sense. And the other, with respect to the Mr. McNeills of the world, the judge on a remand is still going to be required to calculate the guidelines correctly. And so if the guidelines change, if they go down in this case, for the judge to achieve a 300-month sentence, the judge is going to have to state reasons again and arguably more significant reasons to -- to achieve that same level if he's working from a lower guideline range.
Elena Kagan: Mr. Gordon, there are other provisions in ACCA which seem to use the present tense in circumstances where it doesn't seem as though the statute truly means the present tense. So, a violent felony is one that "has as an element the use of physical force, is burglary, arson, or extortion, involves use of explosives. " and so on and so forth. But we would not look as to -- in interpreting that provision to the present day, would we?
Stephen C. Gordon: Justice Kagan, I think you would, in this sense: For the violent felony provision, there is a generic offense. Let's take burglary. There is this existing thing right now called burglary. What a Taylor analysis does is it looks backward to what the defendant did. It looks to see what those elements are. It takes those elements and brings it forward, and if those elements fit in the box, then what he did is a burglary. If it does not, then it is not a burglary. The -- so, that's my essential answer to that. Is it--
Antonin Scalia: Why is -- why is -- why is the present tense inadequate for the -- for the government's position in this case? Once it is conceded that the North Carolina law is not retroactive, the law reducing the number of years, it is the case that what is the maximum term of imprisonment for the offense that he committed -- how many years ago was it, whatever--
Stephen C. Gordon: --Early '90s, Your Honor. Yes, '91, '92.
Antonin Scalia: --What is the maximum punishment for that offense which occurred at that time is the longer period. Why is -- I don't see why your argument requires us to ask what would be the term if he had committed the offense at a later date. The maximum term for his offense when he committed it is those years because the State did not retroactively reduce his sentence.
Stephen C. Gordon: That's correct for Mr. McNeill. The penalty for him -- he would be facing an exposure of 10 years. The penalty, however, that everyone else -- the penalty that is currently prescribed in North Carolina for someone who commits McNeill's offenses is not 10 years and, and depending on where they fall in the prior record level, their maximum sentence is considerably less than 10 years. So we do not think it's consonant with the statute to look to the circumstances of the individual defendant. Congress easily could have said "for which a penalty of 10 years or more is prescribed for the defendant. " We think that would be a different case.
Antonin Scalia: It's not just for the defendant; it's for anybody who committed it prior to the -- prior to the amendment of the statute.
Stephen C. Gordon: That's correct.
Antonin Scalia: Anybody that committed it then, the -- the -- it is an offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled. " "for which a maximum term of imprisonment of 10 years or more is prescribed by law. " It is prescribed by law for any of those offenses that occurred between whenever that old statute was enacted and whenever this statute was enacted.
Stephen C. Gordon: It is prescribed only if you take the offense out of the category of a generic offense. It is not -- it is -- it is not prescribed for the generic offense. It is prescribed for particular defendants who committed the offense at a certain point in time. And, Justice Scalia, I think it raises a rather fundamental question, which is if we're going -- if we really are punishing the Federal firearm offense and we are not punishing the defendant for the prior conviction, and we have two individuals who commit a 922(g) offense and they have similar records, but they sustain their State convictions on different days, do we want to treat them the same for purposes of where they -- of the Federal offense or do we want to distinguish them on the basis of the State convictions? Do we want the State convictions to really--
John G. Roberts, Jr.: What if the State--
Stephen C. Gordon: --Yes, sir.
John G. Roberts, Jr.: --What if the State change is to abolish the offense altogether? Do we -- do we not have any predicate offense for the defendant who committed the crime prior to the abolition of the State offense?
Stephen C. Gordon: Your Honor, yes. If -- if, as I said earlier, you could not determine from the prior conviction whether there is any present State offense that might be called something different, but that has those drug trafficking elements that the statute requires, if you cannot determine, you know, from Shepard-approved documents and so forth, yes, we think for purposes of the armed career criminal enhancement only that that would disappear. That's correct. I do want to stress, because I think it's important to stress, that--
Antonin Scalia: Excuse me. That's--
Stephen C. Gordon: --Yes?
Antonin Scalia: --That's correct? You're happy with that? The person committed a felony when it was a felony, and the State later no longer makes it a felony, and it isn't counted for purposes of the Armed Career Criminal Act?
Stephen C. Gordon: Only for purposes of the Armed Career Criminal Act, yes. It certainly would count as a prior conviction. It would count as a prior conviction, for example, for 922(g) purposes. This person could still be prosecuted for being a felon in possession, yes. So, we do not -- our reading is not opening the jail house door for anybody. They are still facing a hefty 10-year sentence. The question is, in a statute that defers to the judgment of the States to determine seriousness, are we going to defer to the current State assessment of what seriousness is or are we going to look back to repeal the discarded judgments?
John G. Roberts, Jr.: Well, but it strikes me that there's really no change in the State view of how serious it is. It was just an overall change in how they're going to look at sentencing. Under the prior regime, you're sentenced to a particular term, but in fact you serve a lot less. With the new treatment in sentencing, you're sentenced to what is a much -- a smaller term, but you in fact are going to serve the whole thing. At the end of the day, there's no real change in how they view the seriousness of the offense.
Stephen C. Gordon: That's correct, Mr. Chief Justice, arguably yes. But for purposes of the serious drug offense definition, what we have to use is the penalty. We have to look at the penalty as the State -- as the State's proxy, if you will, for seriousness.
Antonin Scalia: Are we looking at it because we want the States to determine the Federal sentence or are we looking at it because we evaluate the evil of the particular defendant on the basis of how -- how much of a crime he was willing to commit? And so long as it was a serious felony when he committed it, this is a bad actor. I don't care if the State changes its view. At the time, he was willing to commit a felony that put him in jail for 10 years, and that's what we're looking to, it seems to me, how bad an apple is this fellow that -- that we're talking about putting away? And that doesn't change simply because the State decides in the future that that same act will not be a felony. Well, people who perform that act in the future aren't so bad; they're just -- you know, just normal not-so-good people-- [Laughter] --but they're not the kind of a person who's willing to -- to commit a felony that, you know, puts them away for 10 years. It seems to me that that's what the Federal law is looking to. We're not giving over to the States the decision of -- of how long we should incarcerate somebody in a Federal prison.
Stephen C. Gordon: Justice Scalia, if -- if that were indeed what Congress wanted, then it would have written the statute differently. There would be something in that definition about the defendant, and there's not. It's about the offense. So the -- the judgment that the State is making is about the seriousness of the offense itself, and as we made an effort to argue in our briefs, State views of drug offenses change.
Antonin Scalia: I agree, it does refer to the seriousness of the offense. But it refers to the seriousness of the offense at the time the offense was committed in order to determine how bad a fellow this is, not -- not because we want the States to determine how long we're going to keep Federal prisoners in prison.
Stephen C. Gordon: Justice Scalia, respectfully, I -- I don't agree with that. Respectfully--
Antonin Scalia: That's the issue, though, really.
Stephen C. Gordon: --That is an issue, yes, Justice Scalia. But the issue is, do you look at the defendant. Do you say Congress was really talking about trying to get the Mr. McNeills any way we can or we are -- we are interested in people who commit an offense that the State currently regards as serious. You will capture Mr. McNeills; you will also capture people who, you know, under the old Texas law that, you know, prescribed 99 years for someone who might have sold one or two marijuana cigarettes as well.
Antonin Scalia: But you'll -- you'll put away for a long time somebody who really wasn't that bad a guy. He committed a misdemeanor, and when the State later makes it a felony, you -- he suddenly comes under ACCA. And I -- I can't believe that that's -- that's what -- what Congress had in mind just because the State now thinks that it's more serious. Who cares what the State thinks? We -- we want to know how bad an actor this particular defendant is.
Stephen C. Gordon: In the case of a misdemeanor -- Justice Sotomayor asked earlier about misdemeanors and felonies -- there may be some additional constitutional issues in terms of whether if it's a misdemeanor conviction, even statutory reasons, if it's a misdemeanor conviction, whether it should count. I think it works that way in the violent felony prong, for example, where the term that you look at is was it 1 year. But that is -- that is not the proxy for seriousness because there is another provision, 18 U.S.C. section 921(a)(20), that exempts 2-year misdemeanors. So -- so, the 1 year in the violent felony provision is not serving the same purpose that -- that the 10 years is in the serious drug offense. A reason that Congress may have had for doing that is to say that if we are going to hit somebody with 15 years, we want to make sure that they had their constitutional rights at the time they sustained the predicate conviction, had a right to counsel, indictment, jury, and so forth.
Ruth Bader Ginsburg: I'm -- I'm not sure what you're urging now. Are -- are you modifying or retracting the answer you gave to Justice Sotomayor, that is, the case where the maximum was 5 years, but then at the time of the Federal offense the State has changed it so it's 10 years? I -- I think you answered her question that it would work the same way, that what mattered is how the State currently ranks the offense, not the offender. But now you seem to be saying there might be a different answer when the State increases rather than decreases the penalty.
Stephen C. Gordon: What -- what I meant to say, Justice Ginsburg, is that if you are -- if you continue to be talking about a felony offense, if it goes from 5 years to 10 years, it went from a felony to another felony, in that circumstance I -- I -- I will concede our reading of the statute would work to the detriment of that defendant, that -- that's correct. What I was simply trying to say about the misdemeanor-felony is that there might be some additional constitutional issues that would not be present in -- if it went from 5 years to 10 years.
Anthony M. Kennedy: In -- in the hypothetical where the penalty is increased, would there be an ex post facto problem?
Stephen C. Gordon: Your Honor, I don't believe there would be. The defendant presumptively is on notice that the law has changed. Now, if -- if the increase in the penalty were between the time that he commits the 922(g) offense and the time of the sentencing, yes, I think you have ex post facto concerns there. I think if you're talking about between the time of the State offense and the time of the commission of the firearm offense, I don't think it raises the ex post facto concerns. Again, the defendant is on notice, he's presumed to know what the law is at the time he commits the Federal offense, and that's what we care about here. I -- I would also like to return to the question of retroactivity for just a moment and note that in terms of the administerability of the Armed Career Criminal Act, the question of retroactivity would introduce, if the government's reading is adopted, problems that do not exist under reading ACCA speaking in the present tense. Under the government's approach, it is not simply that you can look at what the sentence was that the defendant received in State court. The government says retroactivity matters. So you would still have to go to the present penalty, and then you would have to conduct an inquiry into what the, you know, what changes occurred in the law, were any of them retroactive, were they retroactive for a certain period of time, et cetera. So, it--
Sonia Sotomayor: I'm sorry, how do you see that? I thought the government had two alternative positions, the first being that you look at the time -- at the time of the offense, at the conviction or, alternatively, it was arguing the way to take the position of the court below. But if you're going to use the present tense then you look retroactively to see -- then you look to see whether the State would retroactively apply the new sentence.
Stephen C. Gordon: --Yes, Your Honor.
Sonia Sotomayor: You understood their brief differently?
Stephen C. Gordon: Your Honor, I read the brief differently? If -- and if my reading is incorrect, I apologize.
Sonia Sotomayor: I'm sure they'll tell you. [Laughter]
Stephen C. Gordon: Yes, I'm sure they will. If there are no further questions, I would like to reserve the balance of my time.
John G. Roberts, Jr.: Thank you, Mr. Gordon. Mr. Gannon.
Curtis E. Gannon: Mr. Chief Justice, and may it please the Court: Petitioner was convicted under North Carolina law of multiple offenses subject to a 10-year maximum term of imprisonment, and he actually received 10-year sentences for his drug crimes. He now claims that those convictions are not ones for which the maximum term of imprisonment is at least 10 years for purposes of ACCA's definition of serious drug offense. That result is incorrect, because the sentencing court should consider the offense and the punishment as they were defined by the body of law under which the defendant was convicted and sentenced. This is the simplest approach, because the Court is already looking to the statute at the time of the underlying conviction in order to evaluate whether it satisfies the substantive component of the definition of a serious drug offense. And if I can start where Justice Sotomayor finished with my friend, we have one footnote in the first part of our argument, footnote 5, which clarifies an issue that isn't at stake here, which is that when we say that you need to look to the time of the underlying conviction, that that includes the time of the sentencing which could include some sentence modification proceedings. If the State had amended the law in the meantime, made it retroactively applicable and the defendant were able to get his judgment or conviction modified, then we would not insist that -- that he still had an offense that was subject to a 10-year maximum term of imprisonment. And we think that this approach is consistent with what the Court said in Rodriguez, where it was also evaluating the serious drug offense under ACCA and pointed us to the documents associated with the judgment of conviction. It recognizes that the relevant question here is the body of law that applied to this particular defendant in his offense. And -- and it's the term "conviction" that actually points us to that in the statute. The question is what is the sentencing regime associated with the defendant's actual conviction, and the government's--
Sonia Sotomayor: Could I -- just to clarify your point. If there's been a modification of law that would have entitled him to a retroactive change in his sentence, although I'm not quite sure how that works, because if there's a modification, I thought it would only apply to a defendant who had committed the crime at that earlier time but was convicted at the present time. This defendant wouldn't have his sentence modified.
Curtis E. Gannon: --Well, I think that this would be a highly extraordinary circumstance. There may be an instance where the State legislature has actually amended the law, made it retroactive and said that it's applicable to people who had final convictions beforehand I--
Sonia Sotomayor: Well, that's my question. Is your footnote related to that kind of individual only or are you saying -- or are you accepting your adversary's argument that the circuit below got it right? You look at the is as to what the sentence would be today--
Curtis E. Gannon: --The footnote--
Sonia Sotomayor: --if this person had committed the crime?
Curtis E. Gannon: --The footnote in part A of the government's brief is -- is not consistent with the court of appeals approach. We're saying that under our principal reading which is at the relevant time, at the time of the conviction, that that includes the sentencing associated with that conviction; and in certain unusual circumstances that may well include a sentence modification proceeding that occurred sometime after the fact. But in any event it's going to be a previous conviction that needs to be on the books at the time of the 922(g) offense.
Sonia Sotomayor: I'm just trying to clarify whether you mean that the -- the modification had to have occurred, meaning that he was convicted, he got 10 years, and somewhere for some State reason, that actual final judgment was amended to include 5.
Curtis E. Gannon: Yes.
Sonia Sotomayor: Are or are you talking about--
Curtis E. Gannon: Yes.
Sonia Sotomayor: --accepting his argument that if he could apply for a change now--
Curtis E. Gannon: It -- in -- we think that it has to be under the documents associated with his judgment of conviction. So it would matter that he had been successfully able to obtain modification of the -- the judgment associated with his conviction. In those circumstances it would be appropriate to say that the body of law that applied to his conviction was one that specified only the lower punishment. That's obviously not an issue here because the State hasn't made any of these relevant changes retroactively applicable to any offense that was committed before the first of October in 1994.
Sonia Sotomayor: --Is this the first time you're advancing the argument, the first part of your argument?
Curtis E. Gannon: It--
Sonia Sotomayor: It doesn't appear as you did -- if you did it below; am I correct?
Curtis E. Gannon: --We -- we did not advance this below. We weren't heard on the question at district court. The district judge adopted this argument in response to Petitioner's objection to the PSR which had taken this position. In the court of appeals, Petitioner relied upon the Sixth Circuit's decision in Morton, and we -- we responded the essentially the way the Fourth Circuit did, which is to say the Fifth Circuit has distinguished instances like that when the court has not -- when the State has not made the -- the intervening decrease in the sentence retroactively applicable. That's the interpretation that the Fourth Circuit adopted. But the government has made this argument before in -- in the Second Circuit in Darden, in the Fifth Circuit in Hinojosa, in the -- in the Sixth Circuit in Morton in the 1994 decision. The government has made this lead argument that we're making today in addition to the fallback argument that the -- that the Fourth Circuit adopted here, and that the Fifth Circuit adopted in -- in Hinojosa. But I would note that the lead argument that we're making today has several advantages that make it preferable to the fallback argument. Some of them have already been brought up today. I already mentioned the fact that this is simpler, because it requires the judge to just look to one time to evaluate the substantive component of the definition and the -- the sentence component of the definition. But this also prevents the types of problems that Justice Alito addressed earlier that may arise when the State has amended the definition of the offense. If you just look to the -- the actual offense at the time of the conviction, then you don't run into those sorts of problems, and the Fifth Circuit recognized this in its Allen decision and therefore ended up having to adopt what is essentially the government's lead argument here. The Sixth Circuit which generally follows Petitioner's rule also ended up adopting the government's lead argument in the context of a guidelines determination, because it recognized that it -- it was unwilling to assume that a conviction simply disappears when the State has modified the definitions in such a way that you can't precisely translate into current terms what the underlying offense of conviction is. The government's reading avoids that problem because it doesn't require you to recharacterize the old offense at all. It just says what was he convicted of? What was the maximum sentence associated with that offense at the time he was actually prosecuted? There's nothing hypothetical about it. And as the -- as the Court pointed out in Rodriguez, we would expect a lot of the documents association with a judgment of conviction to make this a relatively easy inquiry to answer what was the maximum sentence at the relevant time. This -- the reading also avoids the difficulty that Justice Sotomayor pointed out that -- that is associated with later increases in -- in the sentence. Under the government's view, if you committed an offense at a time when it was subject to a 10-year punishment, Congress has reasonably assumed that you are a dangerous person; but that Congress could also reasonably assume that there's a distinction between somebody who commits an offense at a time when it's subject to a 10-year term of imprisonment and someone else who commits that offense at a different time when it's subject to only a 30-month term of imprisonment. And so under North Carolina law, for instance, the -- the felony of manufacture of methamphetamine went from being a class H felony which is subject to a 30-year maximum term of imprisonment to being a class C felony -- excuse me, a 30-month maximum term of imprisonment, to a class C felony, which is subject to a 19-year maximum term of imprisonment on December 1st, 2004. And we think it's reasonable for Congress to assume that somebody who committed the crime of manufacturing methamphetamine in North Carolina at a time when it was subject to a 30-month maximum sentence is not as dangerous as somebody who was willing to commit the same offense at a time when it was subject to a 19-year maximum term of imprisonment. And the government's approach by -- by requiring the court to look to the time of the underlying conviction and sentencing unifies the inquiry across both components of the definition of serious drug offense and the definition of violent felony that Justice Kagan alluded to in the earlier part of the argument, that the definition of violent felony includes present-tense references to whether a crime is burglary, the question of whether it is punishable by a -- by a term exceeding 12 months, which is necessary to establish that it's a felony is one that -- that we believe needs to be made at the time of the underlying conviction.
Samuel A. Alito, Jr.: What if the legislature decreases the penalty because it really has taken a different -- a new look at the nature of the offense and has come to the conclusion that this really is not nearly as serious as we -- as we previously thought? So why should the prior judgment about the severity of the offense be taken into account under ACCA?
Curtis E. Gannon: Well, Congress has given us a very objective and simple yardstick to look to and that's just what the maximum term of imprisonment is. And if -- if the State actually thinks that the previous offenses that were committed were less serious, then it could make the decreased maximum term of imprisonment retroactively applicable if -- if it wanted to demonstrate that -- that it really thought that those were mistakes. But that's not the approach that South Carolina has taken -- that North Carolina has taken here. It has said that for crimes that were committed before October 1st, 1994, the prior sentencing regime still applies. And as the Chief Justice pointed out before, the State has not repudiated the judgment that these were serious offenses, not -- not -- not only with respect to when they were committed, but the entire shift to structured sentencing Petitioner acknowledges--
Samuel A. Alito, Jr.: But what if--
Curtis E. Gannon: --wasn't intended--
Samuel A. Alito, Jr.: --What if they had repudiated their prior normative judgment? And -- and even -- what if they even had made it -- made the new sentence retroactive, but a particular defendant was no longer in prison, so wasn't on parole, so there was nothing -- there was no way that this could have any effect on that person?
Curtis E. Gannon: --Well, it's possible that the State could -- could provide a mechanism by which he could have the documents associated with his prior judgment amended to reflect the fact that he -- he ought not to have been subjected to the -- to the greater term of imprisonment. I think that that's probably the hardest case, somebody who once upon a time actually, like this Petitioner, did a 10-year term of imprisonment for -- for the sentence, the State in retrospect concludes that the offense had not been that serious even at the time, and if he had been prosecuted today he -- he should have received only a 5-year maximum term of imprisonment. I think -- I think that that's -- that's an instance where it -- it might be difficult to -- to -- to find a way in the statute to say that ACCA doesn't apply to him, that he did not have a previous conviction at the relevant point in time.
Antonin Scalia: I'm not sure it's so hard. I -- I could find my way clear to saying that if it has been retroactively made a -- a -- a lesser offense, that that would qualify under -- under the statute. I don't know why you insist that his actual conviction be -- be altered.
Curtis E. Gannon: Well, I -- I think that we would obviously still prevail under an approach like that. It would be an expansion of what we proposed in footnote 5. We think that the relevant inquiry starts with the conviction, but if -- if the court were to ask in the context of the body of law that applies to his offensive conviction, whether the State has changed its mind by doing -- by altering the precise yardstick that Congress has directed the court to look to, then -- then I think that -- that that would be an appropriate way to deal with it. I'm not exactly sure how you get it out of the words of the statute, but it -- it would solve the problem for -- for cases like this of somebody who had been unable to take advantage of a sentence modification type of proceeding.
Sonia Sotomayor: Can you tell us whether changes in State sentences -- do the States routinely address retroactivity? Or do they leave it to their general common law? Or do you have any idea of what--
Curtis E. Gannon: Several States have specific saving statutes like the Federal Government does in 1 U.S.C. 109. At least three States have constitutional provisions that effectively are something like a saving statute. Sometimes they have background common law principles. In any instance, these types of general provisions, except where the constitutional provisions exist, could be overcome by the State legislature in a particular statute, just as is the case with the Federal savings statute. A State legislature, if it wants to be express about the retroactive applicability of a change, would be able to do that. There may be limitations under the ex post facto clause of its increasing the severity of punishment, but for something like a decrease, there -- there would be fewer limitations. If there are no further questions, we would urge the Court to affirm the judgment of the--
John G. Roberts, Jr.: Thank you, Mr. Gannon. Mr. Gordon, you have 6 minutes remaining.
Stephen C. Gordon: Thank you, Mr. Chief Justice. First, the government talks about, again, the problems arising if -- if a statute is amended, and so forth. Again, I would like to analogize that to the violent felony prong of ACCA. Predicate convictions disappear. Things that were predicate convictions cease to be when this Court interprets a particular offense as not qualifying as a violent felony, then -- then individuals who had committed that offense it disappears as -- as a predicate. So it is -- it is not anomalous for that to happen. The government speaks about looking to the time of the State proceeding. It is -- that -- that -- that approach overlooks that changes to drug laws very well could reflect a normative judgment on the basis of the -- of the legislature, and the question is whether -- whether in the way it wrote the statute, Congress wanted -- wanted to defer to those State judgments. Texas and New York changed their sentencing laws because they judged them to have been too harsh, that -- that they treated as more serious offenses than -- than those offenses actually were. We see that today with the issue of -- of crack cocaine. And under the government's reading, individuals may be hit with -- with an ACCA mandatory minimum on the basis of crack convictions sustained at a time when, you know, the view of crack is very, very different from what it is now. So we think that is an important consideration as well. The question of retroactivity, again, as we have argued in our brief, it does not -- the savings clause in North Carolina was a general savings clause, it applied to every single offense in the -- in the State. It was not a reflection of the -- of the legislature's judgment of seriousness. And if I -- if I may end on a point that I made earlier, the question for this Court really is when do you want to treat two individuals -- when do you -- when do you want to look at them? Do you want to look at them at the time of the Federal offense or do you want to look at them in terms of their prior State convictions and come to a conclusion that although they did exactly the same thing in the State court, one committed a serious drug offense, one did not. We think that is an absurd result. It's not a fair result, and we would ask the Court to reverse the judgment of the Fourth Circuit. Thank you very much.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.