concurring. I concur in the result reached by the majority opinion but I disagree with that part of theopinion which holds A.R.E. Rule803(25) to be constitutional.
Before discussing the merits of the opinion I am compelled to state that this Court seems to me to be slowly shifting the entire responsibility of following the laws and procedures to the defense. It is as much the responsibility of the courts and the state to enforce and uphold the laws and rights of the people as it is the responsibility of the defense counsel. People are guaranteed rights by the laws and constitutions and it is the responsibility of the state to justify denial of these rights. This Court seems to have reached the point in too many cases where we find that an accused has either “failed to claim” or has “waived” his rights. The price of liberty is eternal vigilance and the price of justice has already been paid. We ought to be vigilant in the protection of the rights of individuals. It is not enough to say that the public has rights too. Of course they do. The public is the sum of individuals and denial of individual rights is the denial of the rights of the people.
The majority makes reference to the companion case of Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), in which we hold that a medical witness could not give his opinion, in the absence of any medical evidence, that a child had been sexually abused. The majority then states that the counselor’s statement of opinion in this case that the child had been sexually abused was not argued as error before the trial court or in this appeal and therefore “we need not address this issue in this case.” The majority opinion concedes that the appellant in this case argues that 803(25) unconstitutionally denies a defendant the right to confront the person giving the statement. However, the majority then states that “no argument has been made about the requirement in Ohio v. Roberts, 488 U.S. 56 (1980), that a declarant be unavailable before their out of court statement can be admitted at trial without violating the Confrontation Clause,” and concludes that “since that [specific] argument was not raised in this appeal, as it was in Johnson, we are unable to reach it.” The majority continues by stating that the state concedes that the jury was not instructed by the court pursuant to subsection (3) of 803(25), but that the state maintains that the appellant never requested such an instruction nor objected to its omission. The opinion then concludes that “the state is apparently correct and accordingly, we would not reverse Cogburn’s conviction on this basis.”
The three opinions being handed down today (Cogburn v. State, Johnson v. State, and Hughes v. State) appear to be a deliberate attempt on the part of this Court to create a “Catch 22” with respect to Rule 803(25). The opinions remind me of the Abbott and Costello comic routine of “Who’s on third.” Each one shifts the responsibility to the other and in the end none of the three deal with the real issue of the right to confrontation as established in the Sixth Amendment. These opinions, like old Mother Hubbard’s skirt, cover everything but touch nothing.
As to the constitutionality of Rule 803(25), I doubt the validity of the legislative enactment of an addition to the rules of this Court. Under the doctrine of separation of powers, rule-making authority is a function of the Court. See State v. Robinson, 735 P.2d 801 (Ariz. 1987), in which the Supreme Court of Arizona held that state’s statutory exception for child hearsay to be unconstitutional as infringing upon the Court’s authority to make procedural rules for the judiciary.
Even if Rule 803(25) is considered constitutional, it was not the intent of the General Assembly to allow anything and everything an alleged child victim said to be introduced at the trial. Certainly, it was not intended to permit other witnesses to violate the rule against hearsay and testify as to the out-of-court statements of an alleged child victim and to present their own speculation on the credibility of the alleged victim.
The purpose and importance of the common law hearsay exclusion seems not to have been adequately considered by the legislature or the majority opinion. The common law exceptions to the hearsay doctrine were based upon necessity and compelling reason. Professor Wigmore has stated that the hearsay doctrine is:
That most characteristic rule of the Anglo-American Law of Evidence—a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world’s methods of procedure.
5 Wigmore, Evidence, p. 27.
Exceptions to the hearsay doctrine should be very limited in purpose and number. Exceptions should be narrowly defined and strictly construed against the exception. Certainly the legislature did not mean to open the floodgates to admit any and all statements of an alleged victim. The legislative amendment to court rule 803 in part states:
(25)(A) A statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria:
j. The reliability-credibility of the child witness before the Judge
m. any other factor which the Court at the time and under the circumstances deems relevant and appropriate.
2. The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
[Emphasis added.]
The videotaped former statements of the victim were introduced in this case. The majority holds that this tape did not comply with the requirements of Ark. Stat. Ann. § 43-2036 and moreover, that the introduction of the tape was prejudicial. The videotaped deposition statute meets the mandates of the Confrontation Clause as most of the safeguards attendant to a trial, such as effective cross-examination by defense counsel, are preserved. The majority is correct in upholding A.S.A. § 43-2036, but it is wrong in upholding the constitutionality of Rule 803(25). The holding, as I understand it, is that the Rule as applied to Cogburn is constitutional. In my opinion the Rule, absent an affirmative showing by the state of the witness’ unavailability and the statement’s reliability, is a violation of the Sixth Amendment. It is also the first time that any court or legislature has authorized the admission into evidence of the out-of-court statements of a witness without attempting to comply with the Confrontation Clause or to show a compelling reason exists for the exception.
The majority acknowledges that the jury was not instructed in accordance with 803(25)(A)(3). The statute requires the trial judge to make an independent determination of the trustworthiness of the child’s hearsay statements before the testimony is presented to the jury. After such determination the court must, contemporaneous with the introduction of the child’s hearsay statements, instruct the jury that it is the duty of the jury to determine for themselves the weight and credibility to be given the child’s out-of-court statements. In People v. Mathes, 703 P.2d 608 (Colo. App. 1985), the Colorado Court of Appeals, faced with the application of a statute that included a verbatim recitation of subsection (3) of the Arkansas statute, reversed a lower court decision because the jury had not been so instructed.
I believe the attempt by the legislature to amend our rules is an unlawful infringement upon our rule-making authority. I also believe the amendment to Rule 803 is unconstitutional because it violates the Confrontation Clause of the Sixth Amendment. I therefore would hold the statements inadmissible. The hearsay statements, allegedly made by the child, had none of the constitutional safeguards required by Ohio v. Roberts, 448 U.S. 56 (1980). The repetition of such testimony unduly prejudices the accused. As a result of the majority opinion upholding the constitutionality of A.R.E. 803(25), the state may eventually be allowed to produce its entire case without the interference of the Confrontation Clause. I will not be a party to such a development.
I strongly disagree with the majority’s interpretation of California v. Green, 399 U.S. 149 (1970). The witness in Green had previously testified at a preliminary hearing under oath and subject to cross-examination. The prior testimony had been fully tested by the defense. The statement therefore complied with the mandate of the Confrontation Clause. There was an additional issue in Green which was not addressed because it was not yet ripe for adjudication. That issue concerned the testimony of an officer that the declarant had previously told him a different story. The officer’s testimony was of course hearsay, but the Supreme Court did not rule on its admissibility. The witnesses in the present case are in exactly the same status as that of the officer in Green. The United States Supreme Court has not approved the introduction of such evidence.
Green approved the introduction of a witness’ prior sworn testimony where his trial testimony contradicted his former testimony. The prior statement, like the statement in Roberts, supra, was given under circumstances which afforded the defendant unrestricted cross-examination. Green holds that the admission in evidence of the witness’ prior testimony, which had been subjected to full and effective cross-examination, did not violate the accused’s right of confrontation. I agree with the holding but submit that Green is inapposite to the present case. For additional discussion of the constitutionality of A.R.E. 803(25), see my concurring opinion in Joe Henry Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987).
Not one of the cases cited in the majority opinion is binding precedent for this case. This addition to our rule by the legislature is the only legislative act, court rule or precedent to hold that untested hearsay statements of such a nature are permissible. We have no prior decisions by this Court or the Court of Appeals interpreting this enactment. Therefore, we must look to other decisions for guidance.
Arkansas’ statute, like those of quite a number of other states, was obviously molded from the Washington statute. However, the differences are very great. The Washington statute requires the child victim to either: (1) testify at the proceeding outside the presence of the jury or (2) be unavailable as a witness. The statute, Revised Code of Washington 9 A.44.120, in pertinent part states:
A statement made by a child when under the age of ten describing any act of sexual contact... is admissible in evidence in dependency . . . and criminal proceedings ... if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings [outside the presence of the jury]; or
(b) Is unavailable as a witness;
Provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
The Washington statute requires the victim to testify at the hearing or be unavailable as a witness, provided further that when the child is unavailable there must be corroborative evidence of the act. The Arkansas statute requires neither, if the majority interprets our rule correctly. Although the majority opinion seems to suggest that “any other corroborative evidence of the act” should be considered by the trial court in determining the trustworthiness of the child’s hearsay statements, the Arkansas statute does not require corroborative evidence of the act whether the child is unavailable as a witness or not. All the other statutes that I have read are more restrictive and more narrowly defined than A.R.E. 803(25). See The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harvard L. Rev. 806 (1985).
The Washington statute was considered in State v. Ryan, 103 Wash. 2d 165, 691 P.2nd 197 (1984). The trial court in the Ryan case allowed the introduction of out-of-court hearsay statements very similar to those which were introduced into evidence in the case before us. The prosecution and defense stipulated that the victims, boys age four and five, were incompetent to testify. The trial court held that admissions by Ryan were sufficient to corroborate the hearsay statements. The Washington Supreme Court overturned the conviction. It is difficult to understand the reasoning of the court in Ryan since the three separate errors found in the trial court’s application of the statute were: (1) that unavailability cannot be established by stipulation of incompetency; (2) that if the victims were, in fact, found to be incompetent, then their hearsay statements would be likewise unreliable and inadmissible; and (3) that the trial court erred in failing to find circumstantial guarantees of the reliability of the hearsay statements. Although the Arkansas act requires circumstantial guarantees of trustworthiness before the admission of such statements, the majority, in effect, dispenses with this requirement. Moreover, our rule does not require unavailability or proof of incompetency.
The Ryan court quoted with approval the cases of Ohio v. Roberts, 448 U.S. 56 (1980), and California v. Green, 399 U.S. 149 (1970). The court further explained their statute by stating:
The statute requires a preliminary determination “that the time, content, and circumstances of the statement provide sufficient indicia of reliability. . . .” It requires the child to testify at the proceedings, or to be unavailable, and does not alter the necessary showing of unavailability. Neither unavailability nor reliability were shown prior to admitting the hearsay testimony.
Unavailability means that the proponent is not presently able to obtain a confrontable witness’ testimony. It is usually based on the physical absence of the witness, but may also arise when the witness has asserted a privilege, refuses to testify, or claims a lack of memory. [Citations omitted.] Unavailability in the constitutional sense additionally requires the prosecutor to make a good faith effort to obtain the witness’ presence at trial. Roberts, at 74.
I have discussed the Washington statute in detail because it exemplifies the recent efforts by various states to find a satisfactory and Constitutional solution to the problem of abuse of children. I contend that the Arkansas statute goes far beyond any other attempt to deal with this vexatious problem. I will briefly discuss the Arizona statute and some cases interpreting it. The statute reads:
§ 13-1416. Admissibility of minor’s statement; notice.
A. A statement made by a minor who is under the age of ten years describing any sexual offense performed with or on the minor by another person or any act of physical abuse of the minor, which is not otherwise admissible by statute or court rule, is admissible in evidence in any criminal or civil proceeding if both of the following are true:
1. The court finds, in an in camera hearing, that the time, content and circumstances of the statement provide sufficient indicia of reliability.
2. Either of the following is true:
(a) The minor testifies at the proceedings.
(b) The minor is unavailable as a witness, provided that if the minor is unavailable as a witness, the statement may be admitted only if there is corroborative evidence of the statement.
On April 15,1986, the Arizona Court of Appeals decided the case of State v. Superior Court, Pima County and Skala, 719 P.2d 283 (Ariz. App. 1986). The court affirmed the trial court’s exclusion of the hearsay testimony of the mother concerning the child’s statement which occurred two days after the alleged sexual offense by the three year old child’s father. The case was remanded on the grounds that the trial court did not make an in chambers independent determination of each hearsay witness’ testimony for trustworthiness. The Arizona Court of Appeals stated: “In some cases, the trial court may conclude that all statements are unreliable, but that determination must be independently made as to each statement offered and/or each witness called to so testify.”
The Arizona statute was subsequently struck down in State v. Robinson, 235 P.2d 801 (Ariz. 1987), in which the Supreme Court of Arizona held the statute to be unconstitutional as infringing upon the Court’s authority to make procedural rules for the judiciary. The Court stated:
Although we have previously recognized consistent statutory additions to the rules of evidence,. . .the reach of our rulemaking authority and the function of the hearsay rules, taken together, severely limit the legislature’s authority to manipulate the hearsay rules, particularly in criminal cases where confrontation rights are constitutionally protected.. . . [T]he hearsay rules are at the core of the judicial function: defining what is reliable evidence and establishing judicial processes to test reliability. Under basic separation of powers principles, these judicial functions are separate and different from legislative powers.
The Arkansas version of the child hearsay statute should likewise be declared unconstitutional.
It is time we returned to the basic constitutional concept that an accused is considered innocent until proven guilty beyond a reasonable doubt. I am in complete accord with the public demand for swift and sure punishment of child molesters. However, in our zeal to rid society of such individuals we must not lose sight of the rights of others. We ought not to tear down our well-established institutions before we decide what we will replace them with. By the same logic a person should not be adjudged guilty by the untested hearsay testimony of any witness. The foundation of the doctrine prohibiting the introduction of hearsay is to prevent a conviction on untested statements made without the safeguards of confrontation and a determination of trustworthiness. Sir Walter Raleigh was convicted on hearsay testimony which had been retracted before his conviction. This is the type of trial the Sixth Amendment to the Constitution of the United States sought to prohibit. If the Amendment is bad then let it be stricken by the people instead of the courts.