specially concurring:
If the hearsay rule is a useless anachronism then it should be abolished in all cases, not just those involving the sexual abuse of children. If there is some value to the hearsay rule then we should be cautious in abandoning it, even in cases involving the sexual abuse of children.
The major reason some statements are not rendered inadmissible by the hearsay rule is that because of the particular circumstances cross-examination is unnecessary.
“In other words, if the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial.” (Wright, 497 U.S. at 820, 111 L. Ed. 2d at 655, 110 S. Ct. at 3149.)
The confrontation clause is not always violated by the admission of out-of-court statements which do not fit within a “firmly rooted” hearsay exception, but such statements do not come in as a matter of course. Where the evidence does not fall within a “firmly rooted” hearsay exception “the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.
“Because evidence possessing ‘particularized guarantees of trustworthiness ’ must be at least as reliable as evidence admitted under a firmly rooted hearsay exception, see Roberts, supra, at 66, we think that evidence admitted under the former requirement must similarly be so trustworthy that adversarial testing would add little to its reliability. [Citations.] Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.” Wright, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3149-50.
What was it here about the victim’s statement to her mother on October 29 which provided a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial? The State does not attempt to argue that the statement was a spontaneous declaration. “A five-day interval between the startling event and the victim’s statements would generally destroy the spontaneity of those statements.” (Zwart, 151 Ill. 2d at 48, 600 N.E.2d at 1173.) What was it about the child’s statements to the juvenile police officer on November 14, or to the child-protection-team pediatrician on November 19 which made them so trustworthy that adversarial testing would add little to their reliability? The November 14 and 19 statements were made in preparation for trial, not for purposes of medical diagnosis or treatment. (See Ill. Rev. Stat. 1991, ch. 38, par. 115—13.) A psychologist at Carle Clinic, Dr. Holly Mirell, met with the child the day after the allegations were made, and spoke to DCFS investigator Gordon before November 14, but Dr. Mirell was not called as a witness. That failure itself is significant. The State should introduce evidence of all the child’s interviews regarding sexual abuse, because without such evidence, it is impossible for the trial court to determine whether the victim was questioned in a suggestive manner or was encouraged to accuse the defendant of sexual abuse. See Zwart, 151 Ill. 2d at 44-45, 600 N.E.2d at 1172; cf. Back, 239 Ill. App. 3d at 54-56, 605 N.E.2d at 696-98 (not mandatory to call as a witness first person to whom 10-year-old victim reported sexual assaults).
The majority opinion relies upon the following to justify admission of the various hearsay statements:
“Furthermore, the problems defendant cites regarding G.B.’s statements do not outweigh the other indicia of their reliability, including, but not limited to, that G.B. (1) first made these statements without any prompting, (2) continued insisting that the events at issue occurred even though her mother did not want defendant prosecuted, (3) bore no animus toward her father and wanted him to live with them, and (4) did not automatically accuse defendant of other types of sexual conduct even when specifically asked by Gordon and Dr. Buetow.” (251 Ill. App. 3d at 463.)
I respectfully suggest that these indicia are insufficient to affirmatively show the statements are worthy of reliance at trial. The statements to the mother certainly do not qualify under the spontaneous declaration exception to the hearsay rule, and we must rely on the mother in order to determine the extent of prompting before the child made the statements. The fact that the statements continued cannot be considered unusual in light of the repeated questioning of the child. The fact the victim bore no animus toward defendant is equally consistent with the argument the events never occurred. A victim coached to give a story (or convinced that certain events occurred) would not likely expand that story to other sexual conduct. These four factors provide little assurance of truthfulness; they cannot be enough for admission unless out-of-court statements of a child sex abuse victim should always be admissible.
In this case there is a very recent bitter divorce, a mother who, whatever her motive, apparently initiated these proceedings through her pediatrician, and there is no physical evidence. There is a four-year-old victim who is unusually comfortable testifying, whose mother has spoken to her about terminology, a victim who has seen a penis at school (and has a six-year-old brother). The victim does not understand what an erection, or ejaculation, is. There is no indication the conduct happened more than once, nor is there any indication defendant had these tendencies during his nine-year marriage. The majority opinion rejects defendant’s arguments the victim had pat answers and that the mother might have coached the victim. It is not defendant’s burden to show the evidence is untrustworthy, however. Rather it is the State’s burden to show “declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.” (Wright, 497 U.S. at 820, 111 L. Ed. 2d at 655, 110 S. Ct. at 3149.) There is nothing extraordinary about the circumstances surrounding the child’s out-of-court statements here. The State failed to sustain its burden to admit the statements under section 115 — 10 of the Procedural Code.
Wright makes it clear the admission of out-of-court statements does not violate the confrontation clause when there is some necessity that they be admitted. (Wright, 497 U.S. at 814, 111 L. Ed. 2d at 651, 110 S. Ct. at 3146.) Why was it necessary to admit any out-of-court statements in this case? The victim testified freely and fully in open court. This is not a case where the child was unable to testify because of fear, inability to communicate in the courtroom setting, or incompetence. (Coleman, 205 Ill. App. 3d at 583, 563 N.E.2d at 1020, quoting People v. Rocha (1989), 191 Ill. App. 3d 529, 539, 547 N.E.2d 1335, 1341-42.) The only purpose for the hearsay testimony in this case was so that the State could repeat and emphasize favorable testimony, and that has never been considered a reason for admission of testimony. Three witnesses testified to hearsay in this case, but there is no reason there could not have been 13. Routine admission of such hearsay testimony allows a prosecutor to send a child victim to one potential witness after another, until the child victim gives the desired testimony. The State may select the "witnesses the child speaks to on the basis of those witnesses’ past effectiveness in court. Constant repetition of the events may destroy any possibility that an accurate version will be given when the child finally testifies. Persistent questioning will destroy the spontaneity of a statement (Zwart, 151 Ill. 2d at 48, 600 N.E.2d at 1174), and a four-year-old child is particularly susceptible to suggestion from outsiders (Zwart, 151 Ill. 2d at 45, 600 N.E.2d at 1172).
Section 115 — 10 of the Procedural Code does not condition admission of out-of-court statements on unavailability of the child victim. The statements may also be admitted if the child “[t]estifies at the proceeding” (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(b)(2)(A)), but mere presence at trial has not been considered to justify admission of hearsay in other cases. “ ‘ “[T]he presence or absence in court of the declarant of the out-of-court statement is *** irrelevant to a determination as to whether the out-of-court statement is hearsay.” ’ ” (People v. Velasco (1991), 216 Ill. App. 3d 578, 584, 575 N.E.2d 954, 958, quoting People v. Lawler (1991), 142 Ill. 2d 548, 557, 568 N.E.2d 895, 899, quoting M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.1, at 564-65 (5th ed. 1990).) It may be necessary to use a child’s out-of-court statements where a child is unavailable, but it cannot be necessary to use those statements where the child testifies freely at the hearing.
I conclude the trial court erred in considering the child’s out-of-court statements. Nevertheless, this was a bench trial, the trial court heard the child’s testimony and was entitled to find defendant guilty of the offenses charged on the basis of that evidence. Although there may be concern whether testimony at trial has been tainted by what occurred prior to trial, I agree with the majority opinion that any error here in admitting the hearsay statements pursuant to section 115 — 10 would have been harmless.