Opinion of the Justices To the Senate

Decision Date28 November 1989
Citation406 Mass. 1201,547 N.E.2d 8
PartiesOPINION OF the JUSTICES TO THE SENATE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

On Nov. 28, 1989, the Justices submitted the following answer to questions propounded to them by the Senate.

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their response to the questions set forth in an order adopted by the Senate on July 19, 1989, and transmitted to this court on July 25, 1989. 1 The order indicates that there is pending before the General Court a bill printed as Senate No. 795 entitled, "An Act authorizing the admissibility of out-of-court statements of child victims of sexual assault." A copy of the bill was transmitted with the order. The order recites: "Senate bill No. 795 would, in part, permit certain statements made 'out-of-court' by a child under the age of ten years to be admissible as evidence in a criminal or civil proceeding under certain conditions...." 2

The order also indicates that grave doubt exists as to the constitutionality of the bill, if enacted into law, and requests our opinion on these questions:

"1. Would said bill, Senate No. 795, if enacted into law, be in contravention of Article XII of Part the First of the Constitution of Massachusetts in that it would deny a person the right 'to meet the witnesses against him face to face'?

"2. Would said bill, if enacted into law, be in contravention of Article VI of the Amendments to the Constitution of the United States in that it would deprive a person of the right 'to be confronted with the witnesses against him'?"

We answer the first question in the affirmative. Consequently, we consider it unnecessary to answer the second question.

1. Conflicting Considerations. Before beginning our examination of Senate No. 795, we delineate the tension which underlies the questions presented. Two major interests are inextricably in conflict: the significant societal interest in reducing the trial-related trauma of child victims of sexual assault and in having their evidence submitted to the fact finder so that pernicious malefactors may be brought to justice; and the constitutional and societal imperatives of assuring the integrity of the fact-finding process and of honoring the time-honored rights of an accused to confront his accusers in a court of law.

Indeed, the Supreme Judicial Court often has recognized the tension between these conflicting, and valid, interests. "This court is acutely aware of the plight of child sexual assault victims and traditionally has been sensitive toward meeting the needs of these young witnesses. See, e.g., Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 858-860, 401 N.E.2d 360 (1980), rev'd, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). '[S]afeguarding the physical and psychological well-being of a minor' is indeed a compelling State interest. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). We are cognizant ... that the problem of sexual abuse is widespread." Commonwealth v. Bergstrom, 402 Mass. 534, 552, 524 N.E.2d 366 (1988).

On the other hand, "[s]ociety may justify a person's conviction only after a trial scrupulous in its adherence to a process which, so far as humanly possible, assures that the innocent are not mistakenly deprived of liberty. The right of the accused to be tried in the manner which our Constitution [art. 12] guarantees cannot dissolve under the pressures of changing social circumstances or societal focus." Id. at 553, 524 N.E.2d 366.

a. Sexual abuse of children. Most briefs before the court, and much of the pertinent literature, relate the special difficulty in prosecuting allegations of sexual abuse of children. As the briefs recite, and our experience confirms, the victim and the perpetrator may be the only witnesses; corroborative evidence may be absent or inconclusive; the victim may retract a true account of an incident of sexual abuse because of fear, guilt, shame, or self-blame; the victim may refuse to testify or be an ineffective witness; and the victim may feel punished if removed from home for protection or guilty if the alleged offender is removed from the home. Skoler, New Hearsay Exceptions for a Child's Statement of Sexual Abuse, 18 J. Marshall L.Rev. 1, 5-7, 41-42 (1984). Moreover, there may be trauma for the child in preparing for, and testifying at, a trial. Id. at 6-7. Parents may be reluctant to have their child subjected to the further trauma of being the chief prosecution witness at an adult criminal trial. Note, The Sexually Abused Infant Hearsay Exception: A Constitutional Analysis, 8 J.Juv.L. 59, 60 (1984).

In addition, it is claimed that a child's memory fades rapidly over time; that the account given closer to the actual event is more likely to be accurate; and that the inability to remember details may be significant given the lapse of time between the offense and the trial. Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1749-1751 (1983). See Note, Minnesota's Hearsay Exception for Child Victims of Sexual Abuse, 11 Wm. Mitchell L.Rev. 799, 800-802 & nn. 2-9 (1985). One response, represented in Senate No. 795, is that of rendering certain out-of-court statements of child victims of sexual abuse admissible at trial.

b. Confrontation. We are asked to consider this proposed remedy in light of the cited State and Federal constitutional provisions which provide for a person's right to confront the witnesses against him. These provisions have a rich heritage.

The United States Supreme Court, in discussing the Sixth Amendment's right of confrontation, stated that the specific language "comes to us on faded parchment" and that its lineage may be traced to the beginnings of Western legal culture. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 2800, 101 L.Ed.2d 857 (1988). Almost one century ago, the Court stated that the primary object of that provision of the Sixth Amendment is "to prevent depositions or ex parte affidavits ... being used against the prisoner." Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). Accord Commonwealth v. Millen, 289 Mass. 441, 455, 194 N.E. 463 (1935) (art. 12). Rather, the preference is for cross-examination (under oath) in which the accused might test the recollection, and sift the conscience, of the witness and in which the jury might determine whether he or she is worthy of belief, by his or her demeanor and the manner in which the witness gives testimony. Mattox v. United States, supra 156 U.S. at 242-243, 15 S.Ct. at 339-340. More recently, Justice Marshall observed that the drafters of the Sixth Amendment may have been influenced by the plight of Sir Walter Raleigh who had been condemned on the basis of a deposition by an alleged accomplice who had recanted. United States v. Inadi, 475 U.S. 387, 411, 106 S.Ct. 1121, 1134, 89 L.Ed.2d 390 (1986) (Marshall, J., dissenting).

As for the States, one commentator suggests that the expressed intentions of the British to try colonists in England for crimes allegedly committed in the colonies, thus involving the use of depositions or ex parte affidavits by the prosecution, led to the inclusion in the Virginia Declaration of Rights of 1776 of the right of confrontation. Larkin, The Right of Confrontation: What Next?, 1 Tex.Tech.L.Rev. 67, 77 (1970). He states that, if the Colonial legislators had not intended to give the accused the benefit of face-to-face cross-examination of the witness personally and in the presence of the trier of fact who could judge his demeanor and credibility, the indications are that they would have chosen different language. Id. Massachusetts, he notes, used "the more graphic and explicit 'to meet the witnesses against him face to face' " instead of the word "confront" used by other States. Id. at 78. See Clinton, The Right to Present A Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 713, 730 (1976). A purpose of the early State provisions may have been to preserve in criminal cases the hard-won principle of the hearsay rule which had been accepted in England for over one hundred years. McCormick, Evidence § 252, at 750 (3d ed.1984). See Note, Coy v. Iowa: The Right to Face-to-Face Confrontation, 26 Hous.L.Rev. 739, 748 (1989).

The Supreme Judicial Court recently focused on the intersection of these considerations: the difficulty of prosecuting cases of alleged sexual abuse of children and the commands of art. 12. In Commonwealth v. Bergstrom, supra 402 Mass. at 541-542, 524 N.E.2d 366, we acknowledged the court's acute awareness of the plight of child sexual assault victims but stated that "[c]onstitutional language more definitively guaranteeing the right to a direct confrontation between witness and accused is difficult to imagine."

2. Article 12. We examine the bill under that portion of art. 12 of the Commonwealth's Declaration of Rights which specifies:

"No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face ..." (emphasis added).

Over a century and one-half ago, the court stated that art. 12 "was made to exclude any evidence by deposition, which could be given orally in the presence of the accused." Commonwealth v. Richards, 18 Pick. 434, 437 (1836). In discussing the admissibility of certain dying declarations, the court explained that, because they are made under the apprehension of immediate death, they are entitled to all the credit which would be given to them if the declarant had made them under oath. Id. The court also stated it...

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