Court says child need not testify at abuse trial Others are allowed to repeat accusation

January 16, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A unanimous Supreme Court set the stage yesterday for criminal trials of adults for allegedly abusing or sexually assaulting children, without ever putting the children on the witness stand in court.

The court ruled that, even if a child victim might be available to testify, the Constitution allows others to take the stand instead and repeat what the child told them about an incident of abuse.

That decision was also significant because it revealed for the first time the views of the newest justice, Clarence Thomas, on a significant constitutional issue. In a separate opinion, he, with the support only of conservative Justice Antonin Scalia, took a far narrower view than seven other justices did of the right the Constitution gives to criminal suspects to confront their accusers.

The Thomas opinion took nearly the same position that the Bush administration had advocated in the case -- a position the court majority bluntly rejected in an opinion by Chief Justice William H. Rehnquist. Despite their differences, the justices agreed on the outcome of the case.

In a second decision yesterday, in a celebrated case, the court gave the federal government permission to deport to Britain a member of the Provisional Irish Republican Army, Joseph Patrick Doherty, 37, who was convicted of killing a British soldier in north Belfast more than 11 years ago and sentenced to life in prison.

Doherty has been held in a New York jail since his arrest in mid-1983. He had been seeking to have his deportation case reopened.

The court's decision yesterday on child abuse and sexual assault trials was the latest in a series it has made in that area of constitutional law in the past two years.

The new ruling declared that, if a child has blurted out some details of alleged abuse to a family member, a police officer or someone else right after the incident, or has told a doctor or nurse of the details, those other people may be permitted to tell the jury what the child said.

That would be permitted, the court said for the first time, even if there was no indication that the child could not personally tell of the incident on the witness stand.

It is not necessary, Chief Justice Rehnquist wrote, for prosecutors to prove that the child was "unavailable" to testify in order for others' accounts of the child's story to be allowed as evidence.

It does not violate the accused person's constitutional right to confront the child accuser if the law of the state where the trial occurs permits "hearsay" derived from a child's blurted-out comments to others, or statements the child made during medical treatment after an incident.

In June 1990, the court had ruled in a Maryland case, involving child witnesses who testified against a day-care operator, that children would not have to face in court the adults they accused -- provided the judge ruled in advance that a child would suffer emotional harm from such a face-to-face meeting.

The new ruling upheld the sexual assault conviction of Randall D. White of Georgetown, Ill., who was sentenced to 10 years in prison for breaking into a home and sexually abusing a 4-year-old girl.

Right after the incident, the child told a baby sitter, her own mother and a police officer about the sexual assault. Later, being treated at a local hospital, she told a doctor and a nurse. All five were allowed to testify, even though there was no indication that the child was unavailable to take the stand herself.

Illinois courts ruled that White's right of confrontation was not violated, and the Supreme Court agreed with that result.

The case was White vs. Illinois (No. 90-6113).

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