IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

vs. Cr. No.xxxxxxx

xxxxxxxxxxxx,

Defendant.

DEFENDANT xxxxxxxxxxx RESPONSE IN OPPOSITION

TO NOTICE OF INTENT TO PRESENT HEARSAY EVIDENCE

COMES NOW the defendant by and through counsel and, pursuant to U.S. Const. Amends. V and VI, responds to the government's Notice of Intent to Present Hearsay Evidence as follows:

1. On March 20, 1992, the government filed a Notice of Intent to Present Hearsay Evidence notifying the court and the defense of: [I]ts intention to present hearsay evidence at the trial of the above case, pursuant to Rule 804(b)(5) of the Federal Rules of Evidence. Specifically, the plaintiff will present statements made by Jane Doe to xxxxx xxxxxxxx xxxxxx of the Albuquerque Safe House.

2. Mr. xxxxxx opposes the government's attempt to prove its case by presenting the alleged out of court statements of the child victim in this case through a social worker. Mr. xxxxxx asserts that these statements were solicited in anticipation of litigation and lack sufficient indicia of reliability to justify their admission at trial. Admission of these statements would violate Mr. xxxxxx's rights to confrontation, to due process of law, and to a fair trial, all as secured by the Firth and Sixth Amendments to the U.S. Constitution. U.S. Const. Amends. V and VI; Idaho v. Wright, 497 U.S. ____, 110 S.Ct. 3139, 3147 (1990).

3. The U.S. Supreme Court has held that out of court statements by alleged child victims in sexual misconduct cases may be admitted when the hearsay statement either "falls within a firmly rooted hearsay exception or where it is supported by a showing of particularized guarantees of trustworthiness." Idaho v. Wright, 110 S.Ct. 3139, 3147 (1990).

4. Statements within traditional, firmly rooted hearsay exceptions carry sufficient indicia of reliability to satisfy the reliability requirement imposed by the Confrontation Clause. White v. Illinois, ____ U.S. ____, 112 S.Ct. 736 (1992) (spontaneous declaration and medical care hearsay exceptions). However, with respect to residual hearsay exceptions, the Supreme Court has held:

The residual hearsay exception, by contrast, accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might nevertheless be sufficiently reliable to be admissible at trial. . . . Hearsay statements admitted under the residual hearsay exception, almost by definition, therefore, do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception. Idaho v. Wright, 110 S.Ct. at 3147-8. (Citations omitted.)

Therefore, the statements at issue in this case do not fall within a firmly rooted, traditional hearsay exception.

5. Because the statements in this case do not fall within a firmly rooted hearsay exception, they are "presumptively unreliable and inadmissible for confrontation purposes, and must be excluded absent a showing of particularized guarantees of trustworthiness." Idaho v. Wright, 110 S.Ct. at 3148.

6. The government is required to show "particularized guarantees of trustworthiness" from the totality of the circumstances surrounding the taking of the statement. In making this showing, the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief and do not include other evidence that could be presented at trial or corroboration. Idaho v. Wright, 110 S.Ct. at 3148.

7. Upon information and belief, prior to her third visit with the social worker, the alleged child victim in this case never accused Mr. xxxxxx of sexual misconduct with her. The government's investigation was initiated when she was diagnosed as having gonorrhea. Mr. xxxxxx has never had gonorrhea. Mr. xxxxxx and several other adult males were considered suspects in this case by the FBI. The FBI took an inculpatory statement from Mr. xxxxxx, which has since been suppressed by this court. After the government procured the inculpatory statement from Mr. xxxxxx, the government sent the alleged child victim in this case to a social worker at a halfway house for several interviews to see whether the social worked could obtain a statement from the child to corroborate Mr. xxxxxx's statement. The social worker was unsuccessful in obtaining any such statement until the third interview. At that time, and in response to prompting from the social worker, the child made an equivocal statement that has been interpreted by the social worker as an accusation against Mr. xxxxxx. Upon information and belief, this statement has not been repeated or corroborated by the child.

8. Under the totality of the circumstances of this case, this statement lacks the particularized guarantees of trustworthiness required of a statement that can be admitted in derogation of the Confrontation Clause of the U.S. Constitution. Idaho v. Wright, supra; U.S. Const. Amend. VI. As such, this statement should be excluded from the government's case in chief at trial.

9. Mr. xxxxxx requests a hearing on this matter prior to trial.

10. In addition to the matters set out above, Mr. xxxxxx asserts that, at present, the alleged child victim in this case is not "unavailable as a witness" within the meaning of Rule 804(a) of the Federal Rules of Evidence. That rule requires a finding that the witness is (1) exempted by a ruling on the ground of privilege from testifying; (2) persists in refusing to testify despite an order of the court; (3) testified to a lack of memory of the subject matter; (4) is unable to be present or testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of the statement has been unable to procure her attendance. Rule 804(a), Federal Rules of Evidence. At present, the government has not made a showing that the child witness in this case falls within any of these exceptions.

11. In White v. Illinois, ____ U.S. ____, 110 S.Ct. 736 (1992), the Supreme Court held that the confrontation clause of the Sixth Amendment to the U.S. Constitution does not require a showing of unavailability when a statement is sought to be admitted under a "firmly rooted" exception to the hearsay rule White is inapplicable to the present case because White involved Rule 803 of the Federal Rules of Evidence and not Rule 804. Rule 804 of the Federal Rules of Evidence requires a showing of unavailability as a prerequisite to admissibility of the statements in this case. In addition, White is not applicable to this case because this case does not involve a firmly rooted exception to the hearsay rule. See, Idaho v. Wright, supra.