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Evidence Course
Professor Peter Tillers
A Hearsay Riddle: Questions based on Bridges v. Wisconsin
A child is interviewed by the police. She tells the police that she was sexually molested by a man that she describes. She tells the police that she was molested in an apartment that had a blue couch, a picture of China on the wall, a parrot, and a lamp. The police later find themselves in David Defendant's apartment. They discover that his apartment has a blue couch, a picture of China on the wall, a parrot, and a lamp. The child's out-of-court statement is offered at Defendant's trial. Is the statement admissible?
In Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945) the Wisconsin Supreme Court considered a similar problem and it held that out-of-court statements made by the alleged victim (a seven year old girl) to her mother and to the police were not barred by the hearsay rule. The court wrote:
The defendant is thirty-three years of age and a corporal in the United States army. On February 26, 1945, and for some time before and after that date he was stationed at Truax Field as a permanent party, and he resided at 125 East Johnson street in the city of Madison [Wisconsin]. He is off duty on Mondays, and on the trial of this action he testified, -- and also a corroborating witness, -- that he and his wife were at that home all day on Monday, February 26, 1945. ...
[O]n February 26, 1945, between 4 and 5 p. m., a man wearing a soldier's uniform committed an assault, under circumstances which clearly constituted the taking of indecent liberties with the person of the complaining witness, Sharon Schunk, a seven-year-old girl .... She testified that upon leaving school at about 3:30 p. m. on February 26, 1945, she walked westward toward her home about six blocks away at 721 West Washington avenue in the city of Madison. While en route, when she reached the corner of Washington avenue and Bedford street, -- known to her as "Billy's Corner," -- the soldier, who had been walking behind her, caught up to her and said "Let's go across," and took her by the hand. While walking with her several blocks the soldier said he had some funny books and wanted her to do something for him; and finally he had her enter a house and go into a second-floor room in which he then committed the assault. Defendant testified on the trial that he did not see or speak to or walk with Sharon, and denies that he is the man who committed the assault testified to by her. And in support of that denial he relies principally upon testimony by himself and Mrs. Kitty Blood that during the entire morning and afternoon of February 26, 1945, he and his wife, Peggy Bridges, were alone in the second-floor front room at 125 East Johnson street, which they used as their home and rented from Mrs. Blood, who owned and also resided in the house. In view of defendant's denials and his testimony, and Mrs. Blood's corroboration thereof, the crucial issue is whether there was otherwise competent evidence which, if considered credible by the jury, was sufficient to establish beyond any reasonable doubt that defendant was the man wearing a soldier's uniform, who committed the crime in question; and the identification of the defendant as that man depends, in turn, under the evidence herein, largely upon whether the house and room to which Sharon was taken by the man who assaulted her was the house and room at 125 East Johnson street in which defendant resided.
...
Sharon's mother, Mrs. La Vern Schunk, testified that Sharon arrived home at about five minutes to 5 on [the] afternoon [of February 26,1945], and while [Sharon] was being questioned as to the lateness of her arrival and where she was so long [Sharon] began to cry and gave each of her brothers a nickel, and said she got the money from a soldier and that she had gone to his house; and when asked where the house was she said she did not know, it was a long way. Mrs. Schunk on examining Sharon noticed what appeared to be semen on her panties, and upon further questioning her, she told the mother some of the particulars of the indecent liberties. Mrs. Schunk and her husband then went to the police station and Detective Nee and Police Matron Clark went to the Schunk residence to investigate the case. They took Sharon and Mrs. Schunk along in a police car to look for the soldier and the house where Sharon had been taken. While they were driving around Sharon mentioned having seen in the room where she had been taken a bed and a chest of drawers, a dresser, and table with a picture of a lady on it and a chair by the bed with a radio and alarm clock on it. And on cross-examination by defendant's counsel, Mrs. Schunk testified to the following effect. While riding in the police car looking for the house, Sharon described it as having wooden steps which were grey and had bricks on the side of the steps, and that as she got on top of the steps on a porch there were two doors going into the house; but Mrs. Schunk testified she could not recall whether there was anything said that the porch was inclosed.
Detective Nee testified that while riding in the police car on the night of February 26, 1945, they drove to the point near the corner of West Washington avenue and Bedford street, where Sharon said she started out with the soldier. From there as she directed the course of travel, they proceeded northward on Bedford to West Mifflin street and eastward on the right side. Sharon had given them a description of the house and Nee told her to say if she observed a house that looked like it. After proceeding (apparently about five blocks) without Sharon pointing out any house, Nee turned around and retraced and stopped at a house in the first block in which there was only one house on the right-hand side which answered the description Sharon had given. Nee took Sharon into the house and up to the second floor to determine, if he could, if that was the place. When they got to the top of the stairs she shook her head and indicated it was not, and said there were a lot of toys and articles that children would play with on the top landing and those she said were not there in the house she had gone to with the soldier. That night she did not remember any objects in the vicinity of the house where she had been taken.
Detective Nee further testified that before the next afternoon, when he and Detective Fleming took Sharon and her mother with them again, they had learned that Sharon had traveled four blocks until she had met the police officer who had put her on the bus. So to place the position of the house they asked her some questions, and if she could tell them about where the house was located in the block. She said it was near the middle of the block, the third or fourth house from the corner. They asked her if there was anything in the neighborhood, anything distinguishing that she could remember about that neighborhood that might place this house and make it easier for them to find it. She said she remembered there was a little house like a playhouse or doll's house, she called it, setting back from the street, and that there was a white fence around it. They looked for a house of that nature, but did not find any at that time.
It appeared on the trial, without dispute, that upon the arrest of defendant in relation to another matter, he consented on March 27, 1945, to let the police enter his room at 125 East Johnson street; and Fleming testified that on that date he and Detective Milsted took Sharon and her mother in the police car and drove eastward past 125 East Johnson street and Sharon was told to notice the houses in that block. Fleming and also Mrs. Schunk testified Sharon was looking for the house to which she had been taken by the soldier, but did not recognize any of the houses in the block; so they turned around at the end of the block and drove back and parked approximately across the street from 125 East Johnson street, and then Sharon said the house at that number looked like the house. Mrs. Schunk testified Sharon then pointed out the house at No. 125 as to the steps and sides, and said that the steps and the bricks on the side looked very much like the porch of the house she had been taken to by the soldier. Fleming and Mrs. Schunk testified that Sharon went with the detectives and her mother, and entered the left one of two entrance doors and up the stairway in that house, and entered the room (which was rented to defendant). When Sharon stepped inside that room she, according to Fleming's testimony, stood there for a second or two looking around the room and started nodding her head. And according to Mrs. Schunk's testimony Sharon then said that was the room, and then looked around at different things and said that this was the place; and she went over to the dolls and said those dolls weren't on that box then, -- they were on the chest of drawers when she first saw them. Fleming likewise testified Sharon said that the dolls were not in the same place they had been before on a chest of drawers over on another wall of the room; that the alarm clock and radio "were there;" and that the picture of the lady on the table had been there.
The following are undisputed facts. The house at 125 East Johnson street, in which defendant resided, is a two-story brick house with stone trimmings. There are wooden steps leading up to the floor of a front porch and the steps are flanked at their sides with a series of brick piers. From the porch there are two separate entrances to the house, and the door on the left is the entrance to the stairway to the apartment rooms on the second floor. Across the street from that house there is an exceptionally attractive and distinctive small cottage with a white fence around it setting back somewhat from the street.
....
[Sharon Schunk and another girl, Geraldine Shipley, gave testimony at the trial
that tended to incriminate the defendant.] This is one of those cases that always
gives us great concern. Taking all of her testimony into consideration, it is
evident that although the seven-year-old complaining witness, Sharon, is apparently
somewhat brighter than the average child of her age, her testimony is subject
to infirmities that testimony of such children generally is subject to. However,
on close analysis and due consideration thereof in connection with many facts
established undisputably by other evidence, Sharon's testimony does not appear
to be so contradictory as to impair its credibility as a matter of law. The statements
made by her to her mother and police officers, -- prior to their discovery of
the location of defendant's room, -- as to the general appearance of the steps
to the porch and the front entrance doors of the house to which she had been taken
on February 26, 1945, were fairly accurate for a child of her age and limited
schooling and vocabulary, and her first description of the room and articles therein
was not too much out of line, although it was not distinctive enough to be of
much value either way. She had an impression of the direction and distance she
traveled, and that is not too much out of line. She was uncertain as to the precise
location of the house, which is natural. But she placed it as nearthe middle of
a block and in the vicinity of a little house like a playhouse, or doll's house
she called it, setting back from the street, and that there was a white fence
around it. These premises, which are in fact across the street from 125 East Johnson
street are attractive and distinctive and would naturally stay in a child's memory.
She positively identified the defendant at the police department "show-up" and
again on the trial in the presence of the jury; as was also done by Geraldine
Shipley, the other little girl accosted by defendant on West Washington avenue.
Sharon's impression o f the size of the defendant would appear to be natural enough
unless she saw him in company with other soldiers of great height. Her testimony
as to the offense is sufficiently definite and if believed the jury could find
under the evidence herein that the offense charged was committed by the defendant
and that he was guilty as charged. Parke v. State, 204 Wis. 443, 235 N.W. 775.
Consequently the [trial] court was warranted in sustaining the verdict, and the
judgment entered thereon must be affirmed unless, as defendant contends, prejudicial
error was committed by the court in admitting certain testimony over defendant's
objections or in otherwise ruling adversely to defendant in the following respects.
Defendant contends the court erred in admitting testimony given by Sharon's mother as to statements made by Sharon in the absence of defendant.... [T]here [was] testimony by Mrs. Schunk as to some statements which, -- in answer to her questions, -- were made by Sharon, upon returning home at 5 p. m. on February 26, 1945, in relation to the above-stated particulars as to the indecent liberties taken by defendant. The mother's testimony as to the statement of those particulars by Sharon was clearly admissible under the rule that where the person ravished is very young, testimony as to the particulars of such statements by her is admissible. Hannon v. State, 70 Wis. 448, 451, 452, 36 N.W. 1; Bannen v. State, 115 Wis. 317, 329, 91 N.W. 107; Smits v. State, 145 Wis. 601, 605, 606, 130 N.W. 525.
Defendant contends the court erred also in admitting testimony by police officers as to matters stated by Sharon in defendant's absence.... There [was] testimony by police officers and also Mrs. Schunk as to statements which were made to them by Sharon on February 26 and 27, 1945, and also during the course of their subsequent investigations to ascertain the identity of the man who committed the offense and of the house and room in which it was committed. In those statements she spoke, as herein-before stated, of various matters and features which she remembered and which were descriptive of the exterior and surroundings of the house; and of the room and various articles and the location thereof therein. It is true that testimony as to such statements was hearsay and, as such, inadmissible if the purpose for which it was received had been to establish thereby that there were in fact the stated articles in the room, or that they were located as stated, or that the exterior features or surroundings of the house were as Sharon stated. That, however, was not in this case the purpose for which the evidence as to those statements was admitted. It was admissible in so far as the fact that she had made the statements can be deemed to tend to show that at the time those statements were made, -- which was a month prior to the subsequent discovery of the room and house at 125 East Johnson street, -- she had knowledge as to articles and descriptive features which, as was proven by other evidence, were in fact in or about that room and house. If in relation thereto Sharon made the statements as to which the officers and her mother testified, then those statements, -- although they were extrajudicial utterances, -- constituted at least circumstantial evidence that she then had such knowledge; and that such state of mind on her part was acquired by reason of her having been in that room and house prior to making the statements. Under these circumstances there are applicable to the hearsay testimony in question the fol lowing propositions stated in Wigmore, Evidence (3d ed.), to wit:
"The condition of a speaker's mind, as to knowledge, belief, rationality, emotion, or the like, may be evidence by his utterances, either used testimonially as assertions to be believed, or used circumstantially as affording indirect inferences. ... The usual resort is to utterances which circumstantially indicate a specific state of mind causing them. To such a use, then the hearsay rule makes no opposition, because the utterance is not used for the sake of inducing belief in any assertion it may contain. The assertion, if in form there is one, is to be disregarded, and the indirect inference alone regarded. This discrimination, though well accepted in law, is easy to be ignored, and it needs perhaps to be emphasized." Vol. 6, p. 237, sec. 1790. See also p. 234, sec. 1788; p. 240, sec. 1791.
"When a person's knowledge or belief is a fact in issue, conduct and word-utterances may betray the knowledge or belief of the actor or speaker, in so far as the specific act or utterance is of a tenor which cannot well be supposed to have been willed without the inner existence of that knowledge or belief. ... For such instances of conduct, including utterances, as evidence of knowledge or belief, there can be no general test of relevancy. Ordinary experience usually suffices, without controversy, to tell us whether the inference is at least a fairly possible one, and therefore whether the evidence is admissible. ... It is to be noted that there is a specific hearsay exception for assertions as to declarant's mental condition; and thus an utterance of that particular sort -- e. g., 'I know where the money is,' as distinguished from 'The money is hid in my house,' -- is receivable equally by either of the two avenues, as circumstantial evidence and as a testimonial assertion. ..." Vol. 2, p. 87, sec. 266.
Likewise in point are the following statements in 20 Am. Jur., Evidence, p. 404, sec. 457:
"The hearsay rule does not operate, even apart from its exceptions, to render inadmissible every statement repeated by a witness as made by another person. In some instances, the fact that a statement was made, rather than the facts asserted in thestatement, is material. ... There is no question that where a particular state of mind of a person is a relevant fact, declarations which indicate its existence are admissible as primary evidence, notwithstanding the declarant is available as a witness."
"Assuming that the state of mind of a person at a particular time is relevant, his declarations made at that time are admissible as proof on that issue, notwithstanding they were not made in the presence of the adverse party. It is clear that when evidence of the declarations of a person is introduced solely for the purpose of showing what the state of mind or intention of that person was at the time the declarations were made, the declarations are regarded as acts from which the state of mind or intention may be inferred in the same manner as from the appearance of the person, or his behavior, or his actions generally." (p. 491, sec. 585.) See also p. 312, secs. 335, 336.
So in this case the proof that Sharon made the statements in question before there was any possibility of having what she stated she remembered about the house, and room, and articles therein, from her first contact therewith, affected or changed by what she learned after the discovery and location thereof, at 125 East Johnson street, is material and significant in so far as it tended to show that she had knowledge of certain things in and about the house and room. The existence of those things in fact could not, however, be established by her hearsay statements, but had to be proven by other evidence which was competent. In other words, although proof of her extrajudicial assertions was competent to show such knowledge on her part, it could not be deemed to prove the facts asserted thereby. When, for instance, it was proven that Sharon stated during the evening after the alleged assault that there was a picture of the lady in the room, her statement did not constitute competent evidence to prove that there was such a picture in the room. But her statement was competent as evidence to prove that she had knowledge of such an object in the room and for this purpose the utterance is not inadmissible hearsay, but is a circumstantial fact indicating knowledge on the part of Sharon Schunk at a particular time.
...
By the Court. -- Judgment affirmed. The stay of execution heretofore granted in this case is vacated and the plaintiff in error is remanded to the custody of the sheriff of Dane county for execution of the sentence.
The population of Madison, Wisconsin, in 1945 may have been approximately 250,000.
Why weren't the out-of-court statements (either in the hypothetical problem or in the real-world case Bridges) inadmissible hearsay?
Weren't Sharon's statements to her mother and to the police introduced to show that what she had said to her mother and to the police -- that she had been in an apartment of a certain description and that she had been molested there --, weren't those out-of-court assertions by Sharon (declarant) submitted to show that they were in fact true? (If her out-of-court statements weren't introduced for that purpose, why were they introduced?)
Were Sharon's out-of-court statements admissible to show, not that what she said was true, but to show that she believed certain matters -- i.e., to show that she believed that she had been in an apartment of a certain description and that she had been molested. And isn't it the case that if an out-of-court statement such as Sharon's may be used to show beliefs such as hers, that her beliefs -- her subsequent "state of mind" -- could then be used as circumstantial evidence of what actually happened to her?
But if this is the explanation for the admissibility of Sharon's out-of-court statements -- if this is the reason why they weren't hearsay --, isn't it the case that this argument holds in every case in which out-of-court statements are introduced to show that what the declarant asserted is true? In every such situation the argument can be made that the out-of-court statements are offered to show the declarant's belief, which may then be considered as circumstantial evidence, to show that what the declarant believed or thought actually happened. If this reasoning were considered valid, the hearsay rule would vanish.
If black letter principles do not explain why Sharon's statements weren't considered hearsay, might it be said that the value or values that animate the hearsay rule explain why Sharon's out-of-court statements were admissible? Is it the case that there were special circumstances in Bridges that warranted a detour around the hearsay rule?
If so, what were those special circumstances? In particular, why should Sharon's out-of-court statements -- or the statements of the child in the hypothetical problem above --, why are those out-of-court statements more reliable or trustworthy than ordinary, humdrum, garden variety out-of-court hearsay statements?
Are children inherently more believable than adults?
Are children who report sexual abuse more believable than garden variety hearsay declarants?
Are children generally less believable than adults? Are children's testimonial capacities and qualities -- matters such as memory, ability to narrate, ability to perceive, ability to interpret the evidence of their senses -- generally inferior to simiilar testimonial capacities of adults?
Is it true that children never or rarely lie? Is it true that children never or
rarely lie about sexual abuse? Or is it at least true that children are less prone
than adults to lie or to lie about matters such as sexual activity and abuse?
But perhaps we are barking up the wrong tree.
Should out-of-court statements such as Sharon's be admissible where there is a "remarkable coincidence" between the contents of out-of-court statements and the facts of the matter -- such as the
the "remarkable coincidence" that there was in fact an apartment or house in Madison that matched the one that Sharon described in her out-of-court statements to her mother and the police?
Was there a match between Sharon's description and the apartment or house in which defendant lived?
Assume that in some relevant sense there was a "match." Further assume that Sharon was lying or that her out-of-court statements were untrue for some other reason -- because, e.g., her memory failed. On that assumption how improbable was it that there would be an apartment or house that would match such a mistaken description given by Sharon?
For further discussion of Bridges please see http://tillers.net/hearsay.html
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