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I have wrestled for a long time -- almost certainly too long a time -- with Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945). I eventually concluded that there are at least several possible rationales for the decision of the Wisconsin Supreme Court to approve of the admission of the statements that the seven year old child in that case made to the police. I have drawn three diagrams to illustrate the possible and arguably legitimate lines of reasoning that the court in that case might have (implicitly) followed.

To make the hearsay problem in Bridges much simpler than it really was I have assumed that the child told the police, "I was molested in a room with a blue parrot and a lamp." I then assumed that the police later, quite by accident, stumbled into the defendant's apartment and found that in it was a room with a blue parrot and a lamp.

Figure 1 describes one possible justification or explanation for the Wisconsin court's ruling that the child's statement to the police was admissible.

The rationale depicted in Figure 1 assumes that the policy of the hearsay rule prohibits any reliance by the trier of fact on testimonial attributes, qualities, or capacities such as the child's ability to communicate, veracity, her objectivity, and, possibly, the accuracy of her sensory organs such as her ears and eyes. To represent the impropriety of having the trier rely on judgments about such attributes I have drawn hollow lines or arcs to show that an otherwise logically possible series of inferences is prohibited to the trier. The question then becomes how the child's statement can have any significant probative value on an issue in the case -- e.g., the issue of molestation -- if the trier cannot rely on any favorable judgments it might make about the child's testimonial credentials (such as her veracity). The answer is that the child's statement to the police and her description of the defendant's apartment may show that she was in the defendant's apartment even if -- initially at least -- the jury ignores the child's credibility credentials. The argument that her statement shows defendant's opportunity is essentially the argument that it is improbable (to some substantial or significant degree) that pure accident -- pure chance -- explains the match between the child's description of a room and the actual appearance of the defendant's room. The key task then is to assess the probability that the child's statement would match the appearance of a potential suspect's apartment if in fact the child either (1) lied, (2) misperceived what is in the room, (3) misstated what she thought was in the room, (4) misremembered what was in the room, or (5) because of factors such as emotion or pressure, came to a false conclusion about the sensory experiences she actually had.

The theory depicted in Figure 1 is a possible explanation for the result in Bridges. There are, of course, any number of variables that the Wisconsin court did not discuss but that might increase the probability that the child had not been in the defendant's room even though she gave a description that matched the defendant's room. For example, we have to asses the probability that the child knew the contents of the room without ever having been in it because, for example, some other children or her mother had been in the room and had told her what was there or because she had looked through a window into the defendant's room. We also need to know how rare or infrequent are attributes such as blue parrots. (If they are very common, it is not at all a surprise that a false description of a room would turn out to match some actual room.) We also need to know how many mismatches there were between the child's description and the appearance of the defendant's room because as the number of mismatches increases, the probability of a match (between some ingredients of the description and some attributes of the room) is solely due to chance increases. (The opinion in Bridges is a bit fuzzy about the precise extent of the matches and mismatches, but some language in the opinion does suggest that there were some mismatches.) We also need to know how many rooms the child might have been in. If the Bridges scenario had arisen in Manhattan around the end of World War II (rather than in Madison, Wisconsin), the probability that a match would occur just by chance between the appearance of some person's apartment and an untrue description by the child would greatly increase.

• It should be noted that a judgment about the child's presence in the defendant's room does not settle the question of the defendant's guilt: one must make a separate judgment about how much more probable molestation becomes merely because of the conclusion that the child was in the defendant's apartment. (Remember: the rationale that I am now considering assumes we can trust nothing that the child says except to the extent that a match between her statement and the defendant's apartment shows that it is very improbable that such a match would occur by chance. But this line of reasoning only places the child in the defendant's apartment [at most].)
  

 
An alternative way to explain the result in Bridges is shown in Figure 2:

Here the theory is simply that because the probability of just a chance match is so low, we can now reason backwards to the credibility attributes of the child: if we believe that chance is a very unlikely or improbable explanation for the match, then we are entitled, because of this assessment, to believe that the child's ability to communicate was in fact excellent, her memory was in fact good, etc., and because we now believe this about the child we are justified in following the series of inferences running vertically on the left side of Figure 2; that is, we should now believe her when she says that she was molested. This rationale amounts to the creation of a new hearsay exception when coincidences are such that they indicate that the declarant's testimonial credentials are probably good. If the evidence (the out-of-court statement) is admitted on this theory, the trier should give it much more weight than in the case depicted in Figure 1.

Figure 3 (see below) adds little: it simply suggests that the Wisconsin Supreme Court may have had both rationale #1 and rationale #2 in mind: that is, the statement both makes molestation more probable simply because the making of the statement makes it probable that the child was in the defendant's room AND the statement makes molestation more probable because the match, which (arguably) probably cannot be explained by chance, suggests that we should believe the child's story because, knowing or believing that she was in fact in defendant's room, we now have good reason to trust the child's memory, veracity, etc.

Finis

 

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