NELSON v. FERREY

No. 88-C-35

688 F. Supp. 1304 (1988) | Cited 0 times | E.D. Wisconsin | June 10, 1988

DECISION AND ORDER

Brian Nelson, the petitioner in the above-captioned action,is a prisoner in state custody who is seeking a writ of habeascorpus pursuant to 28 U.S.C. § 2254. After a trial by jury inthe Racine County [Wisconsin] Circuit Court, Nelson wasconvicted of one count of first degree sexual assault inviolation of section 940.225(1)(d) of the WisconsinStatutes.1 He is currently serving a five year sentence atthe Oakhill Correctional Institute where he is in the custodyof respondent Catherine Ferrey. This court, which is located inthe district where Nelson was convicted, is empowered toconsider the petition under 28 U.S.C. § 2241(d).

I. STATE PROCEEDINGS

Following the denial of his posttrial motions in statecourt, Nelson challenged his conviction in the Wisconsin Courtof Appeals which affirmed the trial court in an unpublisheddecision. See State v. Nelson, 131 Wis.2d 591, 393 N.W.2d 798(Ct.App. 1986), aff'd, 138 Wis.2d 418, 406 N.W.2d 385 (1987).The Wisconsin Supreme Court then granted review and confirmedthe conviction in a 4-3 decision. See State v. Nelson,138 Wis.2d 418, 406 N.W.2d 385 (1987). Wisconsin's Supreme Courtrecounted the following facts leading up to Nelson's convictionand sentencing:

"In April of 1984 the defendant, Brian Nelson, was chargedwith one count of intentionally and feloniously having sexualcontact with a person twelve years or younger. The allegedvictim of the sexual assault was his daughter, T.N., who wasborn June 7, 1980. At trial the state presented no eyewitnesstestimony and did not call T.N. to testify. Instead, theevidence of sexual assault and the evidence linking BrianNelson to the sexual assault were presented primarily throughthe testimony of T.N.'s mother, Susan Nelson,T.N.'s treating psychologist, Dr. McLean, and a secondpsychologist, Dr. Silberglitt.

In April of 1982, Brian and Susan Nelson were divorced.Susan Nelson was granted custody of their daughter, T.N., andthe defendant was granted reasonable visitation rights.Shortly after the divorce was finalized, Mitchell Blada movedin with Susan Nelson and T.N. Susan Nelson testified at trialthat beginning in August, 1983, T.N. became apprehensive andat times hysterical when the defendant came to pick her up forvisitation. According to Susan Nelson, after a visit with thedefendant in early August, 1983, T.N. begged not to return toher father's residence. Susan Nelson testified that byOctober, when she would inform T.N. that T.N. was going to herfather's house, T.N. would go `berserk.' She would cry andscream, and beg not to go. At this point visitationsessentially stopped.

"At Christmas, visitation was resumed without incident.However, Susan Nelson testified that shortly thereafter T.N.attempted to pull her mother's pants down while playing a gameof tag. According to Susan Nelson, T.N. indicated that daddyhad taught her to play tag in this manner. Susan Nelson alsotestified that on January 20, 1984, T.N. insisted that apicture of Michael Jackson be brought into the bathroom towatch her. T.N. pointed at her vagina and said that MichaelJackson doesn't look like this and `daddy doesn't look likethis either.' Susan Nelson testified that, when she asked T.N.how she knew this, T.N. responded, `I pulled his underpantsdown.' When Susan Nelson told T.N. that it must have been anaccident, T.N. insisted that daddy told her to pull down hisunderpants and that it was alright because Cheryl, thedefendant's second wife, was not at home.

"Susan Nelson became suspicious of possible sexual abuse andcontacted Dr. McLean to discuss whether there was apossibility of sexual abuse. Susan had previously been givenDr. McLean's name when she called the court to find out if she`had to force' T.N. to visit the defendant.

"Dr. Donald McLean, a clinical psychologist, was called bythe state and was qualified by the court as an expert witnessin the field of psychology. Dr. McLean's notes had beenprovided to the defense prior to trial. Defense counsel,outside the presence of the jury, objected on hearsay groundsto Dr. McLean's anticipated testimony concerning statementsmade by T.N. In explaining the objection, defense counselstated: `Now, the basic problem with this, as I see it, isthat there is a witness then to whom we are denied a right ofconfrontation.' The trial court ruled that the statements madeby T.N. were admissible under sec. 907.03, Stats.,2 sincethey formed the basis of an expert opinion. The trial courtdid not rule on the confrontation issue, and defense counseldid not repeat the objection.

"Dr. McLean testified to a series of fifty-nine evaluationand treatment sessions with T.N. from January 25, 1984, toSeptember 11, 1984. The treatment sessions were generallyconducted in Dr. McLean's play therapy room, although Dr.McLean occasionally spoke with T.N. in his regular office. Theplay therapy room was set up with games, puzzles, coloringbooks, dolls, and other toys which allow a child to expressoneself through play.

"Dr. McLean testified that T.N. had revealed at a number ofsessions that she had touched daddy where he went to thebathroom. According to Dr. McLean, he placed anatomicallycorrect male and female dolls in the play therapy room onFebruary 27, 1984. Dr. McLean testified that at the February28 session, T.N. placed the female doll's face against thegenital area of the male doll and said, `she gets mud on herface.' Upon being asked what she meant, T.N. replied, `itswhite and sticky.' Dr. McLean testified that in a subsequentsession T.N. told him that her father warned her not to talkabout the incident and also told her to say that Susan'sboyfriend, Mitch, did it.

"Dr. McLean related the following conversation with T.N. `Doyou pull someone's underpants down and touch him where he goesto the bathroom, and the child said yes . . . and I said, wellwho is it that you touch where he goes to the bathroom, andthe child answered Mitch. And I said you told me it was Daddy.Was it Mitch or Daddy, and the child said Daddy. And I saidthen why did you say Mitch, and she said it was Mitch, and Isaid then it was not Daddy. She said it was Daddy, then Mitch,then Daddy, and she answered with he told me to say it wasMitch. I said who told you to say it was Mitch. She saidDaddy.' Dr. McLean further testified that, when he asked T.N.if she would only tell the truth to anyone who talks to her,she responded, `I don't have to tell the truth.'

"Dr. McLean also testified that throughout the treatmentT.N. was extremely anxious and reluctant to talk about theincident and that at times T.N. would appear depressed andemotionally drained.

"Dr. Burton Silberglitt, a clinical psychologist, was alsocalled by the state as an expert witness. The defense raisedno objection to this testimony which was based on one sessionconducted on March 27, 1984. Dr. Silberglitt testified thatT.N. tried to ignore discussing her father because it was`discomforting to her and frightening to her and traumatic toher to get into this.' According to Dr. Silberglitt, when hebrought up T.N.'s father, the child stated that she `playedwith his thing that he put in the toilet.' Dr. Silberglittfurther testified that T.N. was very agitated and that it washis recommendation that T.N. engage in therapy with aqualified therapist.

"Mary Anne Jensen, a social worker for Racine County, wasalso called to testify. She testified that on January 29,1984, T.N. drew a picture which depicted herself and herfather. The pictures were marked as exhibits and shown to thejury. Mary Anne Jensen offered no explanation of the drawing'ssignificance. However, in the opening statement to the jury,the state told the jury that the picture drawn by T.N.depicted the defendant as an erect penis. The defense raisedno objection to this statement.

"At the close of the state's case, the defense made a motionto dismiss, and argued, first, that the hearsay statements ofT.N. as related by the psychologists were inadmissible becauseno expert opinion had been offered and, second, thatdefendant's right of confrontation had been violated becausethe state had not shown that T.N. was unavailable as awitness. The state responded that the testimony of twopsychologists demonstrated that T.N. had suffered a severetrauma because of her sexual experiences with her father, thatthe trauma had not been cured, and that T.N. was `effectivelyunavailable' to testify at trial. Defense counsel also arguedthat the defendant's right to confrontation had been violatedbecause the state did not suggest or consider the possibilityof videotaping the child in her home, the psychologist's playroom, or in some other noncourtroom setting.

"The trial court, in denying the motion to dismiss, ruledthat the testimony of Dr. McLean as to what T.N. said duringthe therapy sessions was admissible hearsay. The trial courtalso ruled that the testimony made it patently clear that T.N.could not have testified due to her age and the potentialtrauma. Based on the testimony at trial, the court stated: `Idon't think the child would have been available in any sensefor what we would determine to be examination or appearance incourt or even by videotape or any other electronic means.'

"The defense then presented its case, including thetestimony of two psychologists, Dr. David Nichols and Dr.Walter McDonald. Dr. Nichols testified that at the defendant'srequest he interviewed T.N. on March 16, 1984. Although Dr.Nichols testified that the interview revealed very littleconcerning the facts of the alleged sexual assault, Dr.Nichols later testified that T.N. told him that she didnot like to visit her father and that she gets white mud onher face. According to Dr. Nichols, T.N. repeatedly eitherdenied sexual contact or stated that she did not want to talkabout it. Dr. Nichols concluded that some sexual abuse hadoccurred and testified that he had made a recommendation tothe court that there should be no further visits with thedefendant.

"Dr. McDonald testified that he had examined the clinicalnotes of Dr. McLean concerning the treatment of T.N. todetermine if there was an alternative explanation for T.N.'sbehavior in therapy. According to Dr. McDonald, T.N.'sincreased sexual preoccupation throughout the therapy may beexplained by her continual and repeated exposure to theanatomically correct dolls. Dr. McDonald further testifiedthat his explanation was not necessarily more valid than thatexplanation which equally well fit the facts as they werepresented to him.

"On September 21, 1984, the defendant was found guilty offirst-degree sexual assault. A judgment of conviction wasentered, and the defendant was sentenced to five years in theWisconsin State Prison." Id. at 422-28, 406 N.W.2d at 386-89.

The state supreme court then outlined the posttrialproceedings in the trial court and in the court of appeals:

"On January 28, 1985, the defendant filed postconvictionmotions requesting that the verdict be set aside and a newtrial ordered. The motions alleged numerous errors, includingthat the court erred in admitting into evidence the hearsaystatements of T.N. through the testimony of Dr. McLean and Dr.Silberglitt and that the use of such evidence denied him hisright of confrontation under the sixth and fourteenthamendments of the United States Constitution and Article I,sec. 7 of the Wisconsin Constitution. On March 6, 1985, thetrial court heard oral argument on these motions and expressedconcern that the defendant's right to confront his accuser hadbeen violated at trial by the court's failure to make a rulingabout the unavailability of T.N. No ruling was made, butanother hearing was set.

"In response to the trial court's comments, the state movedto supplement the record by means of an evidentiary hearing toestablish that, at the time of trial, T.N. was an unavailablewitness. The defendant objected to this procedure, the issuewas briefed, and on April 18, 1985, the trial court grantedthe state's motion.

"The only witness at the hearing was Dr. McLean who wascalled to testify by the state. He testified that T.N. wouldnot have responded to direct questioning about the allegedsexual abuse and that such questioning could have traumatizedher. In addition, Dr. McLean testified that T.N. was veryfearful of her father and that the presence of her fatherwould have a very negative effect on her. Dr. McLean agreedthat a videotape could have been made of the therapy sessions,but noted that a large number of sessions would have had to betaped because T.N. volunteered information only graduallythroughout the course of therapy. The defendant elected not topresent testimony from his own psychological experts who hadtestified at trial. According to the defendant, the lapse oftime between the trial and the hearing denied him the abilityto present any meaningful evidence. The trial court concludedthat, because of the likelihood of trauma and the age of T.N.,T.N. was unavailable to testify at trial.

"The court of appeals, in a per curiam opinion, affirmed thejudgment of the trial court. According to the court ofappeals, the testimony of Dr. McLean was properly admittedunder sec. 908.03(4), Stats. — statements made for the purposeof medical diagnosis or treatment. The court further concludedthat T.N. was unavailable to testify and that the statements ofthe experts were reliable, thus satisfying the two-prongedconfrontation clause analysis outlined in Ohio v. Roberts,448 U.S. 56, 65-66 [100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597](1980), and State v. Bauer, 109 Wis.2d 204, 210-11,325 N.W.2d 857 (1982)."

Id. at 428-29, 406 N.W.2d at 389.

In seeking review by the Wisconsin Supreme Court, Nelsonraised three issues:

1. Did the trial court err in admitting the out-of-court statements of the alleged victim to two psychologists, Dr. McLean and Dr. Silberglitt?

2. If the out-of-court statements were properly admitted as exceptions to the hearsay rule, did the admittance of these statements violate the defendant's right of confrontation under the United States and Wisconsin Constitutions?

3. Did the trial court err in admitting into evidence drawings made by the alleged victim after the prosecutor in the opening statement told the jury that the drawings depicted the defendant as an erect penis?

The Wisconsin Supreme Court granted Nelson's petition forreview and a divided (4-3) Court held that the out-of-courtstatements were properly admissible as exceptions to thehearsay rule under section 908.03(4) of the Wisconsin Statutes— statements made for the purposes of medical diagnosis ortreatment;3 that there was no violation of theconfrontation clause of the State or federal constitution; and,that the admittance into evidence of the drawings constitutedharmless error. Id. at 422, 406 N.W.2d at 386.

II. COLLATERAL REVIEW

A. Scope of Review

After his state court remedies proved unavailing, Nelsonfiled his petition for a writ of habeas corpus in this court.The sole issue raised by his petition is whether he was deniedhis Sixth Amendment right to confront T.N., the allegedvictim, at trial. The respondent concedes that Nelson hasexhausted his state court remedies as to this issue,see Response to Petition for a Writ of Habeas Corpus at ¶ 3;and, based on the record of the state proceedings, the courtfinds that the petitioner has met his burden of demonstratingthat he has met the prerequisites for relief, including fairlypresenting the substance of his federal claim to the statecourts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509,512, 30 L.Ed.2d 438 (1971).

The ultimate determination of whether the admission of thehearsay statements violated Nelson's Sixth Amendment right toconfrontation is a question of law which involves theapplication of legal principles to historical facts.4See Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050,1055 (6th Cir. 1983), cert. denied, 464 U.S. 1071, 104 S.Ct.980, 79 L.Ed.2d 217 (1984); United States ex rel. Scarpelli v.George, 687 F.2d 1012, 1015 (7th Cir. 1982), cert. denied,459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). In habeascorpus proceedings federal courts must accord a presumption ofcorrectness to state court findings of basic, primary orhistorical facts and to subsidiary facts underlying ultimateconclusions, provided that the conditions of28 U.S.C. § 2254(d)5 are met.See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71L.Ed.2d 480 (1982); Townsend v. Sain, 372 U.S. 293, 309 n. 6,83 S.Ct. 745, 755-56 n. 6, 9 L.Ed.2d 770 (1963); United Statesex rel. Savory v. Lane, 832 F.2d 1011, 1019 (7th Cir. 1987).This rule applies equally to findings of trial courts andappellate courts. See Sumner v. Mata, 449 U.S. 539, 545-47, 101S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981) (per curiam). Itapplies as well to the inferences that can be deduced from thefacts. See Marshall v. Lonberger, 459 U.S. 422, 435, 103 S.Ct.843, 851, 74 L.Ed.2d 646 (1983). However, the legal conclusionsdrawn by state courts from the historical facts on the federalconstitutional question raised are subject to independentreview. See Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct.1708, 1715, 64 L.Ed.2d 333 (1980). In the same fashion, mixedquestions of law and fact are subject to independent federalreview. See United States ex rel. Savory, 832 F.2d at 1018;Nash v. Israel, 707 F.2d 298, 301 (7th Cir. 1983). Where thequestion is mixed, the federal court may give a differentweight to the facts as found by the state court and may reach adifferent conclusion in light of the legal standard. See Sumnerv. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d480 (1981).

When, as here, the issue involves a federal constitutionalright, federal law must be applied. See Boykin v. Alabama,395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).Federal habeas review can cover only violations of theConstitution, laws or treaties of the United States. SeeShillcutt v. Gagnon, 827 F.2d 1155, 1158 (7th Cir. 1987). Thiscourt cannot entertain an argument urging that Wisconsin courtsmerely misconstrued state rules of evidence. Id.

B. Supreme Court Treatment of the Confrontation Right

The Sixth Amendment to the United States Constitutionguarantees that in all criminal prosecutions the accused shallenjoy the right "to be confronted with the witnesses againsthim." This right is secured for defendants in state as well asfederal criminal proceedings under Pointer v. Texas,380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). If literallyapplied, the Confrontation Clause would abrogate virtuallyevery hearsay exception, but courts have long rejected thisapproach as unintended and too extreme. See, e.g., Mattox v.United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed.409 (1895). Consequently, there has been a continuing struggleto define the relationship between the Confrontation Clause andthe hearsay rule with its many exceptions. Because theinterpretation of this relationship and the questions leftunanswered by recent decisions are central to the issues raisedin thiscase, a brief review of Confrontation Clause law is in order.

Little is known about the Framers' intent in providing theConfrontation Clause. See, e.g., Read, New Confrontation —Hearsay Dilemma, 45 S.Cal.L.Rev. 1, 6 (1972) ("The exact intentof the framers of the Constitution in providing [theconfrontation clause] is probably undiscoverable."). However,it is generally agreed that the particular vice that gaveimpetus to the Confrontation Clause was the practice of tryinga defendant on "evidence" which consisted solely of ex parteaffidavits or depositions secured by the examining magistrates,thus denying the defendant the opportunity to challenge hisaccuser in a face-to-face encounter in front of the trier offact. See California v. Green, 399 U.S. 149, 156, 90 S.Ct.1930, 1934, 26 L.Ed.2d 489 (1970). Accordingly, in an earlyline of cases involving the admission of former testimony, theSupreme Court's decisions turned on whether there had been anopportunity for cross-examination prior to or during trial.See, e.g., Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337,39 L.Ed. 409 (1895); Reynolds v. United States, 98 U.S. (8Otto) 145, 25 L.Ed. 244 (1878).

Then, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20L.Ed.2d 255 (1968), in reversing the denial of a writ of habeascorpus for a defendant convicted of armed robbery, the Courtconcluded that the right to confrontation is "basically a trialright" which "includes both the opportunity to cross-examineand the occasion for the jury to weigh the demeanor of thewitness." Id. at 725, 88 S.Ct. at 1322. The principal evidenceagainst the petitioner had consisted of the reading of atranscript of the preliminary hearing testimony of a witnesswho, by the time of trial, was incarcerated in a federal prisonin Texas. See Id. at 720, 88 S.Ct. at 1319. Even though thepetitioner had had an unexercised opportunity to cross-examinethe witness at the preliminary hearing, the Court held that thedefendant's confrontation right had been violated by admittingthis testimony because the prosecution had made no effort toproduce the declarant at trial to be cross examined and to givethe jury an opportunity to weigh his demeanor. See Id. at724-26, 88 S.Ct. at 1321-22. The Court explained that:

[W]e would reach the same result on the facts of this case had petitioner's counsel actually cross-examined Woods [the incarcerated witness] at the preliminary hearing . . . A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.

Id. at 725-26, 88 S.Ct. at 1322 (footnote and citationomitted). Rejecting the state's argument that the witness' mereabsence from the jurisdiction was a sufficient ground todispense with confrontation, the Court emphasized that: "[A]witness is not `unavailable' for purposes of the . . .exception to the confrontation requirement unless theprosecutorial authorities have made a good faith effort toobtain his presence at trial." Id. at 724-25, 88 S.Ct. at1321-22.

In the 1970 case of California v. Green, 399 U.S. 149, 90S.Ct. 1930, 26 L.Ed.2d 489 (1970), the prosecution offeredevidence of exculpatory statements that a prosecution witnessmade to a police officer prior to trial. See Id. at 151, 90S.Ct. at 1931. The Court held that these hearsay statementscould not be received in evidence unless the witness was ableto be cross-examined regarding them at trial. See Id. at 164,90 S.Ct. at 1938. In explaining its reasoning, the Courtenumerated the underlying purposes of the Confrontation Clause,pointing out that confrontation:

(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth"; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

Id. at 158, 90 S.Ct. at 1935 (footnote omitted).

Later in that same year the Court shifted the emphasis fromface-to-face confrontation to practicality and truth-finding,saying:

The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that "the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement."

Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d213 (1970) (plurality) (quoting California v. Green,399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970)). See alsoTennessee v. Street, 471 U.S. 409, 415, 105 S.Ct. 2078, 2082,85 L.Ed.2d 425 (1985). In Dutton v. Evans, 400 U.S. 74, 91S.Ct. 210, 27 L.Ed.2d 213 (1970), a witness had testified to abrief conversation about the defendant Evans that the witnesshad had with a fellow prisoner in the Atlanta Penitentiary. TheCourt found no confrontation violation in the admission of thishearsay even though the declarant was not cross-examined andthe prosecution made no showing that he was unavailable. SeeId. at 87-89, 91 S.Ct. at 219. The Court reasoned that thishearsay testimony could be admitted because it was of"peripheral significance" and was neither "crucial" to theprosecution nor "devastating" to the defendant. Id. at 87, 91S.Ct. at 219.

Ten years later in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.2531, 65 L.Ed.2d 597 (1980), the Supreme Court ruled that theadmission of preliminary hearing testimony is constitutionallypermissible only if the proponent establishes that: (1) thedeclarant is unavailable, and (2) the statement containssufficient indicia of reliability to ensure accuracy in thefactfinding process. See Id. at 65-75, 100 S.Ct. at 2538-44.Although Roberts dealt with prior testimony, lower courts beganto apply both prongs of the Roberts test to all types ofhearsay. For instance, in the Nelson case the Wisconsin courtsused the Roberts test to determine whether the admission oftestimony under the hearsay exception for "statements forpurposes of medical diagnosis or treatment" contravenedNelson's Sixth Amendment confrontation right.

Then, in 1986, the United States Supreme Court issued itsopinion in United States v. Inadi, 475 U.S. 387, 106 S.Ct.1121, 89 L.Ed.2d 390 (1986), in which it may have sharplycurtailed the necessity of meeting Roberts' unavailabilityrequirement. In Inadi, the prosecutor offered the out-of-courtdeclarations (taped conversations) of an unindictedco-conspirator who failed to appear at trial — allegedly due tocar trouble. Id. at 390, 106 S.Ct. at 1124. The trial courtadmitted the statements under Federal Rule of Evidence801(d)(2)(E). In affirming this ruling (and reversing the ThirdCircuit), the Supreme Court declined to require a showing of adeclarant's unavailability as a prerequisite to the admissionof co-conspirator statements. Id. at 400, 106 S.Ct. at 1129.Cautioning that "Roberts should not be read as an abstractanswer to questions not presented in that case," Id. at 392,106 S.Ct. at 1125, the Court explained that:

Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. . . . Roberts simply reaffirmed a longstanding rule. . . . that applies unavailability analysis to prior testimony. . . . Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.

Id. at 394, 106 S.Ct. at 1126. The Court explained that, insome situations, the truth-determining function of theConfrontation Clause can sometimes be better served without apersonal examination of a declarant in front of the jury. TheCourtbelieved that, because co-conspirator statements "are madewhile the conspiracy is in progress, such statements provideevidence of the conspiracy's context that cannot be replicatedeven if the declarant testifies to the same matter in court."Id. at 395, 106 S.Ct. at 1126. By limiting Roberts to casesinvolving prior testimony sought to be admitted under FederalRule of Evidence 804 (or an equivalent state evidentiaryrule),6 the Court implied that a showing that a witness isunavailable is not required by the Confrontation Clause foradmitting any hearsay other than prior testimony. A defendantwould have to look to the law of evidence to find a requirementthat a non-testifying declarant be found unavailable. Evidencelaw already demands that Rule 804 declarants be unavailablebefore hearsay is admitted, but Rule 803 allows the admissionof hearsay whether or not the declarant is available.7

The language of the Inadi opinion cast doubt on the generalapplication of the Roberts unavailability prong to hearsayother than prior testimony. See Inadi, 475 U.S. at 394, 106S.Ct. at 1126. Subsequently, however, in Lee v. Illinois,476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the Court heldthat a co-defendant's hearsay confession inculpating adefendant was inadmissible under the Confrontation Clausebecause it was unreliable. Before analyzing the reliability ofthe co-defendant's confession, both the majority and thedissent in Lee assumed that the unavailability prong of Robertshad to be satisfied. Id. at 539 & 549 n. 2, 106 S.Ct. at2061 & 2067 n. 2 (Blackmun, J., dissenting). The fourdissenting justices recommended that the necessity for anunavailability finding should be determined on a case-by-caseor rule-by-rule basis.8

In the wake of the uncertainty left by the Inadi decision andthe lack of further interpretation in subsequent Supreme Courtcases, the other federal courts have not rushed to jettison theunavailability requirement. Some courts have managed to avoidthe issue by finding other grounds for making a confrontationdecision. See, e.g., United States v. Vretta, 790 F.2d 651 (7thCir.) (impact of Inadi need not be decided because thedeclarant of the hearsay detailing prior threats was thedeceased victim and was obviously unavailable)9, cert.denied, 479 U.S. 851, 107 S.Ct. 179, 93 L.Ed.2d 115 (1986).Other courts have proceeded to rule on unavailability — just incase the requirement still applies. See, e.g., United States v.Bernard S., 795 F.2d 749 (9th Cir. 1986).

Courts have been willing to dispense with the unavailabilityrequirement or to rule that the lack of an unavailabilityfindingis harmless error in cases where: (1) the hearsay is offeredunder a business record exception; or (2) the hearsaytestimony is neither crucial to the prosecution nordevastating to the defendant; or (3) any utility inconfronting the declarant would be remote. See, e.g., BernardS., 795 F.2d at 756 (assuming that the unavailability analysisof Roberts applies, the admission of medical records without afinding that the doctor who entered the information on therecords was unavailable was harmless because the evidence wasof peripheral significance to the case).10

At least one appellate court has adopted the Inadi Court'ssuggestion that a defendant can obviate a confrontation problemby exercising his rights under the Compulsory Process Clause tocall an absent declarant as his own witness. See Inadi, 475U.S. at 397, 106 S.Ct. at 1127. In Reardon v. Manson,806 F.2d 39 (2d Cir. 1986), cert. denied sub nom. Reardon v. Lopes, ___U.S. ___, 107 S.Ct. 1903, 95 L.Ed.2d 509 (1987), the courtadmitted a toxicologist's expert testimony concerninglaboratory tests without requiring a showing that the assistantchemists who helped perform the tests were unavailable. Thecourt reasoned that:

[A]t least in those borderline cases where the likely utility of producing the witness is remote, the Sixth Amendment's guarantee of an opportunity for effective cross-examination is satisfied where the defendant himself had the opportunity to call the declarant as a witness.

Id. at 42.

C. Nelson's Confrontation Right

This uncertainty over the continuing viability of theRoberts test impacts on Nelson's petition for habeas corpus,because the central issue the petitioner raises is whether hisconfrontation rights were violated by the admission of theout-of-court statements of the alleged victim, T.N., who didnot testify at trial. As explained above, the state courts usedboth prongs of the Roberts test to assess whether admittingT.N.'s statements under a hearsay exception violated Nelson'sSixth Amendment Rights.11 See State v. Nelson,[131 Wis.2d 591, 393 N.W.2d 798 (table)] No. 85-1125-CR, slip op. at3 (Wis. Ct. App. April 23, 1986), aff'd, 138 Wis.2d 418,437-46, 406 N.W.2d 385, 393-396 (1987).

1. Hearsay Exception

When faced with an objection to the admission ofout-of-court statements, a court's first task is to determinewhether the statements are hearsay and, if so, whether theyare nevertheless admissible as an exception to the ruleagainst hearsay. At Nelson's trial the state called as itswitness Dr. Donald McLean, a clinical psychologist who wasqualified by the court as an expert in the field ofpsychology. See Brief of Respondent at Appendix R. 20, p. 12.Aware that Dr. McLean would attempt to testify to statementsmade to him by T.N., Nelson's counsel interposed hearsay andconfrontation objections. Id. at pp. 14-15. The court overruledthe objections and admitted T.N.'s statements to Dr. McLeanunder section 907.03 of the Wisconsin Statutes, which providesthat:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Wis.Stat. § 907.03. The Wisconsin Court of Appeals agreed withthe result, but not the basis for this ruling. See State v.Nelson, [131 Wis.2d 591, 393 N.W.2d 798 (table)] No.85-1125-CR, slip op. at 2-3 (Wis. Ct. App. April 23, 1986),aff'd, 138 Wis.2d 418, 406 N.W.2d 385 (1987). The appellatecourt held that the hearsay statements could more properly havebeen admitted under section 908.03(4) of the WisconsinStatutes, which provides that:

The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:

(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Wis.Stat. § 908.03(4).

The Wisconsin Supreme Court affirmed that the hearsaytestimony of Dr. McLean was admissible under the section908.03(4) exception. See State v. Nelson, 138 Wis.2d 418,431-35, 406 N.W.2d 385, 390 (1987). In arriving at thisconclusion the court considered a number of factors:

In the present case a number of factors support a finding that T.N. was aware that her statements were being used as a basis for medical diagnosis or treatment. T.N.'s sessions with Dr. McLean, although mainly conducted in a play therapy room, were scheduled and conducted in a manner consistent with the provision of diagnosis and treatment. Dr. McLean had a waiting room in which T.N. and her mother would await their regularly scheduled appointments. T.N. was aware that she saw Dr. McLean on an appointment basis and that he was not her peer. Very early in the treatment, Dr. McLean made it clear to T.N. that he was an authority figure, not a playmate. T.N. began her treatment with Dr. McLean by undergoing a series of tests and evaluations. Although most of the sessions were conducted in a play therapy room, T.N. would occasionally sit and speak with Dr. McLean in his formal office. T.N. was described as a very intelligent child. We conclude that T.N. was aware that she was being observed, with a goal towards treatment.

Furthermore, there is nothing in the record to indicate that T.N.'s motive in making the statements to Dr. McLean and Dr. Silberglitt was other than as a patient seeking treatment. It is always difficult for a court to determine whether a very young child completely understands the context in which information is sought from that child. However, we do not believe that, because a child is only three or four years of age at the time he or she goes to a doctor, the child is unable to comprehend that the child is involved in the process of receiving diagnosis or treatment. A child is no less aware of the existence of emotional or mental pain than physical pain and, thus, is equally aware of the necessity and beneficial nature of therapy.

Id. at 431-32, 406 N.W.2d at 390-91. Although the courtrecognized that the child was merely four years of age, itconcluded "that such a child also understands that statementsmade to a psychologist will be used by the psychologist to easethe emotional or psychological injuries of the child." Id. at432, 406 N.W.2d at 391. Finally, the court held that, while thegeneral rule is that statements as to who was at fault areordinarily inadmissible under the exception for statements madefor purposes of diagnosis or treatment, the treatment of achild abuse victim often depends upon uncovering the identityof the abuser and separating the assailant from thevictim.12 Based on this reasoning, the courtconcluded "that T.N.'s identification of the defendant as theassailant was a necessary element for those charged withdetermining appropriate diagnosis or treatment. Accordingly wehold that Dr. McLean's testimony as to the hearsay statementsmade by T.N. was properly admitted into evidence."Id. at 434, 406 N.W.2d at 391-92.

This evidentiary ruling would be reviewable by this courtonly for an abuse of discretion which resulted in a denial ofthe fundamental fairness of the trial proceedings guaranteedby the Due Process Clause of the Fourteenth Amendment. SeeWoodruff v. Lane, 818 F.2d 1369, 1373 (7th Cir. 1987); Dres v.Campoy, 784 F.2d 996, 998 (9th Cir. 1986). The petitioner hasraised no due process challenge in his habeas corpus action, sothis court need only review the question of whether admittingT.N.'s statements violated constitutional Confrontation Clausestandards.

2. Unavailability

At trial, when Nelson's counsel made a Confrontation Clauseobjection to admitting T.N.'s statements through Dr. McLean'stestimony, the prosecution made no contemporaneous attempt toshow that T.N. was unavailable, nor did the trial judgeimmediately address the constitutional objection. When theobjection was renewed in connection with the defendant'smotion to dismiss at the close of the state's case, the courtfound that the child was not "available in any sense for whatwe would determine to be examination or appearance in court oreven by videotape or any other electronic means." Brief ofRespondent at Appendix R.21, p. 28. Ruling that the testimonywas relevant, properly admitted and not unfairly prejudicial,the court denied the motion. Id. at p. 29.

In his postconviction motions the defendant again raised theconfrontation issue. The court, dissatisfied with its midtrialruling because Nelson had not been given an opportunity torebut the state's evidence that T.N. was unavailable,scheduled a hearing on the confrontation issue. Despite thedefendant's objection that conducting an unavailabilityhearing some eight months after trial was not "meaningful,"the court proceeded to hear the testimony of the sole witness,Dr. McLean. At the conclusion of this hearing, the court,emphasizing that the child was merely four years old, ruledthat:

I don't think that, and as the doctor's [sic] testified to, I don't believe that there could ever have been in any way any meaningful testimony appropriated from the stand. In fact, I think it's quite obvious that she chose not to say anything. Therefore, I do find both, on those basis — First, I don't believe that she would have testified. She's unavailable on that basis. Secondly, that the trauma that it would cause her. I don't think we're in the midst of trying cases, [to inflict] injury on victims of crimes especially victims who are three or four years old. Then they'd have to compound the injurys that's already been done to them by the action compounded by making them come into court and testify. I do declare that the child was unavailable.

Brief of Respondent at Appendix R.26, p. 27-28.

The Wisconsin Court of Appeals was satisfied that the trialcourt had properly found that T.N. was unavailable to testifyat trial. See State v. Nelson, [31 Wis.2d 591, 393 N.W.2d 798(table)] No. 85-1125-CR, slip op. at 4 (Wis. Ct. App. April 23,1986), aff'd, 138 Wis.2d 418, 406 N.W.2d 385 (1987). The courtreasoned that the postconviction hearing offered a meaningfulopportunity to challenge the historical fact of T.N.'sunavailability and that, even if a new trial were granted, theevidence would be substantially the same, given the fact thatno witness testified for the defendant that T.N. was available.The court then ruled that there was sufficient evidence in therecord showing that T.N. would have been "traumatized," ifrequired to testify and that she could have "given nomeaningful testimony." Id. at 6-7.

Wisconsin's Supreme Court affirmed the unavailability rulingon similar grounds. The majority of the court concluded thatthe posttrial unavailability hearing was both adequate andmeaningful, reasoning that:

We agree with the defendant's contention that the trial court's ruling on his motion to dismiss at the close of the state's evidence did not satisfy the confrontation clause. It is clear that defendants must be given the opportunity to rebut the prosecution's argument that a party is unavailable. However, we conclude that the retrospective inquiry at the post-conviction hearing adequately accommodated the defendant's right to rebut the state's position.

Id. at 436 n. 6, 406 N.W.2d at 394 n. 6.13 The court notedthat only one witness — Dr. McLean — was called to testify onthe unavailability issue, even though the defendant could havecalled his own witnesses. The court then ruled that: "Thelikelihood that any questioning of T.N. would cause severetrauma, as well as the uncertain efficacy of such questioning,leads us to conclude that T.N. was unavailable to testify attrial." Id. at 443, 406 N.W.2d at 395.

This court does not agree that the evidence in the recordsupports the conclusion that T.N. was unavailable to testifyat trial. Without the benefit of any in-court or out-of-courtobservation of T.N. by the court or the jury, the Wisconsincourts merely noted that she was four years old and that shehad been seen by a psychologist. Based on these facts and theopinions elicited from the psychologist, they then deducedthat requiring her to testify would lead to further trauma andthat, in any case, her testimony would be of little value.

As explained above, the United States Supreme Court hasdecreed that: "[A] witness is not `unavailable' for purposesof the . . . exception to the confrontation requirement unlessthe prosecutorial authorities have made a good-faith effort toobtain [her] presence at trial." Barber v. Page, 390 U.S. 719,724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968). There isnothing in the Nelson record to show that the state made anyeffort, good faith or otherwise, to obtain the presence of T.N.at trial. When a Confrontation Clause objection is made, itshould alert the state to the need for presenting proof of thedeclarant's unavailabilty. See United States v. Dorian,803 F.2d 1439, 1448 (8th Cir. 1986) (Bright, Senior J.,dissenting). Before calling Dr. McLean to the stand, the statemade no effort to establish unavailability, but when thedefendant's Confrontation Clause objection was renewed at theclose of the state's case, the state merely pointed to T.N.'sage and to the testimony of Dr. McLean and anotherpsychologist, Dr. Silberglitt, and argued that:

Anyway, in the course of the 59 sessions that Doctor McLean has testified to, this child is undergoing tremendous trauma as a result of what happened between herself and her father. To this day she is still under the trauma. It has not been successfully cured, so to speak. There would have been no possibility, and I think this record makes it clear that that witness is effectively unavailable, not only because of her age, but because of the trauma that was induced and the trauma that obviously would result by making her face the defendant and testify. Furthermore, the doctors have testified to their evaluations. They are expert psychologists. They are both psychologists who are expert in the field of children, and therapy and examinations of children and evaluations of children. Certainly they can express their opinion as to what the child is getting across and statements that the child has made. I don't think that in any way invades the province of the jury. That's what experts are for, to render opinions, and I don't think that this case law prohibits what these psychiatrists have testified to.

Brief of Respondent at Appendix R 21, p. 26-27. Thesearguments suggest that T.N. might not have been an effectivewitness, but it does not show that any effort was made by thestate to produce T.N. Age is an aspect of competency ratherthan availability. See, e.g., Kentucky v. Stincer, ___ U.S.___, 107 S.Ct. 2658, 2660, 96 L.Ed.2d 631 (1987). However,under Wisconsin law every person is presumed to be competent tobe a witness except as provided by sections 885.16("transactions with deceased or insane persons") and 885.17("transactions with deceased agent") of the Wisconsin Statutes.See Wis.Stat. § 906.01.14 Wisconsin judges are notempowered to review a witness' competency. This is a matter ofcredibility to be dealt with by the trier of fact. See State v.Dwyer, 143 Wis.2d 448, 461, 422 N.W.2d 121, 125 (Ct.App. 1988).

Wisconsin courts use the criteria set forth in section908.04 of the Wisconsin Statutes to determine whether awitness is unavailable for confrontation purposes when anyexception to the hearsay rule is at issue. See, e.g., Dwyer, at462-463, 422 N.W.2d at 125-126 (hearsay ruled admissible undersection 908.03(2) as an excited utterance). Section 908.04states, in relevant part, that:

(1) "Unavailability as a witness" includes situations inwhich the declarant:

(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement; or

(b) Persists in refusing to testify concerning the subject matter of his statement despite an order of the judge to do so; or

(c) Testifies to a lack of memory of the subject matter of his statement; or

(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(e) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

Wis.Stat. § 908.04(1). Only that part of subsection (d) whichspeaks of "then existing . . . mental illness or infirmity" isrelevant to this situation. Dr. McLean testified that, at thetime of trial, he was treating T.N. for what he perceived to bemental and emotional trauma; however, he never preciselydefined the extent of this "trauma." This court assumes thatany victim of crime, particularly child abuse, would suffertrauma which would persist for a period of time and thattestifying in court would be upsetting. Nevertheless, courtshave not carved out a general exemption from testifying forvictims of child abuse. See, e.g., United States v. Frazier,678 F. Supp. 499, 502 (E.D.Pa. 1986) (three-year-old victim ofsexual assault testified at trial).

In Burns v. Clusen, 798 F.2d 931 (7th Cir. 1986), a habeascorpus action following a conviction for sexual assault, thevictim's treating physician testified that, based on anexamination conducted two months earlier, he had diagnosed thevictim, L.L., to have a "schizophreniform disorder" and was ofthe opinion that if L.L. was forced to testify at trial therewas a "high probability that it would cause anywhere from amoderate to substantial relapse and return of symptoms."Id. at 935. Even though the defense did not offer experttestimony to counter the doctor's testimony, the court foundthat the state court's factual findings were not supported bythe record, in part, because the state's evidence was stale.The appellate court held that: "the state has not fulfilled itsburden of proving L.L.'s unavailability as a precedent tooffering her prior testimony. The prosecution has neither madestringent efforts to show that L.L. was unavailable, norproduced affirmative proof of L.L.'s actual unavailability atthe time of trial in March 1981." Id. at 942. In arriving atthis conclusion the court reasoned that:

A witness cannot be declared "unavailable" simply because the prosecutor or circuit court concludes that the witness might not want to testify. The witness must "persist in refusing to testify concerning the subject matter of [her] statement despite an order of the judge to do so." Wis. Stats. § 908.045(1) (1982). When another individual's liberty is at stake, the decision to allow a witness to be exempt from the public duty to testify must be made by the trial court, not the witness or the state. State v. Burns, 112 Wis.2d 131, 163, 332 N.W.2d 757 (1983) (Abrahamson, J., dissenting).

A declaration that a witness is "unavailable" because of mental disability cannot be a "back-door" acknowledgement that a witness is simply reluctant or likely to refuse to testify. Rather, the prosecution has the burden to prove that the witness has a "then-existing mental illness." It is true in this case that the defense counsel did not take advantage of numerous opportunities to force the State to meet its burden or to aid the court in clearing away confusion. Nevertheless, the burden is not on petitioner to prove that L.L. was available. The burden is on the State, and if it fails to meet that burden, the judge must either find the witness available, or require the State to bring before the court updated information which it requires to make a determination.

Burns, 798 F.2d at 942-43 (footnote omitted).

The court of appeals emphasized that:

The burden of proving the unavailability of the witness rests upon the party offering the prior testimony. If there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543. The lengths to which the prosecution must go to produce a witness is a question of reasonableness. California v. Green, 399 U.S. 149, 189 n. 22. 90 S.Ct. 1930, 1951 n. 22, 26 L.Ed.2d 489 (1970).

Id. at 937.

The court then outlined the governing criteria:

In a situation where the State argues that a witness is unavailable because of mental illness, the judge must consider both the duration and the severity of the illness. With regard to duration, it is not essential to a finding of unavailability that the illness be permanent. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed, United States v. Amaya, 533 F.2d 188, 191 (5th Cir. 1976), citing 5 Wigmore, Evidence § 1406(a) (Chadbourn rev. 1974). In the case of a mental rather than a physical disability, the trial judge's task is more difficult because there is often greater uncertainty as to the prognosis. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983). A judge must weigh the desirability of a speedy trial against the possibility that a further delay may find the declarant competent.

As to severity, mental illness itself may not automatically render a witness unavailable. The judge must consider the symptoms, what tasks a witness is then capable of. While all victims of violent crimes may suffer emotional trauma, some victims may suffer far greater anguish than normally accompanies court appearances. See, e.g., Warren v. United States, 436 A.2d 821, 828-29 (D.C.App. 1981) (two psychiatrists independently conclude that if a rape victim were forced to testify, the probability of severely incapacitating psychological injury was high because her depression had reached suicidal levels).

Id. at 937-38.

This court cannot find any testimony by Dr. McLean or any ofthe other experts stating how long they expected T.N.'s traumato persist. The state never asked this question. However, itis interesting to note that at the postconviction hearing inMay of 1985, Dr. McLean testified that he had concluded histreatment of T.N. in February — approximately four-and-one-halfmonths after trial. See Brief of Respondent at Appendix R. 26,p. 5. Therefore, it appears T.N.'s trauma was neither permanentnor of long duration.

As for severity, Dr. McLean testified that T.N. was notpsychotic. See Id. at Appendix R. 20, p. 27. And there was notestimony that she would be rendered suicidal or harmful toherself by appearing for trial. The only negative effect whichDr. McLean predicted was a possible regression. See Id. atAppendix R. 26, p. 23. However, he also admitted that she hadregressed or experienced trauma at various times duringtherapy, so it cannot be supposed that regression is anirreparable phenomenon to be avoided at all costs.

As in Burns, the state courts' rulings of unavailability inthis case are not fairly supported by the record. The evidencedoes not show that T.N.'s mental "trauma" was of sufficientduration or severity to warrant excusing her from testifying attrial, as scheduled, or after a reasonable period of delay toallow for the completion of her therapy. Therefore, the courtconcludes that the unavailability prong of the Roberts test hasnot been satisfied.

This conclusion does not necessarily lead to the ultimateconclusion that Nelson is entitled to the issuance of a writof habeas corpus. As explained above, under the Inadi decision,meeting the unavailability prong of the Roberts test may nolonger be required when hearsay other than former testimony isadmitted.

If the Confrontation Clause offers no more protection to thedefendant than the rules of evidence provide, then theavailability of the declarant is immaterial to theadmissibility of a statement made for the purpose of medicaldiagnosis or treatment. However, the parties have not cited,and this court has not found, any post-Inadi decision in whicha court has ruled that, under the Constitution, admittinghearsay statements under Federal Rule of Evidence 803(4), or astate equivalent, without making a finding that the declarantis unavailable, does not offend the Confrontation Clause. Whilestatements made for medical purposes are not made undercircumstances resembling former testimony or the other Rule 804hearsay exceptions which require a finding ofunavailability,15 they are not generally considered equalin reliability to the records and statements excepted insubsections (5) through (23) of Federal Rule of Evidence803.16 One commentator has explained that:

It may be that the Court [in Roberts] intended to impose a general unavailability requirement upon statements offered in criminal trials under the first four exceptions to the rule against hearsay.17 . . . It has been contended that these four exceptions have lesser reliability than some of the other exceptions. . . . In fact, during the drafting process, it was urged that they be included as a part of Fed.R.Evid. 804, which requires its own showing of unavailability.

Kirkpatrick, Confrontation and Hearsay: Exemptions from theConstitutional Unavailability Requirement, 70 Minnesota LawReview 665, 690-91 n. 132 (1986) (citations omitted).

Despite the uncertainty left by Inadi, the court believesthat, under the facts of this case, T.N.'s statements to Dr.McLean should not have been admitted unless T.N. wasunavailable to testify at trial. A finding of unavailability isclearly required under the "peripheral significance" test setforth in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d213 (1980) (plurality), because T.N.'s statements were both"crucial" to the prosecution and "devastating" to the defense.See Id. at 87-89, 91 S.Ct. at 219. See also Pickett v. Bowen,798 F.2d 1385, 1387 (11th Cir. 1986). The statements comprisedthe most significant substantive evidence on the essentialelements of cause and fault. Furthermore, the state courts'assumption that T.N.'s testimony would have been of "smallutility to the defendant," see State v. Nelson, 138 Wis.2d 418,438, 406 N.W.2d 385 (1987), was unwarranted. Although Dr.McLean expressed doubt that T.N. would verbally respond to anin-court examination, at the very least her appearance wouldhave given the jury an opportunity to observe her demeanor.

The suggestion in Inadi that a defendant who foresees someutility in cross-examining a witness should invoke theCompulsory Process Clause of the Sixth Amendment to call thedeclarant as his own witness is not applicable in this casewhere the declarant is the alleged victim. The CompulsoryProcess Clause only speaks of the defendant's right "to havecompulsory process for obtaining witnesses in his favor." U.S.Const. amend VI (emphasis supplied).

As explained above, this court has concluded that T.N. wasnot "unavailable" to testify in the constitutional sense.Whether or not this finding is required, the fact remains thatT.N. did not testify and the petitioner was never afforded anopportunity for cross-examination. Therefore, under thestill-viable second prong of the Roberts test, the court mustdetermine whether these statements bear sufficient indicia ofreliability "to overcome the weighty presumption against theadmission of such uncross-examined evidence." Lee v. Illinois,476 U.S. 530, 546, 106 S.Ct. 2056, 2065, 90 L.Ed.2d 514 (1986).

3. Indicia of Reliability

In Roberts, the Supreme Court said that the reliability of ahearsay statement "can be inferred without more in a case wherethe evidence falls within a firmly rooted hearsay exception. Inother cases, the evidence must be excluded, at least absent ashowing of particularized guarantees of trustworthiness." Ohiov. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d597 (1980). The trial court in Nelson did not evaluate thereliability of T.N.'s statements to Dr. McLean as hearsay.Instead, the court evaluated the statementsas bases for Dr. McLean's expert testimony, despite the factthat Dr. McLean did not offer an ultimate opinion based onthese statements. The court reasoned that the statements wereproperly admissible under section 908.03 of the WisconsinStatutes because the bases for the expert testimony weredisclosed to the defendant prior to trial, thereby giving thejury an adequate opportunity to assess the weight andcredibility to be accorded the testimony. See Brief ofRespondent at Appendix R. 21, p. 29.

Because Dr. McLean did not render an expert opinion, theWisconsin Court of Appeals ruled that T.N.'s hearsaystatements were properly admitted as "statements made forpurposes of medical diagnosis or treatment." See Wis.Stat. §908.03(4). Then, without citing any substantiating evidence,the court abruptly concluded that the testimony had "sufficientguarantees of trustworthiness." State v. Nelson,[131 Wis.2d 591, 393 N.W.2d 798 (table)] No. 85-1125-CR, slip op. at 6(Wis. Ct. App. April 23, 1986), aff'd, 138 Wis.2d 418,406 N.W.2d 385 (1987).

In affirming this ruling, the Wisconsin Supreme Courtpointed out that T.N.'s statements to Dr. McLean fit "withina firmly rooted hearsay exception" (section 908.03(4) of theWisconsin Statutes18). State v. Nelson, 138 Wis.2d 418,444, 406 N.W.2d 385, 395 (1987). Nevertheless, the courtrecognized that "the existence of unusual circumstances maywarrant exclusion of the evidence even if it falls within afirmly rooted hearsay exception." Id. at 444, 406 N.W.2d at395. Therefore, because the court believed that the applicationof section 908.03(4) to a "psychologist-patient situation inwhich the patient is between three and four years of age, mayin and of itself, constitute unusual circumstances," the courtwent on to identify what it considered to be particularizedguarantees of trustworthiness:

1. the cross-examination of Dr. McLean, his methodology, and his conclusions, in conjunction with the availability of his entire set of notes from the treatment sessions combined to assure that the jury had a satisfactory basis for evaluating the truthfulness of the admitted evidence;

2. the age of the declarant, T.N.;

3. the nature of the allegations of sexual abuse based on the theories that: (a) it is highly unlikely that children persist in lying to their parents or other figures of authority about sex abuse; and (b) children do not have enough knowledge about sexual matters to lie about them.

See Id. at 444-46, 406 N.W.2d at 396. Based on these factors,the Supreme Court concluded that the hearsay statements "meetthe standards for reliability set forth in prior confrontationclause cases." Id. at 444, 406 N.W.2d at 396.

The three dissenting justices would have reversed theconviction and ordered a new trial on the grounds that thestatements of the child did not fit within the section908.03(4) hearsay exception and did not have sufficientindicia of reliability.19 See Id. at 447-50, 406 N.W.2d at397. The dissenters pointed out that the exception forstatements for purposes of medical diagnosis or treatmentassumes that such statements "are reliable because `the patientknows that the kind of treatment he receives, and its value andhelpfulness, may largely depend on the accuracy of theinformation which he gives to the doctor.'" Id. at 447-48, 406N.W.2d at 397 (quoting McCormick, Evidence § 266 at 563(1984)). The dissent then reasoned that:

That element of reliability, despite the unsupported assertions of the majority, are absent here. The patient was three years old, there was no evidence that the child had any idea that the numerous sessions with the psychologist were for the purpose of treatment. Indeed, the record shows that the technique of eliciting information from the child was to simulate play. Thus, while there was no circumstance that would tend to cause a person, even in a post litem motem situation, to not tell the truth, the affirmative evidence of reliability that would be induced by a consciousness of the fact of treatment was entirely absent. The assertion that the interrogator was an authority figure is irrelevant to the rationale of the exception. There is no hearsay exception for statements made to authority figures. Unfortunately, it is the court here which gives recognition to the psychologist as an authority figure. Under this evidentiary scheme, the credence is being given not to the child, whose reliability is not enhanced by the circumstances, but to the hearsay testimony of the reporting psychologist.

Nelson, 138 Wis.2d at 448, 406 N.W.2d at 397.

This court agrees with the Wisconsin Supreme Court'sconclusion that particularized guarantees of trustworthinesswere required in order to avoid a Confrontation Clauseviolation in this case. The Roberts court stated that ifhearsay testimony falls within a "firmly rooted hearsayexception," reliability can be inferred. Roberts, 448 U.S. at66, 100 S.Ct. at 2539. See also Marshall v. Young,833 F.2d 709, 716 (7th Cir. 1987). The hearsay exception for statementsfor purposes of medical diagnosis or treatment may be a "firmlyrooted" exception from the standpoint of long-timeacceptance.20 See, e.g., Meaney v. United States,112 F.2d 538 (2d Cir. 1940); Kennedy v. Upshaw, 66 Tex. 442, 1 S.W. 308(1886). However, because of her young age and alleged psychictrauma, T.N. is far from being the typical declarant under thisexception. Her statements were not made under the typicalcircumstances in which a patient, hoping for a quick cessationof physical pain, realizes that the effectiveness of treatmentdepends upon the accuracy of the information conveyed to thephysician. See, e.g., Cook v. Hoppin, 783 F.2d 684, 690 (7thCir. 1986); United States v. Narciso, 446 F. Supp. 252, 288-89(E.D.Mich. 1977).

Dr. McLean is not a medical doctor. He is a clinicalpsychologist who was recommended to T.N.'s mother when shecalled the courthouse to ask whether Brian Nelson's visitingrights could be curtailed. See Brief of Respondent at R. 20, p.49. The state courts assumed that the child realized that shewas being diagnosed and treated by Dr. McLean because hersessions were scheduled on a regular basis and because she hadto wait for her appointments in an anteroom. See State v.Nelson, 138 Wis.2d 418, 431-32, 406 N.W.2d 385, 390 (1987).However, the record reveals that the salient feature of thefacility in which Dr. McLean conducted most of his sessionswith T.N. was that it was a simulated playroom, meant to put achild at ease. On direct examination, Dr. McLean offered thefollowing description of the room:

The play therapy room there that you wanted me to describe is, it has a long table, 6 or 8 feet long against the wall. Table is maybe three feet wide. On top of it are games and puzzles and coloring books and crayons and magic markers and puzzle cubes, that's a block in which the — you can take the pieces out and you have to put them in, different shapes in the right slots. Tinkertoys for the floor. There's a train under the table. There are children's pictures on the walls. There are a lot more games and puzzles. There's Play Dough under the table. There's a toy typewriter, toy telephone. There is a basketball hoop on one wall. Tinkertoys, and on and on, just loaded, just — a little toy gun. Almost any, children really think the room is almost anything a child would want in a room. There is a little sink, some little girls sometimes will use the little dishes and they will be making cakes and all kinds of things.

Brief of Respondent at Appendix R. 20, pp. 20-21.

There is nothing in the record to show that Dr. McLean everexplained his role to T.N. or that he attempted to explain thepurpose of the sessions. In United States v. Renville,779 F.2d 430, 438 (8th Cir. 1985), a child abuse case, the courtexplained that a child's statement to a treating physicianidentifying the abuser can only be considered reliable "wherethe physician makes clear to the victim that the inquiry intothe identity of the abuser is important to diagnosis andtreatment, and the victim manifests such anunderstanding."21 The record reveals no such dialog betweenDr. McLean and T.N. in this case. Moreover, the Wisconsincourts did not explain how this particular four-year-old girlwould have had any prior experience or knowledge aboutpsychological illness or its treatment.

Under these unusual circumstances, it is not clear thatT.N.'s statements fall within the usual confines of thehearsay exception for statements made for the purpose ofmedical diagnosis or treatment. Therefore, reliability cannotbe inferred without more.

The respondent appears to recognize that these statements donot fit within the traditional rationale of the rule andargues, in the alternative, that the statements wereadmissible under the residual exception for "statements notspecifically covered by any of the other exceptions but havingequivalent circumstantial guarantees oftrustworthiness. . . ." Wis.Stat. § 908.03(24). See alsoFederal Rule of Evidence 803(24). This argument does not lessenthe state's burden because the residual exception is not a"firmly rooted" hearsay exception, so particularized guaranteesof trustworthiness are still required. See United States v.Dorian, 803 F.2d 1439, 1447 (8th Cir. 1986).

Such guarantees are notably absent from the Nelson record.The state courts found that the reliability of T.N.'sstatements was bolstered by the fact that Dr. McLean'snotes22 were disclosed to the defendant prior to trial,thereby giving Nelson an opportunity to challenge the doctor'smethodology and conclusions by cross-examination and by thecritique of another expert. See Nelson, 138 Wis.2d at 444-45,406 N.W.2d at 396. However, this reasoning confuses thecriteria for evaluating the bases of an expert's opinion withthe criteria for evaluating the reliability of a hearsaystatement. While the cross-examination of Dr. McLean might havegiven the jury a basis for evaluating the weight and probativevalue of his own testimony, it did not give the jury a reliablebasis for evaluating the demeanor and credibility of T.N.herself.

Whenever the proffered testimony of an absent witness"provides `direct evidence of guilt,' the court imposes astringent presumption against admission of such evidence andrecognizes a need for careful case-by-ease analysis."United States v.Vigoa, 656 F. Supp. 1499, 1511 (D.N.J. 1987). In this case,T.N.'s statements comprised the only direct evidence on all theessential elements of the first degree sexual assault charge.The only corroborating evidence was the opinions of the expertsDrs. McLean, Silberglitt and Nichols, each of whom believedthat T.N. had had some sort of inappropriate sexual experience.Although these experts testified that T.N. had made thestatements at issue, the truth of the matter asserted was notsubstantially corroborated by any other independent evidence.Cf. United States ex rel. Bell v. Director, Department ofCorrections, 847 F.2d 399, 402 (7th Cir. 1988). There was nophysical evidence, no eyewitness, and no testimony that T.N.immediately reported any incident to anyone with whom she had arelationship of trust. Dr. McLean was not a person to whom T.N.naturally would have reported the incidents in question and herstatements to him were made months after T.N.'s last visit withher father.23

A growing body of state legislation and decisional law, aswell as commentary, recognizes the need for receiving thedeclarations of child victims as to abusive events and foraccepting the reliability of children as to such evidence.See, e.g., United States v. Cree, 778 F.2d 474, 478 (8th Cir.1985); United States v. Frazier, 678 F. Supp. 499, 504 (E.D.Pa.1986); State v. Nelson, 138 Wis.2d 418, 406 N.W.2d 385 (1987);Graham, The Confrontation Clause, the Hearsay Rule, and ChildSexual Abuse Prosecutions: The State of the Relationship, 72Minnesota Law Review 523 (1988). Federal courts have beenwilling to construe the statutory exceptions to the ruleagainst hearsay broadly to permit out-of-court statements ofalleged victims of child abuse to be admitted into evidence asexcited utterances, or as statements for purposes of medicaltreatment or diagnosis, or as residual exceptions. However,such rulings are most often made in situations where thedeclarant also testified at trial or, at least, where theprosecution made an effort to produce the witness. See UnitedStates v. Shaw, 824 F.2d 601 (8th Cir. 1987) (eleven-year-oldvictim testified at trial); United States v. DeNoyer,811 F.2d 436 (8th Cir. 1987) (five-year-old boy described as"nonverbalizer" testified at trial); United States v. Dorian,803 F.2d 1439 (8th Cir. 1986) (prosecution called thefive-year-old victim to the stand, but because of her age andobvious fright, she was unable to testify meaningfully); UnitedStates v. Renville, 779 F.2d 430 (8th Cir. 1985)(eleven-year-old victim testified at trial); United States v.Cree, 778 F.2d 474 (8th Cir. 1986) (four-year-old physicalabuse victim present in court but was not called to the stand);Ellison v. Sachs, 769 F.2d 955 (4th Cir. 1985) (victim'spreliminary hearing statements, which had been subject tocross-examination, admitted only after five-year-old foundincompetent to testify by state trial judge); United States v.Iron Shell, 633 F.2d 77 (8th Cir. 1980) (nine-year-old victimtestified at trial), cert. denied, 450 U.S. 1001, 101 S.Ct.1709, 68 L.Ed.2d 203 (1981); United States v. Frazier,678 F. Supp. 499, 502 (E.D.Pa. 1986) (three-year-old victim"confronted the defendant at trial and repeated her story andwas questioned at length about her prior statements"). See alsoHaggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050 (6thCir. 1983) (excited utterances of four-year-old victim admittedeven though she was ruled incompetent to testify by state trialjudge), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d217 (1984). But see also United States v. Nick, 604 F.2d 1199(9th Cir. 1979) (excited utterances and statements for medicalpurposes admitted even though four-year-old victim not calledas a witness).

In the Nelson case, on the other hand, T.N. did not testifyat trial and the prosecution made no effort to produce her.Therefore, the court was obligated to search for particularizedguarantees of trustworthinessbefore admitting T.N.'s statements as substantive evidence.But with full appreciation for the difficulties of allconcerned in protecting the victim and prosecuting theperpetrator of child abuse, this court cannot conclude fromthis record, that T.N.'s statements to Dr. McLean boresufficient indicia of reliability to overcome the weightypresumption against the admission of uncross-examinedevidence. See Lee v. Illinois, 476 U.S. 530, 546, 106 S.Ct.2056, 2065, 90 L.Ed.2d 514 (1986). Therefore, the court holdsthat the substantive use of T.N.'s statements to Dr. McLeandenied Brian Nelson's rights guaranteed by the ConfrontationClause.

D. Harmless Error

Confrontation Clause violations are subject to harmlesserror analysis. See Delaware v. Van Arsdall, 475 U.S. 673,680-84, 106 S.Ct. 1431, 1436-38, 89 L.Ed.2d 674 (1986); Burnsv. Clusen, 798 F.2d 931, 943 (7th Cir. 1986); United States v.Bernard S., 795 F.2d 749, 756 (9th Cir. 1986). Thus, theadmission of T.N.'s statements to Dr. McLean do not requirehabeas corpus relief even though there was a ConfrontationClause violation, if the error was so unimportant andinsignificant that it may be deemed harmless, consistent withthe Constitution. See generally Chapman v. California,386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966). When claiming harmlesserror, the prosecution has the burden of proving "beyond areasonable doubt that the [constitutional] error complained ofdid not contribute to the verdict obtained." Id. at 24, 87S.Ct. at 828. In the context of trial, the issue is whether,absent the constitutionally-forbidden evidence, honest andfair-minded jurors might very well have brought in a not-guiltyverdict. See Id. at 26, 87 S.Ct. at 828.

Whether a violation of the Confrontation Clause is harmlessdepends upon a variety of factors, including: (1) theimportance of the evidence to the prosecution's case; (2) theoverall strength of the prosecution's case; (3) the presenceof corroborating evidence; and (4) whether the evidence wascumulative. See Van Arsdell, 475 U.S. at 684, 106 S.Ct. at1438. In this case the respondent takes the position that anyerror was harmless because "on the critical issue of whethersexual contact occurred and whether the petitioner was theassailant, the statements made by T.N. to Dr. McLean paralleland are clearly cumulative to the hearsay statements of T.N.related by Susan Nelson [T.N.'s mother], Dr. Silberglitt [theprosecution's expert witness] and Dr. Nichols [the defendant'sexpert witness]." Brief of Respondent at 42.

Considering the factors in order, the court concludes that:(1) the statements were critically important to theprosecution's case in that they described sexual contact andcould be interpreted to identify the defendant as theperpetrator; (2) the prosecution's overall case was not strongin that there was no physical evidence, no eyewitnesstestimony, no contemporaneous reactive statements by thevictim, and no admissions by the defendant, see United Statesv. Shue, 766 F.2d 1122, 1133 (7th Cir. 1985) (the case againstthe defendant must be "overwhelming" in order to apply theharmless error rule), cert. denied, ___ U.S. ___, 108 S.Ct.351, 98 L.Ed.2d 376 (1987); and (3) there was no independentcorroborating evidence of the essential elements of the crime.As to the fourth factor, the respondent characterizes thestatements made to Dr. McLean as merely cumulative to thestatements reported by Susan Nelson and by Drs. Silberglitt andNichols. However, of the four witnesses, Dr. McLean, who hadconducted approximately 59 sessions with T.N., gave the mostextensive account of statements she had made pertinent to thecharge against Brian Nelson. Susan Nelson, who had previouslymade an unsuccessful attempt to curtail her former husband'svisiting rights, testified only to statements made by T.N.which led her to contact Dr. McLean for help in stoppingvisitation. These statements alone could not have establishedthe elements of the crime. While Susan Nelson was a factwitness, Drs. Silberglitt and Nichols testified as experts inthe field of clinical psychology. They did not treat T.N., butbased their diagnoses of her on single interviews during whichsheprovided limited information. Thus, the statements admittedthrough the testimony of Dr. McLean differed in quantity andquality from the statements admitted through the testimony ofthe other three witnesses and cannot be characterized asmerely cumulative.

Having reviewed these factors, the court concludes that therespondent has not met his burden of proving beyond areasonable doubt that the Confrontation Clause error did notcontribute to the jury's verdict of guilty in this case.Therefore, the error was not harmless.

ORDER

Having concluded that the admission of T.N.'s statement toDr. McLean violated Brian Nelson's Sixth Amendment right toconfront a witness against him, the court must fashionappropriate relief "as law and justice require." 28 U.S.C. § 2243.Even though the court has ruled that the petitioner'srights were violated, the prevailing practice is to delay thepetitioner's discharge so as to allow the state reasonable timein which to retry the petitioner if it wishes to do so. SeeWhitley v. Warden, Wyoming State Penitentiary, 401 U.S. 560,569, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971); Warden,Wyoming State Penitentiary, 401 U.S. 560, 569, 91 S.Ct. 1031,1037, 28 L.Ed.2d 306 (1971); Clausen v. Clerk of Circuit Courtof Milwaukee County, 537 F. Supp. 1233, 1237 (E.D.Wis. 1982).

Accordingly, the court ORDERS that Brian Nelson's PetitionUnder 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person inState Custody (filed January 13, 1988) IS GRANTED unless trialis commenced within seventy (70) days of the date of thisorder.

1. Section 940.225(1)(d) of the Wisconsin Statutes providesthat:

Sexual assault. (1) FIRST DEGREE SEXUAL ASSAULT. Whoever does any of the following is guilty of a Class B felony:

(d) Has sexual contact or sexual intercourse with a person 12 years of age or younger.

2. Section 907.03 Stats., provides: "Bases of opiniontestimony by experts. The facts or data in the particular caseupon which an expert bases an opinion or inference may be thoseperceived by or made known to him at or before the hearing. Ifof a type reasonably relied upon by experts in the particularfield in forming opinions or inferences upon the subject, thefacts or data need not be admissible in evidence."

3. Section 908.03(4) of the Wisconsin Statutes providesthat:

Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

4. The respondent has provided a transcript of the stateproceedings which this court has reviewed and the parties havenot argued that any of the historical facts are in dispute orthat the petitioner did not receive a full and fairevidentiary hearing in state court, so there was no necessityfor this court to hold an evidentiary hearing. See Montgomeryv. Petersen, 846 F.2d 407, 408 n. 1 (7th Cir. 1988).

5. 28 U.S.C. § 2254(d) provides that:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit —

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

6. In Roberts, the prior testimony was admitted by the statetrial court pursuant to section 2945.49 of the Ohio RevisedCode Annotated. This statute is equivalent to Federal Rule ofEvidence 804(b)(1).

7. The co-conspirator statements at issue in Inadi did notfall under either Rule 803 or 804. They were admitted pursuantto Rule 801(d)(2)(E) and, as such, are defined as "nothearsay." Nevertheless, some circuits had held that, underRoberts, unavailability of the declarant had to be shown. See,e.g., United States v. Inadi, 748 F.2d 812, 819 (3d Cir. 1984),rev'd, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).Other circuits had ruled that compliance with Rule 801(d)(2)(E)automatically satisfies the Confrontation Clause. See, e.g.,United States v. Molt, 772 F.2d 366, 368 (7th Cir. 1985), cert.denied, 475 U.S. 1081, 106 S.Ct. 1458, 89 L.Ed.2d 715 (1986).This split in the circuits was resolved by Inadi.

8. Justice Blackmun, writing for the four dissentingjustices, noted that:

As this Court recently explained in United States v. Inadi, [475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)], a specific showing of unavailability is not always required. I nonetheless assume, for purposes of discussion, that in relevant respects Thomas' custodial confession is more like the prior judicial testimony at issue in Roberts than like the contemporaneous co-conspirator statements involved in Inadi, and thus both Roberts requirements had to be satisfied.

Lee v. Illinois, 476 U.S. 530, 549 n. 2, 106 S.Ct. 2056, 2067n. 2, 90 L.Ed.2d 514 (Blackmun, J., dissenting).

9. See also United States v. Wilmer, 799 F.2d 495, 501 (9thCir. 1986) ("We need not decide whether unavailability must beshown before evidence is admissible under the public recordsexception to the hearsay rule because confrontation clauseviolations are subject to harmless error analysis."), cert.denied, ___ U.S. ___, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987).

10. See also United States v. Keplinger, 776 F.2d 678, 696(7th Cir. 1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919,91 L.Ed.2d 548 (1986). In Keplinger (a pre-Inadi decision), theSeventh Circuit ruled that the admission of a memorandum underthe business records exception to the hearsay rule did notviolate the Confrontation Clause. The court reasoned that:"Even though the government did not demonstrate theunavailability of the hearsay declarant, Gerald Kennedy,admission of the memo did not violate the confrontation clauseif it was not `crucial' to the government or `devastating' tothe defense, and if the utility of cross-examination wasremote." Id. at 696, quoting Dutton v. Evans, 400 U.S. 74, 87,91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970) (plurality).

11. Even though the Inadi decision was issued before theWisconsin Supreme Court issued its ruling in the Nelson case,the Inadi case was not discussed in that court's opinion.

12. In general, statements of fault are not included underthe hearsay exception for statements for the purpose ofmedical diagnosis or treatment. See United States v. Pollard,790 F.2d 1309, 1313-14 (7th Cir. 1986), overruled on othergrounds, United States v. Sblendorio, 830 F.2d 1382 (7th Cir.1987). However, in cases of child abuse, some courts have madean exception when the alleged abuser is a member of thevictim's household on the theory that identification of theperpetrator is relevant to the treatment and to the preventionof recurrence of the injury. See United States v. Renville,779 F.2d 430, 435-39 (8th Cir. 1985) ("We believe that a statementby a child abuse victim that the abuser is a member of thevictim's immediate household presents a sufficiently differentcase from that envisaged by the drafters of Rule 803(4) that itshould not fall under the general rule. Statements by a childabuse victim to a physician during an examination that theabuser is a member of the victim's immediate household arereasonably pertinent to treatment."). When the alleged abuseris not a member of the victim's household, the exception is notmade. See United States v. Iron Shell, 633 F.2d 77, 83-85 (8thCir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68L.Ed.2d 203 (1981); United States v. Nick, 604 F.2d 1199,1201-02 (9th Cir. 1979). The instant case falls somewherebetween the general rule and the exception. At the time of thealleged incidents Brian Nelson was not a member of T.N.'shousehold, although he periodically took her to his own homefor overnight visits.

13. See also State v. Lindner, 142 Wis.2d 783, 792,419 N.W.2d 352, 355-56 (Ct.App. 1987) (allowing a postconvictionunavailability hearing).

14. Section 906.01 of the Wisconsin Statutes provides that:

Every person is competent to be a witness except as provided by ss. 885.16 and 885.17 or as otherwise provided in these rules.

15. The exceptions contained in Federal Rule of Evidence804 include: (1) former testimony; (2) statement under beliefof impending death; (3) statement against interest; (4)statement of personal or family history; and (5) a residualexception which excepts:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

16. Subsections (5) through (23) of Federal Rule ofEvidence 803 except the following from hearsay, whether or notthe declarant is available: (5) recorded recollection; (6)records of regularly conducted activity; (7) absence of entryin records kept in accordance with the provisionsof paragraph (6); (8) public records and reports; (9) recordsof vital statistics; (10) absence of public record or entry;(11) records of religious organizations; (12) marriage,baptismal, and similar certificates; (13) family records; (14)records of documents affecting an interest in property; (15)statements in documents affecting an interest in property;(16) statements in ancient documents; (17) market reports,commercial publications; (18) learned treatises; (19)reputation concerning personal or family history; (20)reputation concerning boundaries or general history; (21)reputation as to character; (22) judgment of previousconviction; (23) judgment as to personal, family or generalhistory, or boundaries.

17. The first four exceptions, found in Federal Rule ofEvidence 803, are: (1) present sense impression; (2) excitedutterance; (3) then existing mental, emotional, or physicalcondition; (4) statements for purposes of medical diagnosis ortreatment.

18. See Part II(C)(1), above.

19. The dissent also believed that the child could havetestified via videotape or some other non-conventional means,but that the child should not have been excused altogetherfrom testifying. Nelson's trial was held before the effectivedate of the Wisconsin statute permitting videotapeddepositions of child witnesses to be admitted into evidence.See Wis.Stat. § 967.04(7)-(10). Wisconsin courts have held thatthe use of such a deposition without a showing that the witnessis unavailable violates the Sixth Amendment. See State v.Lindner, 142 Wis.2d 783, 790, 419 N.W.2d 352, 355 (Ct.App.1987).

20. The parties have not cited, and the court has notlocated, any case explicitly stating that the federalcounterpart to section 908.03(4), Federal Rule of Evidence803(4), is a firmly rooted hearsay exception.

21. Courts have reasoned that if a declarant makes astatement while under the impression that she is being askedto indicate who was responsible for what happened, herresponse may very well be accusatory in nature and "anyinherent reliability of such a statement is therebydestroyed." United States v. Narciso, 446 F. Supp. 252, 289(E.D.Mich. 1977).

22. Dr. McLean's testimony provided the only evidence fromwhich the jury could find that T.N. actually made thestatements in question. See United States v. Guinan,836 F.2d 350, 358 (7th Cir. 1988) ("statements are [constitutionally]admissible even where there was no cross-examination if it isclear (1) that the declarant actually made the statement inquestion; and (2) there is circumstantial evidence supportingits veracity"). Dr. McLean testified that he sometimes jotteddown T.N.'s statements verbatim during the sessions. See Briefof Respondent at Appendix R.20, p. 29. Other notes containedhis interpretation of T.N.'s nonverbal acts performed during"play therapy," a process Dr. McLean described as "a little bitlike interpreting a dream in an adult." Id. at Appendix R.20, p. 20. These notes were disclosed to the defendant prior totrial, but were not offered into evidence at trial. See Briefof Respondent at 27. Dr. McLean also testified that he hadtaperecorded some of the sessions, but that he had destroyedthe taperecordings prior to trial. See Id. at Appendix R. 20,p. 83.

23. Some commentators are of the opinion that the passageof a considerable period of time between the alleged incidentand the victim's statements provides an opportunity forimproper influence on the part of a third person. See Graham,The Confrontation Clause, the Hearsay Rule, and Child SexualAbuse Prosecutions: The State of the Relationship, 72 MinnesotaLaw Review 523, 532 n. 39 (1988).

DECISION AND ORDER

Brian Nelson, the petitioner in the above-captioned action,is a prisoner in state custody who is seeking a writ of habeascorpus pursuant to 28 U.S.C. § 2254. After a trial by jury inthe Racine County [Wisconsin] Circuit Court, Nelson wasconvicted of one count of first degree sexual assault inviolation of section 940.225(1)(d) of the WisconsinStatutes.1 He is currently serving a five year sentence atthe Oakhill Correctional Institute where he is in the custodyof respondent Catherine Ferrey. This court, which is located inthe district where Nelson was convicted, is empowered toconsider the petition under 28 U.S.C. § 2241(d).

I. STATE PROCEEDINGS

Following the denial of his posttrial motions in statecourt, Nelson challenged his conviction in the Wisconsin Courtof Appeals which affirmed the trial court in an unpublisheddecision. See State v. Nelson, 131 Wis.2d 591, 393 N.W.2d 798(Ct.App. 1986), aff'd, 138 Wis.2d 418, 406 N.W.2d 385 (1987).The Wisconsin Supreme Court then granted review and confirmedthe conviction in a 4-3 decision. See State v. Nelson,138 Wis.2d 418, 406 N.W.2d 385 (1987). Wisconsin's Supreme Courtrecounted the following facts leading up to Nelson's convictionand sentencing:

"In April of 1984 the defendant, Brian Nelson, was chargedwith one count of intentionally and feloniously having sexualcontact with a person twelve years or younger. The allegedvictim of the sexual assault was his daughter, T.N., who wasborn June 7, 1980. At trial the state presented no eyewitnesstestimony and did not call T.N. to testify. Instead, theevidence of sexual assault and the evidence linking BrianNelson to the sexual assault were presented primarily throughthe testimony of T.N.'s mother, Susan Nelson,T.N.'s treating psychologist, Dr. McLean, and a secondpsychologist, Dr. Silberglitt.

In April of 1982, Brian and Susan Nelson were divorced.Susan Nelson was granted custody of their daughter, T.N., andthe defendant was granted reasonable visitation rights.Shortly after the divorce was finalized, Mitchell Blada movedin with Susan Nelson and T.N. Susan Nelson testified at trialthat beginning in August, 1983, T.N. became apprehensive andat times hysterical when the defendant came to pick her up forvisitation. According to Susan Nelson, after a visit with thedefendant in early August, 1983, T.N. begged not to return toher father's residence. Susan Nelson testified that byOctober, when she would inform T.N. that T.N. was going to herfather's house, T.N. would go `berserk.' She would cry andscream, and beg not to go. At this point visitationsessentially stopped.

"At Christmas, visitation was resumed without incident.However, Susan Nelson testified that shortly thereafter T.N.attempted to pull her mother's pants down while playing a gameof tag. According to Susan Nelson, T.N. indicated that daddyhad taught her to play tag in this manner. Susan Nelson alsotestified that on January 20, 1984, T.N. insisted that apicture of Michael Jackson be brought into the bathroom towatch her. T.N. pointed at her vagina and said that MichaelJackson doesn't look like this and `daddy doesn't look likethis either.' Susan Nelson testified that, when she asked T.N.how she knew this, T.N. responded, `I pulled his underpantsdown.' When Susan Nelson told T.N. that it must have been anaccident, T.N. insisted that daddy told her to pull down hisunderpants and that it was alright because Cheryl, thedefendant's second wife, was not at home.

"Susan Nelson became suspicious of possible sexual abuse andcontacted Dr. McLean to discuss whether there was apossibility of sexual abuse. Susan had previously been givenDr. McLean's name when she called the court to find out if she`had to force' T.N. to visit the defendant.

"Dr. Donald McLean, a clinical psychologist, was called bythe state and was qualified by the court as an expert witnessin the field of psychology. Dr. McLean's notes had beenprovided to the defense prior to trial. Defense counsel,outside the presence of the jury, objected on hearsay groundsto Dr. McLean's anticipated testimony concerning statementsmade by T.N. In explaining the objection, defense counselstated: `Now, the basic problem with this, as I see it, isthat there is a witness then to whom we are denied a right ofconfrontation.' The trial court ruled that the statements madeby T.N. were admissible under sec. 907.03, Stats.,2 sincethey formed the basis of an expert opinion. The trial courtdid not rule on the confrontation issue, and defense counseldid not repeat the objection.

"Dr. McLean testified to a series of fifty-nine evaluationand treatment sessions with T.N. from January 25, 1984, toSeptember 11, 1984. The treatment sessions were generallyconducted in Dr. McLean's play therapy room, although Dr.McLean occasionally spoke with T.N. in his regular office. Theplay therapy room was set up with games, puzzles, coloringbooks, dolls, and other toys which allow a child to expressoneself through play.

"Dr. McLean testified that T.N. had revealed at a number ofsessions that she had touched daddy where he went to thebathroom. According to Dr. McLean, he placed anatomicallycorrect male and female dolls in the play therapy room onFebruary 27, 1984. Dr. McLean testified that at the February28 session, T.N. placed the female doll's face against thegenital area of the male doll and said, `she gets mud on herface.' Upon being asked what she meant, T.N. replied, `itswhite and sticky.' Dr. McLean testified that in a subsequentsession T.N. told him that her father warned her not to talkabout the incident and also told her to say that Susan'sboyfriend, Mitch, did it.

"Dr. McLean related the following conversation with T.N. `Doyou pull someone's underpants down and touch him where he goesto the bathroom, and the child said yes . . . and I said, wellwho is it that you touch where he goes to the bathroom, andthe child answered Mitch. And I said you told me it was Daddy.Was it Mitch or Daddy, and the child said Daddy. And I saidthen why did you say Mitch, and she said it was Mitch, and Isaid then it was not Daddy. She said it was Daddy, then Mitch,then Daddy, and she answered with he told me to say it wasMitch. I said who told you to say it was Mitch. She saidDaddy.' Dr. McLean further testified that, when he asked T.N.if she would only tell the truth to anyone who talks to her,she responded, `I don't have to tell the truth.'

"Dr. McLean also testified that throughout the treatmentT.N. was extremely anxious and reluctant to talk about theincident and that at times T.N. would appear depressed andemotionally drained.

"Dr. Burton Silberglitt, a clinical psychologist, was alsocalled by the state as an expert witness. The defense raisedno objection to this testimony which was based on one sessionconducted on March 27, 1984. Dr. Silberglitt testified thatT.N. tried to ignore discussing her father because it was`discomforting to her and frightening to her and traumatic toher to get into this.' According to Dr. Silberglitt, when hebrought up T.N.'s father, the child stated that she `playedwith his thing that he put in the toilet.' Dr. Silberglittfurther testified that T.N. was very agitated and that it washis recommendation that T.N. engage in therapy with aqualified therapist.

"Mary Anne Jensen, a social worker for Racine County, wasalso called to testify. She testified that on January 29,1984, T.N. drew a picture which depicted herself and herfather. The pictures were marked as exhibits and shown to thejury. Mary Anne Jensen offered no explanation of the drawing'ssignificance. However, in the opening statement to the jury,the state told the jury that the picture drawn by T.N.depicted the defendant as an erect penis. The defense raisedno objection to this statement.

"At the close of the state's case, the defense made a motionto dismiss, and argued, first, that the hearsay statements ofT.N. as related by the psychologists were inadmissible becauseno expert opinion had been offered and, second, thatdefendant's right of confrontation had been violated becausethe state had not shown that T.N. was unavailable as awitness. The state responded that the testimony of twopsychologists demonstrated that T.N. had suffered a severetrauma because of her sexual experiences with her father, thatthe trauma had not been cured, and that T.N. was `effectivelyunavailable' to testify at trial. Defense counsel also arguedthat the defendant's right to confrontation had been violatedbecause the state did not suggest or consider the possibilityof videotaping the child in her home, the psychologist's playroom, or in some other noncourtroom setting.

"The trial court, in denying the motion to dismiss, ruledthat the testimony of Dr. McLean as to what T.N. said duringthe therapy sessions was admissible hearsay. The trial courtalso ruled that the testimony made it patently clear that T.N.could not have testified due to her age and the potentialtrauma. Based on the testimony at trial, the court stated: `Idon't think the child would have been available in any sensefor what we would determine to be examination or appearance incourt or even by videotape or any other electronic means.'

"The defense then presented its case, including thetestimony of two psychologists, Dr. David Nichols and Dr.Walter McDonald. Dr. Nichols testified that at the defendant'srequest he interviewed T.N. on March 16, 1984. Although Dr.Nichols testified that the interview revealed very littleconcerning the facts of the alleged sexual assault, Dr.Nichols later testified that T.N. told him that she didnot like to visit her father and that she gets white mud onher face. According to Dr. Nichols, T.N. repeatedly eitherdenied sexual contact or stated that she did not want to talkabout it. Dr. Nichols concluded that some sexual abuse hadoccurred and testified that he had made a recommendation tothe court that there should be no further visits with thedefendant.

"Dr. McDonald testified that he had examined the clinicalnotes of Dr. McLean concerning the treatment of T.N. todetermine if there was an alternative explanation for T.N.'sbehavior in therapy. According to Dr. McDonald, T.N.'sincreased sexual preoccupation throughout the therapy may beexplained by her continual and repeated exposure to theanatomically correct dolls. Dr. McDonald further testifiedthat his explanation was not necessarily more valid than thatexplanation which equally well fit the facts as they werepresented to him.

"On September 21, 1984, the defendant was found guilty offirst-degree sexual assault. A judgment of conviction wasentered, and the defendant was sentenced to five years in theWisconsin State Prison." Id. at 422-28, 406 N.W.2d at 386-89.

The state supreme court then outlined the posttrialproceedings in the trial court and in the court of appeals:

"On January 28, 1985, the defendant filed postconvictionmotions requesting that the verdict be set aside and a newtrial ordered. The motions alleged numerous errors, includingthat the court erred in admitting into evidence the hearsaystatements of T.N. through the testimony of Dr. McLean and Dr.Silberglitt and that the use of such evidence denied him hisright of confrontation under the sixth and fourteenthamendments of the United States Constitution and Article I,sec. 7 of the Wisconsin Constitution. On March 6, 1985, thetrial court heard oral argument on these motions and expressedconcern that the defendant's right to confront his accuser hadbeen violated at trial by the court's failure to make a rulingabout the unavailability of T.N. No ruling was made, butanother hearing was set.

"In response to the trial court's comments, the state movedto supplement the record by means of an evidentiary hearing toestablish that, at the time of trial, T.N. was an unavailablewitness. The defendant objected to this procedure, the issuewas briefed, and on April 18, 1985, the trial court grantedthe state's motion.

"The only witness at the hearing was Dr. McLean who wascalled to testify by the state. He testified that T.N. wouldnot have responded to direct questioning about the allegedsexual abuse and that such questioning could have traumatizedher. In addition, Dr. McLean testified that T.N. was veryfearful of her father and that the presence of her fatherwould have a very negative effect on her. Dr. McLean agreedthat a videotape could have been made of the therapy sessions,but noted that a large number of sessions would have had to betaped because T.N. volunteered information only graduallythroughout the course of therapy. The defendant elected not topresent testimony from his own psychological experts who hadtestified at trial. According to the defendant, the lapse oftime between the trial and the hearing denied him the abilityto present any meaningful evidence. The trial court concludedthat, because of the likelihood of trauma and the age of T.N.,T.N. was unavailable to testify at trial.

"The court of appeals, in a per curiam opinion, affirmed thejudgment of the trial court. According to the court ofappeals, the testimony of Dr. McLean was properly admittedunder sec. 908.03(4), Stats. — statements made for the purposeof medical diagnosis or treatment. The court further concludedthat T.N. was unavailable to testify and that the statements ofthe experts were reliable, thus satisfying the two-prongedconfrontation clause analysis outlined in Ohio v. Roberts,448 U.S. 56, 65-66 [100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597](1980), and State v. Bauer, 109 Wis.2d 204, 210-11,325 N.W.2d 857 (1982)."

Id. at 428-29, 406 N.W.2d at 389.

In seeking review by the Wisconsin Supreme Court, Nelsonraised three issues:

1. Did the trial court err in admitting the out-of-court statements of the alleged victim to two psychologists, Dr. McLean and Dr. Silberglitt?

2. If the out-of-court statements were properly admitted as exceptions to the hearsay rule, did the admittance of these statements violate the defendant's right of confrontation under the United States and Wisconsin Constitutions?

3. Did the trial court err in admitting into evidence drawings made by the alleged victim after the prosecutor in the opening statement told the jury that the drawings depicted the defendant as an erect penis?

The Wisconsin Supreme Court granted Nelson's petition forreview and a divided (4-3) Court held that the out-of-courtstatements were properly admissible as exceptions to thehearsay rule under section 908.03(4) of the Wisconsin Statutes— statements made for the purposes of medical diagnosis ortreatment;3 that there was no violation of theconfrontation clause of the State or federal constitution; and,that the admittance into evidence of the drawings constitutedharmless error. Id. at 422, 406 N.W.2d at 386.

II. COLLATERAL REVIEW

A. Scope of Review

After his state court remedies proved unavailing, Nelsonfiled his petition for a writ of habeas corpus in this court.The sole issue raised by his petition is whether he was deniedhis Sixth Amendment right to confront T.N., the allegedvictim, at trial. The respondent concedes that Nelson hasexhausted his state court remedies as to this issue,see Response to Petition for a Writ of Habeas Corpus at ¶ 3;and, based on the record of the state proceedings, the courtfinds that the petitioner has met his burden of demonstratingthat he has met the prerequisites for relief, including fairlypresenting the substance of his federal claim to the statecourts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509,512, 30 L.Ed.2d 438 (1971).

The ultimate determination of whether the admission of thehearsay statements violated Nelson's Sixth Amendment right toconfrontation is a question of law which involves theapplication of legal principles to historical facts.4See Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050,1055 (6th Cir. 1983), cert. denied, 464 U.S. 1071, 104 S.Ct.980, 79 L.Ed.2d 217 (1984); United States ex rel. Scarpelli v.George, 687 F.2d 1012, 1015 (7th Cir. 1982), cert. denied,459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). In habeascorpus proceedings federal courts must accord a presumption ofcorrectness to state court findings of basic, primary orhistorical facts and to subsidiary facts underlying ultimateconclusions, provided that the conditions of28 U.S.C. § 2254(d)5 are met.See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71L.Ed.2d 480 (1982); Townsend v. Sain, 372 U.S. 293, 309 n. 6,83 S.Ct. 745, 755-56 n. 6, 9 L.Ed.2d 770 (1963); United Statesex rel. Savory v. Lane, 832 F.2d 1011, 1019 (7th Cir. 1987).This rule applies equally to findings of trial courts andappellate courts. See Sumner v. Mata, 449 U.S. 539, 545-47, 101S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981) (per curiam). Itapplies as well to the inferences that can be deduced from thefacts. See Marshall v. Lonberger, 459 U.S. 422, 435, 103 S.Ct.843, 851, 74 L.Ed.2d 646 (1983). However, the legal conclusionsdrawn by state courts from the historical facts on the federalconstitutional question raised are subject to independentreview. See Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct.1708, 1715, 64 L.Ed.2d 333 (1980). In the same fashion, mixedquestions of law and fact are subject to independent federalreview. See United States ex rel. Savory, 832 F.2d at 1018;Nash v. Israel, 707 F.2d 298, 301 (7th Cir. 1983). Where thequestion is mixed, the federal court may give a differentweight to the facts as found by the state court and may reach adifferent conclusion in light of the legal standard. See Sumnerv. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d480 (1981).

When, as here, the issue involves a federal constitutionalright, federal law must be applied. See Boykin v. Alabama,395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).Federal habeas review can cover only violations of theConstitution, laws or treaties of the United States. SeeShillcutt v. Gagnon, 827 F.2d 1155, 1158 (7th Cir. 1987). Thiscourt cannot entertain an argument urging that Wisconsin courtsmerely misconstrued state rules of evidence. Id.

B. Supreme Court Treatment of the Confrontation Right

The Sixth Amendment to the United States Constitutionguarantees that in all criminal prosecutions the accused shallenjoy the right "to be confronted with the witnesses againsthim." This right is secured for defendants in state as well asfederal criminal proceedings under Pointer v. Texas,380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). If literallyapplied, the Confrontation Clause would abrogate virtuallyevery hearsay exception, but courts have long rejected thisapproach as unintended and too extreme. See, e.g., Mattox v.United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed.409 (1895). Consequently, there has been a continuing struggleto define the relationship between the Confrontation Clause andthe hearsay rule with its many exceptions. Because theinterpretation of this relationship and the questions leftunanswered by recent decisions are central to the issues raisedin thiscase, a brief review of Confrontation Clause law is in order.

Little is known about the Framers' intent in providing theConfrontation Clause. See, e.g., Read, New Confrontation —Hearsay Dilemma, 45 S.Cal.L.Rev. 1, 6 (1972) ("The exact intentof the framers of the Constitution in providing [theconfrontation clause] is probably undiscoverable."). However,it is generally agreed that the particular vice that gaveimpetus to the Confrontation Clause was the practice of tryinga defendant on "evidence" which consisted solely of ex parteaffidavits or depositions secured by the examining magistrates,thus denying the defendant the opportunity to challenge hisaccuser in a face-to-face encounter in front of the trier offact. See California v. Green, 399 U.S. 149, 156, 90 S.Ct.1930, 1934, 26 L.Ed.2d 489 (1970). Accordingly, in an earlyline of cases involving the admission of former testimony, theSupreme Court's decisions turned on whether there had been anopportunity for cross-examination prior to or during trial.See, e.g., Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337,39 L.Ed. 409 (1895); Reynolds v. United States, 98 U.S. (8Otto) 145, 25 L.Ed. 244 (1878).

Then, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20L.Ed.2d 255 (1968), in reversing the denial of a writ of habeascorpus for a defendant convicted of armed robbery, the Courtconcluded that the right to confrontation is "basically a trialright" which "includes both the opportunity to cross-examineand the occasion for the jury to weigh the demeanor of thewitness." Id. at 725, 88 S.Ct. at 1322. The principal evidenceagainst the petitioner had consisted of the reading of atranscript of the preliminary hearing testimony of a witnesswho, by the time of trial, was incarcerated in a federal prisonin Texas. See Id. at 720, 88 S.Ct. at 1319. Even though thepetitioner had had an unexercised opportunity to cross-examinethe witness at the preliminary hearing, the Court held that thedefendant's confrontation right had been violated by admittingthis testimony because the prosecution had made no effort toproduce the declarant at trial to be cross examined and to givethe jury an opportunity to weigh his demeanor. See Id. at724-26, 88 S.Ct. at 1321-22. The Court explained that:

[W]e would reach the same result on the facts of this case had petitioner's counsel actually cross-examined Woods [the incarcerated witness] at the preliminary hearing . . . A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.

Id. at 725-26, 88 S.Ct. at 1322 (footnote and citationomitted). Rejecting the state's argument that the witness' mereabsence from the jurisdiction was a sufficient ground todispense with confrontation, the Court emphasized that: "[A]witness is not `unavailable' for purposes of the . . .exception to the confrontation requirement unless theprosecutorial authorities have made a good faith effort toobtain his presence at trial." Id. at 724-25, 88 S.Ct. at1321-22.

In the 1970 case of California v. Green, 399 U.S. 149, 90S.Ct. 1930, 26 L.Ed.2d 489 (1970), the prosecution offeredevidence of exculpatory statements that a prosecution witnessmade to a police officer prior to trial. See Id. at 151, 90S.Ct. at 1931. The Court held that these hearsay statementscould not be received in evidence unless the witness was ableto be cross-examined regarding them at trial. See Id. at 164,90 S.Ct. at 1938. In explaining its reasoning, the Courtenumerated the underlying purposes of the Confrontation Clause,pointing out that confrontation:

(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth"; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

Id. at 158, 90 S.Ct. at 1935 (footnote omitted).

Later in that same year the Court shifted the emphasis fromface-to-face confrontation to practicality and truth-finding,saying:

The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that "the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement."

Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d213 (1970) (plurality) (quoting California v. Green,399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970)). See alsoTennessee v. Street, 471 U.S. 409, 415, 105 S.Ct. 2078, 2082,85 L.Ed.2d 425 (1985). In Dutton v. Evans, 400 U.S. 74, 91S.Ct. 210, 27 L.Ed.2d 213 (1970), a witness had testified to abrief conversation about the defendant Evans that the witnesshad had with a fellow prisoner in the Atlanta Penitentiary. TheCourt found no confrontation violation in the admission of thishearsay even though the declarant was not cross-examined andthe prosecution made no showing that he was unavailable. SeeId. at 87-89, 91 S.Ct. at 219. The Court reasoned that thishearsay testimony could be admitted because it was of"peripheral significance" and was neither "crucial" to theprosecution nor "devastating" to the defendant. Id. at 87, 91S.Ct. at 219.

Ten years later in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.2531, 65 L.Ed.2d 597 (1980), the Supreme Court ruled that theadmission of preliminary hearing testimony is constitutionallypermissible only if the proponent establishes that: (1) thedeclarant is unavailable, and (2) the statement containssufficient indicia of reliability to ensure accuracy in thefactfinding process. See Id. at 65-75, 100 S.Ct. at 2538-44.Although Roberts dealt with prior testimony, lower courts beganto apply both prongs of the Roberts test to all types ofhearsay. For instance, in the Nelson case the Wisconsin courtsused the Roberts test to determine whether the admission oftestimony under the hearsay exception for "statements forpurposes of medical diagnosis or treatment" contravenedNelson's Sixth Amendment confrontation right.

Then, in 1986, the United States Supreme Court issued itsopinion in United States v. Inadi, 475 U.S. 387, 106 S.Ct.1121, 89 L.Ed.2d 390 (1986), in which it may have sharplycurtailed the necessity of meeting Roberts' unavailabilityrequirement. In Inadi, the prosecutor offered the out-of-courtdeclarations (taped conversations) of an unindictedco-conspirator who failed to appear at trial — allegedly due tocar trouble. Id. at 390, 106 S.Ct. at 1124. The trial courtadmitted the statements under Federal Rule of Evidence801(d)(2)(E). In affirming this ruling (and reversing the ThirdCircuit), the Supreme Court declined to require a showing of adeclarant's unavailability as a prerequisite to the admissionof co-conspirator statements. Id. at 400, 106 S.Ct. at 1129.Cautioning that "Roberts should not be read as an abstractanswer to questions not presented in that case," Id. at 392,106 S.Ct. at 1125, the Court explained that:

Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. . . . Roberts simply reaffirmed a longstanding rule. . . . that applies unavailability analysis to prior testimony. . . . Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.

Id. at 394, 106 S.Ct. at 1126. The Court explained that, insome situations, the truth-determining function of theConfrontation Clause can sometimes be better served without apersonal examination of a declarant in front of the jury. TheCourtbelieved that, because co-conspirator statements "are madewhile the conspiracy is in progress, such statements provideevidence of the conspiracy's context that cannot be replicatedeven if the declarant testifies to the same matter in court."Id. at 395, 106 S.Ct. at 1126. By limiting Roberts to casesinvolving prior testimony sought to be admitted under FederalRule of Evidence 804 (or an equivalent state evidentiaryrule),6 the Court implied that a showing that a witness isunavailable is not required by the Confrontation Clause foradmitting any hearsay other than prior testimony. A defendantwould have to look to the law of evidence to find a requirementthat a non-testifying declarant be found unavailable. Evidencelaw already demands that Rule 804 declarants be unavailablebefore hearsay is admitted, but Rule 803 allows the admissionof hearsay whether or not the declarant is available.7

The language of the Inadi opinion cast doubt on the generalapplication of the Roberts unavailability prong to hearsayother than prior testimony. See Inadi, 475 U.S. at 394, 106S.Ct. at 1126. Subsequently, however, in Lee v. Illinois,476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the Court heldthat a co-defendant's hearsay confession inculpating adefendant was inadmissible under the Confrontation Clausebecause it was unreliable. Before analyzing the reliability ofthe co-defendant's confession, both the majority and thedissent in Lee assumed that the unavailability prong of Robertshad to be satisfied. Id. at 539 & 549 n. 2, 106 S.Ct. at2061 & 2067 n. 2 (Blackmun, J., dissenting). The fourdissenting justices recommended that the necessity for anunavailability finding should be determined on a case-by-caseor rule-by-rule basis.8

In the wake of the uncertainty left by the Inadi decision andthe lack of further interpretation in subsequent Supreme Courtcases, the other federal courts have not rushed to jettison theunavailability requirement. Some courts have managed to avoidthe issue by finding other grounds for making a confrontationdecision. See, e.g., United States v. Vretta, 790 F.2d 651 (7thCir.) (impact of Inadi need not be decided because thedeclarant of the hearsay detailing prior threats was thedeceased victim and was obviously unavailable)9, cert.denied, 479 U.S. 851, 107 S.Ct. 179, 93 L.Ed.2d 115 (1986).Other courts have proceeded to rule on unavailability — just incase the requirement still applies. See, e.g., United States v.Bernard S., 795 F.2d 749 (9th Cir. 1986).

Courts have been willing to dispense with the unavailabilityrequirement or to rule that the lack of an unavailabilityfindingis harmless error in cases where: (1) the hearsay is offeredunder a business record exception; or (2) the hearsaytestimony is neither crucial to the prosecution nordevastating to the defendant; or (3) any utility inconfronting the declarant would be remote. See, e.g., BernardS., 795 F.2d at 756 (assuming that the unavailability analysisof Roberts applies, the admission of medical records without afinding that the doctor who entered the information on therecords was unavailable was harmless because the evidence wasof peripheral significance to the case).10

At least one appellate court has adopted the Inadi Court'ssuggestion that a defendant can obviate a confrontation problemby exercising his rights under the Compulsory Process Clause tocall an absent declarant as his own witness. See Inadi, 475U.S. at 397, 106 S.Ct. at 1127. In Reardon v. Manson,806 F.2d 39 (2d Cir. 1986), cert. denied sub nom. Reardon v. Lopes, ___U.S. ___, 107 S.Ct. 1903, 95 L.Ed.2d 509 (1987), the courtadmitted a toxicologist's expert testimony concerninglaboratory tests without requiring a showing that the assistantchemists who helped perform the tests were unavailable. Thecourt reasoned that:

[A]t least in those borderline cases where the likely utility of producing the witness is remote, the Sixth Amendment's guarantee of an opportunity for effective cross-examination is satisfied where the defendant himself had the opportunity to call the declarant as a witness.

Id. at 42.

C. Nelson's Confrontation Right

This uncertainty over the continuing viability of theRoberts test impacts on Nelson's petition for habeas corpus,because the central issue the petitioner raises is whether hisconfrontation rights were violated by the admission of theout-of-court statements of the alleged victim, T.N., who didnot testify at trial. As explained above, the state courts usedboth prongs of the Roberts test to assess whether admittingT.N.'s statements under a hearsay exception violated Nelson'sSixth Amendment Rights.11 See State v. Nelson,[131 Wis.2d 591, 393 N.W.2d 798 (table)] No. 85-1125-CR, slip op. at3 (Wis. Ct. App. April 23, 1986), aff'd, 138 Wis.2d 418,437-46, 406 N.W.2d 385, 393-396 (1987).

1. Hearsay Exception

When faced with an objection to the admission ofout-of-court statements, a court's first task is to determinewhether the statements are hearsay and, if so, whether theyare nevertheless admissible as an exception to the ruleagainst hearsay. At Nelson's trial the state called as itswitness Dr. Donald McLean, a clinical psychologist who wasqualified by the court as an expert in the field ofpsychology. See Brief of Respondent at Appendix R. 20, p. 12.Aware that Dr. McLean would attempt to testify to statementsmade to him by T.N., Nelson's counsel interposed hearsay andconfrontation objections. Id. at pp. 14-15. The court overruledthe objections and admitted T.N.'s statements to Dr. McLeanunder section 907.03 of the Wisconsin Statutes, which providesthat:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Wis.Stat. § 907.03. The Wisconsin Court of Appeals agreed withthe result, but not the basis for this ruling. See State v.Nelson, [131 Wis.2d 591, 393 N.W.2d 798 (table)] No.85-1125-CR, slip op. at 2-3 (Wis. Ct. App. April 23, 1986),aff'd, 138 Wis.2d 418, 406 N.W.2d 385 (1987). The appellatecourt held that the hearsay statements could more properly havebeen admitted under section 908.03(4) of the WisconsinStatutes, which provides that:

The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:

(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Wis.Stat. § 908.03(4).

The Wisconsin Supreme Court affirmed that the hearsaytestimony of Dr. McLean was admissible under the section908.03(4) exception. See State v. Nelson, 138 Wis.2d 418,431-35, 406 N.W.2d 385, 390 (1987). In arriving at thisconclusion the court considered a number of factors:

In the present case a number of factors support a finding that T.N. was aware that her statements were being used as a basis for medical diagnosis or treatment. T.N.'s sessions with Dr. McLean, although mainly conducted in a play therapy room, were scheduled and conducted in a manner consistent with the provision of diagnosis and treatment. Dr. McLean had a waiting room in which T.N. and her mother would await their regularly scheduled appointments. T.N. was aware that she saw Dr. McLean on an appointment basis and that he was not her peer. Very early in the treatment, Dr. McLean made it clear to T.N. that he was an authority figure, not a playmate. T.N. began her treatment with Dr. McLean by undergoing a series of tests and evaluations. Although most of the sessions were conducted in a play therapy room, T.N. would occasionally sit and speak with Dr. McLean in his formal office. T.N. was described as a very intelligent child. We conclude that T.N. was aware that she was being observed, with a goal towards treatment.

Furthermore, there is nothing in the record to indicate that T.N.'s motive in making the statements to Dr. McLean and Dr. Silberglitt was other than as a patient seeking treatment. It is always difficult for a court to determine whether a very young child completely understands the context in which information is sought from that child. However, we do not believe that, because a child is only three or four years of age at the time he or she goes to a doctor, the child is unable to comprehend that the child is involved in the process of receiving diagnosis or treatment. A child is no less aware of the existence of emotional or mental pain than physical pain and, thus, is equally aware of the necessity and beneficial nature of therapy.

Id. at 431-32, 406 N.W.2d at 390-91. Although the courtrecognized that the child was merely four years of age, itconcluded "that such a child also understands that statementsmade to a psychologist will be used by the psychologist to easethe emotional or psychological injuries of the child." Id. at432, 406 N.W.2d at 391. Finally, the court held that, while thegeneral rule is that statements as to who was at fault areordinarily inadmissible under the exception for statements madefor purposes of diagnosis or treatment, the treatment of achild abuse victim often depends upon uncovering the identityof the abuser and separating the assailant from thevictim.12 Based on this reasoning, the courtconcluded "that T.N.'s identification of the defendant as theassailant was a necessary element for those charged withdetermining appropriate diagnosis or treatment. Accordingly wehold that Dr. McLean's testimony as to the hearsay statementsmade by T.N. was properly admitted into evidence."Id. at 434, 406 N.W.2d at 391-92.

This evidentiary ruling would be reviewable by this courtonly for an abuse of discretion which resulted in a denial ofthe fundamental fairness of the trial proceedings guaranteedby the Due Process Clause of the Fourteenth Amendment. SeeWoodruff v. Lane, 818 F.2d 1369, 1373 (7th Cir. 1987); Dres v.Campoy, 784 F.2d 996, 998 (9th Cir. 1986). The petitioner hasraised no due process challenge in his habeas corpus action, sothis court need only review the question of whether admittingT.N.'s statements violated constitutional Confrontation Clausestandards.

2. Unavailability

At trial, when Nelson's counsel made a Confrontation Clauseobjection to admitting T.N.'s statements through Dr. McLean'stestimony, the prosecution made no contemporaneous attempt toshow that T.N. was unavailable, nor did the trial judgeimmediately address the constitutional objection. When theobjection was renewed in connection with the defendant'smotion to dismiss at the close of the state's case, the courtfound that the child was not "available in any sense for whatwe would determine to be examination or appearance in court oreven by videotape or any other electronic means." Brief ofRespondent at Appendix R.21, p. 28. Ruling that the testimonywas relevant, properly admitted and not unfairly prejudicial,the court denied the motion. Id. at p. 29.

In his postconviction motions the defendant again raised theconfrontation issue. The court, dissatisfied with its midtrialruling because Nelson had not been given an opportunity torebut the state's evidence that T.N. was unavailable,scheduled a hearing on the confrontation issue. Despite thedefendant's objection that conducting an unavailabilityhearing some eight months after trial was not "meaningful,"the court proceeded to hear the testimony of the sole witness,Dr. McLean. At the conclusion of this hearing, the court,emphasizing that the child was merely four years old, ruledthat:

I don't think that, and as the doctor's [sic] testified to, I don't believe that there could ever have been in any way any meaningful testimony appropriated from the stand. In fact, I think it's quite obvious that she chose not to say anything. Therefore, I do find both, on those basis — First, I don't believe that she would have testified. She's unavailable on that basis. Secondly, that the trauma that it would cause her. I don't think we're in the midst of trying cases, [to inflict] injury on victims of crimes especially victims who are three or four years old. Then they'd have to compound the injurys that's already been done to them by the action compounded by making them come into court and testify. I do declare that the child was unavailable.

Brief of Respondent at Appendix R.26, p. 27-28.

The Wisconsin Court of Appeals was satisfied that the trialcourt had properly found that T.N. was unavailable to testifyat trial. See State v. Nelson, [31 Wis.2d 591, 393 N.W.2d 798(table)] No. 85-1125-CR, slip op. at 4 (Wis. Ct. App. April 23,1986), aff'd, 138 Wis.2d 418, 406 N.W.2d 385 (1987). The courtreasoned that the postconviction hearing offered a meaningfulopportunity to challenge the historical fact of T.N.'sunavailability and that, even if a new trial were granted, theevidence would be substantially the same, given the fact thatno witness testified for the defendant that T.N. was available.The court then ruled that there was sufficient evidence in therecord showing that T.N. would have been "traumatized," ifrequired to testify and that she could have "given nomeaningful testimony." Id. at 6-7.

Wisconsin's Supreme Court affirmed the unavailability rulingon similar grounds. The majority of the court concluded thatthe posttrial unavailability hearing was both adequate andmeaningful, reasoning that:

We agree with the defendant's contention that the trial court's ruling on his motion to dismiss at the close of the state's evidence did not satisfy the confrontation clause. It is clear that defendants must be given the opportunity to rebut the prosecution's argument that a party is unavailable. However, we conclude that the retrospective inquiry at the post-conviction hearing adequately accommodated the defendant's right to rebut the state's position.

Id. at 436 n. 6, 406 N.W.2d at 394 n. 6.13 The court notedthat only one witness — Dr. McLean — was called to testify onthe unavailability issue, even though the defendant could havecalled his own witnesses. The court then ruled that: "Thelikelihood that any questioning of T.N. would cause severetrauma, as well as the uncertain efficacy of such questioning,leads us to conclude that T.N. was unavailable to testify attrial." Id. at 443, 406 N.W.2d at 395.

This court does not agree that the evidence in the recordsupports the conclusion that T.N. was unavailable to testifyat trial. Without the benefit of any in-court or out-of-courtobservation of T.N. by the court or the jury, the Wisconsincourts merely noted that she was four years old and that shehad been seen by a psychologist. Based on these facts and theopinions elicited from the psychologist, they then deducedthat requiring her to testify would lead to further trauma andthat, in any case, her testimony would be of little value.

As explained above, the United States Supreme Court hasdecreed that: "[A] witness is not `unavailable' for purposesof the . . . exception to the confrontation requirement unlessthe prosecutorial authorities have made a good-faith effort toobtain [her] presence at trial." Barber v. Page, 390 U.S. 719,724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968). There isnothing in the Nelson record to show that the state made anyeffort, good faith or otherwise, to obtain the presence of T.N.at trial. When a Confrontation Clause objection is made, itshould alert the state to the need for presenting proof of thedeclarant's unavailabilty. See United States v. Dorian,803 F.2d 1439, 1448 (8th Cir. 1986) (Bright, Senior J.,dissenting). Before calling Dr. McLean to the stand, the statemade no effort to establish unavailability, but when thedefendant's Confrontation Clause objection was renewed at theclose of the state's case, the state merely pointed to T.N.'sage and to the testimony of Dr. McLean and anotherpsychologist, Dr. Silberglitt, and argued that:

Anyway, in the course of the 59 sessions that Doctor McLean has testified to, this child is undergoing tremendous trauma as a result of what happened between herself and her father. To this day she is still under the trauma. It has not been successfully cured, so to speak. There would have been no possibility, and I think this record makes it clear that that witness is effectively unavailable, not only because of her age, but because of the trauma that was induced and the trauma that obviously would result by making her face the defendant and testify. Furthermore, the doctors have testified to their evaluations. They are expert psychologists. They are both psychologists who are expert in the field of children, and therapy and examinations of children and evaluations of children. Certainly they can express their opinion as to what the child is getting across and statements that the child has made. I don't think that in any way invades the province of the jury. That's what experts are for, to render opinions, and I don't think that this case law prohibits what these psychiatrists have testified to.

Brief of Respondent at Appendix R 21, p. 26-27. Thesearguments suggest that T.N. might not have been an effectivewitness, but it does not show that any effort was made by thestate to produce T.N. Age is an aspect of competency ratherthan availability. See, e.g., Kentucky v. Stincer, ___ U.S.___, 107 S.Ct. 2658, 2660, 96 L.Ed.2d 631 (1987). However,under Wisconsin law every person is presumed to be competent tobe a witness except as provided by sections 885.16("transactions with deceased or insane persons") and 885.17("transactions with deceased agent") of the Wisconsin Statutes.See Wis.Stat. § 906.01.14 Wisconsin judges are notempowered to review a witness' competency. This is a matter ofcredibility to be dealt with by the trier of fact. See State v.Dwyer, 143 Wis.2d 448, 461, 422 N.W.2d 121, 125 (Ct.App. 1988).

Wisconsin courts use the criteria set forth in section908.04 of the Wisconsin Statutes to determine whether awitness is unavailable for confrontation purposes when anyexception to the hearsay rule is at issue. See, e.g., Dwyer, at462-463, 422 N.W.2d at 125-126 (hearsay ruled admissible undersection 908.03(2) as an excited utterance). Section 908.04states, in relevant part, that:

(1) "Unavailability as a witness" includes situations inwhich the declarant:

(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement; or

(b) Persists in refusing to testify concerning the subject matter of his statement despite an order of the judge to do so; or

(c) Testifies to a lack of memory of the subject matter of his statement; or

(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(e) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

Wis.Stat. § 908.04(1). Only that part of subsection (d) whichspeaks of "then existing . . . mental illness or infirmity" isrelevant to this situation. Dr. McLean testified that, at thetime of trial, he was treating T.N. for what he perceived to bemental and emotional trauma; however, he never preciselydefined the extent of this "trauma." This court assumes thatany victim of crime, particularly child abuse, would suffertrauma which would persist for a period of time and thattestifying in court would be upsetting. Nevertheless, courtshave not carved out a general exemption from testifying forvictims of child abuse. See, e.g., United States v. Frazier,678 F. Supp. 499, 502 (E.D.Pa. 1986) (three-year-old victim ofsexual assault testified at trial).

In Burns v. Clusen, 798 F.2d 931 (7th Cir. 1986), a habeascorpus action following a conviction for sexual assault, thevictim's treating physician testified that, based on anexamination conducted two months earlier, he had diagnosed thevictim, L.L., to have a "schizophreniform disorder" and was ofthe opinion that if L.L. was forced to testify at trial therewas a "high probability that it would cause anywhere from amoderate to substantial relapse and return of symptoms."Id. at 935. Even though the defense did not offer experttestimony to counter the doctor's testimony, the court foundthat the state court's factual findings were not supported bythe record, in part, because the state's evidence was stale.The appellate court held that: "the state has not fulfilled itsburden of proving L.L.'s unavailability as a precedent tooffering her prior testimony. The prosecution has neither madestringent efforts to show that L.L. was unavailable, norproduced affirmative proof of L.L.'s actual unavailability atthe time of trial in March 1981." Id. at 942. In arriving atthis conclusion the court reasoned that:

A witness cannot be declared "unavailable" simply because the prosecutor or circuit court concludes that the witness might not want to testify. The witness must "persist in refusing to testify concerning the subject matter of [her] statement despite an order of the judge to do so." Wis. Stats. § 908.045(1) (1982). When another individual's liberty is at stake, the decision to allow a witness to be exempt from the public duty to testify must be made by the trial court, not the witness or the state. State v. Burns, 112 Wis.2d 131, 163, 332 N.W.2d 757 (1983) (Abrahamson, J., dissenting).

A declaration that a witness is "unavailable" because of mental disability cannot be a "back-door" acknowledgement that a witness is simply reluctant or likely to refuse to testify. Rather, the prosecution has the burden to prove that the witness has a "then-existing mental illness." It is true in this case that the defense counsel did not take advantage of numerous opportunities to force the State to meet its burden or to aid the court in clearing away confusion. Nevertheless, the burden is not on petitioner to prove that L.L. was available. The burden is on the State, and if it fails to meet that burden, the judge must either find the witness available, or require the State to bring before the court updated information which it requires to make a determination.

Burns, 798 F.2d at 942-43 (footnote omitted).

The court of appeals emphasized that:

The burden of proving the unavailability of the witness rests upon the party offering the prior testimony. If there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543. The lengths to which the prosecution must go to produce a witness is a question of reasonableness. California v. Green, 399 U.S. 149, 189 n. 22. 90 S.Ct. 1930, 1951 n. 22, 26 L.Ed.2d 489 (1970).

Id. at 937.

The court then outlined the governing criteria:

In a situation where the State argues that a witness is unavailable because of mental illness, the judge must consider both the duration and the severity of the illness. With regard to duration, it is not essential to a finding of unavailability that the illness be permanent. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed, United States v. Amaya, 533 F.2d 188, 191 (5th Cir. 1976), citing 5 Wigmore, Evidence § 1406(a) (Chadbourn rev. 1974). In the case of a mental rather than a physical disability, the trial judge's task is more difficult because there is often greater uncertainty as to the prognosis. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983). A judge must weigh the desirability of a speedy trial against the possibility that a further delay may find the declarant competent.

As to severity, mental illness itself may not automatically render a witness unavailable. The judge must consider the symptoms, what tasks a witness is then capable of. While all victims of violent crimes may suffer emotional trauma, some victims may suffer far greater anguish than normally accompanies court appearances. See, e.g., Warren v. United States, 436 A.2d 821, 828-29 (D.C.App. 1981) (two psychiatrists independently conclude that if a rape victim were forced to testify, the probability of severely incapacitating psychological injury was high because her depression had reached suicidal levels).

Id. at 937-38.

This court cannot find any testimony by Dr. McLean or any ofthe other experts stating how long they expected T.N.'s traumato persist. The state never asked this question. However, itis interesting to note that at the postconviction hearing inMay of 1985, Dr. McLean testified that he had concluded histreatment of T.N. in February — approximately four-and-one-halfmonths after trial. See Brief of Respondent at Appendix R. 26,p. 5. Therefore, it appears T.N.'s trauma was neither permanentnor of long duration.

As for severity, Dr. McLean testified that T.N. was notpsychotic. See Id. at Appendix R. 20, p. 27. And there was notestimony that she would be rendered suicidal or harmful toherself by appearing for trial. The only negative effect whichDr. McLean predicted was a possible regression. See Id. atAppendix R. 26, p. 23. However, he also admitted that she hadregressed or experienced trauma at various times duringtherapy, so it cannot be supposed that regression is anirreparable phenomenon to be avoided at all costs.

As in Burns, the state courts' rulings of unavailability inthis case are not fairly supported by the record. The evidencedoes not show that T.N.'s mental "trauma" was of sufficientduration or severity to warrant excusing her from testifying attrial, as scheduled, or after a reasonable period of delay toallow for the completion of her therapy. Therefore, the courtconcludes that the unavailability prong of the Roberts test hasnot been satisfied.

This conclusion does not necessarily lead to the ultimateconclusion that Nelson is entitled to the issuance of a writof habeas corpus. As explained above, under the Inadi decision,meeting the unavailability prong of the Roberts test may nolonger be required when hearsay other than former testimony isadmitted.

If the Confrontation Clause offers no more protection to thedefendant than the rules of evidence provide, then theavailability of the declarant is immaterial to theadmissibility of a statement made for the purpose of medicaldiagnosis or treatment. However, the parties have not cited,and this court has not found, any post-Inadi decision in whicha court has ruled that, under the Constitution, admittinghearsay statements under Federal Rule of Evidence 803(4), or astate equivalent, without making a finding that the declarantis unavailable, does not offend the Confrontation Clause. Whilestatements made for medical purposes are not made undercircumstances resembling former testimony or the other Rule 804hearsay exceptions which require a finding ofunavailability,15 they are not generally considered equalin reliability to the records and statements excepted insubsections (5) through (23) of Federal Rule of Evidence803.16 One commentator has explained that:

It may be that the Court [in Roberts] intended to impose a general unavailability requirement upon statements offered in criminal trials under the first four exceptions to the rule against hearsay.17 . . . It has been contended that these four exceptions have lesser reliability than some of the other exceptions. . . . In fact, during the drafting process, it was urged that they be included as a part of Fed.R.Evid. 804, which requires its own showing of unavailability.

Kirkpatrick, Confrontation and Hearsay: Exemptions from theConstitutional Unavailability Requirement, 70 Minnesota LawReview 665, 690-91 n. 132 (1986) (citations omitted).

Despite the uncertainty left by Inadi, the court believesthat, under the facts of this case, T.N.'s statements to Dr.McLean should not have been admitted unless T.N. wasunavailable to testify at trial. A finding of unavailability isclearly required under the "peripheral significance" test setforth in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d213 (1980) (plurality), because T.N.'s statements were both"crucial" to the prosecution and "devastating" to the defense.See Id. at 87-89, 91 S.Ct. at 219. See also Pickett v. Bowen,798 F.2d 1385, 1387 (11th Cir. 1986). The statements comprisedthe most significant substantive evidence on the essentialelements of cause and fault. Furthermore, the state courts'assumption that T.N.'s testimony would have been of "smallutility to the defendant," see State v. Nelson, 138 Wis.2d 418,438, 406 N.W.2d 385 (1987), was unwarranted. Although Dr.McLean expressed doubt that T.N. would verbally respond to anin-court examination, at the very least her appearance wouldhave given the jury an opportunity to observe her demeanor.

The suggestion in Inadi that a defendant who foresees someutility in cross-examining a witness should invoke theCompulsory Process Clause of the Sixth Amendment to call thedeclarant as his own witness is not applicable in this casewhere the declarant is the alleged victim. The CompulsoryProcess Clause only speaks of the defendant's right "to havecompulsory process for obtaining witnesses in his favor." U.S.Const. amend VI (emphasis supplied).

As explained above, this court has concluded that T.N. wasnot "unavailable" to testify in the constitutional sense.Whether or not this finding is required, the fact remains thatT.N. did not testify and the petitioner was never afforded anopportunity for cross-examination. Therefore, under thestill-viable second prong of the Roberts test, the court mustdetermine whether these statements bear sufficient indicia ofreliability "to overcome the weighty presumption against theadmission of such uncross-examined evidence." Lee v. Illinois,476 U.S. 530, 546, 106 S.Ct. 2056, 2065, 90 L.Ed.2d 514 (1986).

3. Indicia of Reliability

In Roberts, the Supreme Court said that the reliability of ahearsay statement "can be inferred without more in a case wherethe evidence falls within a firmly rooted hearsay exception. Inother cases, the evidence must be excluded, at least absent ashowing of particularized guarantees of trustworthiness." Ohiov. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d597 (1980). The trial court in Nelson did not evaluate thereliability of T.N.'s statements to Dr. McLean as hearsay.Instead, the court evaluated the statementsas bases for Dr. McLean's expert testimony, despite the factthat Dr. McLean did not offer an ultimate opinion based onthese statements. The court reasoned that the statements wereproperly admissible under section 908.03 of the WisconsinStatutes because the bases for the expert testimony weredisclosed to the defendant prior to trial, thereby giving thejury an adequate opportunity to assess the weight andcredibility to be accorded the testimony. See Brief ofRespondent at Appendix R. 21, p. 29.

Because Dr. McLean did not render an expert opinion, theWisconsin Court of Appeals ruled that T.N.'s hearsaystatements were properly admitted as "statements made forpurposes of medical diagnosis or treatment." See Wis.Stat. §908.03(4). Then, without citing any substantiating evidence,the court abruptly concluded that the testimony had "sufficientguarantees of trustworthiness." State v. Nelson,[131 Wis.2d 591, 393 N.W.2d 798 (table)] No. 85-1125-CR, slip op. at 6(Wis. Ct. App. April 23, 1986), aff'd, 138 Wis.2d 418,406 N.W.2d 385 (1987).

In affirming this ruling, the Wisconsin Supreme Courtpointed out that T.N.'s statements to Dr. McLean fit "withina firmly rooted hearsay exception" (section 908.03(4) of theWisconsin Statutes18). State v. Nelson, 138 Wis.2d 418,444, 406 N.W.2d 385, 395 (1987). Nevertheless, the courtrecognized that "the existence of unusual circumstances maywarrant exclusion of the evidence even if it falls within afirmly rooted hearsay exception." Id. at 444, 406 N.W.2d at395. Therefore, because the court believed that the applicationof section 908.03(4) to a "psychologist-patient situation inwhich the patient is between three and four years of age, mayin and of itself, constitute unusual circumstances," the courtwent on to identify what it considered to be particularizedguarantees of trustworthiness:

1. the cross-examination of Dr. McLean, his methodology, and his conclusions, in conjunction with the availability of his entire set of notes from the treatment sessions combined to assure that the jury had a satisfactory basis for evaluating the truthfulness of the admitted evidence;

2. the age of the declarant, T.N.;

3. the nature of the allegations of sexual abuse based on the theories that: (a) it is highly unlikely that children persist in lying to their parents or other figures of authority about sex abuse; and (b) children do not have enough knowledge about sexual matters to lie about them.

See Id. at 444-46, 406 N.W.2d at 396. Based on these factors,the Supreme Court concluded that the hearsay statements "meetthe standards for reliability set forth in prior confrontationclause cases." Id. at 444, 406 N.W.2d at 396.

The three dissenting justices would have reversed theconviction and ordered a new trial on the grounds that thestatements of the child did not fit within the section908.03(4) hearsay exception and did not have sufficientindicia of reliability.19 See Id. at 447-50, 406 N.W.2d at397. The dissenters pointed out that the exception forstatements for purposes of medical diagnosis or treatmentassumes that such statements "are reliable because `the patientknows that the kind of treatment he receives, and its value andhelpfulness, may largely depend on the accuracy of theinformation which he gives to the doctor.'" Id. at 447-48, 406N.W.2d at 397 (quoting McCormick, Evidence § 266 at 563(1984)). The dissent then reasoned that:

That element of reliability, despite the unsupported assertions of the majority, are absent here. The patient was three years old, there was no evidence that the child had any idea that the numerous sessions with the psychologist were for the purpose of treatment. Indeed, the record shows that the technique of eliciting information from the child was to simulate play. Thus, while there was no circumstance that would tend to cause a person, even in a post litem motem situation, to not tell the truth, the affirmative evidence of reliability that would be induced by a consciousness of the fact of treatment was entirely absent. The assertion that the interrogator was an authority figure is irrelevant to the rationale of the exception. There is no hearsay exception for statements made to authority figures. Unfortunately, it is the court here which gives recognition to the psychologist as an authority figure. Under this evidentiary scheme, the credence is being given not to the child, whose reliability is not enhanced by the circumstances, but to the hearsay testimony of the reporting psychologist.

Nelson, 138 Wis.2d at 448, 406 N.W.2d at 397.

This court agrees with the Wisconsin Supreme Court'sconclusion that particularized guarantees of trustworthinesswere required in order to avoid a Confrontation Clauseviolation in this case. The Roberts court stated that ifhearsay testimony falls within a "firmly rooted hearsayexception," reliability can be inferred. Roberts, 448 U.S. at66, 100 S.Ct. at 2539. See also Marshall v. Young,833 F.2d 709, 716 (7th Cir. 1987). The hearsay exception for statementsfor purposes of medical diagnosis or treatment may be a "firmlyrooted" exception from the standpoint of long-timeacceptance.20 See, e.g., Meaney v. United States,112 F.2d 538 (2d Cir. 1940); Kennedy v. Upshaw, 66 Tex. 442, 1 S.W. 308(1886). However, because of her young age and alleged psychictrauma, T.N. is far from being the typical declarant under thisexception. Her statements were not made under the typicalcircumstances in which a patient, hoping for a quick cessationof physical pain, realizes that the effectiveness of treatmentdepends upon the accuracy of the information conveyed to thephysician. See, e.g., Cook v. Hoppin, 783 F.2d 684, 690 (7thCir. 1986); United States v. Narciso, 446 F. Supp. 252, 288-89(E.D.Mich. 1977).

Dr. McLean is not a medical doctor. He is a clinicalpsychologist who was recommended to T.N.'s mother when shecalled the courthouse to ask whether Brian Nelson's visitingrights could be curtailed. See Brief of Respondent at R. 20, p.49. The state courts assumed that the child realized that shewas being diagnosed and treated by Dr. McLean because hersessions were scheduled on a regular basis and because she hadto wait for her appointments in an anteroom. See State v.Nelson, 138 Wis.2d 418, 431-32, 406 N.W.2d 385, 390 (1987).However, the record reveals that the salient feature of thefacility in which Dr. McLean conducted most of his sessionswith T.N. was that it was a simulated playroom, meant to put achild at ease. On direct examination, Dr. McLean offered thefollowing description of the room:

The play therapy room there that you wanted me to describe is, it has a long table, 6 or 8 feet long against the wall. Table is maybe three feet wide. On top of it are games and puzzles and coloring books and crayons and magic markers and puzzle cubes, that's a block in which the — you can take the pieces out and you have to put them in, different shapes in the right slots. Tinkertoys for the floor. There's a train under the table. There are children's pictures on the walls. There are a lot more games and puzzles. There's Play Dough under the table. There's a toy typewriter, toy telephone. There is a basketball hoop on one wall. Tinkertoys, and on and on, just loaded, just — a little toy gun. Almost any, children really think the room is almost anything a child would want in a room. There is a little sink, some little girls sometimes will use the little dishes and they will be making cakes and all kinds of things.

Brief of Respondent at Appendix R. 20, pp. 20-21.

There is nothing in the record to show that Dr. McLean everexplained his role to T.N. or that he attempted to explain thepurpose of the sessions. In United States v. Renville,779 F.2d 430, 438 (8th Cir. 1985), a child abuse case, the courtexplained that a child's statement to a treating physicianidentifying the abuser can only be considered reliable "wherethe physician makes clear to the victim that the inquiry intothe identity of the abuser is important to diagnosis andtreatment, and the victim manifests such anunderstanding."21 The record reveals no such dialog betweenDr. McLean and T.N. in this case. Moreover, the Wisconsincourts did not explain how this particular four-year-old girlwould have had any prior experience or knowledge aboutpsychological illness or its treatment.

Under these unusual circumstances, it is not clear thatT.N.'s statements fall within the usual confines of thehearsay exception for statements made for the purpose ofmedical diagnosis or treatment. Therefore, reliability cannotbe inferred without more.

The respondent appears to recognize that these statements donot fit within the traditional rationale of the rule andargues, in the alternative, that the statements wereadmissible under the residual exception for "statements notspecifically covered by any of the other exceptions but havingequivalent circumstantial guarantees oftrustworthiness. . . ." Wis.Stat. § 908.03(24). See alsoFederal Rule of Evidence 803(24). This argument does not lessenthe state's burden because the residual exception is not a"firmly rooted" hearsay exception, so particularized guaranteesof trustworthiness are still required. See United States v.Dorian, 803 F.2d 1439, 1447 (8th Cir. 1986).

Such guarantees are notably absent from the Nelson record.The state courts found that the reliability of T.N.'sstatements was bolstered by the fact that Dr. McLean'snotes22 were disclosed to the defendant prior to trial,thereby giving Nelson an opportunity to challenge the doctor'smethodology and conclusions by cross-examination and by thecritique of another expert. See Nelson, 138 Wis.2d at 444-45,406 N.W.2d at 396. However, this reasoning confuses thecriteria for evaluating the bases of an expert's opinion withthe criteria for evaluating the reliability of a hearsaystatement. While the cross-examination of Dr. McLean might havegiven the jury a basis for evaluating the weight and probativevalue of his own testimony, it did not give the jury a reliablebasis for evaluating the demeanor and credibility of T.N.herself.

Whenever the proffered testimony of an absent witness"provides `direct evidence of guilt,' the court imposes astringent presumption against admission of such evidence andrecognizes a need for careful case-by-ease analysis."United States v.Vigoa, 656 F. Supp. 1499, 1511 (D.N.J. 1987). In this case,T.N.'s statements comprised the only direct evidence on all theessential elements of the first degree sexual assault charge.The only corroborating evidence was the opinions of the expertsDrs. McLean, Silberglitt and Nichols, each of whom believedthat T.N. had had some sort of inappropriate sexual experience.Although these experts testified that T.N. had made thestatements at issue, the truth of the matter asserted was notsubstantially corroborated by any other independent evidence.Cf. United States ex rel. Bell v. Director, Department ofCorrections, 847 F.2d 399, 402 (7th Cir. 1988). There was nophysical evidence, no eyewitness, and no testimony that T.N.immediately reported any incident to anyone with whom she had arelationship of trust. Dr. McLean was not a person to whom T.N.naturally would have reported the incidents in question and herstatements to him were made months after T.N.'s last visit withher father.23

A growing body of state legislation and decisional law, aswell as commentary, recognizes the need for receiving thedeclarations of child victims as to abusive events and foraccepting the reliability of children as to such evidence.See, e.g., United States v. Cree, 778 F.2d 474, 478 (8th Cir.1985); United States v. Frazier, 678 F. Supp. 499, 504 (E.D.Pa.1986); State v. Nelson, 138 Wis.2d 418, 406 N.W.2d 385 (1987);Graham, The Confrontation Clause, the Hearsay Rule, and ChildSexual Abuse Prosecutions: The State of the Relationship, 72Minnesota Law Review 523 (1988). Federal courts have beenwilling to construe the statutory exceptions to the ruleagainst hearsay broadly to permit out-of-court statements ofalleged victims of child abuse to be admitted into evidence asexcited utterances, or as statements for purposes of medicaltreatment or diagnosis, or as residual exceptions. However,such rulings are most often made in situations where thedeclarant also testified at trial or, at least, where theprosecution made an effort to produce the witness. See UnitedStates v. Shaw, 824 F.2d 601 (8th Cir. 1987) (eleven-year-oldvictim testified at trial); United States v. DeNoyer,811 F.2d 436 (8th Cir. 1987) (five-year-old boy described as"nonverbalizer" testified at trial); United States v. Dorian,803 F.2d 1439 (8th Cir. 1986) (prosecution called thefive-year-old victim to the stand, but because of her age andobvious fright, she was unable to testify meaningfully); UnitedStates v. Renville, 779 F.2d 430 (8th Cir. 1985)(eleven-year-old victim testified at trial); United States v.Cree, 778 F.2d 474 (8th Cir. 1986) (four-year-old physicalabuse victim present in court but was not called to the stand);Ellison v. Sachs, 769 F.2d 955 (4th Cir. 1985) (victim'spreliminary hearing statements, which had been subject tocross-examination, admitted only after five-year-old foundincompetent to testify by state trial judge); United States v.Iron Shell, 633 F.2d 77 (8th Cir. 1980) (nine-year-old victimtestified at trial), cert. denied, 450 U.S. 1001, 101 S.Ct.1709, 68 L.Ed.2d 203 (1981); United States v. Frazier,678 F. Supp. 499, 502 (E.D.Pa. 1986) (three-year-old victim"confronted the defendant at trial and repeated her story andwas questioned at length about her prior statements"). See alsoHaggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050 (6thCir. 1983) (excited utterances of four-year-old victim admittedeven though she was ruled incompetent to testify by state trialjudge), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d217 (1984). But see also United States v. Nick, 604 F.2d 1199(9th Cir. 1979) (excited utterances and statements for medicalpurposes admitted even though four-year-old victim not calledas a witness).

In the Nelson case, on the other hand, T.N. did not testifyat trial and the prosecution made no effort to produce her.Therefore, the court was obligated to search for particularizedguarantees of trustworthinessbefore admitting T.N.'s statements as substantive evidence.But with full appreciation for the difficulties of allconcerned in protecting the victim and prosecuting theperpetrator of child abuse, this court cannot conclude fromthis record, that T.N.'s statements to Dr. McLean boresufficient indicia of reliability to overcome the weightypresumption against the admission of uncross-examinedevidence. See Lee v. Illinois, 476 U.S. 530, 546, 106 S.Ct.2056, 2065, 90 L.Ed.2d 514 (1986). Therefore, the court holdsthat the substantive use of T.N.'s statements to Dr. McLeandenied Brian Nelson's rights guaranteed by the ConfrontationClause.

D. Harmless Error

Confrontation Clause violations are subject to harmlesserror analysis. See Delaware v. Van Arsdall, 475 U.S. 673,680-84, 106 S.Ct. 1431, 1436-38, 89 L.Ed.2d 674 (1986); Burnsv. Clusen, 798 F.2d 931, 943 (7th Cir. 1986); United States v.Bernard S., 795 F.2d 749, 756 (9th Cir. 1986). Thus, theadmission of T.N.'s statements to Dr. McLean do not requirehabeas corpus relief even though there was a ConfrontationClause violation, if the error was so unimportant andinsignificant that it may be deemed harmless, consistent withthe Constitution. See generally Chapman v. California,386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966). When claiming harmlesserror, the prosecution has the burden of proving "beyond areasonable doubt that the [constitutional] error complained ofdid not contribute to the verdict obtained." Id. at 24, 87S.Ct. at 828. In the context of trial, the issue is whether,absent the constitutionally-forbidden evidence, honest andfair-minded jurors might very well have brought in a not-guiltyverdict. See Id. at 26, 87 S.Ct. at 828.

Whether a violation of the Confrontation Clause is harmlessdepends upon a variety of factors, including: (1) theimportance of the evidence to the prosecution's case; (2) theoverall strength of the prosecution's case; (3) the presenceof corroborating evidence; and (4) whether the evidence wascumulative. See Van Arsdell, 475 U.S. at 684, 106 S.Ct. at1438. In this case the respondent takes the position that anyerror was harmless because "on the critical issue of whethersexual contact occurred and whether the petitioner was theassailant, the statements made by T.N. to Dr. McLean paralleland are clearly cumulative to the hearsay statements of T.N.related by Susan Nelson [T.N.'s mother], Dr. Silberglitt [theprosecution's expert witness] and Dr. Nichols [the defendant'sexpert witness]." Brief of Respondent at 42.

Considering the factors in order, the court concludes that:(1) the statements were critically important to theprosecution's case in that they described sexual contact andcould be interpreted to identify the defendant as theperpetrator; (2) the prosecution's overall case was not strongin that there was no physical evidence, no eyewitnesstestimony, no contemporaneous reactive statements by thevictim, and no admissions by the defendant, see United Statesv. Shue, 766 F.2d 1122, 1133 (7th Cir. 1985) (the case againstthe defendant must be "overwhelming" in order to apply theharmless error rule), cert. denied, ___ U.S. ___, 108 S.Ct.351, 98 L.Ed.2d 376 (1987); and (3) there was no independentcorroborating evidence of the essential elements of the crime.As to the fourth factor, the respondent characterizes thestatements made to Dr. McLean as merely cumulative to thestatements reported by Susan Nelson and by Drs. Silberglitt andNichols. However, of the four witnesses, Dr. McLean, who hadconducted approximately 59 sessions with T.N., gave the mostextensive account of statements she had made pertinent to thecharge against Brian Nelson. Susan Nelson, who had previouslymade an unsuccessful attempt to curtail her former husband'svisiting rights, testified only to statements made by T.N.which led her to contact Dr. McLean for help in stoppingvisitation. These statements alone could not have establishedthe elements of the crime. While Susan Nelson was a factwitness, Drs. Silberglitt and Nichols testified as experts inthe field of clinical psychology. They did not treat T.N., butbased their diagnoses of her on single interviews during whichsheprovided limited information. Thus, the statements admittedthrough the testimony of Dr. McLean differed in quantity andquality from the statements admitted through the testimony ofthe other three witnesses and cannot be characterized asmerely cumulative.

Having reviewed these factors, the court concludes that therespondent has not met his burden of proving beyond areasonable doubt that the Confrontation Clause error did notcontribute to the jury's verdict of guilty in this case.Therefore, the error was not harmless.

ORDER

Having concluded that the admission of T.N.'s statement toDr. McLean violated Brian Nelson's Sixth Amendment right toconfront a witness against him, the court must fashionappropriate relief "as law and justice require." 28 U.S.C. § 2243.Even though the court has ruled that the petitioner'srights were violated, the prevailing practice is to delay thepetitioner's discharge so as to allow the state reasonable timein which to retry the petitioner if it wishes to do so. SeeWhitley v. Warden, Wyoming State Penitentiary, 401 U.S. 560,569, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971); Warden,Wyoming State Penitentiary, 401 U.S. 560, 569, 91 S.Ct. 1031,1037, 28 L.Ed.2d 306 (1971); Clausen v. Clerk of Circuit Courtof Milwaukee County, 537 F. Supp. 1233, 1237 (E.D.Wis. 1982).

Accordingly, the court ORDERS that Brian Nelson's PetitionUnder 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person inState Custody (filed January 13, 1988) IS GRANTED unless trialis commenced within seventy (70) days of the date of thisorder.

1. Section 940.225(1)(d) of the Wisconsin Statutes providesthat:

Sexual assault. (1) FIRST DEGREE SEXUAL ASSAULT. Whoever does any of the following is guilty of a Class B felony:

(d) Has sexual contact or sexual intercourse with a person 12 years of age or younger.

2. Section 907.03 Stats., provides: "Bases of opiniontestimony by experts. The facts or data in the particular caseupon which an expert bases an opinion or inference may be thoseperceived by or made known to him at or before the hearing. Ifof a type reasonably relied upon by experts in the particularfield in forming opinions or inferences upon the subject, thefacts or data need not be admissible in evidence."

3. Section 908.03(4) of the Wisconsin Statutes providesthat:

Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

4. The respondent has provided a transcript of the stateproceedings which this court has reviewed and the parties havenot argued that any of the historical facts are in dispute orthat the petitioner did not receive a full and fairevidentiary hearing in state court, so there was no necessityfor this court to hold an evidentiary hearing. See Montgomeryv. Petersen, 846 F.2d 407, 408 n. 1 (7th Cir. 1988).

5. 28 U.S.C. § 2254(d) provides that:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit —

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

6. In Roberts, the prior testimony was admitted by the statetrial court pursuant to section 2945.49 of the Ohio RevisedCode Annotated. This statute is equivalent to Federal Rule ofEvidence 804(b)(1).

7. The co-conspirator statements at issue in Inadi did notfall under either Rule 803 or 804. They were admitted pursuantto Rule 801(d)(2)(E) and, as such, are defined as "nothearsay." Nevertheless, some circuits had held that, underRoberts, unavailability of the declarant had to be shown. See,e.g., United States v. Inadi, 748 F.2d 812, 819 (3d Cir. 1984),rev'd, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).Other circuits had ruled that compliance with Rule 801(d)(2)(E)automatically satisfies the Confrontation Clause. See, e.g.,United States v. Molt, 772 F.2d 366, 368 (7th Cir. 1985), cert.denied, 475 U.S. 1081, 106 S.Ct. 1458, 89 L.Ed.2d 715 (1986).This split in the circuits was resolved by Inadi.

8. Justice Blackmun, writing for the four dissentingjustices, noted that:

As this Court recently explained in United States v. Inadi, [475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)], a specific showing of unavailability is not always required. I nonetheless assume, for purposes of discussion, that in relevant respects Thomas' custodial confession is more like the prior judicial testimony at issue in Roberts than like the contemporaneous co-conspirator statements involved in Inadi, and thus both Roberts requirements had to be satisfied.

Lee v. Illinois, 476 U.S. 530, 549 n. 2, 106 S.Ct. 2056, 2067n. 2, 90 L.Ed.2d 514 (Blackmun, J., dissenting).

9. See also United States v. Wilmer, 799 F.2d 495, 501 (9thCir. 1986) ("We need not decide whether unavailability must beshown before evidence is admissible under the public recordsexception to the hearsay rule because confrontation clauseviolations are subject to harmless error analysis."), cert.denied, ___ U.S. ___, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987).

10. See also United States v. Keplinger, 776 F.2d 678, 696(7th Cir. 1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919,91 L.Ed.2d 548 (1986). In Keplinger (a pre-Inadi decision), theSeventh Circuit ruled that the admission of a memorandum underthe business records exception to the hearsay rule did notviolate the Confrontation Clause. The court reasoned that:"Even though the government did not demonstrate theunavailability of the hearsay declarant, Gerald Kennedy,admission of the memo did not violate the confrontation clauseif it was not `crucial' to the government or `devastating' tothe defense, and if the utility of cross-examination wasremote." Id. at 696, quoting Dutton v. Evans, 400 U.S. 74, 87,91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970) (plurality).

11. Even though the Inadi decision was issued before theWisconsin Supreme Court issued its ruling in the Nelson case,the Inadi case was not discussed in that court's opinion.

12. In general, statements of fault are not included underthe hearsay exception for statements for the purpose ofmedical diagnosis or treatment. See United States v. Pollard,790 F.2d 1309, 1313-14 (7th Cir. 1986), overruled on othergrounds, United States v. Sblendorio, 830 F.2d 1382 (7th Cir.1987). However, in cases of child abuse, some courts have madean exception when the alleged abuser is a member of thevictim's household on the theory that identification of theperpetrator is relevant to the treatment and to the preventionof recurrence of the injury. See United States v. Renville,779 F.2d 430, 435-39 (8th Cir. 1985) ("We believe that a statementby a child abuse victim that the abuser is a member of thevictim's immediate household presents a sufficiently differentcase from that envisaged by the drafters of Rule 803(4) that itshould not fall under the general rule. Statements by a childabuse victim to a physician during an examination that theabuser is a member of the victim's immediate household arereasonably pertinent to treatment."). When the alleged abuseris not a member of the victim's household, the exception is notmade. See United States v. Iron Shell, 633 F.2d 77, 83-85 (8thCir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68L.Ed.2d 203 (1981); United States v. Nick, 604 F.2d 1199,1201-02 (9th Cir. 1979). The instant case falls somewherebetween the general rule and the exception. At the time of thealleged incidents Brian Nelson was not a member of T.N.'shousehold, although he periodically took her to his own homefor overnight visits.

13. See also State v. Lindner, 142 Wis.2d 783, 792,419 N.W.2d 352, 355-56 (Ct.App. 1987) (allowing a postconvictionunavailability hearing).

14. Section 906.01 of the Wisconsin Statutes provides that:

Every person is competent to be a witness except as provided by ss. 885.16 and 885.17 or as otherwise provided in these rules.

15. The exceptions contained in Federal Rule of Evidence804 include: (1) former testimony; (2) statement under beliefof impending death; (3) statement against interest; (4)statement of personal or family history; and (5) a residualexception which excepts:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

16. Subsections (5) through (23) of Federal Rule ofEvidence 803 except the following from hearsay, whether or notthe declarant is available: (5) recorded recollection; (6)records of regularly conducted activity; (7) absence of entryin records kept in accordance with the provisionsof paragraph (6); (8) public records and reports; (9) recordsof vital statistics; (10) absence of public record or entry;(11) records of religious organizations; (12) marriage,baptismal, and similar certificates; (13) family records; (14)records of documents affecting an interest in property; (15)statements in documents affecting an interest in property;(16) statements in ancient documents; (17) market reports,commercial publications; (18) learned treatises; (19)reputation concerning personal or family history; (20)reputation concerning boundaries or general history; (21)reputation as to character; (22) judgment of previousconviction; (23) judgment as to personal, family or generalhistory, or boundaries.

17. The first four exceptions, found in Federal Rule ofEvidence 803, are: (1) present sense impression; (2) excitedutterance; (3) then existing mental, emotional, or physicalcondition; (4) statements for purposes of medical diagnosis ortreatment.

18. See Part II(C)(1), above.

19. The dissent also believed that the child could havetestified via videotape or some other non-conventional means,but that the child should not have been excused altogetherfrom testifying. Nelson's trial was held before the effectivedate of the Wisconsin statute permitting videotapeddepositions of child witnesses to be admitted into evidence.See Wis.Stat. § 967.04(7)-(10). Wisconsin courts have held thatthe use of such a deposition without a showing that the witnessis unavailable violates the Sixth Amendment. See State v.Lindner, 142 Wis.2d 783, 790, 419 N.W.2d 352, 355 (Ct.App.1987).

20. The parties have not cited, and the court has notlocated, any case explicitly stating that the federalcounterpart to section 908.03(4), Federal Rule of Evidence803(4), is a firmly rooted hearsay exception.

21. Courts have reasoned that if a declarant makes astatement while under the impression that she is being askedto indicate who was responsible for what happened, herresponse may very well be accusatory in nature and "anyinherent reliability of such a statement is therebydestroyed." United States v. Narciso, 446 F. Supp. 252, 289(E.D.Mich. 1977).

22. Dr. McLean's testimony provided the only evidence fromwhich the jury could find that T.N. actually made thestatements in question. See United States v. Guinan,836 F.2d 350, 358 (7th Cir. 1988) ("statements are [constitutionally]admissible even where there was no cross-examination if it isclear (1) that the declarant actually made the statement inquestion; and (2) there is circumstantial evidence supportingits veracity"). Dr. McLean testified that he sometimes jotteddown T.N.'s statements verbatim during the sessions. See Briefof Respondent at Appendix R.20, p. 29. Other notes containedhis interpretation of T.N.'s nonverbal acts performed during"play therapy," a process Dr. McLean described as "a little bitlike interpreting a dream in an adult." Id. at Appendix R.20, p. 20. These notes were disclosed to the defendant prior totrial, but were not offered into evidence at trial. See Briefof Respondent at 27. Dr. McLean also testified that he hadtaperecorded some of the sessions, but that he had destroyedthe taperecordings prior to trial. See Id. at Appendix R. 20,p. 83.

23. Some commentators are of the opinion that the passageof a considerable period of time between the alleged incidentand the victim's statements provides an opportunity forimproper influence on the part of a third person. See Graham,The Confrontation Clause, the Hearsay Rule, and Child SexualAbuse Prosecutions: The State of the Relationship, 72 MinnesotaLaw Review 523, 532 n. 39 (1988).

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