Loyal Miller v. Tennessee Board of Paroles - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE FILED
February 1, 1999
LOYAL MILLER, ) Cecil W. Crowson
) Appellate Court Clerk
Plaintiff/Appellant, ) Davidson Chancery
) No. 97-4127-I
VS. )
) Appeal No.
TENNESSEE BOARD OF PAROLES, ) 01A01-9806-CH-00293
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT
FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
For the Plaintiff/Appellant: For the Defendant/Appellee:
Kenneth L. Miller John Knox Walkup
Logan Thompson Miller Bilbo Thompson & Fisher Attorney General and Reporter
Cleveland, Tennessee
Michael E. Moore
Solicitor General
Patricia C. Kussmann
Assistant Attorney General
REVERSED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the fundamental fairness of the procedures used by the
Tennessee Board of Paroles to re voke the parole of a p erson accused of c omm itting child
sexual abuse. The Board revoked the parole b ased solely on hearsay testimony concerning
statemen ts made b y his alleged victim. The parolee filed a petition for a comm on-law w rit
of certiorari in the Chancery Court for Davidson County seeking judicial review of the
Board’s decision-making process. After the trial court denied the petition, the parolee
appealed to this court. We ha ve determ ined that the B oard’s hea ring officer ac ted arbitrarily
and illegally by applying an incorrect standard to determine whether good cause existed for
not allowing the parolee to co nfront or to cross-exam ine his only accuser. Accordingly, we
reverse the trial court’s denial of the parolee’s petition for a com mon-law w rit of certiorari
and remand the case to the trial court for the entry of a n order dire cting the B oard either to
conduct a proper parole revocation hearing forthwith or to return the parolee to parole status.
I.
Loyal Miller stabbed Lynn Howell three times during a knife fight on Spivey
Moun tain in Unicoi County. After Mr. Howell died of his wounds, Mr. Miller was convicted
of second degree murder and was sentenced to thirty years in the Department of Correction.1
When Mr. M iller was paro led in 1993 , he returned to Unicoi C ounty and later mov ed to
Bradley County where he attempted to resume an ordinary life.2 After settling in Bradley
County, Mr. M iller maintain ed steady e mploym ent, reported reg ularly to his pa role officer,
paid his parole fees, and remained arrest free.
Some time in 1995, Mr. Miller became acquainted with J.M. who lived next door to
him with her four children. J.M. had recently separated from her husband and was in the
process of obtaining a divorce. Mr. Miller and J.M. became friends and even dated on
1
The Tennessee Court of Criminal Appeals subsequently affirmed both his conviction and
sentence. See Miller v. State, No. 36, 1988 WL 33867, at *6 (Tenn. Crim. App. Apr. 12, 1988),
perm. app. denied (Tenn. July 25, 1988). Three years later, the Court of Criminal Appeals denied
Mr. Miller’s petition for post-conviction relief. See Miller v. State, No. 51, 1991 WL 180613 (Tenn.
Crim. App. Sept. 17, 1991) (No Tenn. R. App. P. 11 application filed).
2
The record contains sketchy, unreliable hearsay evidence concerning the circumstances
surrounding Mr. Miller’s decision to move from Unicoi County to Bradley County.
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several occasions. He also becam e friend s with J .M.’s c hildren , includin g D.M .,3 her eleven-
year-old daughter. M r. Miller wa s popular w ith J.M.’s children and the other neighborhood
children and, on occasion, took them out for ice cream.
On March 4, 1997, a stu dent at Arn old Elem entary Sch ool reported to Becky Guthrie,
a school counselor, that D.M. w as crying in one of the s chool’s ba throoms . Ms. Gu thrie
found D.M. in a girls’ bathroom and escorted the child to her office to talk with her privately.
During the interview, D.M . told Ms. Guthrie that Mr. Miller had fondled her between her
legs while they had be en riding around in his truck during the past weekend. D.M. also
recounted other incidents in which she said that Mr. Miller had kissed her on the mouth and
had touched her breasts. M s. Guthrie contacted the local police and the Department of
Children’s Services, an d soon the reafter, represe ntatives of th ese agencies arrived at the
school and took charge of the investigation.
Tom Eady, an employee of the Department of Children’s Services, and Detectiv e
Sheila Freeman of the Cleveland Police Department interviewed D.M. at the school on
March 4, 1997 in M s. Guthrie’s p resence. D .M. told them that Mr. Miller had “touched me
in places where he shouldn’t have.” She stated that on February 28, 1997, M r. Miller had
put his hand down the front of her shirt and the front of her pants while they were driving
down the road past the library. She also stated that Mr. Miller had put his hand down her
pants on two prior occasions and that he put his hands on her breasts while “popping” her
back at his house. At the conclusion of the interview, the investigators told D.M. that she
had “d one the right thin g” by ta lking w ith them and tha t “we’r e going to take c are of it.”
Detective Freeman interviewed Mr. Miller on April 30, 1997 at the Cleveland Police
Departm ent. While M r. Miller denied ever placing his hands under D .M.’s clothes, he
admitted that he had popped her back. He stated that he “would lay her down on the floor
on her belly and just take my hands and push up and down on her spine and it will pop her
back.” Whe n Dete ctive Fr eema n asked why D .M. had accused him of ab using her, Mr.
Miller stated that she had become angry with him several times because he had told her
mother that she w as getting into cars with b oys. H e also sta ted that h e thoug ht that D .M.
might be tryin g to “ge t . . . [him] out o f the picture” because s he was u nhappy about him
seeing her mothe r.
3
The trial court granted the Board permission to submit the record of the parole revocation
proceedings under seal because it contains documents disclosing the identity of an alleged victim
of child sexual abuse. We question whether Tenn. Code Ann. § 37-1-409(1996) applies to evidence
introduced before the Board of Paroles or in common-law certiorari proceedings. However, because
of the nature of the alleged offense and the age of the alleged victim, we will refer to the victim and
her family members by their initials.
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Mr. Miller wa s arrested on a parole vio lation warran t but was n ever crim inally
charged with se xual ba ttery. O n July 1 6, 1997 , he requested a speedy parole revocation
hearing. On July 23, 1997, Gale Reed, the supervisor of the Board’s office in Bradley
County, Linda Brown, Mr. Miller’s parole officer, and Diane Hodo, the victim/witness
coordinator for the d istrict attor ney’s o ffice m et with J .M. and D.M . to prepare the child for
testifying at the parole r evocation hearing. T hey disco vered that J.M . did not believe her
daughter had been telling the truth and that D.M. would not discuss her accusations about
Mr. Miller with anyone other than Kim Brown , a family coordinator w ith the Governor’s
Comm unity Preven tion Initia tive for C hildren . Kim Brown had apparently been counseling
one of D.M.’s siblings concerning matters unrelated to Mr. Miller. They also discovered that
D.M . would not per mit the m to tak e a vide otaped statem ent.
The Board employees and the victim/witness coordinator decided that D.M. had been
“intimidated” and “harassed” because her family did not believe her allegations aga inst Mr.
Miller. They decided to ask Kim Brown to have another private discussion with D.M.
During a conversation w ith Kim B rown on A ugust 12, 1997, D .M. recounted tw o more
incidents that she had previously not mentioned to the authorities. One involved an occasion
when Mr. Miller had told D.M. that “[y]our pa nts are big enough for you and I to fit in.” The
other involved in appropriate touching in Mr. M iller’s bedroo m, even though D .M. had to ld
the investigators on March 4, 1997, that Mr. Miller had never tried anything in the bedroom.4
Kim Brown reported back to Ms. Reed on August 13, 1997 that D.M. was “scared and
tearful” and that she “appe ared to be very con fused and scared if she w ould have to testify
. . . [against] Mr. Miller.” Based on this information, the Board’s employees decided not to
call D.M. as a witness at Mr. Miller’s parole revocation hearing.
The Board’s h earing office r conduc ted Mr. M iller’s parole revocation hearing on
August 21, 1997 at the Bru shy Moun tain Correctional Com plex. The parole officer
presenting the case against Mr. Miller called only two witnesses – Ms. Guthrie and Mr. Eady.
Detective Freeman failed to appear even though she had been subpoenaed, and Kim Brown
did not attend because of prior commitments. Over M r. Miller’s strenuous objections, Ms.
Guthrie recounted D.M.’s hearsay statements to her on March 4, 1997, and Mr. Eady
authenticated the trans cript of th e intervi ew he and D etective Freem an con ducted with D .M.
on March 4, 1997. The hearing officer also permitted Mr. Eady and Ms. Guthrie to express
their belief that D.M. was telling the truth. Even though Ms. Reed w as not called as a
4
On March 4, 1997, D.M. stated that she had been in Mr. Miller’s bedroom looking at a Bible
and that Mr. Miller had not done anything in the bedroom. On August 12, 1997, D.M. told Kim
Brown that she had gone into Mr. Miller’s bedroom looking for “rings for an African American
project for school” and that Mr. Miller had followed her into the bedroom and had touched both of
her breasts with his hands and had “touched me on my vagina with both hands.”
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witness, the hearing officer permitted her to recount Ms. Hodo’s and Kim Brown’s hearsay
statements concerning D.M.’s refusa l to discuss the incident. The balan ce of the Board’s
case consisted o f a transcript of th e statemen t Mr. M iller gave to D etective Free man on April
30, 1997 and a copy of M s. Kim Brow n’s report of her conversation with D.M. on August
12, 1997.
Mr. Miller testified o n his own be half. He de nied sexu ally abusing D.M. or touching
her in an inappropriate way. He also explained the references to “popping” D.M.’s back by
describing how he “popped ” D.M .’s older sister’s b ack to help her with headaches caused
by her back problem s. Apparently the sister’s chiropractor also “popped” her back to give
her some relief. Mr. Miller stated that he had also “popped” D.M.’s back but denied ever
putting his hands on her bre asts while doing it. Mr. M iller’s attorney also introduced a sw orn
statement by J.M. In her statement, J.M. confirmed that D.M. had told her that Mr. Miller
had put his hands in her pants but added that when she pressed D.M. for details, her daughter
told her that “he grabbed a belt loop of her baggy pants, pulled them out and said ‘there’s
enough room in th ere for both of us.’ . . . [D.M.] never told me . . . that . . . [Mr. Miller’s]
hands were inside her pants.” J.M. also stated that D.M. had told her father about Mr. Miller
grabbing her belt loops. In addition, she explained that she had questioned her older
daughter about the “popping” incident and that her older daughter had confirmed that she had
been present during the incident and that M r. Miller had not touched D.M.’s breasts. J .M.
concluded by stating that she believed that D.M. was simply emb arrassed about M r. Miller’s
comm ents ab out the s ize of he r pants.
Following a 43-minute recess, the hearing officer announced that she had concluded
that Mr. Miller had violated the rules o f his parole “based on the testimony of the State’s
witnesses here today that I feel is reliable proof.” She also stated that she intended to
recommend to the Board that Mr. Miller’s parole be revoked. Between August 25 and
September 25, 199 7, three Board members signified their agreement with the hearing
officer’s recommendation, and on October 3, 1997 , Mr. Miller was no tified that the Board
had concurred with the hearing officer’s recommendation to revoke his parole. Mr. Miller
sought administrative review of this decision and received word on November 21, 1997 that
his request for review had been denied.
On Decemb er 12, 1997, M r. Miller filed a petition for a comm on-law writ of certiorari
in the Chancery Court for Davidson County. He asserted that the hearing officer had denied
his right to due process by allowing the introduction of hearsay evidence which had not been
established as being reliable and by not allowing confrontation of witnesses without the
required finding of good cause. On Ap ril 22, 1998, the trial court filed an order d enying Mr.
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Miller’s petition base d on its findin g that “the h earing office r did not exc eed his [sic]
authority or act arbitrarily, illegally or fraudulently in determining that good cause existed
for not allowing the petitioner to confront the child witness.” This appeal followed.
II.
Prisoners do not have a right to be released from confinement prior to the expiration
of their sen tence. See Tenn. Code Ann. § 4 0-28-117 (a) (1997); Graha m v. State, 202 Tenn.
423, 426, 304 S.W.2d 622, 623 -24 (1957 ); Tarpley v. Traughber, 944 S.W.2 d 394, 395
(Tenn. Ct. App. 1996). Decisions to grant parole are discretionary and are solely the
prerogative of the T enness ee Bo ard of P aroles. See Tenn. Code Ann. § 40-28-116(a)(1)
(Supp. 1998); State ex rel. Ivey v. Meadows, 216 Tenn. 678, 685, 393 S.W.2d 744, 747
(1965). These decisions may be reviewed using a common-law writ of certiorari, but the
courts may no t overturn the m if they have been done accord ing to law . See Tenn. Code Ann.
§ 40-28-115 (c) (Supp. 1 998); Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn. Crim. App.
1995). The scope of review available thro ugh a com mon-law writ of certiorari is ex tremely
narrow. The writ may be used only to determine w hether, in a particular case, the Board
exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily; it m ay not be u sed to
review the corr ectness of the B oard’s d ecision . See Arnold v. Tennessee Bd. of Paroles, 956
S.W.2d 478 , 480 (Tenn. 1997 ).
The Board’s decisions either to revo ke or to resc ind parole a re also review able only
through a com mon- law w rit of certio rari. See Sanders v. Tennessee Bd. of Paroles, 944
S.W .2d 395, 397 (Tenn. C t. App. 199 6) (revoca tion of paro le); Daniels v. Traughber, No.
01A01-9707-CH-00297, 1998 WL 221075, at *3 (Tenn. Ct. App. May 6, 1998), perm. app.
denied (Tenn. Jan. 4, 1999) (recission of parole). Accordingly, we will review decisions to
revoke parole to determine whether the Board exceeded its jurisdiction or acted illegally,
fraudulently, or arbitrarily. We will not review the Board’s decision simply to determine
whether it is correct, and we will not grant relief if the decision was arrived at in a
constitutional and law ful ma nner. See Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d at
480 ; Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App . 1994).
III.
This appeal does not require us to decide wheth er Mr. M iller sexu ally abu sed D .M.
The sole issue here involves the ad equacy and fun damental fairness of the p rocedure
employed by the Board to rev oke Mr. M iller’s parole. If we find that the procedure
employed in this case comports with all applicable statutory and constitutional requirements,
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then we must affirm the trial court’s denial of Mr. Miller’s petition for a com mon-law writ
of certiorari. If, however, we find that the proc edure w as inconsiste nt with app licable
statutory and cons titutional requirements, then we must grant Mr. Miller relief. The
appropriate relief is not to absolve him of the allegations against him but rather is to remand
the case to the Board to afford Mr. Miller a constitutionally adequate parole revocation
hearing.
A.
We first address the necessary proc edural ingredients for a constitutiona lly adequa te
parole revocation hearing. Because parole revocation proceedings are not criminal
prosecutions, parolees facing the revocation of their parole are not entitled to the fu ll panoply
of proced ural righ ts accor ded to d efenda nts in crim inal trials. See Pennsylvania Bd. of
Probation & Paro le v. Scott, ___ U.S. ___, ___, 118 S. C t. 2014, 202 2 (1998); Morrissey v.
Brewer, 408 U.S. 471, 48 0, 92 S . Ct. 259 3, 2600 (1972 ). They are , nevertheles s, entitled to
certain minimum due process pro tections stem ming from the state and federal constitutions,
state law, and the Board’s own rules. See Wells v. Tennessee Bd. of Paroles, 909 S.W.2d
826, 82 9 (Ten n. Ct. A pp. 199 5).
The minimum due p rocess prote ctions afford ed parolee s facing the lo ss of their liberty
should by now be well-known to the courts and the parole authorities. Chief Justice Burger
has stated that they include:
(a) written notice of the claimed violations of parole; (b)
disclosure to the parolee of evidence against him; (c)
opportun ity to be heard in person and to present witnesses and
documen tary evidence; (d) the right to confront and cross-
examine adverse witnesses (unless the hearing officer
specifically finds good cause for n ot allowing confrontatio n); a
“neutral and detached” hearing body such as a traditional parole
board, mem bers of w hich need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to the
evidence relied on and reasons for revoking parole.
Morrissey v. Brewer, 408 U.S. at 489, 92 S. Ct. at 2604. Both this court and the Tennessee
Court of Criminal Ap peals have held that the T ennessee Boa rd of Paroles must ad here to
these procedural req uirem ents. See Jennings v. Traughber, No. 01A01-9509-CH-00390,
1996 WL 93763, at *4-5 (Tenn. Ct. App. Mar. 6, 1996) (No Tenn. R. App. P. 11 application
filed); Young v . State, 539 S .W.2d 850, 85 3 (Ten n. Crim . App. 1 976).
These minimu m standa rds reflect a preference for perm itting parolees to confront and
cross-examine their accuse rs; howev er, they also p ermit the B oard’s hea ring officers to
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dispense with confrontation and cross-examination for good cau se. How ever, the Sta te even
concedes that parolees must be g iven “an o pportunity to cross-examine adverse witnesses
unless the hearing officer specifica lly finds good c ause fo r not allo wing c onfron tation.”
Thus, when good cause exists, hearing officers in parole revocation hearings may permit the
introductio n of letters and affidavits that, by their very nature, have not been tested by
confrontation and cross-examination. See Morrissey v. Brewer, 408 U.S . at 489, 92 S . Ct.
at 2604; Sanders v. Tennessee Bd. of Paroles, 944 S.W .2d at 397. T he issue tha t remains to
be decided concerns what must be proven to demonstrate good cause for denying a parolee
the opportunity to confront and cross-examine adversary witnesses.
Good cause is not a precise standard, and there is no bright-line rule for determining
whether good cau se exists. The inquiry is factu ally driven and may, in large measure,
depend on the nature and purpose of the evidence sought to be introduced. Thus, for
example, persons who desire to express an opinion either favoring or opposing the revocation
of parole based on the parolee’s character, the nature of the parolee’s underlying conviction,
the parolee’s institutional conduct, or the paro lee’s reputation in the community need not be
subjected to confrontation and cross-examination because their statements are simply
personal opinions. The Board receives these sorts of letters and communications every day,
and it would ad d little to the integrity of the hearin g process to require pers ons desiring to
give opinions of this sort to appear in person at the revocation hearing to offer them.
Testimony establishing the grounds fo r revoking a parole sho uld be treated more
rigorously because it provides the basis for depriving the parolee of his or her liberty. Rather
than being merely statements of personal opinion, this testimony is being offered to prove
the truth of the matters contained in it. Accord ingly, the req uiremen ts for its admission must
contain reasonable safeguards to ensure that the testimony is truthful and accurate.
In the Anglo-American legal system, confrontation and cross-examination are the
principal safeguards for assuring that testimonial evidence is true and accurate. Ever since
the treason trial of Sir Walte r Raleigh in 1603 in which Raleigh was convicted and executed
based on the written confession of an alleged co-conspirator, our law has favored rigorous
adversarial testing of testimonial eviden ce. See Dutton v. Evans, 400 U.S. 74, 86 n.16, 91 S.
Ct. 210, 218 n.16 (19 70). As Lord Chief Justic e Hale noted in the seventeenth century,
adversarial questioning “beats and boults out the truth much better than when the witness
only delivers a formal series of his knowledge without being interrogated.” Matthew Hale,
History of the Common Law (1680 ), quoted in 5 John H. W igmo re, Evidence in Trials at
Common Law § 1367, at 34 (Ch adbourn rev. 197 4).
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This same preference for confrontation and cross-examination continues to be
reflected in our modern decisions. Adversarial questioning can test a witness’s (a)
opportun ity to ascertain the facts being testified to, (b) pow ers of perception and memory,
(c) bias, interest, or prejudice, and (d) underlying character for truthfulness, as well as the
completeness of the witness’s account of situations or events. Thus, the Tennessee Supreme
Court has emphasized that adversarial questioning can expose facts that permit the fact-finder
to gauge a witne ss’s reliab ility mo re accu rately, see State v. Howe ll, 868 S.W.2d 238, 252
(Tenn. 1993), and that providing the fact-finder with an opportunity to observe how a witness
testifies in the accused’s presence h as value tha t should no t be easily dismis sed. See State
v. Deuter, 839 S.W.2d 391, 395 (Tenn. 19 92); see also 5 John H. W igmo re, Evidenc e in
Trials at Common Law § 1395, at 153-54 (Chadbourn re v. 1974).
Administrative proceedings such as parole revocation hearings, no less than civil or
criminal judicial proce edings, involve a search fo r the truth. Th us, when presented w ith
hearsay evidence to prove a parole violation, hearing officers must satisfy themselves either
that the evidence is, by its very nature, inherently reliable and the type of information
comm only relied up on by r easona bly pru dent pe rsons, see gener ally State v. Wade, 863
S.W.2d 406, 409 (Tenn. 1993); Tenn. Code Ann. § 4-5-313(1) (1998), or that the evidence
sought to be introdu ced has alre ady been subjected to the same sort of adversarial
questioning as live, in -person testimo ny. See generally State v. Deuter, 839 S.W.2d at 393.
Other courts have applied substan tially sim ilar stand ards on parole r evoca tion hea rings. See
Belk v. Purkett, 15 F.3d 803, 812-13 (8th Cir. 1994); Farrish v. Mississippi State Parole Bd.,
836 F.2d 969 , 977-78 (5 th Cir. 1988 ); Ex parte Taylor, 957 S.W.2d 43, 44-45 (Tex. Crim.
App. 1997).
B.
We now turn to the proce dure used to determine w hether good cause existed for
permitting the Board to prove its entire case against Mr. M iller using untested hearsay
evidence. The hearing officer’s dec ision rests on three grounds – D.M.’s age, the nature of
Mr. Miller’s alleged offense, and th e hearing officer’s subjective belief that the witnesses
offering the hearsay testimony were “reliable.” These reasons do not provide good cause for
depriving Mr. Miller of his opportunity to test the credibility of D.M.’s statements.
In order to make a constitutionally adequate finding that good cause exists for
dispensing with Mr. Miller’s opportunity to confront or cross-examine D.M., the hearing
officer should have considered three issues. First, wheth er D.M .’s out-of-cou rt statemen ts
were inherently re liable and o f the type tha t would b e comm only relied u pon by re asonable
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persons in the conduct of their own affairs. Second, whether D.M.’s statements had been
tested for vera city thro ugh ad versaria l questio ning. Third, whether D.M. was suffering from
such serious em otional distress that she w ould be un able to testify fu lly and truthfu lly if she
were required to testify in Mr. M iller’s pre sence. See State v. Deuter, 839 S.W.2d at 393-94.
1.
T HE I NHERENT R ELIABILITY OF D.M .’S S TATEMENTS
There are three reasons why the current record does not support the hearing officer’s
conclusion that D.M.’s statements concerning Mr. Miller are inherently re liable. First,
children’s reports of sex ual abuse a re no long er perceive d to be inhe rently accura te. Second,
D.M.’s statemen ts to the autho rities are internally inconsisten t. Third, D.M .’s statemen ts to
her parents are not consistent with her statements to authorities.
A belief prevailed at one time th at children’s re ports of sexual ab use were inherently
reliable because children would rarely persist in lying to authority figures about sexual
activity and because children do not have sufficient knowledge about sexual activity to lie
effectively.5 This belief has now been tempered by two developments. First, experience has
shown that a significantly large number of child sexual abuse reports turn out to be erroneous
or unsubstantiated.6 Second, concern exists that the techniques frequently used to interview
children have further undermined the reliability of the children’s statements.7 In light of
these developm ents, there is no empirical basis for treating ch ildren’s testimony concerning
sexual abuse as any more or less reliable than other types of testimony.
This record also contains indications th at D.M.’s statemen ts about Mr. Miller should
not be taken at face value. The credibility of a witness who giv es inconsiste nt statemen ts is
subjec t to ques tion. See Jones v. Lenoir City Car Works, 216 Tenn. 351, 356, 392 S.W.2d
671, 673 (1965); Dailey v. Bateman, 937 S.W.2d 9 27, 930 (Tenn. C t. App. 1996). D.M .’s
5
See, e.g., State v. Myatt, 697 P.2d 836, 841 (Kan. 1985); Robert P. Mosteller, Remaking
Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse
Prosecutions, 1993 U. Ill. L. Rev. 691, 695; Judy Yun, A Comprehensive Approach to Child
Hearsay Statements in Sex Abuse Cases, 83 Col. L. Rev. 1745, 1751 (1983).
6
See Valmonte v. Bane, 18 F.3d 992, 1003-04 (2d Cir. 1994); Christopher J. Sinnott, When
Defendant Becomes Victim: A Child’s Recantation As New Discovered Evidence, 41 Clev. St. L.
Rev. 569, 579 (1993); Jacqueline Beckett, Note, The True Value of the Confrontation Clause: A
Study of Child Sex Abuse Trials, 82 Geo. L.J. 1605, 1606-07, 1632 (1994) (“Beckett”).
7
See Maryland v. Craig, 497 U.S. 836, 868, 110 S. Ct. 3157, 3175 (1990) (Scalia, J.,
dissenting); Felix v. State, 849 P.2d 220, 243 (Nev. 1993); State v. Matsamas, 808 P.2d 1048, 1055
(Utah 1991)(Stewart, J., concurring); Beckett, 82 Geo. L.J. at 1636; Meredith Sopher, The Best of
All Possible Worlds: Balancing Victims’ and Defendants’ Rights in the Child Sexual Abuse Case,
63 Fordham L. Rev. 633, 645-46 (1994).
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statemen ts concerning Mr. Miller are both internally and externally inconsistent. On March
4, 1997, she told investigators that Mr. Miller never touched her while she was in his
bedroom; howev er, on Au gust 12, 19 97, she told Kim Bro wn that Mr. Miller had touched
her breasts and vagina with both hands while she was in his bedroom looking for “rings for
an African American project for school.” In addition, her statem ents to the investigators
concerning another incident when she stated that Mr. Miller put his hands inside her pants
are inconsistent with her statements to both her mother and father that Mr. Miller grabbed
a belt loop of her baggy pants, pulled them out, and told her that “[y]our pants are big enough
for you and I to fit in.”
2.
T HE C IRCUMSTANCES U NDER W HICH D.M. G AVE H ER S TATEMENTS
The record is likewise cle ar that the ver acity of D.M .’s hearsay sta tements was never
tested by any sort of adversarial questioning. The investigators conducted extremely
informal interviews with the child. D.M. was never placed under oath. She was never asked
if she understood the difference between telling the truth and telling a lie, and she was never
cautioned about the importance of telling the truth. She was, however, congratulated by the
investigators for making the statements. The investigators told her that they were “proud”
of her for talking to them, that she “did the right thing” by talking with them, and that they
were “going to take care o f it.” Mr. M iller’s lawyer w as never af forded an opportun ity to be
present when the inve stigators questio ned D .M. or to ask her any questions at all. Under
these circumstances, no conclusion can be drawn other than D.M.’s statements have never
been tested for veracity using techniques similar to those that would have been employed had
she testified at the parole revocation hearing.
3.
D.M .’S A BILITY TO T ESTIFY
The purpose of a fact-finding hearing is to seek the truth. Courts and legislatures have
recognized that a fact-finder’s ability to discover the truth may be undermined when a young
victim of sexual abuse is so intimidated by her abuser that he or she is too fe arful to talk in
the abuser ’s prese nce. See Coy v. Iowa, 487 U.S. 1012, 1032, 108 S. Ct. 2798, 2809 (1988)
(Blackmun, J., dissenting); P aula Hill & Samue l Hill, N ote, Videotaping C hildren’s
Testimony: An Em pirical View, 85 Mic h. L. Rev. 8 09, 827 (1 987); Dia ne K. V aillancourt,
Note, State v. Thomas: Face to Face With Coy and Craig – Constitutional Invocation of
Wisconsin’s Child Witness Protection Statute, 1990 Wis. L. Rev. 1613, 1614. Accordingly,
they have established and approved procedures permitting victims of child sex ual abuse to
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testify outside of the alleged abuser’s presence as long as there has been a finding that the
child would be una ble to co mm unicate otherw ise. See Maryla nd v. Cra ig, 497 U.S. at 857,
110 S. C t. at 3170; State v. Deuter, 839 S.W .2d at 393-9 4; Ex parte Taylor, 957 S.W.2d at
45-47; see also 18 U.S.C .A. § 3509 (b)(1)(B)(i), (ii), (iv) (West Supp. 1998); Tenn. Code
Ann. § 24-7-12 0(a)(3) (Supp. 1998 ).
The evidence concerning D.M.’s ability to testify in Mr. Miller’s presence is sketchy.
Ms. Reed informed the hearing officer that D.M. declined to discuss Mr. Miller and refused
to give a videotaped statement when she, Linda Brown, and Ms. Hodo talked with D.M. and
J.M. on July 23 , 1997. Ev en though Kim Brown did not attend the parole revocation hearing,
the record also contains her hearsay statements that D.M. was “scared and tearful” on August
12, 1997 and that she “appeared to be very confused and sca red if she would ha ve to testify
. . . [agains t] Mr. M iller.”
There are two possible explanations for D.M.’s reticence in July and August 1997.
First, her con duct could indicate that D.M . remains s o fearful of M r. Miller that sh e would
be unable to testify fully and truthfully in his presence. Second, her cond uct could in dicate
that D.M. realizes that her statements regarding Mr. Miller were mistaken or exaggerated.
D.M. should no t be perm itted to avoid confronting Mr. Miller unless the first explanation
is correct. But even if the first explanation is correct, it does not provide a basis for
concluding that Mr. Miller, through his lawyer, was not entitled to an opportunity to test
D.M.'s credibility under proper circumstances.
IV.
We are only now beginning to realize that child sexual abuse is a major and growing
problem in our society.8 This abus e perma nently affec ts its victims’ lives, and its societal
costs are staggeringly high.9 Yet, despite the horrendously repulsive nature of the offense,
these proceedings present sensitive and difficult procedural problems because of the
competing interests at stake. Like judicial proceedings in which child sexual abuse is at
8
See Donald C. Bross, Terminating the Parent-Child Relationship As a Response to Child
Sexual Abuse, 26 Loy. U. Chi. L.J. 287, 289 (1995) (stating that five studies conducted between
1940 and 1978 indicate that from 17% to 28% of middle class women reported being the victims of
sexual abuse); Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative
Innovations, 98 Harv. L. Rev. 806, 806 (1985) (stating that as many as one in five females and one
in eleven males are sexually abused as children).
9
See Cynthia G. Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in
Sexual Abuse Survivor Therapy, 109 Harv. L. Rev. 549, 552 (1996); Lynne Henderson, Without
Narrative: Child Sexual Abuse, 4 Va. J. Soc. Pol’y & L. 794, 538 (1997).
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issue, administrative proceedings must be conducted according to a fundamentally fair legal
proced ure.
In this case, the hearing off icer acted arb itrarily and illegally by failing to apply the
proper standards for determining whether good cause existed for preventing Mr. Miller from
confronting and cross-examining D.M. To strike an appropriate balance be tween Mr.
Miller’s rights of confrontation and cross-e xamination and the Board’s desire to shield D .M.
from the trauma and stress of testifying, the hearing officer should have first determined
whether D.M. w as unable to testify com pletely and truthfully in Mr. Miller’s presen ce. If
D.M. was com pletely una ble to testify in Mr. Miller’s presence, then the hearing officer
should have determined whether her testimony was inherently reliable or whether it had
already been subjected to adversarial questioning substantially equivalent to cross-
examination in cour t. Unless the hearing officer determined from all the circumstances that
D.M.’s testimony was inherently reliable, Mr. Miller should have been afforded an
appropriate opportunity to test the credibility of D.M.’s accusations.
V.
The order dismissing Mr. Miller’s petition for a com mon-law writ of certiora ri is
reversed and the case is remanded to the trial court with directions to enter an order granting
the writ of certiorari and remanding the proceeding to the Boa rd with dire ctions either to
provide Mr. M iller forthwith w ith a proper parole revocation hearing or to restore Mr. Miller
to his statu s as a pa rolee. We tax the costs of this appeal to the Tennessee Board of Paroles.
____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
_________________________________
BEN H. CANTRELL,
PRE SIDIN G JU DGE , M.S.
_________________________________
WILLIAM B. CAIN, JUDGE
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