Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, January 11, 1995                   TAG: 9501110049
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-9   EDITION: METRO 
SOURCE: Associated Press
DATELINE: WASHINGTON                                LENGTH: Medium

HIGH COURT OVERTURNS CONVICTION IN SEX ABUSE CASE

The 5-4 ruling Tuesday could make it harder to prosecute some cases, such as child-sex-abuse cases, in which witnesses are accused of lying or having improper motives.

The justices said a federal trial judge improperly let witnesses in the New Mexico case testify that the girl told them her father had sexually abused her.

``Courts must be sensitive to the difficulties attendant upon the prosecution of alleged child abusers,'' where the child often is prosecutors' only eyewitness, Justice Anthony M. Kennedy wrote. But he added that federal trial rules cannot be altered to fit a particular type of case.

The sex-abuse case involved hearsay testimony - regarding events a witness was told about but did not actually see - which generally is not admitted in federal court.

Federal trial rules allow exceptions, such as when a statement might confirm the testimony of another witness accused of lying.

But the court decided the rules allow such testimony only if the out-of-court statements were made before the motive to lie arose.

Otherwise, Kennedy wrote for the court, ``the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones.''

The sex-abuse case illustrated the point, the justice said.

``In response to a rather weak charge that ... [his daughter's] testimony was a fabrication created so the child could remain with her mother, the government was permitted to present a parade of sympathetic and credible witnesses'' who said the girl told them her father had abused her, Kennedy wrote.

Although the statements might indicate whether the abuse occurred, they ``shed but minimal light on whether ... [the girl] had the charged motive to fabricate,'' Kennedy said.

Kennedy noted that the witnesses' statements still could be admitted under another federal trial rule. He said that question is up to a federal appeals court to decide.

In a separate case, the court made it harder for financially troubled trucking firms to collect some fees from their customers. The 9-0 ruling said the Interstate Commerce Commission's credit regulations take precedence over a trucking company's need to adhere to published rates.