# Amicus Curiae Brief — Idaho v. Wright > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0664%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 497 U.S. 805 ## Text Jn the Supreme Court of the Ani } OCTOBER TERM, 1988 STATE OF IDAHO, PETITIONER V. LAURA LEE WRIGHT ON WRIT OF CERTIORARI TO THE SUPREME COURT OF IDAHO BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assisiant Attorney General WILLIAM C. BRYSON Deputy Solicitor General MICHAEL R. DREEBEN Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED Whether an out-of-court statement by respondent’s child that she had been sexually abused had the particularized guarantees of trustworthiness needed to justify its admission under the Confrontation Clause. (1) ——— TABLE OF CONTENTS Interest of the United States ....................... Statement Summary of argument ... 2... cee Argument: The Idaho Supreme Court erred in holding that the admission of the out-of-court statements of respondent's daughter violated the Confrontation SE bvk< tn tcddcdnennddsadeneneeekaeue A. The court below erred in analyzing whether the hearsay statements made by respondent's daughter had particularized guarantees of RO Ra ae ee 1. A court should determine the trust- worthiness of a statement trom all the sur- rounding circumstances, and should con- sider whether cross-examination would have practical value in testing the state- I ss bu cncundtednkeehhs . The statements of respondent's daughter have particularized guarantees of trust- NE xo nb ko bk hedaneaendedas 3. The Idaho Supreme Court applied incor- rect. standards under the Controntation RE sdb554006eeebh ons ceeee eeununes The hearsay statements in this case have addi- ty tional guarantees of reliability because of their resemblance to statements “made for purposes of medical diagnosis or treatment” . I Sood Sel dg en ee (lil) 13 i4 18 , IV TABLE OF AUTHORITIES Cases: Page Barker v. Morris, 761 F.2d 1396 (9th Cir. 1985) 11, 12, 18 Bourjaily v. United States, 483 U.S. 171 (1987)... 7, 8, 10, 23 California v. Green, 399 U.S. 149 (1970)... 8, 10 Coy v. lowa, 108 S. Ct. 2798 (1988)... 2... 8, 13 Cruz vy. New York, 481 U.S. 186(1987)........ 7 Delaware vy. Van Arsdall, 475 U.S. 673 (1986)... 11 Dutton vy. Evans, 400 U.S. 74(1970) 0.0... 5, 8, 9, 10, 12, 18 Haggins v. Warden, 715 F.2d 1050 (6th Cir. a si re eR ere ee ok a 24 Aentucky v. Stincer, 482 U.S. 730(1987) 0.2... y Lee v. lilinois, 476 U.S. 530 (1986)... 0... 8, 10, 11 Mattox \. United States, 156 U.S. 237 (1895)... .. 7 Meany vy. United States, 112 F.2d $38 (2d Cir. ES Re ait ae Cie a ee three a ears = 18-19 Morgan. Foretich, 846 F.2d 941 (4th Cir. 1988) .. 12, 23 Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989), cert. denied, 110 S. Ct. 835 (1990) | east ma: | .% 22, 23 Ohio \. Roberts, 448 U.S. 56 (1980) . ....§, 8 9 23 Oldsen \. People, 732 P.2d 1132 (Colo. 1986) . 22 Pennsyivania v. Ruchie, 480 U.S. 39 (1987)... | Rock v. Arkansas, 483 U.S. 44 (1987)... 17 State \. Giles, 115 Idaho 984, 772 P.2d 191 (1989). 4, 13 Staite \. Herbert, 480 A.2d 742 (Mle. 1984) . : 22 State \. lwakiri, 106 Idaho 6138, 682 P.2d 37 PR A SE Re i ee + 17 State \. Robinson, 153 Ariz. 1Y1, 735 P.2d 8Ol (1987) are a - ae 22 State \. Surenson, 143 Wis.2d 226, 421 N.W 2d 77 (1988) Cr ll, 12 Jennessee \. Street, 471 U.S. 409 (1985) S Cnited States \. Deland, 22 M.J. 70(C.MLA.), cert. demied, 479 LS. 856 (1986) | 20 V Cases — Continued: Page . United States v. DeNover, 811 F.2d 436 (8th Cir. ER ere Pee ee oe a See 2! United States v. Dorian, 803 F.2d 1439 (8th _ SUG o.0c4sdances andecu see Joss 1, 12, 22 United States v. Inadi, 475 U.S. 387 ee rn 14, 22 United States v. lron Shell, 633 F.2d 77 (8th Cir. 1980), cert. demed, 450 U.S. lOOL (1981)... 11, 19, 20, 21, 23 United States v. Lechoco, 542 §.2d 84 (D.C. Cir. NE og NU onda > a ae 20 Unued States v. Nick, 604 F.2d 1199 (9th Cir. CN) A oP hid A ee ee ee . Uniued States v. Nickle, 60 F.2d 372 (8th fo EE Weday se duddn da cea ees baka 19 United States \. Owens, 484 U.S. 554 (1988)... .. 9,17 United States v. Provost, 875 F.2d 172 (8th Cir.), cert. demed, 110S. Ct. 170(1989) .... 00.00... 20, 21 Unued States v. Quick, 22 M.J. 722, (A-C.MLR. 1986), att'd, 26 M.J. 460 (C.M.A. 1988)... 22 United States \. Renville, 779 F.2d 430 (8th Cir. PRR errno Fe EU er ey Pe me 21, 23 United States \. Shaw, 824 F.2d 601 (8th Cir. 1987), cert. denied, 484 U.S. 1068 (1988)............. 21 Cnued States \. Spotted War Bonnet, 882 F.2d 1360 (8th Cir. 1989), petition for cert. pending, Pe, SE . isa caVeneebhaa seas auann ced 22 United States \. Vazquez, 857 F.2d 857 (ist Cir. DT Snack pavechsenndienétesbeatausumsenante 24 Constitution, statutes and rules: U.S. Const. Amend. VI (Controntation Clause) .. passir Se a I oy Pe a ln ae weeds eaeadd l Idaho Code § 18-1508 (1987)... 00.0... hs wie 4 bed. R. Evid: ge oy ee ee ee ede s ED ois Wandkdbaveuseds er ee 24 Vi Rules — Continued: Page ee ie a ois ok ce eenkee ee 24 is ins ee eee eneehene 24 EE 16, 19, 20, 21 CT eer, 4, 11 PE Me ce natependacds th aneeeene 11 knee pnedabeseseseseea 22 Idaho R. Evid.: te se eee see adbewsvaedet 20 rt... dk cache kiekonbsheseeeene 4 Miscellaneous: Advisory committee notes, 28 U.S.C. App. (1982) . 19, 20 Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn. L. Rev. a a ee aa aia ee i hae a ihe g 13, 22 H.R. Rep. No. 650, 93d Cong., Ist Sess. (1973)... 19 4 D. Louisell & C. Mueller, Federal Evidence (1980 Las el ei daduredseewsknbte0ee-e 19 C. McCormick, Handbook of the Law of Evidence OE EE ee 23 Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, er is ME, EE vc ccucevescevceéos: 22 Myers, Bays, Becker, Berliner, Corwin & Saywitz, Expert Testimony in Child Sexual Abuse Litiga- tion, 68 Neb. L. Rev. 1 (1969) ................ 16-17 J. Myers, Child Witness Law and Practice (1987) . . 13 Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L. A Ee ae ae 24 S. Rep. No. 1277, 93d Cong., 2d Sess. (1974) ..... 19 Vil Miscellaneous — Continued: Page 4 J. Weinstein & M. Berger, Weinstein’s Evidence reer eee 19, 22 5 J. Wigmore, Evidence (J. Chadbourne rev. Ss duikahnindasédsseieansaudeenaneeeen 11 6 J. Wigmore, Evidence (J. Chadbourne rev. SD Wid caancchanccecuakaraneneseenenbaeas 19, 23 In the Supreme Court of the United States OCTOBER TERM, 1988 No. 89-260 STATE OF IDAHO, PETITIONER LAURA LEE WRIGHT ON WRIT OF CERTIORARI TO THE SUPREME COURT OF IDAHO BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER INTEREST OF THE UNITED STATES The question presented ts whether an out-ot-court statement by a child that she had been sexually abused-had the par- ticularized guarantees of trustworthiness needed to justify its admission under the Controntation Clause. The United States prosecules many cases involving child abuse because of its pros- ecutorial responsibilities with respect to the District of Colum- bia, tederal territories, and the military. See also 18 U.S.C. 2243. As this Court has recognized, “[c}hild abuse is one of the most difficult crimes to detect and prosecute, in large part because there are offen no Witnesses except the victim.” Penn- svivania ¥. Ritchie, 480 U.S. 39, 66 (1987). In many cases, the victim is either too young or too frightened to Lestify im a court- room setting, or Would experience traumatic effects trom doing so. Thus, the admissibility of a child’s statement describing sex- ual abuse is often a critical tactor in determining whether an (1) 2 abuser is prosecuted and convicted. For that reason, the United States has a significant interest in the resolution of the Contron- tation Clause issue presented in this case. STATEMENT 1. In 1982, respondent separated from her husband, Louis Wright. They informally agreed that each parent would have custody of their one-year-old daughter during consecutive six- month periods. In April 1984, respondent had a second daughter, fathered by Robert Giles, with whom respondent was then living. On October 7, 1986, pursuant to her arrangement with Wright, respondent took custody of her older daughter. Pet. App. 24. On November 8, 1986, respondent’s older daughter revealed to Cynthia Goodman, Louis Wright’s girlfriend, that her mother and Giles had sexually abused her and her sister. The next day, Goodman reported that statement to the police. Three doctors examined the older daughter that day and found evidence of sexual abuse. One of the examining physicians was Dr. John Jambura, a pediatrician with extensive experience in child abuse cases. Pet. App. 24-25, 59. On the same day, a police officer and social worker took the younger daughter into custody. Dr. Jambura examined her the following day. At the time, the younger daughter was two-and- one-half years old. In the course of his examination of the younger daughter, Dr. Jambura tound conditions “strongly sug- gestive of sexual abuse with vagina contact.” He turther be- lieved that the trauma he had observed in the vaginal area had occurred “approximately two to three days prior to the examina- tion.” Pet. App. 25, 55-58. In the course of the examination, Dr. Jambura conversed with the younger child. He began with “chitchat,” asking her questions such as what she had for breakfast. The child an- swered in a “relaxed” and “animated” tashion. Dr. Jambura then turned to her domestic life, asking her “how are things at home.” After moving to that topic, he asked four specific ques- tions: “Do you play with daddy? Does daddy play with you? 1 Does daddy touch you with his pee-pee? Do you touch his pee- pee?” Dr. Jambura established that “pee-pee” generally con- noted the genital area. Pet. App. 60-62. At trial, Dr. Jambura testified, on direct examination by the State, that the child answered as follows: Q. [What was, as best you recollect, what was her response to the question “Do you play with daddy?” A. Yes, we play—I remember her making a comment about yes we play a lot and expanding on that and talking about spending time with daddy. Q. And “Does daddy play with you?” Was there any response? A. She responded to that as well, that they played together in a variety of circumstances and, you know, seemed very unatfected by the question. Q. And then what did you say and her response? A.- When | asked her “Does daddy touch you with his pee-pee,” she did admit to that. When | asked, “Do you touch his pee-pee,” she did not have any response. Q. Excuse me. Did you notice any change in her affect or attitude in that linefot questioning? A. Yes Q. What did yoy observe? A. She wouldfor—oh, she did not talk any further about that. Shegwould not elucidate what exactly — what kind of touching Was taking place, or how it was happen- ing. She did, how&ser, say that daddy does do this with me, but he does 1 a lot more with my sister than with me. Q. And how did she offer that last statement? Was that in response tO a question or was that just a volunteered statement? A. That was a volunteered statement as | sat and waited tor her to respond, again after she sort of clammed- up, and that was the next statement that she made after just allowing some silence to occur. Pet. App. 61-62; J.A. 122-123. 2. In May 1987, respondent and Giles were tried jointly before a jury on two counts of lewd conduct with a minor under 4 16, in violation of Idaho Code § 18-1508 (1987). At the time of trial, the younger daughter was three. Following a voir dire ex- amination of the child, both respondent’s counsel and the State agreed that the child was not competent to testify, as she was unable to communicate in a trial setting. Pet. App. 3, 27, 29; J.A. 32-39. The older child, who was six at the time, did testify. She stated that Giles had had intercourse with her sister, while respondent had held the younger child’s legs and covered her mouth so she would not scream. Pet. App. 24 n.1; J.A. 61. Dr. Jambura testified about his examinations of the two girls. Over the objections of respondent and Giles, the trial court per- mitted Dr. Jambura to testify about his conversation with the younger child during the examination. Pet. App. 3-4, 25-27; J.A. 108. The trial court found this evidence admissible under Idaho’s residual hearsay exception, Idaho R. Evid. 803(24).' Pet. App. 20-31; J.A. 112-115. The jury convicted respondent and Giles on both counts, and respondent appealed.” 3. The Idaho Supreme Court reversed respondent’s convic- tion on the count regarding the younger daughter. The court held that the admission of the child’s hearsay statements vio- lated respondent’s controntation rights. The court began by stating that statements that tit within a “well-established exception” to the hearsay rule are generally ad- missible under the Confrontation Clause. Evidence admitted pursuant to the “catch-all” provision of Idaho R. Evid. 803(24), however, “should be considered ‘presumptively unreliable and inadmissible for Confrontation Clause purposes’ absent a ‘show- ing of particularized guarantee of trustworthiness.’ ” Pet. App. 7. Applying those principles, the court concluded that the statements made to Dr. Jambura lacked the particularized guar- antees needed to satisty the Controntation Clause. /d. at 8-17. The Idaho residual exception is essentially identical to Fed. R. Evid. 803(24). - Giles also appealed, clammuing that the admission of the younger child's hearsay statements siolated Idaho R. Evid. 803(24). Pet. App. 27. The Idaho Supreme Court attirmed, holding that the trial court had properly apphed that hearsay exception. Stave +. Giles, 11S Idaho 984, 772 P.2d 191 (1989) (reproduced at Pet. App. 23-54). Giles did not raise a Controntation Clause clam. Pet. App. 32. First, the court found Dr. Jambura’s “interview technique” to be unduly suggestive because he had used “blatantly leading questions.” Second, the court stated that Dr. Jambura had come to the interview “with a preconceived idea of what the child should be disclosing.” Finally, the court found the inter- view to be “inadequately reviewable” because “the questions and answers were not recorded on videotape fcr preservation and perusal by the defense at or before trial.” Pet. App. 8. The court evaluated those factors in light of the child’s “tender years,” and theories of developmental psychology that regard the memories of young children as especially sensitive to suggestion. /d. at 8-15. Against that background, the court found that the daughter’s statements were “fraught with the dangers of unre- hability which the Controntation Clause is designed to highlight and obviate.” /d. at 17. SUMMARY OF ARGUMENT The Controntation Clause protects a defendant’s right to cross-examine Witnesses against him. It does not, however, bar the admission of every hearsay statement. The question whether controntation is required tor a particular hearsay statement focuses on the declarant’s unavailability and the reliability of the out-of-court statement. When a statement falls within a tirmly rooted hearsay exception, reliability concerns are satis- fied without more. Even if no such exception applies, reliability can be established if the statement is shown to have “particular- ized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). A. A statement not falling within a firmly rooted hearsay exception may be admitted if a court finds trom the surrounding circumstances that the statement ts sufficiently trustworthy and that itis unlikely that cross-examination of the declarant would significantly undermine the statement’s reliability. In admitting the statements of respondent’s younger daugh- ter, the trial court in this case focused on the strong cor- roborative evidence tor the statements, the absence of a motive 6 to lie, the implausibility that a young child could have invented the statements, and other factors. The trial court’s analysis sup- ports the conclusion that sufficient “particularized guarantees of trustworthiness” were present to satisfy the Confrontation Clause. Moreover, it is difficult to imagine what respondent could have hoped to establish through cross-examination of her three-year-old daughter. Even if on cross-examination respond- ent had managed to get the girl to disown her earlier statements, those statements, which were made to a medical professional shortly after the events occurred, would have lost little of their impact and would have remained reliable and trustworthy evidence against respondent. The Idaho Supreme Court erred by setting forth general rules for the interviewing process that it believed had to be met before a child’s out-of-court statements could satisfy the Contronta- tion Clause. In addition, the court erroneously focused on the veracity and accuracy of Dr. Jambura’s trial testimony, rather than on the statements that were admitted through Dr. Jam- bura’s testimony. The Confrontation Clause requires an inquiry into the reliability of the hearsay statements themselves; that in- quiry does not turn on the reliability of the witness who relates those statements. B. In determining whether a statement has the required guarantees of reliability, courts have considered as One factor the resemblance between the statement and any traditional hear- say exceptions. Here, the hearsay exception for statements “made for purposes of medical diagnosis or treatment” tur- nishes support for admitting the staiements of respondent’s daughter over the Confrontation Clause objection. The hearsay rules have long recognized an exception for statements made for purposes of medical treatment. The exception recognizes that patients have a powerful motive to speak truthfully to their physicians in order to secure proper medical attention. The medical exception has supported the admission of hearsay Statements in many federal cases involving sexual abuse ot children. The admission of hearsay statements made tor purposes of medical treatment does not intringe a detendant’s rights under the Confrontation Clause. The unavailability of the declarant need not be shown because statements made to doctors derive much of their reliability from the context in which they were made. In addition, such statements possess the required indicia of reliability because they fall within a firmly rooted hearsay ex- ception. For that reason, the courts of appeals have ruled that when statements are admitted under the medical exception to the hearsay rule, the Controntation Clause is satisfied without more. In this case, the State offered the medical exception as one basis for admitting the statements of respondent’s daughter and made a showing in the trial court to establish the foundation for applying that exception. The trial court, however, did not rely on that ground, instead admitting the statements under the residual hearsay exception. The hearsay question, of course, is not before this Court. Nonetheless, the resemblance between the context of the statements here and the context required for the medical exception is relevant. Even if not precisely within the medical exception, the statements in this case have some of the same assurances of reliability that underlie the medical ex- ception. That consideration strengthens the conclusion that par- ticularized guarantees of trustworthiness are present. ARGUMENT THE IDAHO SUPREME COURT ERRED IN HOLDING THAT THE ADMISSION OF THE OUT-OF-COURT STATEMENTS OF RESPONDENT'S DAUGHTER VIOLATED THE CONFRONTATION CLAUSE Although this Court has not fully explicated the relationship between the Confrontation Clause and the hearsay rules, a basic approach has emerged. The Controntation Clause protects the right of a defendant in a criminal trial to cross-examine wit- nesses against him. Cruz v. New York, 481 U.S. 186, 189 (1987). The Court has long recognized, however, that the Confronta- tion Clause does not bar the admission of every hearsay state- ment. Mattox v. United States, 156 U.S. 237 (1895); Bourjaily \. United States, 483 U.S. 171, 182 (1987). Because the exclusion of all hearsay would work “extreme” and “unintended” results, Ohio v. Roberts, 448 U.S. 56, 63 (1980), this Court has sought to reconcile the competing interests in admitting probative evidence in criminal trials and in safeguarding the defendant’s right to challenge the reliability of statements through cross- examination. Bourjaily, 483 U.S. at 182. Ct. Coy v. lowa, 108 S. Ct. 2798, 2803 (1988).? The initial step is to determine whether the declarant must be shown to be unavailable before the hearsay statement will be ad- mitted. United States v. Inadi, 475 U.S. 387, 394-400 (1986) (unavailability not required for co-conspirator statements); Roberts, 448 U.S. at 65 & n.7. The second step is whether the out-of-court statement has sufficient “indicia of reliability” to justify its admission without cross-examination of the declarant. Bourjaily, 483 U.S. at 182. Because the “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U.S. 149, 155 (1970), no tur- ther inquiry into a statement’s reliability is required “when the evidence ‘falls within a firmly rooted hearsay exception.’ ” Bourjaily, 483 U.S. at 183; Roberts, 448 U.S. at 66. When a firmly rooted hearsay exception does not apply, reliability con- cerns can be satisfied if there are reasons suggesting that the Statement is unusually likely to be trustworthy. Dutton vy. Evans, 400 U.S. 74 (1970); Lee v. Illinois, 476 U.S. 530, 543 ’ For confrontation purposes, the Court has accepted, as a point of depar- ture, “McCormick’s definition of hearsay as ‘testimony m court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therem, and thus resting tor tls value upon the credibility of the out-of-court asserter.” E. Cleary, MeCormuck on Evidence § 246, p. 584 (2d ed. 1972).” Lee vy. Mlimow, 476 U.S. 530, 543 0.4. (iss See Fed. R. Evid. 801(c). Admission of out-ot-court statements for nonhearsay purposes “raises no Controntation Clause concerns.” Tennessee v. Street, 471 U.S. 409, 414 (1985). The issue in this case és not related to the issue in Cov. Jowa, supra. There, the Court held that a detendant has a right under the Controntation Clause to “confront” face-to-face the witness giving evidence against him at trial. The issue in this case ts the quite different Controntation Clause issue of whether particular out-ol-court statements can be admitted without the declarant tak- ing the stand at all. 9 (1986). Those principles comport with the recognition that “[t}he right to cross-examination, protected by the Confronta- tion Clause, * * * is essentially a ‘functional’ right designed to promote reliability in the truth-finding functions of a criminal trial.” Kentucky v. Stincer, 482 U.S. 730, 737 (1987).* A. The Court Below Erred In Analyzing Whether The Hearsay Statements Made by Respondent's Daughter Had Particular- ized Guarantees Of Trustworthiness Although this Court has made clear that a statement falling outside a firmly rooted hearsay exception may still be admitted it it has “particularized guarantees of trustworthiness,” Ohio v. Roberts, 448 U.S. at 66, the Court has not articulated the fac- tors governing the application of that principle in a particular case. In our view, the Idaho Supreme Court erred in formulating a standard that emphasizes rigid procedural rules in the inter- viewing process, as opposed to considering the entire factual mosaic surrounding the out-of-court statement and the practical value of cross-examination. 1. A court should determine the trustworthiness of a statement from all the surrounding circumstances, and should consider whether cross-examination would have practical value in testing the statement’s reliability This Court in Dutton v. Evans rejected a Controntation Clause challenge to the admission of an out-of-court statement that was not within a well-settled hearsay exception. In Dution, respondent Evans was tried for murder. A cellmate of Evans’ accomplice testified that the accomplice had said, “If it hadn't been tor that dirty son-ot-a-bitch Alex Evans, we wouldn't be in * The Court has also indicated that no inquiry into “indicia of reliability” is required “when a hearsay declarant is present at trial and subject to unrestricted cross-exanunation.” United States \. Owens, 484 U.S. 554, 560 (1988). 10 this now.” 400 U.S. at 77.° A plurality of the Court concluded that the statement was sufficiently reliable to be admitted against Evans, despite the absence of an opportunity for cross- examination of the accomplice. The plurality pointed to several factors that supported the reliability of the statement: first, it did not expressly make an assertion of past fact; second, the in- troduction of other evidence established that the accomplice was in a position to know about Evans’ role in the crime; third, it was unlikely that the accomplice’s statement was based on faulty memory; and, fourth, the circumstances of the statement supported its truth, in that there was no apparent motive for the accomplice to lie, the statement was spontaneous, and it was a declaration against penal interest. /d. at 88-89.° More important than the particular factors described in Dut- fon was the plurality’s rationale. The plurality observed that “the mission of the Confrontation Clause is to advance a prac- tical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satistactory basis for evaluating the truth of the prior statement.’ ” 400 U.S. at 89 (quoting California v. Green, 399 U.S. at 161). In light of that concern, the Controntation Clause was not violated, because the possibility that Evans could have undercut the statement’s reliability through cross-examination was “unreal.” 400 U.S. at 89. In Lee v. Illinois, the Court again recognized that hearsay not covered by a firmly rooted exception may have sufficient “in- dicia of reliability” to overcome a presumption that it is inad- missible under the Confrontation Clause. The issue in Lee was whether a co-defendant’s confession satisfied reliability con- > The statement did not tall within a tirmly rooted hearsay exception, as i was admitted under a Georgia statute that varied trom the common law by covering cO-conspirator statements made alter the termination of the com- spiracy. See Dutton, 400 U.S. at 80-83 (comparing tederal and state co- , CONSpirator statement exceptions); Bourjai/y, 483 U.S. at 183 (analyzing Dui- fon). ® Justice Harlan concurred in the result based on his view that the Contron- tation Clause was not intended to regulate the admission of hearsay, and that the admission of the accomplice’s statement did not violate due prowess. 400 U.S. at 93-100. cerns because it “interlock{ed]” with the confession of the de- fendant. Comparing the two confessions, the Court found fac- tual discrepancies that went to the heart of the issue at trial. 476 U.S. at 546. The Court thus rejected the claim that the co- defendant’s contession was sufficiently trustworthy to be ad- mitted without cross-examination. The Court nevertheless reat- tirmed the principle that hearsay may be found reliable enough to be admitted without cross-examination when it is “marked with such trustworthiness that ‘there is no material departure trom the reason of the general rule.’ ” /d. at 543. The courts of appeals have followed the lead of Dution and Lee in examining the particular facts and circumstances that surround hearsay statements not falling within an established exception. As a matter of constitutional law, the courts have recognized that “{tjhere is no mechanical test for determining the reliability of out-of-court statements.” Barker v. Morris, 761 F.2d 1396, 1400 (9th Cir. 1985) (Kennedy, J.). In each case, the ultimate question is whether the hearsay statement has “suffi- cient indicia of reliability in order to afford the trier of fact a satistactory basis for evaluating the truth of the prior statements.” United States v. lron Shell, 633 F.2d 77, 87 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981). The proper in- quiry should take into account all relevant information bearing on a statement’s reliability. If no plausible line of cross- eXamination could have detracted from the statement’s es: > tial reliability under a practical view of the facts, there is no offense to the values of confrontation in admitting ut. Compare Delaware \. Van Arsdall, 475 U.S. 673, 680 (1986).’ ~ Some courts have tound ut usetul to examine the standards developed in applyimyg the residual exceptions to the hearsay rules. Fed. R. Evid. 80324), 804(b)( 5). See, e.g., Unwed States \. Nick, 604 F.2d 1199, 1203 (9th Cir. 1979); Unued States ». Dorian, 803 F.2d 1439, 1444-1445 (8th Cir. 1986). Cases analy zing the question whether a statement has “circumstantial guarantees ot trustworthiness” equivalent to those of the specific hearsay exceptions, see, e.g., State s. Surenson, 143 Wis.2d 226, 243-254, 421 N.W.2d 77, 83-88 (1988), and authorities explaining and applying the traditional rationales of the hearsay exceptions, see 5 J. Wigmore, Evidence, § 1422, at 253-254 UJ. Chadbourne res. 1974), may be of value in identifying relevant considerations im the constuutional mquiry. 12 Without purporting to set forth an exhaustive list, we note that courts have considered the following factors to be signifi- cant, particularly in the child-abuse context: the corroborative evidence for a statement, including physical evidence of abuse * and the defendant’s opportunity to have committed it; * the child’s motive in a particular situation to be truthful; '® the identity of the person to whom the statement is made and the nature of the questioning that elicited it; '' the plausibility of fabrication in light of the child’s age,'’ specific statements, '’ and spontaneity of expression; '* the proximity in time between the statement and the event; '° and the relationship between the Statement and any traditional hearsay exceptions. '® There may, of course, be other features of the case that enhance the reliability of the statement and affect the impact on the * See United States v. Nick, 604 F.2d at 1204 (“The child’s statement was corroborated by physical evidence on his person and on his apparel.”). * State v. Sorenson, 143 Wis.2d at 246, 421 N.W 2d at 85. ® State v. Sorenson, 143 Wis.2d at 244, 421 N.W 2d at 84. '' Unued States v. Dorian, 803 F.2d at 1444 (questioners were “caretul not to use leading Or suggestive questions during any of the interviews”). ‘= United Siates v. Dorian, 803 F.2d at 1445 ("a declarant’s young age is a factor that may substantially lessen the degree of skepticism with which we view [her] motives”). ‘* Unued States \. Nick, 604 F.2d at 1204 (“The childish terminology has the ring of verity and is entirely appropriate to a child of his tender years.”); Nelson \. Farrey, 874 F.2d 1222, 1229 (7th Cir. 1989) (“Merely playing with anatomically correct dolls would not have given her the idea that one might be sprayed in the face with ‘white mud’ from an erect penis; the dolls aren't thai anatomically correct.”). * Compare Dution v. Evans, 400 U.S. at 88-89. Morgan \. Foretich, 846 F.2d 941, 947 (4th Cir. 1988) (statements were made “within three hours of the child's first opportunity to speak with her mother”). ‘* Compare Barker \. Morris, 761 F.2d at 1401-1402 (noting analogies in statement to dying declarations and declarations against penal imterest). 13 truth-seeking function of the trial of admitting the evidence without cross-examination.'’ 2. The statements of respondent’s daughter have particularized guarantees of trustworthiness The trial court in this case relied on several factors in deter- mining that Idaho’s residual exception to the hearsay rule was satisfied. The trial court noted that there was physical evidence of sexual abuse of the younger daughter that corroborated her statements. The court also observed that the daughter had no apparent motive for fabrication, and that the statements themselves were inconsistent with fantasy on the part of such a young girl. Further, the court closely examined the circum- stances surrounding the most important aspect of the daughter’s statements: the identification of her father as the abuser. The court noted that the doctor had testified that the physical in- juries were inflicted at a time when her father and respondent had custody of her. The older daughter, who did testify at trial, had identified her tather and respondent as having abused the younger child. Moreover, the younger child was perfectly capable of identifying her father, who was, of course, quite familiar to her. Pet. App. 30-31. These considerations led the trial court to believe, that the child’s statement possessed ade- quate circumstantial guarantees of trustworthiness. '* ~ See J. Myers, Child Witness Law and Practice § $.37, at 360-372 (1987) (listing 30 factors that courts have considered in determining whether the testimony of a child is admissible under the residual exception). Some States have expressed policy judgments regarding the tactors to be examined in ad- mitting the hearsay statements of children in child abuse cases. See Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Pro- secutions: The State of the Relationship, 72 Minn. L. Rev. 523, 534 0.50 (1988) (collecting state statutes). As long as the statute adequately provides tor a “case-specific finding of necessity,” Coy v. lowa, 108 S. Ct. 2798, 2805 (1988) (O'Connor, J., concurring), there is no barrier under the Confrontation Clause to acknowledging legislative guidance im this area. ‘* In approving the admission of these statements under the hearsay rule, the Idaho Supreme Court in Sate s. Giles, 115 Idaho at 988 n.2, 772 P.2d at 194-195 n.2, added that there was no custody battle that might have supported speculation that a parent had instigated false accusations of sexual abuse. In addition, the events recounted by the girl were recent enough tor her to recall them easily, and she spontaneously described the abuse of her sister; both of those ccumstances add to the trustworthiness of the statements. 14 ee At the same time, an opportunity to cross-examine the three- year-old declarant would have done little, if anything, to under- mine the reliability of her statement to Dr. Jambura. A three- year-old would doubtless have difficulty remembering an event that occurred six months earlier, and at best would have a much poorer recollection than she had shortly after the event. Moreover, the pressure of her parents’ influence would make any denial of the abuse or failure to recall it far less credible than her statements to Dr. Jambura. In short, because live testimony from the victim would be less reliable ( and probably less impressive to a finder of fact) than the earlier, out-of-court declarations, it is unlikely that cross-examination of respondent’s daughter would been of much assistance to respondent. See United States v. Inadi, 475 U.S. at 395-396 (live testimony from co-conspirators likely to be much less convine- ing than declarations made during the course of the conspiracy). 3. The Idaho Supreme Court applied incorrect standards under the Confrontation Clause The Idaho Supreme Court did not analyze the hearsay Statements of the younger daughter under the approach we have set forth. Rather, the court seemed to believe that special rules had to be observed in any interview involving a child before the child’s out-of-court statements could satisty the Confrontation Clause. In addition, the court seemed to focus on the quality of Dr. Jambura’s trial testimony rather than on the statements of the younger daughter in determining whether particularized guarantees of trustworthiness were present. That approach is not compatible with the individualized inquiry into the reliabil- ity of hearsay statements required by the Confrontation Clause. a. The Idaho Supreme Court justified its holding as follows: [T]he hearsay declarations of the younger Wright girl are not trustworthy because of Dr. Jambura’s interview techni- que: the questions and answers were not recorded on videotape tor preservation and perusal by the defense at or betore trial; and, blatantly leading questions were used in 15 the interrogation. Further, the statements lack trustwor- thiness because this interrogation was performed by some- one with a preconceived idea of what the child should be disclosing. Pet. App. 7-8. None of those reasons supports the court’s find- ing of a constitutional violation. The Constitution does not re- quire that doctors and young sex abuse victims conform their in- terviews to a rigid and prescribed formula in order to withstand Controntation Clause scrutiny. First, it is unrealistic to suppose that each time the prospect of sexual abuse is raised, a doctor must suspend his normal prac- tice and locate sophisticated audio-visual equipment in order to preserve every detail of the doctor’s interaction with the child. In Nelson v. Farrey, 874 F.2d 1222, 1229 (7th Cir. 1989), the court rejected a similar suggestion, pointing out that the ap- proach was not “feasible.” When a doctor is consulted to inter- view a victim of sex abuse, the doctor cannot know that a criminal prosecution is likely to follow. Moreover, “a routine practice of videotaping therapy sessions with child victims of sexual abuse” would be seen as inappropriate in many situa- tions. /bid. If videotaping were begun only when the prospect of criminal charges surfaced, a defendant could later argue that the contents were unreliable because the earlier sessions were not preserved. And videotaped sessions arranged after the initial in- lerview might well may lack the recency and spontaneit' hat contribute so significantly to the reliability of the vi.tim’s Statements. The court’s criticism of Dr. Jambura’s questioning style was similarly flawed. Dr. Jambura testified that he engaged the two- year-old girl in conversation by discussing neutral subjects such as what she had for breakfast. He then turned the conversation to her homelite in a general way before moving to her interac- tion with her father. His particular questions on that topic were in the form of “Do you” do this with “daddy,” or “Does daddy” do this “with you.” Those were perhaps the most indirect ques- tions Dr. Jambura could have used to focus the girl’s attention on the issue. J.A. 116-117. They were hardly, as the court below characterized them, “blatantly leading.” 16 Moreover, the nature of the child’s responses strongly under- cuts the court’s implication that the idea of sexual abuse was im- planted by Dr. Jambura. The doctor testified that the girl’s de- meanor changed markedly when he asked whether sexual touching had occurred. Although she acknowledged that her father had touched her with his “pee-pee,” she fell silent at the following question whether she had touched her father, until volunteering a few moments later that he “does do this with me, but he does it a lot more with my sister than with me.” Pet. App. 61-62. Her change in demeanor, her dampened level of respon- siveness, and her spontaneous disclosure that “he does it a lot more with my sister than with me” convincingly rebut the sug- gestion that leading questions interfered with the accuracy ot her responses. Indeed, the contents of the girl’s last response were not foreshadowed in any way by Dr. Jambura’s questions. Finally, the court did not fully explain its supposition that Dr. Jambura “may very well have had preconceptions.” Pet. App. 15. In any event, there is no basis tor speculating that the child’s Statements Were tainted simply because Dr. Jambura was not a tabula rasa when he began the examination. In most cases, doc- tors Who examine a child tor sexual abuse will be fully informed about the purpose in advance. That is especially true when a specialist is called in. The Constitution cannot be read to create a per se rule that a doctor must be ignorant of the reasons for a consultation in order tor statements made to him to be trustworthy.!? In forming its constitutional conclusions, the court relied heavily on psychological theories about the suggestibility ot children and the vulnerabilty of their memories. Pet. App. 8-15. But there is no general consensus On such theories of memory. See Myers, Bays, Becker, Berliner, Corwin & Saywitz, Exper! Testimony in Child Sexual A buse Litigation, 68 Neb. L. Rev. 1, * Among other things, such an assumption would be incompatible with the rationale undergirding the medical exception to the hearsay rule. See Fed. R. Evid. 803(4). Moreover, the court’s suggestion that the doctor should be in the 17 100 (1989) (“modern research is rapidly exploding the old bromide that children are always highly suggestible”). As a mat- ter of state law, Idaho may apply its rules of evidence in light of asserted scientific truths as it sees fit. For example, many States, including Idaho, have relied on theories about the vulnerability of memory to impose procedural restraints on the admissibility of hypnotically enhanced or refreshed testimony. See Siate v. /wakiri, 106 Idaho 618, 682 P.2d 571 (1984); cf. Rock v. Arkan- sas, 483 U.S. 44, 58-61 (1987) (discussing theories of the impact of hypnosis on memory and the legal response in the States). But the Confrontation Clause does not embody the particular views of memory and suggestibility that may appeal to a par- ticular state court at a particular time. The court thus erred in approaching the conversation between Dr. Jambura and the re- spondent’s younger daughter with an air of extreme skepticism based on unproved psychological theories. b. The court also erred in allowing extraneous considera- tions to influence its Confrontation Clause analysis. For exam- ple, the court was troubled by the ambiguity of Dr. Jambura’s description of the younger child’s “admission” that her father had touched her with his “pee-pee.” Pet. App. 15-16. The court stated that “[w]hether she said ‘yes’ or nodded agreeably is un- clear.” /bid. But Dr. Jambura was a witness at trial, and if his narration was vague or ambiguous, the particulars could have been clarified on cross-examination of him. There is no basis for finding the hearsay statements to which Dr. Jambura testified lacking in trustworthiness simply because those statements could have been expressed more precisely by the testifying witness. Cf. United States v. Owens, 484 U.S. 554, 559-560 (1988). dark makes the court’s procedural guidelines for interviewing internally incon- sistent. The court suggested that all consultations should be videotaped. But a doctor with no idea that sexual abuse was on the agenda could hardly be ex- pected to set up video equipment On the spur of the moment. 18 Likewise, the court expressed disbelief about Dr. Jambura’s veracity by qualifying its summary of his testimony with the remark that the younger daughter had “allegedly” volunteered the statement that her father had abused her but had done it more with her sister. Pet. App. 4. Again, doubts about Dr. Jambura’s veracity could have been thoroughly explored in cross-examination of him. Compare Dutton v. Evans, 400 U.S. at 89 (noting that the defendant had exercised his right to con- front the testifying witness on the “factual question” whether he actually heard the hearsay statement implicating the defendant); United States vy. Owens, 108 S. Ct. at 842-843. The confronta- tion issue is not whether the statement was made, but whether the assertion ut contains has “indicia of reliability.” Doubts about whether the statement was made at all cannot be used to hold a hearsay statement constitutionally unreliable. B. The Hearsay Statements In This Case Have Additional Guarantees Of Reliability Because Of Their Resemblance To Statements “Made For Purposes Of Medical Diagnosis Or lreatment” The conclusion that a statement has particularized guarantees of trustworthiness may be supported by presence of cir- cumstances that are analogous to the traditional hearsay excep- tions. Ct. Dutton v. Evans, 400 U.S. at 89; Barker v. Morris, 761 F.2d at 1401. The statements in this case gather such addi- tonal reliability trom their resemblance to statements satistying the requirements of the “medical exception” to the hearsay rule. 1. The hearsay rules have long recognized an exception for Statements made for purposes of medical treatment. Underpin- ning the exception is the recognition that patients have a power- ful motive to speak candidly and truthfully to their physicians in order to secure proper medical attention. Such statements are theretore sufficiently trustworthy to be admitted without cross- examination. See Meany v. United States, 112 F.2d 538, 539 19 (2d Cir. 1940) (L. Hand, J.). As the Advisory Committee on the Federal Rules of Evidence explained, “[e}ven those few jurisdic- tions which have shied away from generally admitting statements of present conditions have allowed them if made to a physician for purposes of diagnosis and treatment in view of the patient’s strong motivation to be truthful.” 28 U.S.C. App., p. 722 (1982). The Committee also observed that descriptions of past conditions and medical history, as well as narrations of causation that are “reasonably pertinent” to the purposes of consultation, are supported by the same guarantees of reliabili- ty. Lbid. Federal Rule of Evidence 803(4) was framed in light of those principles. It provides an exception to the hearsay rule whether or not the declarant is available, and covers “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, Or past or present symptoms, pain, or sensa- tions, or the inception or general character of the cause or exter- nal source thereof insofar as reasonably pertinent to diagnosis or treatment.” The federal rule incorporated the common law exception but broadened its coverage to include statements made tor diagnosis or treatment.?° The Committee explained that under “[cJonventional doctrine,” statements made to a doc- tor only to inform him sufficiently to testify as an expert were not admitted under the medical exception. Advisory Committee Notes, 28 U.S.C. App., p. 722 (1982). The Committee rejected that limitation because a testifying expert would in any event be * See H.R. Rep. No. 650, 93d Cong., Ist Sess. 14 (1973); S. Rep. No. 1277, 93d Cong., 2d Sess. 27 (1974); 4 D. Louisell & C. Mueller, Federal Evidence $444, at 592-593 (1980 & Supp. 1989); 4 J. Weinstein & M. Berger, Meimsiein’s Evidence © 803(4)(01}, at 803-143, 803-145 (1988). Rule 803(4) may also have expanded upon common law principles in allowing not only statements Of present symptoms, but also statements of past symptoms and those relating to causation. See United States v. Iron Shell, 633 F.2d at 83, 85; compare United States \. Nickle, 60 F.2d 372, 373-374 (8th Cir. 1932). Although the common law in some jurisdictions did not allow statements ot past symptoms, the rule was evolving toward the admissibility of such statements, as supported by the same guarantees of trustworthiness that are found im statements about present symptoms. See 6 J. Wigmore, Evidence §$ 1722, at 118-127 (J. Chadbourne rev. 1976). 20 entitled to indicate the basis for his opinion, which would in- clude such hearsay statements. The Committee believed that “the distinction thus called tor was one most unlikely to be made by juries.” /bid.?! The medical exception applies to statements made to psychiatrists, see United States v. Lechoco, 542 F.2d 84 (D.C. Cir. 1976); United States v. Deland, 22 M.J. 70, 73 (C.M.A.), cert. denied, 479 U.S. 856 (1986), and psychologists, see United States v. Provost, 875 F.2d 172, 177 (8th Cir.), cert. denied, 110 S. Ct. 170 (1989). Moreover, the rationale for the exception covers statements that are intended to be relayed to medical pro- fessionals. Thus, the Advisory Committee notes explain that the exception can apply to “[s}tatements made to hospital atten- dants, ambulance drivers, or even members of the tamily.” 28 U.S.C. App., p. 722 (1982). In United States vy. lron Shell, 633 F.2d 77, 83-85 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981), the court of appeals tormulated a two-part test for determining the admissibility of Statements under Fed. R. Evid. 803(4). The court required a trial court to ask, “first, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in the diagnosis or treat- ment.” 633 F.2d at 84. The court justified its analysis by reference to the two underlying rationales of the exception —the reliability Of statements made by a patient motivated to tell the truth, and the trustworthiness of information that a physician is Willing to use in torming his opinion. /bid. The medical exception as construed in /ron Shell has sup- ported the admission of testimony in many federal cases involv- ldaho’s analogue to Fed. R. Evid. 803(4) difters trom the tederal rule. k excepts trom the hearsay rule “[s}tatements made tor purposes of medical diagnosis Or treatment and describing medical history, or past or present symptoms, Pain, Or sensations, or the source thereot insotar as reasonably pertinent to diagnosis or treatment.” Idaho R. Evid. 803(4). Unlike the tederal rule, Idaho does not include statements relating to “the inception or general character of the cause or external source” in the exception. 21 ing sexual abuse of children. For example, in /ron Shell itself the court allowed the testimony of a doctor about the statements made by a nine-year-old victim of sexual abuse describing the assault. The court was satisfied that the child had no motive in speaking to the doctor other than to report accurately the events that befell her. The court also found the description of her at- tack relevant to the “inception or general cause” of her symp- toms and “reasonably pertinent to diagnosis or treatment” because it would help guide the course of the doctor’s examina- tion. 633 F.2d at 83. United States vy. Renville, 779 F.2d 430 (8th Cir. 1985), also demonstrates the application of Rule 803(4) in sexual abuse cases. There, a physician was permitted to relate the statements by an 11-year old girl that her father had performed sexual acts with her. In ruling that statements about the assailant’s identity were covered by the medical exception, the court noted that “{s}iatements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s im- mediate household are reasonably pertinent to treatment.” 779 F.2d at 436 (emphasis in original). The court explained that because “child abuse involves more than physical injury, the physician must be attentive to treating the emotional and psychological injuries which accompany this crime.” /d. at 437.°? Other decisions have tollowed the approach ot /ron Shell and Renville. See United States vy. DeNovyer, 811 F.2d 436, 438 (Sth Cir. 1987) (statement to a social worker); United States v. Shaw, 824 F.2d 601, 608 (8th Cir. 1987) (statement to examining physician, who had prescribed treatment); United States v. Pro- vost, 875 F.2d at 177 (statements to doctors during physical > The court thus rejected intimations in United States \. lron Shell (633 F.2d at 77) that statements identitying the assailant in sex abuse cases should not generally be admitted under the exception. Renville explained that although statements of “tault” are not covered by the medical excepuion when a patient is explaining the causes of bodily injury, the same considerations are not applicable to sexual assaults, where treatment has a psychological dimen- sion as Well. 779 F.2d at 439. 22 and psychological treatment); United States v. Spotted War Bonnet, 882 F.2d 1360, 1364 n.2 (8th Cir. 1989) (statement to clinical psychologist), petition for cert. pending, No. 89-6289.?? 2. The admission of hearsay statements made for purposes of medical diagnosis or treatment does not violate a defendant’s confrontation rights. Under this Court’s analysis in United States v. Inadi, supra, such statements do not require a showing of the unavailability of the declarant. As in /nadi, the context of Statements that are made to doctors in aid of diagnosis or treat- ment provides additional guarantees of trustworthiness that are not duplicated by in-court testimony.?* Such statements also satisty the “reliability” inquiry under the Controntation Clause because they fall within a “firmly rooted” hearsay exception. > The medical exception has also plaved a role in many military prosecu- tions under Mil. R. Evid. 803(4), the counterpart to the tederal rule. See 4 J. Weinstein & M. Berger, supra, § 803(4)[03], at 363-364 (Supp. 1989) (collect- ing cases). Many States have also admitted hearsay statements of the victim under the medical exception in sexual abuse prosecutions. See, e.g., Siale v. Robinson, 153 Ariz. 191, 199-200, 735 P.2d 801, 809-810 (1987) (victim's Statements to psychologist, including identity of defendant, admissible); Srare \. Hebert, 480 A.2d 742, 748-749 (Me. 1984). Compare Oldsen \. People, 732 P.2d 1132, 1134-1136 (Colo. 1986) (declining to admit child’s statement of sex- ual assault to social worker, psychologist, and physician, because child was not capable of appreciating need to turnish accurate information; but admut- ling same statements under residual hearsay exception). See generally Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L. Rev. 257 (1989); Graham, The Confronta- tion Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn. L. Rev. 523 (1988). ** Compare /nadi, 475 U.S. at 395-396 (co-conspirator statements derive much of their significance trom context in which they are made). See United States \. Quick, 22 M.J. 722, 725-726 (A.C.M.R. 1986) (applying /nadi to ses- ual abuse case), alf’d on other grounds, 26 M.J. 460 (C.M_A. 1988). But see Nelson \. Farrey, 874 F.2d 1222, 1231-1233 (7th Cir. 1989) (Flaum, J., concur- ring) (arguing that /nadi’s analysis does not justity dispensing with a showing of unavailability tor declarant of medical-exception statements). In any event, as in this case, the declarant will often be “unavailable” in a child sex-abuse prosecution because of a practical inability to testify meaningtully in court. See, e.g., United States \. Dorian, 803 F.2d at 1446-1447. 23 Thus, in many sexual abuse cases, statements of the child to a treating physician may be admitted over a Confrontation Clause objection simply upon satisfying the medical exception to the hearsay rule. The medical exception is as firmly rooted as other hearsay ex- ceptions that this Court has addressed. Compare Bourjaily, 483 U.S. at 183 (co-conspirator statements); Roberts, 448 U.S. at 66 & n.8 (referring to dying declarations, cross-examined prior testimony, and business and public records exceptions). There is a long tradition of admitting reasonably pertinent hearsay Statements made to treating physicians. See 6 J. Wigmore, Evidence §§ 1718-1722 (J. Chadbourne rev. 1976); C. McCor- mick, Handbook of the Law of Evidence § 292, at 690-692 (E. Cleary 2d ed. 1972). To be sure, more complex Controntation Clause issues may be raised as to statements made to a physician solely to enable him to give testimony.?> Such statements are admissible under the Federal Rules of Evidence and the rules of many States, but were not generally admissible at common law. Whatever the correct Controntation Clause analysis of such statements, those statements are not the kind presented here, or in the typical child sex-abuse case. An abused child is usually brought to a doctor or other professional principally, if not exclusively, for therapy and evaluation. Statements made in that context fully satisty the requirements of the medical exception as formulated at common law.?* Even when the doctor intends both to render treatment and to preserve or gather evidence in anticipation of trial, there is no reason to doubt the applicability of the excep- tion. See United States v. tron Shell, 633 F.2d at 86. The doctor's interest in eliciting accurate information and in im- See Vorean \. Foretich, 846 F.2d 941, 952 (4th Cir. 1988) (Powell, J., concurring in part and dissenting in part); Nelson v. Farrev, 874 F.2d 1222, 1233-1234 (7th Cir, 1989) (Flaum, J., concurring) * For example, Justice Powell, sitting with the Fourth Circun, has observed that the statements admitted by the Eighth Circun in United States v. tron Sheil and United States \. Renville satistied the “traditional common law test.” Morgan \. Foretich, 846 F.2d at 952 (Powell, J., concurrimg m part and dissenting m part) 24 pressing the importance of candor upon the young patient ap plies with tull force. The doctor’s awareness that there may be other uses tor the same information does not detract trom the rehabilnty of the statements made. 3. In this case, although the State urged the application ot the medical exception to the statements of respondent's younger daughter, as well as several other exceptions, the trial court did not admit the evidence under the medical exception to the hear sav rule. Instead, the court reed on Idaho's residual hearsay ex ception to admit the statement. See J.A. 25-26, 108-115 The hearsay question, of course, ts not betore this Court Nonetheless, the resemblance between the context of the statements here and the context required tor the medical excep tion is relevant. Even if not precisely within the medical excep on, the statements m this case have some of the same assurances Of rehhability that underlie the medical exception That similarity of context strengthens the conclusion that the record establishes the particularized guarantees of trustworths- ness needed to admu the statements over a Controntation Clause objection (ther lirmly rooted Neaisay evceplions Ma’ diso support the admission ris of sexual abuse Dy children. For example, the “excuied ullerance exweeplion, Fed. R. Evid. 801(d2), has been wioked m several cases. See vie, 4 Con PENENSI VE ipprod hiv Child Hearsay Statements in Sex APuse C uses, 83 Colum. L. Rev. 1745, 1753-1755 (1983). Both in sexual assault cases and in ome yPpes Of Proseculions, COUrIs Nave found this exception to De rT ied” [Of purposes Of satistving Controniation Clause objections See Cnuted States +. bazquez, 857 F.2d 857, 864-865 (isi Cir. 1988); Alaeesis Marden, “15 F.2d 1080, 1085-1058 (6th Cir. 1983) (reports of tour-year-old cum of sexual assault to nurses and police Olliwers), cent. demed, 464 LS 107} (1984): l nited States \ Nick, 604 F.2d at 1202 | 204 (three Veur-old Vi slaiement 10 Nis Mother identilying the detendant and describing the assault). Other exceptions mas apply as well, such as the exceptions tor pjless x umpression,” Fed. R. Evid. 80M 1), of “[t}hen existing mental, r physical condmion,” Fed. R. Evid. 8033) 25 CONCLUSION Ihe judement of the Supreme Court of Idaho should be re- versed Respectfully submitted KENNETH W. STARR Solicitor General EowarRD S.G. DENNIS. JR Assistant Attorney General Wittas’ C. BRYSON Deputy Solicitor General Mic Hatt R. DREEBEN Assistant to the Solicitor General \tarcu 1990 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0664%3A08. Public record. Not legal advice.