STATE OF IDAHO, PETITIONER V. LAURA LEE WRIGHT
   No. 89-260
   In The Supreme Court Of The United States
   October Term, 1988
   On Writ Of Certiorari To The Supreme Court Of Idaho
   Brief For The United States As Amicus Curiae Supporting Petitioner
            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Summary of argument
   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
      A. The court below erred in analyzing whether
         the hearsay statements made by respondent's
         daughter had particularized guarantees of
         trustworthiness
         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
         2. The statements of respondent's daughter
            have particularized guarantees of trustworthiness
         3. The Idaho Supreme Court applied incorrect
            standards under the Confrontation
            Clause
      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 treatment"
   Conclusion
                          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.
                     INTEREST OF THE UNITED STATES
   The question presented is whether an out-of-court statement by a
child that she had been sexually abused had the particularized
guarantees of trustworthiness needed to justify its admission under
the Confrontation Clause.  The United States prosecutes many cases
involving child abuse because of its prosecutorial responsibilities
with respect to the District of Columbia, federal 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 often no witnesses except
the victim." Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).  In many
cases, the victim is either too young or too frightened to testify in
a courtroom setting, or would experience traumatic effects from doing
so.  Thus, the admissibility of a child's statement describing sexual
abuse is often a critical factor in determining whether an abuser is
prosecuted and convicted.  For that reason, the United States has a
significant interest in the resolution of the Confrontation 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 found conditions "strongly suggestive of sexual abuse with
vagina contact." He further believed that the trauma he had observed
in the vaginal area had occurred "approximately two to three days
prior to the examination." 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 answered in a "relaxed" and
"animated" fashion.  Dr. Jambura then turned to her domestic life,
asking her "how are things at home." After moving to that topic, he
asked four specific questions:  "Do you play with daddy?" Does daddy
play with you?  Does daddy touch you with his pee-pee?  Do you touch
his pee-pee?" Dr. Jambura established that "pee-pee" generally
connoted 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. (W)hat 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
      unaffected by the question.
         Q. And then what did you say and her response?
         A. When I asked her "Does daddy touch you with his pee-pee,"
      she did admit to that.  When I 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 line of questioning?
         A. Yes.
         Q. What did you observe?
         A. She would not -- oh, she did not talk any further about
      that.  She would not elucidate what exactly -- what kind of
      touching was taking place, or how it was happening.  She did,
      however, say that daddy does do this with me, but he does it 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 I sat and waited for
      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 16, in violation
of Idaho Code Section 18-1508 (1987).  At the time of trial, the
younger daughter was three.  Following a voir dire examination 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 permitted
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).  /1/ Pet. App. 20-31;  J.A.
113-115.  The jury convicted respondent and Giles on both counts, and
respondent appealed.  /2/
   3. The Idaho Supreme Court reversed respondent's conviction on the
count regarding the younger daughter.  The court held that the
admission of the child's hearsay statements violated respondent's
confrontation rights.
   The court began by stating that statements that fit within a
"well-established exception" to the hearsay rule are generally
admissible 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 'showing of particularized
guarantee of trustworthiness.'" Pet. App. 7.  Applying those
principles, the court concluded that the statements made to Dr.
Jambura lacked the particularized guarantees needed to satisfy the
Confrontation Clause.  Id. at 8-17.
   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 interview to be "inadequately reviewable"
because "the questions and answers were not recorded on videotape for
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.  Id.
at 8-15.  Against that background, the court found that the daughter's
statements were "fraught with the dangers of unreliability which the
Confrontation Clause is designed to highlight and obviate." Id. at 17.
                          SUMMARY OF ARGUMENT
   The Confrontation 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
confrontation is required for 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 firmly rooted
hearsay exception, reliability concerns are satisfied without more.
Even if no such exception applies, reliability can be established if
the statement is shown to have "particularized 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 from the surrounding circumstances
that the statement is sufficiently trustworthy and that it is unlikely
that cross-examination of the declarant would significantly undermine
the statement's reliability.
   In admitting the statements of respondent's younger daughter, the
trial court in this case focused on the strong corroborative evidence
for the statements, the absence of a motive to lie, the implausibility
that a young child could have invented the statements, and other
factors.  The trial court's analysis supports 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 respondent 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 Confrontation
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. Jambura's testimony.  The
Confrontation Clause requires an inquiry into the reliability of the
hearsay statements themselves;  that inquiry 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 hearsay exceptions.  Here,
the hearsay exception for statements "made for purposes of medical
diagnosis or treatment" furnishes support for admitting the statements
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 of children.
   The admission of hearsay statements made for purposes of medical
treatment does not infringe a defendant'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 exception.  For that reason,
the courts of appeals have ruled that when statements are admitted
under the medical exception to the hearsay rule, the Confrontation
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 exception.  That consideration strengthens the
conclusion that particularized 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 Confrontation Clause protects the right of
a defendant in a criminal trial to cross-examine witnesses against
him.  Cruz v. New York, 481 U.S. 186, 189 (1987).  The Court has long
recognized, however, that the Confrontation Clause does not bar the
admission of every hearsay statement.  Mattox v. United States, 156
U.S. 237 (1895);  Bourjaily v. 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.  Cf. Coy v. Iowa, 108
S. Ct. 2798, 2803 (1988).  /3/
   The initial step is to determine whether the declarant must be
shown to be unavailable before the hearsay statement will be admitted.
 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 further 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
concerns can be satisfied if there are reasons suggesting that the
statement is unusually likely to be trustworthy.  Dutton v. Evans, 400
U.S. 74 (1970);  Lee v. Illinois, 476 U.S. 530, 543 (1986).  Those
principles comport with the recognition that "(t)he right to
cross-examination, protected by the Confrontation 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).  /4/
   A. The Court Below Erred In Analyzing Whether The Hearsay
Statements Made by Respondent's Daughter Had Particularized Guarantees
Of Trustworthiness
   Although this Court has made clear that a statement falling outside
a firmly rooted hearsay exception may still be admitted if it has
"particularized guarantees of trustworthiness," Ohio v. Roberts, 448
U.S. at 66, the Court has not articulated the factors 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 interviewing 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 Confrontation Clause
challenge to the admission of an out-of-court statement that was not
within a well-settled hearsay exception.  In Dutton, respondent Evans
was tried for murder.  A cellmate of Evans' accomplice testified that
the accomplice had said, "If it hadn't been for that dirty
son-of-a-bitch Alex Evans, we wouldn't be in this now." 400 U.S. at
77.  /5/ 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 introduction 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.  Id. at 88-89.  /6/
   More important than the particular factors described in Dutton was
the plurality's rationale.  The plurality observed that "the mission
of the Confrontation Clause is to advance a practical concern for the
accuracy of the truth-determining process in criminal trials by
assuring that 'the trier of fact (has) a satisfactory basis for
evaluating the truth of the prior statement.'" 400 U.S. at 89 (quoting
California v. Green, 399 U.S. at 161).  In light of that concern, the
Confrontation 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 "indicia of
reliability" to overcome a presumption that it is inadmissible under
the Confrontation Clause.  The issue in Lee was whether a
co-defendant's confession satisfied reliability concerns because it
"interlock(ed)" with the confession of the defendant.  Comparing the
two confessions, the Court found factual 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 confession was sufficiently
trustworthy to be admitted without cross-examination.  The Court
nevertheless reaffirmed 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 not material departure
from the reasons of the general rule.'" Id. at 543.
   The courts of appeals have followed the lead of Dutton 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 "(t)here 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 "sufficient indicia of reliability in order to
afford the trier of fact a satisfactory basis for evaluating the truth
of the prior statements." United States v. Iron Shell, 633 F.2d 77, 87
(8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).  The proper
inquiry 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 essential reliability under
a practical view of the facts, there is no offense to the values of
confrontation in admitting it.  Compare Delaware v. Van Arsdall, 475
U.S. 673, 680 (1986).  /7/
   Without purporting to set forth an exhaustive list, we note that
courts have considered the following factors to be significant,
particularly in the child-abuse context:  the corroborative evidence
for a statement, including physical evidence of abuse /8/ and the
defendant's opportunity to have committed it;  /9/ the child's motive
in a particular situation to be truthful;  /10/ the identify of the
person to whom the statement is made and the nature of the questioning
that elicited it;  /11/ the plausibility of fabrication in light of
the child's age, /12/ specific statements, /13/ and spontaneity of
expression;  /14/ the proximity in time between the statement and the
event;  /15/ and the relationship between the statement and any
traditional hearsay exceptions.  /16/ There may, of course, be other
features of the case that enhance the reliability of the statement and
affect the impact on the truth-seeking function of the trial of
admitting the evidence without cross-examination.  /17/
   2. The statements of respondent's daughter have particularized
guarantees of trustworthiness
   The trial court in this case relied on several factors in
determining 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 circumstances 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 injuries 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 father 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 adequate circumstantial
guarantees of trustworthiness.  /18/
   At the same time, an opportunity to cross-examine the
three-year-old declarant would have done little, if anything, to
undermine 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
convincing 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 satisfy 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 reliability 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 technique:  the
      questions and answers were not recorded on videotape for
      preservation and perusal by the defense at or before trial;  and
      blatantly leading questions were used in the interrogation.
      Further, the statements lack trustworthiness because this
      interrogation was performed by someone with a preconceived idea
      of what the child should be disclosing.
Pet. App. 7-8.  None of those reasons supports the court's finding of
a constitutional violation.  The Constitution does not require that
doctors and young sex abuse victims conform their interviews to a
rigid and prescribed formula in order to withstand Confrontation
Clause scrutiny.
   First, it is unrealistic to suppose that each time the prospect of
sexual abuse is raised, a doctor must suspend his normal practice 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 approach was not "feasible."
When a doctor is consulted to interview 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
situations.  Ibid.  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
interview might well may lack the recency and spontaneity that
contribute so significantly to the reliability of the victim'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 conversaton by discussing neutral subjects such
as what she had for breakfast.  He then turned the conversation to her
homelife in a general way before moving to her interaction 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 questions 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."
   Moreover, the nature of the child's responses strongly undercuts
the court's implication that the idea of sexual abuse was implanted by
Dr. Jambura.  The doctor testified that the girl's demeanor 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 deameanor, her dampened level of
responsiveness, and her spontaneous disclosure that "he does it a lot
more with my sister than with me" convincingly rebut the suggestion
that leading questions interfered with the accuracy of 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 for 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, doctors who examine a child for
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 for statements
made to him to be trustworthy.  /19/
   In forming its constitutional conclusions, the court relied heavily
on psychological theories about the suggestibility of children and the
vulnerability 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, Expert Testimony in Child Sexual
Abuse Litigation, 68 Neb. L. Rev. 1, 100 (1989) ("modern research is
rapidly exploding the old bromide that children are always highly
suggestible").  As a matter 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
State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984);  cf. Rock v.
Arkansas, 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 particular state court at a
particular time.  The court thus erred in approaching the conversation
between Dr. Jambura and the respondent's younger daughter with an air
of extreme skepticism based on unproved psychological theories.
   b. The court also erred in allowing extraneous considerations to
influence its Confrontation Clause analysis.  For example, 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 unclear." Ibid.  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).
   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 confront the testifying witness on the "factual question"
whether he actually heard the hearsay statement implicating the
defendant);  United States v. Owens, 108 S. Ct. at 842-843.  The
confrontation issue is not whether the statement was made, but whether
the assertion it 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 Treatment"
   The conclusion that a statement has particularized guarantees of
trustworthiness may be supported by presence of circumstances that are
analogous to the traditional hearsay exceptions.  Cf. Dutton v. Evans,
400 U.S. at 89;  Barker v. Morris, 761 F.2d at 1401.  The statements
in this case gather such additional reliability from their resemblance
to statements satisfying 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.  Underpinning the
exception is the recognition that patients have a powerful motive to
speak candidly and truthfully to their physicians in order to secure
proper medical attention.  Such statements are therefore sufficiently
trustworthy to be admitted without cross-examination.  See Meany v.
United States, 112 F.2d 538, 539 (2d Cir. 1940) (L. Hand, J.).  As the
Advisory Committee on the Federal Rules of Evidence explained, "(e)ven
those few jurisdictions 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 reliability.  Ibid.
   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 sensations, or the
inception or general character of the cause or external 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 for diagnosis or treatment.  /20/
The Committee explained that under "(c)onventional doctrine,"
statements made to a doctor 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 entitled to indicate the basis for his opinion, which would
include such hearsay statements.  The Committee believed that "the
distinction thus called for was one most unlikely to be made by
juries." Ibid.  /21/
   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 professionals.  Thus, the Advisory Committee notes
explain that the exception can apply to "(s)tatements made to hospital
attendants, ambulance drivers, or even members of the family." 28
U.S.C. App., p. 722 (1982).
   In United States v. Iron Shell, 633 F.2d 77, 83-85 (8th Cir. 1980),
cert. denied, 450 U.S. 1001 (1981), the court of appeals formulated 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 treatment." 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 forming his opinion.  Ibid.
   The medical exception as construed in Iron Shell has supported the
admission of testimony in many federal cases involving sexual abuse of
children.  For example, in Iron 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 attack relevant to the "inception or
general cause" of her symptoms and "reasonably pertinent to diagnosis
or treatment" because it would help guide the course of the doctor's
examination.  633 F.2d at 83.
   United States v. 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)tatements by a
child abuse victim to a physician during an examination that the
abuser is a member of the victim's immediate 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." Id. at 437.  /22/
Other decisions have followed the approach of Iron Shell and Renville.
 See United States v. DeNoyer, 811 F.2d 436, 438 (8th 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. Provost, 875 F.2d at 177
(statements to doctors during physical 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.  /23/
   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 Inadi, the context of statements that are made to
doctors in aid of diagnosis or treatment provides additional
guarantees of trustworthiness that are not duplicated by in-court
testimony.  /24/ Such statements also satisfy the "reliability"
inquiry under the Confrontation Clause because they fall within a
"firmly rooted" hearsay exception.  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
exceptions 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 declaratons, 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 Sections 1718-1722 (J.
Chadbourne rev. 1976);  C. McCormick, Handbook of the Law of Evidence
Section 292, at 690-692 (E. Cleary 2d ed. 1972).
   To be sure, more complex Confrontation Clause issues may be raised
as to statements made to a physician solely to enable him to give
testimony.  /25/ 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 Confrontation 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 doctor or other professional principally,
if not exclusively, for therapy and evaluation.  Statements made in
that context fully satisfy the requirements of the medical exception
as formulated at common law.  /26/ 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
exception.  See United States v. Iron Shell, 633 F.2d at 86.  The
doctor's interest in eliciting accurate information and in impressing
the importance of candor upon the young patient applies with full
force.  The doctor's awareness that there may be other uses for the
same information does not detract from the reliability of the
statements made.  /27/
   3. In this case, although the State urged the application of 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 hearsay rule.  Instead,
the court relied on Idaho's residual hearsay exception to admit the
statement.  See J.A. 25-26, 108-115.
   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 exception.  That similarity of context
strengthens the conclusion that the record establishes the
particularized guarantees of trustworthiness needed to admit the
statements over a Confrontation Clause objection.
                              CONCLUSION
   The judgment of the Supreme Court of Idaho should be reversed.
   Respectfully submitted.
   KENNETH W. STARR
      Solicitor General
   EDWARD S.G. DENNIS, JR.
      Assistant Attorney General
   WILLIAM C. BRYSON
      Deputy Solicitor General
   MICHAEL R. DREEBEN
      Assistant to the Solicitor General
   MARCH 1990
   /1/ The Idaho residual exception is essentially identical to Fed.
R. Evid. 803(24).
   /2/ Giles also appealed, claiming that the admission of the younger
child's hearsay statements violated Idaho R. Evid. 803(24).  Pet. App.
27.  The Idaho Supreme Court affirmed, holding that the trial court
had properly applied that hearsay exception.  State v. Giles, 115
Idaho 984, 772 P.2d 191 (1989) (reproduced at Pet. App. 23-54).  Giles
did not raise a Confrontation Clause claim.  Pet. App. 32.
   /3/ For confrontation purposes, the Court has accepted, as a point
of departure, "McCormick's definition of hearsay as 'testimony in
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 therein, and thus resting for its value upon the credibility
of the out-of-court asserter.' E. Cleary, McCormick on Evidence
Section 246, p. 584 (2d ed. 1972)." Lee v. Illinois, 476 U.S. 530, 543
n.4. (1986).  See Fed. R. Evid. 801(c).  Admission of out-of-court
statements for nonhearsay purposes "raises no Confrontation Clause
concerns." Tennessee v. Street, 471 U.S. 409, 414 (1985).
   The issue in this case is not related to the issue in Coy v. Iowa,
supra.  There, the Court held that a defendant has a right under the
Confrontation Clause to "confront" face-to-face the witness giving
evidence against him at trial.  The issue in this case is the quite
different Confrontation Clause issue of whether particular
out-of-court statements can be admitted without the declarant taking
the stand at all.
   /4/ 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-examination." United States v.
Owens, 484 U.S. 554, 560 (1988).
   /5/ The statement did not fall within a firmly rooted hearsay
exception, as it was admitted under a Georgia statute that varied from
the common law by covering co-conspirator statements made after the
termination of the conspiracy.  See Dutton, 400 U.S. at 80-83
(comparing federal and state co-conspirator statement exceptions);
Bourjaily, 483 U.S. at 183 (analyzing Dutton).
   /6/ Justice Harlan concurred in the result based on his view that
the Confrontation Clause was not intended to regulate the admission of
hearsay, and that the admission of the accomplice's statement did not
violate due process.  400 U.S. at 93-100.
   /7/ Some courts have found it useful to examine the standards
developed in applying the residual exceptions to the hearsay rules.
Fed. R. Evid. 803(24), 804(b)(5).  See, e.g., United States v. Nick,
604 F.2d 1199, 1203 (9th Cir. 1979);  United States v. Dorian, 803
F.2d 1439, 1444-1445 (8th Cir. 1986).  Cases analyzing the question
whether a statement has "circumstantial guarantees of trustworthiness"
equivalent to those of the specific hearsay exceptions, see, e.g.,
State v. Sorenson, 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,
Section 1422, at 253-254 (J. Chadbourne rev. 1974), may be of value in
identifying relevant considerations in the constitutional inquiry.
   /8/ 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.").
   /9/ State v. Sorenson, 143 Wis.2d at 246, 421 N.W.2d at 85.
   /10/ State v. Sorenson, 143 Wis.2d at 244, 421 N.W.2d at 84.
   /11/ United States v. Dorian, 803 F.2d at 1444 (questioners were
"careful not to use leading or suggestive questions during any of the
interviews").
   /12/ United States 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").
   /13/ United States v. 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 v. 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 that anatomically
correct.").
   /14/ Compare Dutton v. Evans, 400 U.S. at 88-89.
   /15/ Morgan v. 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").
   /16/ Compare Barker v. Morris, 761 F.2d at 1401-1402 (noting
analogies in statement to dying declarations and declarations against
penal interest).
   /17/ See J. Myers, Child Witness Law and Practice Section 5.37, 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 factors to be examined in admitting the hearsay
statements of children in child abuse cases.  See Graham, The
Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse
Prosecutions:  The State of the Relationship, 72 Minn. L. Rev. '523,
534 n.50 (1988) (collecting state statutes).  As long as the statute
adequately provides for a "case-specific finding of necessity," Coy v.
Iowa, 108 S. Ct. 2798, 2805 (1988) (O'Connor, J., concurring), there
is no barrier under the Confrontation Clause to acknowledging
legislative guidance in this area.
   /18/ In approving the admission of these statements under the
hearsay rule, the Idaho Supreme Court in State v. 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 for her to recall them
easily, and she spontaneously described the abuse of her sister;  both
of those circumstances add to the trustworthiness of the statements.
   /19/ 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 dark makes the court's procedural
guidelines for interviewing internally inconsistent.  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
expected to set up video equipment on the spur of the moment.
   /20/ See H.R. Rep. No. 650, 93d Cong., 1st Sess. 14 (1973);  S.
Rep. No. 1277, 93d Cong., 2d Sess. 27 (1974);  4 D. Louisell & C.
Mueller, Federal Evidence Section 444, at 592-593 (1980 & Supp. 1989);
 4 J. Weinstein & M. Berger, Weinstein's Evidence Paragraph
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 v. Nickle, 60 F.2d 372, 373-374 (8th
Cir. 1932).  Although the common law in some jurisdictions did not
allow statements of past symptoms, the rule was evolving toward the
admissibility of such statements, as supported by the same guarantees
of trustworthiness that are found in statements about present
symptoms.  See 6 J. Wigmore, Evidence Section 1722, at 118-127 (J.
Chadbourne rev. 1976).
   /21/ Idaho's analogue to Fed. R. Evid. 803(4) differs from the
federal rule.  It excepts from the hearsay rule "(s)tatements made for
purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the
source thereof insofar as reasonably pertinent to diagnosis or
treatment." Idaho R. Evid. 803(4).  Unlike the federal rule, Idaho
does not include statements relating to "the inception or general
character of the cause or external source" in the exception.
   /22/ The court thus rejected intimations in United States v. Iron
Shell (633 F.2d at 77) that statements identifying the assailant in
sex abuse cases should not generally be admitted under the exception.
Renville explained that although statements of "fault" are not covered
by the medical exception when a patient is explaining the causes of
bodily injury, the same considerations are not applicable to sexual
assaults, where treatment has a psychological dimension as well.  779
F.2d at 439.
   /23/ The medical exception has also played a role in many military
prosecutions under Mil. R. Evid. 803(4), the counterpart to the
federal rule.  See 4 J. Weinstein & M. Berger, supra, Paragraph
803(4)(03), at 363-364 (Supp. 1989) (collecting cases).  Many States
have also admitted hearsay statements of the victim under the medical
exception in sexual abuse prosecutions.  See, e.g., State v. Robinson,
153 Ariz. 191, 199-200, 735 P.2d 801, 809-810 (1987) (victim's
statements to psychologist, including identity of defendant,
admissible);  State v. Hebert, 480 A.2d 742, 748-749 (Me. 1984).
Compare Oldsen v. People, 732 P.2d 1132, 1134-1136 (Colo. 1986)
(declining to admit child's statement of sexual assault to social
worker, psychologist, and physician, because child was not capable of
appreciating need to furnish accurate information;  but admitting 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 Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse
Prosecutions:  The State of the Relationship, 72 Minn. L. Rev. 523
(1988).
   /24/ Compare Inadi, 475 U.S. at 395-396 (co-conspirator statements
derive much of their significance from context in which they are
made).  See United States v. Quick, 22 M.J. 722, 725-726 (A.C.M.R.
1986) (applying Inadi to sexual abuse case), aff'd on other grounds,
26 M.J. 460 (C.M.A. 1988).  But see Nelson v. Farrey, 874 F.2d 1222,
1231-1233 (7th Cir. 1989) (Flaum, J., concurring) (arguing that
Inadi's analysis does not justify dispensing with a showing of
unavailability for 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 meaningfully in court.  See, e.g., United States v. Dorian,
803 F.2d at 1446-1447.
   /25/ See Morgan v. Foretich, 846 F.2d 941, 952 (4th Cir. 1988)
(Powell, J., concurring in part and dissenting in part);  Nelson v.
Farrey, 874 F.2d 1222, 1233-1234 (7th Cir. 1989) (Flaum, J.,
concurring).
   /26/ For example, Justice Powell, sitting with the Fourth Circuit,
has observed that the statements admitted by the Eighth Circuit in
United States v. Iron Shell and United States v. Renville satisfied
the "traditional common law test." Morgan v. Foretich, 846 F.2d at 952
(Powell, J., concurring in part and dissenting in part).
   /27/ Other firmly rooted hearsay exceptions may also support the
admission of reports of sexual abuse by children.  For example, the
"excited utterance" exception, Fed. R. Evid. 801(d)(2), has been
invoked in several cases.  See Note, A Comprehensive Approach to Child
Hearsay Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745,
1753-1755 (1983).  Both in sexual assault cases and in other types of
prosecutions, courts have found this exception to be "firmly rooted"
for purposes of satisfying Confrontation Clause objections.  See
United States v. Vazquez, 857 F.2d 857, 864-865 (1st Cir. 1988);
Haggins v. Warden, 715 F.2d 1050, 1055-1058 (6th Cir. 1983) (reports
of four-year-old victim of sexual assault to nurses and police
officers), cert. denied, 464 U.S. 1071 (1984);  United States v. Nick,
604 F.2d at 1202-1204 (three-year-old victim's statement to his mother
identifying the defendant and describing the assault).  Other
exceptions may apply as well, such as the exceptions for "(p)resent
sense impression," Fed. R. Evid. 803(1), or "(t)hen existing mental,
emotional, or physical condition," Fed. R. Evid. 803(3).