No. 89-226 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 0 

STATE OF MONTANA, 

plaintiff and Respondent, 

v. 

KATHRYN HARRIS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox, Billings, Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana; 

Dorothy McCarter, Ass't. Attorney General, Helena, 

Montana; Carol A. Donaldson, legal intern, Helena, 

Montana; Gerry M. Higgins, Special Deputy County 

Attorney for Musselshell County, Ryegate, Montana 

Fil ed: 2 4 199% 

Cd 3mzit.4 

C.L.EWK OF SUPREME COllRi 

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Submitted on briefs: December 18, 1990 

~ecided: January 24, 1991 

* 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

A jury found defendant, Kathryn Harris, guilty of two counts 

of felony sexual assault. Defendant appeals. We reverse and 

remand for a new trial. 

We frame the issues as follows: 

1. Did the State's expert witness improperly comment on the 

credibility of an alleged victim who testified at trial? 

2. Did the District Court err in allowing the State's expert 

witness to identify defendant as the perpetrator of the alleged 

crimes by testifying as to hearsay statements made to her by the 

alleged victims during the course of therapy? 

3. Did the District Court err in granting the jury's request 

to have the testimony of an alleged victim read to it after the 

case had been submitted to the jury? 

During the fall of 1987, defendant was employed as a fulltime babysitter for a three-year-old girl, referred to as "Janey 

Doe,I1 and a five-year-old boy, referred to as "Robby Roe. I' 

Beginning in about mid-September of that year, Janey began 

complaining that her bottom hurt. On November 18, 1987, she 

complained of stomach problems. Later that evening, she fell on 

the stairs, cried and moaned that her vagina hurt. Janey's mother, 

Mrs. Doe, wondering what sort of fall could hurt her vagina, 

examined Janey and discovered a thick glob of mucous in the vaginal 

area. When Mrs. Doe wiped the area with a warm washcloth, Janey 

cried and screamed in pain. Mrs. Doe then noticed that the lip of 
Janeyns vagina was streaked with blood-like blisters. She also 

noticed a bruise on Janeyls lower right vagina. 

The following day, Mrs. Doe took Janey to her pediatrician for 

an examination. The pediatrician, who was trained in sexual abuse, 

discovered a bruise outside of Janeyls vagina, along with abrasions 

on the side of the vagina. She labeled the injuries as nonaccidental and consistent with sexual abuse. 

On November 25, 1987, Janey began therapy sessions with Sandi 

Burns, a psychotherapist specializing in child sexual abuse. 

During the course of the sessions, Janey told Burns that defendant 

had put a stick in her vagina, placed a finger in her vagina and 

hit her vagina with her hands or a stick. In addition, Janey told 

Burns that defendant's husband, Eric Harris Cates, stuck his penis 

in her vagina. 

Janey indicated that Robby Roe had also been sexually abused 

by defendant and her husband. Subsequently, on February 1, 1988, 

Burns examined Robby. Robby related to Burns stories of sexual 

abuse by defendant and her husband. 

On February 26, 1988, defendant was charged with two counts 

of felony sexual assault against the minor children in violation 

of 1 45-5-502, MCA. Her husband, Cates, was charged at the same 

time with one count of sexual intercourse without consent against 

Janey Doe, or, in the alternative, sexual assault, and one count 

of felony sexual assault against Robby Roe. 

The District Court granted the defendantsn motion for separate 

trials. Catest trial was held in July, 1988, in the Fourteenth 
Judicial District Court, Musselshell County, the county in which 

the offenses occurred. A jury found Cates guilty of one count of 

sexual intercourse without consent and one count of sexual assault. 

On appeal, this Court overturned the sexual intercourse without 

consent conviction, holding that the evidence was insufficient to 

sustain the conviction. State v. Cates, 241 Mont. 282, 787 P.2d 

319 (1990). 

Due to the publicity engendered by the Cates trial, defendant 

Harris was granted a change of venue from Musselshell County to 

m all at in County. Prior to trial, defendant filed a motion in 

limine seeking to exclude hearsay statements made by Janey to any 

State witness. Defendant also sought to prohibit Sandi Burns, the 

childrens' therapist, from testifying that the children were 

sexually assaulted and that they were truthful, credible and 

consistent. The motions were denied. 

Trial commenced on November 14, 1988. Janey did not testify, 

having been found incompetent by the District Court prior to the 

Cates trial. Robby, however, did testify, as did the 

psychotherapist Burns. 

On November 16, 1988, the jury found defendant guilty of two 

counts of felony sexual assault. Defendant was sentenced to 14 

years imprisonment on each count, with seven years suspended, both 

sentences to run concurrently. This appeal followed. 

I. 

Did the State's expert witness improperly comment on the 
credibility of an alleged victim who testified at trial? 

At trial, Sandi Burns, the psychotherapist who examined both 

Janey and Robby, testified that Robby was "a little, honest, open 

country boy . . . . [H]els a pretty trustworthy child . . . . [He] 

is very honest.'' Defendant argues that this testimony constituted 

an improper comment on Robby's credibility. 

The question of the credibility of an alleged victim lies 

exclusively within the province of the jury. Expert testimony 

regarding credibility improperly invades the jury's function by 

placing a stamp of scientific legitimacy on the victim's 

allegations. Therefore, we generally will not allow an expert 

witness to comment on the credibility of an alleged victim. State 

v. Brodniak, 221 Mont. 212, 222, 718 P.2d 322, 329 (1986). 

We have carved out one exception to this rule. In cases 

involving sexual abuse of a minor child, we will allow expert 

testimony on the credibility of the alleged victim. State v. 

Geyman, 224 Mont. 194, 200, 729 P.2d 475, 479 (1986). This 

exception applies, however, only when the victim testifies at 

trial, State v. J.C.E., 235 Mont. 264, 269, 767 P.2d 309, 312-13 

(1988), and credibility is brought into question. See State v. 

Hall, 797 P.2d 183, 191, 47 St.Rep. 1501, 1510 (Mont. 1990). 

In the present case, although Robby testified at trial, his 

credibility was not attacked by defendant. Defendant did not 

denigrate Robby's credibility in an opening statement or crossexamine him when he took the stand. The only time she touched on 

the issue of credibility was during the cross examination of 
Robby's mother when she asked if Robby had at first denied the 

abuse. The State, however, had opened the door to this line of 

questioning by bringing the matter up on direct. Because Robby's 

credibility was not called into question by defendant, the District 

Court committed reversible error by allowing the psychotherapist 

to comment directly on his trustworthiness. 

11. 

Did the District Court err in allowing the State's expert 

witness to identify defendant as the perpetrator of the alleged 

crimes by testifying as to hearsay statements made to her by the 

victims during the course of therapy? 

As we noted in J.C.E., 235 Mont. at 267-68, 767 P.2d at 311- 

12, cases involving sexual abuse of young children raise troubling 

evidentiary questions. When an alleged victim of abuse is a young 

child who, in a courtroom setting, may be unable to relate 

information about the alleged offense, probative evidence may be 

lost. Out-of-court statements made by the child to others 

therefore become some of the most valuable evidence available. 

These statements, however, constitute hearsay, and are normally 

inadmissible in court. 

The courts are thus forced to walk a fine line between 

following the traditional rules of evidence and excluding what 

might be the most probative, material evidence of the crime. The 

dilemma is especially acute when, as in this case, the criminal 

defendant's Sixth Amendment right of confrontation is implicated 

by the unavailability of a child declarant. 
In addition to posing confrontation problems, another danger 

involved in allowing hearsay statements, especially when they are 

admitted through an expert witness such as a counselor or 

psychologist, is that the expert becomes a surrogate witness for 

the child. While we recognize that expert testimony regarding the 

sometimes puzzling and seemingly contradictory behavior of victims 

of child sexual assault may aid the jury to determine ultimate 

issues, such as whether the crime actually occurred, we must be 

careful not to allow the witness to become a conduit for otherwise 

inadmissible testimony. 

In J.C.E., 235 Mont. at 269-70, 767 P.2d at 313, we held that 

the identification of the perpetrator of a crime is not a proper 

subject for expert testimony under Rule 702, M.R.Evid., which 

allows expert testimony if it will "assist the trier of fact to 

understand the evidence,I1 or Rule 704, M.R.Evid., which allows an 

expert to render an opinion on an ultimate issue. We noted that 

an opinion on an ultimate issue may be rendered only if it assists 

the jury. Whether a child was the victim of sexual abuse is a 

question that may be clarified by expert testimony. I1However, 

whether the evidence adduced by the State establishes [defendant] 

as the perpetrator requires only the common logic that is indeed 

well within the capacity of a lay jury." J.C.E., 235 Mont. at 270, 

767 P.2d at 313. 

The State argues that the testimony of psychotherapist Sandi 

Burns may be admitted through Rule 803(4), M.R.Evid., the medical 

diagnosis and treatment exception to the hearsay rule. This 
exception provides as follows: 

The following are not excluded by the hearsay rule, even 

though the declarant is available as a witness: 

(4) Statements for purposes of medical diagnosis or 

treatment. Statements made for purposes of medical 

diagnosis or treatment and describing medical history, 

or past or present symptoms, pain, or sensations, or the 

inception or general character of the cause or external 

source thereof insofar as reasonably pertinent to 

diagnosis or treatment. 

Rule 803 (4), M.R.Evid. 

We considered and rejected this contention in J. C. E. , 235 

Mont. at 271, 767 P.2d at 313, stating, "We decline to extend the 

medical diagnosis and treatment exception beyond medical doctors 

. . . ." The State urges us to reconsider our ruling and attempts 

to distinguish the present case from J. C. E. on the grounds that the 

counselor in that case was unlicensed and therefore without the 

necessary authority to render medical diagnosis while the counselor 

in this case is licensed. The State further points out that the 

Commission Comments indicate that the exception was not intended 

to apply only to statements made to medical doctors. 

The Commission Comments state: 

The exception allows statements made to any person and 

about any pertinent subject, so lons as within the 

purpose of the exception. (Emphasis added.) 

Commission Comments to Rule 803 (4), M.R.Evid., 3 M.C.A. Annot., 

Title 26 at 352 (1986). 

While we agree with the State that in some cases hearsay 

statements made to persons other than physicians may be admissible 

under the medical diagnosis and treatment exception, we once again 
decline to extend the exception beyond medical doctors in cases 

involving abuse of young children because we cannot be assured that 

such statements are Itwithin the purpose of the exception.I1 

Statements made for purposes of medical diagnosis and 

treatment must satisfy a two-part test before they come within the 

purpose of this exception to the hearsay rule. First, the 

declarantls motive in making the statement must be consistent with 

seeking medical treatment. Second, the statement must be of a type 

reasonably relied on by a physician when making diagnosis and 

treatment decisions. J.C.E., 235 Mont. at 270, 767 P.2d at 313. 

The State argues that hearsay statements made by a child 

victim of sexual assault to her counselor should be admitted under 

the medical treatment exception because the counselor relies on the 

identity of the perpetrator in determining the most appropriate 

course of treatment for the victim. While we do not doubt that 

this assertion is correct, it ignores the first requirement of the 

exception, that is, that the victim or patient understands the need 

for telling the truth to his or her doctor. 

The reliability of the medical treatment exception to the 

hearsay rule is assured by the first prong of the test. The 

declarant who seeks medical treatment possesses a selfish motive 

in telling the truth. He knows that Ifthe effectiveness of the 

treatment he receives may depend largely upon the accuracy of the 

information he provides." C. McCormick, McCormick on Evidence 5 

292 at 839 (E. Cleary 3d ed. 1984). 

In J.C.E., 235 Mont. at 271, 767 P.2d at 314, we noted that 
the trustworthiness of statements made by a young child to her 

counselor is not necessarily assured because I1[t]he child might 

not comprehend the necessity of telling a doctor the truth in order 

to aid diagnosis and treatment.It Because we cannot be assured of 

the reliability of statements made by young children to their 

counselors, we hold that statements made to the child's counselor 

cannot be admitted into evidence under the medical treatment 

exception to the hearsay rule. 

The State argues, in the alternative, that the hearsay 

statements in question may come into evidence under the residual 

exception to the hearsay rule, Rule 804 (b) (5) , M.R.Evid., which 

provides that statements not specifically covered by any of the 

enumerated exceptions may be admissible if they possess "comparable 

circumstantial guarantees of trustworthine~s.~ 

In J.C.E., 235 Mont. at 273, 767 P.2d at 315, we noted that 

hearsay statements made by a minor child who is the alleged victim 

of sexual abuse and who is unavailable for trial may be admissible 

under Rule 804 (b) (5) , M.R.Evid. Such statements are admissible, 

however, only if the following conditions are present: 

1. The victim must be unavailable as a witness, whether 

through incompetency, illness or some other like reason 

(e.g., trauma induced by the courtroom setting). 

2. The proffered hearsay must be evidence of a material 

fact, and must be more probative than any other evidence 

available through reasonable means. 

3. The party intending to offer the hearsay testimony 

must give advance notice of that intention. 

J.C.E., 235 Mont. at 273, 767 P.2d at 315. 

With regard to Burns1 testimony involving statements made to 
her by Janey, it is uncontested that Janey was unavailable as a 

witness due to incompetency. Therefore, the first condition is 

satisfied. 

The second prerequisite, however, is not satisfied. Although 

the hearsay statements attested to by Burns identified defendant 

as the perpetrator of the sexual assaults against Janey and were 

therefore material, they were not the most probative evidence on 

the matter. Robby, a victim of the abuse and an eyewitness to the 

alleged assault against Janey, testified that he saw defendant 

touch Janey 'Ion the 'bagina. Iw Because Robby was able to link 

defendant to the sexual assault against Janey, the identification 

of defendant through hearsay statements was cumulative and served 

only to bolster Robby's testimony. 

The hearsay testimony regarding Robby's statements to Burns 

are inadmissible under Rule 804 (b) (5) , M. R. Evid. , because Robby was 

available for trial. However, Robby's hearsay statements could 

under some circumstances be admitted under Rule 803 (24) , M.R. Evid., 

the residual exception to the hearsay rule used when the declarant 

is available to testify, as long as the statements possess 

wcircumstantial guarantees of trustworthine~s.~ 

The preliminary protections that apply to Rule 804(b)(5), 

M.R.Evid., also apply to Rule 803 (24) , M.R.Evid. The proffered 

hearsay must be evidence of a material fact; the hearsay must be 

more probative than any other evidence available through reasonable 

means; and the party intending to offer the hearsay testimony must 

give advance notice of that intention. 
In the present case, we hold that the statements made by Robby 

to Burns during counseling sessions are inadmissible. Because 

Robby was available to identify and did indeed identify defendant 

as the perpetrator of the crime, the hearsay statements to which 

Burns testified were not the most probative evidence on the matter. 

As we noted above, Burns' testimony on this issue was merely 

cumulative, sewing only to bolster Robby's testimony. 

For guidance in future cases, we will now discuss, using the 

factors set forth in J.C.E., 235 Mont. at 274, 767 P.2d at 315, the 

conditions under which hearsay testimony by a therapist who is an 

expert in treating victims of child sexual abuse may be admitted 

under the residual exceptions of Rule 804 (b) (5) , M.R.Evid. , the 

exception used when the declarant does not testify, and Rule 

803 (24) , M.R. Evid. , the exception used when the declarant does 

testify. We emphasize that the district courts need reach this 

analysis only if the preliminary protections of both rules have 

been satisfied. As we stated above, those protections are, in the 

case of Rule 804(b) (5), M.R.Evid., the child declarant is 

unavailable as a witness, the proffered hearsay is the most 

probative evidence of a material fact, and advance notice has been 

given of the intent to use the testimony; in the case of Rule 

803(24), M.R.Evid., the proffered hearsay is the most probative 

evidence of a material fact and advance notice has been given of 

the intent to use the testimony. 

The factors concerning the attributes of the child hearsay 

declarant as enumerated in J.C.E., 235 Mont. at 274, 767 P.2d at 
315, will vary in each case and are not particularly germane to 

this discussion. We do note that any time the child has been 

determined to be incompetent to testify at trial, the child's 

ability to communicate verbally (one of the factors) is 

questionable. 

The second group of factors set forth in J.C.E. are: 

a. The witness's relationship to the child. 

b. Whether the relationship between the witness and the 

child might have an impact on the trustworthiness of the 

hearsay statement. 

c. Whether the witness might have a motive to fabricate 

or distort the child's statement. 

d. The circumstances under which the witness heard the 

child's statement, including the timing of the statement 

in relation to the incident at issue and the availability 

of another person in whom the child could confide. 

J.C.E., 235 Mont. at 274, 767 P.2d at 315. 

A therapist does not see a child for treatment of the effects 

of sexual abuse unless there has been a claim that the child has 

been sexually abused. The therapist is therefore arguably 

predisposed to confirm what he or she has been told. We conclude 

that the nature of the relationship between a therapist and a child 

client has a negative impact on the trustworthiness of the hearsay 

statement. We further conclude that, in general, the circumstances 

in which a therapist hears a child's statement about sexual abuse 

are not such that a hearsay statement by the therapist will possess 

circumstantial guarantees of trustworthiness. 

Among the factors listed in J.C.E., 235 Mont. at 274, 676 P.2d 

at 315, concerning "the statement itself, is whether the statement 
was volunteered spontaneously. Statements to a therapist are not 

made spontaneously, but are made in response to questioning, 

whether direct or indirect. Another factor listed in J.C.E., 235 

Mont. at 274, 767 P.2d at 315-16, is Itthe suggestiveness of prior 

statements by the witness . . . ." In order to elicit a story of 

sexual assault from a child, a therapist may often resort to 

leading questions. Inherent in this type of suggestive questioning 

is the danger of planting the idea of sexual abuse in the mind of 

the child. 

In analyzing these factors, we conclude that only in an 

extraordinary case will hearsay testimony by a therapist concerning 

the identity of the perpetrator or the nature of the abuse possess 

sufficient circumstantial guarantees of trustworthiness to be 

admissible into evidence. We hold that hearsay statements of a 

child victim of sexual abuse who does not testify at trial will, 

in general, not be admissible under Rule 804 (b) (5) , M. R. Evid., 

through the child's therapist. Nor will the hearsay statements of 

a child victim of sexual abuse who does testify at trial generally 

be admissible under Rule 803 (24) , M. R. Evid., through the child s 

therapist. 

In sum, the hearsay statements about the assaults were 

improperly admitted into evidence in this case. Their admission 

into evidence constituted reversible error. We emphasize that this 

ruling does not prevent an expert witness such as Sandi Burns from 

testifying, after a proper foundation has been laid, as to the 

characteristics of children who have been sexually abused or as to 
whether a particular child displays those characteristics. It also 

does not prevent such an expert from testifying under another 

hearsay exception such as excited utterances or res sestae, 

depending upon the circumstances. 

Did the District Court err in granting the jury's request to 

have the testimony of an alleged victim read to it after the case 

had been submitted to the jury? 

During deliberations, the jury asked the District Court to 

let it review Robby's testimony. The jury's written request to 

the court stated, in part, "We would like to review [Robby's] 

testimony on the witness stand. We feel that we need all of 

[Robby's] testimony . . . to compare with other testimony!I1 

The District Court summoned counsel for both sides and 

informed them of the request. Defendant objected to the request. 

The court overruled the objection. The jury was then escorted into 

the courtroom and Robby's testimony was read in its entirety. 

At common law, the trial court had no discretion to read a 

transcript of a witness's testimony or submit testimonial materials 

to the jury room for unsupervised review during jury deliberations. 

This rule was designed to prevent an undue emphasis of the 

submitted materials over all other evidence in the case. Chambers 

v. State, 726 P.2d 1269, 1275 (Wyo. 1986). 

Statutory law permits a court to refresh the jury's 

recollection of trial testimony under certain limited 

circumstances. Section 46-16-503(2), MCA. The statute provides: 
After the jury has retired for deliberation, if there is 

any disagreement among the jurors as to the testimony or 

if the jurors desire to be informed on any point of law 

arising in the cause, they must require the officer to 

conduct them into court. When the jurors are brought 

into court, the information requested may be given in the 

discretion of the court. If such information is given, 

it must be given in the presence of the county attorney 

and the defendant and his counsel. 

Section 46-16-503(2), MCA. 

In construing a Wyoming statute similar to the one above, that 

state's supreme court stated: 

This statute does not change the common law rule against 

submitting testimonial materials to the jury for 

unsupervised and unrestricted review during 

deliberations, and it does not permit trial courts to 

repeat large amounts of testimony just because the jury 

makes such a request. On the contrary, it requires that 

the court discover the exact nature of the jury's 

difficulty, isolate the precise testimony which can solve 

it, and weigh the probative value of the testimony 

against the danger of undue emphasis. If, after this 

careful exercise of discretion, the court decides to 

repeat some testimony for the jury, it can do so in open 

court in the presence of the parties or their counsel or 

under other strictly controlled procedures of which the 

parties have been notified. [Footnote omitted.] The 

more testimony the court repeats, the greater the danger 

of undue emphasis. Even with the best of procedures, it 

would not be proper under the statue for the court to 

reread a transcript or replay a videotape of a witness's 

entire story just because the jury wants to review all 

of the testimonial matter that happens to be available 

or because the jury wants to review the general 

credibility of the witness. Undue emphasis and delay 

would be too likely. 

Chambers, 726 P.2d at 1276. 

We agree with the Wyoming court. The kind of request 

contemplated by 9 46-16-503 (2), MCA, includes an inquiry concerning 

a witness's testimony as to the width of a street, the height of 

an object, distance, time or some other limited request, but not 

the entire testimony of the witness. 
The instructions given to the jury before it begins 

deliberations should include an instruction to submit any requests 

for information in writing. If the jury submits a written request 

that the transcript of a witness be read to them, the district 

court should respond in writing as follows: 

It would be error for me to furnish you with a transcript 

of any particular witness for the reason that in 

rendering your verdict, you should not give any undue 

emphasis to the testimony of any one witness to the 

exclusion of all others. Instead, you should consider 

all of the evidence as a whole in rendering your verdict. 

However, if you have some particular reason or point that 

you are trying to resolve that relates to the evidence 

of this witness, you may submit that question to me in 

written form, and I will give it consideration. 

Through this process, an inquiry concerning a witnessls 

testimony can be narrowed down to such subjects as the width of a 

street, the height of an object, distance, time or some other 

limited request. 

In this case, the District Court abused its discretion by 

reading Robby1s entire testimony to the jury. The reading of the 

testimony prejudiced defendant by placing undue emphasis on the 

statement of the alleged victim to the exclusion of the testimony 

of other witnesses. 

Reversed and remanded for a new tr al. P 

Justice 

We Concur: 
Justices ? /i \ /.' / -9 

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71, 

1.2 &.CV!/.&c~4, 

Hon. Leonard ~itnGen, - - 

District Court Judge, 

sitting for Justice Barz 
Justice Fred J. Weber dissents as follows: 

I strongly dissent from the majority opinion. I also concur 

in Mr. Justice Harrison's dissent which demonstrates how the 

majority is proceeding in the opposite direction from the majority 

of jurisdictions in the area of expert testimony in child sexual 

abuse cases. I recognize the good faith attempt on the part of the 

majority to address a very perplexing area of the law of evidence. 

The tragic result is that we have severely handicapped the capacity 

of the judicial system to prosecute adults who commit sexual 

offenses upon very young children. 

Rule 702, M.R.Evid., details the testimony to be allowed by 

experts : 

If scientific, technical, or other specialized knowledge 

will assist the trier of fact to understand the evidence 

or to determine a fact in issue, a witness qualified as 

an expert by knowledge, skill, experience, training, or 

education may testify thereto in the form of an opinion 

or otherwise. 

In the present case we have the specialized knowledge of Ms. Sandi 

Burns who is an acknowledged expert in the area of sexual abuse. 

The extensive testimony on the part of Ms. Burns clearly assisted 

the trier of fact to understand evidence given by the children and 

to determine key facts in issue with regard to the charges of 

sexual abuse. 

The testimony sets forth the key professional qualifications 

on the part of the witnesses who testified in this case as experts 

in the area of child sexual abuse. Janey was taken by her mother 

to her pediatrician on the day after her mother observed Janey's 
problems. That pediatrician testified that she had special 

training regarding the diagnosis of sexual abuse in small children, 

and that she currently was on the Yellowstone Valley Sexual Abuse 

Team. While she could not recall the exact number of sexual abuse 

cases with which she had been involved, she estimated a total of 

50 to 75 cases. She testified she had been in court proceedings 

on sexual abuse on 10 or 15 different occasions. She is the 

medical witness who testified with regard to the bruises and 

abrasions which were consistent with sexual abuse. 

The defendant called a Billings pediatrician who testified 

with regard to his examination of the children. He has practiced 

pediatrics in Billings since 1953. He estimates that he has 

examined from 25 to 30 children for sexual abuse. He testified he 

found no evidence of sexual abuse in the two children. 

Ms. Sandi Burns testified with regard to her examination and 

treatment of Janey and Robby. Ms. Burns has been engaged in 

psychotherapy for approximately ten and one-half years in the 

Billings area. She has two masters degrees in counseling and 

psychology from Arizona State University. She is licensed by 

Montana as a professional counselor, and is licensed nationally as 

a certified counselor. She has specialized in sexual abuse cases 

for over ten years, and a majority of her case load consists of the 

diagnosis and treatment of child sexual abuse. She sees an average 

of 50 sexual abuse patients a weeks. She testified that she has 

handled approximately 1500 cases of child sexual abuse in the past 

10 years. Her patients come from all parts of Montana and from out 
of state. She has taught approximately 35 to 40 workshops a year 

for the FBI, social workers, school districts, teachers, counselors 

and nurses. Ms. Burns was charged with the diagnosis and treatment 

of both Janey and Robby. 

It is apparent from the record that the treatment of medical 

doctors in sexual abuse cases is limited to caring for the patients 

until they have physically recovered from any harm. The treatment 

of the mental and emotional aspects of sexual abuse with minor 

children is left to such experts as Ms. Burns. Note that the two 

pediatricians who testified as experts together have not seen onetenth of the patients seen by Ms. Burns in the past ten years. 

Their total is less than 150 as compared to Ms. Burnst 1500 cases. 

I emphasize this because Rule 702 emphasizes that if specialized 

knowledge will assist the trier of fact, a witness qualified by 

knowledge, skill, experience and training may testify. Applying 

that rationale suggests that Ms. Burns has more qualification by 

experience than medical doctors who see far fewer cases and spend 

a limited amount of time with the children. 

The majority opinion states that because a therapist does not 

see a child for treatment unless there has been a claim of sexual 

abuse, the therapist is arguably predisposed to confirm the abuse, 

which has a negative impact on the trustworthiness of the hearsay 

statement. The majority further concludes that the circumstances 

in which the therapist hears the statement are not generally such 

that a hearsay statement will possess circumstantial guarantees of 

trustworthiness. I am shocked that such statements are made in 
this case. Such statements might have been appropriate in cases 

where unqualified persons were testifying as to sexual abuse. That 

is not the case here. In Ms. Burns we have the expert's expert- 

-the person to whom the pediatrician referred the children for 

treatment--the person with the best experience to evaluate and 

treat sexual abuse. If the logic of the majority opinion is 

applied in other areas, it would appear that we should mistrust the 

testimony of a medical doctor because his patient was sent to him 

for diagnosis and potential treatment. The statements are totally 

unsupportable. Such a conclusion is particularly inappropriate in 

this case where Ms. Burns is one of the most qualified persons in 

the area of sexual abuse in the state of Montana. 

I 

Did Ms. Burns improperly comment on the credibility of the 

alleged victims? 

In Part I of the majority opinion, the majority emphasizes 

that the credibility of six year old Robby was not called into 

question by the defendant, and therefore concludes that it was 

reversible error to allow Ms. Burns to comment directly on Robby's 

trustworthiness. She had testified that Robby was a little, 

honest, open country boy who appeared to be a pretty trustworthy 

child and very honest. 

Ms. Burns testified to a number of factors which must be taken 

into consideration before she can reach conclusions with regard to 

a child abuse victim. She illustrated how Janey initially was 

unable to talk freely with her, and explained how she established 
the facts so far as Janey was concerned. Ms. Burns' testimony 

demonstrated that fear is one of the weapons frequently used by the 

adult sexual abuser upon a child victim. It is reasonable to 

conclude that the inability of Janey to testify in the present case 

was based upon such fear. That is particularly true because the 

trial judge found that she was unable to testify because of fear. 

Ms. Burns testified that Robby was extremely fearful because of 

threats made by the defendant and her husband. While it is 

fortunate that Robby was able to testify at trial, we have no 

assurance he will be able to testify on retrial. As pointed out 

by Ms. Burns, that may depend upon his mental and emotional state 

at the time of retrial. 

As emphasized by Ms. Burns, experts in this field recognize 

that children sometimes have difficulty telling their story--they 

frequently deny the occurrence of the sexual abuse at various 

times--if the occasions present reasons for them to become fearful, 

they will refuse to testify, or contradict testimony previously 

given. 

The testimony of Robby which the Court finds so persuasive is 

a demonstration of the problems in this area. On retrial we have 

no assurance that Robby will still be able to testify openly. If 

he is further threatened, or he recalls the previous threats made, 

he may choose to deny ever having testified as he did. Should that 

be the case, the person best able to discern the truth is the 

psychologist-therapist who has met day after day and week after 

week with the patient, and based upon her experience, as she did 
in the present case, reached a conclusion regarding the 

truthfulness of the statements. 

We have applied a rule which may be applicable in adult 

witness cases but is totally inappropriate here. The testimony of 

Ms. Burns was clearly helpful to the trier of fact to determine 

whether or not Robby was telling the truth and whether or not he 

accurately told what had happened to him and to Janey. 

In other types of cases we conclude that an expert may testify 

on aspects bearing on the ultimate fact to be determined by the 

jury. We recognize that experts can be properly evaluated by the 

jury. Based upon the extensive knowledge, experience and training 

of the expert, it seems appropriate under Rule 702, M.R.Evid., to 

allow the expert to assist the jury to determine the facts in 

issue. Obviously few jurors have background or experience dealing 

with child sexual abuse with which to evaluate reactions on the 

part of child abuse victims. 

I conclude that it was not reversible error to allow Ms. Burns 

to testify as to the credibility of Robby. We should encourage the 

giving of this essential information to jurors, the triers of fact. 

I1 

Did the District Court err in allowing Ms. Burns to identify 

the defendant as the perpetrator of the alleged crimes by 

testifying as to hearsay statements made to her by the victims 

during the course of therapy? 

In discussing whether or not the evidence was admissible under 

Rule 803(4), M.R.Evid., the medical diagnosis and treatment 
exception, the majority emphasized that the reliability of the 

medical treatment exception is assured because the declarant who 

seeks medical treatment possesses a selfish motive to tell the 

truth and we may therefore assume that the declarant was telling 

the truth. That ignores the wording of our Rule 803(4), which 

provides that statements made for either medical diagnosis or 

treatment are admissible. Statements made for medical diasnosis 

are not presumably reliable because the declarant may only be 

attempting to establish a claim, with no intent to seek treatment 

from that expert witness. In fact, the argument is probably 

stronger for allowing Ms. Burns, the highly qualified expert, to 

testify than it would have been for a medical doctor testifying as 

to diagnosis. We emphasize this because the information was stated 

by Ms. Burns to be essential to her treatment. 

I also disagree with the narrow construction of the majority 

on the residual exception to hearsay Rule 804(b) (5). In the 

guidelines contained in State v. J.C.E. (1988), 235 Mont. 264, 767 

P.2d 309, we pointed out that the main components of such testimony 

may well include the following: 

a. Whether the act alleged can be corroborated. 

b. If the child's statement identifies a perpetrator, 

whether that identity can be corroborated. 

We emphasized that the admissibility of the evidence remains in the 

discretion of the trial judge. 

The majority opinion concludes that because six year old Robby 

was able to link the defendant to the sexual assault, the 

identification by the expert through hearsay statements was only 

25 
cumulative. Unfortunately, we have no assurance that Robby's 

testimony will be available on retrial. Because of the extent of 

Ms. Burns1 expertise and the difficulty of ascertaining the extent 

to which a young child may have told the truth, I conclude that Ms. 

Burns' testimony is clearly the most probative evidence to help the 

jury evaluate Robby's testimony. 

Again, I emphasize that we treat these child witnesses as 

though they were adults. The testimony by Ms. Burns and other 

experts establishes that it is not appropriate to apply the same 

standards as are applied to adults. 

I conclude that the preliminary protections of Rule 804 (b) (5) 

have been met in this case and that the hearsay was properly 

admitted. I am disturbed by the conclusion on the part of the 

majority that it is only in an extraordinary case that hearsay 

statements by a therapist, concerning either the identify of the 

perpetrator or the nature of the abuse, possess sufficient 

circumstantial guarantees to be admissible. There is no factual 

basis for such a conclusion. 

Summary 

The tragic result is that we have rather casually reversed a 

conviction with overwhelming evidence establishing the guilt of the 

defendant. We have created multiple dilemmas: for the parents of 

both Janey and Robby the dilemma is whether or not to allow their 

children to go through the hurtful and frightening process of 

another trial. The dilemma on the part of the prosecution is 
whether they will be able to put together sufficient allowable 

evidence to convict the defendant so as to warrant their insistence 

that the children and parents go through the painful retrial 

process. 

While our intentions have been of the very best, we have now 

reversed the convictions as to both defendant Harris and her 

husband. Defendant Harris has been found guilty by a jury based 

on overwhelming evidence. Our pursuit of justice leads to strange 

and tragic results as we reverse. 
Justice John Conway Harrison dissenting. 

I concur in Mr. Justice Weberls dissent and add to it the fact 

that Sandi Burns has testified as an expert witness not only in 

numerous other states but before the federal courts and is used by 

the Federal Bureau of Investigation as an expert witness. We find 

ourselves in an amazing situation of denying her testimony under 

Rule 804(b) (5) in a state court in Montana, yet if she were 

testifying to the same fact situation in a federal court in 

Montana, her testimony would be received. 

While the question regarding the admissibility of psychiatric 

and psychological testimony in child abuse actions arises in 

criminal cases, the same principles of these decisions, in my 

opinion, should also have some applicability in civil actions. 

Child abuse cases have increased dramatically over the past 

decade. An estimated one in five females suffers from sexual abuse 

as a child. However, in two-thirds of child abuse cases, the 

incident is never reported. Morgan v. Foretich (4th Cir. 1988), 

846 F.2d 941, 943. Even when abuse is reported, convictions are 

few. Because the sole witness is often a very young child who may 

be incompetent to testify at trial and because physical evidence 

is frequently lacking, prosecution is difficult. a. Thus, the 

admission of a child's statements made to adults at the time of 

discovery of the abuse and during the course of therapy is crucial 

to the State's case. According to the comments to the Federal 

Rules of Evidence, "[wlhen the choice is between evidence which is 

less than best and no evidence at all, only clear folly would 

dictate an across-the-board policy of doing without.I1 Fed.R.Evid. 
art. VIII advisory committee's note. 

In child abuse cases, federal courts have admitted statements 

of children made to psychologists and social workers, as well as 

physicians, under the medical exception to the hearsay rule, Rule 

803 (4) , Fed. R. Evid. , identical to the Montana rule. Morqan, 846 

F.2d at 949; United States v. DeNoyer (8th Cir. 1987), 811 F.2d 

436, 438; United States v. Nick (9th Cir. 1979), 604 F.2d 1199, 

1201-1202. In fact, the advisory committee note to Rule 803(4) 

states that tl[u]nder the exception the statement need not have been 

made to a physician. Statements to hospital attendants, ambulance 

drivers, or even members of the family might be included. I' 

Fed.R.Evid. 803(4) advisory committee's note. 

Federal courts have instituted a two-part test for admitting 

such statements: (1) the declarant Is motive in making the statement 

must be consistent with the purposes of promoting treatment; and 

(2) the content of the statement must be such as is reasonably 

relied on by a physician. United States v. Renville (8th Cir. 

1985), 779 F.2d 430, 436. Statements made for purposes of medical 

treatment are frequently admitted into evidence regardless of 

whether the individual who made the statement is competent to 

testify at trial. Morqan, 846 F.2d at 949. 

In allowing the admission of hearsay statements of a fouryear-old child to her treating psychologist, the Fourth Circuit 

Court of Appeals found that a child's motive to make true 

statements for the purposes of diagnosis or treatment is as strong 

or stronger than an adult's. Secondly, the therapist or physician 

reasonably relies on the child's statements for treatment or 

diagnosis. Morsan, 846 F.2d at 949. The assailant's identity is 
one of the factors relied on for treatment in child abuse cases. 

Renville, 779 F.2d at 436-37; Morsan, 846 F.2d at 950. 

The federal cases follow the trend in state courts to allow 

this type of expert testimony in determining whether a child has 

been abused. In addition, nearly thirty states have passed 

legislative exceptions to the hearsay rule allowing individuals to 

testify to a child's hearsay statements if certain requirements are 

met.' Contrary to the majority's conclusion that statements to a 

The following states have enacted legislative exceptions to 

the hearsay rule in child sexual abuse cases: Alabama, Alaska 

(limited to grand jury testimony) , Arkansas, Arizona, California 

(only for purpose of determining admissibility of defendant's 

confession), Colorado, Florida, Georgia, Idaho, Illinois, Indiana, 

Kentucky, Maryland, Minnesota, Mississippi, Nevada, New Hampshire 

(limited to civil cases to recover damages on behalf of a minor 

child for abuse or assault), New Jersey (limited to juvenile and 

family law cases), New York (limited to family law cases), Ohio 

(limited to juvenile court), Oklahoma, Oregon, Pennsylvania 

(limited to juvenile and family law cases), South Dakota, Utah, 

Virginia (limited to civil cases involving child abuse and 

neglect) , and Washington. 

Of these, Arizona, Kentucky and Mississippi have declared 

their statutes unconstitutional on the ground that under their 

constitutions and state law, the judiciary, rather than the 

legislature, controls evidentiary rules. See State v. Robinson 

(Ariz. 1987), 735 P.2d 801; Drumm v. Commonwealth (Ky. 1990), 783 

S.W.2d 380; Hall v. State (Miss. 1989), 539 So.2d 1338. 

Other states have rebuffed constitutional challenges to child 

hearsay statutes. See, e.g., St. Clair v. State (Ark. 1990), 783 

S.W.2d 835 (separation of powers doctrine does not preclude General 

Assembly from enacting child hearsay rule); State v. Ramsey (Utah 

1989) , 782 P. 2d 480 (child hearsay statute not void for vagueness) ; 

State v. Swan (Wash. 1990), 790 P.2d 610 (defendant's right to 

confrontation of witness not violated by child hearsay statute). 

Typical of the hearsay statutes is the Washington law enacted 

in 1982, which provides: 

A statement made by a child when under the age of 

ten describing any act of sexual contact performed with 

or on the child by another, not otherwise admissible by 

statute or court rule, is admissible in evidence in 

dependency proceedings under Title 13 RCW and criminal 

proceedings in the courts of the state of Washington if: 
child's therapist are unreliable, Maryland's child hearsay statute 

allows the hearsay only if the statements are made to a licensed 

physician, psychologist, or social worker. Md. Cts. & Jud. Proc. 

Code Ann., 5 9-103.1 (1989). 

Arizona allows expert testimony explaining general behavioral 

characteristics of child victims on the basis that jurors, most of 

whom are unfamiliar with the behavioral sciences, might otherwise 

attribute behaviors of victims to inaccuracy or prevarication. 

State v. Moran (Ariz. 1986), 728 P.2d 248, 250-252. Arizona also 

follows the federal rule in admitting child hearsay statements to 

treating psychologists under the medical exception to the hearsay 

rule. State v. Robinson (Ariz. 1987), 735 P.2d 801, 809-10. 

In Brady v. State (Ind. App. 3 Dist. 1989), 540 N.E.2d 59, 70- 

71, the Indiana court allowed testimony of a therapist in regard 

(1) The court finds, in a hearing conducted outside 

the presence of the jury, that the time, content, and 

circumstances ofthe statement provide sufficient indicia 

of reliability; and 

(2) The child either: 

(a) Testifies at the proceedings; or 

(b) Is unavailable as a witness: 

Provided, That when the child is unavailable 

as a witness, such statement may be admitted 

only if there is corroborative evidence of the 

act. 

A statement may not be admitted under this section 

unless the proponent of the statement makes known to the 

adverse party his intention to offer the statement and 

the particulars of the statement sufficiently in advance 

of the proceedings to provide the adverse party with a 

fair opportunity to prepare to meet the statement. 

Wash. Rev. Code 5 9A.44.120 (1988). 
to the effects of sexual abuse on preschool age children. 

In State v. Kim (Hawaii 1982), 645 P.2d 1330, the court upheld 

expert testimony as to general characteristics of a child rape 

victim, including the credibility of the child witness, if the 

trial court is satisfied "that the expert's contacts with the 

evaluated witness were such that he had an opportunity to make a 

thorough and objective assessment." Kim, 645 P.2d at 1336. 

In our sister state of Washington in State v. Petrich (Wash. 

1984) , 683 P. 2d 173, the Washington court allowed an expert to 

describe why sexually abused children often delay reporting the 

abuse and that the length of delay correlates with the relationship 

between the abuser and the child. The Washington Supreme Court did 

not disturb the action of the trial court; it did however find 

prejudicial the expert's statement that in most instances a child 

is molested by someone he or she knows. 

In State v. Middleton (Or. 1983), 657 P.2d 1215, two social 

workers testified that the complainant's behavior was consistent 

with that of other children who reported sexual molestation by a 

family member. Similarly, in Ward v. State (Fla. App. 1 Dist. 

1988) , 519 So. 2d 1082, the court, in evaluating the testimony of 

a clinical psychologist commented that "[clhild abuse syndrome is 

an area sufficiently developed to permit an expert to testify that 

the symptoms observed in the evaluated child are consistent with 

those displayed by victims of child abuse.I1 I Ward 519 So.2d at 

1084. See also, Calloway v. State (Fla. App. 1 Dist. 1988), 520 

So.2d 665, review denied, 529 So.2d 693 (1988), where a 

psychologist was allowed to testify as an expert. 

In State v. Myers (Minn. 1984), 359 N.W.2d 604, the court 
allowed a clinical psychologist to generally describe the behavior 

and the symptoms typically exhibited by sexually abused children; 

she was allowed to state her opinion that the child was truthful 

about having been abused. Following Myers, the Minnesota Court of 

Appeals recently held that "[elxpert testimony describing the 

traits and characteristics typically found in sexually abused 

children and those the expert had observed in the complainants is 

admissible. . . . An expert may also testify properly that the 

child's behavior is consistent with the profile of a sexually 

abused child.I1 State v. Dana (Minn. App. 1987), 416 N.W.2d 147, 

153, rev'd on other srounds, 422 N.W.2d 246 (1988). 

The jury is the sole judge of the credibility of witnesses. 

By not accepting the testimony of Sandi Burns in this case we are 

denying the jury the opportunity to hear the testimony of one who 

can add to the jury's ability to fairly decide the factual issues. 

The majority's statement that a therapist is predisposed to find 

abuse is unsupported by research or other evidence and is merely 

a conclusory opinion. I find it more credible that a therapist as 

experienced as Sandi Burns is better able than a lay witness to 

detect fabricated statements by children. 

The majority's broad assertion that the relationship between 

a therapist and a child client has a "negative impact on the 

trustworthiness of the hearsay statementsv1 is equally without 

foundation. As in this case, children in a sexual abuse situation 

are often threatened with harm or death to themselves and others 

if they say anything about the abuse. Thus, a child whose trust 

is betrayed by an abuser may take weeks or even months to trust an 

adult before he or she will reveal details of the abuse. As Sandi 
Burns testified, the child's statements in therapy are not 

necessarily made in response to questioning, but may be divulged 

while the child is at play or through pictures the child draws. 

A therapist is trained to ask non-leading questions. In any 

particular case, the trial court needs to assess the circumstances 

under which the child's statements to a therapist are made, rather 

than beginning with the insupportable assumption that the 

statements are inherently unreliable. 

Sandi Burns is so well trained and knowledgeable in her field 

that even medical professionals refer patients to her. I am 

reluctant to categorically preclude all such testimony as we have 

done here, since it is virtually the unanimous opinion of 

commentators that under certain circumstances expert psychiatric 

testimony may reveal to the trier of fact characteristics or 

conditions of the witnesses which may assist the jury in the 

assessment of their credibility. See Saxe, Psychiatry, 

Psychoanalysis, and the Credibility of Witnesses, 45 Notre Dame 

Lawyer 238, (1970) ; Juviler, Psychiatric Opinions as to Credibility 

of Witnesses: A Suqqested Approach, 48 Cal.L.Rev. 648 (1960) ; 

McCormick, Evidence, Section 45 (1972 ed.). 

By our action today, we are, in my opinion, setting back the 

prosecution of child abuse cases in Montana for years to come. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

NO. 89-226 

STATE OF MONTANA, 

Plaintiff and Respondent, 

KATHRYN HARRIS, 

Defendant and Appellant. 

1 

1 ORDER 

1 

It has been brought to the Court's attention that an error 

exists on page 20 of the dissent of ~ustice Fred J. Weber to the 

opinion in the above case. 

IT IS ORDERED that the paragraph commencing at line 10, page 

20 of the opinion which reads: 

The defendant called a Billings pediatrician who 

testified with regard to his examination of the children. 

He has practiced pediatrics in Billings since 1953. He 

estimates that he had examined from 25 to 30 children for 

sexual abuse. He testified he found no evidence of 

sexual abuse in the two children. 

Is changed to read as follows: 

The defendant called a Billings pediatrician who 

testified as an expert with regard to his examination of 

children for sexual abuse. He has practiced pediatrics 

in ~illings since 1953. He estimated that he has 

examined from 25 to 30 children for sexual abuse during 

that time. 

IT IS FURTHER ORDERED that the Clerk of this Court is directed 

to mail a copy of this order to: 

Gary E. Wilcox 

Attorney for Appellant t 0 P.O. Box 30522 2: *& 4 *! 

~illings, Montana 59107 FE3 1 3 1995 

Marc Racicot, Attorney General G 62 >;;tifi State of Montana UERbi OF SLF~;"J;E COU~ 

Helena, Montana STATE G3" 1,TOld'i'ArJA 
Clerk of the District Court 

Fourteenth Judicial District 

Musselshell County 

Roundup, Montana 59072 

State Reporter, Helena, Montana 

West Publishins Co., St. Paul, Minnesota 

DATED this 4~eday ofFebruary, 1991.