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Subject: 89-260--OPINION, IDAHO v. WRIGHT




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.


SUPREME COURT OF THE UNITED STATES


No. 89-260



IDAHO, PETITIONER v. LAURA LEE WRIGHT


on writ of certiorari to the supreme court of idaho

[June 27, 1990]



    Justice O'Connor delivered the opinion of the Court.
    This case requires us to decide whether the admission at trial of
certain hearsay statements made by a child declarant to an examining
pediatrician violates a defendant's rights under the Confrontation Clause
of the Sixth Amendment.

I
    Respondent Laura Lee Wright was jointly charged with Robert L. Giles of
two counts of lewd conduct with a minor under 16, in violation of Idaho
Code MDRV 18-1508 (1987).  The alleged victims were respondent's two
daughters, one of whom was 512 and the other 212 years old at the time the
crimes were charged.
    Respondent and her ex-husband, Louis Wright, the father of the older
daughter, had reached an informal agreement whereby each parent would have
custody of the older daughter for six consecutive months.  The allegations
surfaced in November 1986 when the older daughter told Cynthia Goodman,
Louis Wright's female companion, that Giles had had sexual intercourse with
her while respondent held her down and covered her mouth, App. 47-55; 3 Tr.
456-460, and that she had seen respondent and Giles do the same thing to
respondent's younger daughter, App. 48-49, 61; 3 Tr. 460.  The younger
daughter was living with her parents--respondent and Giles--at the time of
the alleged offenses.
    Goodman reported the older daughter's disclosures to the police the
next day and took the older daughter to the hospital.  A medical
examination of the older daughter revealed evidence of sexual abuse.  One
of the examining physicians was Dr. John Jambura, a pediatrician with
extensive experience in child abuse cases.  App. 91-94.  Police and welfare
officials took the younger daughter into custody that day for protection
and investigation.  Dr. Jambura examined her the following day and found
conditions "strongly suggestive of sexual abuse with vaginal contact,"
occurring approximately two to three days prior to the examination.  Id.,
at 105, 106.
    At the joint trial of respondent and Giles, the trial court conducted a
voir dire examination of the younger daughter, who was three years old at
the time of trial, to determine whether she was capable of testifying.
Id., at 32-38.  The court concluded, and the parties agreed, that the
younger daughter was "not capable of communicating to the jury."  Id., at
39.
    At issue in this case is the admission at trial of certain statements
made by the younger daughter to Dr. Jambura in response to questions he
asked regarding the alleged abuse.  Over objection by respondent and Giles,
the trial court permitted Dr. Jambura to testify before the jury as
follows:

    "Q. [By the prosecutor]  Now, calling your attention then to your
examination of Kathy Wright on November 10th.  What--would you describe any
interview dialogue that you had with Kathy at that time?  Excuse me, before
you get into that, would you lay a setting of where this took place and who
else might have been present?
    "A. This took place in my office, in my examining room, and, as I
recall, I believe previous testimony I said that I recall a female
attendant being present, I don't recall her identity.
    "I started out with basically, `Hi, how are you,' you know, `What did
you have for breakfast this morning?'  Essentially a few minutes of just
sort of chitchat.
    "Q. Was there response from Kathy to that first-- those first
questions?
    "A. There was.  She started to carry on a very relaxed animated
conversation.  I then proceeded to just gently start asking questions
about, `Well, how are things at home,' you know, those sorts.  Gently
moving into the domestic situation and then moved into four questions in
particular, as I reflected in my records, `Do you play with daddy?  Does
daddy play with you?  Does daddy touch you with his pee-pee?  Do you touch
his pee-pee?'  And again we then established what was meant by pee-pee, it
was a generic term for genital area.
    "Q. Before you get into that, what was, as best you recollect, what was
her response to the question `Do you play with daddy?'
    "A. Yes, we play--I remember her making a comment about yes we play a
lot and expanding on that and talking about spending time with daddy.
    "Q. And `Does daddy play with you?'  Was there any response?
    "A. She responded to that as well, that they played together in a
variety of circumstances and, you know, seemed very 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."  Id.,
at 121-123.


On cross-examination, Dr. Jambura acknowledged that a picture that he drew
during his questioning of the younger daughter had been discarded.  Id., at
124.  Dr. Jambura also stated that although he had dictated notes to
summarize the conversation, his notes were not detailed and did not record
any changes in the child's affect or attitude.  Id., at 123-124.
    The trial court admitted these statements under Idaho's residual
hearsay exception, which provides in relevant part:

    "Rule 803.  Hearsay exceptions; availability of declarant
immaterial.--The following are not excluded by the hearsay rule, even
though the declarant is available as a witness.


    "(24) Other exceptions.  A statement not specifically covered by any of
the foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness, if the court determines that (A) the statement is offered
as evidence of a material fact; (B) the statement is more probative on the
point for which it is offered than any other evidence which the proponent
can procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission
of the statement into evidence."  Idaho Rule Evid. 803(24).


    Respondent and Giles were each convicted of two counts of lewd conduct
with a minor under 16 and sentenced to 20 years imprisonment.  Each
appealed only from the conviction involving the younger daughter.  Giles
contended that the trial court erred in admitting Dr. Jambura's testimony
under Idaho's residual hearsay exception.  The Idaho Su preme Court
disagreed and affirmed his conviction.  State v. Giles, 115 Idaho 984, 772
P. 2d 191 (1989).  Respondent asserted that the admission of Dr. Jambura's
testimony under the residual hearsay exception nevertheless violated her
rights under the Confrontation Clause.  The Idaho Supreme Court agreed and
reversed respondent's conviction.  116 Idaho 382, 775 P. 2d 1224 (1989).
    The Supreme Court of Idaho held that the admission of the inculpatory
hearsay testimony violated respondent's federal constitutional right to
confrontation because the testimony did not fall within a traditional
hearsay exception and was based on an interview that lacked procedural
safeguards.  Id., at 385, 775 P. 2d, at 1227.  The court found Dr. Jam
bura's interview technique inadequate because "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."  Ibid.  The statements also lacked trustworthiness,
according to the court, because "this interrogation was performed by
someone with a preconceived idea of what the child should be disclosing."
Ibid.  Noting that expert testimony and child psychology texts indicated
that children are susceptible to suggestion and are therefore likely to be
misled by leading questions, the court found that "[t]he circumstances
surrounding this interview demonstrate dangers of unreliability which,
because the interview was not [audio or video] recorded, can never be fully
assessed."  Id., at 388, 775 P. 2d, at 1230.  The court concluded that the
younger daughter's statements lacked the particularized guarantees of
trustworthiness necessary to satisfy the requirements of the Confron tation
Clause and that therefore the trial court erred in admitting them.  Id., at
389, 775 P. 2d, at 1231.  Because the court was not convinced, beyond a
reasonable doubt, that the jury would have reached the same result had the
error not occurred, the court reversed respondent's conviction on the count
involving the younger daughter and remanded for a new trial.  Ibid.
    We granted certiorari, 493 U. S. ---- (1990), and now affirm.

II
    The Confrontation Clause of the Sixth Amendment, made applicable to the
States through the Fourteenth Amendment, provides: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him."
    From the earliest days of our Confrontation Clause jurisprudence, we
have consistently held that the Clause does not necessarily prohibit the
admission of hearsay statements against a criminal defendant, even though
the admission of such statements might be thought to violate the literal
terms of the Clause.  See, e. g., Mattox v. United States, 156 U. S. 237,
243 (1895); Pointer v. Texas, 380 U. S. 400, 407 (1965).  We reaffirmed
only recently that "[w]hile a literal interpre tation of the Confrontation
Clause could bar the use of any out-of-court statements when the declarant
is unavailable, this Court has rejected that view as `unintended and too
extreme.' "  Bourjaily v. United States, 483 U. S. 171, 182 (1987) (quoting
Ohio v. Roberts, 448 U. S. 56, 63 (1980)); see also Maryland v. Craig,
ante, at ---- ("[T]he [Confrontation] Clause permits, where necessary, the
admission of certain hearsay statements against a defendant despite the
defendant's inability to confront the declarant at trial").
    Although we have recognized that hearsay rules and the Confrontation
Clause are generally designed to protect similar values, we have also been
careful not to equate the Confrontation Clause's prohibitions with the
general rule prohibiting the admission of hearsay statements.  See
California v. Green, 399 U. S. 149, 155-156 (1970); Dutton v. Evans, 400 U.
S. 74, 86 (1970) (plurality opinion); United States v. Inadi, 475 U. S.
387, 393, n. 5 (1986).  The Confrontation Clause, in other words, bars the
admission of some evidence that would otherwise be admissible under an
exception to the hearsay rule.  See, e. g., Green, supra, at 155-156;
Bruton v. United States, 391 U. S. 123 (1968); Barber v. Page, 390 U. S.
719 (1968); Pointer, supra.
    In Ohio v. Roberts, we set forth "a general approach" for determining
when incriminating statements admissible under an exception to the hearsay
rule also meet the requirements of the Confrontation Clause.  448 U. S., at
65.  We noted that the Confrontation Clause "operates in two separate ways
to restrict the range of admissible hearsay."  Ibid.  "First, in
conformance with the Framers' preference for face- to-face accusation, the
Sixth Amendment establishes a rule of necessity.  In the usual case . . .,
the prosecution must either produce or demonstrate the unavailability of,
the declarant whose statement it wishes to use against the defendant."
Ibid. (citations omitted).  Second, once a witness is shown to be
unavailable, "his statement is admissible only if it bears adequate
`indicia of reliability.'  Reliability can be inferred without more in a
case where the evidence falls within a firmly rooted hearsay exception.  In
other cases, the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness."  Id., at 66 (footnote
omitted); see also Mancusi v. Stubbs, 408 U. S. 204, 213 (1972).
    Applying this general analytical framework to the facts of Roberts,
supra, we held that the admission of testimony given at a preliminary
hearing, where the declarant failed to appear at trial despite the State's
having issued five separate subpoenas to her, did not violate the
Confrontation Clause.  Id., at 67-77.  Specifically, we found that the
State had carried its burden of showing that the declarant was unavailable
to testify at trial, see Barber, supra, at 724-725; Mancusi, supra, at 212,
and that the testimony at the preliminary hearing bore sufficient indicia
of reliability, particularly because defense counsel had had an adequate
opportunity to cross-examine the declarant at the preliminary hearing, see
Green, supra, at 216.
    We have applied the general approach articulated in Roberts to
subsequent cases raising Confrontation Clause and hearsay issues.  In
United States v. Inadi, supra, we held that the general requirement of
unavailability did not apply to incriminating out-of-court statements made
by a non testifying co-conspirator and that therefore the Confrontation
Clause did not prohibit the admission of such statements, even though the
government had not shown that the declarant was unavailable to testify at
trial.  475 U. S., at 394-400.  In Bourjaily v. United States, supra, we
held that such statements also carried with them sufficient "indicia of
reliability" because the hearsay exception for co-conspirator statements
was a firmly rooted one.  483 U. S., at 182-184.
    Applying the Roberts approach to this case, we first note that this
case does not raise the question whether, before a child's out-of-court
statements are admitted, the Confron tation Clause requires the prosecution
to show that a child witness is unavailable at trial--and, if so, what that
showing requires.  The trial court in this case found that respondent's
younger daughter was incapable of communicating with the jury, and defense
counsel agreed.  App. 39.  The court below neither questioned this finding
nor discussed the general requirement of unavailability.  For purposes of
deciding this case, we assume without deciding that, to the extent the
unavailability requirement applies in this case, the younger daughter was
an unavailable witness within the meaning of the Confrontation Clause.
    The crux of the question presented is therefore whether the State, as
the proponent of evidence presumptively barred by the hearsay rule and the
Confrontation Clause, has carried its burden of proving that the younger
daughter's incriminating statements to Dr. Jambura bore sufficient indicia
of reliability to withstand scrutiny under the Clause.  The court below
held that, although the trial court had properly admitted the statements
under the State's residual hearsay exception, the statements were "fraught
with the dangers of unreliability which the Confrontation Clause is
designed to highlight and obviate."  116 Idaho, at 389, 775 P. 2d, at 1231.
The State asserts that the court below erected too stringent a standard for
admitting the statements and that the statements were, under the totality
of the circumstances, sufficiently reliable for Confrontation Clause
purposes.
    In Roberts, we suggested that the "indicia of reliability" requirement
could be met in either of two circumstances: where the hearsay statement
"falls within a firmly rooted hearsay exception," or where it is supported
by "a showing of particularized guarantees of trustworthiness."  448 U. S.,
at 66; see also Bourjaily, 483 U. S., at 183 ("[T]he co-conspirator
exception to the hearsay rule is firmly enough rooted in our jurisprudence
that, under this Court's holding in Roberts, a court need not independently
inquire into the reliability of such statements"); Lee v. Illinois, 476 U.
S. 530, 543 (1986) ("[E]ven if certain hearsay evidence does not fall
within `a firmly rooted hearsay exception' and is thus presumptively
unreliable and inadmissible for Confrontation Clause purposes, it may
nonetheless meet Confrontation Clause relia bility standards if it is
supported by a `showing of particularized guarantees of trustworthiness' ")
(footnote and citation omitted).
    We note at the outset that Idaho's residual hearsay exception, Idaho
Rule Evid. 803(24), under which the challenged statements were admitted,
App. 113-115, is not a firmly rooted hearsay exception for Confrontation
Clause purposes.  Admission under a firmly rooted hearsay exception
satisfies the constitutional requirement of reliability because of the
weight accorded longstanding judicial and legislative experience in
assessing the trustworthiness of certain types of out- of-court statements.
See Mattox, 156 U. S., at 243; Roberts, 448 U. S., at 66; Bourjaily, 483 U.
S., at 183; see also Lee, 476 U. S., at 551-552 (Blackmun, J., dissenting)
("[S]tatements squarely within established hearsay exceptions possess `the
imprimatur of judicial and legislative experience' . . . and that fact must
weigh heavily in our assessment of their reliability for constitutional
purposes") (citation omitted).  The residual hearsay exception, by
contrast, accommodates ad hoc instances in which statements not otherwise
falling within a recognized hearsay exception might nevertheless be
sufficiently reliable to be admissible at trial.  See, e. g., Senate
Judiciary Committee's Note on Fed. Rule Evid. 803(24), 28 U. S. C. App.,
pp. 786-787; E. Cleary, McCormick on Evidence MDRV 324.1, pp. 907-909 (3d
ed. 1984).  Hearsay statements admitted under the residual exception,
almost by definition, therefore do not share the same tradition of
reliability that supports the admissibility of statements under a firmly
rooted hearsay exception.  Moreover, were we to agree that the admission of
hearsay statements under the residual exception automatically passed
Confrontation Clause scrutiny, virtually every codified hearsay exception
would assume constitutional stature, a step this Court has repeatedly
declined to take.  See Green, 399 U. S., at 155-156; Evans, 400 U. S., at
86-87 (plurality opinion); Inadi, 475 U. S., at 393, n. 5; see also Evans,
supra, at 94-95 (Harlan, J., concurring in result).
    The State in any event does not press the matter strongly and
recognizes that, because the younger daughter's hearsay statements do not
fall within a firmly rooted hearsay exception, they are "presumptively
unreliable and inadmissible for Confrontation Clause purposes," Lee, 476 U.
S., at 543, and "must be excluded, at least absent a showing of
particularized guarantees of trustworthiness,"  Roberts, 448 U. S., at 66.
The court below concluded that the State had not made such a showing, in
large measure because the statements resulted from an interview lacking
certain procedural safeguards.  The court below specifically noted that Dr.
Jam bura failed to record the interview on videotape, asked leading
questions, and questioned the child with a preconceived idea of what she
should be disclosing.  See 116 Idaho, at 388, 775 P. 2d, at 1230.
    Although we agree with the court below that the Confrontation Clause
bars the admission of the younger daughter's hearsay statements, we reject
the apparently dispositive weight placed by that court on the lack of
procedural safeguards at the interview.  Out-of-court statements made by
children regarding sexual abuse arise in a wide variety of circumstances,
and we do not believe the Constitution imposes a fixed set of procedural
prerequisites to the admission of such statements at trial.  The procedural
requirements identified by the court below, to the extent regarded as
conditions precedent to the admission of child hearsay statements in child
sexual abuse cases, may in many instances be inappropriate or unnecessary
to a determination whether a given statement is sufficiently trustworthy
for Confrontation Clause purposes.  See, e. g., Nelson v. Farrey, 874 F. 2d
1222, 1229 (CA7 1989) (videotape requirement not feasible, especially where
defendant had not yet been criminally charged), cert. denied, 493 U. S.
---- (1990); J. Myers, Child Witness Law and Practice MDRV 4.6, pp. 129-134
(1987) (use of leading questions with children, when appropriate, does not
necessarily render responses untrustworthy).  Although the procedural
guidelines propounded by the court below may well enhance the reliability
of out-of-court statements of children regarding sexual abuse, we decline
to read into the Confrontation Clause a preconceived and artificial litmus
test for the procedural propriety of professional interviews in which
children make hearsay statements against a defendant.
    The State responds that a finding of "particularized guarantees of
trustworthiness" should instead be based on a consideration of the totality
of the circumstances, including not only the circumstances surrounding the
making of the statement, but also other evidence at trial that corroborates
the truth of the statement.  We agree that "particularized guarantees of
trustworthiness" must be shown from the totality of the circumstances, but
we think the relevant circumstances include only those that surround the
making of the statement and that render the declarant particularly worthy
of belief.  This conclusion derives from the rationale for permitting
exceptions to the general rule against hearsay:

    "The theory of the hearsay rule . . . is that the many possible sources
of inaccuracy and untrustworthiness which may lie underneath the bare
untested assertion of a witness can best be brought to light and exposed,
if they exist, by the test of cross-examination.  But this test or security
may in a given instance be superfluous; it may be sufficiently clear, in
that instance, that the statement offered is free enough from the risk of
in accuracy and untrustworthiness, so that the test of cross-examination
would be a work of supererogation."  5 J. Wigmore, Evidence MDRV 1420, p.
251 (J. Chadbourne rev. 1974).


In other words, if the declarant's truthfulness is so clear from the
surrounding circumstances that the test of cross-examination would be of
marginal utility, then the hearsay rule does not bar admission of the
statement at trial.  The basis for the "excited utterance" exception, for
example, is that such statements are given under circumstances that
eliminate the possibility of fabrication, coaching, or confabulation, and
that therefore the circumstances surrounding the making of the statement
provide sufficient assurance that the statement is trustworthy and that
cross-examination would be superfluous.  See, e. g., 6 Wigmore, supra, 15
1745-1764; 4 J. Weinstein & M. Berger, Weinstein's Evidence 803(2)[01]
(1988); Advisory Committee's Note on Fed. Rule Evid. 803(2), 28 U. S. C.
App., p. 778.  Likewise, the "dying declaration" and "medical treatment"
exceptions to the hearsay rule are based on the belief that persons making
such statements are highly unlikely to lie.  See, e. g., Mattox, 156 U. S.,
at 244 ("[T]he sense of impending death is presumed to remove all
temptation to falsehood, and to enforce as strict an adherence to the truth
as would the obligation of oath"); Queen v. Osman, 15 Cox Crim. Cas. 1, 3
(Eng. N. Wales Cir. 1881) (Lush, L. J.) ("[N]o person, who is immediately
going into the presence of his Maker, will do so with a lie upon his
lips"); Mosteller, Child Sexual Abuse and Statements for the Purpose of
Medical Diagnosis or Treatment, 67 N. C. L. Rev. 257 (1989).  "The
circumstantial guarantees of trustworthiness on which the various specific
exceptions to the hearsay rule are based are those that existed at the time
the statement was made and do not include those that may be added by using
hindsight."  Huff v. White Motor Corp., 609 F. 2d 286, 292 (CA7 1979).
    We think the "particularized guarantees of trustworthiness" required
for admission under the Confrontation Clause must likewise be drawn from
the totality of circumstances that surround the making of the statement and
that render the declarant particularly worthy of belief.  Our precedents
have recognized that statements admitted under a "firmly rooted" hearsay
exception are so trustworthy that adversarial testing would add little to
their reliability.  See Green, 399 U. S., at 161 (examining "whether
subsequent cross- examination at the defendant's trial will still afford
the trier of fact a satisfactory basis for evaluating the truth of the
prior statement"); see also Mattox, 156 U. S., at 244; Evans, 400 U. S., at
88-89 (plurality opinion); Roberts, 448 U. S., at 65, 73.  Because evidence
possessing "particularized guarantees of trustworthiness" must be at least
as reliable as evidence admitted under a firmly rooted hearsay exception,
see Roberts, supra, at 66, we think that evidence admitted under the former
requirement must similarly be so trustworthy that adversarial testing would
add little to its reliability.  See Lee v. Illinois, 476 U. S., at 544
(determining indicia of reliability from the circumstances surrounding the
making of the statement); see also State v. Ryan, 103 Wash. 2d 165, 174,
691 P. 2d 197, 204 (1984) ("Adequate indicia of reliability [under Roberts]
must be found in reference to circumstances surrounding the making of the
out-of-court statement, and not from subsequent corroboration of the
criminal act").  Thus, unless an affirmative reason, arising from the
circumstances in which the statement was made, provides a basis for
rebutting the presumption that a hearsay statement is not worthy of
reliance at trial, the Confrontation Clause requires exclusion of the
out-of-court statement.
    The state and federal courts have identified a number of factors that
we think properly relate to whether hearsay statements made by a child
witness in child sexual abuse cases are reliable.  See, e. g., State v.
Robinson, 153 Ariz. 191, 201, 735 P. 2d 801, 811 (1987) (spontaneity and
con sistent repetition); Morgan v. Foretich, 846 F. 2d 941, 948 (CA4 1988)
(mental state of the declarant); State v. Sorenson, 143 Wis. 2d 226, 246,
421 N. W. 2d 77, 85 (1988) (use of terminology unexpected of a child of
similar age); State v. Kuone, 243 Kan. 218, 221-222, 757 P. 2d 289, 292-293
(1988) (lack of motive to fabricate).  Although these cases (which we cite
for the factors they discuss and not necessarily to approve the results
that they reach) involve the application of vari- ous hearsay exceptions to
statements of child declarants, we think the factors identified also apply
to whether such statements bear "particularized guarantees of
trustworthiness" under the Confrontation Clause.  These factors are, of
course, not exclusive, and courts have considerable leeway in their
consideration of appropriate factors.  We therefore decline to endorse a
mechanical test for determining "par ticularized guarantees of
trustworthiness" under the Clause.  Rather, the unifying principle is that
these factors relate to whether the child declarant was particularly likely
to be telling the truth when the statement was made.
    As our discussion above suggests, we are unpersuaded by the State's
contention that evidence corroborating the truth of a hearsay statement may
properly support a finding that the statement bears "particularized
guarantees of trustworthiness."  To be admissible under the Confrontation
Clause, hearsay evidence used to convict a defendant must possess indicia
of reliability by virtue of its inherent trustworthiness, not by reference
to other evidence at trial.  Cf. Delaware v. Van Arsdall, 475 U. S. 673,
680 (1986).  "[T]he Clause coun tenances only hearsay marked with such
trustworthiness that `there is no material departure from the reason of the
general rule.' "  Roberts, 448 U. S., at 65 (quoting Snyder v.
Massachusetts, 291 U. S. 97, 107 (1934)).  A statement made under duress,
for example, may happen to be a true statement, but the circumstances under
which it is made may provide no basis for supposing that the declarant is
particularly likely to be telling the truth--indeed, the circumstances may
even be such that the declarant is particularly unlikely to be telling the
truth.  In such a case, cross-examination at trial would be highly useful
to probe the declarant's state-of-mind when he made the statements; the
presence of evidence tending to corroborate the truth of the statement
would be no substitute for cross-examination of the declarant at trial.
    In short, the use of corroborating evidence to support a hearsay
statement's "particularized guarantees of trustworthiness" would permit
admission of a presumptively unreliable statement by bootstrapping on the
trustworthiness of other evidence at trial, a result we think at odds with
the requirement that hearsay evidence admitted under the Confrontation
Clause be so trustworthy that cross-examination of the declarant would be
of marginal utility.  Indeed, although a plurality of the Court in Dutton
v. Evans looked to corroborating evidence as one of four factors in
determining whether a particular hearsay statement possessed sufficient
indicia of reliability, see 400 U. S., at 88, we think the presence of
corroborating evidence more appropriately indicates that any error in
admitting the statement might be harmless, {1} rather than that any basis
exists for presuming the declarant to be trustworthy.  See id., at 90
(Blackmun, J., joined by Burger, C. J., concurring) (finding admission of
the statement at issue to be harmless error, if error at all); see also 4
D. Louisell & C. Mueller, Federal Evidence MDRV 418, p. 143 (1980)
(discussing Evans).
    Moreover, although we considered in Lee v. Illinois the "interlocking"
nature of a codefendant's and a defendant's confessions to determine
whether the codefendant's confession was sufficiently trustworthy for
confrontation purposes, we declined to rely on corroborative physical
evidence and indeed rejected the "interlock" theory in that case.  476 U.
S., at 545-546.  We cautioned that "[t]he true danger inherent in this type
of hearsay is, in fact, its selective reliability."  Id., at 545.  This
concern applies in the child hearsay context as well: Corroboration of a
child's allegations of sexual abuse by medical evidence of abuse, for
example, sheds no light on the reliability of the child's allegations
regarding the identity of the abuser.  There is a very real danger that a
jury will rely on partial corroboration to mistakenly infer the
trustworthiness of the entire statement.  Furthermore, we recognized the
similarity between harmless-error analysis and the corroboration inquiry
when we noted in Lee that the harm of "admission of the [hearsay] statement
[was that it] poses too serious a threat to the accuracy of the verdict to
be countenanced by the Sixth Amendment."  Ibid. (emphasis added).
    Finally, we reject respondent's contention that the younger daughter's
out-of-court statements in this case are per se unreliable, or at least
presumptively unreliable, on the ground that the trial court found the
younger daughter incompetent to testify at trial.  First, respondent's
contention rests upon a questionable reading of the record in this case.
The trial court found only that the younger daughter was "not capable of
communicating to the jury."  App. 39.  Although Idaho law provides that a
child witness may not testify if he "appear[s] incapable of receiving just
impressions of the facts respecting which they are examined, or of relating
them truly," Idaho Code MDRV 9-202 (Supp. 1989); Idaho Rule Evid. 601(a),
the trial court in this case made no such findings.  Indeed, the more
reasonable inference is that, by ruling that the statements were admissible
under Idaho's residual hearsay exception, the trial court implicitly found
that the younger daughter, at the time she made the statements, was capable
of receiving just impressions of the facts and of relating them truly.  See
App. 115.  In addition, we have in any event held that the Confrontation
Clause does not erect a per se rule barring the admission of prior
statements of a declarant who is unable to communicate to the jury at the
time of trial.  See, e. g., Mattox, 156 U. S., at 243-244; see also 4
Louisell & Mueller, supra, MDRV 486, pp. 1041-1045.  Although such
inability might be relevant to whether the earlier hearsay statement
possessed particularized guarantees of trustworthiness, a per se rule of
exclusion would not only frustrate the truth-seeking purpose of the
Confrontation Clause, but would also hinder States in their own
"enlightened development in the law of evidence," Evans, 400 U. S., at 95
(Harlan, J., concurring in result).

III
    The trial court in this case, in ruling that the Confrontation Clause
did not prohibit admission of the younger daughter's hearsay statements,
relied on the following factors:

"In this case, of course, there is physical evidence to corroborate that
sexual abuse occurred.  It would also seem to be the case that there is no
motive to make up a story of this nature in a child of these years.  We're
not talking about a pubescent youth who may fantasize.  The nature of the
statements themselves as to sexual abuse are such that they fall outside
the general believability that a child could make them up or would make
them up.  This is simply not the type of statement, I believe, that one
would expect a child to fabricate.
    We come then to the identification itself.  Are there any indicia of
reliability as to identification?  From the doctor's testimony it appears
that the injuries testified to occurred at the time that the victim was in
the custody of the Defendants.  The [older daughter] has testified as to
identification of [the] perpetrators.  Those--the identification of the
perpetrators in this case are persons well known to the [younger daughter].
This is not a case in which a child is called upon to identify a stranger
or a person with whom they would have no knowledge of their identity or
ability to recollect and recall.  Those factors are sufficient indicia of
reliability to permit the admission of the statements."  App. 115.


Of the factors the trial court found relevant, only two relate to
circumstances surrounding the making of the statements: whether the child
had a motive to "make up a story of this nature," and whether, given the
child's age, the statements are of the type "that one would expect a child
to fabricate."  Ibid.  The other factors on which the trial court relied,
however, such as the presence of physical evidence of abuse, the
opportunity of respondent to commit the offense, and the older daughter's
corroborating identification, relate instead to whether other evidence
existed to corroborate the truth of the statement.  These factors, as we
have discussed, are irrelevant to a showing of the "particularized
guarantees of trustworthiness" necessary for admission of hearsay
statements under the Confrontation Clause.
    We think the Supreme Court of Idaho properly focused on the presumptive
unreliability of the out-of-court statements and on the suggestive manner
in which Dr. Jambura conducted the interview.  Viewing the totality of the
circumstances surrounding the younger daughter's responses to Dr. Jambura's
questions, we find no special reason for supposing that the incriminating
statements were particularly trustworthy.  The younger daughter's last
statement regarding the abuse of the older daughter, however, presents a
closer question.  According to Dr. Jambura, the younger daughter
"volunteered" that statement "after she sort of clammed-up."  Id., at 123.
Although the spontaneity of the statement and the change in demeanor
suggest that the younger daughter was telling the truth when she made the
statement, we note that it is possible that "[i]f there is evidence of
prior interrogation, prompting, or manipulation by adults, spontaneity may
be an inaccurate indicator of trustworthiness."  Robinson, 153 Ariz., at
201, 735 P. 2d, at 811.  Moreover, the statement was not made under
circumstances of reliability comparable to those required, for example, for
the admission of excited utterances or statements made for purposes of
medical diagnosis or treatment.  Given the presumption of inadmissibility
accorded accusatory hearsay statements not admitted pursuant to a firmly
rooted hearsay exception, Lee, 476 U. S., at 543, we agree with the court
below that the State has failed to show that the younger daughter's
incriminating statements to the pediatrician possessed sufficient
"particularized guarantees of trustworthiness" under the Confrontation
Clause to overcome that presumption.
    The State does not challenge the Idaho Supreme Court's conclusion that
the Confrontation Clause error in this case was not harmless beyond a
reasonable doubt, and we see no reason to revisit the issue.  We therefore
agree with that court that respondent's conviction involving the younger
daughter must be reversed and the case remanded for further proceedings.
Accordingly, the judgment of the Su preme Court of Idaho is affirmed.

It is so ordered.


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1
    The dissent suggests that the Court unequivocally rejected this view in
Cruz v. New York, 481 U. S. 186, 192 (1987), but the quoted language on
which the dissent relies, post, at 6, is taken out of context.  Cruz
involved the admission at a joint trial of a nontestifying codefendant's
con fession that incriminated the defendant, where the jury was instructed
to consider that confession only against the codefendant, and where the
defendant's own confession, corroborating that of his codefendant, was
introduced against him.  The Court in Cruz, relying squarely on Bruton v.
United States, 391 U. S. 123 (1968), held that the admission of the
codefendant's confession violated the Confrontation Clause.  481 U. S., at
193.  The language on which the dissent relies appears in a paragraph
discussing whether the "interlocking" nature of the confessions was
relevant to the applicability of Bruton (the Court concluded that it was
not).  The Court in that case said nothing about whether the codefendant's
confession would be admissible against the defendant simply because it may
have "interlocked" with the defendant's confession.