(dissenting):
Appellant was convicted of child sexual abuse solely on the basis of out of court statements of sexual abuse made by his 13 year old daughter. The central issue is whether the admission of the hearsay statements unfairly infringed upon appellant’s right under the Sixth Amendment of the United States Constitution to confront his accuser. Appellant argues that hearsay evidence was erroneously admitted into evidence and his conviction should be set aside. I agree.
Over defense objections, the military judge allowed statements made by appellant’s daughter to the OSI and to Dr. Boos, a pediatrician, to be presented as evidence. Despite the fact the daughter recanted her statements, did not appear at the Article 32 investigation, and was not present at trial, the military judge ruled her out of court statements did not unfairly infringe upon appellant’s Sixth Amendment right to confront and cross-examine his accuser. On appeal, appellant claims the military judge misapplied the law in finding the evidence was admissible as exceptions to the hearsay rule. Government counsel argues the military judge’s ruling on the admission of the hearsay evidence is entitled to “considerable discretion” and should be upheld by this Court absent an abuse of discretion. United States v. Pollard, 38 M.J. 41, 49 (C.M.A.1993); United States v. Orsburn, 31 M.J. 182 (C.M.A.1990); United States v. Bridges, 24 M.J. 915 (A.F.C.M.R.1987).
In my view, there was a clear abuse of discretion by the military judge since the circumstances which the law would deem as justification for admitting the doctor’s testimony and the videotaped statement were missing. I believe it was error to admit the daughter’s statement to Dr. Boos under Mil. *582R.Evid. 803(4) as a “statement for the purpose of medical diagnosis or treatment.” Likewise, I believe it was error to admit her videotaped statement to the OSI under Mil. R.Evid. 804(b)(5) because the surrounding circumstances were insufficient to show “particularized guarantees of trustworthiness.” Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).
I. Does the Medical Exception Apply?
Were the statements made to Dr. Boos.by appellant’s daughter furnished under circumstances which warrant a presumption of their trustworthiness? I think not. An out of court statement is not admissible as a hearsay exception merely because it is made to a doctor. Nor is it admissible solely because the doctor uses the information for purposes of diagnosis or treatment. To be admissible as a hearsay exception the statement must be made for the purposes of medical diagnosis or treatment and must be made by a patient who has some expectation of receiving medical benefit from the medical diagnosis or treatment that is being sought. United States v. Williamson, 26 M.J. 115, 118 (C.M.A1988); United States v. Deland, 22 M.J. 70, 75 (C.M.A.1986).
In his findings of fact, the military judge concluded:
At approximately 1000-1030 hours, the declarant was interviewed by Major (Doctor) Stephen C. Boos, a pediatrician assigned to Wiesbaden Hospital. Mrs. Holman remained present during the examination at the declarant’s request. The interview was conducted at the Wiesbaden Hospital in Dr. Boos’ pediatric clinic. He informed the declarant that he was a doctor and that he was there to provide medical treatment for her. His questioning of the declarant was designed to elicit facts upon which he could base diagnosis and treatment. He physically examined the declarant and subjected her to clinical testing.
The declarant was 13 years old at the time, was of at least average intelligence, and fully understood that Dr. Boos’ interview and physical examination of her was being done for purposes of medical diagnosis and treatment. She expected medical treatment and her statements were made in order to receive that treatment.
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The declarant’s statements to Dr. Boos on 18 Mar 92 are admissible under MRE 803(4), since the statements were made for purposes of medical diagnosis and treatment, and with the expectation of receiving medical treatment.
The military judge’s findings read like a classic case for the admission of hearsay evidence. Both prongs needed for admission, namely (1) made for purposes of medical diagnosis and treatment and (2) expectation of receiving medical treatment, are specifically found. However, it is impossible for me to accept the judge’s findings based on a factual analysis of the record. His finding that the declarant “expected medical treatment and her statements were made in order to receive that treatment” require a “leap of faith” that I’m unwilling to make. I choose not to adopt the military judge’s findings when the circumstances surrounding the taking of the daughter to the hospital do not suggest she desired, asked for, or even appreciated the need for medical treatment. United States v. Armstrong, 36 M.J. 311, 313 (C.M.A.1993).
A key question is why was appellant’s daughter taken to the hospital? Did either of her parents take her for some type of treatment? No. Did Mrs. Holman, the person who initially heard about the sexual abuse and the person who took her the next morning to the OSI, suggest she needed medical attention? No. Did the OSI immediately refer her for medical attention? No, they first interviewed her for 30 minutes. Did anyone ask declarant if she would like to be seen by a doctor? Again, no.
The circumstances which brought appellant’s daughter to the Wiesbaden Hospital were described in the following direct testimony of Special Agent Dick during the Article 39(a) session:
Q. And how long did that first interview take?
A Approximately 30 minutes.
*583Q. And that interview took place at the Law Enforcement Desk? Law Enforcement Office?
A. Yes, sir. They had an empty room that we used.
Q. Okay. What did you do then?
A. At that point I called the clinic and had the Patient Affairs personnel grab Miss Ureta’s records. We took Miss Ureta to the Wiesbaden hospital for medical examination.
Q. Did she ask you to be taken to the hospital?
A. No, sir.
Q. Indeed, you told her that we are going to do this, we are going to take you to the hospital for an examination?
A. No, sir. No, sir, I did not. I asked her if she would consent to an examination because medical evidence had to be gathered in these types of allegations.
Q. Did she sign a consent form?
A. I did not ask her for a consent form, that was the doctor’s job. The doctor had to prove to himself that she was consenting to his medical examination.
The record shows appellant’s daughter was told she was being taken to the hospital not for treatment or diagnosis, but rather for an examination for the purpose of obtaining medical evidence. The following direct testimony of Dr. Boos fails to disclose that she was at the hospital for anything other than an examination:
Q. All right, sir. As far as the examination of Katherine Ureta, when she came to your office who else, if anyone, was present?
A. Within my office, Mrs. Debra Holman was present.
Q. As far as prior to her coming into your office, was anyone else around?
A. Well, we had been notified that there was a suspected child sexual abuse being brought to the Emergency Room, and so we notified them that, you know, we would be able to see the case, that I would be able to clear my schedule and see the person. And then when nothing happened I went over there and eventually Katherine and Mrs. Holman and two OSI agents arrived, and I discussed the case with the OSI agents in a back room while Katherine and Mrs. Holman were out in the waiting room.
Q. After this briefing on the case, what happened next?
A. Well, they had brought them to the Emergency Room and the Emergency Room notified us. The OSI was uncertain as to how the evaluation would be performed, whether it would be done in the Emergency Room by an emergency room physician or by a gynecologist, or by a pediatrician. And I informed them that I did most of these exams and that I preferred to do it because I had had some training and experience in the interview as well as I felt I could be, you know, more sympathetic and empathetic and supportive of the patient than a gynecologist. And I notified them that I was familiar with rape protocol and there are specimen collection needs, and then it was determined that I should do the exam. And then we left the back room and came out and had the patient and Mrs. Holman follow us to the waiting room. I went in, got my office ready, told my staff what supplies I would need, and then we called Mrs. Holman and Katherine in and began the interview.
Q. Okay. And when they came in, what did you say to them?
A. Well, first I asked whether Katherine wanted to have Mrs. Holman there or whether I could talk to her alone, if she needed to have Mrs. Holman there. She indicated that she preferred to have Mrs. Holman there, so I had them both sit. Then I told them who I was, Dr. Boos, that I was a pediatrician, let them know that I had heard a little bit of Katherine’s story and that I wanted to talk to her and to examine her to see whether any harm had come to her, whether she had caught any infections, but that before I started, to do the best job I needed to hear her story from herself.
I submit the government failed to show appellant’s daughter was seeking medical treatment. When the medical exception to *584the hearsay rule is invoked, it is incumbent upon the moving party to show not only that the medical person was treating or diagnosing the patient, but also that the patient furnishing the information was seeking such help. Williamson at 118. In my view, this scenario makes the medical hearsay exception a sham. The doctor here was merely asking declarant to repeat the story she had already told Mrs. Holman and the OSI. The notion that she would be truthful because she was seeking medical help simply does not apply in this situation.
The medical exception to the hearsay rule presupposes something more than a mere physical examination. It requires the patient to believe something is medically wrong or that there is a medical condition that requires treatment. My common sense analysis of the circumstances tells me that appellant’s daughter was not seeking or expecting a medical benefit when she was asked to tell her story to Dr. Boos. Consequently, I find no reasonable basis to conclude that it is likely that declarant was more truthful in relaying her story to Dr. Boos than she was in telling it to Mrs. Holman or the OSI. Everything' she was told by the OSI and Dr. Boos indicates that because of her story (whether truthful or not), she would receive a medical examination. The premise underlying the exception is that one “undergoing diagnosis or receiving treatment from a trained medical professional has an incentive to be truthful because such answers will promote” the patient’s wellbeing. United States v. Welch, 25 M.J. 23, 25 (C.M.A.1987). In situations like this, where it is not clearly shown that declarant was aware that she was being medically treated, the entire premise of the reliability of the offered statement dissipates. United States v. Edens, 31 M.J. 267, 269 (C.M.A.1990). I find appellant was denied his right of confrontation and materially prejudiced by the erroneous admission of his daughter’s hearsay statements to Dr. Boos.
II. Was Videotape Admissible as Residual Hearsay?
I also find the military judge’s admission into evidence of the videotaped statement of appellant’s daughter over defense objection to be error. Following her examination by Dr. Boos, appellant’s daughter was taken back to the OSI office to be reinterviewed on videotape. She responded to questions posed by Special Agent Dick during .a 35 minute session. In essence, she recounted the same story she had previously provided to Mrs. Holman, the OSI and Dr. Boos. In ruling the evidence admissible, the military judge stated:
Prosecution Exhibit 1, the videotape of 18 Mar 92, is admissible under MRE 804(b)(5), since the declarant is unavailable, the exhibit is offered as evidence of a material fact, it is more probative of the point for which it is offered than any other evidence that the government can procure, it has circumstantial guarantees of trustworthiness, the accused’s 6th Amendment right to confront his accuser is available to the accused, and the interests of justice will be best served by admission of this exhibit. Moreover, the government’s legitimate need for this evidence is not outweighed by any unfair prejudice to the accused.
I find error in the admission of the videotaped statement because it does not satisfy the “indicia of reliability” requirement established by Idaho v. Wright, supra. As in Wright, the question is not whether the declarant was unavailable, but rather whether the statement bore sufficient indicia of reliability to withstand scrutiny under the Confrontation Clause. In order to be admitted under the residual hearsay exception, an out of court statement must be supported by a “showing of particularized guarantees of trustworthiness.” Wright, 497 U.S. at 817, 110 S.Ct. at 3147. In other words, the surrounding circumstances must so clearly point to declarant’s truthfulness that cross examination would be of marginal utility in the search for truth. Idaho v. Wright, supra at 820, 110 S.Ct. at 3149.
In support of his decision to admit the videotaped statement, the military judge made the following findings:
Although the videotape repeats the allegations as stated to Dr. Boos, the videotape is the most probative evidence that the government can procure through reason*585able efforts in light of the declarant’s subsequent recantation.
The videotape interview has ample guarantees of trustworthiness. The declarant’s statement was obtained without leading questions and is in her own words. It is the freely conceived product of the declarant as opposed to the result of suggestive interrogation. The statement is voluntary, is under oath, is detailed, is factual as opposed to conjectural, and is based on first-hand knowledge of the events. The declarant was relatively mature and aware of the need to be truthful, she lacked a motive to falsify at the time, she was a member of the accused’s household and depended upon him for support, and she subjected herself to ridicule and social stigma among her friends and family by making the statement. The statement was made by the declarant shortly after the incident to which the statement relates with little opportunity to reflect, and is similar to other “firmly rooted hearsay exceptions,” i.e., it is a restatement of allegations made earlier that same day to Dr. Boos in a very reliable setting that qualifies under MRE 803(4), and is also a restatement of allegations made the day before to Jennifer Holman in a reliable setting that nearly qualifies under MRE 803(2).
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The accused’s 6th Amendment right to confront and cross examine his accuser is not unfairly infringed upon by allowing previous statements of the declarant into evidence, since the defense can subpoena the declarant to explain why she recanted her earlier statements. German law does not permit the declarant to refuse to testify for her father. Moreover, the defense has been given the opportunity to introduce the declarant’s written recantation in the event that it does not elect to call the declarant in person.
While the military judge’s findings describe the circumstances of the making of the videotaped statement in considerable detail, I am not persuaded that they establish the “particularized guarantees” of declarant’s trustworthiness necessary for admission of the statement under the residual hearsay exception. It must be noted that the residual hearsay exception is not a “firmly rooted” exception to the hearsay rule. United States v. Hines, 23 M.J. 125, 134 (C.M.A.1986). The residual exception to the hearsay rule is to be rarely used and is intended to apply only to “highly reliable” evidence. United States v. Giambra, 33 M.J. 331, 334 (C.M.A.1991), rev’d on other grounds, 38 M.J. 240 (C.M.A. 1993); United States v. Dunlap, 39 M.J. 835, 838 (A.C.M.R.1994). “Particularized guarantees” of trustworthiness means that statements admitted under the residual hearsay exception must have equivalent guarantees of trustworthiness as evidence admitted under a firmly rooted hearsay exception. Mil.R.Evid. 804(b)(5); Idaho v. Wright, supra, 497 U.S. at 821, 110 S.Ct. at 3149-50. In other words, it must be so trustworthy that adversarial testing would add little to its reliability. In each case, the circumstances which will qualify as “equivalent guarantees” of trustworthiness are for the trial court to determine and appellate courts to review. See United States v. Stivers, 33 M.J. 715, 720 (A.C.M.R. 1991).
The admission of a hearsay statement is much less likely to offend the Sixth Amendment right to confrontation when the declarant is available to testify under cross-examination. United States v. Harjak, 33 M.J. 577 fit. 4 (N.M.C.M.R.1991). When, however, as in this case, the declarant is not available at trial, the accused has not had the opportunity to cross-examine the declarant at any stage of the justice process, counsel for the accused had not even had an opportunity to interview the declarant, and the declarant has recanted the earlier statement, I submit appellate courts have a greater responsibility to scrutinize the particularized guarantees of trustworthiness to eliminate the possibility of fabrication, coaching, or confabulation. Idaho v. Wright, supra, 497 U.S. at 820, 110 S.Ct. at 3149.
Examining the military judge’s finding, I am not satisfied the circumstances indicated therein provide the same high degree of reliability we assume when a deeply rooted exception to the hearsay rule is recognized. Nor am I satisfied cross examination would have added little to the search for the trust*586worthiness of declarant’s statement. In Idaho v. Wright, the court suggested four factors which might properly relate to the reliability of a hearsay statement by a child witness. The four factors were (1) spontaneity and consistent repetition (2) mental state of the declarant (3) use of terminology unexpected of a child of similar age, and (4) lack of motive to fabricate. Idaho v. Wright, supra, at 821, 110 S.Ct. at 3149-50. In my view, none of these factors were present in this case.
A videotaped statement made after repeated questioning by Mrs. Holman, Dr. Boos, and the OSI could scarcely be called spontaneous. As was noted in Idaho v. Wright, when there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness. Declarant’s trustworthiness could not be judged from the mental state that declarant displayed. The only change in her emotional state occurred when she was relaying how her mother had physically abused her. In her videotaped statement, declarant used no unexpected terminology. If anything, her description of events was somewhat lacking in detail. Finally, I find the military judge’s conclusion that declarant “lacked a motive to fabricate at the time” lacks any factual support. In view of declarant’s age (in pubescence), unwillingness to confide in her mother, knowledge of her mother’s unfaithfulness to her father, frustration over her father’s failure to intercede to prevent the mother’s physical abuse of the children, and desire not to return to her home because of her mother’s physical abuse, any conclusion that she lacked a motive to fabricate at the time must be viewed with some suspicion. None of the factors listed in the findings convince me that cross-examination of declarant would have contributed little to the establishment of her reliability.
Particularly disturbing in the findings by the trial judge were his reliance upon other hearsay exceptions, his suggestion that the defense could have subpoenaed the declarant, and his ruling that the defense would be allowed to introduce declarant’s written recantation. First, if admission of declarant’s statements to Dr. Boos was error, as I believe it was, then the fact that the videotaped statement was similar to it scarcely justifies its admission under the residual hearsay exception. Nor does the fact that it was similar to statements made to Jennifer Holman which were not admissible as “excited utterances.” Admissibility of evidence under the residual hearsay exception means it has equivalent guarantees of reliability to other hearsay exceptions, not that it is similar to other evidence that didn’t have sufficient indicia of reliability to warrant admissibility under a “firmly rooted” hearsay exception.
I am at a loss as to how the defense had a greater opportunity to subpoena declarant to appear in a court-martial in Germany than did the government. The findings of the military judge are tantamount to a finding that appellant waived his right of cross-examination. I do not believe that finding is supported by the record. The suggestion that granting appellant permission to admit declarant’s written recantation somehow balances the constitutional concerns related to the admission of her videotaped accusation is difficult for me to comprehend.
I am simply not convinced the videotaped interview by the law enforcement officer in this instance possessed sufficient guarantees of trustworthiness to make the statement so reliable as to preclude the necessity for cross-examination. See United States v. Barror, 23 M.J. 370, 372 (C.M.A.1987); United States v. Palacios, 32 M.J. 1047 (A.C.M.R. 1991), rev’d on other grounds, 37 M.J. 366 (C.M.A.1993).
Pursuant to my obligation under Article 66(c), I cannot vote to affirm this conviction. To do so, I would be saying that appellant’s constitutional right to confront his accuser was superfluous in this case and would not have assisted in any meaningful way in the search for truth. I would be saying that I am satisfied having appellant’s conviction rest solely upon hearsay evidence. For the reasons indicated above, I do not find the hearsay evidence presented at trial to have sufficient reliability to be admitted, and certainly not trustworthy enough alone to convince me beyond a reasonable doubt of appellant’s guilt.
*587There are many cogent reasons why the law has an inherent distrust of hearsay evidence. Mil.R.Evid. 802. Even when admitted under one of the authorized exceptions, we should ask ourselves if the hearsay evidence is sufficiently convincing to be reliable and trustworthy on the issue of guilt. We must look to the facts and circumstances to answer that question. When the hearsay evidence is corroborated by other evidence of guilt, when an accused has entered a plea of guilty or when an opportunity to cross examine the declarant was waived, the inherent distrust of hearsay evidence is attenuated. However, when an accused enters a plea of not guilty, when his accuser recants her story, when the accused has not been given an opportunity to cross examine the declarant, and when there is no evidence of guilt other than the hearsay testimony, we have a situation which cries out for close scrutiny of the reliability of the hearsay evidence. Is the hearsay evidence more convincing because it was heard by more than one person or was repeated on more than one occasion. In my opinion, it is not. The mere fact that something has been repeated does not make it more believable. In our system of justice, a statement becomes most believable when it is made in open court and is subjected to vigorous cross examination. That time honored and constitutionally protected test did not occur in appellant’s trial. It is the responsibility of this Court to determine for ourselves whether the reliability of evidence is sufficient to convince us beyond a reasonable doubt of appellant’s guilt. Based upon my review of the entire record, I am not convinced his conviction is correct in law and in fact. Article 66(c) UCMJ.