(concurring in part and in the result and dissenting in part):
I think the right result is reached today. However, I dissented- in United States v. McGrath, 39 MJ 158 (1994), and United States v. Martindale, 40 MJ 348 (1994), to the majority’s holding that independent corroborative circumstances could be considered in admitting evidence under the residual-hearsay rule. Mil.R.Evid. 804(b)(5) and 803(24), Manual for Courts-Martial, United States, 1984. Today the majority effectively adopts that position by establishing an essentially standardless rule of discretion permitting judges to refuse to consider such circumstances under Mil.R.Evid. 803(24). Otherwise, the only principle which I can draw from the two cases is that the Government can use such circumstances to admit evidence under a residual-hearsay rule but the accused cannot use such circumstances to exclude evidence under such a rule. I would have a problem with such a holding. See Art. 46, Uniform Code of Military Justice, 10 USC § 846.
Moreover, let me express my growing uneasiness with the continuous expansion of and reliance upon the medical exception to the hearsay rule. Mil.R.Evid. 803(4). Here, a 6-year-old child’s statements to a family counselor are taken as proof of a crime under Fed. and Mil.R.Evid. 803(4). Every day in America, countless statements are given in emergency rooms and medical offices by children, young adults, middle-aged, and elderly patients to doctors of medicine and their assistants. Are all these statements true? Are all these statements admissible in court as the sole proof of a crime? I and my fellow judges should wonder about this and perhaps tighten application of this rule. I suspect that many statements given under the current breadth of the medical-exception umbrella, if closely scrutinized, may not be the complete truth. Motives should be thoroughly examined at the trial level before such statements are allowed as evidence in court.