(concurring in the result):
I join my Brother, Judge Effron, in his separate opinion in this case. Moreover, I do not agree that evidence corroborating the occurrence of a crime may be used to show trustworthiness of residual-hearsay evidence when the out-of-court declarant is available for cross-examination. See United States v. McGrath, 39 MJ 158,169 (CMA 1994) (Sullivan, C.J., dissenting). Neither does the 10th Circuit which recently said:
The precise issue in Idaho v. Wright was not the admissibility of evidence under Rule 803(24). Rather, the petitioner in Wright challenged the admission of a hearsay statement on Confrontation Clause grounds. 497 U.S. at 808, 110 S.Ct. at 3143. One of the requirements of the Confrontation Clause, however, is that the hearsay statement “bear[] adequate ‘indi-cia of reliability.’ ” Id, at 814,110 S.Ct. at 3146 (internal quotation marks omitted). It was this requirement that the Court discussed at length in Wright. In doing so, it cited and discussed several lower court decisions that identify factors which should be considered in assessing the reliability of out-of-court statements by child witnesses in sexual abuse cases. Id. at 821-22,110 S.Ct. at 3149-50. Importantly, each of the cases cited by the Court addressed the admissibility of such statements under exceptions to the hearsay rule — not the Confrontation Clause. Indeed, two of the cases involved the reliability requirement of the residual hearsay exception. See Arizona v. Robinson, 153 Ariz. 191, 735 P.2d 801, 811 (1987); Wisconsin v. Sorenson, 143 Wis.2d 226, 421 N.W.2d 77, 83-86 (1988). In essence, the Court saw no meaningful distinction between Rule 803(24)’s requirement that a statement have “circumstantial guarantees of trustworthiness” and the Confrontation Clause requirement that it “bear adequate indicia of reliability.” Thus, even though Wright is technically a Confrontation Clause case, its discussion of the reliability of hearsay statements by child victims of sexual abuse is equally pertinent to both Confrontation Clause cases and Rule 803(24) cases.
United States v. Tome, 61 F.3d 1446, 1452 n. 5 (1995).
Accordingly, I disagree with the majority on this point.