(concurring in part and concurring in the result):
*224 I agree with Chief Judge Everett and the Court of Military Review that the error in receiving evidence of Mrs. Cordero's statement, under the circumstances of this case, was harmless beyond a reasonable doubt. Further, although it is unnecessary for us to decide, I would agree that Mrs. Cordero was “unavailable” under the confrontation clause and the Military Rules of Evidence. For this reason, I would prefer to await an appropriate case to explore the ramifications of Mil.R.Evid. 803(24). In addition, the United States Supreme Court will shortly be construing an analogous case (New Mexico v. Earnest, No. 85-162, argued April 1, 1986, 54 L.W. 3157), so I will withhold deciding whether the military judge here merely abused his discretion in admitting this utterly unreliable statement or whether statements of this sort are so inherently suspect as to be inadmissible as a class.* In either case, I agree that this particular evidence should never have been placed before the factfinders.
1 note that both Mil.R.Evid. 803(24) and 804(b)(5) contain the explicit predicate to admission that "(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." In view of appellant’s own rather extensive admissions, as outlined by the Chief Judge, and the inherent unreliability of Mrs. Cordero’s statement, cf. Olson v. Green, 668 F.2d 421, 427-28 (8th Cir.), cert. denied, 456 U.S. 1009, 102 S.Ct. 2303, 73 L.Ed.2d 1305 (1982); United States v. Sarmiento-Perez, 633 F.2d 1092, 1102-03 (5th Cir. 1981), it appears that this prerequisite also was unsatisfied.