(dissenting):
I agree with the majority opinion except for Part III and the harmless-error analysis in Part IV. As to the latter, I agree with the Chief Judge’s reasoning that Mrs. Morgan’s statement cannot be seen beyond reasonable *413doubt to be harmless. Rather than being rather innocuous and cumulative, as the majority portrays it, I believe that the full statement as set out in the Chief Judge’s separate opinion reveals it as a significant substantive addition to the corpus of the prosecution’s evidence.
As to Part III, the majority considers circumstances other than those “that immediately and directly surround[ ] the making of’ Ann’s statement to Agent Helms of the Office of Special Investigations (OSI) to measure the statement’s trustworthiness so as to qualify it as admissible under Mil.R.Evid. 803(24), Manual for Courts-Martial, United States, 1984. See United States v. McGrath, 39 MJ 158, 172 (CMA 1994) (Wiss, J., dissenting). Under my reading of that rule, consideration of such circumstances in the trustworthiness analysis is not permissible. Id.
Additionally, I believe that the majority has erred by shuffling past one of the three absolute prerequisites for admission of hearsay under Mil.R.Evid. 803(24): that “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 this regard, the majority simply opines: “Absent the actual, spoken testimony of the child, we believe her statement to the OSI was ‘more probative’ on the issue of whether the alleged rape actually occurred than would be any other evidence reasonably available to the Government.” 40 MJ at 409 (emphasis added).
The difficulty is in the majority’s predicate assumption: The child’s testimony was available to the prosecution — there simply was no absence of her testimony. The following portion of the girl’s testimony, which immediately follows a few introductory questions and answers, demonstrates that it simply was the witness’ discomfort and unease which led the Government to its shortcut through the rules of evidence:
Q. Now, [Ann], you know why we’re here today, don’t you?
A Yes.
Q. Why are you here?
A. For a trial.
Q. Okay, and what are we trying to find out in this trial?
A What happened to me.
Q. Specifically you and who else?
A And my Dad.
Q. How do you feel about testifying here today and talking about what happened with you and your stepdad?
A. I don’t want to talk about it.
Q. You don’t like to talk about it.
A No.
Q. I will try to make it a little easier for you. I am going to show you a document that we have marked as Government (Prosecution) Exhibit 1, and I am going to show it to you....
Then, what follows is a series of questions— many leading — in which trial counsel obtains affirmative answers to questions whether certain events that are reflected in her pretrial statement occurred. A reading of her full statement leaves no doubt at all that, while the witness was ill at ease, her testimony at all times was there for the asking. In this context, the out-of-court statement cannot be characterized as “more probative ... than any other evidence which the proponent can procure through reasonable efforts” — it surely was not more probative than her live, in-court testimony, and that testimony was readily procurable.
In sum, I believe that Ann’s pretrial statement was admitted improperly under Mil.R.Evid. 803(24) in two separate respects and that admission of her mother’s out-of-court statement was not harmless error. Accordingly, I would set aside the findings and sentence and authorize a rehearing.