497 U.S. 805 (1990)
Respondent Laura Lee Wright and Robert L. Giles were jointly charged with two counts of lewd conduct with a minor under 16, in violation of Idaho Code § 18-1508 (1987). The alleged victims were respondent's two daughters, one of whom was 5½ and the other 2½ years old at the time the crimes were charged.1
The allegations surfaced in November 1986 when the older daughter told Cynthia Goodman, Louis Wright's female companion, that Giles had had sexual intercourse with her while respondent held her down and covered her mouth, and that she had seen respondent and Giles do the same thing to the younger daughter.2 Goodman reported the disclosures to the police the next day and took the older daughter to the hospital. A medical examination of the older daughter revealed evidence of sexual abuse.3 One of the examining physicians was Dr. John Jambura, a pediatrician with extensive experience in child abuse cases. Police and welfare officials took the younger daughter into custody that day for protection and investigation. Dr. Jambura examined her the following day and found conditions strongly suggestive of sexual abuse with vaginal contact, occurring approximately two to three days prior to the examination.4
At the joint trial of respondent and Giles, the trial court conducted a voir dire examination of the younger daughter, who was three years old at the time of trial, to determine whether she was capable of testifying. The court concluded, and the parties agreed, that the younger daughter was not capable of communicating to the jury.5 Over objection by respondent and Giles, the trial court permitted Dr. Jambura to testify before the jury regarding statements the younger daughter made during an interview in his office.6
Dr. Jambura testified that he began with chitchat questions, then asked whether the child played with daddy, whether daddy played with her, whether daddy touched her with his pee-pee, and whether she touched his pee-pee. The child responded that they played together, admitted that daddy touches her with his pee-pee, stated that he does it a lot more with her sister than with her, and volunteered the last statement after she sort of clammed up.7 Respondent and Giles were each convicted of two counts of lewd conduct with a minor under 16 and sentenced to 20 years' imprisonment.8 Each appealed only from the conviction involving the younger daughter.9 The Idaho Supreme Court reversed respondent's conviction.10 The United States Supreme Court granted certiorari.11
Whether the admission at trial of the younger daughter's hearsay statements to Dr. Jambura violates respondent's rights under the Confrontation Clause of the Sixth Amendment?12
The Confrontation Clause permits admission of hearsay statements by unavailable declarants only if the statements bear particularized guarantees of trustworthiness.13 Under the framework from Ohio v. Roberts, once unavailability is shown, reliability is inferred if the statement falls within a firmly rooted hearsay exception; otherwise the proponent must demonstrate particularized guarantees of trustworthiness drawn solely from the totality of circumstances surrounding the making of the statement.14 Residual hearsay exceptions such as Idaho Rule of Evidence 803(24) are not firmly rooted.15 Factors such as spontaneity, the declarant's mental state, use of terminology unexpected for the child's age, and absence of motive to fabricate may indicate trustworthiness, but corroborating evidence at trial is irrelevant to the inquiry because it does not establish inherent reliability sufficient to render cross-examination superfluous.16
Yes.
The facts establish that the younger daughter was three years old at trial and the trial court found her incapable of communicating to the jury after voir dire, with both parties agreeing to that determination. Dr. Jambura conducted the interview in his office using a progression from chitchat questions about breakfast to direct inquiries whether daddy touched her with his pee-pee and whether she touched his pee-pee.17 The child responded affirmatively to the touching question, volunteered that the conduct occurred more frequently with her sister, and made the volunteered statement only after clamming up during the interview.18 The interview was not recorded on videotape, Dr. Jambura used leading questions, and he approached the examination with a preconceived view of the disclosures that should emerge.19
These circumstances fail to supply particularized guarantees of trustworthiness.20 The statements were elicited through leading questions in a non-spontaneous setting that lacked the procedural safeguards associated with firmly rooted exceptions such as excited utterances or statements made for medical diagnosis.21 The residual hearsay exception under which the statements were admitted provides no tradition of reliability that would satisfy the Confrontation Clause. Because the guarantees must arise from the circumstances at the time the statements were made rather than from later corroboration, the trial court's reliance on physical evidence of abuse, the older daughter's testimony, and the opportunity for the offenses does not cure the deficiency.22
The Idaho Supreme Court correctly concluded that the statements lacked the requisite indicia of reliability.23 The absence of any affirmative reason arising from the interview circumstances to rebut the presumption against admissibility means the Confrontation Clause required exclusion of the hearsay.24
The admission of the younger daughter's hearsay statements to Dr. Jambura violated respondent's rights under the Confrontation Clause.25
Related opinions on this issue
Joined by The Chief Justice, Justice White, And Justice Blackmun
Justice Kennedy dissented from the majority's approach to determining particularized guarantees of trustworthiness.26 He contended that the majority adopted an unworkable rule by categorically excluding corroborating evidence from the inquiry.27 Common sense dictates that corroboration is a strong indicator of reliability in child abuse cases.28
Precedent from cases such as Lee v. Illinois supports considering the interlocking nature of evidence.29 The younger daughter's statements were corroborated by physical evidence of abuse, her presence in the suspects' custody at the time the injuries occurred, and the older daughter's testimony.30 These factors, along with the circumstances surrounding the making of the statements, warranted a remand to the Idaho Supreme Court.31