PEOPLE v. MEEBOER (AFTER REM)

BRICKLEY, J. (dissenting).

I agree with the majority's assertion that "it is very important that the understanding to tell the truth to the physician be established." Ante, p 324. However, that assertion is undermined by the fact that the majority has included within its totality of the circumstances evaluation evidence — e.g., physical evidence of the sexual assault — that is unrelated and irrelevant to a child's motivation to be truthful to a medical care provider. Furthermore, in its application of MRE 803(4) the majority has, without expert medical support in the record, prescribed for these and other cases what is or is not a medically necessary line of inquiry for the treatment of a sexually abused child. Principally for these reasons, I write in dissent.

Michigan's early common-law jurisprudence recognized that out-of-court statements regarding present pain and suffering should constitute exceptions to the hearsay rule because they represent a natural and ordinary mode in which a person's bodily inflictions are made known to others, including medical personnel. See Hyatt v Adams, 16 Mich. 180 (1867). We stated, however, that declarations of past pain and suffering constitute narratives of past conduct and not contemporaneous actions or utterances associated with the description of present pain and suffering. See Johnson v McKee, 27 Mich. 471 (1873). Hearsay statements made to medical care providers regarding present pain and suffering were admissible, unless such statements were made solely in anticipation of litigation. See Grand Rapids Indiana R Co v Huntley, 38 Mich. 537 (1878); McKormick v West Bay City, 110 Mich. 265; 68 N.W. 148 (1896). These hearsay statements to medical care providers were admissible at trial because of the inherent reliability or trustworthiness that is assumed to exist in the context of a person seeking medical treatment, and found lacking when the hearsay statement is made solely to obtain a medical opinion for purposes of litigation.

The Michigan Rules of Evidence, adopted on January 5, 1978, expanded upon our common-law rule regarding admission of hearsay statements made for purposes of medical treatment or diagnosis. The medical treatment hearsay exception we adopted, MRE 803(4), permits hearsay statements made for purposes of medical treatment, or diagnosis in connection with treatment, to be admissible even if they describe the medical history of the declarant; the inception or general character of the cause or external source of any bodily injury or condition; or the past or present symptoms, pain, or sensations experienced by the declarant insofar as reasonably necessary to such diagnosis and treatment. Although we embraced admissibility of a broader range of hearsay declarations by adopting MRE 803(4), the foundational support underlying that particular hearsay exception continued to be predicated, as it was at common law, upon the inherent reliability and trustworthiness of the hearsay statements made by declarants in that particular situation. Such inherent reliability and trustworthiness of the declarant's hearsay statements to the medical care provider were, and continue to be, based upon the self-interest motivation factor possessed by the declarant in receiving proper medical care.

This self-interest motivation policy rationale is predicated upon the assumption that a declarant will feel compelled to give accurate and truthful information in order to receive proper medical care, and that is the sole basis for finding these particular hearsay statements inherently reliable and trustworthy.

The majority begins its analysis of MRE 803(4) in these cases by correctly noting that the self-interest motivation component is a traditional rationale for admissibility of hearsay statements made for purposes of medical treatment. See ante, p 322. A concise analysis of the issue under consideration, and with which I agree, is summarized in the following passage from the majority opinion:

While in cases involving adults a cognitive connection between speaking the truth to physicians and receiving proper medical care may seem obvious, further analysis of the circumstances surrounding the examination of a child is necessary to determine whether the child understood the need to be truthful to the physician. [ Ante, pp 322-323. Emphasis added.]

Such an analysis, if faithfully followed, would correctly focus the evaluation of these hearsay statements upon the necessity for the child declarant to possess an understanding of the relationship between truthful information being communicated to the medical care provider and the receipt of proper medical care.

However, after initially noting the importance of the self-interest motivation factor for application of MRE 803(4), the majority then downgrades the importance of that component of the hearsay exception and undertakes a review of the hearsay statements, rather than the circumstances of the declarations, to determine if they were inherently reliable or trustworthy, considering factors other than the extent of the self-interest motivation possessed by the declarant.

The trustworthiness of a child's statement can be sufficiently established to support the application of the medical treatment exception. [ Ante, p 322. Emphasis added.]

A totality of the circumstances approach is then adopted to review the inherent reliability or trustworthiness of the hearsay statements, as employed by the United States Supreme Court for a Confrontation Clause analysis in Idaho v Wright, 497 U.S. 805; 110 S Ct 3139; 111 L Ed 2d 638 (1990). The totality of circumstances analysis is evaluated, according to the majority, to establish the existence of a self-interest motivation on behalf of the child declarant. I believe that the majority has incorporated an inappropriate evaluation for determining whether a self-interest motivation is possessed by a child declarant for application of MRE 803(4). The totality of circumstances approach has downgraded the importance of the self-interest motivation factor by considering whether the child declarant appears to have been truthful with respect to the hearsay statements made to the medical care provider, without relating the significance of such an evaluation to the possession of a self-interest motivation by the child. It is at this juncture that I depart from the analysis adopted by the majority and feel compelled to dissent.

1

The trial courts, under the majority approach, will evaluate hearsay statements by a child to determine whether those hearsay statements under consideration contain sufficient guarantees of trustworthiness, which may be interpreted as whether the trial court believes the statements are in fact truthful, to determine whether the declarant "understood the need to be truthful to the physician" for admissibility pursuant to MRE 803(4). Ante, p 323. This analysis misses the mark with respect to the proper application of hearsay exceptions in general, and specifically MRE 803(4), because the underlying rationale of each hearsay exception is that the context in which the statements were made, in and of themselves, contains such necessary reliability and trustworthiness that further inquiry would not be necessary. Therefore, in applying the medical treatment hearsay exception, a separate analysis regarding the "inherent reliability" or "trustworthiness" of the hearsay statements in a given situation is not necessary or appropriate because any hearsay statements fitting within application of a particular hearsay exception are deemed to be inherently reliable and trustworthy without further analysis.

The majority contemplates that the totality of circumstances approach shall be employed for evaluating the existence of a self-interest motivation for purposes of MRE 803(4), where it states:

that due to the tender years of the hearsay declarants, the understanding to tell the truth may not be as apparent as it is with adults; that investigation into the circumstances surrounding the making of the hearsay statements is required in order to establish whether the child understood the need to be truthful to the physician. [ Ante, p 326.]

That passage indicates that the totality of the circumstances analysis shall constitute a complement to the evaluation of the self-interest motivation factor for application of MRE 803(4) in situations involving child declarants. However, the majority has not evaluated whether the child declarant in any of these cases in fact possessed a self-interest motivation; rather, it only focuses upon the trustworthiness of the statements themselves to establish the existence of the self-interest motivation. Therefore, the analysis is actually transformed into an evaluation of the totality of the circumstances to evaluate the trustworthiness of the statements rather than determining the existence of a self-interest motivation on the part of the child declarant. Thus, the totality of circumstances analysis is rendered a substitute for, rather than a complement to, the self-interest motivation analysis.

It follows from the majority's analysis that a hearsay statement by a child declarant may be admitted pursuant to MRE 803(4), "even where it is not apparent that the child understood that statements must be truthful in order to receive proper care" as long as the totality of circumstances otherwise establish the hearsay statements to be inherently reliable and trustworthy. Ante, p 326. It is this downgrading of the importance of the self-interest motivation factor, as evidenced by the majority's evaluation of whether the hearsay statements in these cases appear truthful on other grounds, that, in my judgment, flaws its approach to the application of MRE 803(4).

2

The medical treatment hearsay exception has been classified as a firmly rooted hearsay exception which permits it to automatically satisfy the mandates of the Confrontation Clause when hearsay statements are admitted pursuant to that hearsay exception.

We note first that the evidentiary rationale for permitting hearsay testimony regarding spontaneous declarations and statements made in the course of receiving medical care is that such out-of-court declarations are made in contexts that provide substantial guarantees of their trustworthiness.[8] . . . Similarly, a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony.

[8] Indeed, it is this factor that has led us to conclude that "firmly rooted" exceptions carry sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause. . . . There can be no doubt that the two exceptions we consider in this case are "firmly rooted." . . . The exception for statements made for purposes of medical diagnosis or treatment is similarly recognized in the Federal Rules of Evidence, Rule 803(4), and is equally widely accepted among the States.

[ White v Illinois, 502 US ___; 112 S Ct 736; 116 L Ed 2d 848, 859, n 8 (1992). Emphasis added. See also Idaho v Wright, supra, 111 L Ed 2d 655 ("[l]ikewise, the `dying declaration' and `medical treatment' exceptions to the hearsay rule are based on the belief that persons making such statements are highly unlikely to lie)."]

This passage from White clearly demonstrates that the self-interest motivation factor associated with the medical treatment hearsay exception is the component that ensures the inherent reliability or trustworthiness of such hearsay statements to permit admission at trial. That is the basis upon which the United States Supreme Court opined that admission of hearsay statements pursuant to the medical treatment hearsay exception does not require further analysis for other indicia of reliability and should be considered firmly rooted.

3

The application of MRE 803(4) advanced by the majority is inappropriate because of the broadening of the totality of circumstances analysis to include corroborating evidence extrinsic to the context in which the hearsay statement was made by the declarant. This impermissibly expands the relevant sphere of circumstances to be evaluated in determining whether the hearsay statement was made in a context that ensures reliability or trustworthiness.

The United States Supreme Court has indicated that courts are not to consider corroborating evidence to determine whether hearsay statements are sufficiently reliable to withstand Confrontation Clause analysis.

We think the "particularized guarantees of trustworthiness" required for admission under the Confrontation Clause must likewise be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. Our precedents have recognized that statements admitted under a "firmly rooted" hearsay exception are so trustworthy that adversarial testing would add little to their reliability. . . . Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.

* * *

To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess [an] indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial. . . . In short, the use of corroborating evidence to support a hearsay statement's "particularized guarantees of trustworthiness" would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility. . . . [W]e think the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than that any basis exists for presuming the declarant to be trustworthy. . . .

This concern applies in the child hearsay context as well: Corroboration of a child's allegations of sexual abuse by medical evidence of abuse, for example, sheds no light on the reliability of the child's allegations regarding the identity of the abuser. [ Wright, 111 L Ed 2d 655-658. Emphasis added. See also Lee v Illinois, 476 U.S. 530; 106 S Ct 2056; 90 L Ed 2d 514 (1986) (the majority considered the "circumstances surrounding the confession" to evaluate the reliability of the hearsay statement, whereas the dissent considered corroborating physical evidence to determine the statement's reliability).]

Thus, the United States Supreme Court has explicitly held that the proper focus for evaluating the reliability of hearsay statements, for purposes of the Confrontation Clause, is based upon the circumstances that existed at the time the statement was made by the declarant rather than an evaluation of corroborating evidence extrinsic to such a situation.

Conversely, the majority in these cases has come to the conclusion that precluding the use of corroborating evidence to assess the inherent reliability and trustworthiness of statements to be admitted pursuant to MRE 803(4) is an improper limitation upon that assessment. The majority states:

Although some courts hold that corroborative evidence relating to the truth of the out-of-court statement should not be considered in determining whether to admit the statement [citing Wright, supra], we believe the better reasoned view is that the reliability of the hearsay is strengthened when it is supported by other evidence. Corroborating physical evidence of the assault, evidence that the person identified as the assailant had the opportunity to commit the assault, and resulting diagnosis and treatment can support the trustworthiness of the child's statements regarding a sexual assault and aid in the determination whether the statement was made for the purpose of receiving medical care. [ Ante, pp 325-326. Emphasis added.]

Accordingly, the majority would permit use of corroborating evidence in assessing the totality of circumstances that it believes indicate the inherent reliability or trustworthiness of the statements to be admitted pursuant to MRE 803(4), despite such an approach being clearly contrary to the express ruling of the United States Supreme Court regarding a similar evaluation employed for purposes of the Confrontation Clause. While we do not have a Confrontation Clause challenge here, because we are applying a firmly rooted hearsay exception in these cases, the United States Supreme Court's evaluation of the approach adopted by the majority is revealing from an evidentiary standpoint.

For these reasons, I would not disconnect MRE 803(4) from its established and time-honored moorings of reliance on, and only on, the inherent reliability and trustworthiness that springs from the self-interest motivation of the declarant in receiving proper medical care after giving complete and accurate information to the medical care provider.

There is a split of authority regarding the proper application of the medical treatment hearsay exception in child abuse cases, especially as it should be applied to statements of identity. Some courts have found that hearsay statements by an allegedly abused child to a medical care provider are within the application of the medical treatment hearsay exception. The focus of these cases centered upon whether the hearsay statements, including those of identification, were "reasonably pertinent" and essentially ignored whether the child in fact understood the ramifications of giving misinformation to a medical care provider, which is similar to the majority approach. This is exemplified in the following passage from the Arizona Supreme Court decision in State v Robinson, 153 Ariz. 191, 199; 735 P.2d 801 (1987).

Because of their young age, sexually abused children may not always grasp the relation between their statements and receiving effective medical treatment. It is particularly important, therefore, to ask whether the information sought by the treating doctor was reasonably pertinent to effective treatment. [Emphasis added.]

The line of cases employing this type of analysis illustrates how the original foundation upon which the medical treatment hearsay exception is based, the self-interest motivation by the declarant, becomes subordinated to other policy concerns or rationales presented in child abuse cases in order to make these hearsay statements admissible.

Other jurisdictions have determined that a child declarant who does not appreciate the need to communicate accurate information to a medical care provider does not fit within the application of the medical treatment hearsay exception. These courts have determined that the absence of such knowledge being possessed by the child declarant eliminates the foundation supporting the application of the medical treatment hearsay exception and precludes use of that hearsay exception.

The Maryland Court of Appeals undertook a thorough analysis of the application of the medical treatment hearsay exception in child abuse situations. That court concisely summarized the concern of allowing a child's hearsay statements to be admissible pursuant to the medical treatment hearsay exception in the following passage:

Indeed, the rationale for trustworthiness argued by the State — an infantile naivete — actually contradicts the trustworthiness rationale on which the Treating Physician exception exclusively depends. The latter requires a certain level of conscious sophistication on the part of the declarant — a purposeful motivation to describe accurately arising out of concerned self-interest. That purposeful motivation did not exist here. Without it, the necessary predicate for this particular hearsay exception cannot exist. [ Cassidy v State, 74 Md. App. 1, 30; 536 A.2d 666 (1988). Emphasis added.]

I find this analysis more persuasive for interpreting the proper application of the medical treatment hearsay exception as a rule of evidence as it was created at common law and was incorporated into modern jurisprudence. The courts that have downgraded this underlying premise of the self-interest motivation factor have focused instead upon the probative value of such information being admissible at trial. However, the significance of this hearsay evidence to the factfinder's resolution of the case should actually heighten the standard of admissibility in order to ensure inherent reliability and trustworthiness associated with this hearsay exception as it was originally adopted, rather than lessen it.

Still other courts have determined that statements of identification made by a child declarant to a medical care provider are not sufficiently connected to the rendering of medical treatment to come within the medical treatment hearsay exception. The Cassidy panel also undertook an evaluation of the connection between hearsay statements of identity by a child declarant and the rendering of medical treatment in a child abuse situation.

The identity of the person who inflicted the bruises, albeit perhaps of transcendent social importance, is not ordinarily of strictly medical importance. Once the perceived end purpose of the examination moves beyond the medical treatment of a physical ailment, the reason for this particular exception ceases to exist — the fear that a doctor will do a wrong and harmful thing to the declarant's body. [ Id. at 33-34. Emphasis added.]

However, that court did acknowledge that in certain situations the identity of the assailant may be reasonably pertinent for purposes of medical treatment.

When there is a danger that an assault victim may have contracted a communicable disease, of course, the identity of the assailant may take on significant medical pertinence. [ Id. at 34, n 14.]

The Ohio Supreme Court has noted the insincerity of those courts that assert children necessarily understand the importance of giving accurate information to medical providers and that also conclude that statements of identification should be treated differently in cases involving child abuse victims than in other situations. See State v Boston, 46 Ohio St.3d 108; 545 N.E.2d 1220 (1989).

The limited foregoing survey of other jurisdictions makes it evident that we are not alone in our struggle to appropriately interpret and apply our medical treatment hearsay exception, especially as it relates to hearsay statements by children declarants. After reviewing the diverse case law on this subject, I am convinced that those jurisdictions that require a declarant to possess a self-interest motivation factor for application of the medical treatment hearsay exception, and find that children do not necessarily possess such an ability, are the most persuasive and the most consistent with the basis of that exception.

I would undertake a different evaluation for application of MRE 803(4) than that employed by the majority. I would require the trial court to determine whether a declarant with diminished capacity, such as a child of tender years, was able to make the necessary cognitive connection between communicating accurate and truthful information to the medical care provider and receiving proper medical treatment, or diagnosis in connection with treatment, at the time the hearsay statement was made, to be admissible pursuant to MRE 803(4).

Absent such a cognitive connection being possessed by the declarant, the self-interest motivation policy rationale that provides the foundation for MRE 803(4) collapses and renders such a hearsay exception inapplicable, as previously stated. Without such foundational support, the inherent reliability associated with hearsay statements made to a medical care provider is lost, and that hearsay exception should not be employed to admit the hearsay statements. For persons with diminished capacity, knowing the relationship between seeking medical care and giving accurate information is not necessarily obvious, even though they may, in fact, understand that statements are being made in contemplation of medical treatment or given to a medical care provider. Thus, it is crucial to make this important and necessary distinction for purposes of applying MRE 803(4) in order to remain faithful to the basis for that rule of evidence.

Requiring that a declarant, shown to possess a diminished capacity at the time of making a hearsay statement, have sufficient cognitive ability to permit admission of a hearsay statement pursuant to MRE 803(4) would not be unprecedented in evaluating the admissibility of testimony generally. When there is a question regarding competency of a witness to testify in any trial, the court is required to determine the physical or mental capacity of the witness and whether the witness understands the sense of obligation associated with the act of testifying. See MRE 601. Additionally, whenever a witness in a judicial proceeding is less than ten years old, a trial court is mandated by statute to ascertain whether the child has "sufficient intelligence and sense of obligation to tell the truth to be safely admitted to testify. . . ." MCL 600.2163; MSA 27A.2163. Absent a sufficient showing of such intelligence and sense of obligation, the witness is not permitted to testify under the rule of evidence or the statute. Therefore, reliability of any testimony by a witness under ten years of age is cast into doubt, and the court is required to determine whether the particular child's cognitive ability extends to distinguishing true from false testimony and understanding the importance of giving truthful testimony.

The court considers several factors in evaluating the relative maturity of a child witness when deciding if that child should be found competent to testify at trial. However, a finding of competency would not be considered a replacement for the inquiry required for determining whether the cognitive ability necessary for a self-interest motivation factor to exist was, in fact, possessed by the declarant at the time the statement was made, for purposes of MRE 803(4). Unlike the majority, I would limit the analysis to be undertaken by the court to those circumstances surrounding the giving of the hearsay statement and not include extrinsic corroborating evidence of the statement's trustworthiness.

The Legislature and this Court have indicated that there is always cause for concern associated with any statements that have been made by children of tender years, even in the non-hearsay evidence situation, and that the admissibility of such statements is to be permitted only where the requisite level of competency has been sufficiently established. In light of this general concern regarding statements by children of tender years, I would require that the party seeking the admission of hearsay statements by such a declarant, pursuant to MRE 803(4), have the burden of establishing the existence of the necessary self-interest motivation factor. Absent a sufficient showing by the proponent of such testimony regarding the cognitive ability possessed by the child declarant, MRE 803(4) would be unavailable in that instance.

I believe that requiring a sufficient showing of cognitive ability would be consistent with the policy rationale underlying MRE 803(4), since it is questionable, at best, that a child of tender years would understand the relative need to give accurate and truthful information to a medical care provider. To most children, a medical care provider represents a person who inflicts pain rather than alleviates it. A child of tender years would more likely attempt to avoid having to endure temporary but painful or distasteful actions, such as receiving inoculations or taking medicine, without concern for the long-term consequences. State v Boston, supra. An adult generally seeks medical care on personal initiative, whereas children are generally taken to a medical care provider, frequently under protest, by an authority figure, a parent, a teacher, a police officer, or a foster parent. Adults generally have no need to respond to questioning by a medical care provider in a manner that they believe would please any particular person accompanying them. Children, in contrast, may perceive a need, or responsibility, to respond to questioning by a medical provider in a manner that is perceived to be pleasing to the authority figure who accompanies them.

If a sufficient showing of cognitive ability was adequately demonstrated, the policy rationale underlying MRE 803(4) would be satisfied, and the statements would be admissible if the remaining requirements of that hearsay exception are also found to have been satisfied. I would find that the burden of proof required for a sufficient showing of cognitive ability would become more difficult as the age of the declarant decreased.

The majority has concluded, although with minimal analysis, that the hearsay statements in these three cases, including identification of the defendants as the assailants, constitute descriptions of the general character of the cause or external source that is responsible for medical treatment being sought. See ante, p 330. Although I would agree that statements of identity may be considered a description of the external source for purposes of applying MRE 803(4), a more thorough analysis of this matter is mandated in light of the following passage from People v LaLone, 432 Mich. 103, 111; 437 N.W.2d 611 (1989).

However, while the drafters of the rule clearly intended to go beyond the common law, we do not believe that they intended that the victim's naming of her assailant should be considered a description of the "general character of the cause or external source" of an injury. [Emphasis added.]

This passage would seem to preclude statements of identification from being classified as a description of the external source, which the majority rejects out-of-hand, and must be thoroughly evaluated to prevent confusion in future applications of MRE 803(4).

I would find that this conclusion from LaLone was in response to both the hearsay identification and the fact that the statements of identification were made to a psychologist rather than a treating physician. The combining of the terms "general character of the cause" with that of the "external source" was unnecessarily overbroad to the facts of that case, in my opinion, and inattentive to the differences between those separate and distinct terms. I would continue to adhere to the holding from LaLone that a description of the "general character of the cause" does not include statements of identity; however, such a restrictive interpretation would not be placed upon a description of the "external source." It is a fact that statements describing an external source often require some type of identification, while the "general character of the cause" does not necessarily require identification. However, my reading of the majority opinion leaves this issue essentially unresolved and could result in confusion for the lower courts in attempting to properly apply the majority's adopted standard consistently with that of LaLone.

The majority advances several explanations for finding statements of identification to be "reasonably necessary" in child sexual abuse cases.

The following uses of the statements of identification are considered to create a reasonable necessity for the medical care provider to obtain such information:

Identification of the assailant may be necessary where the child has contracted a sexually transmitted disease. It may also be reasonably necessary to the assessment by the medical health care provider of the potential for pregnancy and the potential for pregnancy problems related to genetic characteristics, as well as to the treatment and spreading of other sexually transmitted diseases such as syphilis and gonorrhea. [ Ante, p 328. Emphasis added.]

Although the examples cited may be an indication of the "reasonable pertinency" for the identity of the assailant to be disclosed to the medical care provider, any analysis regarding "reasonable necessity" by this Court, on the state of these records, is pure speculation and conjecture due to the lack of any expert medical support in the cases presented or in the analysis employed.

In none of these cases have we been presented with a sufficient record to make an informed decision regarding the medical necessity of identifying the perpetrator of the assault for purposes of medical treatment, or diagnosis in connection with treatment, of sexually assaulted or abused children. I note that in each of these cases, the examining physician, when asked on direct examination, testified in a conclusory fashion that the request for the identity of the abuser was for the purpose of medical treatment. Such a conclusory statement by a medical person without further explanation regarding the medical necessity for the information, especially relating to statements of identity, would not, in my view, satisfy this requirement.

Additionally, the majority asserts that identity is reasonably necessary in order to "prescribe the manner of treatment" for "psychological trauma experienced by a child who is sexually abused" and that "[a] physician should also be aware of whether a child will be returning to an abusive home." Ante, p 329. These identical theories of reasonable necessity for purposes of medical treatment were expressly rejected by this Court in LaLone, where we stated:

Thus, statements made in the course of the treatment of psychological disorders may not always be as reliable as those made in the course of the treatment of physical disorders. [ Id. at 110. Emphasis added.]

To read the exception to provide for such hearsay, particularly in the context of psychological treatment, would clearly broaden the nature of the exception beyond the scope intended by its drafters. [ Id. at 111. Emphasis added.]

Thus, although we recognize that the patient's assertion of the identity of the assailant is relevant to psychological treatment, it has not been shown that the reliability of the complainant's statement reaches the level necessary to fall within MRE 803(4). In addition, we do not believe that a physician's reliance on the victim's statements in order to take protective action is of the sort envisioned by the drafters of MRE 803(4). The rule is most specific in limiting the exception to "medical treatment or medical diagnosis" or other information "necessary to such diagnosis" or treatment." It did not leave room for speculation on hearsay which may indeed be reliable and useful for other kinds of treatment for the victim, such as security from further criminal activity. It is natural and appropriate that a psychologist or physician confronted with such accusations take immediate measures to protect the child even if it is not certain that actual abuse occurred. The determination as to the occurrence of abuse can be reevaluated after protective measures have been taken. [ Id. at 114. Emphasis added.]

An attempt is made by the majority to distinguish these cases from the situation that existed in LaLone.

Our holding in LaLone does not preclude this result because LaLone involved statements made during a psychological examination, rather than psychological treatment resulting from a medical diagnosis. [ Ante, p 329.]

However, our decision in LaLone, quoted above, clearly indicates that statements made for purposes of psychological treatment, whether made to a physician or a psychologist, are not the type of hearsay statement intended to be within the application of MRE 803(4) since they are not reasonably necessary for purposes of "medical treatment" and do not possess sufficient reliability. A similar distinction regarding the need for the physician to know whether the child will be returning to an abusive environment is not persuasive because that was also not considered information reasonably necessary for purposes of medical treatment in LaLone. Therefore, the majority has attempted to resurrect arguments regarding the reasonable necessity of statements of identification for purposes of MRE 803(4) that were previously rejected in LaLone, and any distinction that is asserted is not sustainable.

Accordingly, I find it inappropriate for this Court to express an opinion regarding the reasonable necessity of statements of identity in these three child sexual abuse cases in light of the inadequacy of the records on this issue.

I feel compelled to note that identification of a child sexual assault assailant by any health care provider is exceedingly important, even if there are severe questions regarding the genuineness of the allegations, as evidenced by the statutory reporting requirement imposed upon such persons. See MCL 722.623; MSA 25.248(3). It is quite probable that most successful prosecutions for child sexual abuse, or for any child abuse, had as their beginning a report, filed with the appropriate authorities, based upon hearsay statements by the child or some other observer. This is an important and vital aspect of the investigation of these types of cases; however, the importance of this information for purposes of investigation should not be allowed to dictate the manner in which we construe our rules of evidence for purposes of prosecution. We have an established set of rules that must be followed regardless of the importance of the evidence as it is utilized for investigative purposes. I do not believe that adoption of the approach to which I subscribe would reduce the active role that health care providers currently have in the investigation of these heinous crimes; however, the extent to which the medical care providers are permitted to testify at trial must be evaluated in a manner different from that employed for purposes of investigating such allegations.

Applying the approach that I would adopt, the cases currently before us would be resolved as follows.

I would find that the statements by each of the complainants to the medical care provider were made in connection with the rendering of medical treatment or diagnosis in connection with treatment. The complainants had been taken to a medical care facility by an authoritative parental figure, there were observable physical symptoms that required medical attention, and physical examinations were, in fact, performed.

Since each complainant was under ten years of age, i.e., of tender years, at the time the hearsay statements were made to the medical care providers, each prosecutor would be required to sufficiently establish that the declarant in each case was capable of making the necessary cognitive connection to possess the self-interest motivation factor for MRE 803(4). For that reason, I would determine, as best I could from the record, whether there was sufficient evidence to establish that these children did possess sufficient cognitive ability to understand the need for communicating truthful information to a medical care provider in order to receive proper medical care. After examining the circumstances surrounding the giving of each declaration in these cases, I would find that insufficient evidence existed to find the presence of such a cognitive connection.

The complainant in Meeboer was six years old when she identified the defendant as the sexual assailant in response to the physician's inquiries. Statements from a child of such a young age would create, under my approach, a high burden for the prosecution to sufficiently establish that the declarant possessed the necessary cognitive ability. The physician in this case indicated that the complainant appeared to be a "relaxed young lady" when the vaginal examination was performed; however, there was no determination regarding the relative maturity of the child. The complainant was referred to the physician by the hospital after it was disclosed that sexual abuse had occurred. There is no indication in the record that the medical care provider in this case brought to the complainant's attention the vital importance of giving truthful and accurate information. Nor was there any explanation of the medical necessity for the physician to know the identity of the abuser. In the absence of sufficient evidence in the record to establish the existence of the necessary cognitive ability, I would hold the hearsay statements made by the complainant to the medical care provider not to be within the application of MRE 803(4).

In Craft, the complainant was four years old at the time she made the out-of-court statements to the medical care provider. The age of the complainant would set an extremely high burden on the prosecution in order to sufficiently establish the necessary cognitive ability that would be required under my approach. The relative lack of maturity and capacity on the part of complainant was clearly demonstrated by her answers to the questioning by the trial court in establishing competence to testify. The complainant's answers demonstrated she did not possess a recognition of the need to testify truthfully at trial. Such a demonstration of knowledge may reflect a similar lack of capacity to understand the need for truthful information to be given to a medical care provider to receive proper medical care. As in Meeboer, there was no effort to educate the complainant regarding either the medical need for the identity of the abuser or to any connection between the information disclosed and complainant's well-being; although not a requirement, I would consider it an important factor in evaluating cases involving declarants of extremely young ages.

Under the best of circumstances it would be difficult, though not impossible, to demonstrate that the necessary cognitive ability was possessed by a child of such a young age to comply with the requirements of MRE 803(4). I would find that the circumstances surrounding the examination of this particular child do not begin to meet that difficult burden. Thus, I would find that the hearsay statements to the medical care provider in Craft were not admissible pursuant to MRE 803(4). The majority appears to accept that hearsay statements by a four-year-old child may not possess sufficient reliability to be admitted even under the totality of circumstances approach.

In Conn, the complainant was seven years old at the time she made the out-of-court statements to the doctor. This creates a reduced burden upon the prosecution than in the other two cases to sufficiently establish the necessary cognitive ability. The relative maturity and capacity of this complainant was not established at trial, but does not appear to be beyond that which is normal for her age, on the basis of her trial testimony. The fact that the declarant gave three conflicting answers to the medical care provider to the question who abused her, while not controlling, certainly does not help refute the premise that a child does not naturally connect truthful answers with her physical well-being. The majority seems to indicate that this factor actually enhances the reliability of the complainant's statements because the identification of the defendant as the assailant came after complainant's mother allegedly instructed complainant to be truthful. I do not believe that giving three different versions should be considered as lending reliability to hearsay statements, regardless of the approach that is adopted. The fact that this seven-year-old was so susceptible to pressures from her closest authority figure is evidence, in my opinion, that any hearsay statements from that declarant are of questionable reliability or trustworthiness. Such susceptibility to external pressures, even while seeking medical treatment, is further evidence of the limitations regarding the rationale underlying MRE 803(4) when applied to children of tender years. Additionally, as in the previous cases, no effort was undertaken to apprise this complainant of the necessity for the information communicated to be truthful to receive proper medical care; while I concede that such a factor is not mandated by my approach, it is a significant evaluation. I would find that insufficient evidence establishing the existence of the necessary cognitive ability was presented in this case, thereby precluding use of MRE 803(4) to admit the complainant's hearsay statements to the medical care provider.

Accordingly, I would find that the circumstances surrounding the giving of the out-of-court statements by each of the complainants in these cases do not sufficiently establish that the necessary cognitive ability was possessed by these child declarants; thus, the hearsay statements to the medical care providers would not be admissible pursuant to MRE 803(4). I would reverse the decision of the Court of Appeals in Meeboer, and affirm in Craft and Conn.

CAVANAGH, C.J., and LEVIN, J., concurred with BRICKLEY, J.