This case requires us to decide whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant's rights under the Confrontation Clause of the Sixth Amendment.
* Respondent Laura Lee Wright was jointly charged with Robert L. Giles of 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 51/2 and the other 21/2 years old at the time the crimes were charged.
Respondent and her ex-husband, Louis Wright, the father of the older daughter, had reached an informal agreement whereby each parent would have custody of the older daughter for six consecutive months. 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, App. 47-55; 3 Tr. 456-460, and that she had seen respondent and Giles do the same thing to respondent's younger daughter, App. 48-49, 61; 3 Tr. 460. The younger daughter was living with her parents respondent and Giles-at the time of the alleged offenses.
Goodman reported the older daughter's 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. One of the examining physicians was Dr. John Jambura, a pediatrician with extensive experience in child abuse cases. App. 91-94. 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. Id., at 105, 106.
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. Id., at 32-38. The court concluded, and the parties agreed, that the younger daughter was "not capable of communicating to the jury." Id., at 39.
At issue in this case is the admission at trial of certain statements made by the younger daughter to Dr. Jambura in response to questions he asked regarding the alleged abuse. Over objection by respondent and Giles, the trial court permitted Dr. Jambura to testify before the jury as follows: "Q. [By the prosecutor] Now, calling your attention then to your examination of [the younger daughter] on November 10th. What-would you describe any interview dialogue that you had with [her] at that time? Excuse me, before you get into that, would you lay a setting of where this took place and who else might have been present?
"A. This took place in my office, in my examining room, and, as I recall, I believe previous testimony I said that I recall a female attendant being present, I don't recall her identity.
"I started out with basically, 'Hi, how are you,' you know, 'What did you have for breakfast this morning?' Essentially a few minutes of just sort of chitchat.
"Q. Was there response from [the daughter] to that first those first questions?
"A. There was. She started to carry on a very relaxed animated conversation. I then proceeded to just gently start asking questions about, 'Well, how are things at home,' you know, those sorts. Gently moving into the domestic situation and then moved into four questions in particular, as I reflected in my records, 'Do you play with daddy? Does daddy play with you? Does daddy touch you with his pee-pee? Do you touch his pee-pee?' And again we then established what was meant by pee-pee, it was a generic term for genital area.
"Q. Before you get into that, what was, as best you recollect, what was her response to the question 'Do you play with daddy?'
"A. Yes, we play-I remember her making a comment about yes we play a lot and expanding on that and talking about spending time with daddy.
"Q. And 'Does daddy play with you?' Was there any response? "A. She responded to that as well, that they played together in a variety of circumstances and, you know, seemed very unaffected by the question.
"Q. And then what did you say and her response?
"A. When I asked her 'Does daddy touch you with his pee-pee,' she did admit to that. When I asked, 'Do you touch his pee-pee,' she did not have any response.
"Q. Excuse me. Did you notice any change in her affect or attitude in that line of questioning?
"A. Yes.
"Q. What did you observe?