                                            No.    89-226
                    IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                  1990


STATE OF MONTANA,
     plaintiff and Respondent,
     v.
KATHRYN HARRIS,
     Defendant and Appellant.



APPEAL FROM:                    District Court of the Fourteenth Judicial District,
                                In and for the County of Musselshell,
                                The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
                   For Appellant:
                                Gary E. Wilcox, Billings, Montana
                   For Respondent:
                                Marc Racicot, Attorney General, Helena, Montana;
                                Dorothy McCarter, Ass't. Attorney General, Helena,
                                Montana; Carol A. Donaldson, legal intern, Helena,
                                Montana; Gerry M. Higgins, Special Deputy County
                                Attorney for Musselshell County, Ryegate, Montana


                                           Submitted on briefs:   December 18, 1990
                                                         ~ecided: January 24, 1991
Filed:                24 1 9
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Justice William E. Hunt, Sr. delivered the Opinion of the Court.

        A jury found defendant, Kathryn Harris, guilty of two counts
of felony sexual assault.         Defendant appeals.   We reverse and
remand for a new trial.
        We frame the issues as follows:
        1.     Did the State's expert witness improperly comment on the
credibility of an alleged victim who testified at trial?
        2.    Did the District Court err in allowing the State's expert
witness to identify defendant as the perpetrator of the alleged
crimes by testifying as to hearsay statements made to her by the
alleged victims during the course of therapy?
        3.    Did the District Court err in granting the jury's request
to have the testimony of an alleged victim read to it after the
case had been submitted to the jury?
        During the fall of 1987, defendant was employed as a full-
time babysitter for a three-year-old girl, referred to as "Janey
Doe,I1 and a five-year-old boy, referred to as "Robby Roe. I'
Beginning in about mid-September of that year, Janey began
complaining that her bottom hurt.          On November 18, 1987, she
complained of stomach problems.        Later that evening, she fell on
the stairs, cried and moaned that her vagina hurt. Janey's mother,
Mrs. Doe, wondering what sort of fall could hurt her vagina,
examined Janey and discovered a thick glob of mucous in the vaginal
area.        When Mrs. Doe wiped the area with a warm washcloth, Janey
cried and screamed in pain.       Mrs. Doe then noticed that the lip of
Janeyns vagina was streaked with blood-like blisters.     She also
noticed a bruise on Janeyls lower right vagina.
     The following day, Mrs. Doe took Janey to her pediatrician for
an examination. The pediatrician, who was trained in sexual abuse,
discovered a bruise outside of Janeylsvagina, along with abrasions
on the side of the vagina.      She labeled the injuries as non-
accidental and consistent with sexual abuse.
     On November 25, 1987, Janey began therapy sessions with Sandi
Burns, a psychotherapist specializing in child sexual abuse.
During the course of the sessions, Janey told Burns that defendant
had put a stick in her vagina, placed a finger in her vagina and
hit her vagina with her hands or a stick. In addition, Janey told
Burns that defendant's husband, Eric Harris Cates, stuck his penis
in her vagina.
     Janey indicated that Robby Roe had also been sexually abused
by defendant and her husband.   Subsequently, on February 1, 1988,
Burns examined Robby.   Robby related to Burns stories of sexual
abuse by defendant and her husband.
     On February 26, 1988, defendant was charged with two counts
of felony sexual assault against the minor children in violation
of 1 45-5-502, MCA.   Her husband, Cates, was charged at the same
time with one count of sexual intercourse without consent against
Janey Doe, or, in the alternative, sexual assault, and one count
of felony sexual assault against Robby Roe.
    The District Court granted the defendantsn motion for separate
trials.   Catest trial was held in July, 1988, in the Fourteenth
Judicial District Court, Musselshell County, the county in which
the offenses occurred.     A jury found Cates guilty of one count of
sexual intercourse without consent and one count of sexual assault.
On appeal, this Court overturned the sexual intercourse without
consent conviction, holding that the evidence was insufficient to
sustain the conviction.        State v. Cates, 241 Mont. 282, 787 P.2d
319 (1990).
     Due to the publicity engendered by the Cates trial, defendant
Harris was granted a change of venue from Musselshell County to
m all at in County.    Prior to trial, defendant filed a motion in
limine seeking to exclude hearsay statements made by Janey to any
State witness.    Defendant also sought to prohibit Sandi Burns, the
childrens' therapist, from testifying that the children were
sexually assaulted and that they were truthful, credible and
consistent.    The motions were denied.
     Trial commenced on November 14, 1988. Janey did not testify,
having been found incompetent by the District Court prior to the
Cates   trial.        Robby,   however,    did   testify,   as   did   the
psychotherapist Burns.
     On November 16, 1988, the jury found defendant guilty of two
counts of felony sexual assault.          Defendant was sentenced to 14
years imprisonment on each count, with seven years suspended, both
sentences to run concurrently. This appeal followed.


                                    I.
     Did the State's expert witness improperly comment on the
credibility of an alleged victim who testified at trial?
     At trial, Sandi Burns, the psychotherapist who examined both
Janey and Robby, testified that Robby was "a little, honest, open
country boy    ....     [H]els a pretty trustworthy child   ....      [He]
is very honest.''      Defendant argues that this testimony constituted
an improper comment on Robby's credibility.
     The question of the credibility of an alleged victim lies
exclusively within the province of the jury.            Expert testimony
regarding credibility improperly invades the jury's function by
placing   a    stamp    of   scientific   legitimacy   on   the   victim's
allegations.     Therefore, we generally will not allow an expert
witness to comment on the credibility of an alleged victim. State
v. Brodniak, 221 Mont. 212, 222, 718 P.2d 322, 329 (1986).
     We have carved out one exception to this rule.               In cases
involving sexual abuse of a minor child,          we will allow expert
testimony on the credibility of the alleged victim.               State v.
Geyman, 224 Mont. 194, 200, 729 P.2d 475, 479 (1986).                 This
exception applies, however, only when the victim testifies at
trial, State v. J.C.E., 235 Mont. 264, 269, 767 P.2d 309, 312-13
(1988), and credibility is brought into question.           See State v.
Hall, 797 P.2d 183, 191, 47 St.Rep. 1501, 1510 (Mont. 1990).
     In the present case, although Robby testified at trial, his
credibility was not attacked by defendant.             Defendant did not
denigrate Robby's credibility in an opening statement or cross-
examine him when he took the stand.        The only time she touched on
the issue of credibility was during the cross examination of
Robby's mother when she asked if Robby had at first denied the
abuse.     The State, however, had opened the door to this line of
questioning by bringing the matter up on direct.   Because Robby's
credibility was not called into question by defendant, the District
Court committed reversible error by allowing the psychotherapist
to comment directly on his trustworthiness.
                                 11.

        Did the District Court err in allowing the State's expert
witness to identify defendant as the perpetrator of the alleged
crimes by testifying as to hearsay statements made to her by the
victims during the course of therapy?
     As we noted in J.C.E., 235 Mont. at 267-68, 767 P.2d at 311-
12, cases involving sexual abuse of young children raise troubling

evidentiary questions. When an alleged victim of abuse is a young
child who, in a courtroom setting, may be unable to relate
information about the alleged offense, probative evidence may be
lost.      Out-of-court statements made by    the child to others
therefore become some of the most valuable evidence available.
These statements, however, constitute hearsay, and are normally
inadmissible in court.
     The courts are thus forced to walk a fine line between
following the traditional rules of evidence and excluding what
might be the most probative, material evidence of the crime.   The
dilemma is especially acute when, as in this case, the criminal
defendant's Sixth Amendment right of confrontation is implicated
by the unavailability of a child declarant.
     In addition to posing confrontation problems, another danger
involved in allowing hearsay statements, especially when they are
admitted    through an   expert witness such as a   counselor or
psychologist, is that the expert becomes a surrogate witness for
the child. While we recognize that expert testimony regarding the
sometimes puzzling and seemingly contradictory behavior of victims
of child sexual assault may aid the jury to determine ultimate
issues, such as whether the crime actually occurred, we must be
careful not to allow the witness to become a conduit for otherwise
inadmissible testimony.
     In J.C.E., 235 Mont. at 269-70, 767 P.2d at 313, we held that
the identification of the perpetrator of a crime is not a proper
subject for expert testimony under Rule 702, M.R.Evid.,     which
allows expert testimony if it will "assist the trier of fact to
understand the evidence,I1 or Rule 704, M.R.Evid., which allows an
expert to render an opinion on an ultimate issue.   We noted that
an opinion on an ultimate issue may be rendered only if it assists
the jury.     Whether a child was the victim of sexual abuse is a
question that may be clarified by expert testimony.     I1However,
whether the evidence adduced by the State establishes [defendant]
as the perpetrator requires only the common logic that is indeed
well within the capacity of a lay jury." J.C.E., 235 Mont. at 270,
767 P.2d at 313.
     The State argues that the testimony of psychotherapist Sandi
Burns may be admitted through Rule 803(4), M.R.Evid., the medical
diagnosis and treatment exception to the hearsay rule.       This
exception provides as follows:
     The following are not excluded by the hearsay rule, even
     though the declarant is available as a witness:


     (4) Statements for purposes of medical diagnosis or
     treatment.    Statements made for purposes of medical
     diagnosis or treatment and describing medical history,
     or past or present symptoms, pain, or sensations, or the
     inception or general character of the cause or external
     source thereof insofar as reasonably pertinent to
     diagnosis or treatment.
Rule 803 (4), M.R.Evid.
     We considered and rejected this contention in J.C.E. , 235
Mont. at 271, 767 P.2d at 313, stating, "We decline to extend the
medical diagnosis and treatment exception beyond medical doctors
. . . ."   The State urges us to reconsider our ruling and attempts
to distinguish the present case from J.C.E. on the grounds that the
counselor in that case was unlicensed and therefore without the
necessary authority to render medical diagnosis while the counselor
in this case is licensed.   The State further points out that the
Commission Comments indicate that the exception was not intended
to apply only to statements made to medical doctors.
     The Commission Comments state:
     The exception allows statements made to any person and
     about any pertinent subject, so lons as within the
     purpose of the exception. (Emphasis added.)
Commission Comments to Rule 803 (4), M.R.Evid., 3 M.C.A. Annot.,
Title 26 at 352 (1986).
     While we agree with the State that in some cases hearsay
statements made to persons other than physicians may be admissible
under the medical diagnosis and treatment exception, we once again
decline to extend the exception beyond medical doctors in cases
involving abuse of young children because we cannot be assured that
such statements are Itwithinthe purpose of the exception.I1
     Statements made     for purposes   of   medical   diagnosis   and
treatment must satisfy a two-part test before they come within the
purpose of this exception to the hearsay rule.            First, the
declarantlsmotive in making the statement must be consistent with
seeking medical treatment. Second, the statement must be of a type
reasonably relied on by a physician when making diagnosis and
treatment decisions.    J.C.E., 235 Mont. at 270, 767 P.2d at 313.
     The State argues that hearsay statements made by a child
victim of sexual assault to her counselor should be admitted under
the medical treatment exception because the counselor relies on the
identity of the perpetrator in determining the most appropriate
course of treatment for the victim.     While we do not doubt that
this assertion is correct, it ignores the first requirement of the
exception, that is, that the victim or patient understands the need
for telling the truth to his or her doctor.
     The reliability of the medical treatment exception to the
hearsay rule is assured by the first prong of the test.            The
declarant who seeks medical treatment possesses a selfish motive
in telling the truth.     He knows that Ifthe effectiveness of the
treatment he receives may depend largely upon the accuracy of the
information he provides."    C. McCormick, McCormick on Evidence 5
292 at 839 (E. Cleary 3d ed. 1984).
     In J.C.E., 235 Mont. at 271, 767 P.2d at 314, we noted that
the trustworthiness of statements made by a young child to her
counselor is not necessarily assured because I1[t]he child might
not comprehend the necessity of telling a doctor the truth in order
to aid diagnosis and treatment.It Because we cannot be assured of
the reliability of statements made by young children to their
counselors, we hold that statements made to the child's counselor
cannot be admitted into evidence under the medical treatment
exception to the hearsay rule.
     The State argues, in the alternative, that the hearsay
statements in question may come into evidence under the residual
exception to the hearsay rule, Rule       804   (b)(5), M.R.Evid., which
provides that statements not specifically covered by any of the
enumerated exceptions may be admissible if they possess "comparable
circumstantial guarantees of trustworthine~s.~
     In J.C.E.,      235 Mont. at 273, 767 P.2d at 315, we noted that
hearsay statements made by a minor child who is the alleged victim
of sexual abuse and who is unavailable for trial may be admissible
under Rule   804   (b)(5), M.R.Evid.   Such statements are admissible,
however, only if the following conditions are present:
     1 The victim must be unavailable as a witness, whether
      .
     through incompetency, illness or some other like reason
     (e.g., trauma induced by the courtroom setting).
     2. The proffered hearsay must be evidence of a material
     fact, and must be more probative than any other evidence
     available through reasonable means.
     3.  The party intending to offer the hearsay testimony
     must give advance notice of that intention.
J.C.E., 235 Mont. at 273, 767 P.2d at 315.
    With regard to Burns1 testimony involving statements made to
her by Janey, it is uncontested that Janey was unavailable as a
witness due to incompetency.      Therefore, the first condition is
satisfied.
     The second prerequisite, however, is not satisfied. Although
the hearsay statements attested to by Burns identified defendant
as the perpetrator of the sexual assaults against Janey and were
therefore material, they were not the most probative evidence on
the matter.    Robby, a victim of the abuse and an eyewitness to the
alleged assault against Janey, testified that he saw defendant
touch Janey 'Ion the 'bagina. I w   Because Robby was able to link
defendant to the sexual assault against Janey, the identification
of defendant through hearsay statements was cumulative and served
only to bolster Robby's testimony.
     The hearsay testimony regarding Robby's statements to Burns
are inadmissible under Rule 804 (b)(5), M. R. Evid. , because Robby was
available for trial.     However, Robby's hearsay statements could
under some circumstances be admitted under Rule 803 (24), M.R. Evid.,
the residual exception to the hearsay rule used when the declarant
is available to testify, as long as the statements possess
wcircumstantial guarantees of trustworthine~s.~
     The preliminary protections that apply to Rule 804(b)(5),
M.R.Evid.,    also apply to Rule 803 (24), M.R.Evid.    The proffered
hearsay must be evidence of a material fact; the hearsay must be
more probative than any other evidence available through reasonable
means; and the party intending to offer the hearsay testimony must
give advance notice of that intention.
       In the present case, we hold that the statements made by Robby
to Burns during counseling sessions are inadmissible.            Because
Robby was available to identify and did indeed identify defendant
as the perpetrator of the crime, the hearsay statements to which
Burns testified were not the most probative evidence on the matter.
As we noted above, Burns' testimony on this issue was merely
cumulative, sewing only to bolster Robby's testimony.
       For guidance in future cases, we will now discuss, using the
factors set forth in J.C.E., 235 Mont. at 274, 767 P.2d at 315, the
conditions under which hearsay testimony by a therapist who is an
expert in treating victims of child sexual abuse may be admitted
under the residual exceptions of Rule 804 (b)(5), M.R.Evid.       ,    the
exception used when the declarant does not testify, and Rule
803 (24), M.R. Evid. , the exception used when the declarant does
testify.     We emphasize that the district courts need reach this
analysis only if the preliminary protections of both rules have
been satisfied. As we stated above, those protections are, in the
case    of   Rule   804(b) (5), M.R.Evid.,   the   child   declarant    is
unavailable as a witness, the proffered hearsay is the most
probative evidence of a material fact, and advance notice has been
given of the intent to use the testimony; in the case of Rule
803(24), M.R.Evid.,     the proffered hearsay is the most probative
evidence of a material fact and advance notice has been given of
the intent to use the testimony.
       The factors concerning the attributes of the child hearsay
declarant as enumerated in J.C.E., 235 Mont. at 274, 767 P.2d at
315, will vary in each case and are not particularly germane to
this discussion.      We do note that any time the child has been
determined to be incompetent to testify at trial, the child's
ability     to   communicate   verbally   (one   of   the   factors)   is
questionable.
       The second group of factors set forth in J.C.E. are:
       a.   The witness's relationship to the child.
       b. Whether the relationship between the witness and the
       child might have an impact on the trustworthiness of the
       hearsay statement.
       c. Whether the witness might have a motive to fabricate
       or distort the child's statement.
       d. The circumstances under which the witness heard the
       child's statement, including the timing of the statement
       in relation to the incident at issue and the availability
       of another person in whom the child could confide.

J.C.E., 235 Mont. at 274, 767 P.2d at 315.
       A therapist does not see a child for treatment of the effects
of sexual abuse unless there has been a claim that the child has
been    sexually abused.       The therapist is therefore arguably
predisposed to confirm what he or she has been told.         We conclude
that the nature of the relationship between a therapist and a child
client has a negative impact on the trustworthiness of the hearsay
statement. We further conclude that, in general, the circumstances
in which a therapist hears a child's statement about sexual abuse
are not such that a hearsay statement by the therapist will possess
circumstantial guarantees of trustworthiness.
       Among the factors listed in J.C.E., 235 Mont. at 274, 676 P.2d
at 315, concerning "the statement itself, is whether the statement
was volunteered spontaneously. Statements to a therapist are not
made spontaneously, but are made in response to questioning,
whether direct or indirect.    Another factor listed in J.C.E., 235
Mont. at 274, 767 P.2d at 315-16, is Itthesuggestiveness of prior
statements by the witness   . . . ."   In order to elicit a story of
sexual assault from a child, a therapist may often resort to
leading questions. Inherent in this type of suggestive questioning
is the danger of planting the idea of sexual abuse in the mind of
the child.
     In analyzing these factors, we conclude that only in an
extraordinary case will hearsay testimony by a therapist concerning
the identity of the perpetrator or the nature of the abuse possess
sufficient circumstantial guarantees of trustworthiness to be
admissible into evidence.     We hold that hearsay statements of a
child victim of sexual abuse who does not testify at trial will,
in general, not be admissible under Rule 804 (b) (5), M. R. Evid.,
through the child's therapist. Nor will the hearsay statements of
a child victim of sexual abuse who does testify at trial generally
be admissible under Rule 803 (24), M. R.Evid., through the child s
therapist.
     In sum, the hearsay statements about the assaults were
improperly admitted into evidence in this case.     Their admission
into evidence constituted reversible error. We emphasize that this
ruling does not prevent an expert witness such as Sandi Burns from
testifying, after a proper foundation has been laid, as to the
characteristics of children who have been sexually abused or as to
whether a particular child displays those characteristics. It also
does not prevent such an expert from testifying under another
hearsay exception such as excited utterances or               res   sestae,
depending upon the circumstances.


     Did the District Court err in granting the jury's request to
have the testimony of an alleged victim read to it after the case
had been submitted to the jury?
     During deliberations, the jury asked the District Court to
let it review Robby's testimony.        The jury's written request to
the court stated, in part, "We would like to review [Robby's]
testimony on the witness stand.         We feel that we need all of
[Robby's] testimony     . . . to compare with other testimony!I1
     The District Court summoned counsel for both sides and
informed them of the request.      Defendant objected to the request.
The court overruled the objection. The jury was then escorted into
the courtroom and Robby's testimony was read in its entirety.
     At common law, the trial court had no discretion to read a
transcript of a witness's testimony or submit testimonial materials
to the jury room for unsupervised review during jury deliberations.
This rule was designed to prevent an undue emphasis of the
submitted materials over all other evidence in the case. Chambers
v. State, 726 P.2d 1269, 1275 (Wyo. 1986).
     Statutory    law    permits   a   court   to   refresh   the   jury's
recollection     of     trial   testimony      under    certain     limited
circumstances.   Section 46-16-503(2), MCA.         The statute provides:
     After the jury has retired for deliberation, if there is
     any disagreement among the jurors as to the testimony or
     if the jurors desire to be informed on any point of law
     arising in the cause, they must require the officer to
     conduct them into court. When the jurors are brought
     into court, the information requested may be given in the
     discretion of the court. If such information is given,
     it must be given in the presence of the county attorney
     and the defendant and his counsel.
Section 46-16-503(2), MCA.
     In construing a Wyoming statute similar to the one above, that
state's supreme court stated:
     This statute does not change the common law rule against
     submitting testimonial materials to the jury for
     unsupervised    and     unrestricted    review     during
     deliberations, and it does not permit trial courts to
     repeat large amounts of testimony just because the jury
     makes such a request. On the contrary, it requires that
     the court discover the exact nature of the jury's
     difficulty, isolate the precise testimony which can solve
     it, and weigh the probative value of the testimony
     against the danger of undue emphasis. If, after this
     careful exercise of discretion, the court decides to
     repeat some testimony for the jury, it can do so in open
     court in the presence of the parties or their counsel or
     under other strictly controlled procedures of which the
     parties have been notified.    [Footnote omitted.] The
     more testimony the court repeats, the greater the danger
     of undue emphasis. Even with the best of procedures, it
     would not be proper under the statue for the court to
     reread a transcript or replay a videotape of a witness's
     entire story just because the jury wants to review all
     of the testimonial matter that happens to be available
     or because the jury wants to review the general
     credibility of the witness. Undue emphasis and delay
     would be too likely.
Chambers, 726 P.2d at 1276.
     We agree with the Wyoming court.        The kind of request
contemplated by 9 46-16-503 (2), MCA, includes an inquiry concerning
a witness's testimony as to the width of a street, the height of
an object, distance, time or some other limited request, but not
the entire testimony of the witness.
     The     instructions   given   to   the   jury   before   it   begins
deliberations should include an instruction to submit any requests
for information in writing.     If the jury submits a written request
that the transcript of a witness be read to them, the district
court should respond in writing as follows:
     It would be error for me to furnish you with a transcript
     of any particular witness for the reason that in
     rendering your verdict, you should not give any undue
     emphasis to the testimony of any one witness to the
     exclusion of all others. Instead, you should consider
     all of the evidence as a whole in rendering your verdict.
     However, if you have some particular reason or point that
     you are trying to resolve that relates to the evidence
     of this witness, you may submit that question to me in
     written form, and I will give it consideration.
     Through this process, an inquiry concerning a witnessls
testimony can be narrowed down to such subjects as the width of a
street, the height of an object, distance, time or some other
limited request.
     In this case, the District Court abused its discretion by
reading Robby1s entire testimony to the jury.         The reading of the
testimony prejudiced defendant by placing undue emphasis on the
statement of the alleged victim to the exclusion of the testimony
of other witnesses.
     Reversed and remanded for a new tr al.
                                           P
                                                       Justice
We Concur:
               Justices
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1.2& . C V ! / . & c ~ 4 ,
Hon. Leonard ~itnGen,
                -  -
District Court Judge,
sitting for Justice Barz
Justice Fred J. Weber dissents as follows:

     I strongly dissent from the majority opinion.   I also concur
in Mr. Justice Harrison's dissent which demonstrates how the
majority is proceeding in the opposite direction from the majority
of jurisdictions in the area of expert testimony in child sexual
abuse cases. I recognize the good faith attempt on the part of the
majority to address a very perplexing area of the law of evidence.
The tragic result is that we have severely handicapped the capacity
of the judicial system to prosecute adults who commit sexual
offenses upon very young children.
     Rule 702, M.R.Evid., details the testimony to be allowed by
experts:
     If scientific, technical, or other specialized knowledge
     will assist the trier of fact to understand the evidence
     or to determine a fact in issue, a witness qualified as
     an expert by knowledge, skill, experience, training, or
     education may testify thereto in the form of an opinion
     or otherwise.
In the present case we have the specialized knowledge of Ms. Sandi
Burns who is an acknowledged expert in the area of sexual abuse.
The extensive testimony on the part of Ms. Burns clearly assisted
the trier of fact to understand evidence given by the children and
to determine key facts in issue with regard to the charges of
sexual abuse.
     The testimony sets forth the key professional qualifications
on the part of the witnesses who testified in this case as experts
in the area of child sexual abuse.   Janey was taken by her mother
to her pediatrician on the day after her mother observed Janey's
problems.     That pediatrician testified that she had       special
training regarding the diagnosis of sexual abuse in small children,
and that she currently was on the Yellowstone Valley Sexual Abuse
Team. While she could not recall the exact number of sexual abuse
cases with which she had been involved, she estimated a total of
50 to 75 cases.    She testified she had been in court proceedings
on sexual abuse on 10 or 15 different occasions.         She is the
medical witness who testified with regard to the bruises and
abrasions which were consistent with sexual abuse.
     The defendant called a Billings pediatrician who testified
with regard to his examination of the children.     He has practiced
pediatrics in Billings since 1953.       He estimates that he has
examined from 25 to 30 children for sexual abuse.    He testified he
found no evidence of sexual abuse in the two children.
     Ms. Sandi Burns testified with regard to her examination and
treatment of Janey and Robby.      Ms. Burns has been engaged in
psychotherapy for approximately ten and one-half years in the
Billings area.    She has two masters degrees in counseling and
psychology from Arizona State University.       She is licensed by
Montana as a professional counselor, and is licensed nationally as
a certified counselor.   She has specialized in sexual abuse cases
for over ten years, and a majority of her case load consists of the
diagnosis and treatment of child sexual abuse. She sees an average
of 50 sexual abuse patients a weeks.    She testified that she has
handled approximately 1500 cases of child sexual abuse in the past
10 years.   Her patients come from all parts of Montana and from out
of state.    She has taught approximately 35 to 40 workshops a year
for the FBI, social workers, school districts, teachers, counselors
and nurses. Ms. Burns was charged with the diagnosis and treatment
of both Janey and Robby.
     It is apparent from the record that the treatment of medical
doctors in sexual abuse cases is limited to caring for the patients
until they have physically recovered from any harm.   The treatment
of the mental and emotional aspects of sexual abuse with minor
children is left to such experts as Ms. Burns.   Note that the two
pediatricians who testified as experts together have not seen one-
tenth of the patients seen by Ms. Burns in the past ten years.
Their total is less than 150 as compared to Ms. Burnst 1500 cases.
I emphasize this because Rule 702 emphasizes that if specialized
knowledge will assist the trier of fact, a witness qualified by
knowledge, skill, experience and training may testify.    Applying
that rationale suggests that Ms. Burns has more qualification by
experience than medical doctors who see far fewer cases and spend
a limited amount of time with the children.
     The majority opinion states that because a therapist does not
see a child for treatment unless there has been a claim of sexual
abuse, the therapist is arguably predisposed to confirm the abuse,
which has a negative impact on the trustworthiness of the hearsay
statement.   The majority further concludes that the circumstances
in which the therapist hears the statement are not generally such
that a hearsay statement will possess circumstantial guarantees of
trustworthiness.    I am shocked that such statements are made in
this case.   Such statements might have been appropriate in cases
where unqualified persons were testifying as to sexual abuse. That
is not the case here.    In Ms. Burns we have the expert's expert-
-the person to whom the pediatrician referred the children for
treatment--the person with the best experience to evaluate and
treat sexual abuse.      If the logic of the majority opinion is
applied in other areas, it would appear that we should mistrust the
testimony of a medical doctor because his patient was sent to him
for diagnosis and potential treatment. The statements are totally
unsupportable. Such a conclusion is particularly inappropriate in
this case where Ms. Burns is one of the most qualified persons in
the area of sexual abuse in the state of Montana.
                                 I
     Did Ms. Burns improperly comment on the credibility of the
alleged victims?
     In Part I of the majority opinion, the majority emphasizes
that the credibility of six year old Robby was not called into
question by the defendant, and therefore concludes that it was
reversible error to allow Ms. Burns to comment directly on Robby's
trustworthiness.   She had testified that Robby was a little,
honest, open country boy who appeared to be a pretty trustworthy
child and very honest.
    Ms. Burns testified to a number of factors which must be taken
into consideration before she can reach conclusions with regard to
a child abuse victim.     She illustrated how Janey initially was
unable to talk freely with her, and explained how she established
the facts so far as Janey was concerned.     Ms. Burns' testimony
demonstrated that fear is one of the weapons frequently used by the
adult sexual abuser upon a child victim.        It is reasonable to
conclude that the inability of Janey to testify in the present case
was based upon such fear.   That is particularly true because the
trial judge found that she was unable to testify because of fear.
Ms. Burns testified that Robby was extremely fearful because of
threats made by the defendant and her husband.         While it is
fortunate that Robby was able to testify at trial, we have no
assurance he will be able to testify on retrial.     As pointed out
by Ms. Burns, that may depend upon his mental and emotional state
at the time of retrial.
     As emphasized by Ms. Burns, experts in this field recognize
that children sometimes have difficulty telling their story--they
frequently deny the occurrence of the sexual abuse at various
times--if the occasions present reasons for them to become fearful,
they will refuse to testify, or contradict testimony previously
given.
     The testimony of Robby which the Court finds so persuasive is
a demonstration of the problems in this area.    On retrial we have
no assurance that Robby will still be able to testify openly.    If
he is further threatened, or he recalls the previous threats made,
he may choose to deny ever having testified as he did. Should that
be the case, the person best able to discern the truth is the
psychologist-therapist who has met day after day and week after
week with the patient, and based upon her experience, as she did
in   the    present   case,   reached   a    conclusion    regarding   the
truthfulness of the statements.
     We have applied a rule which may be applicable in adult
witness cases but is totally inappropriate here.          The testimony of
Ms. Burns was clearly helpful to the trier of fact to determine
whether or not Robby was telling the truth and whether or not he
accurately told what had happened to him and to Janey.
        In other types of cases we conclude that an expert may testify
on aspects bearing on the ultimate fact to be determined by the
jury.    We recognize that experts can be properly evaluated by the
jury.    Based upon the extensive knowledge, experience and training
of the expert, it seems appropriate under Rule 702, M.R.Evid., to
allow the expert to assist the jury to determine the facts in
issue. Obviously few jurors have background or experience dealing
with child sexual abuse with which to evaluate reactions on the
part of child abuse victims.
     I conclude that it was not reversible error to allow Ms. Burns
to testify as to the credibility of Robby. We should encourage the
giving of this essential information to jurors, the triers of fact.
                                   I1
     Did the District Court err in allowing Ms. Burns to identify
the defendant as the perpetrator            of the alleged     crimes by
testifying as to hearsay statements made to her by the victims
during the course of therapy?
     In discussing whether or not the evidence was admissible under
Rule 803(4),     M.R.Evid.,   the medical     diagnosis and     treatment
exception, the majority emphasized that the reliability of the
medical treatment exception is assured because the declarant who
seeks medical treatment possesses a selfish motive to tell the
truth and we may therefore assume that the declarant was telling
the truth.   That ignores the wording of our Rule 803(4), which
provides that statements made for either medical diagnosis      or
treatment are admissible.   Statements made for medical diasnosis
are not presumably reliable because the declarant may only be
attempting to establish a claim, with no intent to seek treatment
from that expert witness.     In fact, the argument is probably
stronger for allowing Ms. Burns, the highly qualified expert, to
testify than it would have been for a medical doctor testifying as
to diagnosis. We emphasize this because the information was stated
by Ms. Burns to be essential to her treatment.
     I also disagree with the narrow construction of the majority
on the residual exception to hearsay Rule 804(b) (5).       In the
guidelines contained in State v. J.C.E. (1988), 235 Mont. 264, 767
P.2d 309, we pointed out that the main components of such testimony
may well include the following:
     a.   Whether the act alleged can be corroborated.
     b. If the child's statement identifies a perpetrator,
     whether that identity can be corroborated.
We emphasized that the admissibility of the evidence remains in the
discretion of the trial judge.
     The majority opinion concludes that because six year old Robby
was able to link the defendant to the sexual assault, the
identification by the expert through hearsay statements was only
                                  25
cumulative.     Unfortunately, we have no assurance that Robby's
testimony will be available on retrial.   Because of the extent of
Ms. Burns1 expertise and the difficulty of ascertaining the extent
to which a young child may have told the truth, I conclude that Ms.
Burns' testimony is clearly the most probative evidence to help the
jury evaluate Robby's testimony.
     Again, I emphasize that we treat these child witnesses as
though they were adults.     The testimony by Ms. Burns and other
experts establishes that it is not appropriate to apply the same
standards as are applied to adults.
     I conclude that the preliminary protections of Rule 804 (b)(5)
have been met in this case and that the hearsay was properly
admitted.     I am disturbed by the conclusion on the part of the
majority that it is only in an extraordinary case that hearsay
statements by a therapist, concerning either the identify of the
perpetrator    or the nature of the abuse, possess       sufficient
circumstantial guarantees to be admissible.     There is no factual
basis for such a conclusion.


                               Summary
     The tragic result is that we have rather casually reversed a
conviction with overwhelming evidence establishing the guilt of the
defendant. We have created multiple dilemmas:    for the parents of
both Janey and Robby the dilemma is whether or not to allow their
children to go through the hurtful and frightening process of
another trial.     The dilemma on the part of the prosecution is
whether they will be able to put together sufficient allowable
evidence to convict the defendant so as to warrant their insistence
that the children and parents go through the painful retrial
process.
     While our intentions have been of the very best, we have now
reversed the convictions as to both defendant Harris and her
husband.   Defendant Harris has been found guilty by a jury based
on overwhelming evidence.   Our pursuit of justice leads to strange
and tragic results as we reverse.
Justice John Conway Harrison dissenting.


       I concur in Mr. Justice Weberlsdissent and add to it the fact
that Sandi Burns has testified as an expert witness not only in
numerous other states but before the federal courts and is used by
the Federal Bureau of Investigation as an expert witness.   We find
ourselves in an amazing situation of denying her testimony under
Rule 804(b) (5) in a state court in Montana, yet if she were
testifying to the same fact situation in a federal court in
Montana, her testimony would be received.
       While the question regarding the admissibility of psychiatric
and psychological testimony in child abuse actions arises in
criminal cases, the same principles of these decisions, in my
opinion, should also have some applicability in civil actions.
       Child abuse cases have increased dramatically over the past
decade. An estimated one in five females suffers from sexual abuse
as a child.     However, in two-thirds of child abuse cases, the
incident is never reported.    Morgan v. Foretich (4th Cir. 1988),
846 F.2d 941, 943.    Even when abuse is reported, convictions are
few.   Because the sole witness is often a very young child who may
be incompetent to testify at trial and because physical evidence
is frequently lacking, prosecution is difficult.     a.   Thus, the
admission of a child's statements made to adults at the time of
discovery of the abuse and during the course of therapy is crucial
to the State's case.     According to the comments to the Federal
Rules of Evidence, "[wlhen the choice is between evidence which is
less than best and no evidence at all, only clear folly would
dictate an across-the-board policy of doing without.I1 Fed.R.Evid.
art. VIII advisory committee's note.
     In child abuse cases, federal courts have admitted statements
of children made to psychologists and social workers, as well as
physicians, under the medical exception to the hearsay rule, Rule
803 (4), Fed.R.Evid. , identical to the Montana rule.   Morqan, 846
F.2d at 949; United States v. DeNoyer (8th Cir. 1987), 811 F.2d
436, 438; United States v. Nick (9th Cir. 1979), 604 F.2d 1199,
1201-1202.   In fact, the advisory committee note to Rule 803(4)
states that tl[u]nderthe exception the statement need not have been
made to a physician.   Statements to hospital attendants, ambulance
drivers, or even members of the family might be          included.I'
Fed.R.Evid. 803(4) advisory committee's note.
     Federal courts have instituted a two-part test for admitting
such statements: (1) the declarant Is motive in making the statement
must be consistent with the purposes of promoting treatment; and
(2) the content of the statement must be such as is reasonably
relied on by a physician.     United States v. Renville (8th Cir.
1985), 779 F.2d 430, 436. Statements made for purposes of medical
treatment are frequently admitted into evidence regardless of
whether the individual who made the statement is competent to
testify at trial.   Morqan, 846 F.2d at 949.
     In allowing the admission of hearsay statements of a four-
year-old child to her treating psychologist, the Fourth Circuit
Court of Appeals    found that a child's motive to make true
statements for the purposes of diagnosis or treatment is as strong
or stronger than an adult's. Secondly, the therapist or physician
reasonably relies on the child's statements for treatment or
diagnosis.   Morsan, 846 F.2d at 949.   The assailant's identity is
one of the factors relied on for treatment in child abuse cases.
Renville, 779 F.2d at 436-37; Morsan, 846 F.2d at 950.
        The federal cases follow the trend in state courts to allow
this type of expert testimony in determining whether a child has
been abused.       In addition, nearly thirty states have passed
legislative exceptions to the hearsay rule allowing individuals to
testify to a child's hearsay statements if certain requirements are
met.'     Contrary to the majority's conclusion that statements to a


       The following states have enacted legislative exceptions to
the hearsay rule in child sexual abuse cases: Alabama, Alaska
(limited to grand jury testimony) , Arkansas, Arizona, California
(only for purpose of determining admissibility of defendant's
confession), Colorado, Florida, Georgia, Idaho, Illinois, Indiana,
Kentucky, Maryland, Minnesota, Mississippi, Nevada, New Hampshire
(limited to civil cases to recover damages on behalf of a minor
child for abuse or assault), New Jersey (limited to juvenile and
family law cases), New York (limited to family law cases), Ohio
(limited to juvenile court), Oklahoma, Oregon, Pennsylvania
(limited to juvenile and family law cases), South Dakota, Utah,
Virginia (limited to civil cases involving child abuse and
neglect) , and Washington.
     Of these, Arizona, Kentucky and Mississippi have declared
their statutes unconstitutional on the ground that under their
constitutions and state law, the judiciary, rather than the
legislature, controls evidentiary rules. See State v. Robinson
(Ariz. 1987), 735 P.2d 801; Drumm v. Commonwealth (Ky. 1990), 783
S.W.2d 380; Hall v. State (Miss. 1989), 539 So.2d 1338.
     Other states have rebuffed constitutional challenges to child
hearsay statutes. See, e.g., St. Clair v. State (Ark. 1990), 783
S.W.2d 835 (separation of powers doctrine does not preclude General
Assembly from enacting child hearsay rule); State v. Ramsey (Utah
1989) , 782 P.2d 480 (child hearsay statute not void for vagueness) ;
State v. Swan (Wash. 1990), 790 P.2d 610 (defendant's right to
confrontation of witness not violated by child hearsay statute).
     Typical of the hearsay statutes is the Washington law enacted
in 1982, which provides:
             A statement made by a child when under the age of
        ten describing any act of sexual contact performed with
        or on the child by another, not otherwise admissible by
        statute or court rule, is admissible in evidence in
        dependency proceedings under Title 13 RCW and criminal
        proceedings in the courts of the state of Washington if:
child's therapist are unreliable, Maryland's child hearsay statute
allows the hearsay only if the statements are made to a licensed
physician, psychologist, or social worker.      Md. Cts.   &   Jud. Proc.
Code Ann., 5 9-103.1 (1989).
     Arizona allows expert testimony explaining general behavioral
characteristics of child victims on the basis that jurors, most of
whom are unfamiliar with the behavioral sciences, might otherwise
attribute behaviors of victims to inaccuracy or prevarication.
State v. Moran (Ariz. 1986), 728 P.2d 248, 250-252.        Arizona also
follows the federal rule in admitting child hearsay statements to
treating psychologists under the medical exception to the hearsay
rule.     State v. Robinson (Ariz. 1987), 735 P.2d 801, 809-10.
        In Brady v. State (Ind. App. 3 Dist. 1989), 540 N.E.2d 59, 70-
71, the Indiana court allowed testimony of a therapist in regard



          (1) The court finds, in a hearing conducted outside
     the presence of the jury, that the time, content, and
     circumstances ofthe statement provide sufficient indicia
     of reliability; and
             (2) The child either:
                  (a) Testifies at the proceedings; or
                  (b) Is unavailable as a witness:
             Provided, That when the child is unavailable
             as a witness, such statement may be admitted
             only if there is corroborative evidence of the
             act.
          A statement may not be admitted under this section
     unless the proponent of the statement makes known to the
     adverse party his intention to offer the statement and
     the particulars of the statement sufficiently in advance
     of the proceedings to provide the adverse party with a
     fair opportunity to prepare to meet the statement.
Wash. Rev. Code 5 9A.44.120 (1988).
to the effects of sexual abuse on preschool age children.
        In State v. Kim (Hawaii 1982), 645 P.2d 1330, the court upheld
expert testimony as to general characteristics of a child rape
victim, including the credibility of the child witness, if the
trial court is satisfied "that the expert's contacts with the
evaluated witness were such that he had an opportunity to make a
thorough and objective assessment."        Kim, 645 P.2d at 1336.
        In our sister state of Washington in State v. Petrich (Wash.
1984) , 683 P. 2d 173, the Washington court allowed an expert to
describe why sexually abused children often delay reporting the
abuse and that the length of delay correlates with the relationship
between the abuser and the child. The Washington Supreme Court did
not disturb the action of the trial court; it did however find
prejudicial the expert's statement that in most instances a child
is molested by someone he or she knows.
        In State v. Middleton (Or. 1983), 657 P.2d 1215, two social
workers testified that the complainant's behavior was consistent
with that of other children who reported sexual molestation by a
family member.      Similarly, in Ward v. State (Fla. App. 1 Dist.
1988) , 519 So.2d 1082, the court, in evaluating the testimony of
a clinical psychologist commented that "[clhild abuse syndrome is
an area sufficiently developed to permit an expert to testify that
the symptoms observed in the evaluated child are consistent with
those displayed by victims of child abuse.I1            Ward
                                                        I       519 So.2d at
1084.     See also, Calloway v. State (Fla. App. 1 Dist. 1988), 520
So.2d     665,   review   denied,   529   So.2d   693       (1988), where   a
psychologist was allowed to testify as an expert.
        In State v. Myers (Minn. 1984), 359 N.W.2d 604, the court
allowed a clinical psychologist to generally describe the behavior
and the symptoms typically exhibited by sexually abused children;
she was allowed to state her opinion that the child was truthful
about having been abused. Following Myers, the Minnesota Court of
Appeals recently held that "[elxpert testimony describing the
traits and characteristics typically found in sexually abused
children and those the expert had observed in the complainants is
admissible.   . . .   An expert may also testify properly that the
child's behavior is consistent with the profile of a sexually
abused child.I1 State v. Dana (Minn. App. 1987), 416 N.W.2d 147,
153, rev'd on other srounds, 422 N.W.2d 246 (1988).
     The jury is the sole judge of the credibility of witnesses.
By not accepting the testimony of Sandi Burns in this case we are
denying the jury the opportunity to hear the testimony of one who
can add to the jury's ability to fairly decide the factual issues.
The majority's statement that a therapist is predisposed to find
abuse is unsupported by research or other evidence and is merely
a conclusory opinion. I find it more credible that a therapist as
experienced as Sandi Burns is better able than a lay witness to
detect fabricated statements by children.
     The majority's broad assertion that the relationship between
a therapist and a child client has a "negative impact on the
trustworthiness of the hearsay statementsv1 is equally without
foundation. As in this case, children in a sexual abuse situation
are often threatened with harm or death to themselves and others
if they say anything about the abuse.    Thus, a child whose trust
is betrayed by an abuser may take weeks or even months to trust an
adult before he or she will reveal details of the abuse. As Sandi
Burns testified, the child's statements in therapy              are not
necessarily made in response to questioning, but may be divulged
while the child is at play or through pictures the child draws.
A therapist is trained to ask non-leading questions.             In any
particular case, the trial court needs to assess the circumstances
under which the child's statements to a therapist are made, rather
than    beginning   with    the   insupportable   assumption   that    the
statements are inherently unreliable.
       Sandi Burns is so well trained and knowledgeable in her field
that even medical professionals refer patients to her.                I am
reluctant to categorically preclude all such testimony as we have
done here,    since it      is virtually   the unanimous opinion of
commentators that under certain circumstances expert psychiatric
testimony may reveal to the trier of fact characteristics or
conditions of the witnesses which may assist the jury in the
assessment    of    their   credibility.      See   Saxe,   Psychiatry,
Psychoanalysis, and the Credibility of Witnesses, 45 Notre Dame
Lawyer 238, (1970); Juviler, Psychiatric Opinions as to Credibility
of Witnesses: A Suqqested Approach, 48 Cal.L.Rev. 648 (1960);
McCormick, Evidence, Section 45 (1972 ed.).
       By our action today, we are, in my opinion, setting back the
prosecution of child abuse cases in Montana for years to come.
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 NO. 89-226

STATE OF MONTANA,
          Plaintiff and Respondent,
                                                         1
                                                         1      O R D E R
                                                         1
KATHRYN HARRIS,
          Defendant and Appellant.



     It has been brought to the Court's attention that an error
exists on page 20 of the dissent of ~usticeFred J. Weber to the
opinion in the above case.
     IT IS ORDERED that the paragraph commencing at line 10, page
20 of the opinion which reads:

          The defendant called a Billings pediatrician who
     testified with regard to his examination of the children.
     He has practiced pediatrics in Billings since 1953. He
     estimates that he had examined from 25 to 30 children for
     sexual abuse.    He testified he found no evidence of
     sexual abuse in the two children.
Is changed to read as follows:
          The defendant called a Billings pediatrician who
     testified as an expert with regard to his examination of
     children for sexual abuse. He has practiced pediatrics
     in ~illings since 1953.      He estimated that he has
     examined from 25 to 30 children for sexual abuse during
     that time.
     IT IS FURTHER ORDERED that the Clerk of this Court is directed
to mail a copy of this order to:
               Gary E. Wilcox
               Attorney for Appellant                              t 0
               P.O. Box 30522                                     2
                                                                  :      *&   4 *!
               ~illings, Montana 59107                         FE3 1 3 1995
               Marc Racicot, Attorney General
               State of Montana
                                                              62>;;tifi
                                                               G
                                              U E R b i OF S L F ~ ; " J ; E C O     U ~
               Helena, Montana                    STATE G3" 1,TOld'i'ArJA
         Clerk of the District Court
         Fourteenth Judicial District
         Musselshell County
         Roundup, Montana 59072
         State Reporter, Helena, Montana
         West Publishins Co., St. Paul, Minnesota
DATED this 4 ~ e d a y February, 1991.
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