Cassidy v. State

⁵ MOYLAN, Judge. The appellant, Ronald Lee Cassidy, was convicted by a Prince George’s County jury of child abuse and assault. In addition to two other contentions which it is not necessary for us to consider, 1 the appellant challenges the admissibility of one critical item of hearsay evidence. For the single item of hearsay in question, the State offers two, or possibly three, theories of admissibility.

The two intelligible, albeit unavailing, theories of admissibility are based upon the respective hearsay exceptions of 1) a Statement of Bodily Feelings, Symptoms, and Condition Made to a Consulting Physician for Purposes of Treatment and 2) an Excited Utterance. The third notion advanced by the State may be a third and distinct evidentiary theory; it may, however, be an umbrella term for the first two theories combined; it may, on the other hand, be simply a synonymous reference to the Excited Utterance theory. Our confusion arises from the fact that the State, in this regard, speaks a dead language which neither we nor anybody else understands. The discredited shibboleth res gestae is no longer uttered in polite legal society, and we hope to lay its ghost to rest.

The Facts of this Case The pertinent facts are few. Indisputably, the two-year-old female victim in this case was physically badly abused. The only issue was whether the appellant was the abuser (or, at least, one of the abusers). The child’s mother and the appellant cohabited in Prince George’s County.

The child referred to the appellant as “Daddy.” ⁶ The State’s case against the appellant, although legally sufficient, was of marginal strength. There was some evidence pointing toward the child’s mother as the source of physical abuse. The testimony of the mother, vulnerable to impeachment in several regards, accused the appellant and was virtually the entire case for the State except for the hearsay evidence in issue. After the child was brought to the Prince George’s County General Hospital by a representative of the Child Protective Services, she was examined by Dr. Amie Pullman.

The interview took place three days after the abusive conduct in issue. Dr. Pullman observed numerous bruises on the arms, legs, and buttocks. There were also signs of irritation to the genital area. Dr. Pullman also found significant the fact that the child, instead of resisting examination of the vaginal area, took her hands and pulled her labia apart.

This, to her, indicated that the child had been sexually molested. Approximately five times during Dr. Pullman’s examination of the child, Dr. Pullman asked, “Who did this?” On each occasion, the answer was “Daddy.” For convenience of reference, we will treat the five, virtually verbatim repetitions of the hearsay as a single instance. For further convenience of reference, we will treat the combined question, “Who did this?,” and answer, “Daddy,” as tantamount to the statement, “Daddy did this.” This is a classic instance of hearsay evidence. With peripheral modifications not here pertinent, a good working definition of hearsay is “an out-of-court assertion offered in pourt for the truth of the matter asserted, and thus resting for its value upon the credibility of the out-of-court assert-er.” 2 See generally C. McCormick, Law of Evidence 460 ⁷ (1st ed. 1954).

And see Houck v. DeBonis, 38 Md.App. 85, 90 , 379 A.2d 765 (1977); Cain v. State, 63 Md.App. 227, 232 , 492 A.2d 652 (1985). The statement, “Daddy did this,” was an out-of-court assertion. The child-victim was never offered as a competent witness and did not testify at the trial. The assertion was made to Dr. Pullman at the Prince George’s County General Hospital on May 20, 1986.

It was offered in court through the medium of Dr. Pullman’s sworn testimony. It was offered, moreover, for the truth of the thing asserted, to wit, that “Daddy did this.” It is undisputed that “this” referred to the bruises on the child’s body. The evidence also amply supported the finding that “Daddy” referred to the appellant. This evidence was critical in establishing the criminal agency of the appellant.

The Allocation of the Burden of Proof In allocating the burden of proof, it is important to begin with the Hearsay Rule itself and not with its converse. The full name of the rule is The Rule Against Hearsay. Although subject to multitudinous exceptions, the Rule, in its essence, is a rule of exclusion. The essential thrust of Federal Rule of Evidence 802, for example, is one of exclusion, not of inclusion: “Hearsay is not admissible except as....” The State turns the rule inside out when it argues before us that a two-year-old child would not be likely, or even capable, of fabricating and that the appellant has, therefore, failed to offer any evidence of likely fabrication as a ground for rejecting the hearsay.

The burden of production, of course, is upon the proponent, not the oppo ⁸ nent. The opponent of hearsay does not have to show why it should be rejected. The fact that it is hearsay is, presumptively, reason enough. The State’s statement of the rule seems to be, “Hearsay will be received, unless the opponent demonstrates its probable untrustworthiness.’’ When urging an exception to a rule of exclusion, however, the burden is upon the proponent of the exception.

The correct procedural posture is, “Hearsay will be excluded, unless the proponent demonstrates its probable trustworthiness.” Affirmative evidence of trustworthiness, moreover, contemplates something more than the absence of evidence of untrustworthiness. The likelihood of a motive to speak truthfully requires more than the unlikelihood of a motive to lie. Were it otherwise, the nothing-to-nothing ties on these issues would go to the exception rather than to the rule. The proponent faces a substantive challenge as well as a procedural one.

Unlike Federal Rule of Evidence 803(24), which creates a miscellaneous exception to the Hearsay Rule for other “equivalent circumstantial guarantees of trustworthiness,” 3 Maryland, in the common láw tradition, is more rigorous and orthodox in its approach to hearsay exceptions. A proponent will not satisfy the rule ⁹ by showing generalized indicia of trustworthiness but must qualify under one of the clearly identifiable and classically recognized exceptions. These are what Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597, 608 (1980), refers to as the “firmly rooted hearsay exception^].” Res Gestae We will deal first with the State’s argument that the out-of-court assertions “were admissible under the res gestae exception to the hearsay rule.” 4 In approaching that ¹⁰ Hydra-headed doctrinal monster, one would do well to arm himself initially with the wisdom of Dean Wigmore: “The phrase ‘res gestae’ has long been not only entirely useless, but even positively harmful. It is useless, because every rule of Evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle.

It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. No rule of Evidence can be created or applied by the mere muttering of a shibboleth. There are words enough to describe the rules of Evidence.

Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.” 6 J. Wigmore, Evidence § 1767, at 182 (3d ed. 1940). Professor Morgan was equally vehement in his denunciation of this pearl of imprecision: “The marvelous capacity of a Latin phrase to serve as a substitute for reasoning, and the confusion of thought inevitably accompanying the use of inaccurate terminology, are nowhere better illustrated than in the decisions dealing with the admissibility of evidence as ‘res gestae.’ It is probable that this troublesome expression owes its existence and persistence in our law of evidence to an inclination of judges and lawyers to avoid the toilsome exertion of exact analysis and precise thinking. Certain it is that since its introduction at the close of the eighteenth century, on account of its exasperating indefiniteness it has done nothing but bewilder and perplex.” Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 (1922). Briefer but equally damning was the characterization attributed to Judge (later Supreme Court Justice) Holmes by James Bradley Thayer: ¹¹ “The man that uses that phrase (res gestae) shows that he has lost temporarily all power of analyzing ideas.

For my part, I prefer to give articulate reasons for my decisions.” Equally to the point was Judge Learned Hand in United States v. Matot, 146 F.2d 197, 198 (2d Cir.1944): “[A]s for ‘res gestae’ ... if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms.” C. McCormick, Evidence (3d ed. 1984) [hereinafter cited as McCormick], even while rejecting res gestae as an outmoded concept, is kindlier in its treatment of the term. It points out that the term came into common usage in the early 1800’s and that at “this time the theory of hearsay was not well developed, and the various exceptions to the hearsay rule were not clearly defined. In this context, the phrase res gestae served as a convenient vehicle for escape from the hearsay rule in two primary situations.” Id. at 835. Professor Thayer referred to the phrase’s “convenient obscurity” and stressed its utility, at a time before analysis reached its present level of sophistication, as a handy “catch-all”: “It would seem probable that it was called into use mainly on account of its ‘convenient obscurity.’ ...

The law of hearsay at that time was quite unsettled; lawyers and judges seem to have caught at the term ‘res gesta,’— ... which was a foreign term, a little vague in its application, and yet in some applications of it precise,— they seem to have caught at this expression as one that gave them relief at a pinch. They could not, in the stress of business, stop to analyze minutely; this valuable phrase did for them what the limbo of the theologians did for them, what a ‘catch-all’ does for a busy housekeeper or an untidy one,—some things belonged there, other things might for purposes of present convenience be put there. We have seen that the singular form of phrase soon began to give place to the plural; this made it considerably more convenient; whatever multiplied its ¹² ambiguity, multiplied its capacity; it was a larger ‘catchall.’ ” Thayer, Bedingfield’s Case—Declarations as a Part of the Res Gesta, 15 Am.L.Rev. 1, 9-10 (1881). In Gray v. State, 53 Md.App. 699 , 456 A.2d 1290 (1983), we ourselves, even while repudiating res gestae, spoke wistfully of its sometimes comforting ambiguity: “One almost longs nostalgically for the discredited label of ‘res gestae,’ notwithstanding its utter repudiation in polite academic circles.

Its sin was its elusive ambiguity. Ironically, that ambiguity may also have been its occasional virtue. [SJometimes the shibboleth was an easy way for a practical-minded court to say, ‘We frankly can’t figure out whether the statement is admissible under Theory A or Theory B, but we don’t really care because it is admissible in either event.’ ” (Footnote omitted). 53 Md.App. at 710-711, 712 , 456 A.2d 1290 . In any event, the protean term res gestae appeared, as recognized by both Wigmore and McCormick, in at least seven different manifestations. Three of these were instances. of nonhearsay. “In the first [large category], it was used to explain the admissibility of statements that were not hearsay at all.” McCormick, at 835.

These instances were: 1. Verbal Acts: This refers to utterances—verbal conduct—to which the law attaches duties and liabilities. Examples are such things as the offer and acceptance of an oral contract, the uttering of a slander, and the making of a false or deceptive representation. 5 ¹³ 2. Verbal Parts of Acts: These are utterances accompanying a legally significant act, sometimes explaining or giving character to a transaction that might otherwise be ambiguous.

Examples would include words explaining whether a transfer of money was a gift, a loan, a repayment of a debt, a bribe, etc.; the words, “Your money or your life,” in an armed robbery context or the words, “Don’t scream or I’ll kill you,” in a kidnapping context. 6 3. Implied Assertions: The phrase is McCormick’s. Wigmore refers to the phenomenon as “utterances used circumstantially, as giving rise to indirect inferences, but not as assertions to prove the matter asserted.” McCormick cites as examples such statements as, “I have been happier in New York than in any other place,” when offered to show the speaker’s intent to remain in New York or, “My husband is a detestable wretch,” offered to show lack of affection for the husband. 7 The protean term res gestae also embraced four exceptions to the Rule Against Hearsay, which four exceptions constitute the category or family known as “Spontaneous Statements.” This ability of the phrase res gestae to move freely from cases of nonhearsay to very different cases where the utterances were hearsay qualifying as exceptions to the Rule was what caused us to remark in Gray v. State, supra, at 53 Md.App. 712 , 456 A.2d 1290 : “The splendid utility of the maligned phrase, of course, arose from the fact that it referred to a blurred boundary, the misty border zone between instances of the ¹⁴ hearsay rule inapplicable and instances of the hearsay rule satisfied.” (Footnote omitted). The four instances of the Hearsay Rule satisfied, which were once- covered by the phrase res gestae are: 4.

Statements of Present Bodily Condition: Embraced within this exception are the closely related, although not coterminous, phenomena of 1) statements to physicians consulted for treatment and 2) statements to physicians employed only to testify. 8 5. Statements of Mental State: Embraced within this exception are the closely related phenomena of 1) statements of present mental or emotional state to show a state of mind or emotion in issue; 2) statements of intention offered to show subsequent acts of declarant; and 3) statements of state of mind to show memory or belief as proof of previous happenings. 9 6. Excited Utterances. 10 7. Unexcited Statements of Present Sense Impressions. 11 ¹⁵ Once analysis began to become more sophisticated, the common denominator rationales linking to some extent these various ways of determining that the Rule Against Hearsay was not offended, were recognized as being contemporaneity and spontaneity.

Both Professor Thayer and Professor Morgan favored contemporaneity as the primary raison d’etre. Dean Wigmore, on the other hand, strongly favored spontaneity as the operative rationale. Some of these instances of admissibility are predicated upon the one and some, upon the other. Their shifting fortunes have sometimes been a function of whether the Thayer-Morgan explanation or the Wigmore explanation was in the ascendant.

What is now clear, however, is that all of these instances of admissibility are capable of being analyzed on their own terms and do not need to huddle under the undifferentiated umbrella of res gestae. “The phrase has nothing to entitle itself ... to preservation. It has had various uses. But it is ambiguous and unmanageable in all of them. The doctrines to which it has been applied possess, all of them, a right to existence under well-recognized preexisting principles and can be explained without a resort to this phrase.

No more can be said for it than that it was once much used in the course of the development of some important aspects of two of these doctrines.” 6 Wigmore, supra, at 253. Whatever could be analyzed under one or another of the forms of res gestae can now be analyzed more cleanly in a water-tight compartment of its own. The phrase res gestae had its day but that day is done. An appropriate obituary was pronounced by McCormick, supra, at 836: “Historically, however, the phrase served its purpose.

Its very vagueness made it easier for courts to broaden its coverage and thus provide for the admissibility of certain statements in new situations. But the law has ¹⁶ now reached a stage at which widening admissibility will be best served by other means. The ancient phrase can well be jettisoned, with due acknowledgment that it served its era in the evolution of evidence law.” The Excited Utterance Exception At the appellate level, although not at the trial level, the State urges the admissibility of the out-of-court assertion, “Daddy did this,” as an Excited Utterance. The Excited Utterance Exception to the Rule Against Hearsay is so settled in the law of Maryland as to require no extended analysis here.

Even while still adhering to the older linguistic usage of res gestae, Maryland firmly endorsed the principle of the Excited Utterance Exception to the Hearsay Rule in numerous cases. Wright v. State, 88 Md. 705 , 41 A. 1060 (1898); Baltimore City P.R. Co. v. Tanner, 90 Md. 315 , 45 A. 188 (1900); Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928); Montgomery Bus Lines Co. v. Diehl, 158 Md. 233 , 148 A. 453 (1930); Tittlebaum v. Pennsylvania R. Co., 167 Md. 397 , 174 A. 89 (1934); Grier v. Rosenberg, 213 Md. 248 , 131 A.2d 737 (1957); Stevens v. State, 232 Md. 33 , 192 A.2d 73 (1963); Reckard v. State, 2 Md.App. 312, 234 A.2d 630 (1967); Hicks v. State, 3 Md.App. 225 , 238 A.2d 577 (1968); Price v. State, 5 Md.App. 127 , 245 A.2d 600 (1968); Hall v. State, 5 Md.App. 599, 249 A.2d 217 (1969); Smith v. State, 6 Md.App. 581 , 252 A.2d 277 (1969). In Estep v. State, 14 Md.App. 53, 65-70 , 286 A.2d 187 (1972), Judge (now Chief Judge) Gilbert synthesized numerous cases dealing with the Excited Utterance Exception, especially cases where the excited declarant had been the victim of a sexual attack. In three relatively recent cases, we have dealt specifically with the Excited Utterance Exception in situations involving young children who had been victims of child abuse and/or sexual assault.

Moore v. State, 26 Md.App. 556 , 338 A.2d 344 (1975); Jackson v. State, 31 Md.App. 332 , 356 A.2d 299 (1976); Deloso v. State, 37 Md.App. 101 , 376 A.2d 873 (1977). ¹⁷ The essential rationale for the Excited Utterance Exception is spontaneity arising immediately from the exciting event and not yet having abated when the utterance is made. McCormick, supra, explains it simply, at 854-855: “First, there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.” An obvious factor in determining the continuing presence of the exciting influence is the time factor. McCormick analyzes this factor, at 856: “Probably the most important of the many factors entering into this determination is the time factor.

If the statement occurs while the exciting event is still in progress, courts have little difficulty finding that the excitement prompted the statement. But as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance. Although one court has held a statement made fourteen hours after a physical beating to be the product of the excitement caused by the beating, other courts have held statements made within minutes of the event not admissible. Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.

Testimony that the declarant still appeared ‘nervous’ or ‘distraught’ and that there was a reasonable basis for continuing emotional upset will often suffice.” (Footnotes omitted). In Moore v. State, supra, a three-and-a-half-year-old child-abuse victim asserted, in answer to questions from a treating physician in an emergency room, that “Daddy was mad; Daddy did it.” The child was “in acute distress and suffering significant pain” and his assertion was made ¹⁸ “within hours after the inflicting of massive injuries.” 26 Md.App. at 566 , 338 A.2d 344 . We upheld the decision of the trial judge to admit the assertion as an Excited Utterance. In Jackson v. State, supra, a four-year-old victim of statutory rape asserted to her mother, after coming into the house obviously distraught, that “Kino done it to me.” The child was bleeding from the vagina and crying.

The assertion occurred minutes after the sexual assault. We upheld the decision of the trial judge to admit the assertion as an Excited Utterance. By way of contrast, in Deloso v. State, supra, we reversed the trial court for admitting as Excited Utterances assertions on two occasions by a five-year-old child-abuse victim to the director of her school and other school personnel that her father “had hit her on the back, because she had disobeyed him” and that “her father hit her with a belt and pushed or threw her against the wall.” The primary reason for the reversal was the procedural failure of the State, as the proponent of the hearsay, to carry its burden to establish the qualifying criteria: “Implicit in this consideration, however, is the requirement that the offerer of the hearsay statements provide the foundation upon which he asserts admissibility. See Harnish, supra, 9 Md.App. at 549-551 [ 266 A.2d 364 ]; McCormick, Evidence § 297 (2d ed.).

As we have already pointed out, the State’s entire case rested upon hearsay, but the State laid no foundation showing circumstantial probability of trustworthiness. Nor was there evidence of the relative time sequences between the alleged incidents of abuse and Jenny Jo’s statements to the various witnesses. Nothing in the evidence indicated that Jenny Jo ‘was still emotionally engulfed by the situation,’ either inferentially from time and circumstances, or actually from the witnesses’ observations.” 37 Md.App. at 106-107 , 376 A.2d 873 . Although the State urges on appeal that the out-of-court assertion, “Daddy did this,” should have been admissible as an Excited Utterance, that theory of admissibility was not ¹⁹ presented to the trial court.

The State’s effort before us to sustain the admissibility of the hearsay on that theory fails for four distinct reasons, any one of which would be fatal to the State’s argument. 1. The Failure of the Trial Court to Make Factual Findings in This Regard: It would be quite possible, of course, for a ruling on admissibility to be sustained on one ground even if the trial court had rested its decision on a very different ground. A ruling may be right for the wrong reason. When the alternative ground offered is that of the Excited Utterance Exception to the Hearsay Rule, however, it is required that there be findings of predicate fact.

Unless the evidence is so clear and decisive as to compel such findings as a matter of law, an actual finding of fact would be required that there had been a dramatic incident sufficient to generate the requisite excitement. Additionally, an actual finding of fact would be required that the declarant at the time of the utterance was still in the throes of the exciting event and was not capable of reflective narration. For the obvious reason that the trial judge was never called upon to make such findings, no findings in this regard were ever made. At least in the absence of evidence so clear, decisive, and overwhelming as to compel such findings, it is not for us to make them de novo. 2.

The Procedural Failure of the State to Meet Its Burden of Production: Closely related to the foregoing failure but possessing some autonomous morbidity of its own was the failure of the State, as the proponent of the evidence, to meet its burden of production to satisfy this theory of admissibility. The State offered no evidence to show that the two-year-old declarant was in an excited condition at the time of the out-of-court assertion in issue. The State simply offers, in argument, the speculative possibility that the declarant, “due to her age and the nature of the incident could well ²⁰ have still been emotionally engulfed by the situation even two or three days after the crime.” This clearly does not satisfy the procedural requirement, spelled out in Deloso v. State, supra, that “the offerer of the hearsay statements provide the foundation upon which he asserts admissibility.” 37 Md.App. at 106 , 376 A.2d 873 . Here, as in Deloso , “the State laid no foundation showing circumstantial probability of trustworthiness.” Id.

Deloso is, therefore, dispositive. 3. The Time Lapse: The evidence actually adduced that might bear on the excited quality of the utterance, far from compelling findings in the State’s favor, may well have been so clear, decisive, and overwhelming in the opposite direction as to negate the possibility of an Excited Utterance as a matter of law. Although such a holding is unnecessary because of the failure of the hearsay to qualify in other regards, some comment is appropriate at least by way of instructive dicta. All of the cases we have reviewed, in the treatises and in the Maryland case law, have analyzed the time lapse in units of minutes and hours, never in units of days.

In this case, the time lapse was three days. Although the reported decisions eschew arbitrary and mathematical time limits in favor of ad hoc determinations of the continuing influence of the exciting event, there are obvious outer limits. In terms of the continuing influence of the exciting event, Maryland went about as far as any of the states have gone in the case of Smith v. State, 6 Md.App. 581 , 252 A.2d 277 (1969). Although that decision still used the obsolete language of res gestae, it clearly dealt with the phenomenon of the Excited Utterance.

A four-year-old victim of a sexual assault recounted the incident and identified her assailant to her mother some four-and-a-half to five hours after the incident. We affirmed the ruling of the trial court that the assertion was an Excited Utterance. In the Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Col.L.Rev. 1745, 1759 (1983), the ²¹ commentator seized upon Smith v. State, supra, as illustrating the outer limit to which the Excited Utterance Exception has been pushed and, indeed, criticized the decision for having arguably overstepped that outer limit: “[I]n Smith v. State, the Maryland Court of Special Appeals admitted the hearsay statement of a four-year-old rape victim despite the fact that four-and-one-half to five hours had elapsed before she spoke to her mother about the incident. The court ignored the fact that the child was calm at the hospital, hours before she made her statement, and that at trial, the examining doctor had characterized the child’s demeanor as ‘placid.’ However, in avoiding the harsh results of the spontaneous exclamation exception in this manner, courts have virtually destroyed the integrity of the exception, stretching it far beyond its traditional bounds, and creating much uncertainty in its application.

What courts are in fact doing is looking to various circumstantial guarantees of trustworthiness, of which spontaneity is just one.” (Footnotes omitted). Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806, 811 n. 86 (1985), also refers to Smith v. State, supra, as an example of state courts’ both having “extended the allowable time lapse in cases of child sex abuse” and “straining the rationale of the excited utterance exception.” Our point is that four-and-a-half to five hours seems to represent the extreme outer limit to which the Excited Utterance phenomenon has been pushed. In the present case, the out-of-court assertion, “Daddy did this,” came three days after the assault in issue. Although in dealing with factual questions it is discreet never to say, “Never,” it is difficult to conceive of circumstances under which excited spontaneity could continue to operate over such a protracted time frame. 4.

The Fact of Excited Spontaneity: Even within the shortest of time lapses, moreover, it is required that the out-of-court assertion actually be spon ²² taneous, to wit, that the declarant literally still be in the throes of the exciting event. In dealing at least with sexual assaults inflicted by family members on young children, the Excited Utterance does not generally appear to be a good candidate for qualifying out-of-court assertions. As the Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, supra, notes, at 1756-1757: “This emphasis on spontaneity is improper for two reasons. First, most children do not view a sexual episode as shocking or even as particularly unusual.

Children thus often do not recount the event with the shock or emotion required under the exception. Children are simply not as highly sexualized or moralized as adults. They may not know what has happened to them is wrong. This may be especially true if the child has been involved in an incestuous relationship.

A parental imprimatur on the entire situation may often cause the child to view everything as normal____ This childhood perspective on sexual experiences naturally does not produce the shock or excitement that the law presumes to exist after such an event. Quite often, the incident is related as part of the days activities without any indication from the child that it was traumatic or unusual.” Necessary or not, we do not hesitate to hold that the only evidence bearing on the state of mind of the two-year-old declarant in this case clearly, decisively, and overwhelmingly established that her assertion was not the spontaneous product of excitement. She had been in the presence of Dr. Pullman, off and on, for a period of eight hours, three days after the assault in issue. The assertions were not spontaneous but were given in response to questions posed by Dr. Pullman.

When Dr. Pullman was asked about the demean- or of the child, she responded: “The Witness: The child was actually extremely cooperative. More cooperative than we ordinarily find a two-year-old. I don’t know what her understanding of the ²³ situation was, but she was very unusually friendly and cooperative. During the whole procedure she was friendly.

She readily went to all of the different strangers in the emergency room, played with them, sat with them, let them hold her, let them pick her up. The Court: So she did not appear frightened in the setting of the hospital and the hospital staff? The Witness: She was abnormally not frightened. It was aberrant how unfrightened she was.” In terms of the presence or absence of excitement or hysteria, Dr. Pullman was unequivocal: “The Witness: The child was two years old.

She never asked for her mother. She never cried. She never got hysterical. She just happily went about her business from one person to the next.” Again, we find Deloso v. State, supra, instructive, at 37 Md.App. 107 , 376 A.2d 873 : “Jenny Jo’s conduct and conversation appeared from the telling to have been quite casual—almost a ‘show and tell’ depiction.

Neither Moore, Jackson, nor any other case reviewed by this Court permits the admission of the hearsay of a child simply by virtue of its tender years. The element of trustworthiness is generally found in the spontaneity of the exclamation, and that is totally lacking here.” For all or any of the above reasons, the out-of-court assertion, “Daddy did this,” was not remotely an Excited Utterance. Statements of Then-Existing Physical Condition: Generally Because statements to a treating physician (and sometimes even to a non-treating physician), as an exception to the Rule Against Hearsay, grew out of the parent exception of Statements of Then-Existing Bodily Condition, an understanding of the parent exception will shed light on the affiliated exception that evolved from it. The parent excep ²⁴ tion is labeled by McCormick, supra, as “Statements of Bodily Feelings, Symptoms, and Condition.” It is a member of the larger family of hearsay exceptions known as “Spontaneous Statements.” 6 Wigmore, supra, § 1718 traces the origins of “Statements of a Physical Condition” to as early as 1678 and points out that “[i]t is for statements of physical pain or suffering that the exception has been longest recognized and the principle most fully and clearly reasoned out.” Id. at 101, 376 A.2d 873 .

The statement, to be admissible, had to be of a physical feeling then being experienced. Its reliability rested on its spontaneity. As McCormick, supra, pointed out, at 838: “Special reliability is considered to be furnished by the spontaneous quality of the declarations, assured by the requirement that the declaration purport to describe a condition presently existing at the time of the statement.” (Footnote omitted). Declarations of existing bodily condition were not required to be made to a physician in order to qualify as a hearsay exception; any person who heard the statement could testify to it.

Geiselman v. Schmidt, 106 Md. 580, 584 , 68 A. 202, 204 (1907) (no error in permitting plaintiff’s wife to testify that he complained of suffering from his injuries); Pennsylvania R.R. v. Simmons, 159 Md. 114, 121 , 150 A. 263, 265-266 (1930) (proper to allow a relative to testify that while plaintiff was bedridden she complained of headaches); Robinson v. Lewis, 20 Md.App. 710, 711-712, 717 , 317 A.2d 854, 856, 858 (1974) (reversible error to exclude testimony of son that the deceased had complained of pain in his legs during the period following the accident until his death), aff'd per curiam, 273 Md. 725 (1975). Because of the requirement of spontaneity, however, there were limitations upon the exception: “The exception is, however, limited to descriptions of present condition, and therefore excludes description of past pain or symptoms as well as accounts of the events furnishing the cause of the condition.” (Footnotes omitted). ²⁵ McCormick, supra, at 838-839. McCeney v. Duvall, 21 Md. 166, 182-183 (1864) (statements as to how long declarant had been suffering from disease were inadmissible). Maryland has long recognized this general exception.

Sellman v. Wheeler, 95 Md. 751, 754 , 54 A. 512, 514 (1902); Maryland Evidence, supra, § 803(3).2, at 363-364. Statements to Physicians Consulted for Treatment The evidentiary phenomenon of a Statement to a Treating Physician was a natural outgrowth of the more general phenomenon of a Statement of Then-Existing Physical Condition. Under the special circumstances of the more limited phenomenon, there was a trade-off. Qualifying restrictions were loosened in some regards but correspondingly tightened in other regards.

Because of the additional guarantee of trustworthiness, even jurisdictions that were loathe to recognize the general exception readily admitted the Statement of Then-Existing Bodily Condition Made to a Treating Physician: “Statements of a presently existing bodily condition made by a patient to a doctor consulted for treatment have almost universally been admitted as evidence of the facts stated, and even courts greatly limiting the admissibility of declarations of bodily condition generally have admitted statements made under these circumstances. Although statements to physicians are not likely to be entirely spontaneous, since they are usually made in response to questions, their reliability is assured by the likelihood that the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician.” (Footnotes omitted). McCormick, supra, at 839. The spontaneity requirement was lessened because of the alternative assurance of reliability.

Because of that alternative guarantee of reliability, the exception for the case of the treating physician generally ²⁶ expanded to include statements of past symptoms as well as then-existing pain or feeling: “Because of this strong assurance of reliability courts tend to expand the exception to include statements made by a patient to a physician concerning past symptoms. This seems appropriate, as patients are likely to recognize the importance to their treatment of accurate statements as to past as well as present symptoms.” (Footnote omitted). (Emphasis in original). Id. at 839-840.

The final and logical expansion of the exception for the case of the treating physician was to include statements, pertinent to the course of treatment, as to the cause or source of the bodily condition: “The exception may be taken one step further to encompass statements made to a physician concerning the cause or the external source of the condition to be treated. In some cases the special assurance of reliability— the patient’s belief that accuracy is essential to effective treatment—also applies to statements concerning the cause, and a physician who views this as related to diagnosis and treatment might reasonably be expected to communicate this to the patient and perhaps take other steps to assure a reliable response.” (Footnote omitted). Id. at 840. Fisher Body Div. v. Alston, 252 Md. 51, 54-55, 249 A.2d 130, 132-133 (1969); Riddle v. Dickens, 241 Md. 579, 581 , 217 A.2d 304, 306 (1966).

Whether dealing with existing bodily feelings, past symptoms, or medical history as to the cause or source of the bodily condition, the guarantee of trustworthiness was precisely the same. Spontaneity was no longer the guarantee. The guarantee, rather, was that no one would willingly risk medical injury from improper treatment by withholding necessary data or furnishing false data to the physician who would determine the course of treatment on the basis of that data. ²⁷ Because of the nature of the guarantee of trustworthiness, several limitations upon this hearsay exception logically developed. Although information about the cause or source of the condition that would influence the course of treatment came under the qualifying guarantee of trustworthiness, other statements as to causation that simply fixed fault or identified the culprit would not come within the logic of the guarantee.

Even those jurisdictions that placed the evidentiary imprimatur on statements as to causation in this first category would not receive statements as to causation in this latter category: “However, when statements as to causation enter the realm of fixing fault it is unlikely that the patient or the physician regarded them as related to diagnosis or treatment. In such cases, the statements lack any assurance of reliability and would properly be excluded. ‘Thus a patient’s statement that he was struck by an automobile would qualify, but not his statement that the car was driven through a red light.’ Some courts may nevertheless still adhere to a position requiring the exclusion of any statements related to cause.” (Footnotes omitted). McCormick, supra, at 840. Washington B. & A. Elec.

Ry. v. Faulkner, 137 Md. 451 , 459, 112 A. 820, 823 (1921); Hazlitt v. Dewlow, 171 Md. 398, 402 , 189 A. 213 -214 (1937). Maryland has long recognized this exception for Statements Made to a Treating Physician, applying it broadly not only to statements of existing pain or feeling but to past symptoms and medical history as well. “We have applied in this State the universally recognized principle that an attending physician may testify as to the medical history related to him by his patient, and may also state his conclusions reached on the strength of that history.” Candella v. Subsequent Injury Fund, 277 Md. 120, 123 , 353 A.2d 263 (1976). Adams v. Benson, 208 Md. 261, 266-267 , 117 A.2d 881 (1955); Yellow Cab Co. v. Henderson, 183 Md. 546, 552-553 , 39 A.2d 546 (1944); Riddle v. Dickens, 241 Md. 579, 581 , 217 A.2d 304 (1966). ²⁸ Which of the three categories the out-of-court statements fall into is immaterial as long as they are covered by the qualifying guarantee of trustworthiness: “It may be seen that, when attended by a physician for the purpose of treatment, there is a strong inducement for the patient to speak truly of his pains and sufferings.” Parker v. State, 189 Md. 244, 249 , 55 A.2d 784 (1947). Because of the requirement that this guarantee be present, Maryland exempted from the evidentiary imprimatur statements made to a non-treating physician, such as an expert witness preparing testimony for trial.

Parker v. State, supra, excluded statements made to a non-treating physician because in that case “defendant was not seeking treatment and cure.” 189 Md. at 249 , 55 A.2d 784 . The heart of the exception, in Maryland and elsewhere, is “the underlying rationale ... that the patient’s statements to his doctor are apt to be sincere when made with an awareness that the quality and success of the treatment may largely depend on the accuracy of the information provided the physician.” Candella v. Subsequent Injury Fund, supra, 277 Md. at 124 , 353 A.2d 263 . Maryland has scrupulously refrained from extending the exception to instances where “the trustworthiness which characterizes the declaration is no longer assured.” Id. As Judge Wilner pointed out for this Court in Waltermeyer v. State, 60 Md.App. 69 , 480 A.2d 831 (1984), Maryland, for 30 years following Parker v. State, supra, recognized the distinction between “treating” and “examining” physicians with respect to statements made to them by “patients.” In Beahm v. Shortall, 279 Md. 321 , 368 A.2d 1005 (1977), however, Maryland eliminated the distinction in one regard but let it remain in another.

It is now the case that a treating physician and an examining physician alike may render in court expert opinions based upon medical histories given to them by patients. In the case of the examining physician, the out-of-court statements made to the physician are not admissible as substantive evidence. They may be inquired into in the probing of the reasons for ²⁹ the expert opinion, but the jury will be instructed to receive them for that limited purpose only and not as substantive evidence. In the case of statements made to a treating physician, on the other hand, they serve not only as a legitimate predicate for the physician’s expert opinion but may also be received, through the medium of the testifying physician, as substantive evidence under this recognized exception to the Hearsay Rule.

The out-of-court assertion, “Daddy did this,” failed to qualify under this exception to the Hearsay Rule for several reasons. 1. The Survival Instinct of the Patient-Declarant: In terms of the reason for the exception, the subjective purpose of the declarant is vitally important. As was pointed out in United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir.1980), “The declarant’s motive in making the statement must be consistent with the purpose of promoting treatment.” United States v. Renville, 779 F.2d 430, 436 (8th Cir.1985), explained the necessity for the subjective purpose, “First, it is assumed that a patient has a strong motive to speak truthfully and accurately because the treatment or diagnosis will depend in part upon the information conveyed.” The two-year-old declarant in this case lacked the motive or purpose which is the heart of the trustworthiness guarantee. When asked about the two-year-old’s understanding of the. purpose of the questioning, Dr. Pullman responded, “I don’t know what her understanding of the situation was.” The critical colloquy in this regard was as follows: “Q.: I believe you indicated that she did not understand why you were asking these questions, is that correct?

A: I don’t believe that a two-year-old is capable of understanding a concept like why somebody is asking questions.” ³⁰ The doctrinal predicate—the underlying reassurance of trustworthiness—upon which this entire exception to the Hearsay Rule rests was, therefore, entirely lacking in this case. The two-year-old declarant did not understand the nature or purpose of her interview with Dr. Pullman. She was not mature enough to appreciate the critical cause-and-effect connections between accurate information, correct medical diagnosis, and efficacious medical treatment. She was not advanced enough to possess the concerned physical self-interest which is at the very core of this particular evidentiary theory.

Recognizing this unbridgeable gap in the orthodox syllogism, the State attempts to change horses in midstream. Literally, it changes theories of trustworthiness in mid-argument. It posits that a two-year-old declarant is too immature to be manipulative with facts; too young to fabricate; therefore, reliable. That may well be true (it may not).

It is also quite beside the point. To shift the theory of declarant-reliability, the central rationale for each hearsay exception, is to shift completely out of the Statement of Bodily Condition to Treating Physician exception. It would require moving into a framework of analysis for some other hearsay exception: 1) an exception now in existence, 2) an exception yet to be invented, or 3) an exception that will never find acceptance. In any event, we would have to start all over again, after first identifying the hearsay exception to be analyzed and then setting forth the pertinent qualifying criteria for that exception.

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. ³¹ 2.

The “Tender Years” Exception: The State’s argument resonates with the language and with the notions of what is coming to be called the “Tender Years” exception. It is an exception that has never found acceptance within the Common Law of Evidence. It may, of course, be accepted at some future time. That, however, would be quintessential^ a legislative determination.

The special social problem of child abuse—sexual and otherwise—has generated a great deal of legislative response. See Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806 (1985); Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Col.L.Rev. 1745 (1983); Bulkley, Evidentiary and Procedural Trends in State Legislation and Other Emerging Legal Issues in Child Sexual Abuse Cases, 89 Dick.L.Rev. 645 (1985). One of these responses has been the statutory creation of a Hearsay Rule exception for out-of-court assertions by children (generally under 10 years of age) who have been victims of sexual abuse. Whereas only two states (Kansas and Washington) had such statutory