¶1concurring only in judgment reversing and remanding for a new trial.
¶2My view of Part III A of the Justice Bakes’ opinion to some extent parallel those of Justice Johnson when one reads the statement of the district court, “... I wouldn’t trust him in here as a witness ...” (maj. op. at 698, 760 P.2d at 37), and goes on to read in fn. 12 (maj. op. at 698, 760 P.2d at 37), the holding of the Rhode Island Supreme Court in State v. Paster, 524 A.2d 587 (1957). The door is closed tightly against joining a majority opinion which states that “the trial court did not err in admitting the statement Brian made to his mother.” (Maj. op. at 698, 760 P.2d at 37).
¶3“Statement” is a word of art as used in the legal profession. I do not doubt but that Justice Bakes actually meant to convey the thought that he approved of the admission of the mother’s testimony recounting what the child “said” to her. The child obviously was not making a statement, i.e., a “formal narrative of facts ... and in a limited sense a formal, exact, detailed presentation.” Black’s Law Dictionary, Fifth Ed. 1979, p. 1263. Only the mother and God know for certain how the mother interviewed her own child. Most mothers can persuade, coax, and lead a child of that age into saying almost anything. And, compounding the possible viciousness of that situation, most children of that age are inclined to try to please — say what the child perceives to be wanted of him. I do not base my views on the two rules of evidence both of which are seen as controlling by Justices Bakes and Johnson — in arriving at contrary conclusions— but on Rhode Island case law, which to my mind is predicated upon common sense and my own notions of what is judicially fair. I do not subscribe to, and have never subscribed to the proposition stated in Rule 1102:
Rule 1102. Effect on evidentiary statutes and rules. — Statutory provisions and rules governing the admissibility of evidence, to the extent they are evidentiary and to the extent that they are in conflict with applicable rules of Idaho Rules of Evidence, are of no force or effect. [Adopted January 8, 1985, effective July 1, 1985.]
¶4The Idaho State Bar, through its Board of Commissioners, about five or six years ago, undertook to rewrite the laws of evidence, and a committee was appointed to fulfill that function. No one from this court served on that committee. Since territorial days, the legislature had occupied the field of evidence — what is now Title 19 ch. 30 of the Idaho Code, Witnesses in Criminal Proceedings, and what is now Title 9 of the Idaho Code, Evidence.
¶5At a joint meeting of the Supreme Court and the Bar Commissioners, the question came up as to the means by which the committee’s revision would be made effective — whether by adoption through legislative enactment, or, by promulgation as rules of court. A majority of the Court let it be known that the latter route seemed the more desirable. I was not in that majority, being of the firm persuasion that such matters of highly substantive law belonged to the people who speak through their legislature. In due time the Bar Commissioners and its committee turned their work product over to the Court. The Court promulgated that work product into court rules, and concocted Rule 1102 of its own volition. The Bar Commission and the committee did not propose any such rule. Upon what basis, other than divine right, that the court so conducted itself is yet unknown to me.
¶6Interestingly, in the opinions which we release today, Justice Bakes in his opinion cites side-by-side the legislature’s section 19-3024, and the court’s Rule of Evidence 803 — both of which are footnoted. (Maj. op. at 692, 760 P.2d at 31).
¶7Justice Johnson, in his opinion, touts for the adoption of procedures which are set forth in a rule from the Model Rules of Evidence, which he footnotes in full. It in general is not much unlike the legislature’s § 19-3024.
¶8*702This could be an even more interesting hodge-podge were either Justices Bakes or Justice Johnson to have set forth the legislature’s 1986 enactment — the language of which was obviously prompted by and borrowed from this Court’s language in its Rule 1102 — as to who is in charge around here. I.C. § 11-809 reads:
19-809A. Child’s out of court statements admissible in preliminary examinations. — Notwithstanding the provisions of sections 19-808 and 19-809, Idaho Code, and any rules promulgated by the Idaho supreme court, in any preliminary examination, the magistrate shall receive into evidence any out-of-court statement of a child under the age of ten (10) years provided the magistrate finds the source of the evidence credible. [I.C. § 19-809A, as added by 1986, ch. 195, § 1, p. 493.]
¶9Compounding all of this, one sees Part III of Justice Bakes’ -opinion opening with the statement the Court is required to give guidance for the ensuing second trial per I.C. § 1-205, which is set out in full by fn. 8 (mag. op. at 696, 760 P.2d at 35).
¶10As with matters of evidence, both in civil and criminal proceedings, this § 1-205 goes back to territorial days. Just how it has survived while at the same time the Court deemed itself not bound by the legislature pre-occupying the field of evidence, is beyond me. What this Court on appeals does is strictly a procedural matter, but that cannot be said as to substantive matters of evidence. ' It would seem to me that on most occasions when this Court grants a new trial, it may not always be helpful to direct the district court in advance as to how to rule on matters which may or may not develop at trial.
¶11In short, I am in agreement that there was prejudicial error which requires affording the defendant a new trial. Beyond that, I do not believe it wise or necessary to venture.