dissenting:

The first question presented on this appeal of the district court’s denial on the merits of Ron Walters’ petition for habeas corpus is whether he was denied rights secured by the Fourteenth Amendment and by the Sixth Amendment as incorporated by the Fourteenth Amendment when the prosecutor was permitted to present to the jury the videotaped testimony of a child who Walters contended was incompetent to be a witness. I quote relevant portions of the voir dire in which the court attempted to determine .this competency:

After an interruption for other proceedings, the competency hearing resumed.

Janet Hossack, a psychologist, was then sworn. The court said to Hossack:

The general rule is that the question of competency of a witness is a question for the trial judge who has had the opportunity to see with his own eyes and to hear with his own ears the witness whose competency is challenged. See Wigmore on Evidence (1979 ed. and 1996 supplement) Section 507. In addition to this salutary rule of evidence, when competency is the ruling of a state court and the question is raised on habeas, federal law provides that the written opinion of the state court “shall be presumed to be *1174 correct” unless the record of the state court proceeding “in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter,” and the federal court “on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.” 28 U.S.C. § 2254 (d).

The Supreme Court of Montana in a written opinion upheld the competency determination of the trial court after that determination was challenged by Walters on direct appeal on the ground of violation of state law and on the ground of violation of the Sixth and Fourteenth Amendments. Consequently, the presumption established by § 2254(d) applies unless the federal court reaches the conclusion that the factual determination of the state court judge is not fairly supported by the record.

Competency can be viewed as a matter of fact or a matter of law. In either case the witness must be competent at the time of testifying not at some later time. K.C.’s competency is to be examined at the time she made the video, not at the conclusion of a hearing in which she was coached by both the psychologist Hossack and by the trial judge as to what truth-telling is.

As a matter of fact, K.C demonstrated her incompetence to have been a witness at the time she made the video. As she tells the court at the competency hearing, she does not know what a lie is, she does not know what it is to tell the truth, she does not know the consequences of not telling the truth. She demonstrates her incapacity by saying it’s night when it is day. She demonstrates her incapacity by indicating that she does not tell lies and by declaring that she has never spilled milk, juice or cookies. She demonstrates her incapacity by declaring that God sometimes wants you to tell lies.

The helpful psychologist confirms her incapacity by reporting that K.C. fantasizes about monsters in her bed and that K.C. would say day was night “because the authority figure said so.” The imagining of monsters in her bed and her liability to manipulation by authority are both highly relevant to her capacity to tell the truth about the assault charged in this case. In Hos-sack’s opinion, K.C. “doesn’t talk the truth very straight” or in some cases, at all. K.C. “is perfectly willing to let grown ups make the rules.”

Near the conclusion of the voir dire the trial judge exclaims, “That is getting to the point where she knows the difference between what is true and what is false. Yes, I think that is sufficient.” The judge and Hos-sack have brought K.C. to this point. They have educated her to give the responses they seek. She is now playing by their rules. The raw, uneducated answers she first gave — she whom no one had ever instructed in truth telling — show her to have been incompetent in fact when she was examined on the videotape. The record of this proceeding does not fairly support the determination of the trial judge if competency is a matter of fact. If competency is a matter of law, a fortiori K.C. fails to quality. She did not know what it was to tell the truth. As the trial judge’s own spontaneous comments reflect, she was incapacitated by lack of a conscience requiring her to tell the truth. Nothing in the record of this proceeding supports the conclusion that she did know how to tell the truth at the time she made the video. As a matter of fact and as a matter of law she was not competent to be a witness.

Because she did not know what truth-telling is she was not a witness within the meaning of the Sixth Amendment. She could not be subjected to cross-examination within the meaning of the Sixth Amendment. The purpose of cross-examination is not only to test the accuracy of perception and the memory of the witness but to probe the witness’s conscience, to discover whether in the story the witness is telling the witness is acting in accordance with the instruction of conscience to tell the truth. A witness who does not know what the truth is cannot be put to cross-examination.

It is acknowledged by the parties and by this court that the case is unprecedented. The absence of precedent does not mean that we should decide the case in favor of the *1175 prosecution. When the unprecedented event occurs that a child is presented as a major witness in a felony prosecution, and the record made by the trial court shows that she does not know what truth-telling is, we have the duty to determine whether the federal constitutional rights of the defendant have been violated. They have. He has been denied the right to confront the witness against him and to cross-examine.

The error cannot be considered harmless. As the prosecutor said in arguing for the admission of the video tape: “Not having the child be there affects the entire outcome of the trial.” Moreover, the admissibility of the hearsay repeating the accusations of thé trial would also be in doubt. Idaho v. Wright, 497 U.S. 805 , 110 S.Ct. 8139 , 111 L.Ed.2d 638 (1990). If K.C. did not testify herself, her accusation against Ron Walters could come in only an exception to the hearsay rule; and it could constitutionally have been admitted only if the totality of the circumstances surrounding the making of the statement made K.C. “particularly worthy of belief.” Id. at 806 , 110 S.Ct. at 3142 . This question was not reached at trial because K.C. was permitted to testify on the tape. In any retrial, where K.C. was excluded as incompetent, a serious question would be presented as to whether the hearsay would qualify as admissable evidence. Without the unfair and unconstitutional use of KC.’s testimony, the prosecution would have had a difficult time proving its case.

The second question presented by Ron Walters’ petition for habeas is whether he was denied his confrontation rights by exclusion of evidence pointing to Cindy’s father as the probable perpetrator of whatever sexual assault had been inflicted on K.C. The opinion in this case takes the position that the evidence as to Cindy’s father would have been irrelevant because of the pediatrician’s testimony that the injury to K.C. had taken place a few hours earlier on the evening she was seen by the pediatrician. There was almost no physical evidence: no semen anywhere, no bruises or scratches on any part of K.C., no breaking or stretching of her hymen. To reach a conclusion of guilt it must be supposed that the jury would have believed the pediatrician’s positive testimony that the only cause of the fugitive reddening of the inner genitalia of K.C. could have been a sexual intrusion. The defense did not offer an alternative hypothesis from a medical expert. The defense did ask the jurors to use their common sense in deciding whether the pediatrician could really be so certain as to the single cause. Her certainty, she herself acknowledged, came in part, from reliance on what Cindy had just told her: that K.C. had just suffered a sexual assault. If the jury had been presented with the evidence the defense sought to introduce as to Cindy’s father, it can well be supposed that the jury would not have taken the pediatrician’s opinion as dispositive.

What the defense sought to offer was Cindy’s own statement to the psychologist Hos-sack that she had been sexually abused by her own father. As the defense later discovered and introduced in a motion for a new trial, when Cindy was fifteen she was the complaining witness against her father alleging that he had raped her. According to what she told Hossack, she recanted on the witness stand due to family pressure. According to the later court records discovered and introduced in the new trial motion, Cindy was then indicted for having filed a false accusation. The defense sought to introduce evidence that despite Cindy’s account of sexual abuse by her father, she had on occasion left K.C. in her father’s care. The evidence the defense would have introduced would have shown the likelihood of Cindy’s father having at some point molested K.C., while nothing in Ron Walters’ blameless past indicated that he was capable of such an act. The defense theory — a perfectly good theory if the jury failed to believe the opinion of the pediatrician — was that K.C. on the night in question had recalled abuse by her maternal grandfather and been steered by Cindy to make the accusation instead against the man she called grandpa. The remarkable interest of Cindy’s father in the case did emerge, to a degree, at the trial. Cindy stopped at her sister’s before taking the child to the hospital. From there she called her own parents and talked to both of them. Her father agreed to meet her at the hospital.

*1176 The circumstances under which the alleged crimes occurred bear repeating, as well as the circumstances of K.C.’s life that suggest an unstable environment, shifting loyalties, and uncertain family affections. At the age of sixteen, one year after her abortive complaint of rape against her own father, Cindy had K.C. out of wedlock. At some other point in her teenage years Cindy had another child by another man. Rodney Walters, variously identified as an ex-husband and as boyfriend, left her to go into the Navy but eventually had come back to Montana and was living with her and K.C. The whereabouts of the other infant are not clear. At 6:00 o’clock on the evening of December 28, 1988 Rodney and Cindy went over to the home of Rodney’s parents, the Walters, to do some laundry. Only Rodney Walters’ mother, Ruth, was home. At about 9:00 o’clock Ruth gave the young couple enough money to go to the movies and, although she was tired and not feeling well and had to get up early for work the next morning, agreed to babysit K.C. while they were out. She knew from experience that K.C. was “a handful”, difficult to calm down and difficult to get to sleep and sometimes likely to remove her underwear under her nightgown. At about 10:00 o’clock her husband Ron, the defendant in this ease, came home. He had been talking business with a friend and had had two or three beers. His wife asked him to babysit K.C. as she wanted to go to bed. He agreed. She retired to her bedroom where she slept alone because he snored. She did not, however, go to sleep but heard the TV going and got up once and observed her husband and K.C. in the living room. Nothing was amiss. At some point during the evening her husband took off his boots but then put them back on to go out and check some things in his truck. He remained fully dressed. Around 11:00 the television went off and Ruth may have dozed. At 11:30 she again checked on K.C. She looked in her husband’s room. The door was wide open. She saw figures on the bed and assumed that K.C. had climbed in to go to sleep with Ron, as she sometimes did with adults. She again checked a little before 12:00 and found nothing unusual. Rodney and Cindy came home shortly after midnight. Rodney entered the bathroom and Cindy, according to her testimony, encountered K.C. in the corridor and heard the accusation against grandpa Ron. At no time did the state make precise at what time the alleged crimes occurred or attempt to explain why Ron Walters was fully dressed or identify the time that would have been safe for him to carry out the unusual crimes of opportunity with which he was charged. When confronted by his son, to whom K.C.’s accusation had been repeated, Ron Walters said: ‘What kind of a monster do you think I am?” Grammatically he asked a question; in substance, he denied the accusation.

If Ron Walters had been accorded the rights guaranteed by the Constitution of the United States to present the evidence supporting his theory of the ease and the rights guaranteed by the same Constitution to confront and cross-examine the witnesses against him, a Montana jury would have had a fair chance of determining the denial — in which he has persisted in prison although it prevents his eligibility for a program leading to parole — was truthful. As the trial was conducted, his constitutional rights were denied and the fairness disappeared.