Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 30, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 120515
TERRY LYNN KATT,
Defendant-Appellant.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
The issue in this case is whether the trial court
properly admitted under MRE 803(24) the victim's hearsay
statement made to a social worker that defendant sexually
abused her. The statement did not qualify for admission under
MRE 803A, the tender-years rule.
We conclude that the trial court properly admitted the
statement. MRE 803(24) permits the admission of hearsay
statements that narrowly miss the categorical exceptions of
MRE 803, but satisfy the requirements of MRE 803(24), under
circumstances such as those present in this case.
Accordingly, we affirm the judgment of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted defendant of three counts of first
degree criminal sexual conduct, sexual penetration of a victim
under thirteen years of age (CSC I). MCL 750.520b(1)(a). The
Court of Appeals affirmed the convictions.
A. THE TRIAL COURT
In the trial court, the prosecution charged defendant
with the sexual assaults of a seven-year-old boy (DD) and his
five-year-old sister (AD) in the autumn of 1998. Defendant
lived in a home with the children, their mother, her
ex-husband, and another individual.
Before trial, the prosecutor moved to admit the testimony
of Angela Bowman, a child-protective-services specialist with
the Family Independence Agency (FIA). During the hearing,
Bowman testified that she had visited DD at his elementary
school after the FIA received an anonymous report that the
children's mother was physically abusing them.
In the course of their conversation, Bowman asked DD to
name the members of his household. He named defendant as a
relative and spontaneously told Bowman that defendant was
doing "nasty stuff" to him.
Bowman further testified that, when she asked DD what he
2
meant by nasty stuff, he was initially guarded, but, then,
made the following statement:
[Defendant] would come into his room, which
[DD] shared with his sister [AD] and dis--totally
-
disrobed, and take off his clothes, which would be
a shirt, an underwear--some underwear or pajamas
-
bottoms, if he were wearing them, and get on top of
[DD]. And I ask--I asked him to describe now--at
- -
the time, because I wasn't prepared for this
interview, I didn't have any anatomically correct
dolls or anything, so I ask him to show--to
-
demonstrate to the best of his ability what he was
describing.
Bowman related the details of this and numerous other specific
instances of defendant's abuse as DD had revealed them to her.
The prosecution conceded that DD's statement to Bowman
was not admissible under the tender-years exception to the
hearsay rule, MRE 803A, because it was his second statement
about the abuse. Defendant argued that MRE 803A "covers the
field," meaning that, if a statement falls in the category of
a tender-years statement and is inadmissible under MRE 803A,
it cannot be admitted under MRE 803(24).
The trial court rejected defendant's argument and
admitted the evidence under MRE 803(24). In ruling that DD's
statements satisfied the requirements of MRE 803(24), the
court stated:
[I]n the Court's opinion there are several
indicia of trustworthiness in the statements given
by [DD] to Miss Bowman. First is the spontaneity
of [DD's] first statements to Miss Bowman.
Recall--The Court's [sic] heard the testimony, that
-
Miss Bowman was not there to talk about sexual
abuse, she was there to talk about physical abuse.
3
I would also note that as far as this Court's
record is concerned [DD and AD's mother] did not
know that her child was going to be interviewed on
October 27. Accordingly, there doesn't appear to
be anything on the record here which would
establish that somehow [DD] was prepped by somebody
to mouth sentences to Miss Bowman that were not
true. Miss Bowman first inquired of [DD] about
physical abuse. Then, [DD,] and in this Court's
opinion this is important, not in response to any
questioning by Miss Bowman regarding sexual abuse,
spontaneously spoke about abuse--sexual abuse by
-
the defendant. It's clear that [DD] spoke from his
personal knowledge. And, as her duty as a
protective service worker, Miss Bowman inquired
further. Now, Miss Bowman's qualifications to
interview children were obvious from the record.
She is aware of how to . . . interview children.
She testified that she avoided leading questions
and avoided other pitfalls of questioning young
children. And the Court finds that she was totally
aware how to get truthful information from [DD].
The Court finds that the record and the dynamics of
this exchange between Miss Bowman and [DD] provided
a form [sic] that an accurate statement would be
uttered by [DD]. The Court finds no plan of
falsification by [DD] under the circumstances in
the record that I have before me, and no--and I do
-
find a lack of motive to fabricate on the child's
part. The Court also notes that Miss Bowman
testified, and I believe her testimony, she had no
preconceived notion that anything of a sexual
nature occurred when she walked into the room on
October 27, [19]97. Indeed, as I've stated before,
she was there to talk about physical abuse.
* * *
Accordingly, the Court finds--from the
-
totality of the circumstances here, I find the
required trustworthiness guarantees that [MRE]
803(24) requires.
B. THE COURT OF APPEALS
On appeal, defendant again contended that DD's statement
to Bowman was not admissible under MRE 803(24). He urged that
4
the Court adopt what has been dubbed the "near-miss" theory,
which "maintains that a hearsay statement that is close to,
but that does not fit precisely into, a recognized hearsay
exception is not admissible under [the residual hearsay
exception.]" United States v Deeb, 13 F3d 1532, 1536 (CA 11,
1994).
The Court of Appeals rejected the near miss-theory and
defendant's narrow interpretation of MRE 803(24) and, instead,
adopted the approach taken by the United States Court of
Appeals for the Eighth Circuit in United States v Earles, 113
F3d 796 (CA 8, 1997):
The meaning of the catch-all's "specifically
covered" language has caused considerable debate.
See, e.g., McKethan v United States, 439 US 936; 99
S Ct 333; 58 L Ed 2d 333 (1978) (Justices Stewart
and Marshall dissenting from the Court's denial of
writs of certiorari and contending that the Court
should resolve the circuit split on this issue[.]).
However, the majority of circuit courts have held
that the phrase "specifically covered" means only
that if a statement is admissible under one of the
prior exceptions, such prior subsection should be
relied upon instead of [the residual hearsay
exception]. If, on the other hand, the statement
is inadmissible under the other exceptions, these
courts allow the testimony to be considered for
admission under [the residual hearsay exception].
[248 Mich App 282, 292; 639 NW2d 815 (2001),
quoting Earles, supra at 800 (emphasis in 248 Mich
App 292).]
Defendant next argued that DD's statement did not meet
two of the requirements of MRE 803(24). Specifically, (1) the
evidence did not possess "equivalent circumstantial guarantees
of trustworthiness" and (2) it was not more probative than
5
DD's first statement about the abuse, which was made to his
mother before the Bowman interview.
The Court of Appeals rejected the first challenge,
stating that it agreed with the trial court's "thorough and
well-reasoned assessment that DD's statement implicating
defendant in these crimes contained ample 'circumstantial
guarantees of trustworthiness' as required by MRE 803(24)."
248 Mich App 297. Regarding DD's statements to his mother,
the panel found that
there is no indication in the record that either DD
or AD recounted the circumstances of the assaults
with the same detail. Nor is there any indication
that their alleged statements to their mother
contained particularized guarantees of
trustworthiness similar to those regarding the
statement given to Bowman. Indeed, when defense
counsel inquired of the mother during trial
regarding her knowledge of the alleged sexual
abuse, she indicated only that AD had told the
children's uncle about the abuse, who in turn told
the mother . . . ." [Id. at 299-300.]
Accordingly, the Court of Appeals affirmed the trial court's
admission of the evidence.
II. STANDARD OF REVIEW
The decision whether to admit evidence is within a trial
court's discretion. This Court reverses it only where there
has been an abuse of discretion. People v Lukity, 460 Mich
484, 488; 596 NW2d 607 (1999). However, the decision
frequently involves a preliminary question of law, such as
whether a rule of evidence or statute precludes the admission
6
of the evidence. We review questions of law de novo. Id.;
People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
Therefore, when such preliminary questions are at issue, we
will find an abuse of discretion when a trial court admits
evidence that is inadmissible as a matter of law. Id.
III. ANALYSIS
The Michigan Rules of Evidence contain two residual
exceptions: MRE 803(24) and MRE 804(b)(7). MRE 803(24), the
exception at issue here, provides:
(24) Other Exceptions. A statement not
specifically covered by any of the foregoing
exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court
determines that (A) the statement is offered as
evidence of a material fact, (B) the statement is
more probative on the point for which it is offered
than any other evidence that the proponent can
procure through reasonable efforts, and (C) the
general purposes of these rules and the interests
of justice will best be served by admission of the
statement into evidence. However, a statement may
not be admitted under this exception unless the
proponent of the statement makes known to the
adverse party, sufficiently in advance of the trial
or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's
intention to offer the statement and the
particulars of it, including the name and address
of the declarant.
Thus, evidence offered under MRE 803(24) must satisfy
four elements to be admissible: (1) it must have
circumstantial guarantees of trustworthiness equal to the
categorical exceptions, (2) it must tend to establish a
material fact, (3) it must be the most probative evidence on
7
that fact that the offering party could produce through
reasonable efforts, and (4) its admission must serve the
interests of justice. Also, the offering party must give
advance notice of intent to introduce the evidence.
MRE 803(24) is nearly identical to FRE 807.1 "The
Michigan Rules of Evidence were based on the Federal Rules of
Evidence." People v Kreiner, 415 Mich 372, 378; 329 NW2d 716
(1982). As a result, Michigan courts have referred to federal
cases interpreting rules of evidence when there is a dearth of
related Michigan case law. See, e.g., People v VanderVliet,
444 Mich 52, 60 n 7; 508 NW2d 114 (1993); People v Welch, 226
Mich App 461, 466; 574 NW2d 682 (1997).
1
FRE 803(24) contained one of the Federal Rules' residual
exceptions until 1997. At that time, FRE 803(24) was combined
with FRE 804(b)(5) and moved to FRE 807. FRE 807 provides:
A statement not specifically covered by Rule
803 or 804 but having equivalent circumstantial
guarantees of trustworthiness, is not excluded by
the hearsay rule, if the court determines that (A)
the statement is offered as evidence of a material
fact; (B) the statement is more probative on the
point for which it is offered than any other
evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best
be served by admission of the statement into
evidence. However, a statement may not be admitted
under this exception unless the proponent of it
makes known to the adverse party sufficiently in
advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to
meet it, the proponent's intention to offer the
statement and the particulars of it, including the
name and address of the declarant.
8
Given that Michigan did not adopt residual exceptions to
its rules of evidence until 1996, there is little case law
interpreting them. Before this case, no Michigan court had
considered whether evidence that is similar to a categorical
hearsay exception could still be admitted under one of the
residual exceptions. Therefore, it is appropriate to consider
the federal courts' discussions of the issue.
A. THE RESIDUAL EXCEPTIONS AND THEIR APPLICATION
IN "NEAR MISS" SITUATIONS
The residual exceptions are designed to be used as
safety valves in the hearsay rules. They will allow evidence
to be admitted that is not "specifically covered" by any of
the categorical hearsay exceptions under circumstances
dictated by the rules. Differing interpretations of the words
"specifically covered" have sparked the current debate over
the admissibility of evidence that is factually similar to a
categorical hearsay exception, but not admissible under it.2
1. THE NEAR-MISS THEORY
"The Near Miss theory . . . states that a piece of
hearsay evidence may be offered only under the exception that
most nearly describes it. If it is excluded under that
exception, it may not be offered under the residual
2
There is no doubt, of course, that statements completely
alien to any of the categorical exceptions may be candidates
for admission under the residual exceptions.
9
exceptions." In re Japanese Electronic Products Antitrust
Litigation, 723 F2d 238, 302 (CA 3, 1983), rev’d on other
grounds Matsushita Electric Industrial Co, Ltd v Zenith Radio
Corp, 475 US 574, 580; 106 S Ct 1348; 89 L Ed 2d 538 (1986).
Judge Easterbrook gave a concise statement of the rationale
behind the near-miss theory in his concurring opinion in
United States v Dent, 984 F2d 1453, 1465-1466 (CA 7, 1993):
[The residual exception] reads more naturally
if we understand the introductory clause to mean
that evidence of a kind specifically addressed
("covered") by one of the [categorical exceptions]
must satisfy the conditions laid down for its
admission, and that other kinds of evidence not
covered (because the drafters could not be
exhaustive) are admissible if the evidence is
approximately as reliable as evidence that would be
admissible under the [categorical exceptions].
The United States District Court for the Eastern District
of Pennsylvania described another basis for the theory in
Zenith Radio Corp v Matsushita Electric Industrial Co, Ltd,
505 F Supp 1190 (ED Penn, 1980):
The [near-miss theory] is also supported by a
basic principle of statutory construction, which we
find equally applicable to the Federal Rules of
Evidence: that the specific controls the general.
As the Supreme Court stated in Radzanower v Touche
Ross & Co, 426 US 148, 153, 48 L Ed 2d 540, 96 S Ct
1989 (1976):
"It is a basic principle of statutory
construction that a statute dealing with a narrow,
precise, and specific subject is not submerged by a
later enacted statute covering a more generalized
spectrum. 'Where there is no clear intention
otherwise, a specific statute will not be
controlled or nullified by a general one,
regardless of the priority of enactment.' Morton v
10
Mancari, 417 US 535, 550-551 (1974)." [Citations
omitted.]
In conformity with this rule we conclude that
the residual exceptions cannot be invoked when
there is a specific exception which sets forth
conditions governing the admissibility of a clearly
defined category of hearsay evidence. [Zenith,
supra at 1263 n 91 (discussing former FRE 803[24]
before the adoption of FRE 807).]
Thus, the near-miss theory is based on a broad reading of
the term "specifically covered." Evidence is "specifically
covered" if there is a categorical hearsay exception dealing
with the same subject matter or type of evidence.
Accordingly, under the near-miss theory, a party could never
use a residual exception to admit evidence that was
inadmissible under, but related to, a categorical exception.
For example, a strict application of this theory would
preclude admission of a business document unless it met the
requirements of MRE 803(6). The residual exception would not
be available for it under any circumstances.
Although the near-miss theory would simplify the
resolution of disputes regarding the admission of hearsay, few
courts in the nation have adopted it. Those that have done so
have softened the rule.3 Even the Zenith court declined to
3
See United States v Mejia-Valez, 855 F Supp 607, 617-618
(ED NY, 1994)(holding that defendant could not use the
residual exception to admit hearsay statements from an
available declarant when the covered exception required
unavailability); In re Fill, 68 BR 923, 931 (SD NY,
1987)(holding that "highly unusual case[s]" may be exempted
from the near-miss theory).
11
hold that the residual exception could never be used to admit
evidence that fell within a categorical exception, but was
inadmissible under it:
Some of the . . . specific hearsay exceptions
similarly apply to a clearly defined category of
evidence, and we would follow the "near miss"
doctrine with respect to them . . . if the evidence
before us were within those categories. E.g., Rule
803(18) (learned treatises); Rule 803(22) (judgment
of previous conviction.)
However, most of the hearsay exceptions which
plaintiffs invoke are not of this type. They do
not apply to a clearly defined category of
evidence, as the former testimony exception does.
Instead, they apply to a relatively amorphous
category of evidence which is delimited solely by
the requirements set forth in the rule itself. For
instance, the business records exception applies to
any "memorandum, report, record, or data
compilation, in any form" which satisfies certain
additional requirements. . . . We do not see how
the "near miss" doctrine which defendants urge
could practically be applied to those rules,
without negating the residual exceptions
altogether, a result which is plainly contrary to
the intent of Congress. [Id. at 1264 (emphasis
added), accord Acme Printing Ink Co v Menard, Inc,
812 F Supp 1498, 1527 (ED Wis, 1992).]
2. REJECTING THE NEAR-MISS THEORY
The great majority of courts have rejected the near-miss
theory by interpreting the residual exception to omit as
"specifically covered" only those hearsay statements
admissible under a categorical exception. A statement not
admissible under the categorical exceptions would not be
"specifically covered" by those exceptions, and thus could be
a candidate for admissibility under the residual exceptions.
12
In United States v Clarke,4 the United States Court of
Appeals for the Fourth Circuit explained the rationale for
rejecting the near-miss theory.
Appellant asks us to construe "not
specifically covered" narrowly, limiting [the
residual exceptions] to cases in no way touched by
one of the [categorical] exceptions. According to
appellant, admitting testimony that was a "near
miss" under 804(B)(1) would undermine the
protections of the evidentiary rules, as well as
violate the Sixth Amendment's Confrontation Clause.
We disagree. Appellant's view of "not
specifically covered" would effectively render [the
residual exception] a nullity. The plain meaning,
and the purpose, of [the residual exception] do not
permit such a narrow reading. We believe that
"specifically covered" means exactly what it says:
if a statement does not meet all of the
requirements for admissibility under one of the
prior exceptions, then it is not "specifically
covered." United States v. Fernandez, 892 F2d 976,
981 (11th Cir. 1989). This reading is consistent
with the purposes of [the residual exception].
That rule rejects formal categories in favor of a
functional inquiry into trustworthiness, thus
permitting the admission of statements that fail
the strict requirements of the prior exceptions,
but are nonetheless shown to be reliable. If we
were to adopt appellant's reading of the rule, we
would deprive the jury of probative evidence
relevant to the jury's truth-seeking role.
* * *
To adopt the "near miss" theory would create
an odd situation where testimony that was equally
trustworthy would be distinguishable based merely
on its proximity to a specified exception. For
instance, in United States v Ellis, 951 F.2d 580
(4th Cir. 1991), this circuit approved the
admission of the statement made by a later-deceased
witness pursuant to a plea agreement under
4
2 F3d 81 (CA 4, 1993).
13
804(b)(5), even though that statement was very
different from any of the specified exceptions.
Given our holding in Ellis, it would contradict
common sense to exclude equally reliable testimony
here simply because it fell closer to one of the
specified exceptions. We thus reject the "near
miss" theory of interpreting Fed. R. Evid. 803(24)
and 804(b)(5). [Clarke, 2 F3d 83-84 (emphasis
added) (discussing the former residual exceptions
before the adoption of FRE 807).]
The United States Court of Appeals for the Sixth Circuit
followed suit in United States v Laster,5 stating:
Although some courts have held that if
proffered evidence fails to meet the requirements
of the Fed. R. Evid. 803 hearsay exception, it
cannot qualify for admission under the residual
exception, the court declines to adopt this narrow
interpretation of Fed. R. Evid. 807 as suggested by
defendants. Rather, this court interprets Fed. R.
Evid. 807, along with the majority of circuits, to
mean that "if a statement is admissible under one
of the hearsay exceptions, that exception should be
relied on instead of the residual exception." 5
Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence § 807.03(4) (2d ed. 2000). We
endorse the reasoning in United States v Earles,
113 F3d 796 (8th Cir, 1997), which held that "the
phrase 'specifically covered' [by a hearsay
exception] means only that if a statement is
admissible under one of the [residual] exceptions,
such [] subsection should be relied upon" instead
of the residual exception. Id. at 800 (emphasis in
original). Therefore, the analysis of a hearsay
statement should not end when a statement fails to
qualify as a prior inconsistent statement, but
should be evaluated under the residual hearsay
exception. [Laster, 258 F3d 530.]
In this case, the Court of Appeals followed the weight of
the authority and rejected the near-miss theory. Because we
agree that the language of the rule does not support the near
5
258 F3d 525 (CA 6, 2001).
14
miss theory, we affirm the judgment of the Court of Appeals.
3. OUR APPROACH TO THE RESIDUAL EXCEPTION
We agree with the majority of the federal courts and
conclude that a hearsay statement is “specifically covered” by
another exception for purposes of MRE 803(24) only when it is
admissible under that exception. Therefore, we decline to
adopt the near-miss theory as part of our method for
determining when hearsay statements may be admissible under
MRE 803(24).
In our view, the arguments in favor of the near-miss
theory are unpersuasive and do not conform to the language of
the rule. Random House Webster’s College Dictionary (1995)
defines "cover" as "8. to deal with or provide for; address:
The rules cover working conditions." (Emphasis in original.)
Therefore, a rule concerning the same subject matter as a
piece of evidence, or from a similar source, arguably could be
said to "cover" that evidence.
If the rule applied to all evidence not "covered" by
other exceptions, the near-miss theory would be more
persuasive.6 However, the rule modifies the term "covered"
6
We do not hold, however, that similarity in subject
matter or scope leads to the conclusion that a particular
exception "covers" evidence; we simply note that the near-miss
theory would be more persuasive if the residual exception used
the term "covered" alone rather than "specifically covered."
In fact, we note that at least one commentator has stated that
a statement is not "covered" by an exception if it is not
admissible under that exception:
15
with the adjective "specifically." Hence, more than simple
"coverage" is required. Black's Law Dictionary (7th ed)
defines "specific" as "1. Of, relating to, or designating a
particular or defined thing; explicit . . . . 2. Of or
relating to a particular named thing . . . . 3. Conformable to
specific requirements . . . ." (Emphasis added.)
Reading the words "specifically covered" together and
giving each its normally understood meaning, we conclude that
to be "specifically covered" requires more than to be
"covered." Since "specific" can mean "conformable to specific
Judge Easterbrook's literalism, while
ingenious, assumes both an unconvincing clarity and
a peculiar meaning of "covered."156 His complaint
that the authors of the rule did not use the term
"admissible" ignores the fact that hearsay
exceptions do not make evidence admissible. It may
be inadmissible under other rules (such as
relevancy rules), acts of Congress, or the
Constitution.
____________________________________________________________
156
The Webster's dictionary lists 23 meanings
of the term "cover," including "to have width or
scope enough to include or embrace." Webster's
Third New International Dictionary, 524 (1986). It
does not mean "is somewhat similar to," which seems
to be the meaning ascribed by Judge Easterbrook to
the rule's "specifically covered" language.
____________________________________________________________________________________________________
[Robinson, From Fat Tony and Matty the Horse to the sad case
of A.T.: Defensive and offensive use of hearsay evidence in
criminal cases, 32 Hous L R 895, 917 (1995).]
Moreover, although not deciding the meaning of "covered"
in the rule, we note that "specifically covered" must mean
more than "covered," no matter what meaning is given to the
latter term.
16
requirements" and "cover" can mean "addressing" or "dealing
with," we understand that a statement is only "specifically
covered" by a categorical exception when it is conformable to
all the requirements of that categorical exception.7 To hold
otherwise would read "specifically" out of the rule.8
7
The dissent notes that the drafters of the rule used
the phrase "specifically covered" rather than "specifically
admissible." In our view, this terminology merely reflects
that a statement satisfying all requirements of a categorical
exception and, thus, admissible under that exception may still
be inadmissible for other reasons. For example, a statement
that would be admissible under the excited-utterance exception
may nonetheless be inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice.
See MRE 403. This is why MRE 803 begins, "The following are
not excluded by the hearsay rule," rather than, "The following
are admissible. (Emphasis added.) See also n 6. Notably, the
dissent does not provide an alternate construction of the
residual exception to support the near-miss theory, but relies
on the history surrounding the Congressional enactment of the
rules.
8
Accord Fenner, The residual exception to the hearsay
rule: The complete treatment, 33 Creighton L R 265, 274-275
(2000):
Specific is defined as “a: constituting or
falling into a specifiable category b: sharing or
being those properties of something that allow it
to be referred to a particular category.”
[Merriam-Webster's Collegiate Dictionary CD-ROM
(Zane Pub. Co. 1996).] "Specifically covered" by
one of those exceptions in 803 or 804, then, seems
to mean falling within one of those exceptions. It
does not seem to mean falling outside the
exception. No matter how close it came, a miss is
still a miss. This seems to be the plain meaning
of the rule, as written.
That is, each exception has certain
foundational elements, and if there is sufficient
evidence of each foundational element for any one
exception then the statement is "specifically
17
We also disagree with the Zenith court that interpreting
the residual exceptions in this manner will "nullify" the
categorical exceptions. Indeed, by their own language the
residual exceptions cannot apply to statements admissible
under the other exceptions. Moreover, the requirements of the
exceptions are stringent and will rarely be met, alleviating
concerns that the residual exceptions will "swallow" the
categorical exceptions through overuse.
We stress that this interpretation of the residual
exceptions does not subvert the purpose of the hearsay rules.
Each of the categorical exceptions requires a quantum of
trustworthiness and each reflects instances in which courts
have historically recognized that the required trustworthiness
is present.9 The residual exceptions require equivalent
covered" by the exception. It is specifically
covered by this exception whether it fits under any
other exception or not. And, if one of the
foundational elements is missing, then it is not
"specifically covered" by this exception—no matter
how close it comes. In fact, in this latter
situation, the statement is specifically not
covered by the barely missed exception.
9
The dissent and proponents of the near-miss theory treat
the recognized exceptions like hermetically sealed, insular
categories. However, many of the exceptions overlap. A
present-sense impression under MRE 803(1) could also be an
excited utterance under MRE 803(2). Does a statement that
"nearly missed" being a present-sense impression, but was
admitted as an excited utterance, undermine the hearsay rules?
No, because the statement still had equivalent guarantees of
trustworthiness.
Moreover, the overlap among the categorical exceptions
18
guarantees of trustworthiness. Thus, if a near-miss statement
is deficient in one or more requirements of a categorical
exception, those deficiencies must be made up by alternate
indicia of trustworthiness. To be admitted, residual hearsay
must reach the same quantum of reliability as categorical
hearsay; simply it must do so in different ways.10
Thus, we affirm that the residual exceptions may be used
to admit statements that are similar to, but not admissible
under, the categorical hearsay exceptions. Next, we turn our
attention to the requirements of the residual exceptions
themselves. We focus on MRE 803(24), the applicable exception
in this case.
The language of MRE 803(24) provides substantial guidance
in determining the proper method of analysis. As we noted
above, the rule contains four elements. To be admitted under
MRE 803(24), a hearsay statement must: (1) demonstrate
circumstantial guarantees of trustworthiness equivalent to the
further undermines the near-miss theory because one could
always argue that a statement is generally addressed by one of
the categorical exceptions. For example, under the near-miss
theory, nearly any explanation or description could be
"specifically covered" by the present-sense impression
exception.
10
We fail to understand why achieving equivalent
guarantees of trustworthiness through alternate means makes a
residual hearsay statement less reliable than a statement that
satisfies a categorical exception. The categorical exceptions
provide prescribed ways to assess hearsay; we do not accept
that they are the only ways in which that assessment can be
made.
19
categorical exceptions, (2) be relevant to a material fact,
(3) be the most probative evidence of that fact reasonably
available, and (4) serve the interests of justice by its
admission.
The first and most important requirement is that the
proffered statement have circumstantial guarantees of
trustworthiness equivalent to those of the categorical hearsay
exceptions. As the United States Court of Appeals for the
Fourth Circuit noted in Clarke, "the inquiry into
trustworthiness aligns with the inquiry demanded by the
Confrontation Clause, which requires courts to examine the
'totality of the circumstances that surround the making of the
statement' for 'particularized guarantees of
trustworthiness.'" Clarke, supra at 84. Thus, courts should
consider the "totality of the circumstances" surrounding each
statement to determine whether equivalent guarantees of
trustworthiness exist.
There is no complete list of factors that establish
whether a statement has equivalent guarantees of
trustworthiness.11 However, the Confrontation Clause forbids
11
In discussing the trustworthiness requirement, the
Federal Rules of Evidence Manual states:
There are certain standard factors all courts
consider in evaluating the trustworthiness of a
declarant's statement under the residual exception.
These include:
20
(1) The relationship between the declarant and
the person to whom the statement was made. For
example, a statement to a trusted confidante should
be considered more reliable than a statement to a
total stranger.
(2) The capacity of the declarant at the time
of the statement. For instance, if the declarant
[were] drunk or on drugs at the time, that would
cut against a finding of trustworthiness . . . .
(3) The personal truthfulness of the
declarant. If the declarant is an untruthful
person, this cuts against admissibility, while an
unimpeachable character for veracity cuts in favor
of admitting the statement. The government cannot
seriously argue that the trust due an isolated
statement should not be colored by compelling
evidence of the lack of credibility of its source:
although a checkout aisle tabloid might contain
unvarnished truth, even a devotee would do well to
view its claims with a measure of skepticism.
(4) Whether the declarant appeared to
carefully consider his statement.
(5) Whether the declarant recanted or
repudiated the statement after it was made.
(6) Whether the declarant has made other
statements that were either consistent or
inconsistent with the proffered statement.
(7) Whether the behavior of the declarant was
consistent with the content of the statement.
(8) Whether the declarant had personal
knowledge of the event or condition described.
(9) Whether the declarant's memory might have
been impaired due to the lapse of time between the
event and the statement.
(10) Whether the statement, as well as the
event described by the statement, is clear and
factual, or instead is vague and ambiguous.
21
the use of corroborative evidence to determine the
trustworthiness of statements offered under the residual
exception in criminal cases if the declarant does not testify
at trial. Idaho v Wright, 497 US 805, 823; 110 S Ct 3139; 111
L Ed 2d 638 (1990).12 Beyond this limitation, courts should
(11) Whether the statement was made under
formal circumstances or pursuant to formal duties,
such that the declarant would have been likely to
consider the accuracy of the statement when making
it.
(12) Whether the statement appears to have
been made in anticipation of litigation and is
favorable to the person who made or prepared the
statement.
(13) Whether the declarant was cross-examined
by one who had interests similar to those of the
party against whom the statement is offered.
(14) Whether the statement was given
voluntarily or instead pursuant to a grant of
immunity.
(15) Whether the declarant was a disinterested
bystander or rather an interested party. [Federal
Rules of Evidence Manual (Matthew Bender & Co Inc,
2002), § 807.02(4) (citations omitted).]
The list is not intended to be all-inclusive, but to
provide general guidelines.
12
If the declarant does testify at trial and is subject
to cross-examination, corroborative evidence may be used to
determine the trustworthiness of statements in criminal cases.
The reason is that the Confrontation Clause is not implicated.
United States v Owens, 484 US 554, 560; 108 S Ct 838; 98 L Ed
2d 951 (1988); United States v NB, 59 F3d 771 (CA 8, 1995).
Similarly, in civil cases, corroborative evidence is always
appropriate. Larez v Los Angeles, 946 F2d 630, 643 n 6 (CA 9,
1991).
22
consider all factors that add to or detract from the
statement's reliability.
The second requirement is self-explanatory. To be
admissible under the residual exceptions, the proffered
statements must be directly relevant to a material fact in the
case. A material fact is "[a] fact that is significant or
essential to the issue or matter at hand." Black's Law
Dictionary (7th ed).
The third requirement is that the proffered statement be
the most probative evidence reasonably available to prove its
point. It "essentially creates a 'best evidence'
requirement." Larez, supra at 644. This is a high bar and
will effectively limit use of the residual exception to
exceptional circumstances. For instance, nonhearsay evidence
on a material fact will nearly always have more probative
value than hearsay statements, because nonhearsay derives from
firsthand knowledge. Thus, the residual exception normally
will not be available if there is nonhearsay evidence on
point.
The final requirement is that admission of the proffered
statement conforms to the "rules [of evidence] and serve the
interests of justice." Accordingly, a court may refuse to
admit a statement into evidence, even though the first three
requirements of the exception have been met. This may occur if
the court determines that the purpose of the rules and the
23
interests of justice will not be well served by the
statement's admission.13
Finally, we note that the facts of each case determine
the answers to questions about the admissibility of evidence.
Here, the trial court did an exemplary job of making clear and
concise findings on the record. In order to facilitate review
in the future, we ask that courts faced with MRE 803(24)
questions of the type presented here make similarly explicit
supportive findings on the record.
B. THE LOWER COURTS CORRECTLY APPLIED
MRE 803(24) IN THIS CASE
We now turn to the facts of this case. In order to
invoke MRE 803(24), the proffered statement must "not [be]
specifically covered by any of the foregoing exceptions" of
MRE 803. MRE 803(24). As described above, we interpret
"specifically covered" to mean "admissible." Defendant does
not assert that DD's statement would be admissible under any
of the MRE 803 categorical exceptions. Therefore, the
statement is a proper candidate for admissibility under MRE
803(24).14
13
If a statement is otherwise admissible under the
residual exceptions, the interest-of-justice requirement will
not preclude its admission for the sole reason that it is
hearsay. If this were the case, the residual exceptions would
be rendered useless.
14
Because we interpret "specifically covered" by an
exception to mean admissible under that exception, we are not
24
With respect to the rule's requirements, there is no
dispute that the prosecution gave proper notice to defendant
of its intent to submit DD's hearsay statements under MRE
803(24). Moreover, it cannot be disputed that DD's statements
described the material facts of defendant's abusive acts.
The trial court made extensive findings on the record
regarding DD's statement to Ms. Bowman and detailed the manner
in which it satisfied each element of MRE 803(24). The court
particularly elaborated on its findings regarding the
trustworthiness of the statement, noting several times that
its spontaneity and the fact it was unanticipated made it
particularly reliable.
The trial court also noted that the timing of the
statement negated any motive to fabricate. No investigation
had begun when the statement was made, and no one knew that
Ms. Bowman was to interview DD that day. Additionally, DD
spoke from firsthand knowledge and in terms appropriate for a
child of his age. Under the "totality" of these
circumstances, the court concluded that the statement had
circumstantial guarantees of trustworthiness equivalent to any
troubled by the proximity of DD's statement to MRE 803A. The
statement is not admissible under 803A and is thus not
"specifically covered" by 803A. The fact that 803A, which
relates to the same subject matter as the proffered statement
in this case, is not a "foregoing" exception of MRE 803(24) is
thus irrelevant. None of the categorical hearsay exceptions
"specifically covers" DD's statement.
25
of the categorical exceptions.
The trial court next found that DD's statement was the
most probative evidence available concerning the actual abuse.
DD did not anticipate the interview, and Ms. Bowman did not
intentionally elicit incriminating information about someone
other than the mother. Ms. Bowman also possessed the training
to make a proper assessment of DD's credibility at the time.
Defendant argues before this Court that DD's first
corroborative statement, made to his mother, was more
probative than his statement to Ms. Bowman. However, the
record contains no information about what DD said to his
mother. All that is known is that both parties stipulated at
trial that DD's mother had asked him some questions about
defendant's abuse before DD spoke to Ms. Bowman.15 It is not
possible to compare the value of a statement of known content
with a statement of unknown content.
Moreover, the statement made to Ms. Bowman is more
probative than DD's testimony at trial for the same reasons
that underscore the tender-years rule. As time goes on, a
child's perceptions become more and more influenced by the
reactions of the adults with whom the child speaks. It is for
15
The prosecution also contends that DD's mother prompted
this statement by repeatedly asking questions and that
defendant discovered this fact at trial through cross
examination. As a result, the prosecution argues that DD's
first statement would not have been admissible under MRE 803A
in any event because the statement was not spontaneous.
26
that reason that the tender-years rule prefers a child's first
statement over later statements. By analogy, the child's
second statement is preferable to still later statements.
Similarly, if DD's mother had a motive to induce her son to
lie, she would have had much more opportunity to influence him
before trial than before the Bowman interview.16
In aggregate, the trial court found that these
circumstances justified the admission of DD's statement under
MRE 803(24). The spontaneity of the interview, lack of motive
to lie, and Ms. Bowman's interviewing methods combine to give
the statement circumstantial guarantees of trustworthiness
equivalent to the categorical exceptions. The unavailability
of DD's first statement, the timing of the interview, and Ms.
Bowman's careful conduct in eliciting information make this
statement the most probative evidence of defendant's abusive
acts. Having found that DD's statement met the first three
requirements of MRE 803(24), the court concluded that
admission would not endanger the interests of justice and
ruled the statement admissible.
We agree with the Court of Appeals and hold that (1) the
trial court properly analyzed DD's statement under MRE
803(24), and (2) there was sufficient evidence to support the
16
The prosecution also contests defendant's assertions
that DD's mother "coached" DD by noting that, after the Bowman
interview, DD's mother told Bowman she did not believe DD's
story.
27
trial court's findings. Consequently, we conclude that the
trial court did not abuse its discretion in admitting the
statement under MRE 803(24), even though the statement was not
admissible under MRE 803A.
IV. CONCLUSION
The trial court properly admitted DD's statement to Ms.
Bowman under MRE 803(24), although it did not qualify for
admission under MRE 803A. All the elements of MRE 803(24)
were satisfied. Accordingly, there was no abuse of discretion
and we affirm the decision of the Court of Appeals.
Marilyn Kelly
Maura D. Corrigan
Elizabeth A. Weaver
Stephen J. Markman
28
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 120515
TERRY LYNN KATT,
Defendant-Appellant.
YOUNG, J. (dissenting).
I disagree that evidence failing admissibility under one
of the enumerated exceptions can nevertheless be admitted
under the catch-all exception, MRE 803(24). Because the
majority concludes otherwise, I respectfully dissent. I fully
acknowledge that I advocate a minority position; however, I
believe that this position best comports with the text of the
residual hearsay exception as well as our time-honored
prohibition against the admission of hearsay evidence.
The rule against the admissibility of hearsay is a
venerable doctrine deeply rooted in our common law. The
principle has been called “a rule which may be esteemed, next
to jury trial, the greatest contribution of that eminently
practical legal system to the world’s methods of procedure.”1
Traditionally, witnesses were required to be present at
trial, be placed under oath, and be subject to cross
examination in order to testify. Under those circumstances,
a witness’s credibility, memory, perception, and narration
could be evaluated by the trier of fact. 2 McCormick,
Evidence (5th ed), Hearsay Rule, § 245, p 93. The rule
against hearsay is designed to maintain the integrity of
witness testimony.2
Over the years, a number of exceptions to the general
rule prohibiting the admission of hearsay have been developed.
Generally, the exceptions rest on the conclusion that the
circumstances of the making of particular statement provide
circumstantial guarantees of trustworthiness. These
guarantees are found because the circumstances surrounding the
1
5 Wigmore, Evidence (Chadbourn rev, 1974), § 1364, p
28. According to Wigmore, the prohibition against hearsay
became entrenched in the common law between 1675 and 1690. Id.
at 18.
2
“Hearsay testimony is from the very nature of it
attended with all such doubts and difficulties and it cannot
clear them up. ‘A person who relates a hearsay is not obliged
to enter into any particulars, to answer any questions, to
solve any difficulties, to reconcile any contradictions, to
explain any obscurities, to remove any ambiguities; he
entrenches himself in the simple assertion that he was told
so, and leaves the burden entirely on his dead or absent
author.’” McCormick, supra, quoting Coleman v Southwick, 9
Johns 45, 50 (NY, 1812).
2
making of the statement minimize or negate the hearsay
dangers, such as insincerity or failure of memory.
In this case, the hearsay testimony at issue is
specifically covered by MRE 803A, but cannot be admitted under
that exception because, as the state concedes, the evidence
was not the first corroborative statement regarding the
incident. Accordingly, under the plain language of MRE
803(24), the evidence is “specifically covered” by MRE 803A
and cannot be admitted under MRE 803(24).3
The approach advanced by the majority subverts our
historical prohibition against the admission of hearsay
evidence. In the majority view, evidence that is clearly
inadmissible under one of the enumerated hearsay exceptions
gets a second chance at admissibility under the residual
exception if, among other factors, “the interests of justice”,
MRE 803(24)(C), would be served by its admission. The
criterion, particularly when coupled with the deferential
3
MRE 803(24) provides:
Other Exceptions. A statement not
specifically covered by one of the foregoing
exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court
determines that (A) the statement is offered as
evidence of a material fact, (B) the statement is
more probative on the point for which it is offered
than any other evidence that the proponent can
procure through reasonable efforts, and (C) the
general purposes of these rules and the interests
of justice will best be served by admission of the
statement into evidence. [Emphasis added.]
3
abuse of discretion standard for appellate review,4
essentially renders the general prohibition against hearsay,
and the development of what hearsay is excepted and not
excepted, hollow and meaningless.5
Against the nearly four hundred-year-old historical
development of our hearsay rules, it is clear that the
drafters of the rules did not intend a wholesale trampling of
the enumerated hearsay exceptions when the federal residual
hearsay exceptions were enacted.6 The advisory committee
noted that the residual exceptions “do not contemplate an
unfettered exercise of judicial discretion, but they do
provide for treating new and presently unanticipated
situations which demonstrate a trustworthiness within the
spirit of the specifically stated exceptions.”7
In this case, DD’s statement to Angela Bowman was not a
4
We review a trial court’s decision to admit or exclude
evidence for an abuse of discretion. People v Starr, 457 Mich
490, 494; 577 NW2d 673 (1998); People v Bahoda, 448 Mich 261,
289; 531 NW2d 659 (1995).
5
“The residuals are a ‘Trojan Horse’ that has been set
upon the judiciary to wreak havoc and to emasculate the rule
against hearsay. Advocates for the exception, like the fated
inhabitants of ancient Troy, erroneously believed that the
exceptions could be adequately controlled by adding strict
requirements for admission.” Beaver, The residual hearsay
exception reconsidered, 20 Fla St U L R 787, 794-795 (1993).
6
Originally, the federal residual hearsay exceptions
were found at FRE 803(24) and FRE 804(b)(5). In 1997, the two
rules were combined and transferred to FRE 807.
7
Advisory committee note on FRE 803(24), 56 F R D 183,
320 (1973) (emphasis added).
4
“new and presently unanticipated situation.” In fact,
evidence of second and subsequent corroborative statements are
specifically contemplated and explicitly rejected by the clear
language of MRE 803(A)—“[i]f the declarant made more than one
corroborative statement about the incident, only the first is
admissible under this rule.” (Emphasis added.)
When construing a court rule, which includes a rule of
evidence, this Court applies the legal principles that govern
the construction of statutes. McAuley v Gen Motors Corp, 457
Mich 513, 518; 578 NW2d 282 (1998). Accordingly, we begin with
the plain language of the rule. When the language of the rule
is unambiguous, we enforce the meaning expressed, without
further judicial construction or interpretation. Tryc v
Michigan Veterans' Facility, 451 Mich 129, 135; 545 NW2d 642
(1996).
The majority treats the residual hearsay exception as if
it read “A statement not specifically admissible under any of
the foregoing exceptions”8 rather than “specifically covered.”
Clearly, the plain language of the rule does not support such
a reading.
8
See also United States v Dent, 984 F2d 1453, in which,
in his concurring opinion, Judge Easterbrook noted that United
States v Boulahanis, 677 F2d 586 (CA 7, 1982), treated the
residual exception as if it began “‘A statement not
specifically admissible under any of the foregoing exceptions
. . . ’. Evidence that flunks an express condition of a rule
can come in anyway.”
5
This Court made deliberate choices in deciding what
varieties of hearsay would be admissible and reflected those
choices in the words of the hearsay exceptions. The line
drawing efforts reflected in the enumerated hearsay exceptions
are rendered purposeless if hearsay that does not meet the
textual requirements of a specific hearsay exception is
alternatively admitted under the residual exception.9
I believe that the trial court erred in allowing the
hearsay testimony to be admitted into evidence. Furthermore,
I do not believe that the error was harmless. The testimony
of the children at trial was at times vague and inconsistent,
and the physical examination of the children was inconclusive.
While the alternative construction proffered by my
colleagues in the majority is a principled one, I believe my
construction best harmonizes with the actual text of the
evidentiary rule as well as our general and historical
prohibition against the admission of hearsay evidence. The
clear language of the residual hearsay exception precludes
admissibility where the evidence does not meet the specific
textual requirements of an enumerated hearsay exception.
I urge this Court to consider repealing MRE 803(24) and
MRE 804(b)(5).
9
See Jonakait, Text, texts, or ad hoc determinations:
Interpretation of the Federal Rules of Evidence, 71 Ind L J
551 (1996), who favors a textualist approach to the residual
hearsay exception.
6
Robert P. Young, Jr.
Michael F. Cavanagh
Clifford W. Taylor
7