concurring.
INTRODUCTION
I concur in the result reached by the majority; however, I do so based on different reasoning. With respect to the majority’s conclusion that the Barnett custodial statement of September 28, 1996, should be excluded because it does not fall within a firmly rooted hearsay exception, I agree. With respect to the majority’s analysis that the statement should be excluded as inadmissible hearsay because it lacks particularized guarantees of trustworthiness under the second prong of the test as articulated in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), I conclude that the Confrontation Clause, rather than the general rule against the admission of hearsay, requires the exclusion of the custodial statement as a constitutional, rather than an evidential, matter.
Under the Sixth Amendment to the U.S. Constitution, a defendant in a criminal prosecution has the right “to be confronted with the witnesses against him.” See, also, Neb. Const. art. I, § 11. The U.S. Supreme Court has directed that for “hearsay evidence [to be] admitted under the Confrontation Clause [it must] be so trustworthy that cross-examination of the declarant would be of marginal utility,” Idaho v. Wright, 497 U.S. 805, 823, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), and has further stated that the prohibitions of the Confrontation Clause do not “equate . . . with the general rule prohibiting the admission of hearsay statements,” 497 U.S. at 814. In this case, I conclude that the cross-examination of Barnett would be of greater than marginal utility and that adversarial testing would add to an assessment of the custodial statement’s reliability, and, therefore, the admission of the Barnett statement, which is hearsay, violated the Confrontation Clause. Such admission was not harmless in this case, particularly in light of the fact that Barnett’s statement tied the defendant to the crimes. I, therefore, concur in the result reached by the majority that the admission of the custodial statement was reversible error and that the cause should be remanded for a new trial.
*356ANALYSIS
Development of Roberts in Wright and Lilly.
As stated by the majority, the U.S. Supreme Court initially developed a two-part test for the admissibility of statements of unavailable witnesses in Roberts, supra. The Court held that when a hearsay declarant is not present for cross-examination at trial and it is determined that the declarant is unavailable, the Confrontation Clause allows admission of the declarant’s statement only if the statement is shown to bear adequate “ ‘indicia of reliability.’ ” Roberts, 448 U.S. at 66. Such reliability must be demonstrated by showing that (1) the statement falls within a “firmly rooted hearsay exception” or (2) if the statement does not fall within a firmly rooted hearsay exception, it contains “particularized guarantees of trustworthiness.” Id.
The two parts of the Roberts test were intended to be functional equivalents. The Court has stated:
In Roberts, we recognized that even if certain hearsay evidence does not fall within “a firmly rooted hearsay exception” and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a “showing of particularized guarantees of trustworthiness.” . . . However, we also emphasized that “ [reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ ”
(Citations omitted.) Lee v. Illinois, 476 U.S. 530, 543, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986) (quoting Roberts, supra). Evidence possessing “particularized guarantees of trustworthiness” must therefore be at least as reliable as evidence admitted under a firmly rooted hearsay exception. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). See, also, Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).
Under the Roberts test, the reliability, of evidence which falls within a firmly rooted hearsay exception “can be inferred with*357out more.” Roberts, 448 U.S. at 66. Statements within a firmly rooted hearsay exception are therefore admissible without an additional explicit Confrontation Clause analysis.
The U.S. Supreme Court developed the Roberts test in Wright, supra. The Court in Wright stated that “[b]ecause evidence possessing ‘particularized guarantees of trustworthiness’ must be at least as reliable as evidence admitted under a firmly rooted hearsay exception,” evidence admitted under the second part of the Roberts test must be “so trustworthy that adversarial testing would add little to its reliability.” 497 U.S. at 821. The Court in Wright further stated that “hearsay evidence admitted under the Confrontation Clause [must] be so trustworthy that cross-examination of the declarant would be of marginal utility.” 497 U.S. at 823. See, also, Wright, 497 U.S. at 820 (“declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility”).
The Court in Wright noted that the Confrontation Clause “bars admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” 497 U.S. at 814. However, the Court also recognized that “statements admitted under a ‘firmly rooted’ hearsay exception are so trustworthy that adversarial testing would add little to their reliability.” Wright, 497 U.S. at 821. Following the development of the Roberts test in Wright, it is clear that if a statement can be categorized as falling within a firmly rooted hearsay exception, it is admissible under the Confrontation Clause without further examination; if, however, a statement is not within a firmly rooted hearsay exception but does contain “particularized guarantees of trustworthiness,” such statement is nevertheless subject to further Confrontation Clause analysis as to whether the statement is so trustworthy that adversarial testing would add little to its reliability, and cross-examination would be of marginal utility.
In Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999), a case which involved a custodial statement, the U.S. Supreme Court’s plurality opinion states that the Court is adhering to the general framework for Confrontation Clause analysis of hearsay statements set forth in Roberts. However, the Lilly plurality opinion recites the second part of the Roberts test *358as requiring that to be admissible, the statement must contain “ ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.” (Emphasis supplied.) Lilly, 527 U.S. at 125. Although the text of Lilly refers to Roberts as the source of the foregoing statement, Roberts says only that the statement must have “particularized guarantees of trustworthiness.” 448 U.S. at 66. The remainder of the test as recited in Lilly is a paraphrase of the Wright development of the Roberts test.
Roberts Test as Developed by Wright and Lilly as Applied to Custodial Statement.
Synthesizing the cases recited above, I respectfully suggest that the test and method in practice for analyzing the admissibility of a custodial hearsay statement which inculpates a criminal defendant are not entirely clear. I believe that the two-part Roberts test has been developed by Wright and Lilly. Following Roberts, Wright, and Lilly, if a custodial statement falls within a firmly rooted hearsay exception, the statement continues to be admissible without further Confrontation Clause analysis. If, however, the custodial statement does not fall within a firmly rooted hearsay exception, I view the second part of the test, as a practical matter, as now requiring two inquiries: first, an evidential hearsay inquiry as to whether the custodial statement contains particularized guarantees of trustworthiness and, second, a constitutional inquiry driven by the Confrontation Clause as to whether the custodial statement is so trustworthy that adversarial testing would add little to its reliability, and cross-examination would be of marginal utility.
I believe that these two inquiries are separate and distinct. I do not believe that the second inquiry pertaining to adversarial testing and the utility of cross-examination is merely a descriptor of the conclusion reached as a result of the first inquiry pertaining to the examination for particularized guarantees of trustworthiness. I believe a constitutional inquiry is qualitatively different from other inquiries. Thus, I also do not view the constitutional inquiry as just another item of reliability to be evaluated equally along with other garden-variety indicia of reliability in reaching a conclusion as to whether a statement bears particularized guarantees of trustworthiness.
*359Following Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), and Lilly, supra, and notwithstanding the fact that the Court has not tied the inquiries together with the word “and,” I respectfully view the two inquiries of the second prong of the developed Roberts test as being conjunctive, and if a custodial statement fails either inquiry, its admission is barred. In particular, I would conclude that if, on an objective basis, adversarial testing would add to an assessment of the custodial statement’s reliability and cross-examination would be of greater than marginal utility, the custodial statement’s admission is barred as a constitutional matter under the Confrontation Clause, regardless of the outcome of the first inquiry under the second prong of the developed Roberts test.
Application of Developed Roberts Test to Instant Case.
In the instant case, I agree with the majority’s conclusion that the statement does not fall within a firmly rooted hearsay exception. Therefore, I am required to analyze the custodial statement under the second prong of the Roberts test as developed by Wright, supra, and Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999). Because, as discussed below, I conclude that adversarial testing would add to an assessment of the custodial statement’s reliability and that cross-examination would be of greater than marginal utility, I also conclude that the Confrontation Clause bars admission of the custodial statement, and I need not address the first inquiry under the second prong of the developed Roberts test by evaluating at length purported guarantees of trustworthiness.
The evidence in the instant case is such that there are numerous matters for which adversarial testing would be useful for assessing the custodial statement’s reliability, and cross-examination would be of more than marginal utility in the jury’s assessment of Barnett’s credibility. Among the matters which objectively ought to be the subject of cross-examination for Confrontation Clause purposes are (1) the nature of Barnett’s plea bargain and consequent exposure at sentencing; (2) Barnett’s motives to curry favor with the authorities and to exaggerate the defendant’s involvement in the crimes while minimizing his own role; (3) the nature of the relationship between *360Barnett and the defendant due to their separate sexual relationships with Barnett’s girl friend and Barnett’s possible motive to seek revenge against the defendant; (4) the nature, motive, and substance of the two statements Barnett gave to the authorities prior to giving the September 28, 1996, statement, which prior statements differed considerably from the statement at issue in this case; and (5) the nature, motive, and substance of several statements Barnett made to various persons recanting his involvement in the crimes after making the statement of September 28.
Each of the above matters would have made cross-examination of Barnett of more than marginal utility, and adversarial testing by cross-examination on these matters would have added significantly to the jury’s assessment of Barnett’s credibility and the reliability of Barnett’s custodial statement in which the defendant is inculpated. The defendant’s right of confrontation was particularly implicated in the instant case by the fact that Barnett’s custodial statement tied the defendant to the crimes, and it was, therefore, particularly vital that the defendant have the opportunity to subject such evidence to adversarial testing. Admission of the Barnett statement violated the defendant’s right to confrontation, and therefore, the admission of the Barnett custodial statement was reversible error, without regard to an assessment of the factors proffered by the State in its supplemental brief filed on July 27,1999, as evincing guarantees of trustworthiness, and the cause should be remanded for a new trial.
Relationship Between Hearsay and Confrontation Clause.
In reaching the foregoing conclusion, I am aware that jurists and scholars have expressed their unease with the jurisprudence surrounding the relationship between the rule against hearsay and the Confrontation Clause as it relates to the admissibility of out-of-court statements by unavailable declarants that inculpate the defendant. See, e.g., Lilly, supra (Breyer, J., concurring); White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992) (Thomas, J., concurring in part, and concurring in judgment; Scalia, J., joins); Akhil Reed Amar, Confrontation Clause First Principles: A Reply to Professor Friedman, 86 Geo. L.J. *3611045 (1998); Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, 76 Minn. L. Rev. 557 (1992); Joshua C. Dickinson, The Confrontation Clause and the Hearsay Rule: The Current State of a Failed Marriage in Need of a Quick Divorce, 33 Creighton L. Rev. 763 (2000); Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011 (1998); Benjamin E. Rosenberg, The Future of Codefendant Confessions, 30 Seton Hall L. Rev. 516 (2000); The Supreme Court, 1998 Term—Leading Cases: I. Constitutional Law, B. Criminal Law and Procedure, 1. Confrontation Clause—“Firmly Rooted” Hearsay Exceptions, 113 Harv. L. Rev. 233 (1999). Much of the commentary is dedicated to the Roberts doctrine and its subsequent development by the Court.
As outlined above, initially under Roberts, it appeared that hearsay which fell under a firmly rooted exception and hearsay which was found to bear particularized guarantees of trustworthiness were functional equivalents for purposes of admissibility. However, case law subsequent to Roberts subjected the non-firmly rooted hearsay to explicit Confrontation Clause scrutiny by asking whether cross-examination of the declarant of a custodial statement would be of marginal utility and whether adversarial testing would add little, while the firmly rooted hearsay exception remained admissible and free of explicit Confrontation Clause analysis. Observers have commented on this discordance between once equally admissible statements by which, currently, statements admitted under a firmly rooted hearsay exception are not subject to explicit Confrontation Clause review, whereas custodial statements sought to be admitted as bearing particularized guarantees of trustworthiness are nevertheless subject to explicit Confrontation Clause scrutiny.
I am aware of the judicial and scholarly discussion regarding the purposes of the Confrontation Clause in general and, in particular, whether the purpose of the Confrontation Clause is to ensure trustworthiness, confrontation, or both. For purposes of this concurrence, I note that Barnett was unavailable. I conclude that the Barnett statement was offered as “witness” testimony against the defendant for Confrontation Clause purposes, White *362v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992) (Thomas, J., concurring in part, and concurring in judgment; Scalia, J., joins), and I understand that the trustworthiness of the statement is the focus of the admissibility analysis of the majority. I further note that the Barnett statement at issue was a custodial statement and that a different analysis might apply to noncustodial statements.
As noted above, if a statement fits within a firmly rooted exception to the hearsay rule, its “[Reliability can be inferred,” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), and it is admitted without further constitutional analysis under the Confrontation Clause. Id. The Court has held that firmly rooted exceptions include the following: excited utterances and statements made for purposes of medical diagnosis and treatment, White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992); coconspirators’ statements, Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987); and dying declarations, Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 2d 409 (1895) (as described in Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)).
As suggested by the concurrence filed by Justice Breyer in Lilly, a criminal defendant would in some cases find cross-examination of the declarant of a firmly rooted hearsay statement which inculpates the defendant of greater than marginal utility, but because of the per se admissibility of the firmly rooted statement, the defendant is not absolutely entitled under the developed Roberts test to confront such a witness against him or her. See, also, The Supreme Court, 1998 Term — Leading Cases: I. Constitutional Law, B. Criminal Law and Procedure, 1. Confrontation Clause — “Firmly Rooted” Hearsay Exceptions, 113 Harv. L. Rev. 233 (1999). But see, Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1019 (1998), in which the author states that Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986),
is particularly interesting because it reflects unwillingness on the part of the majority to accept the full implications of the per se aspects of the Roberts reliability requirement, as well as implicit recognition that, even if a statement by an *363unavailable declarant fits within a firmly rooted hearsay exception, its admission may violate the confrontation right.
Thus, for example, where a coconspirator inculpates the defendant in an out-of-court statement, without regard to whether the statement was elicited with the aid of undercover law enforcement, the criminal defendant has no absolute right to cross-examine the declarant of such firmly rooted hearsay, notwithstanding that by an objective standard, adversarial testing would add to the fact finder’s assessment of the statement’s trustworthiness and that cross-examination of the declarant would be of greater than marginal utility. See Bourjaily, supra.
As further noted above, if a custodial statement does not fit within a firmly rooted exception to the hearsay rule but it does bear particularized guarantees of trustworthiness, it is nevertheless subject to the additional constitutional inquiry of whether cross-examination of the declarant would be of greater than marginal utility and whether adversarial testing would add to its reliability. Thus, such statements sought to be admitted as bearing particularized guarantees of trustworthiness are required to undergo a constitutional as well as evidential analysis. The confrontation inquiry regarding adversarial testing and whether cross-examination would be of greater than marginal utility, being of a constitutional dimension, is outcome determinative. Such inquiry is qualitatively unlike the evidential inquiry regarding the particularized guarantees of trustworthiness which considers discrete factual matters surrounding the making of the custodial statement, such as whether the declarant was intoxicated, whether the declarant was asked leading questions, whether the declarant had counsel, et cetera, which, in the aggregate, lead to a conclusion regarding trustworthiness.
Given the controlling nature of the constitutional Confrontation Clause inquiry under the second prong of the developed Roberts test as applied to a custodial statement, in my view, if cross-examination would be of greater than marginal utility in assessing the credibility of the declarant and adversarial testing regarding the statement would be of benefit, the Confrontation Clause requires exclusion of the custodial statement, regardless of the assessment of the other factors sur*364rounding the making of the custodial statement. To the extent that the purpose of the Confrontation Clause is to determine “trustworthiness,” the Confrontation Clause inquiry is neither just another trustworthiness inquiry nor a descriptor of the result of the trustworthiness inquiry; if the answer to the Confrontation Clause inquiry is that adversarial testing would be of benefit to assess the reliability of the custodial statement and cross-examination would be of greater than marginal utility, the statement must be excluded.
Whether statements which fit a firmly rooted exception to the hearsay rule should be subject to explicit Confrontation Clause analysis or, conversely, whether statements which do not fit a firmly rooted exception to the hearsay rule but do bear particularized guarantees of trustworthiness should be freed of explicit Confrontation Clause analysis is the subject of scholarly treatment; the resolution of these questions, however, is not within the scope or authority of this concurrence. Rather, because the current jurisprudence requires a Confrontation Clause analysis of the Barnett custodial statement which was proffered by the State as bearing particularized guarantees of trustworthiness and because I conclude that cross-examination of Barnett would be of greater than marginal utility in evaluating Barnett’s credibility and that adversarial testing would add to the fact finder’s assessment of the reliability of the statement, I conclude, as a constitutional matter, that admission of the Barnett statement violated the defendant’s right to confrontation under the Sixth Amendment. See, also, Neb. Const, art. I, § 11.
CONCLUSION
I conclude that the Roberts test, as it applies to custodial statements for determining the admissibility of statements of unavailable witnesses, has been developed by Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), and Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999). If a custodial statement does not fall within the first prong of such test as being a firmly rooted hearsay exception, the statement must be examined under the second prong for particularized guarantees of trustworthiness. With respect to the second prong, I believe, as a practical matter, there are two con*365junctive inquiries: first, an evidential hearsay inquiry as to whether the custodial statement contains particularized guarantees of trustworthiness and, second, a constitutional inquiry driven by the Confrontation Clause as to whether the custodial statement is so trustworthy that adversarial testing would add little to its reliability and cross-examination would be of marginal utility.
In the present case, particularly in light of the fact that Barnett’s custodial statement of September 28, 1996, ties the defendant to the crimes, I conclude, without regard to an evaluation of the purported features of its trustworthiness, that adversarial testing would add to the assessment of its reliability and that cross-examination would be of greater than marginal utility. Among the matters which objectively ought to be the subject of cross-examination for Confrontation Clause purposes are (1) the nature of Barnett’s plea bargain and consequent exposure at sentencing; (2) Barnett’s motives to curry favor with the authorities and to exaggerate the defendant’s involvement in the crimes while minimizing his own role; (3) the nature of the relationship between Barnett and the defendant due to their separate sexual relationships with Barnett’s girl friend and Barnett’s possible motive to seek revenge against the defendant; (4) the nature, motive, and substance of the two statements Barnett gave to the authorities prior to giving the September 28 statement, which prior statements differed considerably from the statement at issue in this case; and (5) the nature, motive, and substance of several statements Barnett made to various persons recanting his involvement in the crimes after making the statement of September 28.
In sum, because I conclude that the defendant’s constitutional confrontation right was violated, I agree with the majority’s conclusion that the admission of the Barnett statement was reversible error and that the cause should be remanded for a new trial.
McCormack, J., joins in this concurrence.