We hold that A.R.E. Rule 803(25), the “statute” of evidence enacted by the General Assembly, violates the Confrontation Clause of the Sixth Amendment. We make no holding as to its validity in civil cases. The facts in the case are as follows. The appellant was charged with the rape of his three-year-old niece. As provided in A.R.E. Rule 803(25), the State moved for a pre-trial hearing to prove the “reasonable likelihood of trustworthiness” of the three-year-old child’s out-of-court statements to her mother, a nurse, and a policeman. The trial court heard the evidence on the motion and found that the child was not competent to testify, but found that her statements possessed such a “reasonable likelihood of trustworthiness” that they could be admitted in evidence at the trial on the merits. At the trial, the hearsay statements were admitted, and the appellant was convicted of rape and sentenced to forty years in prison. We reverse and remand for a new trial.
In the majority opinion of George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), we held, “Rule 803 (25) is constitutionally defective on its face, and we so hold.” However, the majority opinion affirmed the use of the hearsay statements because they were “spontaneous,” “consistent,” “plausible,” and “trustworthy.” On the petition for rehearing, the majority denied rehearing and issued a one-judge supplemental opinion stating that the child’s statement to her mother was admissible under Rule 803(25) as well as under Rule 803(2), the excited utterance rule. George v. State, 306 Ark. 374-A, 818 S.W.2d 951 (1991). The one-judge opinion further held that the statement to the child’s father was admissible under the “criteria” of Idaho v. Wright, 110 S. Ct. 3139 (1990). Three Justices, Hays, Glaze, and Corbin, who were familiar with the reasoning expressed in Idaho v. Wright, supra, only concurred with the result of the one-judge supplemental opinion and candidly stated that they would “respectfully hope the Supreme Court quickly reexamines that holding and mercifully overrules it.” George v. State, 306 Ark. at 374-D, 818 S.W.2d at 953. Chief Justice Holt and Justices Dudley and Newbern dissented on the basis of the Confrontation Clause. Id. at 374-E, 818 S.W.2d at 953. The Supreme Court has now handed down another decision involving out-of-court statements by children. White v. Illinois, 60 U.S.L.W. 4094 (1992). The opinion of the Court favorably cites Idaho v. Wright, supra. See White v. Illinois, 60 U.S.L.W. at 4097 n.8. As a result, Justices Hays and Glaze who concurred in the result of the one-judge supplemental opinion in George v. State, supra, no longer think it is probable that the Supreme Court will quickly reexamine its holding in Idaho v. Wright, supra, and now join in holding that, under the reasoning of Idaho v. Wright, Rule 803(25) is unconstitutional. See George v. State, 306 Ark. at 374-D, 818 S.W.2d at 953 (Glaze, J., concurring). All of us recognize the complications caused by our prior diverse opinions on this federal issue and by this opinion hope to draw a clear line for the use of out-of-court statements of children.
Preliminarily, we note that the appellant does not argue that the General Assembly could not validly enact this “rule” of evidence dealing with hearsay, see State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), and accordingly we do not discuss that issue. The appellant does not argue that the hearsay statement of a child is inadmissible when the child is declared to be incompetent to testify. The Supreme Court has expressly reserved this issue, Idaho v. Wright, 110 S. Ct. at 3147, and we do not address it. We address only the issue of whether Rule 803(25) deprived the accused of his right of confrontation in this case.
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, mandates that a declarant’s out-of-court statement, when repeated by someone other than the declarant and offered to prove the truth of the matter asserted, may be admitted into evidence only if it bears “adequate indicia of reliability.'’'’ If the statement does not fall within a firmly rooted hearsay exception, such as the “excited utterance,” it is presumptively unreliable and inadmissible for Confrontation Clause purposes. To fall within the admissible category, the evidence must show that “the declarant’s truthfulness is so clear from the surrounding circumstances that the test for cross-examination would be of marginal utility. . . .” Idaho v. Wright, 110 S. Ct. at 3149 (emphasis added). In explaining the evidence required to make the declarant’s truthfulness so clear, the Court’s opinion gave deeply rooted exceptions to the hearsay rule as examples.
In contrast to the deeply rooted exceptions, the Court discussed residual hearsay exceptions, which are comparable to Rule 803(25), as follows:
Hearsay statements admitted under the residual exception, almost by definition, therefore do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception. Moreover, were we to agree that the admission of hearsay statements under the residual exception automatically passed Confrontation Clause scrutiny, virtually every codified hearsay exception would assume constitutional stature, a step this Court has repeatedly declined to take.
Id. at 3148 (emphasis added).
However, deeply rooted exceptions to the hearsay rule are not the only statements which might be admissible without violating the Confrontation Clause. “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.’” Id. at 3147.
The Court identified some factors that might be used for determining “particularized guarantees of trustworthiness” so that “the declarant’s truthfulness is so clear from the surrounding circumstances that the test for cross-examination would be of marginal utility,” as follows:
The state and federal courts have identified a number of factors that we think properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable. See, e.g., State v. Robinson, 153 Ariz. 191, 201, 735 P.2d 801, 811 (1987) (spontaneity and consistent repetition); Morgan v. Foretich, 846 F.2d 941, 948 (CA4 1988) (mental state of the declarant); State v. Sorenson, 143 Wis.2d 226, 246, 421 N.W.2d 77, 85 (1988) (use of terminology unexpected of a child of similar age); State v. Kuone, 243 Kan. 218, 221-222, 757 P.2d 289, 292-293 (1988) (lack of motive to fabricate). Although these cases (which we cite for the factors they discuss and not necessarily to approve the results that they reach) involve the application of various hearsay exceptions to statements of child declarants, we think the factors identified also apply to whether such statements bear “particularized guarantees of trustworthiness” under the Confrontation Clause. These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining “particularized guarantees of trustworthiness” under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.
Id. at 3150.
Rule 803(25) denies the appellant his right of confrontation since it provides that the hearsay statement of a child is admissible upon showing only that it possesses a “reasonable likelihood of trustworthiness.” On its face, this is a far lesser standard than is required by the Confrontation Clause. As previously stated, the Confrontation Clause requires that the statement bear such “adequate indicia of reliability” that “ the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.” Id. at 3149 (emphasis added).
In the case at bar the trial court ruled that the statement the child gave to her mother was admissible under Rule 803(25) and, in addition, ruled it was admissible under Rule 803(2), the excited utterance rule. Upon retrial, the trial court may again find that the statement should be admitted as an excited utterance without violating the Confrontation Clause because the excited utterance rule is a deeply rooted exception to the hearsay rule. See White v. Illinois, supra. Also see Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), for the time period for an excited utterance by a child. The trial court held that the statement to the nurse was admissible under Rule 803(25) and also under Rule 803(4), the exception for statements made in the course of securing medical treatment. The Supreme Court has held that the exception for statements made in the course of securing medical treatment is so deeply rooted that admission of evidence under it does not violate the Confrontation Clause. White v. Illinois, supra. Thus, if the statements to the mother and the nurse were the only statements admitted there would be no violation of the Confrontation Clause, and we would affirm this case. However, a police officer interviewed the child, and pursuant to Rule 803(25), the trial court allowed the policeman to testify about the answers the child gave to his questions. This evidence was admissible only under Rule 803(25) and constituted a clear violation of the appellant’s right to confrontation. In its brief, the State tacitly acknowledged that this might be error and asked us to affirm the case on the basis of harmless error.
This case presents the violation of a federal, not a state, constitutional right. The foundation for the harmless error rule in cases involving violations of federal constitutional rights is Chapman v. California, 386 U.S. 18 (1967). There the Court held that there may be some constitutional errors that are harmless and do not require reversal, but the rule for such a doctrine would necessarily be a federal rule, and not one of the various rules fashioned by the several states. The Court then wrote:
In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one.
We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85. There we said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”
We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.
Id. at 22, 23, & 24 (emphasis added).
The appellant in this case was convicted of the crime of rape by sexual intercourse with a person who was under the age of fourteen. See Ark. Code Ann. § 5-14-103(a)(3) (1987). The State was required to prove “sexual intercourse” as an element of the crime and that meant the State had to prove “penetration, however slight, of [the victim’s] vagina by [the appellant’s] penis.” Ark. Code Ann. § 5-14-101 (9) (1987). The police officer’s hearsay testimony was the only direct evidence of penetration. All other evidence concerning penetration was circumstantial. Without doubt, there is a reasonable possibility that the officer’s direct testimony about penetration might have contributed to the proof of that element of the crime. As a result, this case does not come within the harmless error rule for cases involving federal constitutional violations.
Appellant additionally argues that the trial court impermissibly limited his cross-examination of the child’s mother. It is doubtful the same factual situation will arise on retrial, and we do not address the point.
Reversed and remanded.
Hays and Glaze, JJ., concur. Brown, J., dissents.