(dissenting).
I would reverse; the Holy Rock statement should not be excluded from evidence.
Holy Rock, now a fugitive from justice, made his statement under circumstances which indicate that Holy Rock fairly represented appellee’s complicity and conspiracy in cultivating an illegal marijuana field near our State University.
*143During the summer of 1981, information was provided to the Clay County Sheriffs Office that a blue Ford pickup truck with a roof-mounted spotlight had been spotted near a marijuana patch. Sheriffs officers responded and discovered a cultivated marijuana field. On August 4, 1981, the day of Holy Rock’s statement, a deputy sheriff was investigating the area when he discovered the truck and an older model red GMC pickup truck. Near the marijuana field, the deputy began following the pickups toward Vermillion, South Dakota.1
A call for assistance was placed by the deputy and another deputy responded. Deputy Sheriff Millage stopped the blue truck with the roof-mounted spotlight and discovered that appellee Abourezk was its operator. Appellee Abourezk’s brother-in-law, Gaylen Holy Rock, was operating the red truck which had license plates switched from a 1977 Pontiac Grand Prix owned by appellee Abourezk. It was determined that appellee Abourezk owned the red pickup truck. Holy Rock was taken to the sheriffs office for license plate violation.
Holy Rock was later charged with possession of marijuana. In Holy Rock’s prosecution he testified in a suppression hearing, therein reaffirming that he had been truthful when he gave a statement to a Clay County Deputy Sheriff. Holy Rock’s trial court found beyond a reasonable doubt that Holy Rock was an individual committed to telling the truth and although Holy Rock had opportunities to shade the truth, he did not. Holy Rock’s statement reads in part: “Mike Abzorecek [sic] furnishes transportation to the patch ” and “Mike Aborezek [sic] contacted Galen [sic] today to go out and weed the patch.”
This case is now on rehearing before this Court wherein we have limited the issue to what case law should be applied to an unavailable witness’ statement in a criminal action.
Importantly, our original decision herein held: “Since cross-examination is not available for a custodial SDCL 19-16-32 declaration, in order to comport with the Confrontation Clause and thus pass Constitutional muster, ‘indicia of reliability’ must be shown.” State v. Abourezk, 339 N.W.2d 780, 782 (S.D.1983) (emphasis in original) (footnote omitted). “Guidelines for these indicia of reliability are set forth in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) ....” Id. (emphasis supplied). Notice the word “guidelines” was employed; the majority glosses over this language and applies Dutton, 400 U.S. 74, 91 S.Ct. 210, as though each guideline was cast in stone and had to be established in total.
In United States v. Ammar, 714 F.2d 238 (3rd Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983), the United States Court of Appeals for the Third Circuit was confronted with a conspiracy setting, and I quote therefrom:
We agree with the government that in many, if not most, instances a coconspir-ator statement which is admissible under Rule 801(d)(2)(E) will also be sufficiently reliable to satisfy the Confrontation Clause. See United States v. Nelson, 603 F.2d 42, 46 (8th Cir.1979) (“absent some unusual circumstance” coconspirator statements which satisfy Fed.R.Evid. 801(d)(2)(E) do not violate the Confrontation Clause). The Ninth Circuit has identified the following factors as relevant to the Confrontation Clause inquiry:
(1) whether the declaration contained assertions of past fact; (2) whether the declarant had personal knowledge of the identity and role of the participants in the crime; (3) whether it was possible that the declarant was relying upon faulty recollection; and (4) whether the circumstances under which the statements were made provided reason to believe that the declarant had misrepresented the defendant’s involvement in the crime. Dutton, 400 U.S. at 88-89, 91 S.Ct. at 219-220.
*144United States v. Perez, 658 F.2d [654] at 661 [(9th Cir.1981)] (footnote omitted). The court also stated that, “All four elements need not be present in order to satisfy the confrontation clause. In some circumstances, a statement may be admitted over confrontation clause objections even if it does not pass scrutiny under each prong of the Dutton test.” Id.
Ammar, 714 F.2d at 256 (emphasis supplied).2
Since the majority opinion traverses into a child abuse case, State v. Wahle, 298 N.W.2d 795 (S.D.1980), it is of interest for us to examine our recent holding in State v. McCafferty, 356 N.W.2d 159 (S.D.1984) (Morgan, J.), to discover how the requirements for an “indicia of reliability” may be applied.3 In McCafferty, we held: “The policy behind the confrontation clause must give way to the public’s interest in effective law enforcement, the probative necessities of particular cases and other policy considerations.” 356 N.W.2d at 162 (citing Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 606 (1980)). We continued:
We turn to McCafferty’s rights under Article VI, Section 7 of the South Dakota Constitution. First, we note that while
there are semantic distinctions in the phrasing of the two constitutional provisions, both speak to the same protection. “It seems to be held everywhere and by all courts of last resort that ‘to be confronted with the witnesses against him’ and to ‘meet the witness face to face’ mean one and the same thing[.]” State v. Heffernan, 24 S.D. 1, 4, 123 N.W. 87, 89 (1909). The Heffernan Court was examining the constitutional rights with regard to using preliminary hearing testimony of an unavailable witness in the trial of the defendant. The opinion stated:
There never was at common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination. ... Moreover, this right of cross-examination thus secured was not a right devoid of exceptions. The right to subject opposing testimony to cross-examination is the right to have the hearsay rule enforced, for the hearsay rule is the rule requiring cross-examination. Now the hearsay rule is not a rule without exceptions. There never was a time when it was without exceptions. There were a number of well-established ones at the time of the earliest
*145Constitutions, and others might be expected to develop in the future. The rule had always involved the idea of exceptions, and the Constitution makers indorsed the general principle merely as such. They did not care to enumerate exceptions. They merely named and described the principle sufficiently to indicate what was intended. The rule sanctioned by the Constitution is the hearsay rule as to cross-examination, with all the exceptions that may legitimately be found, developed, or created therein.
24 S.D. at 10-11, 123 N.W. at 91-2. In light of this authority, we hold that the strictures of the South Dakota Constitution on the right of confrontation are not violated by evidence held admissible under SDCL 19 — 16—35.4
McCafferty, 356 N.W.2d at 164-65.
This ease is replete with “indicia of reliability” and “the public’s interest in effective law enforcement” (and, I might add, the public’s interest in justice).
Holy Rock was appellee Abourezk’s brother-in-law. Holy Rock and Abourezk were closely associated. It is unreasonable to assume that Holy Rock would purposely lie to also incriminate appellee Abourezk. In Holy Rock’s statement, he admitted “helping out with the raising of the marijuana plants” for approximately $6.00 per hour. Appellee Abourezk’s wife (Holy Rock’s sister) purchased Holy Rock’s groceries. Holy Rock indicated in his statement; “The food is the pay rather than cash.” Holy Rock also indicated that the patch is south of a farm where appellee Abourezk once lived. It is highly improbable that Holy Rock would make false statements to implicate his own sister.
Appellee Abourezk, immediately after Holy Rock was taken to the sheriff’s office, sought and obtained legal counsel for Holy Rock. Unknown to Holy Rock, this counselor had called the sheriff’s office to talk to Holy Rock. The deputy apparently had Holy Rock answer the telephone call but legal counsel had hung up. Shortly thereafter, this counselor arrived at the sheriff’s office. Either by reading the record, or by argument before this Court, there is no doubt that appellee Abourezk arranged to have this counselor contact and represent Holy Rock forthwith.
All of the circumstances surrounding Holy Rock’s statement were delved into in great detail at the suppression hearing in Holy Rock’s case. This indicates collaboration and concert on the day in question, and when taken with all of the other circumstances, makes it most improbable that Holy Rock would have falsely incriminated appellee Abourezk at the sheriff’s office, for they had just been together and were brothers-in-law. In Holy Rock’s statement, he depicted himself as an employee of ap-pellee Abourezk. The ownership of the vehicles bears out such a relationship; Holy Rock was driving appellee Abourezk’s vehicle which reflected license plates be*146longing to another vehicle owned by appel-lee.
The trial court’s findings are inconsistent. In Finding of Fact number 8, the court stated: “The State had no facts at their disposal relative to the background of Holy Rock so as to enable it to determine his history of truthfulness or reliability and no evidence of such was offered to the Court.” Yet, previously in Finding of Fact number 4, the trial court stated: “Holy Rock was an American Indian from Oglala, South Dakota, and was the brother of Defendant’s wife.” (Emphasis mine.)
Additionally, the majority opinion’s blanket reliance upon Olson v. Green, 668 F.2d 421 (8th Cir.1982), fails to reveal the differences between Olson and the case at bar. In the federal case, the out-of-court statement was made by Jean Beverly Link. Ms. Link had no independent relationship with defendant Olson. Ms. Link wished to have witnesses murdered to protect her boyfriend, Black. Another witness testified “that Olson had agreed to destroy evidence for Black because Black had told Olson that Link’s father would get Olson a job.” Olson, 668 F.2d at 424. Link’s out-of-court statements placed the blame on Olson for the murders.
In its opinion, the Eighth Circuit Court of Appeals also quoted Mr. Justice White and held:
Justice White similarly noted the inherent unreliability of such statements when he observed:
Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.
Olson, 668 F.2d at 428.
The problem is that Holy Rock’s statements implicated rather than exonerated Holy Rock. It is clear that Holy Rock did not try to shift the blame from himself to appellee Abourezk. Holy Rock simply told the truth — both he and his brother-in-law were associated with the Vermillion marijuana field.
Underlying the rules of evidence is a basic purpose: to get at the truth. Justice, in its finest raiment or simplest cloth, is nothing more than a search for truth. The truth, and justice, is hereby subserved by a technical and theoretical misapplication of the rules of evidence. Truth here leaves this case, as did Holy Rock and Abourezk leave the marijuana field near our State University.
I am hereby authorized to state that Chief Justice FOSHEIM joins in this dissent.
. At the suppression hearing, the deputy testified: "Well, Mike was with him when I pulled in behind him from out there at the field and followed them into town and he was in the truck just ahead of Gaylen.”
. Although the majority attacks the use of Am-mar herein, it is of interest to note that Ammar is premised upon and employs the exact same “factors" used by the majority in that both Am-mar and the case at bar are conspiracy cases. It is illogical to assume that the same four “factors” must be almost blindly applied in the case at bar by the majority while other courts and cases look to the facts of each statement to discern if the root need of the confrontation clause — a truthful statement — has been obtained. Unfortunately, the majority is so soundly entrenched in its restricted view that it fails to grasp the clear language of Ammar. The majority reads: "Holy Rock’s statement would not meet the first test of a coconspirator’s statement because it certainly was not made in the furtherance of the conspiracy.” Ammar used each element as a "factor" rather than a rigid "test” and undeniably holds that all four factors need not be present to satisfy confrontation clause scrutiny.
. The majority holds that somehow the requirements of the confrontation clause which are mechanically applied herein via its rigid four-part test, simply erode in the “tender years” setting. The problem, of course, is that in both a crime against children and a drug crime against the people of South Dakota, the same confrontation clause is employed and the same goal, to reach the truth, is at issue. The public’s interest in effective law enforcement is equally strong in both cases. Common conceptual threads inextricably bind the two settings.
One cannot help but wonder how the majority in the case at bar is able to carte blanche dismiss the State v. Heffernan, 24 S.D. 1, 4, 123 N.W. 87, 89 (1909), language so recently used in McCafferty. In Heffernan, we did not address a "tender years” setting. In the final analysis, the majority wishes to expand and contract the confrontation clause at will with imprudent deviation. If judicial policy is underlying this state’s confrontation clause case law, then judicial policy ought to be brought out into the light of day and uniformly applied rather than skirted as convenience dictates.
. SDCL 19-16-35 provides:
A statement not specifically covered by any of §§ 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by § 19-16-4 if the declarant is unavailable as a witness and if the court determines that
(1) the statement is offered as evidence of a material fact;
(2) 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
(3) 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 section 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, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
As for the notice requirement, we held in McCafferty, 356 N.W.2d at 162: “[T]he record shows that McCafferty sought in advance of trial to have the testimony suppressed, evidencing that he had sufficient notice and opportunity to meet the testimony to satisfy the statutory notice requirements.” Under the majority’s analysis, it would appear that McCafferty is overruled. If it is not overruled, it appears that it has been modified or its language rejected. McCafferty and the majority opinion are not in sync.