dissenting.
I respectfully dissent. I disagree with the majority in its conclusion that D. Tatum’s prior testimony had sufficient indicia of trustworthiness to be admissible under Rule 804(b)(5), or that D. Tatum’s statement met the higher standard of reliability required to justify denying Byers’ right to cross-examine him in exercise of Byers’ Sixth Amendment right of confrontation. I further disagree with the majority’s conclusion that Byers waived his Sixth Amendment right to confront and cross-examine D. Tatum. It is my view that the error in admitting D. Tatum’s prior testimony was not harmless beyond a reasonable doubt, and I therefore would reverse and remand for a new trial.
The parties do not dispute that D. Tatum was “unavailable” to testify at Byers’ trial and that under appropriate circumstances the prior testimony of an unavailable witness may be admitted at trial as substantive evidence without violating the rules of evidence. Minn. R. Evid. 804. The prior testimony of an unavailable witness may be admitted in evidence if it meets a recognized exception to the hearsay rule, or the “catchall” exception.12
Since D. Tatum’s testimony does not fit within the four firmly rooted exceptions set forth in Minn. R. Evid. 804(b) to the hearsay exclusion, it must be examined under 804(b)(5), the “catchall” exception. Minnesota courts take a cautious approach in determining whether a statement is admissible under the “catchall” hearsay exception. See State v. Stallings, 478 N.W.2d 491, 496 (Minn.1991). To be admissible, the offered *496statement must have “circumstantial guarantees of trustworthiness” equal to those of the several specifically enumerated hearsay exceptions.13 See Minn. R. Evid. 804(b)(5); see also State v. Renier, 373 N.W.2d 282, 286 (Minn.1985) (holding that a hearsay statement offered by a witness with a strong motive to he lacked “equivalent circumstantial guarantees of trustworthiness” and was therefore inadmissible). In assessing the reliability of a witness’ former testimony, the district court should consider:
[T ]he character of the witness for truthfulness and honesty, and the availability of evidence on the issue; whether the testimony was given voluntarily, under oath, subject to cross-examination and a penalty for perjury; the witness’ relationship with both the defendant and the government and his motivation to testify * * *; the extent to which the witness’ testimony reflects his personal knowledge; whether the witness ever recanted his testimony; the existence of corroborating evidence; and the reasons for the witness’ unavailability.
Stallings, 478 N.W.2d at 495-96 (quoting United States v. Snyder, 872 F.2d 1351, 1355-56 (7th Cir.1989)).
While this court has applied the “totality of the circumstances” test in determining whether the hearsay evidence meets the circumstantial guarantee of trustworthiness analysis, State v. Stallings, 478 N.W.2d 491, we must also restrict the universe of our “totality” to the specific circumstances surrounding the making of the statement, as noted by the U.S.' Supreme Court in Idaho v. Wright:
We agree that “particularized guarantees of trustworthiness” must be shown fi*om the totality of the circumstances, but we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.
Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990) (citing 5 J. Wigmore, Evidence 1420 p. 251.)14 Applying the Supreme Court’s analytical framework here, D. Tatum’s hearsay statement was made in his own trial under a charge of first degree murder. He testified under oath, to be sure, but this indicia of trustworthiness must be considered in light of his statement being entirely self-serving and exculpatory, and of his being a participating member of an organized criminal group, as the majority characterizes, committed to an oath of silence. In his own trial he clearly had one and only one motive — -to save his own skin — and by implicating Byers, with his detailed and uncorroborated testimony, as to who did the shooting, obviously he was exculpating himself.
The majority finds comfort in D. Tatum’s testimony being under oath, but we have noted that administration of an oath and the threat of prosecution for perjury do not, by themselves, establish the requisite trustworthiness for admission of hearsay that does not fit within a firmly rooted exception. Stallings, 478 N.W.2d at 495.
Next, the majority compares the testimony of Berry and Minor with that of D. Tatum and concludes that it is corroborative, providing additional indicia of reliability. It is true that Berry and Minor testified that Byers was in Griffin’s apartment when the shooting and robbery took place, and that this testimony is consistent with D. Tatum’s that' Byers was present at the crime scene. D. Tatum provided far greater detail about Byers’ involvement in the crime than did Berry and Minor, however. D. Tatum testified that “Killer Bee” pulled the trigger, that Byers had taken Berry’s purse and that he *497was “pretty sure” Byers was one of the several men seen running from the scene after the shooting — all uncorroborated by any other witness. Since the jury’s conviction of Byers of second degree felony murder is consistent with D. Tatum’s uncorroborated testimony that Byers was present but didn’t pull the trigger, D. Tatum’s uncorroborated testimony appears to have played an important, if not crucial role, in the jury’s determination of guilt.
Finally, as further indicia of reliability, the majority puts heavy emphasis on D. Tatum being subject to cross-examination at his own trial — as if to suggest that the role and purpose of the cross-examiner is unimportant— all that matters is that at some point he was cross-examined by someone for some purpose. Cross-examination by the state in D. Tatum’s trial is hardly equivalent to Byers’ right to cross-examine D. Tatum in Byers’ trial, however, and it is patently obvious that the state had no interest whatsoever in demonstrating Byers’ innocence when it cross-examined D. Tatum. I find the suggestion that the state’s effort to prove D. Tatum’s guilt through cross-examination is by any measure a substitute for Byers’ right to cross-examine D. Tatum specious at best. While I have high regard for and give broad deference to the trial court’s thoughtful consideration in reaching its decision that D. Tatum’s testimony was admissible against a hearsay objection, I conclude that it abused its discretion in determining that the high threshold of admissibility had been met for purposes of overcoming a hearsay objection.
For many of the same reasons, I disagree with the conclusion of the majority that the state met the “more difficult requirement [of] demonstrating that the statements bear sufficient ‘indicia of reliability5 to avoid a conflict with the [Sixth Amendment] confrontation clause.” State v. Hansen, 312 N.W.2d 96, 102 (Minn.1981). In Hansen, as the majority pointed out, we reversed a ruling of the trial court admitting prior statements of two witnesses when they were “unavailable” because they refused to testify. We determined that the prior statements were inadmissible because they were not given under oath and were ex parte, but most significantly, because the defendant was precluded from cross-examining the witnesses — precisely the situation we have here. The denial of the right to cross-examine D. Tatum coupled with D. Tatum’s motive to inculpate Byers in his own trial, compels us to review, with particular care, the trustworthiness of D. Tatum’s testimony:
Such [hearsay] exceptions, dispensing altogether with the literal right to “confrontation” and cross examination, have been subjected on several occasions to careful scrutiny by this Court.
California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489 (1970). That “careful scrutiny” was applied in Ohio v. Roberts, testing whether whatever confrontation there might have been in the prior proceeding afforded “substantial compliance with the purposes behind the confrontation requirement.” 448 U.S. 56, 69, 100 S.Ct. 2531, 2540, 65 L.Ed.2d 597 (1980) (citing Green, 399 U.S. at 166, 90 S.Ct. at 1939). Here, Byers had no opportunity to cross-examine D. Tatum whatsoever, and by any score, the degree of compliance with affording the protection of the Sixth Amendment was — none.
My next point of contention with the majority is its conclusion that Byers waived his Sixth Amendment confrontation right because he was a member of the Rolling 60s Crips, a gang whose members pledge to an oath of silence. Since D. Tatum was also a member, the majority concludes Byers procured D. Tatum’s silence. Our reference point on this issue is, once again, State v. Hansen. In Hansen, the witness refused to testify out of fear of retaliation by defendant and expressed his fear as follows:
“You don’t dare say anything, you get smoked you know, hell they’d kill you. * * * * This party from Wadena, I’m just scared, I mean you know, no matter what, you know, you say or do, you’re going to get smoked, that’s all.”
312 N.W.2d at 99-100. In rejecting the state’s claim that the defendant waived his constitutional right of confrontation, we specifically distinguished State v. Olson, 291 N.W.2d 203 (Minn.1980) and State v. Black, 291 N.W.2d 208 (Minn.1980) on the basis that *498in those cases there were histories of actual threats justifying a waiver, but in Hansen there was no actual threat, and fear of reprisal only was not sufficient to constitute a waiver. Hansen, 312 N.W.2d at 104. Here, all parties agree that Byers made no threat of any kind, and that D. .Tatum refused to testify out of “problems” he had with others, but not with Byers. Questioning by Judge Rosenbaum makes it very clear that D. Tatum’s refusal to testify had nothing to do with Byers:
D. Tatum: Well, it’s not because of the defendant [Byers] or nothing like that, you know. I ain’t seared. It’s because I have problems with other people, though. You know, he probably ain’t got nothin’ to do with that. I know he don’t.
The prosecutor also questioned Mr. D. Tatum.
Mr. Farber: And it’s your claim that Mr. Byers has never threatened you directly, is that correct?
D. Tatum: He ain’t never did nothing to threaten me.
The majority relies on evidence of the gang’s code of silence, spectators attending Byers’ trial wearing Rolling 60s -Crips colors and hats arranged in a provocative pattern on D. Tatum’s porch, as- proof of a threat. As dramatic as these may be, they clearly do not meet the holding of Hansen requiring proof of a threat that is attributable to the defendant: “[t]o find a waiver, based on a witness’ reluctance to testify, absent any evidence of threats attributable to the defendant, would destroy the right of confrontation in nearly all cases of alleged crimes against persons.” Hansen, 812 N.W.2d at 105 (citing United States v. Benfield, 593 F.2d 815 (8th Cir. 1979)) (emphasis added). The majority’s determination that Byers waived his Sixth Amendment right is based on speculation and conjecture as to the nature of the threat, and it overrules our carefully crafted limits for finding a waiver claim in State v. Hansen. Of equally great concern is that the Sixth Amendment right of confrontation seems to be relegated to a privilege to be held or withheld, depending on the rules of the gang.
Finally, I conclude the court of appeals erred in applying a standard for harmless error on a constitutional issue based only upon whether, in the absence of D. Tatum’s testimony, a typical jury would have reached the same verdict. State v. Byers, 554 N.W.2d 744, 749 (Minn.App.1996). In State v. Bolte, we reviewed the role of the appellate court in applying the harmless error analysis:
“to examine the entire trial record and determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; * * * if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error.”
530 N.W.2d 191, 198 (Minn.1995) (internal quotations omitted) (quoting State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994)).
The error in the analysis of the court of appeals was in only measuring the extent of the other evidence of guilt, and not going on to consider whether, based upon the record as a whole, there was a reasonable possibility that the tainted evidence contributed to or was important to the guilty verdict. If the analysis on review had extended to address these additional inquiries, the answer would have been conclusively affirmative. The prosecutor stated: “I believe, Your Honor, that Mr. Tatum’s testimony is, crucial to this case * * *.” The trial court then added its own view of the importance of the testimony: “ * * * I think we all have to understand, that the prima facie case does not relieve [the state] of the burden of proving the defendant’s guilt beyond a reasonable doubt, and that this testimony certainly is necessary for the State to proceed with its burden.” Clearly, if both the state and the trial court believed that Byers’ conviction hinged on D. Tatum’s testimony, it cannot be shown beyond a reasonable doubt that the admission of that testimony did not contribute to Byers’ conviction.
A review of D. Tatum’s testimony indicates the state and the trial court’s characterization of D. Tatum’s testimony was correct. D. *499Tatum strongly implicated Byers in the robbery and murder and presented the jury with evidence they received from no other source. He provided the sole testimony that Byers had conceived the plan to rob Griffin and that Byers was one of the men running from Griffin’s apartment. He was the only witness who testified regarding the admissions Byers was alleged to have made after the crime that he was present at the crime scene but that “Killer Bee” pulled the trigger.
The fact that the jury acquitted Byers of first degree murder but convicted him of second degree felony murder — the unintentional killing of Griffin occurring during the robbery — strongly suggests that D. Tatum’s testimony that Byers was present but “Killer Bee” did the shooting was a significant consideration in the determination of guilt by the jury.
Therefore, I would reverse the court of appeals and remand the matter for a new trial.
.Minn. R. Evid. 804(b)(5) is referred to as the "catchall” exception to the hearsay rule and requires that the declarant be unavailable as a witness. "Unavailability" is defined by Minn. R. Evid. 804(a) which states in part that:
(a) Definitions of Unavailability. "Unavailability as a witness” includes situations in which the declarant—
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant’s statement; * * * *
. The Supreme Court has characterized the threshold of reliability of hearsay as having "particularized guarantees of trustworthiness.” Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111. L.Ed.2d 638 (1990); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
. "The theory of the hearsay rule * * * is that the. many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation.” 5 J. Wigmore, Evidence § 1420, p. 251 (J. Chadboum rev.1974).