This disturbing case involves the physical abuse of two young boys, Maurice Alberts, age four, and Phillip Alberts, age two. The defendant, Patricia Cree, appeals from a judgment of the District Court1 entered upon her conviction by a jury of assault resulting in serious bodily injury. See 18 U.S.C. Secs. 113(f), 1153.2 We affirm.

In May 1983, Cree agreed at the request of Lavonne Alberts to care indefinitely for Alberts's sons. Cree previously had been a babysitter for the boys and knew them well. Maurice and Phillip moved into the home that Cree shared with Andrew Shaw. In June 1983, Cree was given custody of the boys.

On February 22, 1984, officials at the Fort Totten Early Childhood School, which Maurice attended, noticed a large, swollen bruise covering one of Maurice's hands. Two officials testified that when asked about the bruise, Maurice told them that Patty had done it. Upon examination, school officials also discovered marks on Maurice's legs. A note telling Cree that Maurice was complaining about his hand and that it may need to be examined was prepared by a school official and was delivered to Cree by the school's bus driver. Maurice did not attend school on February 23, 1984, but when he returned to school the next day, he had not been to a doctor.

On February 28, 1984, Cree took Phillip to a clinic in Devils Lake, North Dakota for treatment of a leg injury. Cree explained that although she really did not know how Phillip had been injured, she suspected that he had jumped or fallen while he was playing in his bedroom.3 Dr. McBane, who initially examined Phillip on February 28, found that Phillip had a freshly fractured right femur. Dr. McBane also discovered that Phillip suffered from an untreated fractured clavicle, which he estimated to be two to four weeks old. Dr. McBane concluded that the two fractures could not have occurred at the same time. Dr. McBane additionally observed swollen bruises on Phillip's brow and face, as well as lesions or linear bruises on Phillip's back. Phillip was admitted to the hospital for treatment on February 28 and, at the request of Dr. McBane, was examined that day by a surgeon, Dr. Montaniel.

Dr. Montaniel agreed with Dr. McBane's conclusions regarding the fractures of Phillip's femur and clavicle and treated those fractures. Upon examining Phillip, Dr. Montaniel also observed further injuries to Phillip: abrasions and bruises on both ears; a puncture wound in one ear; and welts or swelling on the back. Dr. Montaniel described many of these additional injuries as being ecchymotic, i.e., swollen with blood. Based on the existence of multiple injuries and the appearance of the injuries, Dr. Montaniel testified that he was highly suspicious that Phillip was a battered child.

On February 29, 1984, a social worker took Maurice to the clinic. Dr. Jackson examined Maurice and found a very prominent bruise on the left side of his face; multiple healed scars, some linear and some circular, on his chest; extreme bruising, swelling, and tenderness of his left hand; multiple small scars that were healed on his arms; and multiple small scars, as well as scabs that were in different stages of healing, on his legs. Dr. Jackson noted that marks on Maurice's legs and buttocks were linear in nature. Dr. Jackson believed that the injuries to Maurice's legs were consistent with Maurice's statement during the examination that he had been hit with a belt. Dr. Jackson explained that the linear markings could have been caused by blows with a belt, while the sores with scabs could have been caused by the belt buckle taking out small pieces of flesh. Following this examination, Dr. Jackson filed a child protection form with the social services department to alert the department that Maurice might be a battered child. Dr. Jackson testified that in his opinion, Maurice was the victim of child abuse.

Cree's custody of the boys was terminated on February 29, 1984. Maurice was taken to the home of a new foster parent, Florentine Peltier. Phillip remained in the hospital.

On March 5, 1984, Dr. Eisenberg took over Phillip's hospital treatment. Dr. Eisenberg described Phillip's injuries in a manner consistent with the descriptions of Drs. McBane and Montaniel. Dr. Eisenberg also was concerned with Phillip's emotional condition; Dr. Eisenberg observed that Phillip seemed frightened of anyone who was dark skinned or native American. Dr. Eisenberg testified that he believed Phillip was suffering from battered child syndrome, a condition Dr. Eisenberg defined as "a collection of symptoms and presentations that indicate [the] child has been abused either on one occasion or several occasions...." Trial Transcript (Tr.) at 230.

At the request of FBI Special Agent Spencer Hellekson and Bureau of Indian Affairs Criminal Investigator Ken Morsette, a clinical social worker, Susan Chaussee, agreed to interview Maurice to see if Maurice could explain how Phillip and he had been injured. Three videotaped interviews were conducted in March 1984. At trial, Chaussee was permitted to testify as to what Maurice told her during these interviews.4

Chaussee testified that Maurice initially was afraid of her and that at one point during the first interview, she asked Morsette to come into the interview room because Maurice appeared to be comfortable around Morsette. Chaussee additionally testified that in the first two interviews, Maurice talked about (1) being hit by Patty with a belt and with a stick; (2) Phillip being hit by Patty; (3) Phillip being hit by Andy (Andrew Shaw was the man with whom Cree and the boys lived) with a rubber overshoe; and (4) Phillip's leg injury having occurred as a result of Phillip being pushed by Patty down a flight of stairs. Chaussee testified that in the third interview, Maurice did not want to talk about anything and that when she asked Maurice if he had been told by someone not to talk, he replied, "Flo." Chaussee also testified that she observed many of the above-described physical injuries to Maurice. Chaussee concluded, based on what Maurice had told her, that Maurice was an abused child.

On April 18, 1984, Agent Hellekson obtained a warrant to search the Cree/Shaw residence for items that Maurice had indicated were used to beat Phillip and him. Agent Hellekson took items seized in this search to the Peltier residence, where Maurice was living. Agent Hellekson testified that Maurice became excited when he was shown some of the items and that with respect to several of the items, Maurice answered affirmatively when asked if Cree or Shaw had hit him with them.

On appeal, Cree argues (1) that the District Court erred in admitting under Rule 803(24) of the Federal Rules of Evidence the testimony of Chaussee and Agent Hellekson concerning hearsay statements made by Maurice Alberts that identify Cree and Shaw as being responsible for the physical injuries to the Alberts boys and (2) that even if such testimony was admissible under Rule 803(24), its admission violated her Sixth Amendment right of confrontation. We reject Cree's claims and affirm her conviction.

A statement not specifically covered by [the exceptions in Fed.R.Evid. 803(1) to (23) ] but having equivalent circumstantial guarantees of trustworthiness [is not excluded by the hearsay rule even if the declarant is available as a witness], 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 [the Federal Rules of Evidence] 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, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Fed.R.Evid. 803(24). Thus, "[t]here are five requirements for admission under Rule 803(24): (1) trustworthiness; (2) materiality; (3) probative value; (4) the interests of justice; and (5) notice." Moffett v. McCauley, 724 F.2d 581, 583 (7th Cir.1984); see also J. Weinstein & M. Berger, Weinstein's Evidence, p 803(24), at 803-372 to -381 (1984). The trial court is entitled to a " 'considerable measure of discretion' in deciding whether to admit hearsay evidence under Rule 803(24)," 724 F.2d at 583, and its "determination of admissibility of evidence under Rule 803(24) will not be overturned on appeal except for an abuse of discretion." United States v. Friedman, 593 F.2d 109, 118 (9th Cir.1979).

Cree does not dispute that Maurice's statements, to which Chaussee and Agent Hellekson testified, meet the requirements of materiality and probative value. Nor does Cree claim that the notice requirement of Rule 804(24) was not met. Cree challenges the admission of Chaussee's and Agent Hellekson's testimony concerning these statements on the grounds that the statements do not have the necessary guarantees of trustworthiness and that their admission does not serve the interests of justice. We reject these claims by Cree.

There are substantial guarantees of trustworthiness attending the statements in question. Maurice's statements to Chaussee and Agent Hellekson that Phillip and he were hit with various objects by Cree and Shaw are substantiated by extensive, objective medical evidence of injuries that easily could have resulted from the abusive acts of Cree and Shaw stated by Maurice to have occurred. Similarly, the expert testimony of two physicians who examined Phillip and one physician who examined Maurice that these patients were victims of physical abuse supports Maurice's statements. Additionally, the record contains (1) evidence that when two school officials who examined an injury to Maurice's hand asked Maurice how the injury occurred, Maurice stated that Patty did it;5 (2) evidence that when asked by an examining physician how he had been injured, Maurice replied that he had been hit with a belt; and (3) evidence that Maurice became visibly excited when Agent Hellekson showed him certain items that Maurice earlier had indicated were the instrumentalities of abuse in this case and that officers had seized during a search of the Cree/Shaw residence. Finally, Maurice's age is a significant factor supporting the finding that the challenged statements are trustworthy. See Roberts v. Hollocher, 664 F.2d 200, 205 (8th Cir.1981) (Court noted that in United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1709, 68 L. Ed. 2d 203 (1981), the child declarant's age of nine years "was a factor supporting admissibility and assuring trustworthiness"); accord United States v. Nick, 604 F.2d 1199, 1204 (9th Cir.1979). It is highly unlikely that a four-year-old child would fabricate such accusations of abuse. Thus, having carefully reviewed the record, we conclude that the Rule 803(24) requirement of trustworthiness was satisfied in this case.6

We also conclude that the interests of justice were duly served by the admission into evidence of testimony concerning Maurice's statements. The propriety of requiring extremely young victims of abuse to take the stand as the only method for putting before the jury what is, in all probability, the only first-hand account of the circumstances of abuse other than that of the defendant is debatable. See generally Parker, The Rights of Child Witnesses: Is the Court a Protector or Perpetrator?, 17 New Eng.L.Rev. 643 (1982). In a more relaxed environment, the child in this case was able to provide his version of the relevant events and yet avoid a potentially traumatic courtroom encounter. In our opinion, the interests of justice thus were served by the admission of the challenged testimony.7

Rule 803(24) provides a trial court with some flexibility when it must make a determination as to the admissibility of hearsay evidence, and there is no specific rule governing admissibility. While evidence should be admitted under Rule 803(24) in only those cases presenting exceptional circumstances, it is hard to imagine many cases more compelling than this case. Accordingly, we hold that the District Court did not abuse its discretion by admitting into evidence the testimony of Chaussee and Agent Hellekson concerning certain statements made to them by Maurice Alberts.

Cree also claims that by admitting this testimony, her Sixth Amendment right to confront a witness against her, i.e., Maurice, was violated. We need not consider the merits of this claim, however, because we hold that Cree waived her right to confront Maurice.

In its pretrial ruling on the admissibility of testimony by Chaussee, the District Court stated that Maurice "can be available just for viewing by the jury and an effort, if possible to believe and interrogate [him]." Motion in Limine Transcript at 18. It is reasonably clear that the court postponed a decision regarding Maurice's ability to testify at trial until such time as Maurice might have been called as a witness. The defense did not seek a definitive pretrial ruling on Maurice's qualification to testify. And Maurice was present at trial, but the defense did not call him to the stand. In short, the defense did not make even the slightest attempt to confront Maurice. The prosecution of course had no need to pursue the matter of Maurice testifying; the District Court already had ruled in the prosecution's favor concerning admission of the testimony of Chaussee and Agent Hellekson, thus obviating the need to call Maurice as a witness for the prosecution. We decline to hold that a defendant's right of confrontation mandates that the prosecution call to the stand a person who is available to be called by either side simply because cross-examination of that person may be favorable to the defense.

We note that under the particular circumstances of this case, the District Court may have ruled that Maurice was not qualified to testify, even if the defense had attempted to secure his testimony. If that had occurred, further examination of Cree's Sixth Amendment claim would be necessary. We merely hold that a defendant cannot proceed under the assumption that a witness would have been found incompetent or legally unavailable and thereafter make claims on appeal pursuant to that assumption. We also recognize that to call a young child to the stand for rigorous, in-court examination may not create an impression with the jury that is favorable to the defense. That, however, is a tactical consideration for the defense, not a reason to find that the defendant's right of confrontation has been violated.

For the reasons set forth above, the judgment of the District Court is affirmed.

JOHN W. OLIVER, Senior District Judge, dissenting.

I respectfully dissent from the majority opinion's affirmance of the judgment of the district court for the reason that the majority of this panel elected on its own motion, without any suggestion from government's counsel and without the benefit of any written or oral arguments from either of the parties, to reach the merits of only one of the two issues presented on appeal.

Those two issues, both of which the majority opinion concedes were properly preserved for appellate review, present the separate questions of whether Maurice's out-of-court statements made to Chaussee and to Agent Hellekson during the criminal investigation of this case were admissible in evidence through the hearsay testimony of Chaussee and Agent Hellekson over defendant Cree's objections based (1) on hearsay grounds and (2) on the confrontation clause of the Sixth Amendment.

I also dissent from the majority opinion's determination of the merits of the Rule 803(24) hearsay issue. I do not believe that determination is supported by the record, or by the legal authority cited, and that it is in conflict with controlling Eighth Circuit decisions. I further dissent because I believe that the majority opinion's refusal to reach the merits of the Sixth Amendment confrontation clause is in conflict with controlling Supreme Court and Eighth Circuit decisions and is also in conflict with decisions of the Courts of Appeal of other circuits. I believe that, under the theory upon which the majority opinion was based, the majority opinion should have reached and should have decided the merits of defendant Cree's Sixth Amendment confrontation clause claim in her favor in accordance with controlling Supreme Court and Eighth Circuit decisions and in accordance with the rationale of other federal and State court decisions that have considered the same question.1

I shall first state the procedural history of the case in greater detail than stated in the majority opinion in order to put the three issues in more appropriate focus for analysis.

The record establishes that this case was complicated by the manner in which the district court treated the government's joint Rule 803(24) and Rule 804(5) notice that the government filed pursuant to the residual clauses of those two rules.2 The record shows that the Rule 803(24) and Rule 804(5) notice stated only that the government "intends to offer videotaped statements of Maurice Alberts at trial." (Emphasis added). That joint notice did not give any notice to anyone that the government intended to introduce any out-of-court statement of Maurice through the hearsay testimony of any trial witness.3

The record further shows that defendant Cree's pretrial motion in limine was based on both hearsay and confrontation clause grounds and that her motion expressly sought to exclude both (1) the videotapes identified in the government's joint Rule 803(24) and Rule 804(5) notice and (2) any and all hearsay testimony that any government witness might give in regard to any out-of-court statement that Maurice may have made at any time during the course of the criminal investigation of this case.4

Cree's brief in support of her pretrial motion in limine cited 13 Supreme Court cases in support of her Sixth Amendment claim: Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); Brookhart v. Janis, 384 U.S. 1, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966); Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966); Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); Smith v. Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968); Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Berger v. California, 393 U.S. 314, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969); Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); and Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969). See page 4 of Defendant Cree's brief in support of her motion in limine.

The government's opposition brief to the motion in limine, consistent with its joint Rule 803(24) and Rule 804(5) notice, was directed solely to the admissibility of Maurice's videotaped interviews. The government's brief, filed earlier on the day the district court had set the motion in limine for hearing, attached only selected portions of two of the three videotaped interviews as an exhibit to that brief. The government's brief expressly advised the district court that (1) the government intended to call Maurice as a witness at trial, and that (2) "the court will be asked to make an inquiry of the child, Maurice Alberts, as to his competency...." (Id. at 4).5

The record also shows that the United States Attorney had earlier sought the advice of the General Litigation and Legal Advice Section of the Criminal Division of the Department of Justice in Washington in regard to whether Maurice's videotapes were admissible in evidence. The Department of Justice responded to that request and forwarded its memorandum on the "Admissibility of Videotaped Interviews of Child Molestation Victim" to the United States Attorney. The government filed a copy of that Department of Justice memorandum with the district court at the same time it filed its brief in opposition to defendant Cree's motion in limine.6

The transcript of the brief pretrial proceedings conducted by the district court in regard to the motion in limine reflects that the district court had "not had an opportunity to read the government's brief...." (Mot. in limine Tr. at 3). That transcript shows that the district court, without taking time to read the government's brief and the Department of Justice memorandum, requested the United States Attorney to "generally cover the evidence which the government has in this matter ... what your investigation has shown." (Id. at 4).

After the United States Attorney responded to that request, the district court was advised that the transcript of the selected portions of the videotapes attached to the government's brief were but a small portion of only two of the three of Maurice's videotaped interviews and that if "you run the tape in total it would be approximately three hours." (Id. at 9).7 Thereafter, the district court decided to view only "that portion [of the videotapes] which the social worker feels is relevant." (Id. at 11).

The record establishes that the district court, in fact, viewed only portions of videotapes of the first two videotaped interviews.8 The record shows that after the district court had viewed only portions of only two of the three videotapes, it stated that it would hear argument from counsel. (Id. at 13). Neither the government nor the defense, however, presented any legal argument at that time nor at any other time during the brief pretrial proceeding conducted by the district court in connection with the motion in limine. None of the numerous cases cited in briefs of the parties or in the Department of Justice memorandum were ever mentioned, either by counsel or by the district court.9 The record shows, however, that the district court immediately proceeded to rule the motion in limine from the bench.

The record establishes that the district court's ruling was based solely on its view of only portions of two of Maurice's three videotaped interviews. The record further establishes that the district court did not conduct any separate pretrial proceeding to determine Maurice's availability or unavailability as a trial witness as the government had requested.10

The record shows that the district court first indicated how it intended to rule the motion by stating that "[m]y ruling will be is that we are dealing with Rule 803, hearsay, exceptions to the hearsay [rule] and 803 is entitled hearsay exceptions, availability of declarant." It then stated that "the declarant in this case is a four-year-old child" and that the "exception to the hearsay [rule] would be the testimony of the social worker." (Id. at 17). The district court then stated that "my inclination is, first of all, I'm going to allow the evidence to go in" and that the evidence "should go in by way of interrogation of the social worker and what ... was told to the social worker by this child,...." (Id. at 18).

The record shows that the district court confirmed its intended denial of defendant Cree's motion in limine by stating that:

That's my ruling. You may put the social worker on. Social worker will be permitted to testify as to what the child told her, ... I think the social worker is a competent witness under Rule 24 to testify. Social worker then, of course, is subject to cross examination.

(Id. at 18-19).11

The record establishes that the district court did not cite any evidence or any legal authority in support of its ruling that defendant Cree's motion should be denied. The record further shows that when the district court made its trial ruling that the hearsay testimony of Agent Hellekson was admissible in evidence, it assumed that the hearsay and confrontation clause questions presented in regard to Agent Hellekson's hearsay testimony were identical to those presented in regard to witness Chaussee. For the record shows that when the district court overruled defendants' trial objections to Agent Hellekson's hearsay testimony, it expressly stated that at "the [pretrial] hearing on this matter, Court ruled that the social worker pursuant to Rule 803 (24) would be permitted to testify as to ... her conversations with the four-year-old Maurice Alberts" and that it would be "on that basis the Court is going to allow this witness [Agent Hellekson] to testify as to the statements made to him by the four-year-old." (Emphasis added). (Trial Tr. at 240 and 241).12

I turn now to the majority opinion's refusal to consider the confrontation clause question presented based on its finding and theory of waiver.

Part II of the majority opinion summarily, on its own motion and without the citation of any legal authority, refused to consider the merits of defendant Cree's Sixth Amendment confrontation clause claim. That opinion states that "[w]e need not consider the merits of this claim ... because we hold that Cree waived her right to confront Maurice." (at 478).

The majority opinion, again without the citation of any legal authority, made clear that "[w]e decline to hold that a defendant's right of confrontation mandates that the prosecution call to the stand a person who is available to be called by either side simply because cross-examination of that person may be favorable to the defense." (Emphasis added). (Id. at 10).13 The majority opinion further states in its last paragraph that "further examination of Cree's Sixth Amendment claim [by this Court] would be necessary" only in the event "the defense had attempted to secure his testimony" and that "a defendant cannot proceed under the assumption that a witness would have been found incompetent or legally unavailable and thereafter [to be entitled to] make claims on appeal pursuant to that assumption." (Emphasis added). (Id. at 10).14

Finally, and most important, it must be noted that the majority opinion concluded that a defendant's failure "to call a young child to the stand" for the purpose of establishing that the witness may be "unavailable" as a trial witness for the prosecution must be considered as "a tactical consideration for the defense, not a reason to find that the defendant's right of confrontation has been violated." (Id. at 10). It is thus clear that the majority opinion is based on a theory, adopted without the benefit of briefs or arguments of the parties, that defendant Cree's failure to call Maurice to the stand must be considered as a waiver of her Sixth Amendment right to be confronted by the witnesses against her. The record establishes, of course, that neither the district court nor anyone else ever advised defendant Cree that she had to do anything more than file her motion in limine and pray for an order that the district court exclude the hearsay testimony of all prosecution witnesses on both hearsay and confrontation clause grounds.

The factual circumstances upon which the majority opinion attempts to rely to support its waiver theory were stated as follows:

The defense did not seek a definitive pretrial ruling on Maurice's qualification to testify. And Maurice was present at trial, but the defense did not call him to the stand. In short, the defense did not make even the slightest attempt to confront Maurice. (Emphasis added).

(at 478).

No principle of constitutional law with which I am familiar supports a conclusion that "the defense " is under any duty to "seek a definitive pretrial ruling [in regard to a prosecution witness'] qualification to testify." I have always understood that the prosecution is required to call to the witness stand and to qualify all prosecution witnesses in order to carry the constitutional burden of proving its case against the defendant beyond reasonable doubt. See Francis, Warden v. Franklin, --- U.S. ----, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). Nor do I know of any legal authority that can be said to support a conclusion that "the defense " is ever under any duty to call any prosecution witness to the witness stand in the trial of any criminal case.15

We turn now to the Supreme Court and Eighth Circuit cases and to cases decided by other circuits that have articulated the standards for determining when a defendant can be said to have waived his rights under the confrontation clause of the Sixth Amendment.

The standard applicable to the waiver of a defendant's Sixth Amendment right of confrontation, as initially stated almost fifty years ago in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), was reiterated almost twenty years ago in Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 1246, 16 L. Ed. 2d 314 (1966). The Court there held, without dissent, that:

There is a presumption against the waiver of constitutional rights, see, e.g., Glasser v. United States, 315 U.S. 60, 70-71 [62 S. Ct. 457, 464-65, 86 L. Ed. 680], and for a waiver to be effective it must be clearly established that there was "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461.16

Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980), summarized the near-century of jurisprudence reflected by the numerous confrontation clause cases decided by the Court over the years by stating that "when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable." (Id. at 66, 100 S. Ct. at 2539). Ohio v. Roberts further made clear that when the words "available" and "unavailable" are used in the constitutional sense of the confrontation clause of the Sixth Amendment, those words are to be understood as referring to the factual circumstance of whether the hearsay declarant is "available" or "unavailable" for purpose of confrontation of the defendant as a trial witness. And, as that case expressly held, the burden rests on "the prosecution ... [to] demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant." (Emphasis added). (448 U.S. at 65, 100 S. Ct. at 2538).

The Eighth Circuit, in its post-Ohio v. Roberts case of United States v. Massa, 740 F.2d 629, 640 n. 6 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S. Ct. 2357, 86 L. Ed. 2d 258 (1985), by way of dictum, rejected the argument that a defendant is under any duty to call an available prosecution witness to the witness stand. Massa considered, but found that it was unnecessary to decide on harmless error grounds, an "additional question, not pressed by the government in its brief, of whether the confrontation clause prevents the use of hearsay statements when the declarant is available to both sides." It is my view that the panel of this Court deciding this case is under duty to look to the rationale of Massa in regard to whether it can be said, as the majority opinion did say, that no duty rests upon "the prosecution to call to the stand a person who is available to be called by either side." (at 478).

Massa rejected the government's argument made in that case, based on two pre-Ohio v. Roberts Ninth Circuit cases, that the defense, rather than the prosecution, was under duty to call a declarant available to both sides to the witness stand.17 Massa noted that the two Ninth Circuit cases were decided before Ohio v. Roberts and concluded that "[w]e read Roberts, ... to place the burden on the government to make available for cross-examination a witness whose out-of-court statements it is using against the defendant." (Emphasis added). (740 F.2d at 640 n. 6). Massa based that conclusion on and quoted Ohio v. Roberts' holding in 448 U.S. at 66, 100 S. Ct. at 2539 that

when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Every circuit that has ruled the waiver question, in cases decided both before and after Ohio v. Roberts, has rejected the argument that a defendant is under any duty to call an available prosecution witness under pain of waiver of the right guaranteed him by the confrontation clause of the Sixth Amendment. The Fifth Circuit in Hoover v. Beto, 439 F.2d 913 (5th Cir.1971), for example, decided before Ohio v. Roberts, presented the question of whether the defendant was denied his right to confront a person named Sellars whose out-of-court statements were introduced in evidence against him through the hearsay testimony of a police officer--the precise factual situation presented in this case in regard to the admission of Maurice's out-of-court statements introduced in evidence through the hearsay testimony of Agent Hellekson. The Fifth Circuit expressly noted that Sellars was "available" to be called as a witness by either the prosecution or the defendant.18

Hoover v. Beto reversed the district court's denial of a State prisoner's petition for habeas corpus, concluding that the fact "Sellars was available to be called as a witness [by either side] does not mitigate the prosecution's misconduct here." The Fifth Circuit added that:

To accept the State's argument that the availability of Sellars is the equivalent of putting him on the stand and subjecting him to cross-examination would severely alter the presumptions of innocence and the burdens of proof which protect the accused. Hoover's undoubted right to call Sellars as a witness in his behalf cannot be substituted for his Sixth Amendment right to confront Sellars as a witness against him.19 (Emphasis added).

(439 F.2d at 924).

The Seventh Circuit case of Simmons v. United States, 440 F.2d 890 (7th Cir.1971), also decided before Ohio v. Roberts, was an appeal from the district court's denial of a Section 2255 motion. The defendant's motion had been denied by the district court on the ground that the defendant, at trial, could have called the declarant "as a witness, or have asked the court to call him as a court witness, and presumably would have been permitted to cross-examine him." (440 F.2d at 891).

The Seventh Circuit reversed, holding that "where an extrajudicial declaration is used under circumstances such that the opportunity to cross-examine the declarant is essential to a defendant's right of confrontation, it must be the government's burden to produce the declarant." (Emphasis added). (Id. at 891). The Seventh Circuit concluded that "[m]ere availability, in the sense that defendant could have subpoenaed him, does not, in our opinion, suffice." (Id. at 891).

The Third Circuit, in United States ex rel. Thomas v. Cuyler, 548 F.2d 460, 463 (3rd Cir.1977), still another pre-Ohio v. Roberts case, adopted the rationale stated in Justice Harlan's frequently cited concurring opinion in California v. Green, 399 U.S. 149, 174, 90 S. Ct. 1930, 1943, 26 L. Ed. 2d 489 (1970), which stated that "the Confrontation Clause of the Sixth Amendment reaches no farther than to require the prosecution to produce any available witness whose declarations it seeks to use in a criminal trial." (Emphasis Justice Harlan). (548 F.2d at 463). The Third Circuit held that Justice Harlan's "produce any available witness" conclusion must be understood to mean that if an available witness' hearsay testimony is to be admitted in evidence, the prosecution must not only "produce " that witness "but [the witness] must also be sworn and made available for cross-examination " by the defendant. (Emphasis added). (548 F.2d at 463).20

The Ninth Circuit in United States v. Fielding, 630 F.2d 1357, 1359 (9th Cir.1980), decided after Ohio v. Roberts, reversed a defendant's conviction on both hearsay and confrontation clause grounds.21 The original panel opinion in that case noted that the out-of-court statements of one Bobby Flores were admitted in evidence through the hearsay testimony of witnesses Wagner and McClary. In that case, as in this case, the "record is silent as to whether or not Bobby Flores was available as a witness at trial." (Id. at 1368).

The original panel opinion in Fielding noted, however, that "[a]t oral argument ... the appellee conceded that Bobby Flores was available but that it had simply not called him as a witness." (Emphasis added). (Id. at 1368). Fielding held that: "Because Bobby Flores was available as a witness and not produced at trial, [by the prosecution] the use of his hearsay declarations violated the Confrontation Clause." (Emphasis added). (Id. at 1368).

I conclude from the cases decided by the Supreme Court and by the Third, Fifth, Seventh, Eighth, and Ninth Circuits above discussed that it cannot properly be concluded that the defendant Cree in any way waived her right to have her confrontation clause claim determined on the merits by this Court and that the waiver decision in the majority opinion is in direct conflict with the decisions of the cases above cited.

I turn now to how I believe the confrontation clause question presented in this case should have been decided on the merits.

As I have stated, I would reverse the district court and remand the case for a new trial solely on hearsay grounds and thus would not need to reach the constitutional question presented under the confrontation clause.22 It is necessary, however, that I reach the merits of the confrontation issue for the reason that the majority opinion concluded that the hearsay testimony of Chaussee and Agent Hellekson was admissible in evidence under a new child witness exception to the hearsay rule that it recognized under the residual clause of Rule 803(24).

The Sixth Amendment provides in part that: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." All lower federal and all State courts are under duty to interpret and apply the exceptions that the Supreme Court has recognized in regard to that constitutional guarantee in accordance with the numerous and sometimes conflicting decisions of the Supreme Court of the United States. For, as Ohio v. Roberts pointed out, "[i]f one were to read this [confrontation clause] language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial." (448 U.S. at 63, 100 S. Ct. at 2537).23

Discussion of the confrontation clause issue presented on this appeal must commence in light of the fact that the memorandum of law entitled "Admissibility of Videotaped Interviews of Child Molestation Victim," prepared by the Department of Justice in Washington, and filed by the government in opposition to defendant Cree's motion in limine, properly cited the controlling Eighth Circuit videotape confrontation clause case of United States v. Benfield, 593 F.2d 815 (8th Cir.1979). For Benfield, although decided before Ohio v. Roberts, establishes that Maurice's videotaped interviews, identified in the government's joint 803(24) and 804(5) notice, were inadmissible in evidence under the confrontation clause. Application of Benfield' § rationale to the factual circumstances of this case, in my view, also requires a conclusion that the hearsay testimony elicited from Chaussee and Agent Hellekson was also inadmissible under the confrontation clause regardless of the fact that Maurice's out-of-court statements to those two witnesses may, or may not have been, recorded on videotape.

For Benfield' § decision, as I read that case, was not in any way based on the fact that the court reporter who took the Rule 15 deposition authorized by the district court in that case had not accurately and reliably transcribed the declarant-victim's out-of-court statements at the time that deposition was taken. I further believe that the panel deciding this appeal is under duty to recognize that the recent Eighth Circuit case of United States v. Terrazas-Montano, 747 F.2d 467 (8th Cir.1984), properly recognized Benfield authority and that Terrazas-Montano distinguished Benfield solely on the facts.

Terrazas-Montano, decided after Ohio v. Roberts, properly concluded that the hearing testimony of a prosecution witness, regardless of whether the declarant's statements were recorded on videotape, are inadmissible in evidence under the confrontation clause unless and until the prosecution carried the burden of establishing both predicates for admissibility under the confrontation clause as stated in Ohio v. Roberts' dual standard.

The record establishes that the district court failed to recognize the mandate of Ohio v. Roberts, Benfield, and Terrazas-Montano at the time defendant Cree's objections, based on both hearsay and confrontation grounds, were overruled by the district court. It is therefore appropriate that I discuss the rationale of those two controlling Eighth Circuit cases in some greater detail.

Both Benfield, and Terrazas-Montano involved Rule 15 videotaped depositions of a government witness authorized by district court order. The Rule 15 order that authorized the deposition involved in Benfield, however, contained a provision that the defendant could only be "present at the deposition but not within the vision of Mrs. Patricia Cody," the victim of the crime. The Rule 15 order in Terrazas-Montano did not contain a similar restrictive provision.

Benfield concluded that the earlier Supreme Court Sixth Amendment cases of Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895), Kirby v. United States, 174 U.S. 47, 19 S. Ct. 574, 43 L. Ed. 890 (1899), Dowdell v. United States, 221 U.S. 325, 31 S. Ct. 590, 55 L. Ed. 753 (1911), and Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934), "all support [the] view" that "[n]ormally the right of confrontation includes a face-to-face meeting at trial at which time cross-examination takes place." (Emphasis added). (593 F.2d at 821).24 Benfield noted that on the facts of that case, the "defendant was not allowed to confront the witness face to face" under the conditions of the district court's Rule 15 order and accordingly reversed the defendant's conviction on the ground the defendant had been denied rights guaranteed him by the confrontation clause of the Sixth Amendment.25 (Id. at 822).

In Terrazas-Montano the Rule 15 videotape depositions authorized by the district court in that case did not in any way curtail the "face to face meeting" aspect of the confrontation rights of the defendant. The Terrazas-Montano panel accordingly concluded that "Benfield is easily distinguished from the case at bar." (747 F.2d at 469). It is important to note that Terrazas-Montano recognized and applied the dual standard of Ohio v. Roberts to the factual circumstances of that case.26

Terrazas-Montano is obviously distinguishable on its facts from this case. For the defendant in Terrazas-Montano was fully accorded both the right to meet the declarant face-to-face and the right to fully cross-examine the declarant in the course of the Rule 15 deposition taken pursuant to an unrestricted order of the district court in that case. In this case, however, the record establishes that all of Maurice's out-of-court statements that were admitted in evidence through the hearsay testimony of both Chaussee and Agent Hellekson were made under the circumstances of a criminal investigation which obviously deprived defendant Cree of any opportunity to meet Maurice face-to-face or to cross-examine him.27

It is appropriate that the factual circumstance that Maurice's out-of-court statements to Chaussee were recorded on videotape and those made to Agent Hellekson were not, be laid to one side. It is my view, that the district court should have conducted appropriate pretrial inquiry in regard to the separate questions of (1) whether Maurice was, in fact, "unavailable" for confrontation purposes as required by the first aspect of Ohio v. Roberts' dual standard, and (2) whether the factual circumstances under which Maurice's out-of-court statements, made as they were at entirely different times to two different witnesses, could be said, on the facts, to satisfy the second "indicia of reliability" aspect of Ohio v. Roberts' dual standard.

I do not believe that application of the dual standard of Ohio v. Roberts to the factual circumstances of this case is a difficult task. The district court expressly stated in its order denying defendant Cree's motion for new trial, contrary to the record, that "the child [was, in fact,] available during the trial for [purposes of] cross examination." (Memorandum and Order of July 16, 1984, p. 3). And the majority opinion proceeds on the factual assumption, again without any support in the record, that "Maurice was present at trial [but that] the defense did not call him to the stand." (Majority at 478). In short, the district court rulings and the majority opinion are both based on the untenable factual assumption that Maurice was, in fact, "available" as a witness at the trial.28

The record, as I read it, establishes beyond doubt that the government failed to carry its burden of establishing the requisite element of Maurice's "unavailability" as a trial witness as mandated by the first aspect of Ohio v. Roberts' dual standard. A court of appeals, in my view, cannot properly make a finding in regard to Maurice's "unavailability" as a trial witness for confrontation clause purposes; for it is the duty of the district court to make all necessary findings of fact in the trial of a criminal case.

I would accordingly reverse and remand with directions that the district court, before commencement of a new trial, conduct an appropriate pretrial inquiry and determine on the record whether Maurice, under the standards stated in Wheeler v. United States, 159 U.S. 523, 16 S. Ct. 93, 40 L. Ed. 244 (1895),29 is, or is not, "available" as a witness within the meaning of the first aspect of Ohio v. Roberts' dual standard.

In regard to the second reliability aspect of Ohio v. Roberts' dual standard, I do not believe that the record can be said to support any finding that the government established any "indicia of reliability" in regard to the circumstances under which Maurice's out-of-court statements were made to witness Chaussee. And certainly the record establishes that the government never introduced any evidence as to the reliability of the circumstances under which Maurice made his out-of-court statements to Agent Hellekson. And, once again, I do not believe the panel of this Court can make any findings of fact in regard to the circumstances under which Maurice made his out-of-court statements to Agent Hellekson.

In detailed regard to Chaussee, the record is clear that the district court viewed only portions of two of the three videotapes. Neither the district court nor this Court has any way of knowing what might appear on the unviewed portions of the first two tapes. For neither the unviewed portions of all three videotapes nor any other evidence pertaining to the unviewed portions was ever adduced in the district court.30 For the reasons stated, I believe this Court should hold that the record shows that the government failed to carry the burden of showing that Ohio v. Roberts' reliability requirement for confrontation purposes had been met in regard to Chaussee's hearsay testimony.

In detailed regard to Agent Hellekson, the record, as I have noted, is absolutely silent in regard to whether any "indicia of reliability" could be said to exist in regard to the circumstances under which Maurice made his out-of-court statements to Agent Hellekson. I believe that this case should be reversed and remanded on the ground, standing alone, that the district court erred when it admitted Agent Hellekson's testimony over defendant Cree's objection based on both hearsay and confrontation grounds.31

The government's response to a request made of counsel by Judge Ross at oral argument removes any doubt about the government's position in regard to whether it was under any duty to establish either of the two requirements of Ohio v. Roberts' dual standard. Judge Ross requested counsel to comment in writing on two recently decided State court cases which, at the time of oral argument, had only been digested in 36 Cr.L. 1051 and 36 Cr.L. 2221. Both cases have since been fully and officially reported. State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (Sup.Ct. of Wash. en banc 1984), and State v. Pendelton, 10 Kan. App. 2d 26, 690 P.2d 959 (Kan.Ct.App.1984).32 Both cases recognized and applied Ohio v. Roberts' dual standard to the factual circumstances before each court.

In Ryan, the Supreme Court of Washington en banc considered the appeal of a defendant convicted of taking indecent liberties of a four-year-old boy, "M", and a five-year-old boy "J". The out-of-court statements of both boys had been admitted in evidence through the hearsay testimony of M's mother and aunt, and J's mother. (691 P.2d at 201). The Ryan court expressly noted that "[b]oth parties stipulated that the boys were incompetent" to testify at trial. (Id. at 200).33

The Ryan court reversed the defendant's conviction on the ground that the trial court's "admission of the statements did not comply with the statute's requirements, and resulted in a denial of defendant's right of confrontation under the sixth amendment to the United States Constitution and Const. art. 1, Sec. 22."34 (Id. at 200).

Ryan, in express reliance upon Ohio v. Roberts' dual standard, reversed the defendant's conviction for the reason that "[n]either unavailability nor reliability were shown prior to admitting the hearsay testimony." (Id. at 202). The Supreme Court of Washington en banc, properly concluded that the "Sixth Amendment requires a demonstration of unavailability when the declarant witness is not produced. Roberts, 448 U.S. at 65, 100 S. Ct. at 2538" (id. at 202).35

Ryan rejected the State's argument that the boys should be considered to be "unavailable" within the meaning of Ohio v. Roberts' first requirement, based on the ground that the parties had "stipulated that the boys were incompetent." Ryan rejected that argument for the reason that it "is clear that children under 10 are not statutorily incompetent" and because "[s]tipulated incompetency based on an erroneous understanding of statutory incompetency is too uncertain a basis to find unavailability."36 (Id. at 203).

In regard to the Ohio v. Roberts second requirement of reliability, the Ryan court, after detailed examination of the factual circumstance under which the two boys made their out-of-court statements to their mothers, concluded that the "time, content, and circumstances of the statements offered against Ryan do not bear adequate indicia of reliability sufficient to make cross-examination and face-to-face confrontation superfluous." (Id. at 206). It is particularly important to note for the purposes of this case that Ryan observed that the "trial court was apparently persuaded that the statements of the children must be reliable, if, in hindsight they prove to be true." (Emphasis added). (Id. at 204).

For the majority opinion's finding that "the Rule 803(24) requirement of trustworthiness was satisfied in this case" (at 478) was based on exactly the same theory as that accepted by the trial court in Ryan. Ryan concluded that the State's hindsight argument was untenable for the obvious reason that "[a]dequate indicia of reliability must be found in reference to circumstances surrounding the making of the out-of-court statement, and not from subsequent corroboration of the criminal act." (Emphasis added). (Id. at 204).37

In Pendelton, the Court of Appeals of Kansas, as did the Supreme Court of Washington in Ryan, recognized that it was under duty to follow and apply Ohio v. Roberts to the factual circumstance of the case before that court.38 Pendelton was an appeal from a conviction of aggravated indecent solicitation of two boys, "A", aged seven, and "L", aged eleven. The confrontation clause question was presented solely in regard to hearsay testimony of what A, the seven-year-old, had told his mother shortly after the occurrence of the crime for the reason that L, the eleven-year-old boy, was qualified as a trial witness and testified at trial. A's out-of-court statements were admitted through the hearsay testimony of his mother. The hearsay testimony of the mother was admitted pursuant to a relatively new Kansas statute, K.S.A. 60-460(dd)(2), which created a new exception to the Kansas hearsay rule.39

The trial court in Pendelton, in sharp contrast with the procedures followed by the district court in this case, conducted an appropriate pretrial hearing to determine A's availability or unavailability as a trial witness. The Court of Appeals of Kansas was therefore able to state on the basis of the trial court record that the State trial court properly "found, after a hearing, that A was unavailable as a witness because he could not relate in logical progression the sequence of events or factual situation that gives rise to the issues in the lawsuit." (Emphasis added) (Id at 962). That trial court finding, fully supported by the trial court record, was held to satisfy the first requirement of Ohio v. Roberts' dual standard.

Pendelton thus was required to consider Ohio v. Roberts' second requirement of reliability. The Pendelton court concluded in that regard that the circumstances under which A had made his out-of-court statements to his mother did, in fact, satisfy "the requirements of the Sixth Amendment" in that an "adequate indicia of reliability" had been established. Pendelton concluded that the trial court record established that "the child, at his first opportunity, initiated the conversation, relating the facts to his mother in a situation completely removed from threats or promises."40 (Id. at 962).

It is thus clear that Pendelton appropriately recognized the federal constitutional standards applicable to this case as stated in Ohio v. Roberts and did no more than apply those standards to a case which presented radically different procedural and factual circumstances.

The government complied with Judge Ross' request to comment on Ryan and Pendelton in a letter dated February 15, 1985. The government's response removes any doubt that throughout the pretrial proceedings, the trial of this case and on the appeal, the government has attempted to maintain the position that defendant Cree's objections to hearsay testimony on confrontation clause grounds present an identical question as that presented by defendant Cree's objections based on hearsay grounds.41

The government's February 15, 1985 response made every effort to cloud the fact that both Ryan and Pendelton were based on constitutional confrontation clause rather than hearsay grounds. For that response suggested that those two cases did no more than "recognize new statutory exceptions to the hearsay rule which facilitate the introduction of out-of-court statements by children in abuse cases." (Emphasis added).42

The government's response expressly conceded that the district judge in this case had "based his ruling on Rule 803(24), Federal Rules of Evidence" and argued "that unavailability of the hearsay declarant was immaterial." That statement, of course, reflects the position taken by the government at trial, a position fully adopted by the district court, that the constitutional standard for admissibility under the confrontation clause did not require the district court to make any finding of record in regard to the unavailability of the declarant as a trial witness.

The government's response reiterated the untenable position it has attempted to maintain throughout the pretrial proceedings, the trial, and the appeal of this case by flatly stating that both Ryan and Pendelton "support the proposition that hearsay statements of child witnesses can be admitted in the face of confrontation objections when such evidence meets [only] the tests for trustworthiness and reliability."43 (Emphasis added).

The government's response to Judge Ross' request does not even attempt to state any reason why Ryan or Pendelton were not properly decided on confrontation clause grounds. Nor does that response attempt to state any reason why the rationale of those two well-reasoned State appellate decisions should not be applied to the factual circumstances of this case.44

We turn now to the most recent appellate confrontation clause decision which happens, on its facts, to be by far, the closest to facts of this case.

The most recent State appellate court confrontation clause decision making application of Ohio v. Roberts' dual standard is State v. Campbell, 705 P.2d 694 (Supreme Court of Oregon In Banc), decided Aug. 20, 1985, (first digested in the October 2, 1985 issue of The Criminal Law Reporter, 38 CrL 2006-07). That case involved a defendant's appeal from a conviction of "two counts of Sodomy in the First Degree based upon a written confession of the defendant and the testimony of the mother of the victim relating to the court the child's statements made later in the same day that the abuse allegedly occurred." (Id. at 696).

The relevant factual circumstances in Campbell were identical to factual circumstances in this case except that Lucy, the three-year-old declarant in Campbell, was one year younger than Maurice and except for the fact that the record in Campbell established that the parties had entered into a formal stipulation and the defendant conceded on appeal that Lucy was "unavailable" as a trial witness. (Id. at 705).45 The Campbell court stated that "the sole issue on appeal is whether hearsay testimony by the mother of a three-year-old declarant who is the alleged victim of sexual abuse is admissible in evidence." (Emphasis added). (Id. at 695).46

Campbell reversed the defendant's conviction and remanded to the trial court with directions that on new trial, part of the mother's hearsay testimony would be admissible if, but only "if the defendant's confrontation rights are satisfied" on the second trial of the case. (Id. at 696). Campbell based its decision on both Article I, section 11, of the Oregon Constitution, which provides that a defendant in a criminal prosecution has the right "to meet the witnesses face to face," and the confrontation clause of the Sixth Amendment. Campbell concluded that because it must "decide state constitutional claims before federal constitutional issues are addressed" it was first required to determine whether the defendant's "right to meet the witnesses face to face" as guaranteed by the Oregon Constitution had been violated.

Campbell, however, made clear that: "In reaching this result on independent and separate state grounds under Article I, section 11, of the Oregon Constitution, we nevertheless adopt the reasoning of the Supreme Court of the United States in determining what constitutes unavailability of a hearsay declarant and what constitutes adequate indicia of reliability of hearsay declarations to satisfy our state constitutional confrontation clause." (Emphasis added). (Id. at 703). It is thus clear that the Supreme Court of Oregon recognized and applied federal confrontation standards to the sole issue presented on appeal in that case.

The Supreme Court of Oregon, in banc, held, under factual circumstances infinitely more favorable to the prosecution than those presented in this case, that the defendant's confrontation rights had been violated. Campbell accurately recognized that there "are no United States Supreme Court cases dealing with confrontation where children's hearsay statements have been introduced against a criminal defendant." (Id. at 703). Campbell, however, properly concluded that "the relationship between the confrontation clause and the exceptions to the rule against hearsay was addressed by the Supreme Court of the United States in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)." (Id. at 703).47

Campbell first focused on the question of whether the trial court record in that case supported the requisite finding that the three-year-old declarant was "unavailable" as a trial witness. Campbell expressly rejected the prosecution's argument that "unavailability" had been established by the formal stipulation of the parties, holding that "the question of unavailability of a hearsay declarant supposedly due to incompetency should not be left to the advocates in a criminal trial." (Id. at 705). The Supreme Court of Oregon cited, quoted from at length, and stated its agreement with the Supreme Court of Washington's decision in Ryan. Campbell held that:

If the court is going to admit hearsay statements against a defendant to satisfy the confrontation rights of an accused, the court must ensure the declarant is in fact unavailable. The prosecution has the burden to produce the potential witness for the competency hearing. The defendant has no burden to prove unavailability. (Emphasis added).

(Id. at 705).

The record in this case shows that the United States Attorney stated to the district court during the motion in limine proceeding, in obvious anticipation that the district court would conduct the pretrial hearing the government had requested to determine Maurice's availability as a witness, that "I think the experts will tell us" that "children of these tender years may not even be able to fabricate a story."48 (Motion in limine Tr. p. 15). Campbell, however, concluded that no one, particularly a trial court in the trial of a criminal case, could indulge in any assumption as to whether a particular three-year-old child would or would not be able to tell the truth if called as a trial witness.

The Campbell court stated that it was "aware that many three-year-olds are found to be incompetent after close evaluation by judges conducting trials." (Id. at 706). Campbell, however, added that it was also aware that "many children of tender years make remarkably credible witnesses for either the prosecution or the defense in a criminal trial." (Id. at 706). Campbell accordingly held that because "there is so much variance among children, we believe only the trial judge can make a ruling on competency." (Id. at 706). Campbell therefore stated that:

We hold, therefore, that before any out-of-court declaration of any available living witness may be offered against a defendant in a criminal trial, the witness must be produced and declared incompetent by the court to satisfy either Article I, section 11, of the Oregon Constitution, or the Sixth Amendment to the United States Constitution.49

For the reasons stated, I believe that this case should be reversed and remanded on the Sixth Amendment confrontation clause grounds, with directions that the district court proceed on a new trial in accordance with what I have stated in this dissenting opinion.

I turn now to how I believe the panel should have decided the hearsay issue presented and why I dissent from the majority opinion's determination of the merits of that question.

I dissent from the majority opinion's decision on the merits of the hearsay issue presented on appeal. For that decision, in my view, is directly contrary to how controlling Eighth Circuit cases have held the residual clause of Rule 803(24) must be construed and applied. I believe that those Eighth Circuit cases must be followed in all panel opinions until and unless those cases are overruled by the Court of Appeals, sitting en banc.

United States v. Carlson, 547 F.2d 1346, 1353, n. 3, (8th Cir.1976), cert. denied, 431 U.S. 914, 97 S. Ct. 2174, 53 L. Ed. 2d 224 (1977), held that "[b]asically, the same standards and evidentiary principles apply under Rule 803(24) and Rule 804(b)(5)." And United States v. Love, 592 F.2d 1022, 1026 (8th Cir.1979), held that the "history of Rule 804(b)(5) and its counterpart, Rule 803(24), indicates that Congress did not intend to create a broad new hearsay exception" and that "intent of Congress was that Rule 804(b)(5) would be used very rarely, and only in exceptional circumstances."50

United States v. Helmel, 769 F.2d 1306 (8th Cir.1985), is the most recent reflection of the Eighth Circuit's consistent reluctance to stretch Rule 803(24) beyond its limited purpose. Helmel reiterated the Eighth Circuit rule that the residual clause of Rule 803(24) "should be used very rarely, and only in exceptional circumstances," citing United States v. Love, supra. (769 F.2d at 1306, n. 12.).51

It is my view that the controlling Eighth Circuit cases mandate that Rule 803(24) be construed to require a district court to make express findings of record, supported by the record in a particular case, that a declarant's out-of-court statements were made at a time and at a place and under such exceptional circumstances that can be said to satisfy (1) the "circumstantial guarantees of trustworthiness" requirement of Rule 803(24) and (2) satisfy the further requirement of that rule that those guarantees are "equivalent" to the guarantees of trustworthiness upon which the traditional and firmly rooted hearsay exceptions codified in Rule 803(1) to (23) are based.

I would accordingly hold that the district court's admission of the hearsay testimony of Chaussee and Agent Hellekson under the residual clause of Rule 803(24), without conducting any appropriate hearing and without making any explicit findings of record in regard to whether the circumstances under which Maurice made his out-of-court statements to two different witnesses under totally different factual circumstances, in fact, satisfied the dual "equivalent circumstantial guarantees of trustworthiness" standard of Rule 803(24), requires this case to be reversed and remanded for a new trial.52

The majority opinion fails even to mention, much less discuss, Rule 803(24)'s express condition that the "circumstantial guarantees of trustworthiness" of any new hearsay exception to be recognized under that residual clause must be "equivalent" to those on which the firmly rooted exceptions codified in Rule 803(1) to (23) have been held to rest.53 The majority opinion, however, states on its page 8 that after it had "carefully reviewed the record, we conclude that the Rule 803(24) requirement of trustworthiness was satisfied in this case." (Emphasis added). It is my view that there are two things wrong with that statement. First, as I have just noted, Rule 803(24) does not have a single "trustworthiness" requirement.

Second, the majority opinion's "review of the record" did not make reference to any evidence in the record which in any way related to the circumstances under which Maurice made his out-of-court statements to either Chaussee or Agent Hellekson. The record establishes Maurice made his out-of-court statements to those two witnesses at different times and different places and under totally different circumstances.

The record, in my view, simply cannot be said to support the majority opinion's assumption of fact that all of Maurice's out-of-court statements that were admitted in evidence were made under circumstances that can be said to satisfy Rule 803(24)'s "equivalent circumstantial guarantees of trustworthiness" dual standard. For the record in this case, as I read it, simply does not contain any substantial relevant evidence that even relates to the questions upon which the satisfaction of Rule 803(24)'s dual standard could be based.

The majority opinion's assumption that the "equivalent circumstantial guarantees of trustworthiness" findings required by Rule 803(24) may be based on evidence which might be said to corroborate the commission of the crime is unsupported by and contrary to every case that has considered that question. There can be no question, however, that the majority opinion is based on that assumption. For on page 7 the majority opinion makes detailed reference to "objective medical evidence of Maurice's physical condition"; to "the expert testimony of two physicians"; to the testimony of the "two school officials"; and to "Maurice's age" as factors which the majority opinion stated would support its conclusion that "the Rule 803(24) requirement of trustworthiness was satisifed in this case." (at 477-478).

The record shows that the district court never made any findings in regard to the first requirement of Rule 803(24). Indeed, the district court did not even intimate that it based its Rule 803(24) rulings on any of the factual circumstances stated in the majority opinion. All of the "corrobative" factors relied upon by the majority opinion to support its ultimate Rule 803(24) "trustworthiness" conclusion relate to circumstances other than the factual circumstances under which Maurice made his out-of-court statements to Chaussee and Agent Hellekson. None of the cases or legal authority cited in the majority opinion support its Rule 803(24) decision.

The majority opinion, in my view, fails to recognize and apply the established Eighth Circuit rule, stated most recently in Helmel, that the residual clause of Rule 803(24) should only be "used very rarely, and only in exceptional circumstances." (769 F.2d at 1306, n. 12). The circumstances of this case cannot, in my judgment, be considered to be "exceptional" within the meaning of the Eighth Circuit rule simply because the declarant in this case was a child witness. All child abuse cases necessarily involve child witnesses. And, as the child abuse cases cited in this dissenting opinion demonstrate, no appellate court has ever considered that a child abuse case is the type of "rare" case in which a new and heretofore unrecognized exception to the hearsay rule should be created. In short, it is my view that the majority opinion's creation of a new child witness exception to the hearsay rule under the residual clause of Rule 803(24) is in conflict with established Eighth Circuit rule of decision.

I turn now to the cases cited and relied upon by the majority opinion.

The majority opinion cites only five cases, a few pages of Weinstein's Evidence, and one law review article to support its decision that a new child witness exception to the hearsay rule should be recognized under the residual clause of Rule 803(24). I do not believe that any of the cited legal authority can be said to support the majority opinion's decision of the hearsay issue presented on this appeal.

The majority opinion commences part I on page 476 of its opinion with a full quotation of Rule 803(24). In support of its decision that a new child witness exception should be recognized under that rule, the majority opinion then quoted a sentence from the Seventh Circuit case of Moffett v. McCauley, 724 F.2d 581, 583 (7th Cir.1984), then made a general citation to nine pages of Weinstein's Evidence, and added a short quotation from the Ninth Circuit case of United States v. Friedman, 593 F.2d 109, 118 (9th Cir.1979). Neither of the two cases cited, both decided by other circuits, in my view, support the majority opinion's construction and application of Rule 803(24).54 Nor do the cited pages of Weinstein's Evidence, p 804(24) at 803-372 to 381 (1984), support the majority opinion's construction and application of Rule 803(24). Indeed, those pages of Weinstein's Evidence accurately set forth the standards that must be recognized and applied by a district court in ruling a Rule 803(24) residual clause question and support this dissent rather than the majority opinion.

Weinstein's Evidence states on page 803-373 that: "Rule 803(24) requires five findings by the trial court. They should be made explicitly on the record, unless there is a waiver explicitly, or by silence, or the basis for the ruling is obvious." (Emphasis added). Chief Judge Weinstein further stated that the first of the five required findings that the district court must explicitly make on the record is a finding that "1) The statement must have 'circumstantial guarantees of trustworthiness' 'equivalent' to those in Rules 803(1) to (23)." (Emphasis added).55

The majority opinion on page 478 of its opinion cited or directed attention to three additional cases and one law review article to support its decision that a new child witness exception should be recognized under the residual clause of Rule 803(24): Roberts v. Hollocher, 664 F.2d 200, 205 (8th Cir.1981); United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1709, 68 L. Ed. 2d 203 (1981); United States v. Nick, 604 F.2d 1199 (9th Cir.1979); and Parker, The Rights of Child Witnesses: Is the Court a Protector or Perpetrator?, 17 New Eng.L.Rev. 643 (1982).

I cannot find anything in any of those cited cases that can be said to support the majority opinion's Rule 803(24) ruling. On the contrary, I find a great deal of what is said in those cases that supports an entirely different view in regard to how the majority opinion should have ruled both the hearsay issue and the confrontation clause issue presented on appeal in this case.

Roberts v. Hollocher, supra, the first of only two Eighth Circuit cases cited by the majority opinion, was a Section 1983 civil action for damages. That case did not mention Rule 803(24). It simply held that while hospital records are generally admissible under the firmly rooted hearsay exception codified in Rule 803(4), any statement regarding fault contained in such a record did not fall within the scope of the exception stated in that rule.

Nor was Rule 803(24) mentioned in United States v. Iron Shell, supra, the second Eighth Circuit case cited in the majority opinion. Iron Shell involved an appeal from a jury conviction of assault with intent to commit rape of a nine-year-old Indian girl. That case, like Roberts v. Hollocher, did not present a Rule 803(24) question.

Rather, Iron Shell presented questions (1) under the firmly rooted exceptions to the hearsay rule which are codified in Rule 803(4) (statements for purposes of medical diagnosis or treatment) and (2) under the equally firmly rooted exception codified in Rule 803(2) (a statement relating to a startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition).56 6] Iron Shell, like this case, also presented a confrontation clause question. Iron Shell, however, quite unlike this case, did not present any factual question in regard to the identity of the person charged with having committed the assault.57

The fact that the Eighth Circuit in Iron Shell affirmed the district court's rulings admitting the hearsay testimony of two witnesses in evidence under Rule 803(4) and Rule 803(2) in a case in which the declarant happened to be a nine-year-old Indian girl cannot, in my judgment, be said to support the majority opinion's conclusion that a new and heretofore unrecognized child witness exception to the hearsay rule should now be recognized under the residual clause of Rule 803(24) in a case in which the declarant happened to be a four-year-old Indian boy.

Both the majority opinion and Iron Shell cited the Ninth Circuit case of United States v. Nick, supra. Iron Shell, however, quite unlike the majority opinion, cited Nick in connection both with the hearsay questions and the confrontation clause issues presented in that case.58 Defendant's appeal in Nick was from his conviction for sexually assaulting a three-year-old Indian boy. The defendant in Nick contended on appeal, like defendant Cree claimed on her appeal in this case, that the district court erred "in admitting, over hearsay and confrontation clause objections, damaging statements of the victim reported in the testimony of the child's mother and his physician." (604 F.2d at 1200-1201).59 In regard to the hearsay issue Nick held that all five of the findings required by the residual clause of Rule 803(24) should be considered at a pretrial hearing to be conducted by the district court out of the presence of the jury.60

On the reliability issue presented in that case, Nick held that the out-of-court statements made by the child to the examining doctor and to his mother shortly after the assault were properly admitted in evidence under the firmly rooted exceptions to the hearsay rule codified in Rules 803(4) and 803(2).61

Nick, as I read that case, cannot be said to support the majority opinion's view that both Chaussee's and Agent Hellekson's hearsay testimony was properly admitted in evidence under the residual clause of Rule 803(24). For that case did not hold, as the Supreme Court of Oregon in Campbell recognized, that the hearsay testimony was admissible under the residual clause of Rule 803(24).

It is my considered view that recognition and application of the principles stated in Nick in regard to both the hearsay and confrontation clause issues to the factual circumstances of this case, requires the reversal and remand of this case.

I believe it appropriate to add that, although Nick's per curiam opinion was written over a year before the Supreme Court decided Ohio v. Roberts, the Ninth Circuit correctly anticipated the "indicia of reliability" standard that the Supreme Court eventually adopted in Ohio v. Roberts. Nick also anticipated Ohio v. Roberts' conclusion that if a declarant's out-of-court statement "falls within a firmly rooted hearsay exception ... its reliability can be inferred without more" and that the admission of the declarant's statement in evidence through the hearsay testimony of another witness would not violate either the hearsay rule or the confrontation clause.

In light of the majority opinion's citation and apparent reliance on Nick, it is appropriate that I discuss Nick's analysis of the relationship between the hearsay rule and the confrontation clause of the Sixth Amendment in some detail. I turn now to Nick's discussion of that relationship.

Nick, although decided before Ohio v. Roberts, appropriately recognized that a district court ruling that a declarant's out-of-court statement was admissible in evidence as an exception to the hearsay rule does not decide the question of whether the admission of the same hearsay statement in evidence might violate a defendant's Sixth Amendment confrontation right in a criminal case.62

Nick's analysis of the close relationship between the reliability criteria required under the confrontation clause and the "equivalent circumstantial guarantees of trustworthiness" reliability criteria required under Rule 803(24) supports the analysis I have made of the same subject in this dissenting opinion. For Nick made reference to Rule 803(24) only for the purpose of suggesting that the "equivalent circumstantial guarantee of trustworthiness" reliability criteria set forth as the first of the five findings required by the residual clause of that rule may be said to provide "a useful set of criteria to be used not only in weighing the admissibility of the evidence for hearsay rule purposes, but also for the purposes of the confrontation clause...." (Emphasis added). 604 F.2d at 1203.63

Ohio v. Roberts later made clear that the admissibility of hearsay testimony under a firmly rooted exception to the hearsay rule normally establishes reliability for confrontation purposes, without more. Ohio v. Roberts also later made clear that in all other cases, i.e., cases which did not involve firmly rooted exceptions to the hearsay rule, the out-of-court statements of an unavailable declarant are not admissible unless those statements were made under circumstances that could be said to carry an "indicia of reliability."

Ohio v. Roberts thus confirmed Nick's analysis that evidence that could be said to satisfy Rule 803(24)'s "equivalent circumstantial guarantees of trustworthiness" standard would, in other than the most exceptional circumstances, also satisfy the reliability standard of the confrontation clause which Ohio v. Roberts would later define as its "indicia of reliability" standard. And, by the same token, I believe that it must logically be inferred that evidence that fails to satisfy Rule 803(24)'s reliability requirement must also be said to fail to satisfy Ohio v. Roberts's "indicia of reliability" requirement. It also seems to me that the converse of that proposition must be logically inferred.

It is therefore my view that appropriate application of the rationale of Nick, even though that case was decided before Ohio v. Roberts, requires this case be reversed and remanded for a new trial on both hearsay and confrontation grounds.64 For it is my view that the record in this case cannot support the requisite factual predicate for admission of either Chaussee's or Agent Hellekson's hearsay testimony under the reliability standards of either Rule 803(24) or the confrontation clause.

I turn now to the last legal authority cited by the majority opinion in support of its Rule 803(24) decision.

The majority opinion made a general citation to Parker, The Rights of Child Witnesses: Is the Court A Protector or Perpetrator?, 17 New Eng.L.Rev. 643 (1982), on page 478 of its opinion to support its suggestion that the "propriety of requiring extremely young victims of abuse to take the stand as the only method for putting before the jury what is, in all probability, the only first-hand account of the circumstances of abuse other than that of the defendant is debatable." (at 478).65

Professor Parker's article, in my view, does not support the majority opinion's recognition of a new child witness exception to the hearsay rule under the residual clause of Rule 803(24).66

The majority opinion stated on page 478 of its opinion immediately after its citation of Professor Parker's article that: "In a more relaxed environment, the child in this case was able to provide his version of the relevant events and yet avoid a potentially traumatic courtroom encounter." The record in this case establishes that Maurice was able to "avoid a potentially traumatic courtroom encounter" for the reason his "version of the relevant events" was admitted in evidence through the hearsay testimony of Chaussee and Agent Hellekson over defendant Cree's objection based on both hearsay and confrontation grounds. The record, of course, establishes that neither the United States Attorney nor the district court had anything to do with the circumstances under which Maurice made his out-of-court statements to those witnesses. For Maurice made his out-of-court statements during the course of a criminal investigation.

While it might be said that there may be a modicum of evidence in the record in regard to the circumstances under which Maurice made his out-of-court statements to Chaussee, there certainly is nothing in the record to support a finding that he made his out-of-court statements to Agent Hellekson in some sort of a "relaxed environment."67

Finally in regard to Professor Parker's article, it must be noted that the record in this case establishes that Maurice's out-of-court statements to Chaussee and Agent Hellekson were obtained in secret in the course of a criminal investigation. Professor Parker's statement on pages 695-96 of her article makes clear her view that: "There is no doubt that it would be unconstitutional for the state to take evidence in secret and outside the defendant's presence,...."68 It is my view that it is one thing for a court to suggest that the rights of a child abuse victim should be recognized and protected. It is my view, however, that it is quite a different thing for a court to refuse to consider the rights guaranteed a defendant under both the hearsay rule and the confrontation clause of the Sixth Amendment.

The Supreme Court of Wisconsin, in its recent and thoughtful decision in State v. Gilbert, 326 N.W.2d 744 (Sup.Ct. of Wisc.1982), cited Professor Parker's article and identified her as the commentator who had observed that "it becomes tragically ironic when the legal system, acting as the child protector of last resort, becomes a perpetrator of child abuse."69 (Id. at 752). The first sentence of the majority opinion implicitly expressed a similar concern when it stated that: "This disturbing case involves the physical abuse of two young boys, Maurice Alberts, age four, and Phillip Alberts, age two." (Emphasis added). The majority opinion returned to that theme in footnote 7 on page 478 when it suggested that the "special concerns arising in the prosecution of child abuse cases have not fully been met by the development of new methods of practice."

I do not disagree with the Supreme Court of Wisconsin's citation of Professor Parker's article or its adoption of that article's observation. Nor do I disagree with the majority opinion's description of this case as a "disturbing" case on its facts. To say that, however, is not to say that the district court did not err when it, in a case that may properly be described as "disturbing", admitted Chaussee's and Agent Hellekson's hearsay testimony in evidence over defendant Cree's objections based on both hearsay and confrontation clause grounds. I believe that it did for the reasons I have stated.

I therefore respectfully dissent from the majority opinion for all of the reasons stated.