Idaho v. Wright
497 U.S. 805 (1990)

Annotate this Case

U.S. Supreme Court

Idaho v. Wright, 497 U.S. 805 (1990)

Idaho v. Wright

No. 89-260

Argued April 18, 1990

Decided June 27, 1990

497 U.S. 805

CERTIORARI TO THE SUPREME COURT OF IDAHO

Syllabus

Respondent Wright was charged under Idaho law with two counts of lewd conduct with a minor, specifically her 5 1/2- and 2 1/2-year-old daughters. At the trial, it was agreed that the younger daughter was not "capable of communicating to the jury." However, the court admitted, under Idaho's residual hearsay exception, certain statements she had made to a pediatrician having extensive experience in child abuse cases. The doctor testified that she had reluctantly answered questions about her own abuse, but had spontaneously volunteered information about her sister's abuse. Wright was convicted on both counts, but appealed only from the conviction involving the younger child. The State Supreme Court reversed, finding that the admission of the doctor's testimony under the residual hearsay exception violated Wright's rights under the Confrontation Clause. The court noted that the child's statements did not fall within a traditional hearsay exception and lacked "particularized guarantees of trustworthiness" because the doctor had conducted the interview without procedural safeguards: he failed to videotape the interview, asked leading questions, and had a preconceived idea of what the child should be disclosing. This error, the court found, was not harmless beyond a reasonable doubt.

Held: The admission of the child's hearsay statements violated Wright's Confrontation Clause rights. Pp. 497 U. S. 813-827.

(a) Incriminating statements admissible under an exception to the hearsay rule are not admissible under the Confrontation Clause unless the prosecution produces, or demonstrates the unavailability of, the declarant whose statement it wishes to use and unless the statement bears adequate indicia of reliability. The reliability requirement can be met where the statement either falls within a firmly rooted hearsay exception or is supported by a showing of "particularized guarantees of trustworthiness." Ohio v. Roberts,448 U. S. 56. Although it is presumed here that the child was unavailable within the meaning of the Clause, the evidence will be barred unless the reliability requirement is met. Pp. 497 U. S. 813-817.

(b) Idaho's residual hearsay exception is not a firmly rooted hearsay exception for Confrontation Clause purposes. It accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might be sufficiently reliable to be admissible at trial,

Page 497 U. S. 806

and thus does not share the same tradition of reliability supporting the admissibility of statements under a firmly rooted hearsay exception. To rule otherwise would require that virtually all codified hearsay exceptions be found to assume constitutional stature, something which this Court has declined to do. California v. Green,399 U. S. 149, 399 U. S. 155-156. Pp. 497 U. S. 817-818.

(c) In determining that "particularized guarantees of trustworthiness" were not shown, the State Supreme Court erred in placing dispositive weight on the lack of procedural safeguards at the interview, since such safeguards may in many instances be inappropriate or unnecessary to a determination whether a given statement is sufficiently trustworthy for Confrontation Clause purposes. Rather, such trustworthiness guarantees must be shown from the totality of those circumstances that surround the making of the statement and render the declarant particularly worthy of belief. As is the case with statements admitted under a firmly rooted hearsay exception, see e.g., Green, supra, at 399 U. S. 161, evidence possessing "particularized guarantees of trustworthiness" must be so trustworthy that adversarial testing would add little to its reliability. In child abuse cases, factors used to determine trustworthiness guarantees -- such as the declarant's mental state and the use of terminology unexpected of a child of similar age -- must relate to whether the child was particularly likely to be telling the truth when the statement was made. The State's contention that evidence corroborating a hearsay statement may properly support a finding that the statement bears such trustworthiness guarantees is rejected, since this would permit admission of presumptively unreliable statements, such as those made under duress, by bootstrapping on the trustworthiness of other evidence at trial. That result is at odds with the requirement that hearsay evidence admitted under the Clause be so trustworthy that cross-examination of the declarant would be of marginal utility. Also rejected is Wright's contention that the child's statements are per se or presumptively unreliable on the ground that the trial court found the child incompetent to testify at trial. The court found only that she was not capable of communicating to the jury, and implicitly found that, at the time she made the statements, she was capable of receiving just impressions of the facts and of relating them truly. Moreover, the Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial. See, e. g., Mattox v. United States,156 U. S. 237, 156 U. S. 243-244. Pp. 497 U. S. 818-825.

(d) In admitting the evidence, the trial court identified only two factors -- whether the child had a motive to make up her story and whether, given her age, the statements were of the type that one would expect a child to fabricate -- relating to circumstances surrounding the making of

Page 497 U. S. 807

the statements. The State Supreme Court properly focused on the presumptive unreliability of the out-of-court statements and on the suggestive manner in which the doctor conducted his interview. Viewing the totality of the circumstances, there is no special reason for supposing that the incriminating statements about the child's own abuse were particularly trustworthy. Her statement about her sister presents a closer question. Although its spontaneity and the change in her demeanor suggest that she may have been telling the truth, spontaneity may be an inaccurate indicator of trustworthiness where there has been prior interrogation, prompting, or manipulation by adults. Moreover, the statement was not made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment. Because the State does not challenge the State Supreme Court's determination that the Confrontation Clause error was not harmless beyond a reasonable doubt, this Court will not revisit the issue. Pp. 497 U. S. 825-827.

116 Idaho 382, 775 P.2d 1224 (1989), affirmed.

O'CONNOR, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, STEVENS, and SCALIA, JJ. joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and BLACKMUN, JJ., joined, post, p. 497 U. S. 827.

Page 497 U. S. 808

Justice O'CONNOR delivered the opinion of the Court.

This case requires us to decide whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant's rights under the Confrontation Clause of the Sixth Amendment.

I

Respondent Laura Lee Wright was jointly charged with Robert L. Giles of two counts of lewd conduct with a minor under 16, in violation of Idaho Code § 18-1508 (1987). The alleged victims were respondent's two daughters, one of whom was 5 1/2 and the other 2 1/2 years old at the time the crimes were charged.

Page 497 U. S. 809

Respondent and her ex-husband, Louis Wright, the father of the older daughter, had reached an informal agreement whereby each parent would have custody of the older daughter for six consecutive months. The allegations surfaced in November, 1986, when the older daughter told Cynthia Goodman, Louis Wright's female companion, that Giles had had sexual intercourse with her while respondent held her down and covered her mouth, App. 47-55; 3 Tr. 456-460, and that she had seen respondent and Giles do the same thing to respondent's younger daughter, App. 48-49, 61; 3 Tr. 460. The younger daughter was living with her parents -- respondent and Giles -- at the time of the alleged offenses.

Goodman reported the older daughter's disclosures to the police the next day, and took the older daughter to the hospital. A medical examination of the older daughter revealed evidence of sexual abuse. One of the examining physicians was Dr. John Jambura, a pediatrician with extensive experience in child abuse cases. App. 91-94. Police and welfare officials took the younger daughter into custody that day for protection and investigation. Dr. Jambura examined her the following day and found conditions "strongly suggestive of sexual abuse with vaginal contact," occurring approximately two to three days prior to the examination. Id. at 105, 106.

At the joint trial of respondent and Giles, the trial court conducted a voir dire examination of the younger daughter, who was three years old at the time of trial, to determine whether she was capable of testifying. Id. at 32-38. The court concluded, and the parties agreed, that the younger daughter was "not capable of communicating to the jury." Id. at 39.

At issue in this case is the admission at trial of certain statements made by the younger daughter to Dr. Jambura in response to questions he asked regarding the alleged abuse. Over objection by respondent and Giles, the trial court permitted Dr. Jambura to testify before the jury as follows:

Page 497 U. S. 810

"Q. [By the prosecutor] Now, calling your attention then to your examination of Kathy Wright on November 10th. What -- would you describe any interview dialogue that you had with Kathy at that time? Excuse me, before you get into that, would you lay a setting of where this took place and who else might have been present?"

"A. This took place in my office, in my examining room, and, as I recall, I believe previous testimony I said that I recall a female attendant being present, I don't recall her identity."

"I started out with basically, 'Hi, how are you,' you know, 'What did you have for breakfast this morning?' Essentially a few minutes of just sort of chitchat."

"Q. Was there response from Kathy to that first -- those first questions?"

"A. There was. She started to carry on a very relaxed animated conversation. I then proceeded to just gently start asking questions about, 'Well, how are things at home,' you know, those sorts. Gently moving into the domestic situation and then moved into four questions in particular, as I reflected in my records, 'Do you play with daddy? Does daddy play with you? Does daddy touch you with his pee-pee? Do you touch his pee-pee?' And again, we then established what was meant by pee-pee, it was a generic term for genital area."

"Q. Before you get into that, what was, as best you recollect, what was her response to the question 'Do you play with daddy?'"

"A. Yes, we play -- I remember her making a comment about yes we play a lot, and expanding on that and talking about spending time with daddy."

"Q. And 'Does daddy play with you?' Was there any response? "

Page 497 U. S. 811

"A. She responded to that as well, that they played together in a variety of circumstances and, you know, seemed very unaffected by the question."

"Q. And then what did you say and her response?"

"A. When I asked her 'Does daddy touch you with his pee-pee,' she did admit to that. When I asked, 'do you touch his pee-pee,' she did not have any response."

"Q. Excuse me. Did you notice any change in her affect or attitude in that line of questioning?"

"A. Yes."

"Q. What did you observe?"

"A. She would not -- oh, she did not talk any further about that. She would not elucidate what exactly -- what kind of touching was taking place, or how it was happening. She did, however, say that daddy does do this with me, but he does it a lot more with my sister than with me."

"Q. And how did she offer that last statement? Was that in response to a question or was that just a volunteered statement?"

"A. That was a volunteered statement as I sat and waited for her to respond, again after she sort of clammed-up, and that was the next statement that she made after just allowing some silence to occur."

Id. at 121-123. On cross-examination, Dr. Jambura acknowledged that a picture that he drew during his questioning of the younger daughter had been discarded. Id. at 124. Dr. Jambura also stated that although he had dictated notes to summarize the conversation, his notes were not detailed, and did not record any changes in the child's affect or attitude. Id. at 123-124.

The trial court admitted these statements under Idaho's residual hearsay exception, which provides in relevant part:

"Rule 803. Hearsay exceptions; availability of declarant immaterial. -- The following are not excluded by the

Page 497 U. S. 812

hearsay rule, even though the declarant is available as a witness."

"* * * *"

"(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, 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 these rules and the interests of justice will best be served by admission of the statement into evidence."

Idaho Rule Evid. 803(24).

Respondent and Giles were each convicted of two counts of lewd conduct with a minor under 16 and sentenced to 20 years imprisonment. Each appealed only from the conviction involving the younger daughter. Giles contended that the trial court erred in admitting Dr. Jambura's testimony under Idaho's residual hearsay exception. The Idaho Supreme Court disagreed and affirmed his conviction. State v. Giles, 115 Idaho 984, 772 P.2d 191 (1989). Respondent asserted that the admission of Dr. Jambura's testimony under the residual hearsay exception nevertheless violated her rights under the Confrontation Clause. The Idaho Supreme Court agreed and reversed respondent's conviction. 116 Idaho 382, 775 P.2d 1224 (1989).

The Supreme Court of Idaho held that the admission of the inculpatory hearsay testimony violated respondent's federal constitutional right to confrontation because the testimony did not fall within a traditional hearsay exception and was based on an interview that lacked procedural safeguards. Id. at 385, 775 P.2d, at 1227. The court found Dr. Jambura's interview technique inadequate because

"the questions and answers were not recorded on videotape for preservation and perusal by the defense at or before trial, and

Page 497 U. S. 813

blatantly leading questions were used in the interrogation."

Ibid. The statements also lacked trustworthiness, according to the court, because "this interrogation was performed by someone with a preconceived idea of what the child should be disclosing." Ibid. Noting that expert testimony and child psychology texts indicated that children are susceptible to suggestion and are therefore likely to be misled by leading questions, the court found that

"[t]he circumstances surrounding this interview demonstrate dangers of unreliability which, because the interview was not [audio or video] recorded, can never be fully assessed."

Id. at 388, 775 P.2d, at 1230. The court concluded that the younger daughter's statements lacked the particularized guarantees of trustworthiness necessary to satisfy the requirements of the Confrontation Clause, and that therefore the trial court erred in admitting them. Id. at 389, 775 P.2d, at 1231. Because the court was not convinced, beyond a reasonable doubt, that the jury would have reached the same result had the error not occurred, the court reversed respondent's conviction on the count involving the younger daughter and remanded for a new trial. Ibid.

We granted certiorari, 493 U.S. 1041 (1990), and now affirm.

II

The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

From the earliest days of our Confrontation Clause jurisprudence, we have consistently held that the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause. See, e.g., Mattox v. United States,156 U. S. 237, 156 U. S. 243 (1895); Pointer v. Texas,380 U. S. 400, 380 U. S. 407 (1965).

Page 497 U. S. 814

We reaffirmed only recently that

"[w]hile a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as 'unintended and too extreme.'"

Bourjaily v. United States,483 U. S. 171, 483 U. S. 182 (1987) (quoting Ohio v. Roberts,448 U. S. 56, 446 U. S. 63 (1980)); see also Maryland v. Craig, post, at 497 U. S. 847 ("[T]he [Confrontation] Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant's inability to confront the declarant at trial").

Although we have recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, we have also been careful not to equate the Confrontation Clause's prohibitions with the general rule prohibiting the admission of hearsay statements. See California v. Green,399 U. S. 149, 399 U. S. 155-156 (1970); Dutton v. Evans,400 U. S. 74, 400 U. S. 86 (1970) (plurality opinion); United States v. Inadi,475 U. S. 387, 475 U. S. 393, n. 5 (1986). The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. See, e.g., Green, supra, 399 U.S. at 399 U. S. 155-156; Bruton v. United States,391 U. S. 123 (1968); Barber v. Page,390 U. S. 719 (1968); Pointer, supra.

In Ohio v. Roberts, we set forth "a general approach" for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. 448 U.S. at 448 U. S. 65. We noted that the Confrontation Clause "operates in two separate ways to restrict the range of admissible hearsay." Ibid.

"First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . , the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant."

Ibid. (citations omitted). Second, once a witness is shown to be unavailable,

"his statement is admissible only

Page 497 U. S. 815

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."

Id. at 448 U. S. 66 (footnote omitted); see also Mancusi v. Stubbs,408 U. S. 204, 408 U. S. 213 (1972).

Applying this general analytical framework to the facts of Roberts, supra, we held that the admission of testimony given at a preliminary hearing, where the declarant failed to appear at trial despite the State's having issued five separate subpoenas to her, did not violate the Confrontation Clause. Id., 448 U.S. at 448 U. S. 67-77. Specifically, we found that the State had carried its burden of showing that the declarant was unavailable to testify at trial, see Barber, supra, 390 U.S. at 390 U. S. 724-725; Mancusi, supra, 408 U.S. at 408 U. S. 212, and that the testimony at the preliminary hearing bore sufficient indicia of reliability, particularly because defense counsel had had an adequate opportunity to cross-examine the declarant at the preliminary hearing, see Mancusi, supra, at 408 U. S. 216.

We have applied the general approach articulated in Roberts to subsequent cases raising Confrontation Clause and hearsay issues. In United States v. Inadi, supra, we held that the general requirement of unavailability did not apply to incriminating out-of-court statements made by a non-testifying co-conspirator, and that therefore the Confrontation Clause did not prohibit the admission of such statements, even though the government had not shown that the declarant was unavailable to testify at trial. 475 U.S. at 475 U. S. 394-400. In Bourjaily v. United States, supra, we held that such statements also carried with them sufficient "indicia of reliability" because the hearsay exception for co-conspirator statements was a firmly rooted one. 483 U.S. at 483 U. S. 182-184.

Applying the Roberts approach to this case, we first note that this case does not raise the question whether, before a child's out-of-court statements are admitted, the Confrontation

Page 497 U. S. 816

Clause requires the prosecution to show that a child witness is unavailable at trial -- and, if so, what that showing requires. The trial court in this case found that respondent's younger daughter was incapable of communicating with the jury, and defense counsel agreed. App. 39. The court below neither questioned this finding, nor discussed the general requirement of unavailability. For purposes of deciding this case, we assume without deciding that, to the extent the unavailability requirement applies in this case, the younger daughter was an unavailable witness within the meaning of the Confrontation Clause.

The crux of the question presented is therefore whether the State, as the proponent of evidence presumptively barred by the hearsay rule and the Confrontation Clause, has carried its burden of proving that the younger daughter's incriminating statements to Dr. Jambura bore sufficient indicia of reliability to withstand scrutiny under the Clause. The court below held that, although the trial court had properly admitted the statements under the State's residual hearsay exception, the statements were "fraught with the dangers of unreliability which the Confrontation Clause is designed to highlight and obviate." 116 Idaho, at 389, 775 P.2d, at 1231. The State asserts that the court below erected too stringent a standard for admitting the statements, and that the statements were, under the totality of the circumstances, sufficiently reliable for Confrontation Clause purposes.

In Roberts, we suggested that the "indicia of reliability" requirement could be met in either of two circumstances: where the hearsay statement "falls within a firmly rooted hearsay exception," or where it is supported by "a showing of particularized guarantees of trustworthiness." 448 U.S. at 448 U. S. 66; see also Bourjaily, 483 U.S. at 483 U. S. 183 ("[T]he co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that, under this Court's holding in Roberts, a court need not independently inquire into the reliability of such statements"); Lee v. Illinois,476 U. S. 530, 476 U. S. 543 (1986)

Page 497 U. S. 817

("[E]ven if certain hearsay evidence does not fall within a firmly rooted hearsay exception,' and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a `showing of particularized guarantees of trustworthiness'") (footnote and citation omitted).

We note at the outset that Idaho's residual hearsay exception, Idaho Rule Evid. 803(24), under which the challenged statements were admitted, App. 113-115, is not a firmly rooted hearsay exception for Confrontation Clause purposes. Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements. See Mattox, 156 U.S. at 156 U. S. 243; Roberts, 448 U.S. at 448 U. S. 66; Bourjaily, 483 U.S. at 483 U. S. 183; see also Lee, 476 U.S. at 476 U. S. 551-552 (BLACKMUN, J., dissenting) ("[S]tatements squarely within established hearsay exceptions possess the imprimatur of judicial and legislative experience,' . . . and that fact must weigh heavily in our assessment of their reliability for constitutional purposes") (citation omitted). The residual hearsay exception, by contrast, accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might nevertheless be sufficiently reliable to be admissible at trial. See, e.g., Senate Judiciary Committee's Note on Fed.Rule Evid. 803(24), 28 U.S.C.App., pp. 786-787; E. Cleary, McCormick on Evidence § 324.1, pp. 907-909 (3d ed. 1984). Hearsay statements admitted under the residual exception, almost by definition, therefore do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception. Moreover, were we to agree that the admission of hearsay statements under the residual exception automatically passed Confrontation Clause scrutiny, virtually every codified hearsay exception would assume constitutional

Page 497 U. S. 818

stature, a step this Court has repeatedly declined to take. See Green, 399 U.S. at 399 U. S. 155-156; Evans, 400 U.S. at 400 U. S. 86-87 (plurality opinion); Inadi, 475 U.S. at 475 U. S. 393, n. 5; see also Evans, supra, 400 U.S. at 400 U. S. 94-95 (Harlan, J., concurring in result).

The State, in any event, does not press the matter strongly, and recognizes that, because the younger daughter's hearsay statements do not fall within a firmly rooted hearsay exception, they are "presumptively unreliable and inadmissible for Confrontation Clause purposes," Lee, 476 U.S. at 476 U. S. 543, and "must be excluded, at least absent a showing of particularized guarantees of trustworthiness," Roberts, 448 U.S. at 448 U. S. 66. The court below concluded that the State had not made such a showing, in large measure because the statements resulted from an interview lacking certain procedural safeguards. The court below specifically noted that Dr. Jambura failed to record the interview on videotape, asked leading questions, and questioned the child with a preconceived idea of what she should be disclosing. See 116 Idaho at 388, 775 P.2d, at 1230.

Although we agree with the court below that the Confrontation Clause bars the admission of the younger daughter's hearsay statements, we reject the apparently dispositive weight placed by that court on the lack of procedural safeguards at the interview. Out-of-court statements made by children regarding sexual abuse arise in a wide variety of circumstances, and we do not believe the Constitution imposes a fixed set of procedural prerequisites to the admission of such statements at trial. The procedural requirements identified by the court below, to the extent regarded as conditions precedent to the admission of child hearsay statements in child sexual abuse cases, may in many instances be inappropriate or unnecessary to a determination whether a given statement is sufficiently trustworthy for Confrontation Clause purposes. See, e.g., Nelson v. Farrey, 874 F.2d 1222, 1229 (CA7 1989) (videotape requirement not feasible,

Page 497 U. S. 819

especially where defendant had not yet been criminally charged), cert. denied, 493 U.S. 1042 (1990); J. Myers, Child Witness Law and Practice § 4.6, pp. 129-134 (1987) (use of leading questions with children, when appropriate, does not necessarily render responses untrustworthy). Although the procedural guidelines propounded by the court below may well enhance the reliability of out-of-court statements of children regarding sexual abuse, we decline to read into the Confrontation Clause a preconceived and artificial litmus test for the procedural propriety of professional interviews in which children make hearsay statements against a defendant.

The State responds that a finding of "particularized guarantees of trustworthiness" should instead be based on a consideration of the totality of the circumstances, including not only the circumstances surrounding the making of the statement but also other evidence at trial that corroborates the truth of the statement. We agree that "particularized guarantees of trustworthiness" must be shown from 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. This conclusion derives from the rationale for permitting exceptions to the general rule against hearsay:

"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. Chadbourne rev. 1974).

Page 497 U. S. 820

In other words, if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial. The basis for the "excited utterance" exception, for example, is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous. See, e.g., 6 Wigmore, supra, §§ 1745-1764; 4 J. Weinstein & M. Berger, Weinstein's Evidence

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