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State v. Engesser4/23/2003
nd that Finley was driving the Corvette when the two left. Engesser contends that Finch should have been allowed to testify under the "catch-all" hearsay exception in SDCL 19-16-35 (Rule 804(b)(6)).
[ .] For hearsay to be admissible under this rule, the proponent must establish: (1) the declarant is unavailable; (2) the statement must have circumstantial guarantees of trustworthiness equivalent to the first four exceptions in Rule 804(b); (3) the statement must be offered as evidence of a material fact; (4) the statement must be more probative on the point for which it is offered than any other evidence that the proponent reasonably can procure; (5) the statement must serve the interests of justice and the purposes of the rules of evidence; (6) the proponent of the evidence to be offered must have given advance notice to the other side. SDCL 19-16-35 (Rule 804(b)(6)). See United States v. Love, 592 F2d 1022, 1026 (8thCir 1979). Because our rule is identical to former FRE Rule 804(b)(5), now FRE 807, and many federal courts have examined this rule, it is helpful to use federal cases in our analysis. As the federal courts have recognized, this rule is to be used "'rarely, and only in exceptional circumstances.'" United States v. Woolbright, 831 F2d 1390, 1396 (8thCir 1987) (quoting Love, 592 F2d at 1026).
[ .] The test for admissibility of evidence in general should not be confused with the rules for admissibility under this hearsay exception. It is true, of course, that if Sean Boyle had been a live witness, his credibility would have been solely for the jury to determine. See 19-14-1 (Rule 601). But he was a hearsay declarant, not a trial witness. The preliminary question of trustworthiness, underlying the admissibility of "catchall" hearsay statements, is a question for the court, rather than a question of weight for the jury. SDCL 19-9-7 (Rule 104 (a)). The trial judge has both the obligation and the "'considerable discretion'" to determine whether "'hearsay statements contain the necessary circumstantial guarantees of trustworthiness'" to be admissible under this rule. See United States v. Guinan, 836 F2d 350, 354 (7thCir), cert. denied, 487 US 1218, 108 SCt 2871, 101 LEd2d 907 (1988) (quoting United States v. Vretta, 790 F2d 651, 659 (7thCir), cert. denied, 479 US 851, 107 SCt 179, 93 LEd2d 115 (1986)).
[ .] Hearsay generally does not qualify as admissible evidence. SDCL 19-16-4 (Rule 802). Rule 804(b)(6) is one of the narrowly tailored exceptions to the general rule excluding hearsay evidence. The proponent offering hearsay evidence has the affirmative burden of establishing the trustworthiness requirement in Rule 804(b)(6). United States v. Snyder, 872 F2d 1351, 1354-55 (7thCir 1989). The rule requires that a hearsay statement not covered by some other exception be supported by "equivalent circumstantial guarantees of trustworthiness" before it can be admitted.*fn6
[ .] The circumstances a trial court should consider in assessing the trustworthiness of hearsay testimony include: (1) the character of the witness for truthfulness and honesty and the availability of evidence on that question; (2) whether the testimony was given voluntarily, under oath, subject to cross-examination and a penalty for perjury; (3) the relationship of the witness to the parties and any motivation the witness had for making the statement; (4) the extent to which the witness's statement reflects personal knowledge; (5) whether the witness ever recanted the statement; (6) the existence of corroborating evidence; and (7) the reasons for the unavailability of the witness. Id. at 1355. These considerations are neither exhaustive nor absolute, and each case must be analyzed on its own facts. United States v.
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