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The Sixth Amendment guarantees a defendant’s right to confront their accusers. If a person exercises their constitutional right to trial, then the prosecution must present the defendant’s accusers and subject them to cross examination by the defense. The Confrontation Clause demands this. However, with every great constitutional protection, there are exceptions.

If the prosecution has statements it wants to admit at trial, but cannot present its witness, then the defense is likely going to make a hearsay objection and cite a Confrontation Clause violation. In response, the prosecution may cite the Residual Exception  (Minnesota Rule of Evidence 807) in its argument to get the statements admitted. When all other hearsay exceptions fail, the Residual Exception may come to the rescue. To admit a statement under the Residual Exception, the four requirements are:

  • trustworthiness;
  • evidence of a material fact;
  • more probative on that point than any other evidence that is attainable by reasonable methods; and
  • serve the interests of justice and the general purpose of the rules of evidence

Recently, the Minnesota Court of Appeals engaged in this analysis in State v. Germscheid. Here, the prosecution charged the defendant with malicious punishment of a child and domestic assault. The child victim was in elementary school when a nurse noticed the child had bruises on both of his ears. A social worker for the school district met with the child at the school and asked him about the bruises. He told the social worker that his dad told him to tell people that his ears got stuck in his chair. The child went on to say that “when he is punished, it has to hurt really bad.” Similar statements were made to an additional social worker and a police officer.

Because of the age of the child, the court determined he was not competent to testify at trial. The prosecution then argued that the child’s statements to the social workers, and not the cop, were admissible because they were not testimonial in violation of the Confrontation Clause and that the residual exception under Rule 807 applies. In response, the defense argued the statements were testimonial and did not contain sufficient indicia of reliability because they were inconsistent. The district ruled the statements admissible via the Residual Exception, Rule 807.

On appeal, the defense conceded the second and third requirements under the Residual Exception were met (statement was evidence of a material fact; and was more probative on the point for which it was offered than other evidence that could have been obtained through reasonable methods). The defense argued the first and fourth requirements were not met by stating the district court failed to make an explicit finding on the trustworthiness of the statement and therefore admitting it did not serve the interests of justice.

In determining the statements were not testimonial, the court of appeals reasoned the interview with the child took place at a school and not a police station. They highlighted the primary purpose of the interview was to address concerns of abuse and not for prosecution. Therefore, the court concluded there was not a Confrontation Clause violation.

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Super Lawyers named him a Rising Star for the past four years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past six years. DUI Attorney Woodbury; Criminal Defense Lawyer Minnesota; and Minnesota Criminal Appeals Lawyer.

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