_____________________________________________________________________________________________ 

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Michigan Supreme Court

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 30, 2003
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v No. 120515
 

TERRY LYNN KATT,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

KELLY, J.
 

The issue in this case is whether the trial court
 

properly admitted under MRE 803(24) the victim's hearsay
 

statement made to a social worker that defendant sexually
 

abused her. The statement did not qualify for admission under
 

MRE 803A, the tender-years rule. 


We conclude that the trial court properly admitted the
 

statement. MRE 803(24) permits the admission of hearsay
 

statements that narrowly miss the categorical exceptions of
 
MRE 803, but satisfy the requirements of MRE 803(24), under
 

circumstances such as those present in this case.
 

Accordingly, we affirm the judgment of the Court of Appeals.
 

I. FACTUAL AND PROCEDURAL BACKGROUND
 

A jury convicted defendant of three counts of firstdegree criminal sexual conduct, sexual penetration of a victim
 

under thirteen years of age (CSC I). MCL 750.520b(1)(a). The
 

Court of Appeals affirmed the convictions. 


A. THE TRIAL COURT
 

In the trial court, the prosecution charged defendant
 

with the sexual assaults of a seven-year-old boy (DD) and his
 

five-year-old sister (AD) in the autumn of 1998. Defendant
 

lived in a home with the children, their mother, her
 

ex-husband, and another individual.
 

Before trial, the prosecutor moved to admit the testimony
 

of Angela Bowman, a child-protective-services specialist with
 

the Family Independence Agency (FIA). During the hearing,
 

Bowman testified that she had visited DD at his elementary
 

school after the FIA received an anonymous report that the
 

children's mother was physically abusing them.
 

In the course of their conversation, Bowman asked DD to
 

name the members of his household. He named defendant as a
 

relative and spontaneously told Bowman that defendant was
 

doing "nasty stuff" to him.
 

Bowman further testified that, when she asked DD what he
 

2
 
 

meant by nasty stuff, he was initially guarded, but, then,
 

made the following statement:
 

[Defendant] would come into his room, which


[DD] shared with his sister [AD] and dis---totally


disrobed, and take off his clothes, which would be


a shirt, an underwear---some underwear or pajamas


bottoms, if he were wearing them, and get on top of


[DD]. And I ask---I asked him to describe now---at
 

the time, because I wasn't prepared for this


interview, I didn't have any anatomically correct


dolls or anything, so I ask him to show---to
 

demonstrate to the best of his ability what he was


describing. 


Bowman related the details of this and numerous other specific
 

instances of defendant's abuse as DD had revealed them to her.
 

The prosecution conceded that DD's statement to Bowman
 

was not admissible under the tender-years exception to the
 

hearsay rule, MRE 803A, because it was his second statement
 

about the abuse. Defendant argued that MRE 803A "covers the
 

field," meaning that, if a statement falls in the category of
 

a tender-years statement and is inadmissible under MRE 803A,
 

it cannot be admitted under MRE 803(24).
 

The trial court rejected defendant's argument and
 

admitted the evidence under MRE 803(24). In ruling that DD's
 

statements satisfied the requirements of MRE 803(24), the
 

court stated:
 

[I]n the Court's opinion there are several


indicia of trustworthiness in the statements given


by [DD] to Miss Bowman. First is the spontaneity


of [DD's] first statements to Miss Bowman.
 

Recall---The Court's [sic] heard the testimony, that


Miss Bowman was not there to talk about sexual
 

abuse, she was there to talk about physical abuse.
 

3
 
I would also note that as far as this Court's
 

record is concerned [DD and AD's mother] did not


know that her child was going to be interviewed on


October 27. Accordingly, there doesn't appear to
 

be anything on the record here which would
 

establish that somehow [DD] was prepped by somebody


to mouth sentences to Miss Bowman that were not
 

true. Miss Bowman first inquired of [DD] about


physical abuse. Then, [DD,] and in this Court's


opinion this is important, not in response to any


questioning by Miss Bowman regarding sexual abuse,


spontaneously spoke about abuse---sexual abuse by


the defendant. It's clear that [DD] spoke from his


personal knowledge. And, as her duty as a
 

protective service worker, Miss Bowman inquired


further. Now, Miss Bowman's qualifications to


interview children were obvious from the record.
 

She is aware of how to . . . interview children.
 

She testified that she avoided leading questions


and avoided other pitfalls of questioning young


children. And the Court finds that she was totally


aware how to get truthful information from [DD].


The Court finds that the record and the dynamics of


this exchange between Miss Bowman and [DD] provided


a form [sic] that an accurate statement would be


uttered by [DD]. The Court finds no plan of


falsification by [DD] under the circumstances in


the record that I have before me, and no---and I do
 

find a lack of motive to fabricate on the child's
 

part. The Court also notes that Miss Bowman
 

testified, and I believe her testimony, she had no


preconceived notion that anything of a sexual


nature occurred when she walked into the room on
 

October 27, [19]97. Indeed, as I've stated before,


she was there to talk about physical abuse. 


* * *
 

Accordingly, the Court finds---from the
 

totality of the circumstances here, I find the


required trustworthiness guarantees that [MRE]


803(24) requires.
 

B. THE COURT OF APPEALS
 

On appeal, defendant again contended that DD's statement
 

to Bowman was not admissible under MRE 803(24). He urged that
 

4
 
 

the Court adopt what has been dubbed the "near-miss" theory,
 

which "maintains that a hearsay statement that is close to,
 

but that does not fit precisely into, a recognized hearsay
 

exception is not admissible under [the residual hearsay
 

exception.]" United States v Deeb, 13 F3d 1532, 1536 (CA 11,
 

1994).
 

The Court of Appeals rejected the near miss-theory and
 

defendant's narrow interpretation of MRE 803(24) and, instead,
 

adopted the approach taken by the United States Court of
 

Appeals for the Eighth Circuit in United States v Earles, 113
 

F3d 796 (CA 8, 1997):
 

The meaning of the catch-all's "specifically


covered" language has caused considerable debate.


See, e.g., McKethan v United States, 439 US 936; 99


S Ct 333; 58 L Ed 2d 333 (1978) (Justices Stewart


and Marshall dissenting from the Court's denial of


writs of certiorari and contending that the Court


should resolve the circuit split on this issue[.]).


However, the majority of circuit courts have held


that the phrase "specifically covered" means only


that if a statement is admissible under one of the
 

prior exceptions, such prior subsection should be


relied upon instead of [the residual hearsay


exception]. If, on the other hand, the statement
 

is inadmissible under the other exceptions, these


courts allow the testimony to be considered for


admission under [the residual hearsay exception].


[248 Mich App 282, 292; 639 NW2d 815 (2001),


quoting Earles, supra at 800 (emphasis in 248 Mich


App 292).]
 

Defendant next argued that DD's statement did not meet
 

two of the requirements of MRE 803(24). Specifically, (1) the
 

evidence did not possess "equivalent circumstantial guarantees
 

of trustworthiness" and (2) it was not more probative than
 

5
 
DD's first statement about the abuse, which was made to his
 

mother before the Bowman interview.
 

The Court of Appeals rejected the first challenge,
 

stating that it agreed with the trial court's "thorough and
 

well-reasoned assessment that DD's statement implicating
 

defendant in these crimes contained ample 'circumstantial
 

guarantees of trustworthiness' as required by MRE 803(24)." 


248 Mich App 297. Regarding DD's statements to his mother,
 

the panel found that
 

there is no indication in the record that either DD
 

or AD recounted the circumstances of the assaults
 

with the same detail. Nor is there any indication


that their alleged statements to their mother


contained particularized guarantees of
 

trustworthiness similar to those regarding the


statement given to Bowman. Indeed, when defense
 

counsel inquired of the mother during trial
 

regarding her knowledge of the alleged sexual


abuse, she indicated only that AD had told the


children's uncle about the abuse, who in turn told


the mother . . . ." [Id. at 299-300.]
 

Accordingly, the Court of Appeals affirmed the trial court's
 

admission of the evidence.
 

II. STANDARD OF REVIEW
 

The decision whether to admit evidence is within a trial
 

court's discretion. This Court reverses it only where there
 

has been an abuse of discretion. People v Lukity, 460 Mich
 

484, 488; 596 NW2d 607 (1999). However, the decision
 

frequently involves a preliminary question of law, such as
 

whether a rule of evidence or statute precludes the admission
 

6
 
of the evidence. We review questions of law de novo. Id.;
 

People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
 

Therefore, when such preliminary questions are at issue, we
 

will find an abuse of discretion when a trial court admits
 

evidence that is inadmissible as a matter of law. Id.
 

III. ANALYSIS
 

The Michigan Rules of Evidence contain two residual
 

exceptions: MRE 803(24) and MRE 804(b)(7). MRE 803(24), the
 

exception at issue here, provides:
 

(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 that 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. However, a statement may


not be admitted under this exception unless the


proponent of the statement 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, the proponent's


intention to offer the statement and the
 

particulars of it, including the name and address


of the declarant.
 

Thus, evidence offered under MRE 803(24) must satisfy
 

four elements to be admissible: (1) it must have
 

circumstantial guarantees of trustworthiness equal to the
 

categorical exceptions, (2) it must tend to establish a
 

material fact, (3) it must be the most probative evidence on
 

7
 
 

that fact that the offering party could produce through
 

reasonable efforts, and (4) its admission must serve the
 

interests of justice. Also, the offering party must give
 

advance notice of intent to introduce the evidence.
 

MRE 803(24) is nearly identical to FRE 807.1 "The
 

Michigan Rules of Evidence were based on the Federal Rules of
 

Evidence." People v Kreiner, 415 Mich 372, 378; 329 NW2d 716
 

(1982). As a result, Michigan courts have referred to federal
 

cases interpreting rules of evidence when there is a dearth of
 

related Michigan case law. See, e.g., People v VanderVliet,
 

444 Mich 52, 60 n 7; 508 NW2d 114 (1993); People v Welch, 226
 

Mich App 461, 466; 574 NW2d 682 (1997).
 

1FRE 803(24) contained one of the Federal Rules' residual


exceptions until 1997. At that time, FRE 803(24) was combined


with FRE 804(b)(5) and moved to FRE 807. FRE 807 provides:
 

A statement not specifically covered by Rule


803 or 804 but having equivalent circumstantial


guarantees of trustworthiness, is not excluded by


the hearsay rule, 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. 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, the proponent's intention to offer the


statement and the particulars of it, including the


name and address of the declarant.
 

8
 
Given that Michigan did not adopt residual exceptions to
 

its rules of evidence until 1996, there is little case law
 

interpreting them. Before this case, no Michigan court had
 

considered whether evidence that is similar to a categorical
 

hearsay exception could still be admitted under one of the
 

residual exceptions. Therefore, it is appropriate to consider
 

the federal courts' discussions of the issue.
 

A. 	THE RESIDUAL EXCEPTIONS AND THEIR APPLICATION
 

IN "NEAR MISS" SITUATIONS
 

The residual exceptions are designed to be used as
 

safety valves in the hearsay rules. They will allow evidence
 

to be admitted that is not "specifically covered" by any of
 

the categorical hearsay exceptions under circumstances
 

dictated by the rules. Differing interpretations of the words
 

"specifically covered" have sparked the current debate over
 

the admissibility of evidence that is factually similar to a
 

categorical hearsay exception, but not admissible under it.2
 

1. THE NEAR-MISS THEORY
 

"The Near Miss theory . . . states that a piece of
 

hearsay evidence may be offered only under the exception that
 

most nearly describes it. If it is excluded under that
 

exception, it may not be offered under the residual
 

2There is no doubt, of course, that statements completely


alien to any of the categorical exceptions may be candidates


for admission under the residual exceptions.
 

9
 
exceptions." In re Japanese Electronic Products Antitrust
 

Litigation, 723 F2d 238, 302 (CA 3, 1983), rev’d on other
 

grounds Matsushita Electric Industrial Co, Ltd v Zenith Radio
 

Corp, 475 US 574, 580; 106 S Ct 1348; 89 L Ed 2d 538 (1986).
 

Judge Easterbrook gave a concise statement of the rationale
 

behind the near-miss theory in his concurring opinion in
 

United States v Dent, 984 F2d 1453, 1465-1466 (CA 7, 1993):
 

[The residual exception] reads more naturally


if we understand the introductory clause to mean


that evidence of a kind specifically addressed


("covered") by one of the [categorical exceptions]


must satisfy the conditions laid down for its


admission, and that other kinds of evidence not


covered (because the drafters could not be
 

exhaustive) are admissible if the evidence is
 

approximately as reliable as evidence that would be


admissible under the [categorical exceptions].
 

The United States District Court for the Eastern District
 

of Pennsylvania described another basis for the theory in
 

Zenith Radio Corp v Matsushita Electric Industrial Co, Ltd,
 

505 F Supp 1190 (ED Penn, 1980):
 

The [near-miss theory] is also supported by a


basic principle of statutory construction, which we


find equally applicable to the Federal Rules of


Evidence: that the specific controls the general.


As the Supreme Court stated in Radzanower v Touche
 

Ross & Co, 426 US 148, 153, 48 L Ed 2d 540, 96 S Ct


1989 (1976): 


"It is a basic principle of statutory


construction that a statute dealing with a narrow,


precise, and specific subject is not submerged by a


later enacted statute covering a more generalized


spectrum. 'Where there is no clear intention
 

otherwise, a specific statute will not be
 

controlled or nullified by a general one,


regardless of the priority of enactment.' Morton v
 

10
 
Mancari, 417 US 535, 550-551 (1974)." [Citations


omitted.]
 

In conformity with this rule we conclude that


the residual exceptions cannot be invoked when


there is a specific exception which sets forth
 

conditions governing the admissibility of a clearly


defined category of hearsay evidence. [Zenith,
 

supra at 1263 n 91 (discussing former FRE 803[24]


before the adoption of FRE 807).]
 

Thus, the near-miss theory is based on a broad reading of
 

the term "specifically covered." Evidence is "specifically
 

covered" if there is a categorical hearsay exception dealing
 

with the same subject matter or type of evidence.
 

Accordingly, under the near-miss theory, a party could never
 

use a residual exception to admit evidence that was
 

inadmissible under, but related to, a categorical exception.
 

For example, a strict application of this theory would
 

preclude admission of a business document unless it met the
 

requirements of MRE 803(6). The residual exception would not
 

be available for it under any circumstances.
 

Although the near-miss theory would simplify the
 

resolution of disputes regarding the admission of hearsay, few
 

courts in the nation have adopted it. Those that have done so
 

have softened the rule.3 Even the Zenith court declined to
 

3

See United States v Mejia-Valez, 855 F Supp 607, 617-618


(ED NY, 1994)(holding that defendant could not use the


residual exception to admit hearsay statements from an
 

available declarant when the covered exception required


unavailability); In re Fill, 68 BR 923, 931 (SD NY,


1987)(holding that "highly unusual case[s]" may be exempted


from the near-miss theory).
 

11
 
hold that the residual exception could never be used to admit
 

evidence that fell within a categorical exception, but was
 

inadmissible under it:
 

Some of the . . . specific hearsay exceptions


similarly apply to a clearly defined category of


evidence, and we would follow the "near miss"


doctrine with respect to them . . . if the evidence


before us were within those categories. E.g., Rule


803(18) (learned treatises); Rule 803(22) (judgment


of previous conviction.) 


However, most of the hearsay exceptions which


plaintiffs invoke are not of this type. They do


not apply to a clearly defined category of
 

evidence, as the former testimony exception does.


Instead, they apply to a relatively amorphous


category of evidence which is delimited solely by


the requirements set forth in the rule itself. For
 

instance, the business records exception applies to


any "memorandum, report, record, or data
 

compilation, in any form" which satisfies certain


additional requirements. . . . We do not see how
 

the "near miss" doctrine which defendants urge
 

could practically be applied to those rules,
 

without negating the residual exceptions
 

altogether, a result which is plainly contrary to
 

the intent of Congress. [Id. at 1264 (emphasis


added), accord Acme Printing Ink Co v Menard, Inc,


812 F Supp 1498, 1527 (ED Wis, 1992).]
 

2. REJECTING THE NEAR-MISS THEORY
 

The great majority of courts have rejected the near-miss
 

theory by interpreting the residual exception to omit as
 

"specifically covered" only those hearsay statements
 

admissible under a categorical exception. A statement not
 

admissible under the categorical exceptions would not be
 

"specifically covered" by those exceptions, and thus could be
 

a candidate for admissibility under the residual exceptions.
 

12
 
 

 

In United States v Clarke,4 the United States Court of
 

Appeals for the Fourth Circuit explained the rationale for
 

rejecting the near-miss theory.
 

Appellant asks us to construe "not
 

specifically covered" narrowly, limiting [the


residual exceptions] to cases in no way touched by


one of the [categorical] exceptions. According to


appellant, admitting testimony that was a "near


miss" under 804(B)(1) would undermine the
 

protections of the evidentiary rules, as well as


violate the Sixth Amendment's Confrontation Clause.
 

We disagree. Appellant's view of "not
 

specifically covered" would effectively render [the


residual exception] a nullity. The plain meaning,


and the purpose, of [the residual exception] do not


permit such a narrow reading. We believe that
 

"specifically covered" means exactly what it says:
 

if a statement does not meet all of the
 

requirements for admissibility under one of the
 

prior exceptions, then it is not "specifically
 

covered." United States v. Fernandez, 892 F2d 976,


981 (11th Cir. 1989). This reading is consistent


with the purposes of [the residual exception].


That rule rejects formal categories in favor of a


functional inquiry into trustworthiness, thus
 

permitting the admission of statements that fail


the strict requirements of the prior exceptions,


but are nonetheless shown to be reliable. If we
 

were to adopt appellant's reading of the rule, we


would deprive the jury of probative evidence
 

relevant to the jury's truth-seeking role.
 

* * *
 

To adopt the "near miss" theory would create


an odd situation where testimony that was equally


trustworthy would be distinguishable based merely


on its proximity to a specified exception. For
 

instance, in United States v Ellis, 951 F.2d 580


(4th Cir. 1991), this circuit approved the
 

admission of the statement made by a later-deceased


witness pursuant to a plea agreement under
 

42 F3d 81 (CA 4, 1993).
 

13
 
 

804(b)(5), even though that statement was very


different from any of the specified exceptions.


Given our holding in Ellis, it would contradict


common sense to exclude equally reliable testimony


here simply because it fell closer to one of the


specified exceptions. We thus reject the "near


miss" theory of interpreting Fed. R. Evid. 803(24)


and 804(b)(5). [Clarke, 2 F3d 83-84 (emphasis


added) (discussing the former residual exceptions


before the adoption of FRE 807).]
 

The United States Court of Appeals for the Sixth Circuit
 

followed suit in United States v Laster,5 stating:
 

Although some courts have held that if
 

proffered evidence fails to meet the requirements


of the Fed. R. Evid. 803 hearsay exception, it


cannot qualify for admission under the residual


exception, the court declines to adopt this narrow


interpretation of Fed. R. Evid. 807 as suggested by


defendants. Rather, this court interprets Fed. R.


Evid. 807, along with the majority of circuits, to


mean that "if a statement is admissible under one
 

of the hearsay exceptions, that exception should be


relied on instead of the residual exception." 5
 

Jack B. Weinstein & Margaret A. Berger, Weinstein's


Federal Evidence § 807.03(4) (2d ed. 2000). We
 

endorse the reasoning in United States v Earles,


113 F3d 796 (8th Cir, 1997), which held that "the


phrase 'specifically covered' [by a hearsay


exception] means only that if a statement is
 

admissible under one of the [residual] exceptions,


such [] subsection should be relied upon" instead


of the residual exception. Id. at 800 (emphasis in


original). Therefore, the analysis of a hearsay


statement should not end when a statement fails to
 

qualify as a prior inconsistent statement, but


should be evaluated under the residual hearsay 


exception. [Laster, 258 F3d 530.]
 

In this case, the Court of Appeals followed the weight of
 

the authority and rejected the near-miss theory. Because we
 

agree that the language of the rule does not support the near5258 F3d 525 (CA 6, 2001).
 

14
 
miss theory, we affirm the judgment of the Court of Appeals.
 

3. OUR APPROACH TO THE RESIDUAL EXCEPTION
 

We agree with the majority of the federal courts and
 

conclude that a hearsay statement is “specifically covered” by
 

another exception for purposes of MRE 803(24) only when it is
 

admissible under that exception. Therefore, we decline to
 

adopt the near-miss theory as part of our method for
 

determining when hearsay statements may be admissible under
 

MRE 803(24).
 

In our view, the arguments in favor of the near-miss
 

theory are unpersuasive and do not conform to the language of
 

the rule. Random House Webster’s College Dictionary (1995)
 

defines "cover" as "8. to deal with or provide for; address:
 

The rules cover working conditions." (Emphasis in original.)
 

Therefore, a rule concerning the same subject matter as a
 

piece of evidence, or from a similar source, arguably could be
 

said to "cover" that evidence.
 

If the rule applied to all evidence not "covered" by
 

other exceptions, the near-miss theory would be more
 

persuasive.6 However, the rule modifies the term "covered"
 

6We do not hold, however, that similarity in subject


matter or scope leads to the conclusion that a particular


exception "covers" evidence; we simply note that the near-miss


theory would be more persuasive if the residual exception used


the term "covered" alone rather than "specifically covered."


In fact, we note that at least one commentator has stated that


a statement is not "covered" by an exception if it is not


admissible under that exception:
 

15
 
____________________________________________________________ 

____________________________________________________________________________________________________ 

with the adjective "specifically." Hence, more than simple
 

"coverage" is required. Black's Law Dictionary (7th ed)
 

defines "specific" as "1. Of, relating to, or designating a
 

particular or defined thing; explicit . . . . 2. Of or
 

relating to a particular named thing . . . . 3. Conformable to
 

specific requirements . . . ." (Emphasis added.)
 

Reading the words "specifically covered" together and
 

giving each its normally understood meaning, we conclude that
 

to be "specifically covered" requires more than to be
 

"covered." Since "specific" can mean "conformable to specific
 

Judge Easterbrook's literalism, while
 

ingenious, assumes both an unconvincing clarity and


a peculiar meaning of "covered."156 His complaint


that the authors of the rule did not use the term
 

"admissible" ignores the fact that hearsay


exceptions do not make evidence admissible. It may


be inadmissible under other rules (such as
 

relevancy rules), acts of Congress, or the
 

Constitution. 


156 The Webster's dictionary lists 23 meanings


of the term "cover," including "to have width or


scope enough to include or embrace." Webster's
 

Third New International Dictionary, 524 (1986). It
 

does not mean "is somewhat similar to," which seems


to be the meaning ascribed by Judge Easterbrook to


the rule's "specifically covered" language.
 

[Robinson, From Fat Tony and Matty the Horse to the sad case
 

of A.T.: Defensive and offensive use of hearsay evidence in
 

criminal cases, 32 Hous L R 895, 917 (1995).]
 

Moreover, although not deciding the meaning of "covered"


in the rule, we note that "specifically covered" must mean


more than "covered," no matter what meaning is given to the


latter term.
 

16
 
requirements" and "cover" can mean "addressing" or "dealing
 

with," we understand that a statement is only "specifically
 

covered" by a categorical exception when it is conformable to
 

all the requirements of that categorical exception.7 To hold
 

otherwise would read "specifically" out of the rule.8
 

7

 The dissent notes that the drafters of the rule used
 

the phrase "specifically covered" rather than "specifically


admissible." In our view, this terminology merely reflects


that a statement satisfying all requirements of a categorical


exception and, thus, admissible under that exception may still


be inadmissible for other reasons. For example, a statement


that would be admissible under the excited-utterance exception


may nonetheless be inadmissible if its probative value is


substantially outweighed by the danger of unfair prejudice.


See MRE 403. This is why MRE 803 begins, "The following are


not excluded by the hearsay rule," rather than, "The following


are admissible. (Emphasis added.) See also n 6. Notably, the


dissent does not provide an alternate construction of the


residual exception to support the near-miss theory, but relies


on the history surrounding the Congressional enactment of the


rules.
 

8Accord Fenner, The residual exception to the hearsay
 

rule: The complete treatment, 33 Creighton L R 265, 274-275


(2000):
 

Specific is defined as “a: constituting or


falling into a specifiable category b: sharing or


being those properties of something that allow it


to be referred to a particular category.”


[Merriam-Webster's Collegiate Dictionary CD-ROM
 

(Zane Pub. Co. 1996).] "Specifically covered" by


one of those exceptions in 803 or 804, then, seems


to mean falling within one of those exceptions. It
 

does not seem to mean falling outside the
 

exception. No matter how close it came, a miss is


still a miss. This seems to be the plain meaning


of the rule, as written. 


That is, each exception has certain
 

foundational elements, and if there is sufficient


evidence of each foundational element for any one


exception then the statement is "specifically
 

17
 
We also disagree with the Zenith court that interpreting
 

the residual exceptions in this manner will "nullify" the
 

categorical exceptions. Indeed, by their own language the
 

residual exceptions cannot apply to statements admissible
 

under the other exceptions. Moreover, the requirements of the
 

exceptions are stringent and will rarely be met, alleviating
 

concerns that the residual exceptions will "swallow" the
 

categorical exceptions through overuse.
 

We stress that this interpretation of the residual
 

exceptions does not subvert the purpose of the hearsay rules.
 

Each of the categorical exceptions requires a quantum of
 

trustworthiness and each reflects instances in which courts
 

have historically recognized that the required trustworthiness
 

is present.9 The residual exceptions require equivalent
 

covered" by the exception. It is specifically


covered by this exception whether it fits under any


other exception or not. And, if one of the


foundational elements is missing, then it is not


"specifically covered" by this exception—no matter


how close it comes. In fact, in this latter


situation, the statement is specifically not
 

covered by the barely missed exception.
 

9The dissent and proponents of the near-miss theory treat


the recognized exceptions like hermetically sealed, insular


categories. However, many of the exceptions overlap. A
 

present-sense impression under MRE 803(1) could also be an


excited utterance under MRE 803(2). Does a statement that
 

"nearly missed" being a present-sense impression, but was


admitted as an excited utterance, undermine the hearsay rules?


No, because the statement still had equivalent guarantees of


trustworthiness. 


Moreover, the overlap among the categorical exceptions
 

18
 
guarantees of trustworthiness. Thus, if a near-miss statement
 

is deficient in one or more requirements of a categorical
 

exception, those deficiencies must be made up by alternate
 

indicia of trustworthiness. To be admitted, residual hearsay
 

must reach the same quantum of reliability as categorical
 

hearsay; simply it must do so in different ways.10
 

Thus, we affirm that the residual exceptions may be used
 

to admit statements that are similar to, but not admissible
 

under, the categorical hearsay exceptions. Next, we turn our
 

attention to the requirements of the residual exceptions
 

themselves. We focus on MRE 803(24), the applicable exception
 

in this case.
 

The language of MRE 803(24) provides substantial guidance
 

in determining the proper method of analysis. As we noted
 

above, the rule contains four elements. To be admitted under
 

MRE 803(24), a hearsay statement must: (1) demonstrate
 

circumstantial guarantees of trustworthiness equivalent to the
 

further undermines the near-miss theory because one could


always argue that a statement is generally addressed by one of


the categorical exceptions. For example, under the near-miss
 

theory, nearly any explanation or description could be


"specifically covered" by the present-sense impression
 

exception.
 

10We fail to understand why achieving equivalent


guarantees of trustworthiness through alternate means makes a


residual hearsay statement less reliable than a statement that


satisfies a categorical exception. The categorical exceptions


provide prescribed ways to assess hearsay; we do not accept


that they are the only ways in which that assessment can be


made.
 

19
 
 

categorical exceptions, (2) be relevant to a material fact,
 

(3) be the most probative evidence of that fact reasonably
 

available, and (4) serve the interests of justice by its
 

admission.
 

The first and most important requirement is that the
 

proffered statement have circumstantial guarantees of
 

trustworthiness equivalent to those of the categorical hearsay
 

exceptions. As the United States Court of Appeals for the
 

Fourth Circuit noted in Clarke, "the inquiry into
 

trustworthiness aligns with the inquiry demanded by the
 

Confrontation Clause, which requires courts to examine the
 

'totality of the circumstances that surround the making of the
 

statement' for 'particularized guarantees of
 

trustworthiness.'" Clarke, supra at 84. Thus, courts should
 

consider the "totality of the circumstances" surrounding each
 

statement to determine whether equivalent guarantees of
 

trustworthiness exist.
 

There is no complete list of factors that establish
 

whether a statement has equivalent guarantees of
 

trustworthiness.11 However, the Confrontation Clause forbids
 

11In discussing the trustworthiness requirement, the


Federal Rules of Evidence Manual states:
 

There are certain standard factors all courts
 

consider in evaluating the trustworthiness of a


declarant's statement under the residual exception.


These include: 


20
 
(1) The relationship between the declarant and


the person to whom the statement was made. For
 

example, a statement to a trusted confidante should


be considered more reliable than a statement to a
 

total stranger.
 

(2) The capacity of the declarant at the time


of the statement. For instance, if the declarant


[were] drunk or on drugs at the time, that would


cut against a finding of trustworthiness . . . .
 

(3) The personal truthfulness of the
 

declarant. If the declarant is an untruthful
 

person, this cuts against admissibility, while an


unimpeachable character for veracity cuts in favor


of admitting the statement. The government cannot


seriously argue that the trust due an isolated
 

statement should not be colored by compelling


evidence of the lack of credibility of its source:


although a checkout aisle tabloid might contain


unvarnished truth, even a devotee would do well to


view its claims with a measure of skepticism.
 

(4) Whether the declarant appeared to
 

carefully consider his statement.
 

(5) Whether the declarant recanted or
 

repudiated the statement after it was made.
 

(6) Whether the declarant has made other
 

statements that were either consistent or
 

inconsistent with the proffered statement.
 

(7) Whether the behavior of the declarant was


consistent with the content of the statement.
 

(8) Whether the declarant had personal


knowledge of the event or condition described.
 

(9) Whether the declarant's memory might have


been impaired due to the lapse of time between the


event and the statement.
 

(10) Whether the statement, as well as the


event described by the statement, is clear and


factual, or instead is vague and ambiguous.
 

21
 
 

 

the use of corroborative evidence to determine the
 

trustworthiness of statements offered under the residual
 

exception in criminal cases if the declarant does not testify
 

at trial. Idaho v Wright, 497 US 805, 823; 110 S Ct 3139; 111
 

L Ed 2d 638 (1990).12 Beyond this limitation, courts should
 

(11) Whether the statement was made under


formal circumstances or pursuant to formal duties,


such that the declarant would have been likely to


consider the accuracy of the statement when making


it.
 

(12) Whether the statement appears to have


been made in anticipation of litigation and is


favorable to the person who made or prepared the


statement.
 

(13) Whether the declarant was cross-examined


by one who had interests similar to those of the


party against whom the statement is offered.
 

(14) Whether the statement was given


voluntarily or instead pursuant to a grant of


immunity.
 

(15) Whether the declarant was a disinterested


bystander or rather an interested party. [Federal


Rules of Evidence Manual (Matthew Bender & Co Inc,


2002), § 807.02(4) (citations omitted).]
 

The list is not intended to be all-inclusive, but to


provide general guidelines.
 

12If the declarant does testify at trial and is subject


to cross-examination, corroborative evidence may be used to
 

determine the trustworthiness of statements in criminal cases.
 

The reason is that the Confrontation Clause is not implicated.


United States v Owens, 484 US 554, 560; 108 S Ct 838; 98 L Ed
 

2d 951 (1988); United States v NB, 59 F3d 771 (CA 8, 1995).


Similarly, in civil cases, corroborative evidence is always


appropriate. Larez v Los Angeles, 946 F2d 630, 643 n 6 (CA 9,
 

1991).
 

22
 
 

consider all factors that add to or detract from the
 

statement's reliability.
 

The second requirement is self-explanatory. To be
 

admissible under the residual exceptions, the proffered
 

statements must be directly relevant to a material fact in the
 

case. A material fact is "[a] fact that is significant or
 

essential to the issue or matter at hand." Black's Law
 

Dictionary (7th ed).
 

The third requirement is that the proffered statement be
 

the most probative evidence reasonably available to prove its
 

point. It "essentially creates a 'best evidence'
 

requirement." Larez, supra at 644. This is a high bar and
 

will effectively limit use of the residual exception to
 

exceptional circumstances. For instance, nonhearsay evidence
 

on a material fact will nearly always have more probative
 

value than hearsay statements, because nonhearsay derives from
 

firsthand knowledge. Thus, the residual exception normally
 

will not be available if there is nonhearsay evidence on
 

point.
 

The final requirement is that admission of the proffered
 

statement conforms to the "rules [of evidence] and serve the
 

interests of justice." Accordingly, a court may refuse to
 

admit a statement into evidence, even though the first three
 

requirements of the exception have been met. This may occur if
 

the court determines that the purpose of the rules and the
 

23
 
interests of justice will not be well served by the
 

statement's admission.13
 

Finally, we note that the facts of each case determine
 

the answers to questions about the admissibility of evidence.
 

Here, the trial court did an exemplary job of making clear and
 

concise findings on the record. In order to facilitate review
 

in the future, we ask that courts faced with MRE 803(24)
 

questions of the type presented here make similarly explicit
 

supportive findings on the record.
 

B. THE LOWER COURTS CORRECTLY APPLIED 


MRE 803(24) IN THIS CASE


 We now turn to the facts of this case. In order to
 

invoke MRE 803(24), the proffered statement must "not [be]
 

specifically covered by any of the foregoing exceptions" of
 

MRE 803. MRE 803(24). As described above, we interpret
 

"specifically covered" to mean "admissible." Defendant does
 

not assert that DD's statement would be admissible under any
 

of the MRE 803 categorical exceptions. Therefore, the
 

statement is a proper candidate for admissibility under MRE
 

803(24).14
 

13If a statement is otherwise admissible under the
 

residual exceptions, the interest-of-justice requirement will


not preclude its admission for the sole reason that it is


hearsay. If this were the case, the residual exceptions would


be rendered useless.
 

14Because we interpret "specifically covered" by an


exception to mean admissible under that exception, we are not
 

24
 
With respect to the rule's requirements, there is no
 

dispute that the prosecution gave proper notice to defendant
 

of its intent to submit DD's hearsay statements under MRE
 

803(24). Moreover, it cannot be disputed that DD's statements
 

described the material facts of defendant's abusive acts.
 

The trial court made extensive findings on the record
 

regarding DD's statement to Ms. Bowman and detailed the manner
 

in which it satisfied each element of MRE 803(24). The court
 

particularly elaborated on its findings regarding the
 

trustworthiness of the statement, noting several times that
 

its spontaneity and the fact it was unanticipated made it
 

particularly reliable. 


The trial court also noted that the timing of the
 

statement negated any motive to fabricate. No investigation
 

had begun when the statement was made, and no one knew that
 

Ms. Bowman was to interview DD that day. Additionally, DD
 

spoke from firsthand knowledge and in terms appropriate for a
 

child of his age. Under the "totality" of these
 

circumstances, the court concluded that the statement had
 

circumstantial guarantees of trustworthiness equivalent to any
 

troubled by the proximity of DD's statement to MRE 803A. The
 

statement is not admissible under 803A and is thus not
 

"specifically covered" by 803A. The fact that 803A, which


relates to the same subject matter as the proffered statement


in this case, is not a "foregoing" exception of MRE 803(24) is


thus irrelevant. None of the categorical hearsay exceptions


"specifically covers" DD's statement.
 

25
 
of the categorical exceptions.
 

The trial court next found that DD's statement was the
 

most probative evidence available concerning the actual abuse.
 

DD did not anticipate the interview, and Ms. Bowman did not
 

intentionally elicit incriminating information about someone
 

other than the mother. Ms. Bowman also possessed the training
 

to make a proper assessment of DD's credibility at the time.
 

Defendant argues before this Court that DD's first
 

corroborative statement, made to his mother, was more
 

probative than his statement to Ms. Bowman. However, the
 

record contains no information about what DD said to his
 

mother. All that is known is that both parties stipulated at
 

trial that DD's mother had asked him some questions about
 

defendant's abuse before DD spoke to Ms. Bowman.15 It is not
 

possible to compare the value of a statement of known content
 

with a statement of unknown content.
 

Moreover, the statement made to Ms. Bowman is more
 

probative than DD's testimony at trial for the same reasons
 

that underscore the tender-years rule. As time goes on, a
 

child's perceptions become more and more influenced by the
 

reactions of the adults with whom the child speaks. It is for
 

15The prosecution also contends that DD's mother prompted
 

this statement by repeatedly asking questions and that


defendant discovered this fact at trial through crossexamination. As a result, the prosecution argues that DD's


first statement would not have been admissible under MRE 803A
 

in any event because the statement was not spontaneous. 


26
 
that reason that the tender-years rule prefers a child's first
 

statement over later statements. By analogy, the child's
 

second statement is preferable to still later statements.
 

Similarly, if DD's mother had a motive to induce her son to
 

lie, she would have had much more opportunity to influence him
 

before trial than before the Bowman interview.16
 

In aggregate, the trial court found that these
 

circumstances justified the admission of DD's statement under
 

MRE 803(24). The spontaneity of the interview, lack of motive
 

to lie, and Ms. Bowman's interviewing methods combine to give
 

the statement circumstantial guarantees of trustworthiness
 

equivalent to the categorical exceptions. The unavailability
 

of DD's first statement, the timing of the interview, and Ms.
 

Bowman's careful conduct in eliciting information make this
 

statement the most probative evidence of defendant's abusive
 

acts. Having found that DD's statement met the first three
 

requirements of MRE 803(24), the court concluded that
 

admission would not endanger the interests of justice and
 

ruled the statement admissible.
 

We agree with the Court of Appeals and hold that (1) the
 

trial court properly analyzed DD's statement under MRE
 

803(24), and (2) there was sufficient evidence to support the
 

16The prosecution also contests defendant's assertions


that DD's mother "coached" DD by noting that, after the Bowman


interview, DD's mother told Bowman she did not believe DD's


story.
 

27
 
trial court's findings. Consequently, we conclude that the
 

trial court did not abuse its discretion in admitting the
 

statement under MRE 803(24), even though the statement was not
 

admissible under MRE 803A.
 

IV. CONCLUSION
 

The trial court properly admitted DD's statement to Ms.
 

Bowman under MRE 803(24), although it did not qualify for
 

admission under MRE 803A. All the elements of MRE 803(24)
 

were satisfied. Accordingly, there was no abuse of discretion
 

and we affirm the decision of the Court of Appeals.
 

Marilyn Kelly


Maura D. Corrigan


Elizabeth A. Weaver
 

Stephen J. Markman
 

28
 
v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

No. 120515
 

TERRY LYNN KATT,
 

Defendant-Appellant.
 

YOUNG, J. (dissenting).
 

I disagree that evidence failing admissibility under one
 

of the enumerated exceptions can nevertheless be admitted
 

under the catch-all exception, MRE 803(24). Because the
 

majority concludes otherwise, I respectfully dissent. I fully
 

acknowledge that I advocate a minority position; however, I
 

believe that this position best comports with the text of the
 

residual hearsay exception as well as our time-honored
 

prohibition against the admission of hearsay evidence.
 

The rule against the admissibility of hearsay is a
 

venerable doctrine deeply rooted in our common law. The
 
principle has been called “a rule which may be esteemed, next
 

to jury trial, the greatest contribution of that eminently
 

practical legal system to the world’s methods of procedure.”1
 

Traditionally, witnesses were required to be present at
 

trial, be placed under oath, and be subject to crossexamination in order to testify. Under those circumstances,
 

a witness’s credibility, memory, perception, and narration
 

could be evaluated by the trier of fact. 2 McCormick,
 

Evidence (5th ed), Hearsay Rule, § 245, p 93. The rule
 

against hearsay is designed to maintain the integrity of
 

witness testimony.2
 

Over the years, a number of exceptions to the general
 

rule prohibiting the admission of hearsay have been developed.
 

Generally, the exceptions rest on the conclusion that the
 

circumstances of the making of particular statement provide
 

circumstantial guarantees of trustworthiness. These
 

guarantees are found because the circumstances surrounding the
 

1 5 Wigmore, Evidence (Chadbourn rev, 1974), § 1364, p
 

28. According to Wigmore, the prohibition against hearsay


became entrenched in the common law between 1675 and 1690. Id.
 

at 18.
 

2 “Hearsay testimony is from the very nature of it


attended with all such doubts and difficulties and it cannot
 

clear them up. ‘A person who relates a hearsay is not obliged


to enter into any particulars, to answer any questions, to


solve any difficulties, to reconcile any contradictions, to


explain any obscurities, to remove any ambiguities; he


entrenches himself in the simple assertion that he was told


so, and leaves the burden entirely on his dead or absent


author.’” McCormick, supra, quoting Coleman v Southwick, 9


Johns 45, 50 (NY, 1812).
 

2
 
making of the statement minimize or negate the hearsay
 

dangers, such as insincerity or failure of memory. 


In this case, the hearsay testimony at issue is
 

specifically covered by MRE 803A, but cannot be admitted under
 

that exception because, as the state concedes, the evidence
 

was not the first corroborative statement regarding the
 

incident. Accordingly, under the plain language of MRE
 

803(24), the evidence is “specifically covered” by MRE 803A
 

and cannot be admitted under MRE 803(24).3
 

The approach advanced by the majority subverts our
 

historical prohibition against the admission of hearsay
 

evidence. In the majority view, evidence that is clearly
 

inadmissible under one of the enumerated hearsay exceptions
 

gets a second chance at admissibility under the residual
 

exception if, among other factors, “the interests of justice”,
 

MRE 803(24)(C), would be served by its admission. The
 

criterion, particularly when coupled with the deferential
 

3

 MRE 803(24) provides: 


Other Exceptions. A statement not
 

specifically covered by one 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 that 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. [Emphasis added.]
 

3
 
abuse of discretion standard for appellate review,4
 

essentially renders the general prohibition against hearsay,
 

and the development of what hearsay is excepted and not
 

excepted, hollow and meaningless.5


 Against the nearly four hundred-year-old historical
 

development of our hearsay rules, it is clear that the
 

drafters of the rules did not intend a wholesale trampling of
 

the enumerated hearsay exceptions when the federal residual
 

hearsay exceptions were enacted.6 The advisory committee
 

noted that the residual exceptions “do not contemplate an
 

unfettered exercise of judicial discretion, but they do
 

provide for treating new and presently unanticipated
 

situations which demonstrate a trustworthiness within the
 

spirit of the specifically stated exceptions.”7
 

In this case, DD’s statement to Angela Bowman was not a
 

4

 We review a trial court’s decision to admit or exclude
 

evidence for an abuse of discretion. People v Starr, 457 Mich


490, 494; 577 NW2d 673 (1998); People v Bahoda, 448 Mich 261,


289; 531 NW2d 659 (1995).
 

5 “The residuals are a ‘Trojan Horse’ that has been set


upon the judiciary to wreak havoc and to emasculate the rule


against hearsay. Advocates for the exception, like the fated


inhabitants of ancient Troy, erroneously believed that the


exceptions could be adequately controlled by adding strict


requirements for admission.” Beaver, The residual hearsay
 

exception reconsidered, 20 Fla St U L R 787, 794-795 (1993).
 

6
 Originally, the federal residual hearsay exceptions


were found at FRE 803(24) and FRE 804(b)(5). In 1997, the two


rules were combined and transferred to FRE 807. 


7 Advisory committee note on FRE 803(24), 56 F R D 183,


320 (1973) (emphasis added). 


4
 
“new and presently unanticipated situation.” In fact,
 

evidence of second and subsequent corroborative statements are
 

specifically contemplated and explicitly rejected by the clear
 

language of MRE 803(A)—“[i]f the declarant made more than one
 

corroborative statement about the incident, only the first is
 

admissible under this rule.” (Emphasis added.)
 

When construing a court rule, which includes a rule of
 

evidence, this Court applies the legal principles that govern
 

the construction of statutes. McAuley v Gen Motors Corp, 457
 

Mich 513, 518; 578 NW2d 282 (1998). Accordingly, we begin with
 

the plain language of the rule. When the language of the rule
 

is unambiguous, we enforce the meaning expressed, without
 

further judicial construction or interpretation. Tryc v
 

Michigan Veterans' Facility, 451 Mich 129, 135; 545 NW2d 642
 

(1996).
 

The majority treats the residual hearsay exception as if
 

it read “A statement not specifically admissible under any of
 

the foregoing exceptions”8 rather than “specifically covered.”
 

Clearly, the plain language of the rule does not support such
 

a reading. 


8

 See also United States v Dent, 984 F2d 1453, in which,


in his concurring opinion, Judge Easterbrook noted that United
 

States v Boulahanis, 677 F2d 586 (CA 7, 1982), treated the


residual exception as if it began “‘A statement not
 

specifically admissible under any of the foregoing exceptions


. . . ’. Evidence that flunks an express condition of a rule


can come in anyway.” 


5
 
This Court made deliberate choices in deciding what
 

varieties of hearsay would be admissible and reflected those
 

choices in the words of the hearsay exceptions. The linedrawing efforts reflected in the enumerated hearsay exceptions
 

are rendered purposeless if hearsay that does not meet the
 

textual requirements of a specific hearsay exception is
 

alternatively admitted under the residual exception.9
 

I believe that the trial court erred in allowing the
 

hearsay testimony to be admitted into evidence. Furthermore,
 

I do not believe that the error was harmless. The testimony
 

of the children at trial was at times vague and inconsistent,
 

and the physical examination of the children was inconclusive.
 

While the alternative construction proffered by my
 

colleagues in the majority is a principled one, I believe my
 

construction best harmonizes with the actual text of the
 

evidentiary rule as well as our general and historical
 

prohibition against the admission of hearsay evidence. The
 

clear language of the residual hearsay exception precludes
 

admissibility where the evidence does not meet the specific
 

textual requirements of an enumerated hearsay exception. 


I urge this Court to consider repealing MRE 803(24) and
 

MRE 804(b)(5).
 

9

See Jonakait, Text, texts, or ad hoc determinations:
 

Interpretation of the Federal Rules of Evidence, 71 Ind L J


551 (1996), who favors a textualist approach to the residual


hearsay exception. 


6
 
Robert P. Young, Jr.


Michael F. Cavanagh


Clifford W. Taylor
 

7