FRE 804(B)(5) Interpretation
In United States v. Shaw, 69 F.3d 1249, 1253 (CA 4, 1995), the Fourth Circuit Court of Appeals explained that the trustworthiness requirement contained in FRE 804(b)(5) "serves as a surrogate for the declarant's in-court cross-examination" and that, therefore, a statement's trustworthiness "is satisfied if the court can conclude that cross-examination would be of 'marginal utility.'"
In United States v. Trenkler, 61 F.3d 45, 58 (CA 1, 1995), the First Circuit Court of Appeals explained that the trustworthiness requirement of FRE 803(24)
"is largely fact driven, and its focus will vary depending on the context in which the issue arises.
A court, however, may consider whether the evidence shares reliability factors (e.g., personal knowledge, lack of bias) common to the other hearsay exceptions and whether the evidence, but for a technicality, would otherwise come within a specific exception.
Essentially, the district court must determine whether the totality of the circumstances surrounding the statement establish its reliability sufficient enough to justify foregoing the rigors of in-court testimony (e.g., live testimony under oath, cross-examination) that ordinarily guarantee trustworthiness." Welch, 226 Mich. App. at 467-468.