United States v. Clarke (1993)

United States Court of Appeals for the Fourth Circuit · 1993 · Evidence

2 F.3d 81 (4th Cir. 1993)

Updated August 22, 2026

EvidencehearsayRule 804(b)(1)Rule 804(b)(5)residual exceptionprior testimonytrustworthinessConfrontation Clause

Facts

Christopher Clarke arranged for Jane Latimer to drive a rented Toyota from Connecticut to Durham, North Carolina, with a toolbox in the trunk, and offered her $1,000 for the trip. A Virginia state trooper searched the car with Latimer's consent, found the locked toolbox hidden in the wheelwell, and discovered 567.8 grams of crack cocaine inside. After Latimer cooperated with authorities, Michael Clarke was arrested in Durham, and at his own suppression hearing he testified that Christopher had arranged for the toolbox and cocaine to be delivered. At Christopher's trial, Michael refused to testify, was declared unavailable, and the district court admitted his suppression-hearing testimony under Rule 804(b)(5).

Issue

May prior testimony that is inadmissible under Federal Rule of Evidence 804(b)(1) nonetheless be admitted under Rule 804(b)(5) if it has equivalent circumstantial guarantees of trustworthiness? Also, did the district court properly find such trustworthiness here?

Rule

A statement is not "specifically covered" by Rule 804's listed exceptions if it does not satisfy all requirements of one of those exceptions, and such a statement may be admitted under Rule 804(b)(5) if it has equivalent circumstantial guarantees of trustworthiness. The trustworthiness inquiry focuses on the totality of the circumstances surrounding the making of the statement, not on how closely the statement resembles a specified hearsay exception.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Richmond, Virginia, federal prosecutors charge Devin Moss with firearms trafficking. At trial, the government seeks to introduce sworn testimony given by Devin's cousin, Aaron Moss, at Aaron's earlier suppression hearing; Aaron is now unavailable after refusing to testify despite a court order. Devin had no opportunity to examine Aaron at that hearing, but Aaron testified voluntarily under oath, a court reporter made a contemporaneous transcript, Aaron's lawyer questioned him, and a prosecutor cross-examined him.

Should the trial court exclude the testimony solely because it does not satisfy the prior-testimony exception's requirement that Devin had an opportunity and similar motive to develop the testimony?

Explanation. The majority held that testimony inadmissible under Rule 804(b)(1) is not thereby barred from Rule 804(b)(5). A statement is not 'specifically covered' unless it satisfies all requirements of the listed exception. The court rejected the 'near miss' theory and required a separate trustworthiness inquiry.