United States v. Burgess, 99 F.4th 1175

Defendant Kendall Burgess was convicted of aggravated sexual abuse and abusive sexual contact involving his seven-year-old niece, P.G., after allegations arose from an incident occurring on April 19, 2019.
The abuse came to light after P.G. made spontaneous statements during an Easter party, repeated to adults who notified her mother.
A forensic interview with P.G. was conducted three days after the alleged incident, during which details consistent with her initial outcry were provided.
At trial, P.G. testified but gave inconsistent accounts regarding the sexual acts committed by Burgess, leading to admission of the forensic interview video under Fed. R. Evid. 807 (residual hearsay exception).
The jury viewed the forensic interview during deliberations and convicted Burgess; he was sentenced to 30 years on each count (concurrent).
On appeal, Burgess challenged the admission of the interview video, prosecutorial conduct, and other trial rulings.

Issue	Burgess's Argument	Government's Argument	Held
Admission of Interview (Rule 807 - Trustworthiness)	Statements lacked trustworthiness due to inconsistency, lack of physical evidence, and other children's testimony	Interview was close in time, open-ended/non-leading, consistent with initial reports, and showed no motive to lie	District court did not abuse its discretion; trustworthiness was established
Admission of Interview (Rule 807 - Probative Value)	The video was not more probative than P.G.'s trial testimony	Out-of-court statement was clearer and more detailed than in-court testimony	District court did not abuse its discretion; video was more probative
Giving Video to Jury During Deliberation	Jury's access to the video was prejudicial	Courts have discretion; no clear prejudice occurred	No abuse of discretion; standard practice for properly admitted exhibits
Prosecutorial Misconduct	Improper cross-examination and misstatement in closing argument	No rule prohibiting such questioning; any misstatements were harmless	No reversible error; no prejudice reached the threshold for a new trial

United States v. Dalton, 918 F.3d 1117 (10th Cir. 2019) (residual hearsay exception applies in extraordinary circumstances with guarantees of trustworthiness)
United States v. Harrison, 296 F.3d 994 (10th Cir. 2002) (child victim's out-of-court statements admissible under residual hearsay in certain circumstances)
United States v. Farley, 992 F.2d 1122 (10th Cir. 1993) (uses timing and method of child hearsay statements to evaluate trustworthiness)
United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995) (no per se rule against asking defendant if other witnesses lied on cross-examination)
United States v. Jenkins, 313 F.3d 549 (10th Cir. 2002) (abuse of discretion standard defined for evidentiary rulings)