Avoiding Trial by Rumor: Identifying the Due Process Threshold for the Hearsay Evidence after the Demise of the Ohio v. Roberts Reliability Standard
![handle is hein.journals/umkc77 and id is 121 raw text is: AVOIDING TRIAL BY RUMOR: IDENTIFYING THE
DUE PROCESS THRESHOLD FOR HEARSAY
EVIDENCE AFTER THE DEMISE OF THE OHIO V.
ROBERTS RELIABILITY STANDARD
Jules Epstein*
The rule of evidence which rejects mere hearsay testimony, which
excludes from trials of a criminal or civil nature the declarations of any other
individual than of him against whom the proceedings are instituted, has been
generally deemed all essential to the correct administration of justice.'
[T]he Confrontation Clause has no application to [nontestimonial hearsay
statements] and therefore permits their admission even if they lack indicia of
reliability.2
I. INTRODUCTION
The revolution in the law governing the interplay between the criminal
defendant's right of Confrontation and the admissibility of hearsay statements
initiated by the Court's 2004 Crawford decision - and given fuller definition in
2006 and 2007 - has had tremendous impact and raised numerous concerns.
These include: identifying what statements meet the Crawford test of
testimonial'4 and thus fall within the Confrontation Clause's reach; whether the
Court's reading of history in Crawford was accurate;5 analyzing the application
and consequences of this new Confrontation paradigm on the prosecution of
child assault and domestic violence cases;6 and a strong revival, and controversial
articulation, of the doctrine of forfeiture by wrongdoing.7
0 Associate Professor of Law, Widener University School of Law (Delaware). Thanks are due to
the critical commentary and insights provided by colleagues Professors John Nivala and Leonard
Sosnov at Widener; and Professor Josephine Ross at Howard University School of Law.
'United States v. Burr, 25 F. Cas. 187, 193 (C.C.D. Va. 1807).
2 Whorton v. Bockting, 127 S. Ct. 1173, 1183 (2007).
3 Crawford v. Washington, 541 U.S. 36 (2004).
4 As is detailed in Section II, infra, Crawford divided all hearsay statements into two categories,
testimonial and nontestimonial, and applied the Confrontation Clause's protection to the
former. In Crawford's sequalae, the Court expressly excluded nontestimonial hearsay from the
reach of the Confrontation guarantee.
5See, e.g., Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford's Cross-
Examination Rule: A Reply to Mr. Kry, 72 BROOK. L. REv. 557 (2007) [hereinafter Davies,
Revisiting]; Thomas Y. Davies, What Did the Framers Know, and When Did They Know It?
Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REv. 105 (2005); Randolph N.
Jonakait, The (Futile) Search for a Common Law Right of Confrontation: Beyond Brasier's
Irrelevance to (Perhaps) Relevant American Cases, 15 J.L. & POL'Y 471 (2007) [hereinafter
Jonakait]; Robert P. Mosteller, Confrontation as Constitutional Criminal Procedure: Crawford's
Birth Did Not Require that Roberts Had to Die, 15 J.L. & Pol'y 685 (2007); Roger W. Kirst, Does
Crawford Provide a Stable Foundation for Confrontation Doctrine? 71 BROOK. L. REv. 35, 38-39
(2005).
6 See, e.g., Robert P. Mosteller, Testing the Testimonial Concept and Exceptions to Confrontation.
A Little Child Shall Lead Them, 82 IND. L.J. 917 (2007); Myrna S. Raeder, Comments on Child](ViewImageLocal?handle=hein.journals/umkc77&div=7&collection=journals&method=preview&ext=.png&size=3)
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