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.”1
“[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 Crawford3 decision B and given fuller definition in
2006 and 2007 B 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

*

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.
1
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.
5
See, e.g., Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford’s “CrossExamination 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

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Yet while all of these sequelae are significant, it may be argued (and is the
thesis of this article) that the single most important, and potentially most farreaching result of Crawford is found in its dismissal of any concern for
substantive reliability of hearsay statements.
We rejected that argument [that the purpose of the Confrontation Clause was
to ensure the reliability of evidence] (and our prior cases that had accepted it)
in [Crawford] . . . . [T]he Confrontation Clause “commands, not that
evidence be reliable, but that reliability be assessed in a particular manner: by
8
testing in the crucible of cross-examination.”

Abuse Litigation in a “Testimonial” World: The Intersection of Competency, Hearsay, and
Confrontation, 82 IND. L.J. 1009 (2007).
7
This doctrine permits the introduction of testimonial hearsay when the accused has engaged in
conduct that prevents the witness from appearing and facing cross-examination. See Reynolds v.
United States, 98 U.S. 145, 158 (1879). Decisional law in this area has expanded to apply the
forfeiture principle even when there is no proof that the defendant intended to prevent a witness
from testifying. See, e.g., United States v. Garcia-Meza, 403 F.3d 364, 370 (6th Cir. 2005) (“There
is no requirement that a defendant who prevents a witness from testifying against him through his
own wrongdoing only forfeits his right to confront the witness where, in procuring the witness’s
unavailability, he intended to prevent the witness from testifying.”). This no-intent requirement
was held to be incompatible with the Confrontation guarantee in Giles v. California, 128 S. Ct.
2678, 2689 (U.S. 2008) (“[U]nconfronted testimony would not be admitted without a showing that
the defendant intended to prevent a witness from testifying. In cases where the evidence suggested
that the defendant had caused a person to be absent, but had not done so to prevent the person from
testifying . . . ”). People v. Giles, 152 P.3d 433 (Cal. 2007). But see People v. Stechly, No. 97544,
2007 Ill. LEXIS 452 (Ill. 2007) (finding intent necessary to satisfy Confrontation Clause
requirements). Scholars have urged that the doctrine be read expansively to apply to batterers in
domestic violence and child abuse cases. See e.g., Tom Lininger, Prosecuting Batterers after
Crawford, 91 VA. L. REV. 747, 809-10 (2005) (endorsing the use of the forfeiture doctrine in
domestic violence cases with a preponderance standard); Deborah Tuerkheimer, Crawford’s
Triangle: Domestic Violence and the Right of Confrontation, 85 N.C. L. REV. 1, 49-51 (2006). See
also Andrew King-Reis, Forfeiture by Wrongdoing: A Panacea for Victimless Domestic Violence
Prosecutions, 39 CREIGHTON L. REV. 441 (2006). Giles suggests some flexibility on this issue.
128 S. Ct. at 2693 (“Where such an abusive relationship culminates in murder, the evidence may
support a finding that the crime expressed the intent to isolate the victim and to stop her from
reporting abuse to the authorities or cooperating with a criminal prosecution - rendering her prior
statements admissible under the forfeiture doctrine.”).
8
United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006) (quoting Crawford, 541 U.S. at 36).
See also Davis v. Washington, 547 U.S. 813, 825 n.4 (2006) (holding that Crawford overruled
Ohio v. Roberts). The Court restated this unanimously in Whorton v. Bockting:
[W]hatever improvement in reliability Crawford produced in this respect must be
considered together with Crawford’s elimination of Confrontation Clause protection
against the admission of unreliable out-of-court nontestimonial statements. Under
Roberts, an out-of-court nontestimonial statement not subject to prior crossexamination could not be admitted without a judicial determination regarding
reliability. Under Crawford, on the other hand, the Confrontation Clause has no
application to such statements and therefore permits their admission even if they lack
indicia of reliability.
Whorton v. Bockting, 127 S. Ct. 1173, 1183 (2007).

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This absolute repudiation of the Ohio v. Roberts “reliability” test9 for
Confrontation Clause challenges to hearsay in criminal trials occurred without
briefing10 and in cases that failed to raise the question of the test’s continued
viability.11 It leaves a potential vacuum in constitutional restrictions for hearsay
classified as “non-testimonial,” which the Court has clearly placed outside of the
reach of the Sixth Amendment and which scholarship has yet to address. Should
the use of “unreliable” hearsay evidence be authorized, either by judicial action
or legislative development of new hearsay exceptions, is there no constitutional
provision that might check or limit this practice? Imagine a criminal trial in
which the only evidence of guilt is the repetition of a victim’s statement, made to
a friend, that “last week [the accused] assaulted me B he punched me and broke
my arm.” Meeting no currently-existing hearsay exception, may the statement
nonetheless be admitted and serve as the basis for conviction12 if a legislature
were to create an “injured person” hearsay exception?13
The use of out-of-court, non-cross-examined statements has been a staple of
American trials for much of the last century,14 notwithstanding its condemnation

9

See infra notes 18-19 and accompanying text.
As noted by Professor Kirkpatrick: “The Court has staked out its position on the question, which
is apparently to exclude nontestimonial hearsay entirely from the protection of the Sixth
Amendment, without hearing argument from any of the litigants who might actually be affected by
such a ruling.” Laird C. Kirkpatrick, Nontestimonial Hearsay after Crawford, Davis and Bockting,
19 REGENT U. L. REV. 367, 370 (2007) [hereinafter Kirkpatrick].
11
Gonzalez-Lopez addressed “whether a trial court’s erroneous deprivation of a criminal
defendant’s choice of counsel entitles him to a reversal of his conviction.” Gonzalez-Lopez, 548
U.S. at 142. Bockting looked solely at whether Crawford “is retroactive to cases already final on
direct review.” Bockting, 127 S. Ct. at 1177. In Davis, the issue briefed was “how Crawford
applies to a ‘victimless’ prosecution based almost exclusively on statements reporting a crime to a
911 operator.” Brief for Petitioner at 2, Davis v. Washington, 547 U.S. 813 (2006) (No. 05-5224).
Hammon’s Brief addressed the question of “[w]hether an oral accusation made to an investigating
officer at the scene of an alleged crime is a testimonial statement within the meaning of Crawford.”
Brief of Petitioner Hershel Hammon at 1, Hammon v. Indiana, 547 U.S. 813 (2006) (No. 05-5705).
12
The distinction between evidentiary admissibility and evidentiary sufficiency for nontestimonial
hearsay is beyond the scope of this article, which focuses on the former. However, if admissible,
such hearsay could undoubtedly serve as the primary proof on which a criminal conviction is
predicated. See infra notes 72 et seq., and accompanying text.
13
The concern here is not a fanciful one. It has been recognized that Crawford might permit
legislatures to create new hearsay exceptions without regard to a reliability component or
determination. Professor Lininger explicitly urges “an expansion of statutory hearsay law” while
proposing some countervailing statutory confrontation/reliability standard. Tom Lininger,
Reconceptualizing Confrontation after Davis, 85 Tex. L. Rev. 271, 299-310 (2006) [hereinafter
Lininger, Reconceptualizing]. See also Daniel J. Capra, Amending the Hearsay Exception for
Declarations Against Penal Interest in the Wake of Crawford, 105 COLUM. L. REV. 2409 (2005)
(arguing that Crawford may necessitate revising this hearsay exception but calling for a statutory
reliability mandate if Ohio v. Roberts is no longer applicable to non-testimonial hearsay).
14
The historical record is inconsistent in part because of the failure to distinguish criminal and civil
proceedings. Wigmore identifies the “time of the definite emergence of the hearsay rule” as being
“by the end of the 1600s.” 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1580
10

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200 years ago as endangering to “life, liberty and property”15 and its repudiation
as “not evidence” across the Nineteenth century.16 But that ingredient of modern
American trials was tempered with Confrontation Clause limits: the hearsay had
to be “reliable,” a standard met either by its fitting within a hearsay exception of

(Chadbourn Rev. ed., 1974) (hereinafter WIGMORE, EVIDENCE IN TRIALS). He finds support for
acceptance of hearsay exceptions such as “regular entries” [business records] in colonial times, id.
at § 1518, “declarations about family history,” deemed “one of the oldest exceptions,” id. at § 1480,
and “statements of facts against interest” as an exception “traced back . . . to the early 1700s,” id. at
§ 1455. Yet Wigmore does not distinguish between civil and criminal trials in tracing the ancestry
of these exceptions, and in fact much of the hearsay known today was not routinely admitted at the
time of the Framing or thereafter. The treatises indicate that most of the modern exceptions to the
rule against hearsay were in place by the end of the Eighteenth century, even if their contours in
particular cases required clarification. These exceptions were: legitimacy, family relationships,
pedigree, prescription, custom, general reputation, prior consistent and inconsistent statements, and
dying declarations. See T.P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499,
533 (1999) (footnotes omitted). Other than dying declarations, these exceptions are not the source
of proof in most criminal prosecutions. [Prior consistent and inconsistent statements apply only
when the declarant is a trial witness, making them inapposite to this analysis.] For the more
typically occurring criminal law exceptions, Wigmore cites to an 1873 Maine prosecution for a
case first accepting the spontaneous declaration/excited utterance exception. WIGMORE , EVIDENCE
IN TRIALS, supra, at § 1747 (citing State v. Wagner, 61 Me. 178, 195 (Me. 1873)).
15
United States v. Burr, 25 F. Cas. 187, 193 (C.C.D. Va. 1807).
I know not why a declaration in court should be unavailing, unless made upon oath, if
a declaration out of court was to criminate others than him who made it; nor why a
man should have a constitutional claim to be confronted with the witnesses against
him, if mere verbal declarations, made in his absence, may be evidence against him. I
know of no principel [sic] in the preservation of which all are more concerned. I
know none, by undermining which, life, liberty and property, might be more
endangered.
Id.
16
See, e.g., Williams v. State, 12 S.E. 743 (Ga. 1891) (“[H]earsay evidence and common rumor are
incompetent to prove particular facts.”); Blaisdell v. Bickum, 1 N.E. 281, 282 (Mass. 1885)
(distinguishing hearsay used to prove pedigree from “the general rule that hearsay evidence and
common rumor are incompetent to prove particular facts”). In criminal prosecutions, the use of
hearsay was restricted:
The great security of the accused however, after all, is in the fundamental principle of
the common law, that legal evidence consists in facts testified to by some person who
has personal knowledge of them; thus excluding all suspicions, public rumors,
second-hand statements, and generally all mere hearsay testimony, whether oral or
written, from the consideration of the jury -- the usual test of this hearsay evidence
being that it does not derive its value solely from the credit to be given to the witness
who is before them, but partly from the veracity of some other individual.
State v. McO’Blenis, 24 Mo. 402, 414 (Mo. 1857). The Missouri Court recognized two exceptions:
“dying declarations in reference to the same homicide, and the deposition of a witness regularly
taken in a judicial proceeding against the accused in respect to the same transaction and in his
presence, when the subsequent death of the witness has rendered his production in court impossible
. . . .” Id. at 414-15.

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long standing17 or by unique circumstances attendant to the making of the
particular statement.18
The construct of “reliability” had its deserved criticisms: it was at a
minimum a-scientific, if not contrary, to psychological observations for excited
utterances 19 and seemingly at odds with human behavior regarding truthfulness to
physicians.20 As well, and as aptly detailed in Crawford, reliability can best be
described as “in the eyes of the beholder” or, in the Court’s word, “amorphous”:
Whether a statement is deemed reliable depends heavily on which factors the
judge considers and how much weight he accords each of them. Some courts
wind up attaching the same significance to opposite facts. For example, the
Colorado Supreme Court held a statement more reliable because its

17

Ohio v. Roberts, 448 U.S. 56, 66 (1980) (“Reliability can be inferred without more in a case
where the evidence falls within a firmly rooted hearsay exception.”).
18
Idaho v. Wright, 497 U.S. 805, 820-21 (1990).
[T]he “particularized guarantees of trustworthiness” required for admission under the Confrontation
Clause must likewise be drawn from the totality of circumstances that surround the making of the
statement and that render the declarant particularly worthy of belief . . . . Thus, unless an
affirmative reason, arising from the circumstances in which the statement was made, provides a
basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the
Confrontation Clause requires exclusion of the out-of-court statement.
Id. (citations omitted).
19
See, e.g., Josephine Ross, After Crawford Double-Speak: “Testimony” Does Not Mean
Testimony and “Witness” Does Not Mean Witness, 97 J. CRIM. L. & CRIMINOLOGY 147, 174-75
(2006) (noting studies that reliability of statements drop after a matter of seconds pass between
event and response); Eileen A. Scallen, Analyzing “The Politics of [Evidence] Rulemaking”, 53
HASTINGS L.J. 843, 858 n.84 (2002) (“The reliability rationale for ‘excited utterances,’ Rule 803(1),
would be laughable, if it were not for the serious problem that such evidence is commonly admitted
under this exception in criminal cases, despite the obvious potential defects with the declarant’s
ability to perceive, recall, and communicate correctly.”); Eleanor Swift, Smoke and Mirrors: The
Failure of the Supreme Court’s Accuracy Rationale in White v. Illinois Requires a New Look at
Confrontation, 22 CAP. U. L. REV. 145, 154 n.38 (1993) (collecting social science research
repudiating the purported reliability of “excited utterances”). Similar concerns have been raised
about the reliability of dying declarations, particularly in homicides involving traumatic wounds.
Hemorrhage functionally leads to anoxic or hypoxic states, causing death. Under controlled
conditions, hypoxia alone results in significant effects upon cognition. Further, hypoxic events,
trauma, and physical and psychosocial stressors appear to have a causative relationship with
delirium, a heightened state of impaired cognition. Because this state would appear to be plausibly
relevant to circumstances when dying declarations are uttered, the scientific and medical evidence
seriously challenges the contention that dying declarations are inherently reliable. See Bryan A.
Liang, Shortcuts To “Truth”: The Legal Mythology of Dying Declarations, 35 AM. CRIM. L. REV.
229, 243 (1998).
20
See, e.g., Carla K. Johnson, Lying to Doctor Can Mean Health Risks, WASH. POST, Feb. 16,
2007,
available
at
http://www.washingtonpost.com/wpdyn/content/article/2007/02/16/AR2007021600984.html (reporting on studies and anecdotal proof
that lying to physicians is prevalent). For a general challenge to the reliability construct, see
Michael L. Siegel, Rationalizing Hearsay: A Proposal for a Best Evidence Hearsay Rule, 72 B.U.
L. Rev. 893, 909 (1992).

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inculpation of the defendant was “detailed,” while the Fourth Circuit found a
statement more reliable because the portion implicating another was
21
“fleeting.”

It bears note that Crawford has been criticized for its failure to eliminate
judicial discretion, as it merely altered the focus from discretionary
determinations of reliability to discretionary determinations of what hearsay is
properly classified as “testimonial.”22Yet notwithstanding these flaws, the
reliability test put some limits on hearsay evidence for criminal prosecutions.23
Legislators enacting new evidence provisions were forced to incorporate
reliability standards, a phenomenon found in particular in child “tender years
hearsay” statutes (which at least 40 states have adopted).24 As well, courts held
hearsay evidence inadmissible for failing to meet the baseline reliability
criterion.25
The turn away from the reliability requirement was made clear beyond
dispute in 2007 in Whorton v. Bocking, where the Court wrote dismissively of the
need for reliability as a Confrontation Clause threshold for admitting nontestimonial hearsay: “[T]he Confrontation Clause has no application to

21

Crawford, 541 U.S. at 63 (citations omitted). The Crawford Court continued with other
examples:
The Virginia Court of Appeals found a statement more reliable because the witness
was in custody and charged with a crime (thus making the statement more obviously
against her penal interest), while the Wisconsin Court of Appeals found a statement
more reliable because the witness was not in custody and not a suspect. Finally, the
Colorado Supreme Court in one case found a statement more reliable because it was
given ‘immediately after’ the events at issue, while that same court, in another case,
found a statement more reliable because two years had elapsed.
Id. (citations omitted).
22
See, e.g., Michael D. Cicchini & Vincent Rust, Confrontation after Crawford v. Washington:
Defining “Testimonial”, 10 LEWIS & CLARK L. REV. 531, 540 (2006) [hereinafter Cicchini].
23
How extensive those limits were is, admittedly, debatable. See, e.g., John G. Douglass, Beyond
Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay,
67 GEO. WASH. L. REV. 191, 206 (1999).
Almost twenty years after Roberts, it is hard to conclude that the Confrontation
Clause, as an exclusionary rule, has much practical impact on hearsay in criminal
trials. . . . Its second pillar, the ‘reliability’ test, has limited effect largely because the
vast majority of admissible hearsay now fits within ‘firmly rooted’ exceptions and,
therefore, is effectively exempt from any constitutional reliability assessment.
Id.
24
See, e.g., Snowden v. State, 846 A.2d 36, 40 (Md. Ct. Spec. App. 2004) (referencing statutes
from various states). Illustrative is the Maryland statute, which requires “particularized guarantees
of trustworthiness” and details considerations for finding reliability. MD. CODE ANN., CRIM. PROC.
‘ 11-304 (2002).
25
See, e.g., Idaho v. Wright, 497 U.S. 805, 819 (1990) (excluding statements made to a physician
alleging sexual abuse, sought to be admitted under a residual hearsay); Hill v. Hofbauer, 337 F.3d
706, 716 (6th Cir. 2003) (excluding codefendant’s custodial statement implicating Hill as unreliable
hearsay); see also Franqui v. State, 699 So. 2d 1312, 1318 (Fla. 1997).

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[nontestimonial hearsay statements] and therefore permits their admission even if
they lack indicia of reliability.”26
Unanswered by Bockting was the correlate inquiry B does any
Constitutional provision preclude “admission even if [the non-testimonial
hearsay] lack[s] indicia of reliability[?]”27This Article posits an affirmative
answer, with the Due Process guarantee arising from dual factors B the historic
opposition to trial by rumor28 due to its dangers of unreliability29 and the
correlate primacy accorded to the power of cross-examination to seek the truth.
That Due Process test will result in setting some (albeit modest) reliability
standard for non-testimonial evidence.
The Article begins with an overview of the Crawford revolution in
hearsay/Confrontation analysis and the Court’s ensuing decisions that have
begun to set the boundaries for what hearsay is nontestimonial. Section II then
examines the Court’s uneven Due Process jurisprudence in regulating and
limiting prosecutorial evidence on reliability grounds. Of particular importance
is the analysis applied to evidence used in probation revocation and immigration
hearings, proceedings in which the Confrontation guarantee has no applicability

26

Whorton v. Bockting, 127 S. Ct. 1173, 1183 (2007).
Id.
28
The term “rumor” is used herein as cognate with “hearsay.” Across Nineteenth century
jurisprudence, the terms were used either as synonyms, see, e.g., Whitsett, Garner & Co. v. Slater,
23 Ala. 626, 633 (Ala. 1853) (maintaining that “rumor is, at best, but hearsay”), or as expressions
of degree describing second hand information, with rumor being the hearsay of unidentified
declarants, see, e.g., Gibson v. State, 38 Miss. 313 (Miss. 1860) (reporting jury instruction that
“proof of a fact by common rumor, which is hearsay evidence of hearsay evidence, is never
admitted except upon the last necessity,--is the least satisfactory of all evidence, and is never
conclusive of the fact attempted to be proved”). The focus here is on hearsay where personal
knowledge cannot be proved and declarant credibility cannot reasonably be assessed, the sine qua
non of a “rumor.”
29
That rumor engenders at least a risk of unreliability should not be questionable. Psychological
studies have demonstrated that:
[I]nformation can be distorted as it is passed orally from one person to another.
Details may be misunderstood or forgotten. More importantly, each person who hears
the information filters it through a particular cognitive lens. Expectations, stereotypes,
and schemas of the perceiver can influence what is perceived and therefore what is
reported at the next stage. Because hearsay passes through at least two such lenses
before reaching the jury (those of the declarant and hearsay witness), there is good
reason to expect some distortion and loss of accuracy in hearsay transmission.
William C. Thompson & Maithilee K. Pathak, How Do Jurors React to Hearsay Testimony?:
Empirical Study of Hearsay Rules: Bridging the Gap Between Psychology and Law, 5 PSYCHOL.
PUB. POL’Y AND L. 456, 464 (1999). A more recent study of how factfinders process information
raises the concern that “hegemonic narratives” are used to structure how jurors receive testimony
and concludes that they “will give evidence that does cohere with the narrative increased weight,
regardless of the probative force they might accord to it in other contexts.” Doron Menashe &
Hamutal Esther Shamash, Pass These Sirens By: Further Thoughts on Narrative and Admissibility
Rules,
in
5
INT’L
COMMENT.
ON
EVIDENCE
1
(2007),
available
at
http://www.bepress.com/ice/vol5/iss1/art3.
27

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but for which Due Process principles have been molded to determine the
admissibility of hearsay. In Section III, the Article proposes a case-specific Due
Process test, one tied to the circumstances under which the statement was made
and the relative loss suffered by an absence of cross-examination. That test
embraces three concerns: that the identity of the declarant be established; that the
foundation of personal knowledge be clear; and that reliability/probativeness be
established solely by the circumstances surrounding the making of the statement
and not by reference to extrinsic corroboration.
II. CRAWFORD’S ANTECEDENTS, HOLDING, AND IMPACT
It cannot be gainsaid that Crawford v. Washington wrought a sea-change in
hearsay and Confrontation Clause analysis.30 The Crawford decision has been
described by commentators and jurists as a “monumental” transition;31 a
“revolutionary decision;”32 a “paradigm shift in Confrontation Clause analysis;”33
and a “Copernican shift in federal constitutional law;”34 and in less than three
years it has been cited in more than 3,500 cases and 360 law review articles. 35
Many articles have capably followed the trajectory of Constitutional limitations
on legislated (or common law) hearsay, documenting what one scholar depicted
as its marriage of the hearsay rule and the Confrontation Clause followed by its
divorce.36
Where did this all begin? The Supreme Court’s initial foray applying a
Confrontation Clause analysis to hearsay, Mattox v. United States,37 upheld a
criminal conviction achieved by use of the notes of testimony of a now-deceased
witness who had testified and been cross-examined at an earlier trial (the verdict
in which had been set aside). The use of the transcript from the earlier trial was

30

The Bockting Court held as much even when it rejected a retroactivity claim for Crawford: “[I]t
is clear that Crawford announced a new rule. The Crawford rule was not ‘dictated’ by prior
precedent. Quite the opposite is true: The Crawford rule is flatly inconsistent with the prior
governing precedent, Roberts, which Crawford overruled.” Whorton v. Bockting, 127 S. Ct. 1173,
1181 (2007).
31
Lininger, Reconceptualizing, supra note 14, at 278 (“[T]he transition from Roberts to Crawford
was a monumental one.”).
32
People v. Pantoja, 18 Cal. Rptr. 3d 492, 498 (Cal. Ct. App. 2004).
33
People v. Cage, 15 Cal. Rptr. 3d 846, 851 (Cal. Ct. App. 2004).
34
People v. Victors, 819 N.E.2d 311, 323 (Ill. App. Ct. 2004).
35
A Shepard’s search for Crawford v. Washington conducted on April 6, 2007 showed a total of
4,608 citing documents, of which 360 were law review articles, 352 were treatises, and the great
remainder being federal and state court decisions.
36
See, e.g., Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union:
Separating the Confrontation Clause from the Hearsay Rule, 56 S.C. L. REV. 185 (2004). For
other recapitulations of the Court’s treatment of Confrontation challenges to hearsay admitted
against defendants in criminal trials, see Cicchini, supra note 23, at 534-40 (2006); Lininger,
Reconceptualizing, supra note 14, at 276-80
37
156 U.S. 237 (1895).

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considered unexceptional.38 At the same time, the Court approved the exclusion
of collateral impeachment39 of the now-deceased declarant because of a concern
for reliability:
While the enforcement of the rule, in case of the death of the witness
subsequent to his examination, may work an occasional hardship by
depriving the party of the opportunity of proving the contradictory
statements, a relaxation of the rule in such cases would offer a temptation to
perjury, and the fabrication of testimony, which, in criminal cases especially,
40
would be almost irresistible.

The Court continued its approval of admitting prior testimony in the
Twentieth century, finding that the cross-examination at the earlier proceeding
contributed to or established the reliability necessary for admission of the trial
notes at a subsequent trial where the declarant could not be “confronted.”41 In
the course of developing its Confrontation/hearsay jurisprudence, the Court made
one further, critical determination B Confrontation concerns were not implicated
where hearsay of a testifying declarant was admitted as substantive evidence
because, at least in part, “subsequent cross-examination at the defendant’s trial
will still afford the trier of fact a satisfactory basis for evaluating the truth of the
prior statement.”42
The determination that reliability was the linchpin of Confrontation Clause
analysis for all forms of hearsay was made by the Court in Ohio v. Roberts.4 43
After holding that proof of the hearsay declarant’s unavailability is usually a
necessary predicate to allowing consideration of out-of-court assertions, the
Court concluded that a hearsay statement is admissible only if it bears adequate
“indicia of reliability.”44 “Reliability can be inferred without more in a case
where the evidence falls within a firmly rooted hearsay exception. In other cases,
the evidence must be excluded, at least absent a showing of particularized
guarantees of trustworthiness.”45 Underlying this definition was the overarching

38

Id. at 242. “[T]he authority in favor of the admissibility of such testimony, where the defendant
was present either at the examination of the deceased witness before a committing magistrate, or
upon a former trial of the same case, is overwhelming.” Id.
39
The proposed impeachment consisted of testimony from two witnesses claiming that the nowdeceased declarant had admitted to not seeing Mattox commit the shooting, that he had lied under
oath at trial, and that he had so testified because of threats made against him. Id. at 244-45.
40
Id. at 250.
41
Mancusi v. Stubbs, 408 U.S. 204, 213 (1972). See also Barber v. Page, 390 U.S. 719, 722-25
(1968) (approving of the use of prior testimony but only upon a showing that the witness was now
unavailable); Pointer v. Texas, 380 U.S. 400, 405-08 (1965) (acknowledging the admissibility of
prior testimony of a now-unavailable witness but conditioning it on the opportunity for counseled
cross-examination at the earlier proceeding).
42
California v. Green, 399 U.S. 149, 161 (1970).
43
448 U.S. 56 (1980).
44
Id. at 66.
45
Id.

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concern of evidentiary accuracy and the assumption that as a general practice
adversary testing was essential to the truth-determining process.46
Although the unavailability pre-condition of Roberts was soon to be
diminished47 and then largely jettisoned (other than for prior testimony)48 the test
mandating “reliable” hearsay stood for nearly a quarter century. Its demise,
although hinted at by expressions of dissatisfaction from some members of the
Court49 and urged by some in academia,50 was not clearly on the table when, in
2004, the Court decided Crawford.
The facts of Crawford are fairly simple. Crawford was charged with the
stabbing of one Lee, in Lee’s apartment, with Crawford’s wife Sylvia present.51
The defense was that Lee had reached into his pocket and pulled what might be a
weapon before Crawford struck; but Sylvia Crawford had told police, in a
statement tape-recorded at police headquarters the night of the crime, that she
saw nothing in Lee’s hands at the time of the stabbing.52 Because Crawford was
able to invoke a state statutory privilege53 and prevent Sylvia from being called
as a prosecution witness, the state responded by presenting her taped interview.54
The Court accepted Crawford as an invitation to reconsider “the original
meaning of the Confrontation Clause.”55 After a lengthy exegesis of what the
Court propounded56 as the historic origins of the Clause, two conclusions were
drawn. The first was that “the principal evil at which the Confrontation Clause

46

Id. (stating that a signal purpose of the Confrontation Clause is “to augment accuracy in the
factfinding process by ensuring the defendant an effective means to test adverse evidence”).
47
See United States v. Inadi, 475 U.S. 387, 394-95 (1986) (limiting Roberts’ unavailability
requirement to the admission of prior testimony, and declining to apply it to co-conspirator
statements).
48
White v. Illinois, 502 U.S. 346, 356-57 (1992) (rejecting an unavailability requirement for
spontaneous utterances and states made for purposes of medical treatment because, inter alia,
“adversarial testing can be expected to add little to its reliability”).
49
See, e.g., Lilly v. Virginia, 527 U.S. 116, 140-41 (1999) (Breyer, J., concurring) (raising the need
for a re-evaluation of the relationship between Confrontation Clause theory and hearsay analysis);
White v. Illinois, 502 U.S. 346, (1992) (Thomas, J., concurring) (“The truth may be that this
Court’s cases unnecessarily have complicated and confused the relationship between the
constitutional right of confrontation and the hearsay rules of evidence.”).
50
See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND C RIMINAL PROCEDURE 125-131 (1997);
Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011 (1998).
Both of the forgoing were cited by the Court in Crawford v. Washington. See Crawford, 541 U.S.
at 61 (2004). See also Christopher B. Mueller, Tales Out of School B Spillover Confessions and
Against-Interest Statements Naming Others, 55 U. MIAMI L. REV. 929, 949 (2001) [hereinafter
Mueller].
51
Crawford, 541 U.S. at 38.
52
Id.
53
WASH. REV. CODE ANN. § 5.60.060 (West 2008) (“A husband shall not be examined for or
against his wife, without the consent of the wife, nor a wife for or against her husband without the
consent of the husband . . . .”).
54
Crawford, 541 U.S. at 40.
55
Id. at 42.
56
As noted above, supra note 6, the accuracy of the Court’s view of history has been challenged.

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was directed was the civil-law mode of criminal procedure, and particularly its
use of ex parte examinations as evidence against the accused.”57 Hearsay in this
class was denominated “testimonial.” Second, “the Framers would not have
allowed admission of testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.”58
The Crawford majority concluded that Sylvia Crawford’s police-station
interview was paradigmatically “testimonial,” and thus subject to exclusion.59 It
did not, however, provide a comprehensive definition of “testimonial,” instead
identifying the “core” class of such statements:
[E]x parte in-court testimony or its functional equivalent B that is, material
such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially, extrajudicial statements .
. . contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions, [and] statements that were made
under circumstances which would lead an objective witness reasonably to
60
believe that the statement would be available for use at a later trial.

Pertinent to this Article, however, is the Court’s treatment of Roberts. The
reliability rule was eliminated for “testimonial” statements, where the
determinant instead was to be whether a meaningful opportunity for crossexamination had been provided.61 For “nontestimonial” hearsay, the rule
apparently remained an option: “Where nontestimonial hearsay is at issue, it is
wholly consistent with the Framers’ design to afford the States flexibility in their
development of hearsay lawCas does Roberts, and as would an approach that
exempted such statements from Confrontation Clause scrutiny altogether.”62
To the two justices joining in concurrence, however, the message was clear:
Roberts had been overruled.63 Two years later, the Court returned to Crawford
and began the thorny process of fleshing out the dividing line between
testimonial and nontestimonial hearsay.64 In the context of two domestic

57

Crawford, 541 U.S. at 50.
Id. at 53-54.
59
Id. at 68.
60
Id. at 51-52 (citations and internal quotations omitted).
61
Id. at 61-62.
Admitting statements deemed reliable by a judge is fundamentally at odds with the
right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a particular manner: by
testing in the crucible of cross-examination.
Id. at 61.
62
Id. at 68.
63
Id. at 69 (Rehnquist, C.J., concurring) (“I dissent from the Court’s decision to overrule Ohio v.
Roberts.”).
64
See Davis v. Washington, 547 U.S. 813 (2006).
58

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violence prosecutions, the Court distinguished between statements made to
authorities while an emergency was ongoing (nontestimonial) and statements
made describing a past event once the emergency had dissipated (testimonial).65
Again, the Court explicitly declined to provide an “exhaustive classification”66 of
testimonial and nontestimonial hearsay. But the Court took pains to address the
application of the Confrontation Clause to nontestimonial hearsay, and held it to
be outside the reach of that constitutional provision:
We must decide, therefore, whether the Confrontation Clause applies only to
testimonial hearsay; and, if so, whether the recording of a 911 call qualifies . .
. . A limitation [of the Confrontation Clause to testimonial hearsay] so
clearly reflected in the text of the constitutional provision must fairly be said
67
to mark out not merely its “core,” but its perimeter.

That nontestimonial hearsay was no longer subject to Confrontation Clause
restrictions was reiterated twice subsequent to Davis. In United States v. LopezGonzalez,68 the Court explained that: “We rejected that argument [that hearsay
had to be reliable] . . . in Crawford, saying that the Confrontation Clause
‘commands, not that evidence be reliable, but that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination.’”69
The proposition was restated more emphatically, by a unanimous Court, in
2007. “The Crawford rule is flatly inconsistent with the prior governing
precedent, Roberts, which Crawford overruled.”70 What the Court did not say,
and has yet to discuss, is whether any Constitutional limits restrict the definition
and admission of nontestimonial hearsay in criminal trials.71

65

Id. at 822.
Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. They are testimonial when
the circumstances objectively indicate that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
Id.
66
Id.
67
Id. at 823-24.
68
548 U.S. 140 (2006).
69
Id. at 146 (quoting Crawford, 541 U.S. at 61 (2004)) (citations omitted).
70
Whorton v. Bockting, 127 S. Ct. 1173, 1181 (2007).
71
The importance of this question grew in light of dicta in the Court’s 2008 decision in
Giles, 128 S. Ct. 2678, 2692-2693 (2008), which seemingly excluded all civilian-to-civilian
statements from the reach of the Confrontation guarantee. “Statements to friends and neighbors
about abuse and intimidation, and statements to physicians in the course of receiving treatment
would be excluded, if at all, only by hearsay rules[.]”

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III. THE COURTS’ VARIEGATED DUE PROCESS JURISPRUDENCE
Application of the Due Process clause has set a substantive reliability
threshold for the admission of inculpatory evidence, for determining the fairness
and the adequacy of the proof of conviction in a criminal trial, and for
evidentiary admissibility and sufficiency determinations in quasi-criminal
proceedings. While the jurisprudence in these areas is uneven, and decisions are
made in one category without reference to holdings in others, an overarching
theme emerges B there is a base level of fairness and reliability that must
accompany a criminal prosecution.
A. Evidentiary Sufficiency
The Court’s first foray into evidentiary sufficiency as a Due Process
concern occurred in 1960, when it addressed the conviction, for disorderly
conduct, of a man who sat in a café and shuffle-danced on the street corner.
Finding a complete absence of proof, the Court held that: “Just as ‘conviction
upon a charge not made would be sheer denial of due process,’ so is it a violation
of due process to convict and punish a man without evidence of his guilt.”72
The “no evidence” standard enunciated in Thompson pre-dated the Court’s
application of the “beyond a reasonable doubt” standard to state court
prosecutions. In In re Winship,73 the Court held that the Due Process Clause
mandated a base level of factual reliability in guilt determinations in criminal
cases:
The reasonable-doubt standard plays a vital role in the American scheme of
criminal procedure. It is a prime instrument for reducing the risk of
convictions resting on factual error. . . . [T]he Due Process Clause protects
the accused against conviction except upon proof beyond a reasonable doubt
74
of every fact necessary to constitute the crime with which he is charged.

Winship commanded a revisiting and transformation of Thompson’s “no
evidence” standard.75 This was accomplished in 1979, when the Court decided
Jackson v. Virginia76 and had to confront a record that “was not totally devoid of
evidence of guilt.”77 Finding that Winship had altered the landscape first assayed

72

Thompson v. Louisville, 362 U.S. 199, 206 (1960) (quoting De Jonge v. Oregon, 299 U.S. 353,
362 (1937)).
73
397 U.S. 358 (1970).
74
Id. at 363-64.
75
Edward J. Imwinkelried, Jackson v. Virginia: Reopening the Pandora’s Box of the Legal
Sufficiency of Drug Identification Evidence, 73 KY. L.J. 1, 22 (1984) (detailing how lower courts,
and Justice Stewart in a 1977 dissent from denial of certiorari, “viewed Winship as a deathknell for
Thompson”).
76
443 U.S. 307 (1979).
77
Id. at 315.

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in Thompson,78 the Court set forth the requisite standard of evidentiary
sufficiency: “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”79 This was held to be the threshold
“necessary to guarantee the fundamental protection of due process of law.”80
Even though the Jackson test, rarely met by defendants challenging their
convictions,81 is one of sufficiency rather than a determinant of evidentiary
admissibility, its reliability rationale is relevant to those determinations as well.
This linkage is found in decisional law rejecting reliance on questionable hearsay
as the sole basis for conviction (although again with restrictive application of the
principle). Several courts have found that an unsworn, oral prior statement of a
witness that is inconsistent with the in-court testimony of the declarant, and is the
only inculpatory evidence, cannot meet Jackson’s mandate of serving as proof
that a rational trier of fact could deem sufficient.82 The rationale is simple: the
jury must guess, without adequate foundation, as to which statement is true.83
Albeit a rule of limited applicability,84 it embodies the Due Process guarantee
precluding unreliable adjudications, and, in particular, convictions founded upon
unsworn hearsay.85

78

Id. (“The constitutional problem addressed in Winship was thus distinct from the stark problem
of arbitrariness presented in Thompson v. Louisville.”).
79
Id. at 319.
80
Id.
81
The test is defined, alternatively, as “stringent,” United States v. Morissett, 49 Fed. Appx. 334,
339 (2d Cir. 2002), or “difficult,” United States v. Benitez-Augustin, 61 Fed. Appx. 337, 339 (9th
Cir. 2003).
82
See, e.g., United States v. Bahe, 40 F. Supp. 2d 1302, 1308 (D.N.M. 1998) (“[T]he majority of
state courts to address the issue have gone so far as to adopt a per se rule that a prior inconsistent
statement, recanted at trial, is alone insufficient to support a conviction.”).
83
Id. at 1310.
The central difficulty with basing a conviction on nothing more than an out-of-court statement
which has been recanted at trial is that the fact finder has no logical basis for determining which
statement is true and may even be falsely persuaded by the presentation of the out-of-court
statement.
Id.
84
The rule is inapplicable where the unsworn, inconsistent statement helps corroborate other
evidence or complete a picture. United States v. Arnold, 410 F.3d 895, 906 (6th Cir. 2005) (Outof-court statements “may be used to corroborate evidence which otherwise would be inconclusive,
may fill in gaps in the Government’s reconstruction of events, or may provide valuable detail which
would otherwise have been lost through lapse of memory.”). It also may not apply when the
statement, albeit inconsistent, has some purported indicium of reliability. See, e.g., Nance v. State,
629 A.2d 633, 643 (Md. 1993) (rejecting application of the principle when the prior statement “is
reduced to writing and signed or otherwise adopted by him, and [the declarant] is subject to crossexamination at the trial where the prior statement is introduced”).
85
See Arnold, 410 F.3d at 906. “This Court has previously noted the importance of the notions of
fairness upon which our judicial system is based. Foremost among them is the ‘principle that man
should not be allowed to be convicted on the basis of unsworn testimony.’“ Id. (quoting United
States v. Shoupe, 548 F.2d 636, 644 (6th Cir. 1977)).

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B. Unreliable Eyewitness Testimony
Confronted with an historic record of wrongful convictions based upon
unreliable eyewitness identifications,86 the Court, in a series of cases between
1967 and 1976,87 identified two Due Process thresholds for this category of
evidence: an out-of-court identification would be inadmissible if the suggestivity
of the identification process created a “substantial likelihood of
misidentification,” and an in-court identification would be inadmissible if the
suggestivity and lack of reliability created a “substantial likelihood of irreparable
misidentification.”88
An analogous standard applies where an in-court
identification follows an out-of-court identification conducted in violation of the
defendant’s Fourth89 or Sixth90Amendment rights: the identification has to have a
reliable source in the initial encounter between criminal and witness, rather than
be a product of the pre-trial identification process.91

86

The Court’s acknowledgement that “the vagaries of eyewitness identification are well known; the
annals of criminal law are rife with instances of mistaken identification,” United States v. Wade,
388 U.S. 218, 228 (1967), came in the middle of a century of scholarship and governmental studies
confirming that eyewitness testimony was the most prevalent cause of wrongful conviction. The
Wade Court cited to many studies. See id. at n.6. Since 1967, the documentation of this
phenomenon has persisted. See Jules Epstein, Tri-State Vagaries: The Varying Responses of
Delaware, New Jersey, and Pennsylvania to the Phenomenon of Mistaken Identifications, 12
WIDENER L. REV. 327, 330-33 (2006) (summarizing the historic awareness of the risk and actuality
of mistaken identification). As of 2007, there have been more than 200 DNA exonerations in the
United States, with eyewitness identification a major contributing factor in roughly three quarters
of
those
cases.
Innocence
Project
B
Understand
the
Causes,
http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php (last visited June
15, 2007).
87
See Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972); Stovall v.
Denno, 388 U.S. 293 (1967); Gilbert v. California, 388 U.S. 263 (1967); United States v. Wade,
388 U.S. 218 (1967).
88
E.g., Biggers, 409 U.S. at 198. Some general guidelines emerge from these cases as to the
relationship between suggestiveness and misidentification. It is, first of all, apparent that the
primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” While
the phrase was coined as a standard for determining whether in-court identification would be
admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable”
it serves equally well as a standard for the admissibility of testimony concerning the out-of-court
identification itself. Id. (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)) (citations
omitted).
89
See, e.g., United States v. Crews, 445 U.S. 463, 472 (1980) (holding that an out-of-court
identification may be suppressed as the fruit of an unlawful arrest or stop).
90
See, e.g., Gilbert, 388 U.S. at 273; Wade, 338 U.S. at 224 (barring admission of uncounseled
corporeal identification procedures conducted post-indictment).
91
Moore v. Illinois, 434 U.S. 220, 226 (1977).
Among the factors to be considered in making this determination are the prior
opportunity to observe the alleged criminal act, the existence of any discrepancy
between any pre-lineup description and the defendant’s actual description, any
identification prior to lineup of another person, the identification by picture of the

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The limitations of this Due Process standard are many. It is arguably
applicable only to police or government conducted identification procedures, and
thus without relevance to setting evidentiary thresholds where there is no
governmental role in securing the proof, although there is some scholarship92 and
decisional law93 applying the test to all identification evidence (even in the
absence of police conduct that contributed to suggestivity).
A second limitation is in assessing whether the “substantial likelihood of
mistaken identification” or “substantial likelihood of irreparable mistaken
identification” is the proper analog for application to other types of evidence.94
Yet the distinction may not be one of degree but simply be descriptive of where
in the criminal investigative and trial process the unreliable identification occurs:
pre-trial, it may lead to arrest and subsequent investigation (and thus in some
sense be reparable); while at trial it is the end-game in the process, and thus
results in the irreparable harm of conviction and sentence.95
The efficacy of the Court’s test for evaluating eyewitness reliability has
been challenged as scientifically flawed96 and sympathetic to only extreme 97
suggestiveness. And in application the threshold is remarkably difficult to
meet.98 Yet the a-scientific nature and stringency of the ultimate test do not
defendant prior to the lineup, failure to identify the defendant on a prior occasion, and
the lapse of time between the alleged act and the lineup identification.
Id. at n.2 (quoting Wade, 338 U.S. at 241).
92
See, e.g., Evan J. Mandery, Legal Development: Due Process Considerations of In-Court
Identifications, 60 ALB. L. REV. 389, 404 (1996) (urging Due Process protection against the
suggestiveness inherent in in-court identifications).
93
See, e.g., Commonwealth v. McGaghey, 507 A.2d 357, 359 (Pa. 1986) (excluding identification
as unreliable without regard to any state action).
94
For hearsay, the comparable standard could only be expressed as whether the introduction of
hearsay holds a “substantial likelihood of mistaken [fact determination].” Biggers, 409 U.S. at 198.
95
That this timeline distinction is what the Court meant is admittedly not clear. In Gilbert v.
California, 388 U.S. 263, 274 n.3 (1967), the Court recognized that out-of-court identifications
may themselves stand as substantive proof of guilt and be so used at trial, yet the observation
occasioned no discussion of which standard would apply.
96
See, e.g., Gary L. Wells, What is Wrong with the Manson v. Braithwaite Test of Eyewitness
Identification Accuracy?, http://www.psychology.iastate.edu/faculty/gwells/Mansonproblem.pdf
(last visited ?)
97
Ruth Yacona, Comment, Manson v. Brathwaite: The Supreme Court’s Misunderstanding of
Eyewitness Identification, 39 J. MARSHALL L. REV. 539, 561 (2006). “[The Court’s] logic [in
Manson] necessarily assumes that the human memory is a dependable truth-finding tool. . . . The
Court did not understand that even the slightest suggestive procedure . . . can make the original
memory ‘irreparable,’ and lost forever because of its inherent malleability.” Id.
98
In Biggers, the Court emphasized that it found a Due Process violation in only one case (where
police had shown the victim was the suspect in three identification procedures and thus made the
ultimate identification “all but inevitable”), while approving identification testimony where the
opportunity to observe was substantially limited B “an in-court identification by a witness who had
a fleeting but ‘real good look’ at his assailant in the headlights of a passing car.” Biggers, 409 U.S.
at 197. Courts have found identifications to comport with the Due Process command where the
viewing is fleeting and/or the description minimal. See, e.g., Garvey v. Duncan, 485 F.3d 709, 712
(2d Cir. 2007) (opportunity to observe less than one minute, witness unable to provide any
description beyond “dark clothing”); United States v. Simoy, 998 F.2d 751 (9th Cir. 1993) (view

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distract from the Due Process concern B the Court wanted identification
testimony that was drawn from the witness’s observations at the crime scene, and
not the product of subsequent events.
“Suggestive confrontations are
disapproved because they increase the likelihood of misidentification.”99 This is
a test of personal knowledge and probativeness, as well as of “fairness.”100
The Court did make clear that this test allows evidence of questionable
merit:
Short of [the case involving a very substantial likelihood of irreparable
misidentification], such [eyewitness] evidence is for the jury to weigh. We
are content to rely upon the good sense and judgment of American juries, for
evidence with some element of untrustworthiness is customary grist for the
jury mill. Juries are not so susceptible that they cannot measure intelligently
101
the weight of identification testimony that has some questionable feature.

Yet this acknowledgment came within a context B the percipient eyewitness
would be subject to meaningful cross-examination. “The danger that use of the
technique may result in convictions based on misidentification may be
substantially lessened by a course of cross-examination at trial which exposes to
the jury the method’s potential for error.”102 Read in this light, the Court’s Due
Process concern can be re-stated as follows:
•

Eyewitness identification testimony is particularly potent evidence.103

•

Given that potency, it must be based on actual observation and have
value to the fact finder.

•

Questionable eyewitness evidence derived from first-hand observation is
admissible because it is subject to cross-examination.

•

Unreliable eyewitness evidence must be excluded.

The eyewitness testimony standard has one additional component of
significance to the articulation of a Due Process standard for evaluating nontestimonial hearsay B the determination of admission or exclusion should be

limited to five seconds, from forty-five feet away, in a dark breezeway); People v. McCoy, 397
N.E.2d 79, 88 (Ill. App. Ct..1979) (witness “looked very hard” at perpetrator for 2 to 5 seconds
before slamming door).
99
Biggers, 409 U.S. at 198.
100
Manson v. Brathwaite, 432 U.S. 98, 112 (1977) (“The standard, after all, is that of fairness as
required by the Due Process Clause of the Fourteenth Amendment.”).
101
Id. at 116.
102
Simmons v. United States, 390 U.S. 377, 384 (1968).
103
See, e.g., Watkins v. Sowders, 449 U.S. 341, 347 (1981) (equating the power of identification
evidence with that of a confession).

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made without regard for the existence of corroborating evidence (e.g., the
suspect’s possession of proceeds from the crime, or a confession).104
C. Prosecutorial Misconduct
The Court’s Due Process jurisprudence has addressed a range of
prosecutorial misconduct (usually alleged to occur in closing arguments) ranging
from the deliberate and knowing presentation and use of false evidence105 to
more subtle behavior where an improper inference may be drawn from the
closing argument.106 The former has been condemned without regard to the
weight of the remaining evidence,107 at least if the error is left uncorrected by a
curative instruction.108
For more nuanced error, the Court has also applied a two-tiered standard of
scrutiny, distinguishing between prosecutorial argument that deprives an accused
of a right specified in the Bill of Rights, and other more general misconduct:
while the former requires the Court to take “special care” that the Constitutional

104

See Manson, 432 U.S. at 116 (emphasizing that extrinsic corroboration of the validity of the
identification “plays no part in our analysis”). Lower courts have split on this issue, with some
adhering to Manson’s directive. See, e.g., Abdur Raheem v. Kelly, 257 F.3d 122, 140 (2d Cir.
2001), cert. denied, 534 U.S. 1118 (2002); United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir.
1995). Others consider the presence of corroborating evidence in making the threshold
determination of reliability. See, e.g., United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996);
United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1158 (7th Cir. 1987). See also Rudolf Koch,
Note, Process v. Outcome: The Proper Role of Corroborative Evidence in Due Process Analysis of
Eyewitness Identification Testimony, 88 CORNELL L. REV. 1097 (2003). These latter cases do not
undermine the determination that extrinsic corroboration cannot be considered. Beyond the fact
that neither court cites to Manson’s controlling language, the statement in Wilkerson permitting
consideration of external corroboration is dictum, as there was no proof of initial suggestivity, and
the precedent cited by the Fourth Circuit actually involved legal sufficiency determinations rather
than suppression standards. Wilkerson, 84 F.3d at 695 (citing United States v. DiTommaso, 817
F.2d 201, 214 n.17 (2d Cir. 1987); United States v. Bell, 812 F.2d 188, 193 (5th Cir. 1987))
(identification may be reliable in the context of all the circumstances and evidence). Similarly,
Napoli omits any mention of the Manson requirement that the determination be made without
regard to external factors.
105
See, e.g., Miller v. Pate, 386 U.S. 1, 5 (1967) (prosecutor, knowing clothing to have paint stains,
argued to jury that the stains were the blood of the deceased).
106
See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). In Donnelly, the prosecutor’s
closing argument implied that the defendant had sought out a guilty plea to a lesser charge, when in
fact no such overture ever was made. Id. at 643. A curative instruction directed jurors to treat the
case as if the offending argument had never been made. Id. at 644.
107
See, e.g., Pate, 386 U.S. at 7. “More than 30 years ago this Court held that the Fourteenth
Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false
evidence. There has been no deviation from that established principle.” Id. (citations omitted).
108
See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 340 (1985) (emphasizing that comments
depriving a defendant of a specific constitutional right “if left uncorrected, might so affect the
fundamental fairness of the . . . proceeding”). Although an Eighth Amendment case, the Caldwell
Court applied Donnelly and its Due Process analysis. Id.

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right has not been infringed upon,109 more general attacks are judged using a
harmless error or similar standard. The determination to be made is whether, in
the particular trial, the harm of the comment was sufficient to “infect[] the trial
with unfairness.”110
The Donnelly test has limited relevance to a Due Process standard for
assessing hearsay evidence. While reflective of the Court’s concern for a fair
trial, it responds to an antithetical circumstance B proper trial evidence corrupted
by extraneous, ambiguous argument with a curative instruction.111 Indeed, the
Donnelly Court acknowledged that its test could not apply to impermissible
evidence: “[H]ere there was neither the introduction of specific misleading
evidence important to the prosecution’s case in chief nor the nondisclosure of
specific evidence valuable to the accused’s defense.”112
Thus, while Donnelly affirms the Court’s concern with fundamental
fairness in trials, its harmlessness component (one that analyzes the challenged
evidence against the remainder) offers little help in determining a Due Process
standard for admitting evidence, particularly evidence that might “mislead.” At
best, it affirms the baseline of a jury deciding a case on proper evidence and on
no more.
D. Sentencing and Probation/Parole Revocation Proceedings
It has long been the law that a sentencing court may consider types of
information inadmissible at a criminal trial.113 It is in these post-trial

109

See Donnelly, 416 U.S. at 643 (“When specific guarantees of the Bill of Rights are involved,
this Court has taken special care to assure that prosecutorial conduct in no way impermissibly
infringes them.”).
110
Id.
But here the claim is only that a prosecutor’s remark about respondent’s expectations at trial by
itself so infected the trial with unfairness as to make the resulting conviction a denial of due
process. We do not believe that examination of the entire proceedings in this case supports that
contention.
Id. See also Darden v. Wainwright, 447 U.S. 168, 181 (1986) (applying Donnelly); Ryan Patrick
Alford, Catalyzing More Adequate Federal Habeas Review of Summation Misconduct: Persuasion
Theory and the Sixth Amendment Right to an Unbiased Jury, 59 OKLA. L. REV. 479 (2006);
Michael T. Fisher, Note, Harmless Error, Prosecutorial Misconduct, and Due Process: There’s
More to Due Process than the Bottom Line, 88 COLUM. L. REV. 1298 (1988).
111
See, e.g., Donnelly, 416 U.S. at 644.
112
Id. at 647.
113
See Williams v. New York, 337 U.S. 241, 246 (1949) (distinguishing between a trial’s “strict
evidentiary procedural limitations” and a sentencing judge’s “wide discretion in the sources and
types of evidence used to assist him in determining the kind and extent of punishment to be
imposed within limits fixed by law”). Professor Penny White has argued, cogently, that this is ahistoric and that the Sixth Amendment’s “in any criminal prosecution” language should extend to
sentencing proceedings. Penny J. White, “He Said,” “She Said,” and Issues of Life and Death:
The Right to Confrontation at Capital Sentencing Proceedings, 19 REGENT U. L. REV. 387, 403
(2006). Because capital sentencing proceedings have some aspects of a trial, see Sattazahn v.
Pennsylvania, 537 U.S. 101, 106 (2003); Ring v. Arizona, 536 U.S. 584, 609 (2002), some courts

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proceedings, ones appurtenant to criminal trials but where, indisputably, the right
of Confrontation is inapplicable,114 that Due Process jurisprudence shows that a
baseline of reliability still applies in determining evidentiary admissibility and
may even mandate some entitlement to cross-examination. This is found in a
trilogy of cases: Specht v. Patterson,115 Gardner v. Florida,116 and Morrissey v.
Brewer.117
In Specht, the Court confronted a hybrid proceeding, one that followed a
criminal conviction but subjected the defendant to an enhanced sentence under a
habitual sex offender provision.118 Significantly, the Court did not denominate
this separate proceeding a criminal trial; rather, it concluded that the
nomenclature was unimportant in assessing what process was due. “These
commitment proceedings whether denominated civil or criminal are subject both
to the Equal Protection Clause of the Fourteenth Amendment . . . and to the Due
Process Clause.”119 The Court’s conclusion was that, in such circumstances,
what Due Process requires is counsel, an opportunity to be heard, the opportunity
to “be confronted with witnesses against him [and] have the right to crossexamine.”120
Specht has been read narrowly, with the Court emphasizing that it presented
“a radically different situation” than a typical sentencing.121 Yet the Court
continues to characterize it as a sentencing matter, rather than as a de facto
trial,122 making its holding relevant in assessing due process restrictions on
evidentiary admissibility at a criminal trial with its burden of proof.123 While a

recently have found a Confrontation right at capital sentencing trials, at least as to proof of
aggravating factors. See People v. Wilson, 114 P.3d 758, 780 (Cal. 2005) (applying Crawford to a
penalty hearing hearsay claim); Lewis v. Woodford, 2005 U.S. Dist. LEXIS 23686, at *3 (E.D. Cal.
2005) (same); United States v. Bodkins, 2005 U.S. Dist. LEXIS 8747, at *12-13 (W.D. Va. 2005).
But see Summers v. State, 148 P.3d 778, 782 (Nev. 2006) (applying Williams and finding no
Confrontation right at a penalty trial).
114
Mitchell v. United States, 526 U.S. 314, 337 (1999) (Scalia, J., dissenting).
115
386 U.S. 605 (1967).
116
430 U.S. 349 (1977).
117
408 U.S. 471 (1972).
118
Specht, 386 U.S. at 607.
The Sex Offenders Act may be brought into play if the trial court ‘is of the opinion
that any . . . person [convicted of specified sex offenses], if at large, constitutes a
threat of bodily harm to members of the public, or is an habitual offender and
mentally ill.’ He then becomes punishable for an indeterminate term of from one day
to life.
Id. (citations omitted).
119
Id. at 608.
120
Id. at 610.
121
Almendarez-Torres v. United States, 523 U.S. 224, 241-42 (1998).
122
Id.
123
As one commentator emphasizes, “it is significant that [Specht] discussed confrontation as a due
process right rather than looking to the text of the Confrontation Clause.” Benjamin C. McMurray,
Challenging Untested Facts at Sentencing: The Applicability of Crawford at Sentencing After
Booker, 37 MCGEORGE L. REV. 589, 595 (2006).

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right of cross-examination may not follow, a concern over reliability of hearsay
at this non-trial proceeding remains core.124
Gardner, a capital trial, involved a Florida sentencing process where a jury
could recommend the punishment but a judicial override was permitted.
Although the jury recommended a sentence of life imprisonment, the judge
determined otherwise, making explicit reliance on a pre-sentence report available
to the court but not to Gardner or his counsel.125 After distinguishing the 1949
holding in Williams v. New York126 on the ground that Williams and his counsel
did not dispute the facts in the pre-sentence report (which were disclosed in open
court),127 the Court emphasized the need for a defendant at sentencing to be able
to address “the quality, as well as the quantity, of the information on which the
sentencing judge may rely.”128 Of particular significance to the Court was the
risk of un-examinable hearsay: “Assurances of secrecy are conducive to the
transmission of confidences which may bear no closer relation to fact than the
average rumor or item of gossip, and may imply a pledge not to attempt
independent verification of the information received.”129 The Court’s ultimate
determination was to reverse a death sentence imposed to some extent “on the
basis of information that he had no opportunity to deny or explain.”130
Due process rights to ensure evidentiary reliability have also been found to
apply in parole revocation proceedings, long after a criminal prosecution has
concluded and clearly in a circumstance beyond the reach of the Sixth
Amendment’s confrontation right.131 In Morrissey v. Brewer, the Court set
minimum standards because of the “grievous loss”132 attendant upon a revocation
of parole and because both the parolee and society have “an interest in not having
parole revoked because of erroneous information or because of an erroneous
evaluation of the need to revoke parole.”133
The Morrissey Court guaranteed a right of cross-examination absent
“specific good cause” for not allowing confrontation, yet simultaneously allowed
use of some hearsay: “It is a narrow inquiry; the process should be flexible
enough to consider evidence including letters, affidavits, and other material that
would not be admissible in an adversary criminal trial.”134 This caveat does not

124

See, e.g., United States v. Beaulieu, 893 F.2d 1177, 1181 (10th Cir. 1990) (limiting Specht to
cases where “sentencing amounts to an additional criminal conviction” but emphasizing that
hearsay use at a sentencing hearing may not be unfettered but, instead must be “reliable hearsay . . .
to determine the appropriate punishment”).
125
Gardner v. Florida, 430 U.S. 348, 353 (1977).
126
337 U.S. 241 (1949).
127
Gardner, 430 U.S. at 356.
128
Id. at 359.
129
Id.
130
Id. at 362. Cf. Townsend v. Burke, 334 U.S. 736, 741 (1948) (overturning a sentence
“predicated on misinformation or misreading of court records”).
131
See, e.g., Morrissey v. Brewer, 408 U.S. 471, 490 (1972)
132
Id. at 481.
133
Id. at 484.
134
Id. at 489.

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seem to address reliability determinations but, rather, cross-examination, as it
follows the Court’s earlier command that the process be sufficient to ensure that
there be no “erroneous” revocation.135 And Morrissey continued a consistent
demand B a threshold of evidentiary reliability and testing136 to ensure that no
erroneous adjudication results.
This same concern has required Due Process limitations on the evidence
admitted in deportation proceedings, a completely non-criminal process.
Although the United States Supreme Court has not set forth an evidentiary
threshold,137 Courts of Appeals have required a level of reliability analogous to
that in sentencing and parole revocation hearings.138 Clearly, the evidentiary
reliability demanded by the Due Process guarantee in sentencings, parole
revocations, and immigration proceedings can be no less at the criminal trial.

135

Professor Lininger advocates use of hearsay in parole revocation cases where the alleged
violation is an act of domestic violence and the abuse victim refuses or fails to appear. Tom
Lininger, Reconceptualizing Confrontation After Davis, 85 TEX. L. REV. 271, 313 (2006). Yet
even his proposal recognizes that hearsay use must be limited by Constitutional commands, and his
proposed legislation urges that in any case where hearsay is to be used there must be “notice to the
defendant in advance of the hearing, so that the defendant can prepare to meet the government’s
hearsay evidence and perhaps subpoena the declarants himself.” Id.
136
The Courts of Appeals have recognized the dual Due Process requirements of reliability and
“testability” for admitting evidence at a sentencing proceeding. See, e.g. United States v. Kelley,
446 F.3d 688, 692-93 (7th Cir. 2006); United States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005)
(“[L]ong-standing exceptions to the hearsay rule that meet the more demanding requirements for
criminal prosecutions should satisfy the lesser standard of due process accorded the respondent in a
revocation proceeding.”); Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10th Cir. 1995) (admitting
evidence of unadjudicated offenses at a capital case sentencing where there is the opportunity for
“cross-examination and contrary evidence by the opposing party”); United States v. Reme, 738
F.2d 1156, 1167 (11th Cir. 1984) (collecting cases and affirming use of “out-of-court information”
at sentencing “so long as the defendant is afforded an opportunity to refute it, and it is reliable”).
The same requirements have been held applicable at proceedings to revoke supervised release.
United States v. Perez, 526 F.3d 543, 548 (9th Cir. 2008) (“given the particular facts of this case,
the admission of this evidence without allowing Perez to cross-examine the laboratory technician
was error.”).
137
The Court has issued a general condemnation of the unbridled use of hearsay in deportation
proceedings. Bridges v. Wixon, 326 U.S. 135, 153-54 (1945) (criticizing the substantive use of
inconsistent statements as substantive proof because “[s]o to hold would allow men to be convicted
on unsworn testimony of witnesses B a practice which runs counter to the notions of fairness on
which our legal system is founded”).
138
See, e.g.,Felzcerek v. INS, 75 F.3d 112, 115-117 (2d Cir. 1996) (“[A] document’s admissibility
under the Federal Rules of Evidence lends strong support to the conclusion that admission of the
evidence comports with due process.”); Ezeagwuna v. Ashcroft, 325 F.3d 396, 405-06 (3d Cir.
2003) (“Because the Federal Rules of Evidence do not apply in asylum proceedings, [t]he test for
admissibility of evidence . . . is whether the evidence is probative and whether its use is
fundamentally fair so as not to deprive the alien of due process of law.”) (internal quotations
omitted); Bustos-Torres v. INS, 898 F.2d 1053, 1055-56 (5th Cir. 1990) (“The test for admissibility
of evidence in a deportation proceeding is whether the evidence is probative and whether its use is
fundamentally fair so as not to deprive the alien of due process of law.”).

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E. Forfeiture by Wrongdoing: Cross-examination Lost, but Reliability Still
Demanded
In cases where the defendant has forfeited the right of cross-examination of
a hearsay declarant, the concern for a judicial determination of reliability is
seemingly absent, particularly because decisional law has broad language
defining this concept. Yet as this doctrine is examined, it is clear that a threshold
of reliability is still a Due Process mandate.
Forfeiture,139 enshrined in American law in 1879, is an equitable doctrine
but one limited to the right of confrontation. That which is forfeited is the right
to demand the declarant’s presence and submission to the oath and to crossexamination:
The Constitution gives the accused the right to a trial at which he should be
confronted with the witnesses against him; but if a witness is absent by his
own wrongful procurement, he cannot complain if competent evidence is
admitted to supply the place of that which he has kept away. The
Constitution does not guarantee an accused person against the legitimate
consequences of his own wrongful acts. It grants him the privilege of being
confronted with the witnesses against him; but if he voluntarily keeps the
witnesses away, he cannot insist on his privilege. If, therefore, when absent
by his procurement, their evidence is supplied in some lawful way, he is in no
140
condition to assert that his constitutional rights have been violated.

The language of Reynolds supplies two conditions antecedent to the
admission of hearsay evidence following a forfeiture: the consequence of the
forfeiture must be “legitimate” and the evidence must be “supplied in some
lawful way.”141 Reynolds itself relied for precedent on cases where the evidence
introduced had traditional and extensive hallmarks of reliability: the examination
of a witness, under oath, by a coroner; a deposition taken under oath and in the
presence of the accused; and testimony from a former trial.142 While Reynolds is
not and cannot be limited to prior examined proof, the illustrative cases confirm
that what is forfeited is confrontation, and not Due Process reliability.
Crawford confirmed the viability of Reynolds’ forfeiture doctrine in
expansive language. “[T]he rule of forfeiture by wrongdoing (which we accept)
extinguishes confrontation claims on essentially equitable grounds; it does not
purport to be an alternative means of determining reliability.”143 In 2006 the
Court in Davis expanded upon this:
[W]hen defendants seek to undermine the judicial process by procuring or
coercing silence from witnesses and victims, the Sixth Amendment does not

139

See supra note 8 and accompanying text.
Reynolds v. United States, 98 U.S. 145, 158 (1878).
141
Id. (emphasis added).
142
Id. at 158-59.
143
Crawford, 541 U.S. at 62 (2004).
140

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require courts to acquiesce. While defendants have no duty to assist the State
in proving their guilt, they do have the duty to refrain from acting in ways
that destroy the integrity of the criminal-trial system. We reiterate what we
said in Crawford: that “the rule of forfeiture by wrongdoing . . . extinguishes
144
confrontation claims on essentially equitable grounds.”

The “reliability” concern extinguished by forfeiture, then, is the reliability
process found in the Sixth Amendment B confrontation.145 Yet the command of
“integrity of the criminal-trial system”146 is achieved by letting the jury hear [or
read] that which the witness would have been permitted to testify to if her
presence had not been precluded by conduct attributable to the accused, evidence
from a named individual testifying from personal knowledge.147
An examination of forfeiture cases decided subsequent to Crawford
confirms that these two predicate conditions are uniformly met (if unspoken in
the courts’ assessments of admissibility). Courts have permitted introduction of
grand jury testimony of a witness with personal and direct knowledge of events148
and statements made to friends and family admitting direct personal culpability
and stating the declarant’s intent [state of mind].149 The standard has been
articulated by one court as admitting hearsay “statements that would have been
admissible if [the absent witness] himself had made them on the witness stand,
no more and no less.”150
The process approved by the court of appeals in White v. United States is
illuminative:

144

Davis v. Washington, 547 U.S. 813, 833 (2006) (quoting Crawford, 541 U.S. at 62). The
Court’s most recent forfeiture jurisprudence, Giles, 128 S. Ct. 2678, reaffirms that forfeiture
extinguishes confrontation rights, at least where the forfeiting act was intended to procure the
witness’ unavailability.
145
That one is forfeiting a confrontation right and not all challenges to the admissibility of the
evidence at issue is generally recognized. As the Advisory Committee Note explains in discussing
the 1997 amendments to Rule 804: “Rule 804(b)(6) has been added to provide that a party forfeits
the right to object on hearsay grounds to the admission of a declarant’s prior statement when the
party’s deliberate wrongdoing or acquiescence therein procured the unavailability of the declarant
as a witness.” FED. R. EVID. 804 advisory committee’s note on 1997 amendments. Commentary
by Professors Saltzburg, Capra, and Martin echoes this limitation: what is waived, along with
Confrontation, is “the parallel hearsay objection.” In 2008, the Court iterated this in Giles, 128 S.
Ct. at 2686, emphasizing that forfeiture extinguished both confrontation and hearsay rights.
146
Davis, 547 U.S. at 833.
147
See FED. R. EVID. 602 (precluding witnesses from testifying to matters “unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge of the matter”).
These two preconditions, that the declarant be identifiable and that there be evidence showing
personal knowledge, are urged by this author as core components of a Due Process test for
determining the admissibility of non-testimonial hearsay. See ‘ III, infra.
148
See, e.g., United States v. Montague, 421 F.3d 1099, 1102 (10th Cir. 2005) (testimony of
defendant’s wife regarding conduct of her husband that she personally witnessed).
149
United States v. Johnson, 354 F. Supp. 2d 939, 963 (N.D. Iowa 2005).
150
United States v. White, 116 F.3d 903, 913 (D.C. Cir. 1997)

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At the preliminary hearing, the trial court heard testimony on the
circumstances under which Williams made the statements to the police,
whether they were based on first-hand knowledge, and how they were
recorded. This was to serve as a basis for evidentiary objections later on at
trial, which defense counsel were as free to make as if Williams had taken the
151
stand.

This recognition that evidentiary reliability outside of Confrontation
concerns must be assessed when reviewing hearsay under the forfeiture doctrine
is not an isolated one.152 The forfeiture doctrine, therefore, still presupposes
testimony equivalent to that presented by a live witness B first-hand information

151

Id. at 913. Other factors, such as bias and motive, could be challenged by extrinsic proof and
did not affect admissibility:
The factors which supposedly undermined Williams’s reliability were standard
imperfections for a witness of his sort--impure motives and side deals with another
drug dealer from whom he had made undercover purchases. Rather than warranting
wholesale exclusion, these objections were for the jury to consider in deciding what
weight (if any) to give Williams’s statements.
Id.
152
See, e.g., United States v. Dhinsa, 243 F.3d 635, 655 (2d Cir. 2001) (collecting cases and
maintaining that after finding forfeiture a court “must still perform the balancing test required under
Fed. R. Evid. 403 in order to avoid the admission of facially unreliable hearsay”). One scholar,
Professor Raeder, urges otherwise when the witness who has been dissuaded from appearing is a
child who, had she appeared, would have been held incompetent and thus unable to give testimony.
Myrna S. Raeder, The Intersection of Competency, Hearsay, and Confrontation, 82 IND. L.J. 1009,
1020 (2007). This argument is undeveloped in her comments, and proceeds with no analysis of
how admitting testimony of a person deemed unable to give live testimony advances the truthseeking process. Indeed, elsewhere in her article she defends the logic of excluding the testimony
of a child who appears but is found to be incompetent:
I am not troubled by an approach that accepts that there is no justification for
admitting the out-of-court statement of someone who could not testify to the same
words at trial. Indeed, I think this is one of the reasons that so much child hearsay has
been funneled into the excited utterance exception. Since the stress of the event is
deemed to defeat the ability to lie, we need not rely on whether the individual child is
competent because the general ability to discern and tell the truth is not at issue.
Similarly, many courts recognize that statements introduced under medical exceptions
are only admissible if the child understands the negative consequences of giving
medical personnel false information, a concept intertwined with truthfulness.
Id. at 1012. In her article, Raeder’s nuanced view mirrors that alluded to by the United States
Supreme Court:
[T]he Confrontation Clause does not erect a per se rule barring the admission of prior
statements of a declarant who is unable to communicate to the jury at the time of trial.
Although such inability might be relevant to whether the earlier hearsay statement
possessed particularized guarantees of trustworthiness, a per se rule of exclusion
would not only frustrate the truthseeking purpose of the Confrontation Clause, but
would also hinder States in their own enlightened development in the law of evidence.
Idaho v. Wright, 497 U.S. 805 (1990) (internal citations and quotations omitted).

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from a declarant whose identity is known (and whose credibility can therefore be
investigated and challenged).
G. Legislated Reliability
In contrast to the doctrine of forfeiture by wrongdoing, at least in terms of
longevity, is the relatively recent trend to admit propensity evidence in sexual
assault and molestation cases. Although a practice not involving hearsay, its
significance to this Article and the determination of a Due Process standard for
assessing novel hearsay rules is clear B for this is an arena where legislatures
have “declared” evidence to be reliable, and courts have had to respond by
assessing whether the rules and their application comply with Due Process
requirements.
Federal Rules of Evidence 413 153 and 414154 (and their civil case correlate,
Rule 415), were drawn up and approved at least in part as a response to a public
outcry over high-publicity sexual assault cases.155 Adoption was strongly
opposed by both the judicial156 and scholarly 157 communities, with explicit
concern over introducing an element of unreliability into the criminal

153

FED. R. EVID. 413. Rule 413(a) provides, in pertinent part, that: “In a criminal case in which the
defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of
another offense or offenses of sexual assault is admissible, and may be considered for its bearing on
any matter to which it is relevant.”
154
FED. R. EVID. 414. Rule 414, applicable to prosecutions for child sexual abuse, provides that:
“In a criminal case in which the defendant is accused of an offense of child molestation, evidence
of the defendant’s commission of another offense or offenses of child molestation is admissible,
and may be considered for its bearing on any matter to which it is relevant.”
155
See Michael S. Ellis, Comment, The Politics Behind Federal Rules of Evidence 413, 414, and
415, 38 SANTA CLARA L. REV. 961, n. 128 (1998).
156
See, e.g., FED. R. EVID. 413 advisory committee’s note on the Report of the Judicial Conference
of the United States on the Admission of Character Evidence in Certain Sexual Misconduct Cases
[hereinafter Judicial Conference Report]. As explained in the Report sent to Congress:
The overwhelming majority of judges, lawyers, law professors, and legal
organizations who responded opposed new Evidence Rules 413, 414, and 415. The
principal objections expressed were that the rules would permit the admission of
unfairly prejudicial evidence and contained numerous drafting problems not intended
by their authors. The Advisory Committee on Evidence Rules submitted its report to
the Judicial Conference Committee on Rules of Practice and Procedure (Standing
Committee) for review at its January 11-13, 1995 meeting. The committee’s report
was unanimous except for a dissenting vote by the representative of the Department of
Justice.
Id.
157
In addition to the scholars who submitted comments to the Judicial Conference, law review
articles challenged the wisdom of adopting such rules. See, e.g., Edward J. Imwinkelried, A Small
Contribution to the Debate Over the Proposed Legislation Abolishing the Character Evidence
Prohibition in Sex Offense Prosecutions, 44 SYRACUSE L. REV. 1125, 1130-36 (1993). But see
David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70
CHI.-KENT L. REV. 15 (1994).

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adjudicative process.158 The concern has been borne out by statistical studies of
criminal recidivism rates, which confirm especially low sex offense re-arrest
rates for convicted sex offenders in general,159 although showing some
correlation between specific sub-groups of offenders and re-commission of
sexual offense crimes.160 Here, the concern is reliability of verdict, as a low to
non-existent correlation between prior conduct and recidivism invites conviction
on an unreliable assumption B did it once, did it again.
Without acknowledgment of these data, courts have uniformly accepted
legislative pronouncements of propensity evidence reliability as comporting with
the requirements of Due Process.161 The Due Process command, however, is not
ignored, as each provision has been upheld because of the authority of the trial
judge to apply a Rule 403 162 balance and exclude patently unreliable proof.163

158

As the Judicial Conference Report concluded:
[T]he new rules, which are not supported by empirical evidence, could diminish
significantly the protections that have safeguarded persons accused in criminal cases
and parties in civil cases against undue prejudice. . . . A significant concern identified
by the committee was the danger of convicting a criminal defendant for past, as
opposed to charged, behavior or for being a bad person.
Judicial Conference Report, supra note 151.
159
PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT:
RECIDIVISM
OF
PRISONERS
RELEASED
IN
1994
(2002),
available
at
http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr94.pdf. For a detailed review of the disconnect between
the statistical evidence and the assumptions underlying Rules 413-415, see Charles H. Rose III,
Should the Tail Wag the Dog?: The Potential Effects of Recidivism Data on Character Evidence
Rules, 36 N.M. L. REV. 341 (2006).
160
See, e.g., Center for Sex Offender Management, Recidivism of Sex Offenders,
http://www.csom.org/pubs/recidsexof.pdf [hereinafter CSOM]; R. Karl Hanson & Monique T.
Bussière, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J.
CONSULTING & CLINICAL PSYCHOL. 348 (1998); R. Karl Hanson & Kelly Morton-Bourgon,
Predictors of Sexual Recidivism, An Updated Meta-Analysis: Public Safety and Emergency
Preparedness Canada (2004).
161
See, e.g., United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998); United States v. Enjady,
134 F.3d 1427, 1433 (10th Cir. 1998) (holding that, subject to the protections of Rule 403, Rule
413 did not violate the Due Process Clause); United States v. Castillo, 140 F.3d 874, 883 (10th Cir.
1998) (“application of Rule 403 to Rule 414 evidence eliminates the due process concerns posed by
Rule 414”); People v. Falsetta, 986 P.2d 182, 189 (Cal. 1999) (rejecting a Due Process challenge to
such evidence in part because such evidence has “too much” probative value); People v. Donoho,
788 N.E.2d 707, 720-21 (Ill. 2003) (following Falsetta and finding no Due Process violation in
provision admitting propensity evidence). But see State v. Burns, 978 S.W.2d 759, 762 (Mo. 1998)
(invalidating a propensity evidence provision under the Missouri constitution because it violated
that document’s requirement that a person be tried only on the charged offense). Absent from any
of these decisions is a reference to or acknowledgment of the apparent conflict between the
legislative enactment and the statistics of recidivism.
162
Fed R. Evid 403. “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Id.

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Although a Due Process threshold applies, it is decidedly low in these
cases. As the Tenth Circuit explained in Enjady, “the district court must
recognize the congressional judgment that Rule 413 evidence is “normally” to be
admitted” when applying 403 scrutiny.164 That low standard has caused
consternation because 403 exclusion almost never follows a Government
application to admit such evidence. As Professor Orenstein trenchantly noted:
“[t]he balancing test of Rule 403, upon which the constitutionality of these sexual
propensity rules purportedly rests, is a shadow of its true self in these
instances.”165
The rejection of Constitutional challenges to propensity rules has been built
on two premises: that a legislative determination of reliability is accorded great
weight, but that the Due Process command requires some oversight (after an
assumption of reliability) to ensure no undue prejudice. How these prongs
should play into the development of a Due Process test for the admissibility of
non-testimonial hearsay is addressed below. Yet even these Rules arise from the
presentation of first-hand witness testimony, evidence subject to crossexamination and adversarial testing.166
IV. A SUGGESTED DUE PROCESS STANDARD
The consistency of Due Process jurisprudence mandates the conclusion that
some Constitutional threshold determination for admissibility of non-testimonial
hearsay must be made. It is in identifying the contours and components of this
163

See, e.g., Enjady, 134 F.3d at 1433 (finding Rule 413 constitutional because the Rule 403
balancing test applies); Kerr v. Caspari, 956 F.2d 788, 790 (8th Cir. 1992) (finding state lustful
disposition rule constitutional because evidence is subjected to the state equivalent of the Rule 403
test).
164
Enjady, 134 F.3d at 1434. The “normal” standard of admissibility, as set by Congress, was an
assumption of admissibility in virtually all cases. See 140 CONG. REC. H8,991 (daily ed. Aug. 21,
1994) (statement of Rep. Molinari).
In other respects, the general standards of the rules of evidence will continue to apply,
including the restrictions on hearsay evidence and the court’s authority under
evidence rule 403 to exclude evidence whose probative value is substantially
outweighed by its prejudicial effect. . . . The presumption is in favor of admission.
Id. “The presumption is that the evidence admissible pursuant to these rules is typically relevant
and probative, and that its probative value is not outweight by any risk of prejudice.” 140 Cong.
Rec. S12,990 (daily edition, Sept. 20, 1994) (statement of Rep. Dole).
165
Aviva Orenstein, Deviance, Due Process, and The False Promise of Federal Rule of Evidence
403, 90 CORNELL L. REV. 1487, 1491 (2005). Professor Orenstein’s analysis of decisional law
concluded, for example, that the “Eighth Circuit, in particular, has rendered Rule 403 toothless and
ineffectual.” Id.
166
See Enjady, 134 F.3d 1427, 1433.
Rule 413(b) requires that the government disclose to defendant the similar crimes
evidence to be offered no later than fifteen days before trial (unless shortened by court
order). This notice period protects against surprise and allows the defendant to
investigate and prepare cross-examination. It permits the defendant to counter
uncharged crimes evidence with rebuttal evidence and full assistance of counsel.
Id. (citations omitted).

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standard that the Court has only suggested guidance. Two facets are clear B
absent a radical revisiting of the Confrontation right as redefined in Crawford,
the threshold will not include a prerequisite of declarant unavailability or prior
cross-examination, as the right to command a witness’ presence and submission
to questioning has been limited to instances of testimonial hearsay.
The path of least resistance would be to simply resurrect the reliability
standard of Ohio v. Roberts167 as a Due Process prerequisite and require either a
long-standing hearsay exception or declaration-specific reliability criteria168 as a
condition of admissibility. Yet such an approach is inappropriate. First, to do so
essentially ‘freezes’ the development of the law of hearsay, by requiring either no
innovation or an incubation period of a century or more before new exceptions
become historically accepted as reliable. Such rigidity is contrary to the
assessment of the Court in Crawford, which recognized the right (and, perhaps,
the need) for a flexible and kinetic approach to the development of the law of
hearsay.169
A second flaw is apparent in transferring the Roberts Confrontation analysis
to a Due Process one. Two consistent values in Due Process jurisprudence are
the avoidance of trial by rumor170 and the need for first-hand knowledge from the
declarant/witness.171 Yet hearsay admissible under the Roberts standard has been
forgiving in both regards B the courts admit hearsay from unnamed, unidentified
declarants,172 certainly the hallmark of rumor; 173 and the admission of such
statements without clear proof of personal knowledge is the rule.174

167

448 U.S. 56, 66 (1980) (“Reliability can be inferred without more in a case where the evidence
falls within a firmly rooted hearsay exception.”). See also supra note 18 and accompanying text.
168
The Court in Idaho v. Wright, 497 U.S. 805, 816 (U.S. 1990), described this as “a showing of
particularized guarantees of trustworthiness.”
169
Crawford stated that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in their development of hearsay law--as does
Roberts, and as would an approach that exempted such statements from Confrontation Clause
scrutiny altogether.” Crawford, 541 U.S. at 68.
170
See supra note 125 and accompanying text.
171
See supra sections II.B, II.E, and II.F.
172
Under Federal Rules of Evidence 803, the availability of the declarant and his/her identity are
immaterial to the admissibility determination. FED. R. EVID. 803. The Roberts test simply required
that the assertion meet “a firmly rooted hearsay exception,” and imposed no additional mandate of
proving the declarant’s identity. Ohio v. Roberts, 448 U.S. 56, 66 (1980). Cf. United States v.
Inadi, 475 U.S. 387 (1986) (eliminating any requirement of declarant unavailability for most
hearsay other than prior testimony, and admitting the ‘firmly rooted’ co-conspirator hearsay
statements).
173
“Rumor” has been defined as, alternately, “talk or opinion widely disseminated with no
discernible source [or] a statement or report current without known authority for its truth[.]”
MERRIAM-WEBSTER ONLINE DICTIONARY (2008), available at http://www.merriamwebster.com/dictionary/rumor (last visited June 21, 2008).
174
See United States v. Short, 1995 U.S. App. LEXIS 4684, at *8 (9th Cir. 1995). See also FED. R.
EVID. 803 advisory committee’s note (stating that the foundation of firsthand knowledge “may
appear from [the] statement itself or be inferable from circumstances”); Miller v. Keating, 754 F.2d
507, 511 (stating that “[d]irect proof of perception, or proof that forecloses all speculation is not

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The Roberts standard has additional failings. As critiqued by the majority
in Crawford, it is “unpredictable” and “amorphous.”175 And, as set forth
above,176 it survives regardless of the dubiousness of its reliability predicates,
e.g., that excitement or impending death engenders accuracy.177
A. The Components of a Due Process Standard for Hearsay Reliability
What then are the essentials of a Due Process standard for admitting nontestimonial hearsay? The common threads of Due Process decisional law are
three B no trial by rumor;178 the capacity for adversarial testing;179 and
reliability/probativeness established solely by the circumstances surrounding the
making of the statement and not by reference to extrinsic corroboration.
The defining aspect of a prohibition against trial by rumor should be a
strong preference,180 if not an absolute requirement, for the declarant to be
identifiable by name. The Due Process command that there be no trial by
rumor181 necessitates fact-finder and adversarial knowledge of who the declarant
is, particularly to permit testing of the witness’ credibility. Indeed, the Court has
required” and that the substance of the statement itself may establish personal perception). For
example, the statement “Lans did it” suffices, rather than “I saw Lans do it” as long as “personal
knowledge of the facts may be inferred from the utterance itself.” State v. Hoosman, 2001 Iowa
App. LEXIS 478, at *14 (Iowa Ct. App. 2001), cert. denied, 536 U.S. 909 (2002).
175
Crawford, 541 U.S. at 63 (2004).
176
See notes 20 and 21, supra.
177
See, e.g., FED. R. EVID. 803(2) and 804(b)(2).
178
See, e.g., supra text at note 125. The denial of the right to face and question one’s accuser at
trial has been viewed as “call[ing] into question the ultimate ‘integrity of the fact-finding process.’”
Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (quoting Berger v. California, 393 U.S. 314,
315 (1969)).
179
See, e.g., supra text accompanying notes 126 and 132.
180
Although an absolute ban on hearsay from unnamed and unidentifiable declarants is the more
efficient standard, there may be instances where the statement is clearly based on first-hand
knowledge and the source has no bias or lack of capacity. Illustrative is when a witness comes in
and says:
I saw the crime, and immediately after the shooting the person I was standing next to,
a stranger to our town, ran with me to the victim. She spoke clearly and carefully as
she gave medical attention to the victim. All she kept repeating was “the shooter had
a fu manchu mustache.”
Parker v. State, 778 A.2d 1096, 1105 (Md. 2001) (observing cases from several jurisdictions).
None of several recognized modes of impeachment B bias, lack of capacity, or prior inconsistent
statement B would likely apply. Courts have recognized the importance of scrutinizing hearsay of
unidentified declarants more stringently “to prove the requisite indicia of reliability.” Id.
181
The defense of “anonymous” hearsay often involves statements that are not in fact hearsay.
Michael L. Seigel, Hearsay: A Proposal for a Best Evidence Hearsay Rule, 72 B.U. L. REV. 893,
933 (“A familiar example involves unidentified persons calling an alleged gambling house where a
police raid is in progress and unsuspectingly placing bets with the police officer answering the
phone.”). Yet such a statement is not intended as an assertion and instead stands as circumstantial
proof of the enterprise. See, e.g., United States v. Zenni, 492 F. Supp. 464, 469 (E.D. Ky. 1980)
(holding that unknown declarants’ statements placing bets over the telephone are not hearsay
because the declarants did not intend to communicate this implied assertion).

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treated this as the sine qua non for confronting the witness who testifies live:
“[W]hen the credibility of a witness is in issue . . . [t]he witness’ name and
address open countless avenues of in-court examination and out-of-court
investigation. To forbid this most rudimentary inquiry at the threshold is
effectively to emasculate the right of cross-examination itself.”182
Certainly, the requirement cannot be less when the absent hearsay declarant
is offering case-critical 183 information; for without a name, the capacity for
adversarial testing184 of the speaker’s contention is gone.185
Concomitant with a determination of declarant identity must be a showing
of personal knowledge.186 Without the opportunity for cross-examination, it may
be impossible to assess whether the hearsay declarant’s statement “Jules shot the
victim”187 is based on direct observation, repetition of hearsay, or conjecture,
although in a proper case this predicate can be established circumstantially. The
concern regarding personal knowledge is coextensive with the development of
hearsay law and practice, with McCormick emphasizing that it is a requirement

182

Smith v. Illinois, 390 U.S. 129, 131 (1968) (citations omitted). Forbidding anonymous witness
testimony is clearly the norm. See, e.g., Alvarado v. Superior Court, 5 P.3d 203, 217 n.10 (Cal.
2000) (collecting cases from numerous jurisdictions).
183
The requirement of name/address disclosure may be less, at least in terms of pre-trial discovery,
when the declarant’s evidence is overall “inconsequential.” Id.
184
Such testing is available through application of Federal Rules of Evidence 806, which permits
attacking “the credibility of the declarant . . . by any evidence which would be admissible for those
purposes if declarant had testified as a witness . . .” FED. R. EVID. 806. As the Advisory
Committee Note explains, the practice is grounded in the essentials of fairness, for the hearsay
declarant is de facto a testifying witness whose “credibility should in fairness be subject to
impeachment and support as though he had in fact testified.” FED. R. EVID. 806 advisory
committee’s note.
185
A separate issue that may plague criminal trials is the timing of disclosure. John G. Douglass,
Balancing Hearsay and Criminal Discovery, 68 FORDHAM L. REV. 2097, 2135-38 (2000) (noting
that federal rules governing the pre-trial discovery process in criminal cases permit delayed
disclosure that may prevent effective investigation of the hearsay declarant whose very existence
may not be know of until a trial witness proffers hearsay evidence).
186
FED. R. EVID. 602. The personal knowledge requirement is generally applied to all hearsay
exceptions. It is deemed inapplicable to party admissions, but parties are present and thus know the
declarant [themselves] and can respond to the evidence at issue. CHARLES T. MCCORMICK,
MCCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 263 (2d ed. 1972); 4 JOHN HENRY WIGMORE,
EVIDENCE IN TRIALS AT COMMON LAW § 1053 (J. Chadbourn rev. ed. 1972); see also J.F. Falknor,
Vicarious Admissions and the Uniform Rules, 14 VAND. L. REV. 855, 860 (1961).
187
An even more problematic illustration is the mother’s statement that “my son is involved in
selling drugs.” The source of this knowledge is unstated and cannot even be established
circumstantially unlike the shooting hypothetical, where the timing of the shooting and the making
of the statement, and the witness’ proximity to the victim, may establish percipience
circumstantially. This is not always the judicial response, which often permits the statement as
“bootstrap” proof of the exciting event. See, e.g., United States v. Brown, 254 F.3d 454, 459 (3d
Cir. 2001) (citing the “generally prevailing rule that an excited utterance may of itself be sufficient
to establish the occurrence of the startling event”).

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“more ancient than the hearsay rule.”188 It remains the preferred method for
ensuring the probativeness of evidence.189 It is, again, emblematic of the concern
of avoiding trial by rumor. The recognition of the need for proof of personal
knowledge in hearsay declarants not in court190 has some adherence in appellate
jurisprudence. Illustrative is Ash v. Reilly,191 where the District Court carefully
scrutinized the proof to conclude that:
An equally plausible reading of the record is that the group of people who
were in front of 529 East 27th pointing at [Ash] heard some commotion from
another room, or even from outside, and arrived in time to see Ash running
down the street, but nothing more. Hearsay that is equally susceptible to the
interpretation that the declarant was speculating or repeating information
from another source does not bear sufficient circumstantial guarantees of
192
trustworthiness to justify nonproduction of the declarant.

The problem here is less that of principle than of application. The rule has
been stretched to assume personal knowledge without strong circumstantial

188

MCCORMICK’S HANDBOOK ON THE LAW OF EVIDENCE, supra note 186, § 247. In the context of
the residual hearsay exception, the requirement of personal knowledge remains core in evaluating
whether there are sufficient guarantees of trustworthiness. “In making this determination the trial
court should consider [inter alia] . . . the extent to which the testimony reflects the declarant’s
personal knowledge. United States v. Barlow, 693 F.2d 954, 962 (6th Cir. 1982). But see Paul
Bergman, Ambiguity: The Hidden Hearsay Danger Almost Nobody Talks About, 75 KY. L.J. 841
(1986) (emphasizing the distinction between percipiency and ambiguity and noting that the hearsay
cases focusing on personal knowledge address only the former concern).
189
See, e.g., Richard D. Friedman, Conditional Probative Value: Neoclassicism Without Myth, 93
MICH. L. REV. 439, 475 (1994) (proposing that Rule 602 be amended to require that “testimony
concerning a matter shall be deemed to have probative value only to the extent that the witness has
personal knowledge of the matter”); Roger Park, A Subject Matter Approach to Hearsay Reform,
86 MICH. L. REV. 51, 121-22 (1986) (proposing a relaxation of hearsay rules in civil cases but with
the continuing mandate of personal knowledge for the declarant).
190
This is the exception that may prove the rule. It is only the hearsay declaration of the party
opponent, a person directly or vicariously present in court, that does not require the speaker to have
personal knowledge. See,.e.g., Anne Bowen Poulin, Party Admissions in Criminal Cases: Should
the Government Have to Eat Its Words?, 87 MINN. L. REV. 401, 473 (2002) (“A key feature of the
rule governing party admissions is that the declarant need not have personal knowledge.”). The
primary rationale for this is that the declarant is present and, in the adversarial setting, capable of
explaining that the statement was conjecture or supposition. FED. R. EVID. 801 advisory
committee’s note (“Admissions by a party-opponent are excluded from the category of hearsay on
the theory that their admissibility in evidence is the result of the adversary system rather than
satisfaction of the conditions of the hearsay rule.”). It is when the speaker is not present, and no
explanation can be offered or elicited, that personal knowledge is a prerequisite to admissibility.
191
433 F. Supp. 2d 37 (D.D.C. 2006), appeal dismissed, 2006 U.S. App. LEXIS 20504 (D.C. Cir.
2006).
192
Ash, 433 F. Supp. 2d at 46 (citations omitted). The witnesses’ reported outcries were that
“that’s him” and that he [Ash] had perpetrated the assault. Id. By contrast, in Commonwealth v.
Harbin, the declarant told police that she “saw everything . . . China and Terry did it.”
Commonwealth v. Harbin, 760 N.E.2d 1216, 1220 (Mass. 2002) (emphasis added).

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support. Most recently, the Tennessee Supreme Court permitted use of a dying
declarant’s opinion that a woman was probably behind a robbery-shooting
because “the record suggests that the victim’s identification of the Defendant is
rationally based upon the perception of the victim.”193 In a more classic
formulation, the statement “Lans did it” has been presumed to be based on
personal knowledge because the declarant emerged from the crowd at the scene
of the shooting and “because a declarant’s personal knowledge of the facts may
be inferred from the utterance itself.”194 Such bootstrapping is at odds with the
prohibition against trial by rumor; and as the declarant is not present for
questioning, this more lax approach to the personal knowledge command should
be repudiated.
With these two criteria stands a third. The “reliability” of any hearsay
declaration should be determined by reference to the circumstances surrounding
the making of the statement, and not to the presence of corroborative evidence.
This was the standard under Roberts;195 it is the Due Process standard for
evaluating the admissibility of identification testimony;196 and it acknowledges
that extrinsic evidence is not necessarily reliable (or may not be found reliable by
the jury) and thus is an impermissible bootstrap.197 While a ban on utilizing
extrinsic evidence to assess hearsay reliability has its critics,198 the command that

193

State v. Lewis, 2007 Tenn. LEXIS 649, at *36 (Tenn. 2007) (internal quotation omitted). In
Lewis, the victim was shot by a young male but opined that “he ‘knew’ that ‘the lady with the
vases’ was involved in the offenses . . . .” Id. at *26.
194
State v. Hoosman, 2001 Iowa App. LEXIS 478, at *14 (Iowa Ct. App. 2001), cert. denied, 536
U.S. 909 (2002).
195
Ohio v. Roberts, 448 U.S. 56, 66 (1980) (absent an established hearsay exception, the reliability
requirement can be met by a showing of “particularized guarantees of trustworthiness”). See also
Idaho v. Wright, 497 U.S. 805, 822 (1990) (“To be admissible under the Confrontation Clause,
hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its
inherent trustworthiness, not by reference to other evidence at trial.”).
196
See supra note 100 and accompanying text.
197
This concern was underscored in Holmes v. South Carolina, 547 U.S. 319 (2006), where the
Court condemned South Carolina’s practice of determining admissibility of defense evidence based
on the apparent strength of the prosecution’s proof:
[T]his logic depends on an accurate evaluation of the prosecution’s proof, and the true
strength of the prosecution’s proof cannot be assessed without considering challenges
to the reliability of the prosecution’s evidence. Just because the prosecution’s
evidence, if credited, would provide strong support for a guilty verdict, it does not
follow that evidence of third-party guilt has only a weak logical connection to the
central issues in the case. And where the credibility of the prosecution’s witnesses or
the reliability of its evidence is not conceded, the strength of the prosecution’s case
cannot be assessed without making the sort of factual findings that have traditionally
been reserved for the trier of fact . . . .
Id at 330.
198
See, e.g., Mueller, supra note 48, at 949.
It is very hard to understand why a court may look beyond the statement at the factors
mentioned by the Court, or at the factors that courts must consider in applying other
major exceptions, but may not consider corroborative evidence. Among the first

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there be no trial by rumor necessitates a standard of admissibility that relies on
the intrinsic quality of the hearsay declaration. To hold otherwise would endorse
rumor, as long as extrinsic evidence seemingly199 corroborated it.
For hearsay categories of long standing, the historic track record of
putative200 reliability attendant to the circumstances of making the statement
would likely be deemed sufficient for Due Process purposes if coupled with the
personal knowledge and identity-of-declarant requirements. It will be in
addressing novel enactments or codifications of hearsay exceptions that a Due
Process analysis will have to be more exacting, and examine whether such
statements have intrinsic indicia of reliability.
B. Applying a Due Process Standard to New Hearsay Enactments
New hearsay enactments that incorporate the Roberts intrinsic201 reliability
criteria, if coupled with the mandate for declarant identification and personal
knowledge, will satisfy this Article’s proposed Due Process test. A particular
dilemma will arise if and when legislatures fail to incorporate the Roberts criteria
and instead declare that a category of hearsay is reliable ipso jure, as when a new
provision is accompanied by a statement of “findings” supporting the claim of
intrinsic reliability. As shown above,202 courts have paid exceptional deference
to such determinations in applying the inclusionary principle of Rules 413-415

things anyone would want to know in appraising trustworthiness is whether the
statement is correct on important particulars. To put this resource out of bounds is to
ask judges to perform a task while tying one hand, so to speak, behind their backs.
Id. See also Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U. PA. L. REV.
1171, 1238 (2002) (describing extrinsic corroboration as a “basis that frequently offers strong
guarantees of trustworthiness”).
199
It cannot be gainsaid that much evidence once thought compelling has now been shown to be of
questionable merit. Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the
Second Generation of Scientific Evidence, 95 CALIF. L. REV. 721, 724 (2007) (“In recent years,
empirical studies and select trial courts have called into question the legitimacy of evidentiary
stalwarts like handwriting, voice exemplars, hair and fiber, bite and tool marks, and even
fingerprints”). As well, lab error in even recognized scientific fields requires concern regarding the
presumptive validity of scientific “corroboration.” Craig M. Cooley, Forensic Science and Capital
Punishment Reform: An “Intellectually Honest” Assessment, 17 GEO. MASON U. CIV. RTS. L.J.
299, 317 (2007) (“Over the past decade, numerous audits of publicly funded crime lab systems
have identified reoccurring problems with our nation’s crime labs.”).
200
The questionable underpinnings of some hearsay exceptions have been noted above. See supra
notes 20-21. Nonetheless, from a Due Process standpoint, unless and until such evidence is shown
to be consistently unreliable, and where personal knowledge and declarant identity are established,
such proof will meet the standard of avoiding a “substantial likelihood of mistaken [evidence],” the
parallel to the standard applied to eyewitness identification opinion testimony. See supra notes 8084 and accompanying text.
201
The intrinsic component is that of reliability/probativeness being established solely by the
circumstances surrounding the making of the statement and not by reference to extrinsic
corroboration.
202
See supra section II.G.

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(even when the record showed questionable or weak data to support the
finding).203
The most contentious204 proposal this Article makes is that statutory
enactments of novel hearsay exceptions declared by the legislating entity to be
presumptively reliable should be subject to non-deferential judicial scrutiny
before being approved for use in criminal prosecutions.205 Such a stance runs
contrary to the tradition of judicial deference to “rational” legislative enactments
that do not tread upon fundamental rights or involve invidious classifications.206
It is also incompatible, at least facially, with the judicial response to the
legislative approval of propensity evidence in sex offenses discussed above in
section II G.
Yet differences 207 abound and warrant the judiciary treating hearsay
differently from propensity proof. Propensity evidence B or as one court put it,
evidence with “too much” probative value208 B is deemed relevant.209 The Due
Process challenge is not due to the inherent unreliability of such evidence, but the
risk of “overpersua[sion].”210 No such “presumption” of probativeness attends to

203

As the Tenth Circuit explained in United States v. Enjady, “the district court must recognize the
congressional judgment that Rule 413 evidence is ‘normally’ to be admitted” when applying 403
scrutiny. United States v. Enjady, 134 F.3d 1427, 1434 (1998).
204
The proposal is denominated as “contentious” because, unlike the three criteria for a Due
Process test articulated above, it is not clearly derived from the historic treatment of hearsay and
thus founded in “some principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.” Montana v. Egelhoff, 518 U.S. 37, 43 (1996). Rather, it is seen
as derivative from that history, and stands as the only bulwark against legislative enactments that
may reflect current political sentiments rather than a commitment to evidentiary reliability. It is
also reflective of the unique history of the courts in making such reliability assessments (and
witnessing first-hand the consequences of admitting unreliable evidence) for over two centuries.
205
Such statutes or enactments would likely arise, first, in child abuse or domestic violence cases,
where the difficulty in securing a declarant’s presence or establishing her/his credibility is
substantial. A sample statute is described at note 207, infra.
206
See, e.g., Cent. State Univ. v. Am. Ass’n of Univ. Professors, 526 U.S. 124, 129 (1999)
(upholding a state statute allowing petitioner to impose a faculty workload policy exempt from
collective bargaining because it was rationally related to the legitimate objective of increasing
faculty time in the classroom).
207
One critical distinction is that in propensity cases, the accused normally will have a fact witness
to confront (usually the victim of, or eyewitness to, the other act or acts) or have the conduct
proved with evidence of a prior conviction (itself resulting from a proceeding where the defendant
had a right of confrontation). Any questioned reliability of the propensity evidence is at least
partially “offset” by the opportunity to directly challenge the declarant/accuser, the condition
absent from hearsay evidence.
208
People v. Falsetta, 986 P.2d 182, 189 (Cal. 1999) (“Such evidence is [deemed] objectionable,
not because it has no appreciable probative value, but because it has too much.”) (internal citation
and quotation omitted).
209
See Michelson v. United States, 335 U.S. 469, 476 (1948) (describing the “admitted probative
value” of character/propensity evidence).
210
Id. at 476.

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hearsay; indeed, to the contrary, there is an historic record derogating most
hearsay as inherently unreliable.211
Judicial scrutiny may also be justified because of the history of court
assessment of hearsay unreliability.212 Due Process cannot tolerate the anomaly
that some hearsay is to be excluded when the judiciary has found it unreliable,
but the same or similar hearsay is admissible if the legislature thereafter
mandates its use regardless of actual reliability.213
Because of the historic aversion to trial by rumor, something more should
be required than a “reliability by fiat” standard. At a minimum, before admitting
such legislatively-approved hearsay evidence in criminal trials, courts should
have to scrutinize novel legislatively-enacted hearsay exceptions in two regards:
whether the legislature had actual data to support the new rule’s reliability; and
whether courts have previously found, through historic experience, that such
evidence has grave accuracy concerns.214 Indeed, this is little different than the

211

See, e.g., Glover v. Millings, 2 Stew. & P. 28, 43-44 (Ala. 1832). The historic rootedness of the
recognition of the unreliability of much hearsay cannot be questioned. Illustrative is the discourse
of the Alabama Court in Glover: “[H]earsay” evidence is in its own nature inadmissible. . . . Its
intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds
which might be practiced under its cover, combine to support the rule. Id. at 43. The Kansas
Supreme Court described hearsay evidence as proof that “could be easily manufactured, and [is]
clearly inadmissible . . . .” Blue v. Peter, 20 P. 442, 453 (Kan. 1889). It is a consistent theme of
Nineteenth century decisional law that hearsay and rumor are inadmissible. See, e.g., Carney v.
State, 4 So. 285, 287 (Ala. 1887) (hearsay of wife’s infidelity insufficient to prove its occurrence
and justify husband’s abandonment of family); Ashcraft v. De Armond, 44 Iowa 229, 233 (Iowa
1876) (hearsay inadmissible to prove insanity); People v. McQuaid, 48 N.W. 161, 162 (Mich.
1891) (hearsay inadmissible to prove the cohabitation element of an “informal” marriage). For
further contemporaneous judicial decisions expressing disdain for hearsay as inherently unreliable,
see supra note 17. Although criminal jurisprudence of the Twentieth century expanded the use of
hearsay, the essential precondition remained “reliability.”
212
See, e.g., Lilly v. Virginia, 527 U.S. 116, 134 (1999) (declarations against interest made to
authorities); Williamson v. United States, 512 U.S. 594, 600 (1994) (same); Lee v. Illinois, 476
U.S. 530, 541 (1986); Idaho v. Wright, 497 U.S. 805, 819-22 (1990) (discussing the residual
hearsay exception).
213
Illustrative would be a statute approving the admission of statements of children that describe
sexual assaults based on a legislative assertion that such statements are inherently reliable. Judicial
scrutiny of such declarations has raised serious concerns, in light of problems with taint and
suggestivity in the manner in which children are questioned. See, e.g., Wright, 497 U.S. at 826
(basing a finding of unreliability on part on “the suggestive manner” of interrogation);
Commonwealth v. Delbridge, 855 A.2d 27, 34 (Pa. 2003) (collecting cases identifying the risk of
“taint” occurring in the child witness interviewing process). Without substantial data showing that
the taint risk is absent or minimal, a legislative authorization of such proof should not be
countenanced.
214
An illustrative hearsay exception is as follows: Hearsay is admissible in a criminal proceeding if
it is non-testimonial and if the declarant is a child of seven years or younger who, without
prompting or taint, has described a sexual act or behavior that a child of such age would not
normally be familiar with or capable of describing. If data could establish a normative range of
what young children are exposed to, such a legislatively-created exception to the ban on hearsay
would meet Due Process principles, particularly if the identity of the declarant is known and first

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determination that a Rule 403 balancing by the judiciary is essential to the
constitutionality of Rules 413 and 414.215 Here, the “balancing” is not of
probativeness versus prejudice, but of probativeness itself. And without such
judicial review, there is no Due Process limitation to an elimination of any ban
on nontestimonial hearsay.
V. CONCLUSION
In 1992, the Court declined to read the Confrontation guarantee as a unified
one, instead dividing its mandate for face-to-face confrontation of the testifying
witness from its treatment of hearsay and removing from the latter any notion of
“necessity” as a prequel to the admission of out-of-court statements of nontestifying declarants.216 In what is essentially dictum,217 the Court has now gone
further and removed an entire class of hearsay from the Clause’ reach. The
Confrontation Clause’s “reliability” jurisprudence has no play in addressing the
admissibility of hearsay that is nontestimonial. Without a Due Process test, or a
re-thinking of Confrontation Clause jurisprudence, the limits on hearsay evidence
are only those thought of (or removed) by legislatures and evidence rules
committees.
One might ask whether that strait is in fact such a terrible one. Factfinders
weigh hearsay “proof” in all aspects of their lives, and presumably can be warned
to discount such proof in light of its second-hand nature.218 Indeed, much
hand observation is made clear. Such volunteered statements have been accepted as having internal
indicia of reliability and, therefore, significant probativeness. “The state and federal courts have
identified a number of factors that we think properly relate to whether hearsay statements made by
a child witness in child sexual abuse cases are reliable. . . . [including] use of terminology
unexpected of a child of similar age.” Wright, 497 U.S. at 821 (internal citations omitted). This is
particularly true as knowledge of the declarant’s identity would permit the defense to explore and
prove alternate sources for the child’s knowledge. See, e.g., State v. Budis, 593 A.2d 784, 791
(N.J. 1991) (allowing evidence of prior abuse to show alternate source for young child’s knowledge
of and ability to describe sexual acts). Were the same statute to exist without the determinative
condition of the declarant’s age (or with a much older age as the cut-off), questions as to reliability
and probativeness would abound. See id. (“As children mature, they likely will learn about
sexuality from many sources. Thus, evidence of prior sexual experience is less probative in cases
involving older children.”).
215
See supra notes 158-160 and accompanying text.
216
White v. Illinois, 502 U.S. 346, 358 (1992).
[T]he admissibility of hearsay statements raises concerns lying at the periphery of
those that the Confrontation Clause is designed to address [and] [t]here is thus no
basis for importing the “necessity requirement” announced in [the face-to-face] cases
into the much different context of out-of-court declarations admitted under established
exceptions to the hearsay rule.
Id. (citations omitted).
217
See Kirkpatrick, supra note 11, at 370 (emphasizing that the Court eliminated the Roberts test
for nontestimonial hearsay “without hearing argument from any of the litigants who might actually
be affected by such a ruling”).
218
See, e.g., David Crump, The Case for Selective Abolition of the Rules of Evidence, 35 HOFSTRA
L. REV. 585, 613 (2006) (“[J]urors are not incapable of perceiving the risks that the law has

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evidence of questionable trustworthiness219 is admitted at trials now, with
appropriate limiting instructions, the most problematic of which is that of the
accomplice turned cooperating witness. Jurors are permitted to receive such
proof with the proviso that a cautionary instruction labeling the evidence as
coming from a corrupt source accompany its presentation.220 As well, there is no
definitive study that jurors overvalue hearsay evidence, and there is some
indication that in certain contexts they undervalue its merits,221 although recent
experimental data show a risk of over-reliance on “gossip.”222
The Supreme Court has also urged an expansive view of evidentiary
admissibility, illustrated perhaps best in its treatment of expert witness evidence.
In Daubert v. Merrell Dow Pharmaceuticals, Inc.,223 the Court emphasized use
adversary process as the tool for testing evidence, rather than restricting its
admission ab initio: “[C]ross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.”224
Yet even the Daubert Court imposed limits, setting a gate-keeping function
for trial judges to ensure that evidence lacking in fundamental reliability would
identified as inherent in hearsay evidence (and that in fact are inherent in all evidence, including
testimony from live witnesses).”).
219
Paradigmatic is the problem of testimony from jailhouse informants, often unreliable and a
contributing factor to wrongful convictions. See, e.g., Alexandra Natapoff, Comment, Beyond
Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U. L. REV. 107
(2006); John T. Rago, A Fine Line Between Chaos & Creation: Lessons on Innocence Reform from
the Pennsylvania Eight, 12 WIDENER L. REV. 359 (2006).
220
“A ‘corrupt source’ instruction is warranted in any case where an accomplice offers testimony
implicating the defendant.” Commonwealth v. Derk, 719 A.2d 262, 272 (Pa. 1998). Other
jurisdictions urge caution, albeit in more circumspect language. The Seventh Circuit’s Pattern
Criminal Instructions direct jurors that they “may give his/her testimony such weight as you feel it
deserves, keeping in mind that it must be considered with caution and great care.” COMMITTEE ON
FEDERAL CRIMINAL JURY INSTRUCTIONS FOR THE SEVENTH CIRCUIT, PATTERN CRIMINAL FEDERAL
JURY
INSTRUCTIONS
FOR
THE
SEVENTH
CIRCUIT
33
(1998),
available
at
http://www.ca7.uscourts.gov/Rules/pjury.pdf . California’s instruction explains that “[a]ny
(statement/ or testimony) of an accomplice that tends to incriminate the defendant should be viewed
with caution. You may not, however, arbitrarily disregard it. You should give that (statement/ or
testimony) the weight you think it deserves after examining it with care and caution and in the light
of all the other evidence.” JUDICIAL COUNCIL OF CALIFORNIA, C RIMINAL JURY INSTRUCTIONS 1-300
CALCRIM 335 (2006).
221
See generally Roger C. Park, Visions of Applying the Scientific Method to the Hearsay Rule,
2003 MICH. ST. L. REV. 1149 (2003) (surveying research on this issue). But see William C.
Thompson & Maithilee K. Pathak, How Do Jurors React to Hearsay Testimony?: Empirical Study
of Hearsay Rules: Bridging the Gap Between Psychology and Law, 5 PSYCHOL. PUB. POL’Y AND L.
456, 464 (1999) (expressing concern that jurors overvalue hearsay).
222
Ralf D. Sommerfeld et al., Gossip as an Alternative for Direct Observation in Games of Indirect
Reciprocity, in 104 PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES OF THE UNITED STATES
OF
AMERICA
17435-40.(Vernon
L.
Smith,
ed.,
2007),
available
at
http://www.pnas.org/cgi/reprint/104/44/17435.pdf.
223
509 U.S. 579 (1993).
224
Id. at 596.

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be excluded pre-trial.225 And in Daubert circumstances, the witness is present
and subject to cross-examination.
The Daubert gate-keeping role needs its twin in the hearsay context.
Ultimately, a carefully wrought Due Process reliability threshold is better than
ever-shifting legislative creations of hearsay exceptions and exclusions. It is also
consistent with the general notion of evidentiary practice that inherently
unreliable proof has no place in the adjudication of guilt and innocence. Finally,
it comports with the view of two architects of the Supreme Court’s jurisprudence
on Confrontation rights, Justices Scalia and Thomas, who viewed the Sixth
Amendment guarantee as procedural and explicitly left reliability concerns to the
Due Process guarantee:
Although the historical concern with trial by affidavit and anonymous
accusers does reflect concern with the reliability of the evidence against a
defendant, the Clause makes no distinction based on the reliability of the
evidence presented. . . . Reliability is more properly a due process concern.
There is no reason to strain the text of the Confrontation Clause to provide
criminal defendants with a protection that due process already provides
226
them.

The history of the acceptance of hearsay remains unresolved, with no
consensus over whether Justice Scalia’s distinction between testimonial and nontestimonial statements finds support in founding era caselaw227 and disagreement

225

Id. at 597. Indeed, the gatekeeping has been stringent, if not restrictive. Professor Moreno
writes of studies documenting the exclusion of up to ninety percent of experts proffered by
defendants in criminal cases. Joelle Anne Moreno, What Happens When Dirty Harry Becomes an
(Expert) Witness for the Prosecution? 79 TUL. L. REV. 1, 3 (2004). A study by the Federal
Judicial Center concluded that “Compared to 1991, judges in 1998 reported that they were more
likely to scrutinize expert testimony before trial and were less likely to admit it.” Carol Krafka et
al., Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in
Federal Civil Trials, in 8 PSYCHOLOGY, PUBLIC POLICY AND LAW 309-32 (2002), available at
http://www.fjc.gov/public/pdf.nsf/lookup/judattex.pdf/$file/judattex.pdf.
226
White v. Illinois, 502 U.S. 346, 364 (1992) (Thomas, J., concurring in part and concurring in the
judgment).
227
Professor Davies maintains that:
[T]here was no historical basis for the restriction of the confrontation right to only
“testimonial” hearsay, but not “nontestimonial” hearsay. Because an oath was still a
necessary requisite for admissible evidence in a criminal trial under framing-era law,
and hearsay was then defined as any out-of-court statement not made under oath, the
rule was still that “hearsay is no evidence.”
Davies, Revisiting, supra note 6, at 561. See also Jonakait, supra note 6, at 490-91 (2007) (urging a
discarding of British precedent and a confrontation clause analysis grounded in the particulars of
American decisional law and the adversarial process as developed in this country). Contra Robert
Kry, Confrontation under the Marian Statutes: A Response to Professory Davies, 72 BROOK. L.
REV. 493, 494 (2007) (defending the assertion that “Crawford is well supported by the historical
evidence”). To further complicate the historical debate, one argument accepts the testimonial/nontestimonial distinction, but maintains that many testimonial types of hearsay were admissible

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as to whether the use of hearsay evidence was normative228 or the rare
exception.229 For now the originalism of the Court in Crawford is dispositive,
and the Due Process analysis offered here is both limited by it and
simultaneously evolutionary, tracing a separate skein of history, the aversion to
rumor and the command for reliability in determining criminal responsibility.230
In proposing what that Due Process standard is, I do not relinquish gladly
the requirement of face-to-face confrontation with one’s accuser and the
corresponding right of cross-examination. Yet their abandonment is the current
legacy of Crawford, Davis, and Bockting. Unless and until the Court squarely
faces the dilemma of a prosecution pursued solely with non-testimonial but
directly accusatory hearsay,231 the Confrontation guarantee of these rights B faceduring the founding era. Tom Harbinson, Crawford v. Washington and Davis v. Washington’s
Originalism: Historical Arguments Showing Child Abuse Victims’ Statements to Physicians are
Nontestimonial and Admissible as an Exception to the Confrontation Clause, 58 MERCER L. REV.
569 (2007) [hereinafter Harbinson].
228
See, e.g., Anthony J. Franze, The Confrontation Clause and Originalism: Lessons From King v.
Brasier, 15 J.L. & POL’Y 495, 500 (2007) (“It is plausible, moreover, that the Framers . . . would
have understood that hearsay accounts by parents, doctors, and acquaintances concerning
statements made by child sexual abuse victims would be admissible in criminal trials.”); Harbinson,
supra note 220, at 586 (“[I]t is clear that a significant number of confrontation exceptions existed in
1791, even for statements that fit Crawford’s definition of a testimonial statement.”); Thomas D.
Lyon & Raymond LaMagna, From Old Bailey to Post-Davis, 82 IND. L.J. 1029, 1030 (2007)
(“[T]he hearsay of unavailable child witnesses was routinely admitted in eighteenth century British
courts . . . .”).
229
Thomas Y. Davies, Not “The Framers’ Design”: How the Framing-Era Ban Against Hearsay
Evidence Refutes the Crawford-Davis “Testimonial” Formulation of the Scope of the Original
Confrontation Clause, 15 J.L. & Pol’y 349, 354 (2007) (“[T]he only two kinds of out-of-court
statements that constituted admissible criminal evidence involved either a sworn statement of an
unavailable witness . . . or a functionally sworn statement of an unavailable witness [e.g., a] dying
declaration of a murder victim.”); Jonakait, supra note 220, at 493 (“American courts during the
Framing Era courts were announcing that hearsay was generally inadmissible, and . . . hearsay
exceptions in American courts during that period were limited.”).
230
Although not in conformity with the Crawford Court’s narrow view of the correct approach to
historic exegesis of the Confrontation right, there is support in founding-era decisional law and the
development of the American version of the adversarial trial for the standard proposed here. As
Professor Jonakait urges, founding-era decisions regarding the use of hearsay show that:
American courts were seeking to provide fair, adversarial trials, and decisions about
the use of out-of-court statements were just part of that concern. . . . [T]he hearsay
determinations of the Framing Era cannot be meaningfully analyzed apart from an
analysis of the evolving criminal trial system as a whole, and . . . the Confrontation
Clause should not be interpreted as if it can be segregated from related provisions in
the Constitution.
Jonakait, supra note 6, at 493.
231
Professor Kirkpatrick emphasized this scenario as a direct consequence of the total exclusion of
nontestimonial hearsay from Confrontation protections:
[If] a child’s statement in a private setting is considered nontestimonial, a prosecutor
could now apparently present the child’s accusatory statement through a third party
without calling the child for cross-examination at all, let alone by means of closedcircuit television. Ironically Justice Scalia’s concern about the need for confrontation

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to-face testimony and cross-examination - cannot be imported into the Due
Process calculus.
What remains to ensure reliability are standards such as those proposed
here: no trial by rumor; the capacity for adversarial testing; and
reliability/probativeness established solely by the circumstances surrounding the
making of the statement and not by reference to extrinsic corroboration. While
they will not achieve the mark set by the Court in 1895 that restricts hearsay to
categories “whose conditions have proven over time ‘to remove all temptation to
falsehood, and to enforce as strict an adherence to the truth as would the
obligation of an oath’ and cross-examination at a trial[,]”232 they set the bar
sufficiently to limit the dilemmas occasioned by trial by rumor.

in Craig can be completely circumvented under a regime that simply eliminates the
requirement of in-court testimony by an available child when the child’s out-of-court
statement is found to be nontestimonial.
Kirkpatrick, supra note 11, at 377-78.
232
Lilly v. Virginia., 527 U.S. 116, 126 (1999) (quoting Mattox v. United States, 156 U.S. 237, 244
(1895)).