Avoiding Trial by Rumor: Identifying the Due Process Threshold for Hearsay Evidence After the Demise of the Ohio v. Roberts 'Reliability' Standard

Abstract:     
This Article responds to the dictum in Whorton v. Bockting that "the Confrontation Clause has no application to [nontestimonial hearsay statements] and therefore permits their admission even if they lack indicia of reliability." The Article proposes that there remains a Due Process threshold for hearsay exceptions in criminal cases, one that mandates proof of first hand knowledge and a named declarant; and "non-deferential judicial scrutiny" for legislative enactments of new hearsay exceptions.

Number of Pages in PDF File: 42

Keywords: hearsay, evidence, confrontation clause, reliability standard

JEL Classification: K14, K41

Accepted Paper Series