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

42 Pages Posted: 12 May 2008 Last revised: 30 Jan 2009

Jules Epstein

Widener University - Widener University School of Law

Date Written: January 29, 2009

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.

Keywords: hearsay, evidence, confrontation clause, reliability standard

JEL Classification: K14, K41

Suggested Citation

Epstein, Jules, Avoiding Trial by Rumor: Identifying the Due Process Threshold for Hearsay Evidence After the Demise of the Ohio v. Roberts 'Reliability' Standard (January 29, 2009). University of Missouri-Kansas City Law Review, Vol. 77, 2008; Widener Law School Legal Studies Research Paper No. 08-51. Available at SSRN: https://ssrn.com/abstract=1129867

Jules Epstein (Contact Author)

Widener University - Widener University School of Law ( email )

4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States

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