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
Date Written: January 29, 2009
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: Suggested Citation