After Pointer, the Supreme Court appeared to be on a path that would lead it inevitably to address the apparent conflict between the Confrontation Clause and the various hearsay exceptions. Would the Court do better with the issue than Wigmore? Could the Supreme Court actually rise to the challenge of making constitutional sense of the various hearsay exceptions?

Quite to the contrary, the Supreme Court simply shuffled the issue aside.

Ohio v. Roberts

448 U.S. 56 (1980)

Mr. Justice BLACKMUN delivered the opinion of the Court.

[The issue in this case, as in Pointer, involved an attempt to use the transcript of a witness's testimony from the preliminary hearing against the defendant at trial. The defendant had called the witness at the preliminary hearing and had examined her. The significance of the case rests on its strikingly summary (and partially ill-advised) doctrinal pronouncements, not on any fine parsing of the doctrine as applied to the facts of the case.] . . .

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.

The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S., at 107. . . . "It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these 'indicia of reliability.' "

The Court has applied this "indicia of reliability" requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the "substance of the constitutional protection." Mattox v. United States, 156 U.S., at 244. This reflects the truism that "hearsay rules and the Confrontation Clause are generally designed to protect similar values," California v. Green, 399 U.S., at 155, and "stem from the same roots," Dutton v. Evans, 400 U.S. 74, 86 (1970). It also responds to the need for certainty in the workaday world of conducting criminal trials.

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." 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.

The ill-advised piece of Justice Blackmun's pronouncement involved his assertion that, "when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable." Reasonable as this sounds, it appears to undercut all of the hearsay exceptions listed in Rule 803. Recall that the hearsay rules class hearsay exceptions into two categories, the Rule 803 exceptions, for which the availability or unavailability of the declarant is irrelevant, and the Rule 804 exceptions, which require a demonstration of the declarant's unavailability as a condition to admissibility. Justice Blackmun's pronouncement would appear to establish a constitutional requirement to demonstrate the declarant's unavailability for all hearsay exceptions. Every indication from subsequent Supreme Court cases is that this was simply a blunder.

The lasting and most far-reaching piece of the doctrinal framework was set in a single sentence: "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." With this one sentence statement of presumption Justice Blackmun dispenses with the problems that the Confrontation Clause might have been thought to pose to established hearsay exceptions (do you find this satisfying?), and narrows the need to make actual substantive assessments of reliability to newly established, non-traditional exceptions. What kinds of exceptions are these?

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