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

Jules Epstein, Widener Law School, Delaware

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.