The Roberts Reliability Test

The Roberts Reliability Test

The text of the Confrontation Clause does not say which out-of-court statements of absent declarants it keeps from the jury, and the previous section showed that a literal reading would sweep away nearly every hearsay exception. From 1980 until 2004, the Supreme Court's principal answer came from Ohio v. Roberts, which sorted absent-declarant hearsay into statements the Clause tolerated and statements it did not.¹ This section teaches that framework as history. It no longer controls for testimonial statements, because Crawford v. Washington rejected its reliability approach and the Court later overruled it entirely.² Knowing what the framework required shows exactly what Crawford displaced. It also explains why a prosecutor's argument that a testimonial statement is reliable no longer answers a confrontation objection.³

The opinion described the Clause as restricting hearsay in two separate ways.⁴ The first was a rule of necessity: in the usual case, including a case where the defendant had already cross-examined the declarant on an earlier occasion, the prosecution had to produce the declarant or demonstrate that the declarant was unavailable.⁵ The reason lies in the Framers' preference for face-to-face accusation. A live witness supplies the oath, the cross-examination, and the demeanor evidence that the Clause is built around, so an out-of-court version is a substitute that a prosecutor should reach for only when the original cannot be had. The rule also removes a temptation. A prosecutor whose witness might fare badly under cross-examination would otherwise find it easy to offer the paper version and keep the witness off the stand.

Unavailability meant more than absence from the courtroom. The proponent had to show an inability to procure the declarant by process or by other reasonable means.⁶ In Roberts the State met that burden by issuing five subpoenas to the witness at her parents' home, the last two asking her mother to telephone the prosecutor if the witness could not be located.⁷ A declarant whom the State simply chose not to call, with no showing of unavailability, could not have a statement used against the accused, however trustworthy the statement might be. The necessity rule also had an edge, since the Court later held that unavailability need not be shown for a co-conspirator's out-of-court declaration, which is why the rule was stated only for the usual case.⁸

The second aspect operated once the declarant was shown to be unavailable. The statement could then be admitted only if it bore adequate "indicia of reliability."⁹ Reliability could be inferred without more when the evidence fell within a firmly rooted hearsay exception, and a statement outside such an exception had to be excluded unless the prosecution showed particularized guarantees of trustworthiness.¹⁰ The inference for firmly rooted exceptions rested on a shared lineage: hearsay rules and the Confrontation Clause were said to protect similar values and to stem from the same roots, so a class of hearsay that courts had accepted for generations had already been judged trustworthy.¹¹ That shortcut also gave trial courts certainty in the daily conduct of criminal trials, and it respected each jurisdiction's interest in developing its own evidence rules.¹² The second pathway tracked the language of Federal Rule of Evidence 807(a)(1), which asks for equivalent circumstantial guarantees of trustworthiness, so evidence properly admitted under the residual exception also satisfied it.¹³

The two pathways produced different results on different facts. In Bourjaily v. United States, the prosecution played a recorded telephone call in which Angelo Lonardo, who did not testify, described a cocaine deal with a "friend" who turned out to be the defendant. The Court held that the co-conspirator exception is firmly rooted, so the Clause required no independent inquiry into the reliability of the statement.¹⁴ The contrasting pole is a statement that fits no firmly rooted exception. In Lilly v. Virginia, a case without a majority opinion, the justices indicated that an accomplice's custodial statement to police, made against penal interest and incriminating another person, is not within a firmly rooted exception and is presumptively unreliable when offered against that other person.¹⁵

The facts of Roberts itself show both prongs working together. Herschel Roberts was tried for possessing stolen credit cards and checks that belonged to the parents of Anita Isaacs. At his preliminary hearing, the defense called Isaacs, and she denied that she had given him the items without telling him she lacked permission.¹⁶ A year later the State could not find her to testify at trial, and the trial court admitted her preliminary-hearing testimony. The Supreme Court upheld that ruling. The five subpoenas established unavailability, and the testimony bore adequate indicia of reliability because it was given under oath, before a judicial tribunal, with the defense able to cross-examine and the witness having every incentive to tell the truth.¹⁷

That result would survive today. Prior confronted testimony of a declarant who is unavailable at the current trial remains a recognized way to satisfy the Clause, and Crawford endorsed it.¹⁸ What changed is the method for reaching the result. The old question was whether a judge found the statement reliable, and the modern question is whether the defendant had a prior opportunity to cross-examine. Students lose points on testimonial hearsay when they treat a firmly rooted exception as if it settled the confrontation question, because the reliability inference no longer carries a testimonial statement past the Clause.¹⁹

The framework's close tie between confrontation and hearsay law explains both its appeal and its fall. Because a statement within a long-accepted exception passed the reliability prong automatically, satisfying the Clause became largely a matter of fitting the statement into the hearsay rules.²⁰ That made an evidence rule the working measure of a constitutional right, and it was hard to be sure that every statement within every exception was actually reliable.²¹ The framework also asked a judge to weigh trustworthiness, while the Clause itself names a particular method of testing evidence, which is cross-examination. Crawford severed the link between the Clause and hearsay law for testimonial statements, and the next sections show how.