Recent judicial and scholarly treatment of the Confrontation Clause pays remarkably little attention to confrontation's purposes. This would not be particularly problematic if the confrontation right reduced to a mechanical rule. If, for example, the clause meant simply that out-of-court statements are inadmissible at trial whenever the declarant is not on the stand and subject to cross-examination, courts could easily administer the right without knowing anything of its purposes. But the clause has never been reduced to such a clean-cut categorical, and courts administering the right have generally had to balance competing interests rather than adjudicate by formula.

The problem with interest balancing is that it risks being unprincipled, and that problem has plagued the U.S. Supreme Court's confrontation jurisprudence. The bulk of that jurisprudence owes to the twenty-four-year reign of Ohio v. Roberts, under which a hearsay statement could be introduced at trial whenever the declarant was unavailable and the statement had "adequate indicia of reliability." Because there is no principled way to determine whether a statement has adequate indicia of reliability, the Roberts test produced inconsistent results...

 

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