Ohio v. Roberts is Fully Dead

Davis v. Washington (2006)

The U.S. Supreme Court’s latest decision construing the Confrontation Clause puts completely to rest the confrontation doctrine the Court established in 1980 inOhio v. Roberts. This is so regardless of the kind of out-of-court statement the prosecution offers in evidence. The landmark 2004 decision in Crawford v. Washington had rejected Ohio v. Roberts when “testimonial” statements were offered but had not said whether that doctrine could still govern the admissibility of other statements.

To see that Ohio v. Roberts is no longer the law applicable to any situation, one must read the latest decision, Davis v. Washington, very carefully. Professor James J. Duane has done so. His findings, published in Criminal Justice, a magazine of the American Bar Association, are here.

Confrontation issues often arise in child abuse prosecutions because some children are old enough to say things that seem to indicate they have been abused, but not old enough to meet legal standards to testify in court.