reliability test in Virginia

2025“Courts have developed two tests for evaluating whether good cause exists for the admission of hearsay evidence in probation revocation hearings—the reliability test and the balancing test.” Henderson v. Commonwealth, 59 Va. App. 641, 649 (2012) (en banc), aff’d, 285 Va. 318 (2013). 3 Subject to the provisions of Code § 19.2-306.1, discussed below. -7- “Under the balancing test, a court weighs a defendant’s ‘interest in confronting a particular witness against the government’s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement.’” Id. at

2012Under the reliability test, a court “allows the admission of hearsay evidence without a showing of cause for the declarant’s absence if the evidence is sufficiently reliable.” Curtis v. Chester, 626 F.3d 540, 545 (10th Cir.2010).

2009Charity v. Commonwealth, 24 Va. App. 258, 262-63 , 482 S.E.2d 59, 61 (1997).

2009Charity v. Commonwealth, 24 Va. App. 258, 262-63 , 482 S.E.2d 59, 61 (1997).

2004Moreover, the Supreme Court rejected any suggestion that a report of illegal conduct justifies a stop and frisk: “[t]he mere fact that a tip, if true, would describe illegal activity does not mean that the police may make a Terry stop without meeting the reliability requirement.” 529 U.S. at 273 n. *.

2003A footnote in J.L. notes that the "mere fact that a tip, if true, would describe illegal activity does not mean that the police may make a Terry stop without meeting the reliability requirement.” J.L., 529 U.S. at 273 n. *, 120 S.Ct. at 1380 n. *.

2025“Courts have developed two tests for evaluating whether good cause exists for the admission of hearsay evidence in probation revocation hearings—the reliability test and the balancing test.” Henderson v. Commonwealth, 59 Va. App. 641, 649 (2012) (en banc), aff’d, 285 Va. 318 (2013). 3 Subject to the provisions of Code § 19.2-306.1, discussed below. -7- “Under the balancing test, a court weighs a defendant’s ‘interest in confronting a particular witness against the government’s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement.’” Id. at

2025“Courts have developed two tests for evaluating whether good cause exists for the admission of hearsay evidence in probation revocation hearings—the reliability test and the balancing test.” Henderson v. Commonwealth, 59 Va. App. 641, 649 (2012) (en banc), aff’d, 285 Va. 318 (2013). 3 Subject to the provisions of Code § 19.2-306.1, discussed below. -7- “Under the balancing test, a court weighs a defendant’s ‘interest in confronting a particular witness against the government’s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement.’” Id. at

2025“Courts have developed two tests for evaluating whether good cause exists for the admission of hearsay evidence in probation revocation hearings—the reliability test and the balancing test.” Henderson v. Commonwealth, 59 Va. App. 641, 649 (2012) (en banc), aff’d, 285 Va. 318 (2013). 3 Subject to the provisions of Code § 19.2-306.1, discussed below. -7- “Under the balancing test, a court weighs a defendant’s ‘interest in confronting a particular witness against the government’s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement.’” Id. at

2015I write separately to reiterate my position that a reliability test to establish “good cause” for denying the right of confrontation in a probation violation hearing is constitutionally problematic in the wake of Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), and its progeny, and that the courts of the Commonwealth should adopt a test that is more consistent with the current jurisprudence of the Confrontation Clause of the Sixth Amendment to determine when “good cause” exists for excusing the prosecution from producing probation violation witnesses for cross-exa

2012Reliable evidence under this test has also been described as evidence having "substantial guarantees of trustworthiness." Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984).

2012Reliable evidence under this test has also been described as evidence having “substantial guarantees of trustworthiness.” Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984).

2012Enunciating the reliability standard, the court stated that hearsay evidence could be relied upon where it possessed “sufficient indicia of reliability under the circumstances at hand to protect the prisoner’s due process rights.” Id. at 129 .

2012On the other hand, under the reliability test “the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness,” and “the substantial trustworthiness test implicitly incorporates good cause into its calculus.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692 ; Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); Hampton v. State, 203 P.3d 179, 184-85 (Okla.Crim.App.2009).

2012Another case demonstrating application of the reliability standard is United States v. Kelley, 446 F.3d 688 (7th Cir.2006).

2012Applying the reliability standard, the court affirmed, holding the victims’ hearsay “bore substantial indicia of reliability” since “[t]he physical evidence and the officer’s personal observations and investigation corroborated the [victims’] accusations.” Id.

2012On the other hand, under the reliability test “the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness,” and “the substantial trustworthiness test implicitly incorporates good cause into its calculus.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692 ; Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); Hampton v. State, 203 P.3d 179, 184-85 (Okla.Crim.App.2009).

2012The reliability test, on the other hand, can be satisfied through the testimony itself if the testimony is inherently reliable and only “implicitly incorporates good cause into its calculus.” Reyes, 868 N.E.2d at 441 (citations omitted).

2012While it is arguable that Virginia has adopted the reliability test, see, e.g., Turner v. Commonwealth, 278 Va. 739, 742 , 685 S.E.2d 665, 667 (2009); Dickens, 52 Va.App. at 423 , 663 S.E.2d at 553 , both cases dealt with documentary evidence and not, as here, with testimony.

2012While it is arguable that Virginia has adopted the reliability test, see, e.g., Turner v. Commonwealth, 278 Va. 739, 742 , 685 S.E.2d 665, 667 (2009); Dickens, 52 Va.App. at 423 , 663 S.E.2d at 553 , both cases dealt with documentary evidence and not, as here, with testimony.

2012On the other hand, under the reliability test "the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness," and "the substantial trustworthiness test implicitly incorporates good cause into its calculus." Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692 ; Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); Hampton v. State, 203 P.3d 179, 184-85 (Okla.Crim.App. 2009).

2012On the other hand, under the reliability test “the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness,” and “the substantial trustworthiness test implicitly incorporates good cause into its calculus.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692 ; Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); Hampton v. State, 203 P.3d 179, 184-85 (Okla.Crim.App.2009).

2006See Townes v. Commonwealth, 234 Va. 307, 331 , 362 S.E.2d 650, 663-64 (1987), cert. denied, 485 U.S. 971 (1988); Smallwood v. Commonwealth, 14 Va. App. 527, 530 , 418 S.E.2d 567, 568 (1992).

2006See Townes v. Commonwealth, 234 Va. 307, 331 , 362 S.E.2d 650, 663-64 (1987), cert. denied, 485 U.S. 971 (1988); Smallwood v. Commonwealth, 14 Va. App. 527, 530 , 418 S.E.2d 567, 568 (1992).

2005See Snider, 26 Va.App. at 731 , 496 S.E.2d at 665 ; Hudson v. Commonwealth, 21 Va.App. 184, 186 , 462 S.E.2d 913, 914 (1995); Shoemaker v. Commonwealth, 18 Va.App. 61, 64 , 441 S.E.2d 354, 356 (1994); Kemp v. Commonwealth, 16 Va.App. 360, 365-66 , 429 S.E.2d 875, 878-79 (1993).

2005See Snider, 26 Va.App. at 731 , 496 S.E.2d at 665 ; Hudson v. Commonwealth, 21 Va.App. 184, 186 , 462 S.E.2d 913, 914 (1995); Shoemaker v. Commonwealth, 18 Va.App. 61, 64 , 441 S.E.2d 354, 356 (1994); Kemp v. Commonwealth, 16 Va.App. 360, 365-66 , 429 S.E.2d 875, 878-79 (1993).

2009In determining the sufficiency of the evidence to support a conviction where a witness’ identification is challenged, we apply the reliability factors established in Neil v. Biggers, 409 U.S. 188 (1972), as significant circumstances that may be considered along with other evidence.

2008In determining the sufficiency of the evidence to support a conviction where a witness’ identification is challenged, we look to the reliability factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), as significant circumstances that may be considered along with other evidence.

2011While not explicitly stating which test the circuit courts must apply in these situations, this Court, in dicta, implicitly approved the reliability test in Dickens when we noted, "the United States Court of Appeals for the Fourth Circuit has held that hearsay evidence is admissible in probation revocation hearings if it is sufficiently reliable." Id. at 423 , 663 S.E.2d at 553 (citing United States v. McCallum, 677 F.2d 1024 (4th Cir.1982)); [10] see also Turner v. Commonwealth, 278 Va. 739, 742 , 685 S.E.2d 665, 667 (2009) ("Hearsay evidence has been held admissible in federal probation and

2011While not explicitly stating which test the circuit courts must apply in these situations, this Court, in dicta, implicitly approved the reliability test in Dickens when we noted, “the United States Court of Appeals for the Fourth Circuit has held that hearsay evidence is admissible in probation revocation hearings if it is sufficiently reliable.” Id. at 423 , 663 S.E.2d at 553 (citing United States v. McCallum, 677 F.2d 1024 (4th Cir.1982)); 10 see also Turner v. Commonwealth, 278 Va. 739, 742 , 685 S.E.2d 665, 667 (2009) (“Hearsay evidence has been held admissible in federal probation and pa

2023See Code § 18.2-268.9(B)(i). -8- Again, “substantial compliance is sufficient for the admission of the test results.” Henry v. Commonwealth, 44 Va. App. 702, 708 (2005); see also Shelton v. Commonwealth, 45 Va. App. 175, 180 (2005) (“We have even applied substantial compliance in cases where the statutory violation may have affected the reliability of the test results.”); Rollins v. Commonwealth, 37 Va. App. 73, 80 (2001) (“[T]he legislature did not intend that strict compliance with the breath- test methods approved by [DFS] be a prerequisite for the admission into evidence of the results of

2023See Code § 18.2-268.9(B)(i). -8- Again, “substantial compliance is sufficient for the admission of the test results.” Henry v. Commonwealth, 44 Va. App. 702, 708 (2005); see also Shelton v. Commonwealth, 45 Va. App. 175, 180 (2005) (“We have even applied substantial compliance in cases where the statutory violation may have affected the reliability of the test results.”); Rollins v. Commonwealth, 37 Va. App. 73, 80 (2001) (“[T]he legislature did not intend that strict compliance with the breath- test methods approved by [DFS] be a prerequisite for the admission into evidence of the results of

2023See Code § 18.2-268.9(B)(i). -8- Again, “substantial compliance is sufficient for the admission of the test results.” Henry v. Commonwealth, 44 Va. App. 702, 708 (2005); see also Shelton v. Commonwealth, 45 Va. App. 175, 180 (2005) (“We have even applied substantial compliance in cases where the statutory violation may have affected the reliability of the test results.”); Rollins v. Commonwealth, 37 Va. App. 73, 80 (2001) (“[T]he legislature did not intend that strict compliance with the breath- test methods approved by [DFS] be a prerequisite for the admission into evidence of the results of

2022Giles v. California, 554 U.S. 353, 358-59 (2008) (citations omitted). - 11 - Crawford, there is no place for a reliability analysis as an end run around the Confrontation Clause.6 Hodges v. Commonwealth, 272 Va. 418, 434 (2006); cf. Maryland v. Craig, 497 U.S. 836, 845-47 (1990).

2022Giles v. California, 554 U.S. 353, 358-59 (2008) (citations omitted). - 11 - Crawford, there is no place for a reliability analysis as an end run around the Confrontation Clause.6 Hodges v. Commonwealth, 272 Va. 418, 434 (2006); cf. Maryland v. Craig, 497 U.S. 836, 845-47 (1990).

2022Far from clarifying whether due process concerns are implicated by an initial in-court identification, “[t]he courts are divided [after Perry as to] whether a reliability analysis is required to admit an in-court identification.” United States v. Shumpert, 889 F.3d 488, 491 (8th Cir. 2018) (collecting cases).

2022See Johnson v. Commonwealth, 296 Va. 266 , 275-76 (2018) (citing Black v. Romano, 471 U.S. 606, 610, 612 (1985); Henderson v. Commonwealth, 285 Va. 318 , 327-28 (2013)). 7 Tyler has not raised a challenge to his attorney’s effectiveness, and even if he had done so we could not address it here.

2022Giles v. California, 554 U.S. 353, 358-59 (2008) (citations omitted). - 11 - Crawford, there is no place for a reliability analysis as an end run around the Confrontation Clause.6 Hodges v. Commonwealth, 272 Va. 418, 434 (2006); cf. Maryland v. Craig, 497 U.S. 836, 845-47 (1990).