firmly rooted exception in Virginia

1999Furthermore, the declaration [by the unavailable witness] must be shown to be reliable. 2 Raia v. Commonwealth, 23 Va. App. 546, 550 , 478 S.E.2d 328, 330 (1996) (citations omitted). "'[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the [Sixth Amendment] confrontation clause is satisfied.'" Id. at 551 , 478 S.E.2d at 330 (citation omitted).

1999Furthermore, the declaration [by the unavailable witness] must be shown to be reliable. 2 Raia v. Commonwealth, 23 Va. App. 546, 550 , 478 S.E.2d 328, 330 (1996) (citations omitted). "'[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the [Sixth Amendment] confrontation clause is satisfied.'" Id. at 551 , 478 S.E.2d at 330 (citation omitted).

2012I note that in Lilly , the United States Supreme Court reversed both the Virginia Supreme Court and the previous precedent of this Court in holding that accomplice statements admitted under the hearsay exception for statements made against penal interest “are not within a firmly rooted exception to the hearsay rule.” Id. at 134 , 119 S.Ct. at 1899 .

2012I note that in Lilly , the United States Supreme Court reversed both the Virginia Supreme Court and the previous precedent of this Court in holding that accomplice statements admitted under the hearsay exception for statements made against penal interest “are not within a firmly rooted exception to the hearsay rule.” Id. at 134 , 119 S.Ct. at 1899 .

2013Prior to Crawford, the United States Supreme Court “took the view that the Confrontation Clause did not bar the admission of an out-of-court statement that fell within a firmly rooted exception to the hearsay rule.” Williams , — U.S. at -, 132 S.Ct. at 2232 (citing Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980)).

2013Prior to Crawford, the United States Supreme Court “took the view that the Confrontation Clause did not bar the admission of an out-of-court statement that fell within a firmly rooted exception to the hearsay rule.” Williams , — U.S. at -, 132 S.Ct. at 2232 (citing Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980)).

2006Parker v. Commonwealth, 41 Va.App. 643, 654 , 587 S.E.2d 749, 754 (2003); see also Hodges v. Commonwealth, 45 Va. App. 735 , 761-62 & n. 9, 613 S.E.2d 834 , 846 & n. 9 (2005) (after noting that Crawford was inapplicable because the statements at issue were not “testimonial,” the panel held that the trial court did not err in admitting the challenged statements because they fell within a firmly-rooted exception to the hearsay rule).

2006Parker v. Commonwealth, 41 Va.App. 643, 654 , 587 S.E.2d 749, 754 (2003); see also Hodges v. Commonwealth, 45 Va. App. 735 , 761-62 & n. 9, 613 S.E.2d 834 , 846 & n. 9 (2005) (after noting that Crawford was inapplicable because the statements at issue were not “testimonial,” the panel held that the trial court did not err in admitting the challenged statements because they fell within a firmly-rooted exception to the hearsay rule).

1999Thus, "'"once it has been established that a third-party confession has been made, the crucial issue is whether the 2 Appellants challenge only the court’s findings that Baggett was entitled to assert his Fifth Amendment privilege, rendering him unavailable, and that his statement was reliable. - 4 - content of the confession is trustworthy."'" Randolph, 24 Va. App. at 356 , 482 S.E.2d at 106 (citations omitted).

1999Thus, "'"once it has been established that a third-party confession has been made, the crucial issue is whether the 2 Appellants challenge only the court’s findings that Baggett was entitled to assert his Fifth Amendment privilege, rendering him unavailable, and that his statement was reliable. - 4 - content of the confession is trustworthy."'" Randolph, 24 Va. App. at 356 , 482 S.E.2d at 106 (citations omitted).

2020Sufficiency of Corroborating Evidence As for the sufficiency of the corroborating evidence of adultery, we begin with the firmly rooted principle of appellate review that “a factual determination cannot be reversed on appeal unless ‘plainly wrong or without evidence to support it.’” Congdon v. Congdon, 40 Va. App. 255, 261 (2003) (quoting Code § 8.01-680).

2020As in the case before us, “[w]hen a trial court hears evidence at an ore tenus hearing, its factual findings are entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support them.” D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335 (2005).

2011Balancing Test Alternatively, under the balancing test, the court "weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness," and the "State is required to show good cause for denying confrontation." Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2011Balancing Test Alternatively, under the balancing test, the court “weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness,” and the “State is required to show good cause for denying confrontation.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir.2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2011Balancing Test Alternatively, under the balancing test, the court "weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness," and the "State is required to show good cause for denying confrontation." Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2011Balancing Test Alternatively, under the balancing test, the court “weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness,” and the “State is required to show good cause for denying confrontation.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir.2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2011Balancing Test Alternatively, under the balancing test, the court "weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness," and the "State is required to show good cause for denying confrontation." Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2011Balancing Test Alternatively, under the balancing test, the court “weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness,” and the “State is required to show good cause for denying confrontation.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir.2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2011Balancing Test Alternatively, under the balancing test, the court "weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness," and the "State is required to show good cause for denying confrontation." Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2011Balancing Test Alternatively, under the balancing test, the court “weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness,” and the “State is required to show good cause for denying confrontation.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45 ; United States v. Williams, 443 F.3d 35, 46 (2d Cir.2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); Martin, 382 F.3d at 846 ; Comito, 177 F.3d at 1171-72.

2006Parker v. Commonwealth, 41 Va.App. 643, 654 , 587 S.E.2d 749, 754 (2003); see also Hodges v. Commonwealth, 45 Va. App. 735 , 761-62 & n. 9, 613 S.E.2d 834 , 846 & n. 9 (2005) (after noting that Crawford was inapplicable because the statements at issue were not “testimonial,” the panel held that the trial court did not err in admitting the challenged statements because they fell within a firmly-rooted exception to the hearsay rule).

2006Parker v. Commonwealth, 41 Va.App. 643, 654 , 587 S.E.2d 749, 754 (2003); see also Hodges v. Commonwealth, 45 Va. App. 735 , 761-62 & n. 9, 613 S.E.2d 834 , 846 & n. 9 (2005) (after noting that Crawford was inapplicable because the statements at issue were not “testimonial,” the panel held that the trial court did not err in admitting the challenged statements because they fell within a firmly-rooted exception to the hearsay rule).

2003“The admissibility of a *336 statement made by an unavailable witness that is against his or her penal interest ‘is a firmly rooted exception to the hearsay rule in Virginia.’ ” Rankins, 31 Va.App. at 361-62 , 523 S.E.2d at 528 (citing Lilly v. Commonwealth, 255 Va. 558, 575 , 499 S.E.2d 522, 534 (1998), rev’d on other grounds, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999)).

2003“The admissibility of a *336 statement made by an unavailable witness that is against his or her penal interest ‘is a firmly rooted exception to the hearsay rule in Virginia.’ ” Rankins, 31 Va.App. at 361-62 , 523 S.E.2d at 528 (citing Lilly v. Commonwealth, 255 Va. 558, 575 , 499 S.E.2d 522, 534 (1998), rev’d on other grounds, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999)).

2003See Jones v. Commonwealth, 22 Va.App. 46, 50-51 , 467 S.E.2d 841, 843 (1996); Doan v. Commonwealth, 15 Va.App. 87, 100 , 422 S.E.2d 398, 405 (1992). “[T]he focus of *335 the inquiry is not the unavailability of the witness but the unavailability of the testimony.” Jones, 22 Va.App. at 52 , 467 S.E.2d at 844 .

2003See Jones v. Commonwealth, 22 Va.App. 46, 50-51 , 467 S.E.2d 841, 843 (1996); Doan v. Commonwealth, 15 Va.App. 87, 100 , 422 S.E.2d 398, 405 (1992). “[T]he focus of *335 the inquiry is not the unavailability of the witness but the unavailability of the testimony.” Jones, 22 Va.App. at 52 , 467 S.E.2d at 844 .

2003The challenged statements in appellant’s medical records contain two potential levels of hearsay — first, appellant’s statements to the various hospital staff members and, second, the staff members’ recordings of those statements in the medical records. “[Hjearsay evidence which contains hearsay *650 should not be subject to an automatic rule of exclusion.” West v. Commonwealth, 12 Va.App. 906, 909 , 407 S.E.2d 22, 24 (1991).

2003The challenged statements in appellant’s medical records contain two potential levels of hearsay — first, appellant’s statements to the various hospital staff members and, second, the staff members’ recordings of those statements in the medical records. “[Hjearsay evidence which contains hearsay *650 should not be subject to an automatic rule of exclusion.” West v. Commonwealth, 12 Va.App. 906, 909 , 407 S.E.2d 22, 24 (1991).

2003“The admissibility of a *336 statement made by an unavailable witness that is against his or her penal interest ‘is a firmly rooted exception to the hearsay rule in Virginia.’ ” Rankins, 31 Va.App. at 361-62 , 523 S.E.2d at 528 (citing Lilly v. Commonwealth, 255 Va. 558, 575 , 499 S.E.2d 522, 534 (1998), rev’d on other grounds, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999)).

2003“The admissibility of a *336 statement made by an unavailable witness that is against his or her penal interest ‘is a firmly rooted exception to the hearsay rule in Virginia.’ ” Rankins, 31 Va.App. at 361-62 , 523 S.E.2d at 528 (citing Lilly v. Commonwealth, 255 Va. 558, 575 , 499 S.E.2d 522, 534 (1998), rev’d on other grounds, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999)).

2003See Jones v. Commonwealth, 22 Va.App. 46, 50-51 , 467 S.E.2d 841, 843 (1996); Doan v. Commonwealth, 15 Va.App. 87, 100 , 422 S.E.2d 398, 405 (1992). “[T]he focus of *335 the inquiry is not the unavailability of the witness but the unavailability of the testimony.” Jones, 22 Va.App. at 52 , 467 S.E.2d at 844 .

2003See Jones v. Commonwealth, 22 Va.App. 46, 50-51 , 467 S.E.2d 841, 843 (1996); Doan v. Commonwealth, 15 Va.App. 87, 100 , 422 S.E.2d 398, 405 (1992). “[T]he focus of *335 the inquiry is not the unavailability of the witness but the unavailability of the testimony.” Jones, 22 Va.App. at 52 , 467 S.E.2d at 844 .

2000Id. at 136 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)).

1998Dutton v. Evans, 400 U.S. 74, 89 (1970). [W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.

1996See Chandler v. Commonwealth, 249 Va. 270, 279 , 455 S.E.2d 219,224-25 (1995). [W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. *552 To exclude such probative statements under the strictures of the Confrontation Clause would be the height of wrongheadedness, given that the Confrontation Clause has as a basic purpose the promotion of the “ ‘integrity of the fact-finding process.’ ” ... [A] statement that qualifies for admission under a “firmly rooted” hearsay exception is so tr

1996See Chandler v. Commonwealth, 249 Va. 270, 279 , 455 S.E.2d 219,224-25 (1995). [W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. *552 To exclude such probative statements under the strictures of the Confrontation Clause would be the height of wrongheadedness, given that the Confrontation Clause has as a basic purpose the promotion of the “ ‘integrity of the fact-finding process.’ ” ... [A] statement that qualifies for admission under a “firmly rooted” hearsay exception is so tr