firmly rooted hearsay exception in Delaware

2026But to borrow from Justice Scalia’s dissent in Craig, for good or bad, Article I, Section 7 of the Delaware Constitution requires face-to-face confrontation, and we are not at liberty to ignore it. 75 Under Ohio v. Roberts, 448 U.S. 56, 66 (1980) out-of-court statements could survive a Confrontation Clause challenge if they fell under “a firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” In Crawford v. Washington, 541 U.S. 36 (2004), Ohio v. Roberts was overruled.

2001To satisfy the Confrontation Clause, it must be demonstrated that: “(1) ‘the evidence falls within *539 a firmly rooted hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.” Lilly v. Virginia, 527 U.S. 116, 125 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999) (plurality opinion) (quoting Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); see also Capano v. State, Del.Supr., 781 A.2d 556, 626-27 , (2001).

2001To satisfy the Confrontation Clause, it must be demonstrated that: “(1) ‘the evidence falls within *539 a firmly rooted hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.” Lilly v. Virginia, 527 U.S. 116, 125 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999) (plurality opinion) (quoting Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); see also Capano v. State, Del.Supr., 781 A.2d 556, 626-27 , (2001).

2001To satisfy the Confrontation Clause, it must be demonstrated that: “(1) ‘the evidence falls within *539 a firmly rooted hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.” Lilly v. Virginia, 527 U.S. 116, 125 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999) (plurality opinion) (quoting Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); see also Capano v. State, Del.Supr., 781 A.2d 556, 626-27 , (2001).

2001To satisfy the Confrontation Clause, it must be demonstrated that: “(1) ‘the evidence falls within *539 a firmly rooted hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.” Lilly v. Virginia, 527 U.S. 116, 125 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999) (plurality opinion) (quoting Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)); see also Capano v. State, Del.Supr., 781 A.2d 556, 626-27 , (2001).

2001See Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) (“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”); see also Lilly v. Virginia, 527 U.S. 116, 126 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999) (" '[A]dmission of virtually any evidence within [a firmly rooted exception] comports with the substance of the con *553 stitutional protection.” ’) (quotation marks and citations omitted); Capano v. State, Del.Supr., 781 A.2d 556, 626 (2001). 31 .

2001See Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) ("Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”); see also Lilly, 527 U.S. at 126 , 119 S.Ct. 1887 (" ‘[A]dmission of virtually any evidence within [a firmly rooted exception] comports with the substance of the constitutional protection.’ ") (quoting Wright, 497 U.S. at 817 , 110 S.Ct. 3139 and Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 ) (internal quotation marks omitted). 15 .

2001See Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) ("Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”); see also Lilly, 527 U.S. at 126 , 119 S.Ct. 1887 (" ‘[A]dmission of virtually any evidence within [a firmly rooted exception] comports with the substance of the constitutional protection.’ ") (quoting Wright, 497 U.S. at 817 , 110 S.Ct. 3139 and Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 ) (internal quotation marks omitted). 15 .

2001Moreover, for Sixth Amendment purposes, there is no general requirement that the prosecutor demonstrate the unavailability of the declarant, see United States v. Inadi, 475 U.S. 387, 392 , 106 S.Ct. 1121 , 89 L.Ed.2d 390 (1986), except where “the challenged out-of-court statements were made in the course of a prior judicial proceeding.” White v. Illinois, 502 U.S. 346, 354 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992). 6 Because 11 Del.C. § 3513 mandates a finding that the out-of-court statements “possess particularized guarantees of trustworthiness” before such statements may be admitted at trial,

2001Moreover, for Sixth Amendment purposes, there is no general requirement that the prosecutor demonstrate the unavailability of the declarant, see United States v. Inadi, 475 U.S. 387, 392 , 106 S.Ct. 1121 , 89 L.Ed.2d 390 (1986), except where “the challenged out-of-court statements were made in the course of a prior judicial proceeding.” White v. Illinois, 502 U.S. 346, 354 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992). 6 Because 11 Del.C. § 3513 mandates a finding that the out-of-court statements “possess particularized guarantees of trustworthiness” before such statements may be admitted at trial,

2001In Gannon v. State, Del.Supr., 704 A.2d 272 (1998), we expressly left for another day the interpretation to be accorded the phrase “face to face.” After examining the evolution of the Federal Confrontation Clause and the history of this State’s Confrontation Clause, we now construe the meaning of the phrase “face to face,” in the context of McGriff s argument.

2001See Gannon, 704 A.2d at 275-77 (holding that a statement admissible under the excited utterance exception does not violate the defendant's confrontation rights under the Delaware or federal constitution); Williamson v. State, Del.Supr., 707 A.2d 350, 355-56 (1998) (finding that recordings of 911 calls admitted under the present sense impression and excited utterance exceptions were admitted under "firmly rooted exceptions”) (citing White v. Illinois, 502 U.S. 346, 355-56 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992)); see also Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 ("In White , for instance, we h

2001See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (‘‘[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”); see also Capano, slip op. at 81-94. 32 .

2001See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (‘‘[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”); see also Capano, slip op. at 81-94. 32 .

2001See Gannon, 704 A.2d at 275-77 (holding that a statement admissible under the excited utterance exception does not violate the defendant's confrontation rights under the Delaware or federal constitution); Williamson v. State, Del.Supr., 707 A.2d 350, 355-56 (1998) (finding that recordings of 911 calls admitted under the present sense impression and excited utterance exceptions were admitted under "firmly rooted exceptions”) (citing White v. Illinois, 502 U.S. 346, 355-56 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992)); see also Roberts, 448 U.S. at 66 , 100 S.Ct. 2531 ("In White , for instance, we h

1997Id.; see also Mattox v. United States, 156 U.S. 237, 243 , 15 S.Ct. 337, 339 , 39 L.Ed. 409 (1895) (finding the use of a dying declaration did not abridge the constitutional rights of the defendant).

1997Id.; see also Mattox v. United States, 156 U.S. 237, 243 , 15 S.Ct. 337, 339 , 39 L.Ed. 409 (1895) (finding the use of a dying declaration did not abridge the constitutional rights of the defendant).