Roberts test in Hawaii

1999As regards the first part of the Roberts test, we have “remained resolute that[,] under the confrontation clause of the Hawai'i Constitution, a showing of the declarant’s unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants.” Lee, 83 Hawai'i at 276 , 925 P.2d at 1100 (quoting Apilando, 79 Hawai'i at 133 , 900 P.2d at 140 (quoting McGriff, 76 Hawai'i at 156 , 871 P.2d at 790 )) (brackets in original).

1999As regards the first part of the Roberts test, we have “remained resolute that[,] under the confrontation clause of the Hawai'i Constitution, a showing of the declarant’s unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants.” Lee, 83 Hawai'i at 276 , 925 P.2d at 1100 (quoting Apilando, 79 Hawai'i at 133 , 900 P.2d at 140 (quoting McGriff, 76 Hawai'i at 156 , 871 P.2d at 790 )) (brackets in original).

2010However, Fields established that a "fair reading of Sua indicates that this court rejected Sua's confrontation clause argument on two independent and dispositive, but coequal grounds: (1) both prongs of the Roberts test were met; and (2) Sua had a sufficient opportunity for cross-examination.” Fields, 115 Hawai'i at 526 , 168 P.3d at 978 (citing Sua, 92 Hawai'i at 75 , 987 P.2d at 973 ).

2010However, Fields established that a "fair reading of Sua indicates that this court rejected Sua's confrontation clause argument on two independent and dispositive, but coequal grounds: (1) both prongs of the Roberts test were met; and (2) Sua had a sufficient opportunity for cross-examination.” Fields, 115 Hawai'i at 526 , 168 P.3d at 978 (citing Sua, 92 Hawai'i at 75 , 987 P.2d at 973 ).

2022App. 130, 138 , 828 P.2d 813, 818 (1992)) (emphasis added)); see also State v. Rodrigues, 7 Haw.

2022App. 130, 138 , 828 P.2d 813, 818 (1992)) (emphasis added)); see also State v. Rodrigues, 7 Haw.

2022However, this court rejected the same argument in State v. Choi, No. CAAP-XX-XXXXXXX, 2020 WL 419629 , at *2 (App. Jan. 27, 2020) (SDO), holding that the Roberts test applies "only when the challenged out-of-court statements were made in the course of a prior judicial proceeding" and that when hearsay qualifies for a "firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." (Citing State v. Ofa, 9 Haw.

2022However, this court rejected the same argument in State v. Choi, No. CAAP-XX-XXXXXXX, 2020 WL 419629 , at *2 (App. Jan. 27, 2020) (SDO), holding that the Roberts test applies "only when the challenged out-of-court statements were made in the course of a prior judicial proceeding" and that when hearsay qualifies for a "firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." (Citing State v. Ofa, 9 Haw.

1999Although present at trial, Gooman was “unavailable” with respect to the substance of his grand jury testimony because of his “loss of memory.” 14 State v. Apilando, 79 Hawai'i 128, 133-34 , 900 P.2d 135, 140-41 (1995) (emphasis in original) (citing Tsuruda v. Farm, 18 Haw. 434, 438 (1907)).

1999Although present at trial, Gooman was “unavailable” with respect to the substance of his grand jury testimony because of his “loss of memory.” 14 State v. Apilando, 79 Hawai'i 128, 133-34 , 900 P.2d 135, 140-41 (1995) (emphasis in original) (citing Tsuruda v. Farm, 18 Haw. 434, 438 (1907)).

2007The Roberts test "condition[ed] admissibility of all hearsay evidence on whether it [fell] under a `firmly rooted hearsay exception' or [bore] `particularized guarantees of trustworthiness.'" Crawford, 541 U.S. at 60 , 124 S.Ct. 1354 (citing Roberts, 448 U.S at 66, 100 S.Ct. 2531 ).

2007The Roberts test "condition[ed] admissibility of all hearsay evidence on whether it [fell] under a `firmly rooted hearsay exception' or [bore] `particularized guarantees of trustworthiness.'" Crawford, 541 U.S. at 60 , 124 S.Ct. 1354 (citing Roberts, 448 U.S at 66, 100 S.Ct. 2531 ).

2010However, Fields established that a "fair reading of Sua indicates that this court rejected Sua's confrontation clause argument on two independent and dispositive, but coequal grounds: (1) both prongs of the Roberts test were met; and (2) Sua had a sufficient opportunity for cross-examination.” Fields, 115 Hawai'i at 526 , 168 P.3d at 978 (citing Sua, 92 Hawai'i at 75 , 987 P.2d at 973 ).

2010However, Fields established that a "fair reading of Sua indicates that this court rejected Sua's confrontation clause argument on two independent and dispositive, but coequal grounds: (1) both prongs of the Roberts test were met; and (2) Sua had a sufficient opportunity for cross-examination.” Fields, 115 Hawai'i at 526 , 168 P.3d at 978 (citing Sua, 92 Hawai'i at 75 , 987 P.2d at 973 ).

2007Likewise, Sua II declared that, "[a]s regards the first part of the Roberts test, we have `remained resolute that, under the confrontation clause of the Hawai`i Constitution, a showing of the declarant's unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants.'" 92 Hawai`i at 71, 987 P.2d at 969. (quoting Lee , 83 Hawai`i at 276, 925 P.2d at 1100 (other citations and brackets omitted)).

2007Likewise, Sua II declared that, "[a]s regards the first part of the Roberts test, we have `remained resolute that, under the confrontation clause of the Hawai`i Constitution, a showing of the declarant's unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants.'" 92 Hawai`i at 71, 987 P.2d at 969. (quoting Lee , 83 Hawai`i at 276, 925 P.2d at 1100 (other citations and brackets omitted)).

1999As regards the first part of the Roberts test, we have “remained resolute that[,] under the confrontation clause of the Hawai'i Constitution, a showing of the declarant’s unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants.” Lee, 83 Hawai'i at 276 , 925 P.2d at 1100 (quoting Apilando, 79 Hawai'i at 133 , 900 P.2d at 140 (quoting McGriff, 76 Hawai'i at 156 , 871 P.2d at 790 )) (brackets in original).

1999As regards the first part of the Roberts test, we have “remained resolute that[,] under the confrontation clause of the Hawai'i Constitution, a showing of the declarant’s unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants.” Lee, 83 Hawai'i at 276 , 925 P.2d at 1100 (quoting Apilando, 79 Hawai'i at 133 , 900 P.2d at 140 (quoting McGriff, 76 Hawai'i at 156 , 871 P.2d at 790 )) (brackets in original).

2007Majority opinion at ___ - ___, 168 P.3d at 979 ; see Davis, ___ U.S. at ___, 126 S.Ct. at 2273-74 ("Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.") In adopting the Roberts' test in "nontestimonial situations," the majority preserves the unavailability paradigm as explained in Sua II, i.e., a witness is unavailable for confrontation purposes if the witness lacks memory of the hearsay statement.

2007Majority opinion at ___ - ___, 168 P.3d at 979 ; see Davis, ___ U.S. at ___, 126 S.Ct. at 2273-74 ("Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.") In adopting the Roberts' test in "nontestimonial situations," the majority preserves the unavailability paradigm as explained in Sua II, i.e., a witness is unavailable for confrontation purposes if the witness lacks memory of the hearsay statement.

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007Crawford leaves in place the Roberts approach to determining admissibility.") (Footnote omitted.); State v. Rivera, 268 Conn. 351 , 844 A.2d 191, 202 (2004) ("[B]ecause th[e] statement was nontestimonial in nature, application of the Roberts test remains appropriate."); United States v. Hendricks, 395 F.3d 173, 179 (3d Cir.2005) ("[U]nless a particular hearsay statement qualifies as `testimonial,' Crawford is inapplicable and Roberts still controls."); State v. Staten, 364 S.C. 7 , 610 S.E.2d 823, 836 (S.C.Ct.App.2005) ("Because nontestimonial hearsay is at issue here, we apply the reliability

2007See Medina v. State, 122 Nev. 346 , 143 P.3d 471, 474 (2006) (holding that a rape victim's statement to her neighbor, "Look at me.

2007See Medina v. State, 122 Nev. 346 , 143 P.3d 471, 474 (2006) (holding that a rape victim's statement to her neighbor, "Look at me.

2005Cf. State v. Moore, 82 Hawai'i 202, 222-24, 921 P.2d 122, 142-44 (1996) (adopting *141 the Roberts rule for purposes of the virtually identical confrontation clause contained in article I, section 14 of the Hawai'i Constitution); wi th State v. Sua, 92 Hawai'i 61, 70-76 , 987 P.2d 959, 968-74 (1999) (confirming Hawai'i’s adoption of the Roberts rule, but apparently applying the two prongs of the Roberts reliability rubric conjunctively rather than disjunctively, in order “to ensure the highest standard of protection of Sua’s constitutional right of confrontation” (footnote omitted)).

2005Cf. State v. Moore, 82 Hawai'i 202, 222-24, 921 P.2d 122, 142-44 (1996) (adopting *141 the Roberts rule for purposes of the virtually identical confrontation clause contained in article I, section 14 of the Hawai'i Constitution); wi th State v. Sua, 92 Hawai'i 61, 70-76 , 987 P.2d 959, 968-74 (1999) (confirming Hawai'i’s adoption of the Roberts rule, but apparently applying the two prongs of the Roberts reliability rubric conjunctively rather than disjunctively, in order “to ensure the highest standard of protection of Sua’s constitutional right of confrontation” (footnote omitted)).

1999See United States v. Clarke, 2 F.3d 81, 83-84 (4th Cir.1993), cert. denied, 510 U.S. 1166 [ 114 S.Ct. 1194 , 127 L.Ed.2d 544 ] (1994); Garner, 574 F.2d at 1144 .

1999See United States v. Clarke, 2 F.3d 81, 83-84 (4th Cir.1993), cert. denied, 510 U.S. 1166 [ 114 S.Ct. 1194 , 127 L.Ed.2d 544 ] (1994); Garner, 574 F.2d at 1144 .

1999See United States v. Clarke, 2 F.3d 81, 83-84 (4th Cir.1993), cert. denied, 510 U.S. 1166 [ 114 S.Ct. 1194 , 127 L.Ed.2d 544 ] (1994); Garner, 574 F.2d at 1144 .

1999See United States v. Clarke, 2 F.3d 81, 83-84 (4th Cir.1993), cert. denied, 510 U.S. 1166 [ 114 S.Ct. 1194 , 127 L.Ed.2d 544 ] (1994); Garner, 574 F.2d at 1144 .

1999See United States v. Clarke, 2 F.3d 81, 83-84 (4th Cir.1993), cert. denied, 510 U.S. 1166 [ 114 S.Ct. 1194 , 127 L.Ed.2d 544 ] (1994); Garner, 574 F.2d at 1144 .

1999See United States v. Clarke, 2 F.3d 81, 83-84 (4th Cir.1993), cert. denied, 510 U.S. 1166 [ 114 S.Ct. 1194 , 127 L.Ed.2d 544 ] (1994); Garner, 574 F.2d at 1144 .