This Comment argues that though the doctrine of forfeiture by wrongdoing allows a court to forfeit both a defendant’s right to object to the admission of hearsay statements and the right of confrontation, the current state of the law requires all out-of-court statements admitted under Rule 804(b)(6) to possess some level of reliability in order to satisfy due process. Part I of this Comment discusses the doctrine of forfeiture by wrongdoing, the courts’ treatment of this principle prior to 1997, and its codification into the Federal Rules of Evidence. Part II looks at Confrontation Clause issues unique to hearsay exceptions and examines Ohio v. Roberts19 and Crawford v. Washington, the Supreme Court’s two most important cases dealing with this issue. In discussing the guarantees of due process, Part III explains that any fair criminal trial requires convictions to be based on reliable evidence and maintains that Rule 804(b)(6), when given its plain language interpretation, violates the Due Process Clause by allowing admission of untrustworthy and unreliable evidence. Part IV of this Comment argues that the Crawford Court’s rejection of the Roberts “indicia of reliability” standard separated due process from Confrontation Clause analysis, thereby giving the accused a strengthened argument that all statements admitted under Rule 804(b)(6) must bear sufficient indicia of reliability.
Rutan, Kelly. “Procuring the Right to an Unfair Trial: Federal Rule of Evidence 804(B)(6) and the Due Process Implications of the Rule's Failure to Require Standards of Reliability for Admissible Evidence.” American University Law Review 56, no. 1 (October 2006): 177-210.