The Cryptographic Coroner’s Report on Ohio v. Roberts

Abstract

For more than twenty years, the Supreme Court's holding in Ohio v. Roberts (1980) established the controlling legal standard governing the constitutional limits on the admission of hearsay evidence against a criminal defendant, and the circumstances under which the exclusion of such evidence might be required by the Sixth Amendment right of the accused to be confronted with the witnesses against him.

Those constitutional limits were completely overturned in somewhat piecemeal fashion, however, in a pair of decisions that were handed down by the Supreme Court in 2004 and 2006, both of them written by Justice Antonin Scalia. As it happens, Justice Scalia's opinions overturned the Roberts decision with such unusual subtlety and indirection that a great number of state and federal courts were unaware that the Court had done so, even after examining the same cases in which the Court had laid that earlier precedent to rest.

This article includes a precise explanation as to how the Court's decision to finally overturn Roberts was announced with such unusual indirection that the decision was missed not merely by a number of lower appellate courts but even the official Reporter of Decisions at the Supreme Court, and why the Roberts decision was in fact ultimately laid to rest in "the legal equivalent of a covert operation."