Hearsay is an out-of-court declaration offered to prove the truth of the matter asserted. It is inadmissible because it is uncrossexamined and hence too unreliable for the jury to consider. Where some substitute for cross-examination provides an alternative assurance of reliability, the rule against hearsay may give way and the out-of-court declaration be admitted under one or another of the exceptions to the rule. But hearsay it remains. The evidence is received despite the lack of cross-examination.
Concerning confrontation, the Sixth Amendment to the Constitution of the United States says that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." Since an out-of-court declarant cannot be confronted, is hearsay ever admissible against the defendant in a criminal case? What, in short, is the relationship between confrontation and hearsay?
Several times over the past seven years, the Supreme Court has taken up this question. Its opinions demonstrate that the Court has yet to find a satisfactory answer
"Confrontation and Hearsay: A Look Backward, A Peek Forward,"
Hofstra Law Review: Vol. 1:
1, Article 4.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol1/iss1/4