The last six years have seen a significant re-thinking by the U.S. Supreme Court of the confrontation clause of the Sixth Amendment. As a consequence of the Court’s work, many once-settled practices and well-accepted rules may require reconsideration. This article addresses one such practice, the use of certifications to satisfy certain evidentiary foundations for the admission of documents.

The confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” A broad reading of the clause might suggest that it would bar any out-of-court statement from being used against a defendant. The Supreme Court never gave the clause such a broad reading, however, instead finding that out-of-court statements that were sufficiently reliable constituted “exceptions” to the confrontation clause and could therefore be used against a criminal defendant. As the Court explained in Ohio v. Roberts: “[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”1

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