The FRE, not Frye, provide the standard for admitting scientific testimony faced with a proffer of expert testimony.  The trial court under 104(a) must make a preliminary assessment:

1. whether theory or technique has been tested;

2. whether it's been subjected to peer review;

3. known or potential rate of error; 

4. maintenance of standards controlling operation;

5. "general acceptance" in relevant community. 

Confrontation clause operates in two ways to restrict range of admissible hearsay:

1. Rule of necessity

2. Must be trustworthy (firmly rooted hearsay exception or particularized guarantee of trustworthiness) 

Back to Roberts--to satisfy hearsay and CC, demonstrate:

1. necessity--unavailability of declarant;

2. OCS must be trustworthy--firmly-rooted hearsay exception or PGT 

    *807 is not firmly-rooted

Another child abuse case like Idaho v. Wright, The Supreme Court affirms Inadi that Roberts didn't intend a blanket unavailability requirement...look to what the declarant was thinking...if hearsay is the only way the testimony can come in, we want it in.

NOTE: in this case there are issues of testimony like the second set of CC cases does. 

Crawford's wife's tape made during interrogation didn't jive with Crawford's case theory...she didn't testify at trial so she was unavailable.

SCOTUS: "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy the constitutional demands is confrontation." 

NOTE: there is no comprehensive definition of "testimonial." 

911 operator call, tells her "stop talking and answer my questions" so is it testimony?  It becomes testimonial.

Screen case with 13-year old girls.  Supreme Court said the CC by its words provides a criminal defendant with a right to confront face to face the witnesses giving evidence against him at trial (implicit here is a recognition that all hearsay exceptions are not unconstitutional).

that core guarantee serves the conception that confrontation is essential to fairness. (the core guarantee is no longer cross examination...)

There wre no individualized findings that the girls needed protection. 

Closed-circuit TV for kid.

Face-to-face is only one element nad we may dispense with it if the reliability of the child's testimony can be assured by other means.  Look at trustworthiness of evidence and necessity:

Necessity found by:

1. protect child's welfare;

2. child would be traumatized by D's presence;

3. emotional distress more than de minimus.