concurring and dissenting:
I concur in Part II of the majority’s opinion. A federal court cannot disregard or encroach on state prerogatives unless it must do so to vindicate federal law or the Constitution. For this same reason, however, I dissent from the majority’s analysis in Part I. Hearsay evidence that falls within a firmly rooted hearsay exception does not offend any federal right held by parolees, and we therefore have no authority to impose “Comito balancing” when such evidence is proffered in parole revocation hearings conducted by a state. The majority’s contrary holding places the Ninth Circuit in conflict with the only other circuit to squarely consider this issue. See United States v. Williams, 443 F.3d 35, 45 (2d Cir.2006). I also dissent because I see no basis to require additional “Comito balancing” where the hearsay in question serves only to corroborate the reliability of proffered hearsay evidence and is not actually admitted against the parolee.
I.
In hearings on the revocation of parole, Morrissey instructs that the “minimum requirements of due process” include “the right to confront and cross-examine adverse witnesses.” 408 U.S. at 488-89, 92 S.Ct. 2593. This right to confrontation is applied through the Due Process Clause of the Fourteenth Amendment. It provides no greater guarantee than that afforded to criminal defendants under the Sixth Amendment. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey, 408 U.S. at 489, 92 S.Ct. 2593; United States v. Simmons, 812 F.2d 561, 564 (9th Cir.1987). The Sixth Amendment, in turn, does not enact the hearsay rule, nor is it offended by evidence that falls within a firmly rooted hearsay exception. As the Supreme Court explained:
We have allowed the admission of statements falling within a firmly rooted hearsay exception since the Court’s recognition in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), that the Framers of the Sixth Amendment “obviously intended to ... respec[t]” certain unquestionable rules of evidence in drafting the Confrontation Clause. Justice Brown, writing for the Court in that case, did not question the wisdom of excluding deposition testimony, ex parte affidavits and their equivalents. But he reasoned that an unduly strict and “technical” reading of the Clause would have the effect of excluding other hearsay evidence, such as dying declarations, whose admissibility neither the Framers nor anyone else 100 years later “would have [had] the hardihood ... to question.”
Lilly v. Virginia, 527 U.S. 116, 125-26, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (citations omitted) (alterations and ellipses in original); see Melendez-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527, 2539, 174 L.Ed.2d 314 (2009) (observing that most hearsay exceptions do not implicate a criminal defendant’s right to confrontation because they “cover[ ] statements that by their nature [are] not testimonial — for example, business records or statements in furtherance of a conspiracy” (quoting Crawford v. Washington, 541 U.S. 36, 56, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004))).
By requiring “Comito balancing” where no federal confrontation right is infringed, the majority recedes from the principles of federalism espoused in Part II of its opinion. It imposes on the state a procedure crafted by the Ninth Circuit that has heretofore applied only to the revocation of federal supervised release or probation, not the revocation of state parole. See Hall, 419 F.3d at 982; Comito, 177 F.3d at 1167; United States v. Walker, 117 F.3d *997417, 418-19 (9th Cir.1997); United States v. Martin, 984 F.2d 308, 309 (9th Cir.1993); Simmons, 812 F.2d at 562-63.
The majority requires this procedure whenever the state relies on “hearsay” evidence, yet its opinion does not purport to define this now critical term. In the federal system, the term “hearsay” expressly excludes, inter alia, statements by coconspirators or admissions by a party to the proceeding. See Fed.R.Evid. 801(d)(1), (2); Hall, 419 F.3d at 986. But under California law, these same statements are termed “hearsay” and are admissible only under “hearsay exceptions.” See Cal. Evid.Code §§ 1200-01,1220, 1223. Which definition of “hearsay” does the majority mandate in California’s parole proceedings? I presume we will be called upon to answer this question — and others like it — in due course. Contra Morrissey, 408 U.S. at 488, 92 S.Ct. 2593 (‘We cannot write a code of procedure; that is the responsibility of each State.”).1
By demanding that the state establish “good cause” to rely on business records, excited utterances, and the like, the majority expands the confrontation rights of parolees beyond those held by criminal defendants. Contra id. at 489, 92 S.Ct. 2593; Simmons, 812 F.2d at 564. The majority attempts to justify this expansion by noting that — unlike in criminal trials — the state can always trump parolees’ confrontation rights, even if no firmly rooted hearsay exception applies. See Maj. Op. 990-91. But it is quite likely that most hearsay evidence offered in parole hearings will fall under some firmly rooted hearsay exception. See generally, e.g., United States v. Wake, 948 F.2d 1422, 1435 (5th Cir.1991) (“[TJhere are, needless to say, numerous exceptions to hearsay not being admissible.”). As a matter of constitutional law, the majority equips parolees to exclude such evidence if the state cannot demonstrate “good cause,” yet the admissibility of this same evidence against criminal defendants is a foregone conclusion.2
The majority braces its holding by noting that parolees will still lack many of the other rights enjoyed by criminal defendants, such as the right to a jury and proof beyond a reasonable doubt. See Maj. Op. 990. But this rationale is foreign to our jurisprudence. We cannot retool discrete constitutional guarantees so long as the total quantum of “due process” afforded to parolees will not exceed that of criminal defendants. Like parolees, juveniles in delinquency proceedings have no right to a jury trial, see McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), yet we are not empowered to enhance juveniles’ confrontation rights, raise the burden of proof, or demand greater effectiveness from their appointed attorneys.
The majority asserts that its decision is compelled by the “law of this circuit,” rejecting the Second Circuit’s contrary views in a footnote. Maj. Op. 988-89; id. at 990 n. 4. Yet our prior caselaw involved federal probationers challenging evidence that would be inadmissable against criminal defendants. These precedents do not dictate our decision in a case involving state parol*998ees disputing evidence “whose admissibility neither the Framers nor anyone else 100 years later ‘would have [had] the hardihood ... to question.’ ” Lilly, 527 U.S. at 126, 119 S.Ct. 1887 (alteration and ellipses in original).
Furthermore, our most recent decision in Hall strongly supports the approach taken by the Second Circuit. Compare United States v. Aspinall, 389 F.3d 332, 344 (2d Cir.2004) (“[T]he [due-process] balancing analysis need not be made where the proffered out-of-court statement is admissible under an established exception to the hearsay rule.”), with Hall, 419 F.3d at 987 (“[L]ong-standing exceptions to the hearsay rule ... should satisfy the lesser standard of due process accorded the respondent in a revocation proceeding.”). Indeed, the Hall court favorably cited the same line of Second Circuit precedents that the majority today rejects out of hand. See Hall, 419 F.3d at 986 (citing Aspinall, 389 F.3d at 342). The majority’s headlong decision to create a circuit split is both unpersuasive and unnecessary.
II.
To apply its prescribed “balancing test,” the Comito court instructed decisionmakers to consider “the accuracy and reliability of the proffered [hearsay] evidence,” and advised that the greater the reliability of the proffered evidence, the lesser a respondent’s interest “in testing it by exercising his right to confrontation.” See 177 F.3d at 1171. Today, the majority holds that when hearsay is considered solely to evaluate the reliability of proffered hearsay evidence, it too must be independently subjected to “Comito balancing.” To support its holding, the majority excerpts at length from our decisions in Comito and Hall, yet in each instance the hearsay at issue was actually admitted against the parolee as evidence; it was not used solely to assess the reliability of hearsay evidence proffered for admission. See Maj. Op. 992-93. The majority’s excerpts are inapposite.
It is well-established, moreover, that trial judges may routinely consider inadmissible evidence to evaluate the competence of evidence actually proffered for admission. See, e.g., Fed.R.Evid. 104(a). No decision by the Supreme Court or the Ninth Circuit has found this practice to contravene the minimum requirements of due process or to require additional procedural safeguards. By requiring such safeguards in parole revocation hearings, the majority departs from Supreme Court precedent and exceeds our limited authority to intervene in the criminal justice system of the fifty states. The majority declares: “[W]e are not bound to adhere only to minimal requirements [of due process].” Maj. Op. 992. The Supreme Court has stated: “Our task is limited to deciding the minimum requirements of due process.” Morrissey, 408 U.S. at 488-89, 92 S.Ct. 2593.
. In my view, the type of "hearsay” evidence that raises federal due process concerns is straightforward. Because the Fourteenth Amendment confers no greater confrontation right than that afforded to criminal defendants, the state must show "good cause” only where it relies on evidence that would violate the Confrontation Clause in a criminal proceeding.
. The majority posits that certain rules of evidence, such as Rule 403 of the Federal Rules of Evidence and its state analogues, may help to alleviate this disparity. See Maj. Op. 990-91. I decline to rely on legislative enactments and the discretion of trial judges to offset the asymmetry that the majority injects into the Constitution.