dissenting.
I respectfully dissent.
I. INTRODUCTION
The issue here for resolution is whether testimonial hearsay was sufficiently reliable for admission in a probation revocation hearing.15 Under Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972), for reasons of due process, a defendant in a probation revocation hearing has “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Courts have developed two tests to determine whether good cause exists. Virginia has adopted a reliability test that admits hearsay if it is sufficiently reliable. While one might appreciate the majority’s analysis of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as applicable in the context of criminal trials, that analysis has no bearing on revocation proceedings. I would hold that the hearsay here was properly admissible under existing Virginia jurisprudence.
II. TWO STANDARDS FOR DETERMINING WHETHER HEARSAY IS ADMISSIBLE
As the majority acknowledges, two standards have evolved for determining the admissibility of hearsay in a revocation *401hearing: the reliability test and the balancing test. As will be shown later, Virginia has adopted the reliability test.
Under the balancing test, a court weighs a defendant’s “interest in confronting a particular witness against the government’s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement.” United States v. McCormick, 54 F.3d 214, 221 (5th Cir.1995); see also United States v. Williams, 443 F.3d 35, 45 (2d Cir.2006).
Under the reliability test, a court “allows the admission of hearsay evidence without a showing of cause for the declarant’s absence if the evidence is sufficiently reliable.” Curtis v. Chester, 626 F.3d 540, 545 (10th Cir.2010). Reliable evidence under this test has also been described as evidence having “substantial guarantees of trustworthiness.” Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984). “The [Supreme] Court established the good cause showing in Morrissey to limit the substantive use of unreliable evidence at revocation hearings. However, if the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes.” Id. Another court explained that substantial trustworthiness in hearsay evidence represents good cause for not producing live testimony. Reyes v. State, 868 N.E.2d 438, 441-42 (Ind.2007). “In other words, if reliable hearsay is presented, the good cause requirement is satisfied.” Commonwealth v. Negron, 441 Mass. 685, 808 N.E.2d 294, 300 (2004).
Courts have considered a number of factors in determining whether hearsay evidence is reliable. Courts are often concerned with whether other evidence corroborates the hearsay. United States v. Rondeau, 430 F.3d 44, 48 (1st Cir.2005); United States v. Martin, 382 F.3d 840, 846 (8th Cir.2004); Egerstaffer, 726 F.2d at 1235. Another indication of reliability is that the evidence is “quite detailed,” providing “a fairly full account of the circumstances.” Crawford v. Jackson, 323 F.3d 123, 130 (D.C.Cir.2003); see also United States v. Chin, 224 F.3d 121, 124 (2d Cir.2000); Egerstaffer, 726 F.2d at 1235. Also relevant are admissions from the defendant corroborating *402the challenged hearsay, the failure of the defendant to present evidence, and internal corroboration within the hearsay. Crawford, 323 F.3d at 130. Statements possess less reliability when they come from an adversarial relationship between the person reporting the statement and the person who made it, United States v. Bell, 785 F.2d 640, 644 (8th Cir.1986), when they represent “self-serving statements,” Farrish v. Miss. State Parole Bd., 836 F.2d 969, 978 (5th Cir.1988), or when they contain multiple levels of hearsay, United States v. Lloyd, 566 F.3d 341, 345 (3d Cir.2009).
III. THE LAW IN VIRGINIA
This Court considered the admissibility of hearsay evidence in the probation revocation context in Dickens v. Commonwealth, 52 Va.App. 412, 663 S.E.2d 548 (2008). There the hearsay evidence consisted of an affidavit from an official that the defendant had not registered as a sex offender between specified dates. Id. at 416, 663 S.E.2d at 550. While the Court upheld the affidavit’s admission based on “the reliability of official records,” it noted that “the United States Court of Appeals for the Fourth Circuit has held hearsay evidence is admissible in probation revocation hearings if it is sufficiently reliable.” Id. at 423, 663 S.E.2d at 553 (citing United States v. McCallum, 677 F.2d 1024 (4th Cir.1982)).
Our Supreme Court later evaluated the standard for admitting hearsay during probation revocation hearings in Turner v. Commonwealth, 278 Va. 739, 685 S.E.2d 665 (2009). The issue concerned the admissibility of polygraph test results. Id. at 741, 685 S.E.2d at 666. The Court stated that “[hearsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is ‘demonstrably reliable.’ ” Id. at 742, 685 S.E.2d at 667 (quoting McCallum, 677 F.2d at 1026). The Court then held that “[polygraph test results fall far short of the ‘demonstrably reliable’ hearsay evidence that may be admitted” during probation revocation hearings. Id. at 743, 685 S.E.2d at 667. In making this holding while quoting the standard from McCal*403lum, the Court plainly adopted the McCallum standard of admissibility.
In McCallum, the court applied the reliability standard. The defendant objected to the admission of hearsay evidence in the form of a report from two employees of the center he was sent to upon his release from incarceration. 677 F.2d at 1025. The report detailed numerous instances of poor conduct by the defendant, and the defendant admitted most of these. Id. In considering the defendant’s right to confront the report’s authors, the court noted that other courts had “permitted the introduction of ‘demonstrably reliable’ hearsay evidence in probation revocation proceedings.” Id. at 1026. The court then held: “The record discloses that the letter from the ... center was reliable evidence. It was in the nature of an official report to the United States probation officer in Atlanta from the center’s federal program coordinator and its counsel- or. The reliability of the report was also established by McCallum’s testimony....” Id. McCallum has been cited as applying the reliability standard. Curtis, 626 F.3d at 545.
In addition to the principle that a decision of the Supreme Court of Virginia is controlling on this Court, we are further bound by the rule of interpanel accord. That rule mandates that the “decision of one panel becomes a predicate for application of the doctrine of stare decisis and cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal Co. v. Reed, 40 Va.App. 69, 73, 577 S.E.2d 538, 540 (2003) (internal quotation marks omitted); see also Congdon v. Congdon, 40 Va.App. 255, 265, 578 S.E.2d 833, 838 (2003).
It is my position that the majority does not comport with these principles. Rather, the majority holds a trial court does not err by applying the reliability test, but “the balancing test ought to be the preferred test.”
Appellate courts make decisions in part “as a guide for the trial courts.” Oak Knolls Realty Corp. v. Thomas, 212 Va. 396, 397, 184 S.E.2d 809, 810 (1971); see also Smith v. Commonwealth, 56 Va.App. 351, 367, 693 S.E.2d 765, 773 *404(2010) (Petty, J., dissenting) (“Fortunately, the Supreme Court ... expressly defined the term [jurisdiction] so as to guide both the bench and bar....”).
The majority adopts neither the reliability test nor the balancing test. This holding will result in inconsistent decisions throughout Virginia. A defendant convicted in one jurisdiction that uses the reliability test will be released in another that uses the balancing test if the prosecutor fails to offer a reason for denying confrontation, even though both cases may involve the same evidence. In declining to adopt either test, the majority offers little direction to counsel or the trial court.
IV. NON-APPLICABILITY OF CRAWFORD
The majority finds the balancing test preferred in part because it “is more consistent with the ... analytical framework found in” Crawford. However, as the majority previously acknowledged, “[o]ther jurisdictions that have decided the question appear to be unanimous that Crawford does not change the due process standard for confrontation in a probation revocation hearing.”16 State v. Rose, 144 Idaho 762, 171 *405P.3d 253, 258 (2007) (citing numerous cases). Crawford “says nothing about whether, or when, confrontation may be denied. The minimum due process requirements announced by the Court in Morrissey are still good law.” Id. at 259. In short, the “current confrontation jurisprudence in the context of providing due process in a non-trial proceeding involving a liberty interest” (to use the majority’s language) is that Crawford does not apply.17
Contrary to the majority’s assertions, Crawford is neither a “guide” nor a “jurisprudential sea change.” “Nothing in Crawford, which reviewed a criminal trial, purported to alter the standards set by Morrissey ... or otherwise suggested that the Confrontation Clause principle enunciated in Crawford is applicable to probation revocation proceedings.” United States v. Aspinall, 389 F.3d 332, 343 (2d Cir.2004). There is “no basis in Crawford or elsewhere to extend the Sixth Amendment right of confrontation to supervised release proceedings.” United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.2005).
In Curtis, the court considered in the revocation context both the applicability of Crawford and whether to apply the reliability test or the balancing test. Regarding the Crawford challenge, the court simply held that case did not apply, noting “[a]ll the circuit courts that have expressly considered this *406issue agree.” 626 F.3d at 544. The court then considered whether to apply the reliability or balancing test. Although the court ultimately found it unnecessary to decide which test to use since the disputed testimony was admissible under either, it notably in its analysis of both tests did not mention Crawford. Id. at 545-46. That was because Crawford simply did not apply. Id. at 544.
Likewise, in Reyes, the court in considering whether to apply the reliability or balancing test stated: “Because probation revocation hearings are not criminal trials, the United States Supreme Court’s decision on the Sixth Amendment right to confrontation in criminal trials is not implicated or discussed here.” 868 N.E.2d at 440 n. 1. The court went on to adopt the reliability test without further mention of Crawford.
Crawford may be said to have limited application to probation revocation proceedings. Since the due process right to confrontation is more limited than the Sixth Amendment right and Crawford says the Sixth Amendment right applies only to testimonial hearsay, then the due process right must also only apply to testimonial hearsay. Dickens, 52 Va.App. at 418, 663 S.E.2d at 551. However, Crawford did not alter the due process test for denying confrontation, whether that is the reliability or balancing test. Case law on the subject is unanimous.
Thus, I find it difficult to fathom how Crawford may serve as a guide or have the enormous importance the majority attaches to it. Crawford simply does not apply here.
V. OTHER COURTS’ APPLICATION OF RELIABILITY STANDARD
Before proceeding to analyze the facts of this case under the reliability standard, it is useful to consider how other courts have applied the reliability standard under similar facts.
In Crawford, 323 F.3d at 124, the court affirmed a parole revocation based solely on a police investigative report. A woman’s complaint led to Crawford’s arrest for aggravated assault. Id. At a parole revocation hearing, a single police *407report of the incident (also relating drug use by Crawford) was admitted and parole was revoked based on it. Id. at 124-25. On appeal, Crawford raised similar arguments as in this case, challenging the “exclusive reliance on the police investigative report ... inasmuch as it is unsworn, prepared months after relevant events, and apparently consisted not of the author’s personal observations or conversations with the complainant but instead was a summary of an affidavit prepared by another police officer.” Id. at 127. Crawford also noted that the assault charge was never prosecuted and his arrest record was expunged. Id. at 127-28.
In spite of the minimal amount of evidence and that Crawford was never prosecuted, the court found the police report sufficiently reliable to revoke parole. Enunciating the reliability standard, the court stated that hearsay evidence could be relied upon where it possessed “sufficient indicia of reliability under the circumstances at hand to protect the prisoner’s due process rights.” Id. at 129. First, the court noted the report was “quite detailed, an indicia of reliability.” Id. at 130. Second, the court found important that Crawford did not dispute a large portion of the relevant facts. Id. Third, the court stated the report contained internal corroboration by including information from sources other than the complainant. Id. A responding officer observed evidence inconsistent with Crawford’s story and Crawford’s “far-fetched explanation” gave “reasonable cause for the Board to doubt his denial of culpability.” Id. Fourth, Crawford failed to present any evidence contesting his guilt. Id. Finally, claimed multiple levels of hearsay were not significant under the facts of the case. Id. at 130-31.
Another case demonstrating application of the reliability standard is United States v. Kelley, 446 F.3d 688 (7th Cir.2006). There an officer responded to a scene for a report about a person with a gun. Id. at 689. The victims told the officer Kelley had punched them and displayed a rifle he retrieved from the trunk of his car. Id. at 690. The officer observed that one of the victims had a broken tooth. Id. Later, the officer searched Kelley’s vehicle and discovered a rifle. Id. *408Although the officer lacked personal knowledge of the incident related by the victims, he testified about their account at a revocation hearing and the court found Kelley in violation of his supervised release. Id. On appeal, Kelley argued the trial court erred in admitting the victims’ hearsay statements. Id. at 692. Applying the reliability standard, the court affirmed, holding the victims’ hearsay “bore substantial indicia of reliability” since “[t]he physical evidence and the officer’s personal observations and investigation corroborated the [victims’] accusations.” Id.
VI. APPLICATION OF RELIABILITY STANDARD IN THIS CASE
I believe the hearsay testimony of Detective Ortiz concerning the two incidents was sufficiently reliable for admission. Each incident will be discussed in turn.
Attempted Robbery Incident
The first way this incident possesses reliability is that it contains a detailed account given to Detective Ortiz. Lloyd, 566 F.3d at 345; Crawford, 323 F.3d at 130; Egerstaffer, 726 F.2d at 1235. Ortiz spoke to both the victim and his daughter. The victim related how he received a phone call from an unfamiliar number. The caller pretended to be from the sheriff’s office and requested the victim to go to the office to sign documents about a family member. When the victim did not immediately exit, the caller phoned him again. Upon leaving, a man approached the victim and asked for a cigarette. The man then attempted to take a bag from the victim, but was unsuccessful as the victim resisted. The victim reported the incident to the police. He subsequently received more calls purporting to be from the sheriffs office. When his daughter requested to see the number, she realized it was the phone number for Henderson. The victim and his daughter spoke with Henderson, who told them “he lends his phone to a lot of people” and he did not “remember who he loaned it to that day.”
*409Second, Henderson’s story corroborated what the victim and his daughter reported. Crawford, 323 F.3d at 130; McCallum, 677 F.2d at 1026. Detective Ortiz spoke with Henderson about this incident, and Henderson related “basically the same thing” as he had told the victim and his daughter. During another interview, Henderson stated “that his phone was stolen and miraculously it appeared on his porch two days later.” While these statements do not corroborate the remainder of the story of the victim and his daughter, “[n]ot every detail ... need be corroborated to establish the reliability.” Cf. United States v. Farmer, 567 F.3d 343, 348 (8th Cir.2009).
Third, Henderson’s statements gave ample cause to doubt his credibility and believe his culpability. Crawford, 323 F.3d at 130; see also Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) (“A false or evasive account is a circumstance, similar to flight from a crime scene, that a fact-finder may properly consider as evidence of guilty knowledge.”). Henderson recounted different stories regarding his involvement. He told the victim and Ortiz he had loaned his phone on the day in question, but did not remember who borrowed it. At another time, Henderson told Ortiz someone had stolen his phone, but it incredibly “appeared on his porch two days later.” The inconsistencies in Henderson’s accounts and especially his story about his magically disappearing/reappearing phone provided “reasonable cause ... to doubt his denial of culpability.” Crawford, 323 F.3d at 130.
Fourth, Henderson failed to present any evidence to contradict the Commonwealth’s evidence. Crawford, 323 F.3d at 130 (finding important that “despite the obvious incentive to present supporting evidence, [the defendant] did not call any witness or present evidence other than his own testimony to support his version of events”); United States v. Waters, 158 F.3d 933, 941 (6th Cir.1998) (finding relevant that while the defendant argued his inability to cross-examine a hearsay declarant prevented the defendant from establishing his brother participated in illegal conduct, the defendant “presented no evidence suggesting that his brother rather than he initiated *410contact”); see also United States v. Minnitt, 617 F.3d 327, 334 (5th Cir.2010) (noting in finding reliability that the defendant “failed to offer any evidence”).18 Henderson knew the identities of the victim and his daughter. Crawford, 323 F.3d at 130. He knew of the allegations since Ortiz contacted him. Yet he failed to present any contrary evidence. Rather, Henderson admitted another person could have used his phone to attempt the robbery.
Fifth, it is notable that Ortiz spoke with the victim and his daughter soon after the incident. In fact, the victim and his daughter had already reported the incident to police officers. Their quick report supports reliability. Cf. Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967).
Finally, the victim and his daughter would be subject to criminal liability if they made a false report to the police. Code § 18.2-461. This increases their reliability. See Beckner v. Commonwealth, 15 Va.App. 533, 535, 425 S.E.2d 530, 532 (1993).
The majority’s cursory analysis of the factual reliability of this incident diminishes towards exclusion the significance of the facts described above. Moreover, while the majority apparently believes four days between the attempted robbery and the interview with Ortiz represents a long period of time for the witnesses’ memories to diminish, that period enhances reliability. See Page v. Clopton, 71 Va. (30 Gratt.) 415, 430 (1878) (holding that after a period of five days “the facts were no doubt firmly impressed on his mind and fresh in his recollection”); see also People v. Androvett, 135 A.D.2d 640, 522 N.Y.S.2d 218, 220-21 (N.Y.App.Div.1987) (“The lineup was conducted within four days of the crime while the witness’s memory was still fresh____”); Jackson v. State, 338 So.2d 231, *411232 (Fla.Dist.Ct.App.1976) (“In view of the fact that the victim herein observed her assailant ... only nine days later while her memory was still fresh, there is little room for doubt that the identification of the defendant was correct”). The majority also finds persuasive that a large portion of the victims’ statements did not concern Henderson. In fact, that the victims limited their statements concerning Henderson tends to enhance their credibility since it shows they did not deliberately structure their statements to implicate Henderson. Cf. Monroy v. City of Los Angeles, 164 Cal.App.4th 248, 78 Cal.Rptr.3d 738, 753 (2008) (stating that “credibility may be enhanced when a defense expert agrees with a plaintiffs expert”).19
*412 Home Invasion Robbery
Regarding the second incident, the victim told Ortiz that several men came to his door at night and knocked on the *413door, but the victim did not open it because he saw who was there. The men entered the door, which was unlocked, and stole property. The first person to enter possessed a gun in his waistband. The victim identified Henderson as the second person to enter from a photo lineup prepared by Ortiz.
Unlike the first incident, the story related here is not detailed. Rather, it is simply a statement that several people knocked on the victim’s door, entered without permission, and took property. It is true that a lack of detail diminishes reliability. Furthermore, the victim had several prior larceny convictions and had agreed to plead guilty to grand larceny, which again makes his story less reliable.
That said, other evidence presented significantly corroborated the victim’s account to make the story reliable. See Rondeau, 430 F.3d at 48; see also United States v. Pratt, 52 F.3d 671, 675 (7th Cir.1995).
First, Henderson and an accomplice made incriminating statements about Henderson’s involvement. During a police interview, Henderson admitted he knew the other perpetrators of the robbery. He also admitted he had been in a car with them. A search of the car from a warrant discovered property belonging to the victim. During a monitored telephone conversation, the gunman from the robbery said “they got me and they got [Henderson].”
Second, other monitored telephone calls plainly established the fact that the robbery occurred. It was learned that some of the victim’s property was in the house of Henderson’s brother. The gunman instructed the brother to remove the property. The gunman made numerous threats towards the victim. The gunman eventually arranged to return the stolen property to the victim. Although this evidence does not necessarily indicate Henderson’s involvement, it proves another fact crucial to the case: the existence of a robbery involving the victim.
*414Third, the monitored telephone conversations provided evidence of a motive. At one point, Henderson stated the victim “pulled a knife on Martin” and the victim “should go to jail.” In another conversation, the gunman, immediately after stating “they got me and they got [Henderson]” for the robbery, “asked how did they get Martin.” Thus, it may be inferred that Martin was the third participant in the robbery, that Henderson shared Martin’s unfavorable relationship with the victim, and that Henderson acted upon these sentiments by participating in the robbery. The robbery may have been in retaliation for the victim pulling a knife on Martin, or an act of aggression against someone the perpetrators did not like.
Fourth, Henderson provided evasive explanations to Ortiz and the court could make an incriminating inference from this. Crawford, 323 F.3d at 130; Covil, 268 Va. at 696, 604 S.E.2d at 82. Henderson first told Ortiz “that the people in the neighborhood simply didn’t like him, and that’s why his name came up on these two different cases.” When Ortiz inquired further about why people did not like him, Henderson stated “they just don’t.” Henderson then mentioned the victim of the home invasion as “being one of the people that don’t like him just because he had an issue with his brother.” The trial court could infer a desire to conceal the truth from Henderson’s implausible claim that he was identified as a robber simply because of a general dislike for him in the community. Moreover, by Henderson specifically mentioning the robbery victim as a person who disliked him, the trial court could infer Henderson’s involvement in the robbery and a desire to discredit the victim.
Fifth, the court could again make an incriminating inference from Henderson’s statements regarding his whereabouts the night of the robbery. Henderson told Ortiz that on the night of the incident, he was on his porch talking with others between 8:00 p.m. and midnight. Yet at the hearing, Henderson presented the testimony of his mother, who stated that when she arrived home at 10:20 p.m., Henderson was in his room and did not leave the house that night. Furthermore, when police searched Henderson’s house, they were told *415that Henderson “was not there the day of the incident.” The court could choose to believe that Henderson and his mother were seeking to conceal his guilt and regard this as additional proof of culpability.
Sixth, it is notable that the victim reported the robbery soon after it was alleged to have occurred. Ortiz testified she was called “at night at my house to come in to investigate a home invasion robbery.” This tends to support reliability. Cf. Herron, 208 Va. at 330, 157 S.E.2d at 198.
Seventh, the victim would have been subject to criminal liability for filing a false report. Code § 18.2-461. This increases a complainant’s reliability by attaching a penalty to misleading police. See Beckner, 15 Va.App. at 535, 425 S.E.2d at 532.
Finally, the police obtained an arrest warrant for Henderson because of the robbery. Thus, a judicial officer found the evidence sufficiently reliable to establish probable cause for an arrest. The charge was eventually nolle prosequied because the victim, who was scared of retaliation, refused to testify.
Yet again, the majority’s terse analysis ignores the many relevant factors described above. The majority focuses only on the evidence favorable to Henderson.
Taken together, the evidence revealed a reliable account of a robbery involving Henderson. While the victim’s story standing alone would not support a reliability finding, the other evidence, including statements by Henderson, provided a reliable history.20
*417I note that for both incidents, most of the hearsay was not multi-layered, but consisted of testimony of Ortiz of events described to her by others. Exceptions may be found, but they are not of significance in light of the other evidence.
Finally, I note that in its conclusion section, the majority holds that “in this case the circuit court did not apply either test in overruling Henderson’s objection to Ortiz’s testimony. Thus, the record before us fails to establish ‘good cause’----” This could be interpreted to mean a trial court must make an explicit finding of good cause on the record. This would be an issue not raised at trial, in Henderson’s opening brief, or in the majority’s analysis section.
VII. CONCLUSION
I conclude that Virginia has adopted a reliability test to determine the admissibility of hearsay in revocation hearings and that application of that test permits the introduction of the testimony here challenged. Accordingly, I would affirm the trial court.
. I will assume without deciding that the challenged evidence was "testimonial hearsay.”
. In spite of the unambiguous nature of case law on this topic, the majority laments the inapplicability of Crawford and tries to make it have application as a theme. In footnote seven, the majority correctly acknowledges that Crawford does not apply. Soon afterward, however, the majority notes that Virginia courts have not "squarely addressed what constitutes 'good cause’ for denial of the due process right of confrontation in the wake of the many changes wrought by Crawford.” The majority’s earlier footnote would seem to make clear there were no such changes in this context. In footnote twelve, the majority questions why Crawford does not apply while also acknowledging this to be the case, stating "it may be reasonable to question the continued applicability of a reliability test in light of ... Crawford ... [but] we observe that ... [Crawford ] is not directly applicable outside of a trial setting and serves merely as a guide.” For reasons discussed above, Crawford is not even a "guide.” In the conclusion section, Crawford for the first time becomes for this case a "jurisprudential sea change.” The majority suddenly finds the balancing test persuasive in part because of "the analytical framework found in the post-Roberts cases of Crawford, Davis, Melendez-Diaz, and Bryant.” Although a conclusion section serves merely as a summary of prior analysis, the majority makes law in *405its conclusion that was never analyzed. While the majority obviously wants Crawford to apply, this is simply not the case, and the majority should not attempt to conceal its application of it.
. In the sentencing context, the Fourth Circuit recently wrote:
Recent Confrontation Clause decisions do not require us to reconsider this settled distinction between trial evidence and sentencing evidence in the hearsay context. In a line of cases beginning with Crawford ■ ■ ■ the Supreme Court has held that the Confrontation Clause generally bars the use of testimonial hearsay at trial unless the declarant is not available to testify and the defendant had a prior opportunity to cross-examine him. But nothing in these cases states that the confrontation right applies at sentencing; indeed, they suggest precisely the opposite.
United States v. Powell, No. 09-4012, 650 F.3d 388, 2011 WL 1797893, at *3 (4th Cir. May 12, 2011) (citations omitted).
. Contrary to the majority's position, I do not contend Henderson had any obligation to present evidence. The burden was on the Commonwealth to prove the reliability of the evidence. A failure to present evidence by Henderson would obviously not suffice to prove reliability. However, case law makes clear such a failure may be considered as a factor tending to bolster reliability. The majority does not address this case law.
. Assuming a balancing test is the applicable test, I would likewise hold the challenged testimony of this incident admissible, in accord with the following analysis.
Under the balancing test, a court evaluates whether the government's interest in denying confrontation outweighs a defendant's interest in confronting a witness. Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir.1999). Reliability constitutes "a principal factor” in this analysis. Lloyd, 566 F.3d at 345.
"Whether a particular reason is sufficient cause to outweigh the right to confrontation will depend on the strength of the reason in relation to the significance of the releasee’s right.” United States v. Comito, 177 F.3d 1166, 1172 (9th Cir.1999). “Courts have recognized that a declarant's refusal to testify or threats made against a declarant may be good cause for his absence and justify the admission of hearsay.” Lloyd, 566 F.3d at 346. Where it is clear that a witness is unavailable, a court applying the balancing test should simply determine whether the evidence is reliable. Farmer, 567 F.3d at 347.
In considering whether the government had shown adequate reasons for not producing the victims of this incident to testify, persuasive are Henderson's admissions corroborating the victims’ accounts and the fear of retribution for testifying.
In Bell, 785 F.2d at 644, the court held admission of police reports proper without the officers’ presence where the defendant partially corroborated the reports. The police reports detailed an occasion where police arrested Bell for driving while intoxicated, possessing marijuana, and possessing narcotic paraphernalia. Id. at 642. Bell admitted "that he was driving on a public highway in the middle of the night without his lights on, and that he had been drinking.” Id. at 644. While acknowledging that drinking does not establish intoxication, the court found this corroboration sufficient to justify admitting the police reports without confrontation. Id. The court held that in light of “all of these reports and ... the force of Bell’s own concessions, we are morally certain that no substantial purpose would have been served by requiring the officers’ personal presence.” Id. The court continued by *412stating that the officers "would simply have repeated what is in the reports, and none of the contentions made by Bell at his revocation hearing indicates that he would have been able to shake their account in any substantial way.” Id. This was also in spite of the fact that Bell apparently made no admissions concerning his arrest for drugs. Id.
In United States v. Jones, 299 F.3d 103 (2d Cir.2002), the court held it proper to consider fear or risk of retaliation under circumstances relevant to this case. Jones was on supervised release after having been convicted of partaking in a racketeering enterprise. Id. at 105. Through hearsay testimony of an officer, the government presented evidence that Jones had been standing in the doorway of an apartment building while masturbating and making sexual remarks to a fifteen-year-old girl. Id. at 107. The hearsay declarants were the wife of the officer and the young girl. Id. The girl told the officer "she was scared” from the incident. Id. After Jones was arrested that day, he told the officer "it's not over. Okay. I'll get you.” Id. In assessing whether the government presented sufficient reasons for denying confrontation, the court found "with regard to both eyewitnesses, Jones’s history of violent conduct made reprisal against them a possibility.” Id. at 113.
With respect to this incident, Henderson’s admissions alone justified the admission of hearsay. The only part of the hearsay concerning Henderson was the use of his phone to set up the attempted robbery, which he admitted was possible. Although this does not corroborate the remainder of the account, it is a significant piece of evidence. Furthermore, it is unclear how Henderson would impeach the hearsay declarants or how any changes in the victims’ account would affect Henderson since only his phone was involved. Under Bell, the corroboration provided is adequate.
Yet Henderson's corroborating statements did not represent the only basis for admission, for the potential threat to the victims also provided a ground to excuse their presence. Ortiz testified that the victim "explained to me he really didn’t want to file charges because people knew his daughter, and they all were in the neighborhood, they live in the same neighborhood, they knew where he lived.” Obviously, the victim was afraid of retaliation if charges went forward. Like the defendant in Jones, Henderson had a history of violent conduct, i.e., the robbery he committed in 2000 and the home invasion robbery from this case. This represented substantial ground to believe retaliation was possible. Moreover, the victim's daughter was familiar with Henderson. Henderson's involvement was discovered because the daughter recognized his phone number. She knew Henderson by his first name and had him come to her residence to discuss the incident. As such, it is likely she was familiar with Henderson’s personality and his propensity for violence. This gives additional weight to the victim’s fear.
For the reasons already discussed above, the hearsay was clearly reliable. Thus, I would hold that under the balancing test the hearsay was properly admitted.
. Once again, assuming a balancing test applies, I would hold the hearsay admissible. Under facts and arguments extremely similar to this incident, the court in Martin held the hearsay was admissible. The court held:
In the present case, Martin argues that the government has failed to adequately explain its failure to present Garcia’s live testimony. Martin points out that, although Sperando did testify regarding Garcia’s refusal to testify against Martin in state court, those state court proceedings occurred more than a year before the revocation hearing and yet, since those state court proceedings, the government *416had made no attempt to interview or subpoena Garcia. Moreover, Martin contends, there has been no showing that Garcia's alleged reason for refusing to testify (i.e., her fear of retaliation by a "crime family") is well-founded. Consequently, Martin argues, the government has failed to show that the burden of producing Garcia’s live testimony is inordinate.
# sH # %
In the present case, the government did offer an explanation for why the burden of producing Garcia as a live witness would be inordinate. The government presented evidence that Garcia repeatedly stated that she would not testify against Martin and that, when Garcia was subpoenaed to testify against Martin in state court, she appeared in court but refused to testify. The government believed that Garcia likewise would not testify against Martin at his supervised release revocation hearing and that serving her with a subpoena would be futile. The government also demonstrated that the hearsay evidence was reliable....
[W]e hold that the government met its burden to show good cause for not producing Garcia as a live witness at the revocation hearing.
382 F.3d at 845-46 (citation omitted).
Like Martin, the Commonwealth plainly demonstrated here that the victim refused to testify from fear of retaliation. The following dialogue occurred during the hearing:
[Prosecutor]: Would it be fair to say ultimately, Detective .Ortiz, that the victim ... refused to come to court and to testify to the circumstances of the home invasion?
[Ortiz]: Yes. I actually personally met with him and his mother, and they were extremely scared of retaliation. My victim’s mother ... she basically said she—the day before the court she heard gunshots around the house, and that really scared her.
A charge was filed against Henderson in connection with the robbery, but was nolle prosequied when the victim refused to testify. Such fear was justified, for Ortiz testified that in monitored phone conversations the gunman made "a lot of threats towards the victim.”
Based on this evidence, the Commonwealth showed the victim refused to testify from fear of Henderson or his accomplices. Considering that in a previous proceeding the Commonwealth was forced to nolle prosequi a charge because of the victim’s refusal to testify, there is no reason to believe a different result would occur at a revocation hearing. Id. at 846. As such, the only inquiry was whether the evidence was reliable. Farmer, 567 F.3d at 347. For the reasons detailed above, it was reliable.
Contrary to the majority’s assertion, it is not a fair reading of the record to suppose the only reason the victim was afraid was from hearing gunshots. This ignores the gunman’s threats towards the victim, as well as the likelihood that the victim, who apparently associated with persons like Henderson, was well aware of the possibility of retaliation. The gunshots merely reinforced an already present fear. *417Moreover, even if the victim’s fear was irrational, this is irrelevant since the evidence is clear he refused to testify. Martin, 382 F.3d at 846.