In the 2005 case of Denver A. Youngblood, Jr. v. West Virginia, the U.S Supreme Court was asked to consider whether a defendant's constitutional rights were violated when he was not allowed to cross-examine a key witness in his trial for sexual assault and robbery charges. The witness had identified Youngblood as her attacker but died before the trial began; thus, her testimony from preliminary hearings was used instead without giving Youngblood an opportunity for cross-examination during the actual trial proceedings. The court ruled that this did violate his Sixth Amendment right to confront witnesses against him and ordered a new trial.

In the dissenting opinion for Denver A. Youngblood, Jr. v. West Virginia (2005), Justice Scalia disagreed with the majority's decision to uphold Mr. Youngblood's conviction despite a potential violation of his Sixth Amendment right to confront witnesses against him at trial. The case involved testimonial statements made by a child victim during a forensic interview, which were later used in court without giving Mr. Youngblood an opportunity to cross-examine the child due to her unavailability at trial time because of fear and trauma caused by testifying in front of him. Justice Scalia argued that this violated the Confrontation Clause of the Sixth Amendment, which guarantees defendants' rights "to be confronted with witnesses against them." He believed that allowing such evidence without cross-examination undermines one of our justice system’s fundamental principles: ensuring fairness through adversarial testing. He also criticized how lower courts have interpreted previous Supreme Court rulings on this issue and expressed concern about potential misuse or overuse of exceptions like these if not strictly controlled.