*1 LILLY v. VIRGINIA No. Argued 98-5881. March 1999 Decided June *3 and Stevens, J., of the Court delivered announced the judgment VI, SCALIA, I and in which with to Parts opinion respect of the Court JJ., Souter, Thomas, Ginsburg, Breyer, opinion joined, and Ginsburg, Scalia, Souter, II, to Part in which respect the Court with III, IV, Parts Breyer, JJ., respect and an joined, opinion and JJ., Breyer, Souter, Ginsburg, Breyer, V, joined. and and in which Scalia, J., p. J., post, concurring opinion, 'post, p. filed a concurring Thomas, J., p. concurring part filed post, opinions in the Rehnquist, J., concurring opinion C. filed an judgment. Kennedy, JJ., p. 144. joined, post, O’Connor in which judgment, Ira S. Sacks him With the cause argued petitioner. Christopher A. Tuck. on the briefs Baldwin, Katherine P. General Assistant Attorney on With her the cause for argued respondent. Virginia, Earley, L. the brief was Mark General.* Attorney *4 for the American reversal were filed urging *Briefs of amid curiae Friedman, Richard D. Berger, al. A by Margaret Civil Liberties Union et of Criminal National Association Shapiro; and R. and for the Steven Kemler, Geimer, and Marvin by al. William S. Lisa Lawyers Defense et Miller. of for the State affirmance were filed Briefs of amici curiae urging Nebraska, J. Kirk of by Stenberg, Attorney General Nebraska et al. Don Stem, General, Acting At-
Brovm, C. and Michael Attorney Assistant respec- Guam, for their by Attorneys the General torney General of and Arizona, Stovall of J. of Carla Napolitano tive States as follows: Janet Jr., Curran, Louisiana, Mary- of Kansas, Ieyoub Joseph R of J. Richard Montana, of land, P. Mazurek Mississippi, Joseph Michael C. Moaré of Carolina, North Nevada, Easley F. of Del Michael Papa Frankie Sue of the Court judgment of announced Stevens Justice respect Parts opinion the Court with of and delivered the IV, respect III, Parts opinion with and and I, II, VI, and V, and which Ginsburg, Justice Souter, Justice join. Breyer Justice ac- whether this case is question presented in with right confronted “to be
cused’s Sixth Amendment admitting by evi- into violated him” witnesses accomplice’s confes- nontestifying entire trial a dence at his accomplice’s against the contained some statements sion that inculpated the accused. penal and others interest
1—I Lilly Benjamin Lee 1995, three On December men— Gary roommate, (petitioner), and Mark’s Mark, his brother of nine stole bottles Wayne a home and Barker —broke into day, the men next liquor, guns, a safe. The and three loaded country and store, liquor, a small drank robbed the stolen car weapons. After their geese stolen shot their his ve- DeFilippis and they used Alex abducted down, broke and of them shot location. One to a hicle to drive deserted more committed two DeFilippis. men then killed The three by police late they apprehended robberies were before evening of in the December custody, questioned each taking police them into
After separately. did mention Petitioner of the men three had two other men police stated that the murder to Petitioner’s participate in the robberies. forced him police somewhat different told the brother Mark and Barker petitioner both maintained accounts but crimes, of Ohio, Hardy Montgomery D. Dakota, Betty Heitkamp Heidi of North M. Condon Pennsylvania, Charles D. Myers Michael Fisher Oregon, G. Summers Paul Dakota, Mark Barnett Carolina, of South of South Kent Foundation Tennessee; Legal the Criminal Justice L. Scheidegger and Charles Hobson.
masterminded the robberies and was the one who had DeFilippis. killed tape recording
A of Mark’s initial oral statement indicates questioned that he was from 1:35 until a.m. 2:12 a.m. on De police cember 6. The interrogated again him from 2:30 a.m. During 2:53 until a.m. continually both Mark interviews, emphasized during how drunk he spree. had been the entire participation asked string When about his in the crimes, during Mark admitted that liquor stole burglary he the initial 12-pack that during he stole a robbery of beer of the liquor Mark gun store. also conceded that he had handled a day that present during earlier that he the more serious thefts and the homicide. police
The charged told Mark that he would be with armed robbery and “family that, petitioner unless he broke ties,” “may dragging you right be App. in to life sentence,” acknowledged Mark away that he peni- would be sent tentiary. He primarily claimed, however, that while he had drinking, petitioner “got guns been and Barker had some something” during burglary. Id., the initial at 250. Mark pulled gun said that Barker had in one of the robberies. He petitioner further instigated insisted that had the car- (Mark) jacking nothing and that he “didn’t have do with shooting” DeFilippis. portion Id., at 256. In a brief of one of his petitioner statements, Mark stated was the DeFilippis. one who shot Virginia Commonwealth charged petitioner including offenses,
several DeFilippis, murder separately. him tried At trial, called Commonwealth as Mark a witness, but he invoked Fifth his Amendment privilege against self-incrimination. The Commonwealth therefore offered to introduce into evidence police they Mark made to the arguing after his arrest, were admissible as declarations of an unavailable witness against penal objected ground interest. Petitioner on the actually against penal statements were Mark’s *6 they responsibility interest because shifted for the crimes petitioner, to Barker and that their admission would violate the The Sixth Amendment’s Confrontation Clause. judge objection tape trial overruled the admitted recordings transcripts and written of the statements in their entirety. jury petitioner robbery, guilty The found of abduc- carjacking, possession by tion, of a felon, a firearm and four charges illegal firearm, use for which he offenses prison plus received consecutive sentences of two life terms years. jury petitioner capital The also convicted mur- der and death, recommended a sentence of which the court imposed. Supreme
The
Virginia
petitioner’s
Court of
affirmed
con
victions and
As is
here,
sentences.
relevant
the court first
concludedthat Mark’s statements were
declarations of
un
against penal
available witness
interest;
the statements’
reliability
was established
other evidence; and, therefore,
they
exception
Virginia
fell
hearsay
within an
to the
petitioner’s
rule. The court then turned to
Confrontation
challenge.
began by relying
Clause
opinion
It
on our
(1992),
White
Illinois,
“That
self-serving,
Mark
statements were
in that
they tended
principal responsibility
to shift
to others or
mitigating
goes
offer claims of
circumstances,
weight
jury
assign
eould
to them and not to their
admissibility.” Id., at 574,499 S. E. 2d, at Our concern that this
represented
decision
significant
departure from our Confrontation Clause jurisprudence
prompted us
grant
certiorari.
II As aninitial matter, the Commonwealth asserts that we
should
jurisdiction
decline to exercise
petitioner’s
over
claim
*7
fairly
he
present
because
did not
his Confrontation Clause
challenge
Supreme
to the
Virginia.
Court of
disagree.
We
Although petitioner
on
focused
state
law in his chal
lenge to the admission of Mark’s
petitioner
statements,
ex
pressly argued
opening
in his
brief to that court that the
admission
the
of
statements violated his Sixth Amendment
right to
expanded
confrontation. He
his Sixth Amendment
argument
reply
in his
brief and cited Lee v. Illinois, 476 U. S.
(1986),
and Williamson v.
States,
United
1—i HH
In
prosecutions,
all criminal
as
state
federal,
well as
right, guaranteed
a
by
accused has
the Sixth and Fourteenth
Amendments to the United States Constitution, “to be
against
confronted with the witnesses
Const.,
him.” U. S.
6;
Amdt.
Texas,
Pointer v.
S. 400
(applying
U.
States).
Sixth
Amendment
“The central
concern
reliability
Confrontation
to
Clause is
ensure the
of the
evidence
subjecting
rig-
criminal defendant
it to
adversary proceeding be
testing
context of
in the
orous
Craig,
836, 845
497 U. S.
Maryland v.
fact.”
fore
trier
a declarant’s
to offer
government seeks
When
this
as in
accused, and,
against the
out-of-court
must decide
unavailable,1 courts
the declarant
case,
deny
ac
government to
permits the
the Clause
whether
“to submit
the declarant
right to force
usual
cused his
engine
legal
ever invented
'greatest
cross-examination,
”
U.
399 S.
Green,
v.
discovery of truth.’
for the
California
omitted).
(1970)(footnote and citation
interpreting the Confrontation
case
In
most recent
our
(1992),
rejected
we
Illinois, 502
S. 346
Clause, White
narrowly construed
should be
the Clause
suggestion that
particular abuse
to “a
comparable
only
practices
apply
prosecuting
17th-century England:
common in 16th- and
affidavits,
parte
presentation of ex
through the
defendant
Id.,
trial.”
being produced at
ever
affiants
without the
depositions
using out-of-court
This
included
at 352.
abuse
”
“
S., at 157.
Green, 399 U.
accomplices.’
and 'confessions of
concurring
atS.,
502 U.
Accord, White,
J.,
(Thomas,
(noting
rule
that this
concurring
judgment)
part
reliable”). Be-
“found to be
applies
if
confession is
even the
*8
“wit-
term
reading of the Clause’s
restrictive
cause that
role
virtually
the Clause’s
would have
eliminated
nesses”
testimony,
hearsay
we consid-
restricting
the admission
prior
Instead, we adhered
cases.
our
ered it foreclosed
Roberts,
Ohio
general framework, summarized in
to our
hearsay
(1980),
veracity of
statements
that the
Before to the dual inquiries, Roberts however, we note that the statements taken petitioner’s from brother in early, morning of December obviously 6 were obtained purpose-of creating evidence that would be useful at a future trial. The analogy presentation to the parte of ex early affidavits in the English proceedings brings thus Confrontation Clause play into no matter how narrowly its gateway might be read.
IV
Supreme
Virginia
Court of
held that the admission of
Lilly’s
Mark
confession was constitutional primarily because,
in its
against
view, was
it
Mark’s penal interest and because
“the
against
statement
penal interest of an unavailable
witness is
‘firmly
exception
rooted’
hearsay
rule in
Virginia.”
We have allowed the admission of falling firmly within a rooted since Court’s recognition in Mattox v. United (1895), States, 156 U. S. that the Framers of the Sixth “obviously Amendment in- tended respec[t]” ... unquestionable certain rules of evi- dence in drafting the Confrontation Id., Clause. at 243. Justice Brown, writing for the Court in that case, did not *9 question the wisdom deposition of excluding testimony, ex parte affidavits equivalents. and their But he reasoned that unduly an strict and “technical” reading of the Clause would as such evidence, hearsay excluding other effect of the have Framers the admissibility neither declarations, whose dying [had] have “would years later anyone else nor Ibid. question.” to ... hardihood if, “firmly rooted” exception as hearsay a describe nowWe experience,” legislative judicial and “longstanding light of [on] (1990), “rest[s] such it Wright, 497 U. Idaho any virtually evidence of foundatio[n] admission that [a]solid constitutional of ‘substance comports [it] within " Mattox, 156 (quoting at 66 S.,U. Roberts, 448 protection.5 the intro designed to allow 244). is standard at This S.,U. hearsay of category falling a within statements duction all “to remove time proved over have conditions whose adher as strict to enforce falsehood, and temptation an oath" obligation of as would truth ence instance, White, In Ibid. trial. at a cross-examination declara spontaneous exception for hearsay we that firmly held centuries two least “is at it because rooted is tions car States,” among the accepted “widely currently old,” [that] ... trustworthiness guarantees of... ries “substantial testimony.” 502 by in-court later recaptured even be cannot short, practice, Established 8. n. 355-856, at S., category falling within that must confirm credibility" guarantees “earr[y] special inherently hearsay produced than, those greater essentially equivalent to, testi trial cross-examined preference for the Constitution’s mony. Id., at exception to penal interest” “against ex- firmly rooted recognized previously other rule—unlike state- maxim on the based generally ceptions not—is conse- legal on the to reflect a motive made without ments are in situations statement, and quences one’s dangers of inac- veracity, lack exceptionally conducive exception, hearsay. The accompany curacy typically person “that a assumption on broad is founded rather, interest against his own unlikely statement fabricate *10 127 the time it is made.” Mississippi, Chambers v. 410 U. S. (1973). 284, 299
We have previously noted that, due to the sweeping scope
of the label, the simple categorization of a statement as a
“
against
‘declaration
penal interest’ . . .
large
defines too
class for meaningful
analysis.”
Confrontation Clause
Lee v.
Illinois,
the declarant —are routinely offered into against evidence the maker of the statement carry distinguished heri- tage confirming their admissibility when so used. See G. Gilbert, Evidence (1756); 139-140 Case, Lambe’s 2 Leach Eng. Rep. 168 (1791); 379 Kirby, State v. 1 Strob. (1846); State v. Cowan, 29 N. C. 239, Thus, assuming Lilly’s that Mark statements were taken in con- formance with prerequisites, constitutional they would un- questionably be against admissible if him he were on trial for stealing alcoholic beverages.
If Mark were a joint codefendant in a trial, however, even the use of his prove confession to guilt his might have adverse impact rights on the accomplices. his When deal ing with admissions against penal interest, we have taken great care separate using against admissions the declarant (the above) category first using from them other (the criminal defendants category). third
In Bruton v. United (1968), States, 391 U. two co- defendants, Evans and Bruton, jointly were tried and con- victed of postal armed robbery. postal A inspector testified com- had and Bruton he orally that confessed had Evans con- Evans’ was instructed jury the crime. mitted consid- be could but against him, admissible
fession instruction, Despite that guilt. assessing Bruton’s ered confes- Evans’ introduction concluded Court this *11 confront right to Bruton’s to threat serious a posed such sion was he that against him witnesses the cross-examine the issue to relevant case trial. a new to entitled holding concern- principal of its today, because not us before judge’s the follow jury to inability the ability of ing or the among ground common it was because but rather instruction, awas the confession that fact the that the Justices all of justify not did Evans of penal interest against the statement out- the noted White Justice against Bruton. As use its rele- was which confession “nothing dissent, his of set against admissible was Bruton’s case material vant and at 138. Id., Bruton.” reviewed have decided, we Bruton years since
In the
has
confession
defendant’s
one
in which
cases
a number
pursuant
joint trial
ain
evidence
into
introduced
been
against
not
but
against him
be used
it could
instructions
mat
over
disagreement
frequent
Despite
codefendant.
his
instructions,
judge’s
trial
adequacy
the
ters such as
ambiguous references
sufficiency
the redaction
consistently
stated
either
accomplice,
have
we
the declarant’s
accomplice’sconfes
one
fact that
mere
or assumed
did
penal interest
against his
a
qualified as
statement
sion
See
person.
against another
justify
as evidence
its use
not
(1998) (stating that
185, 194-195
Gray Maryland,
U. S.
spe
“creates
accomplice’sconfession
use of
because
de
prosecutor
cross-examination,”
for
vital, need
cial, and
hold
Bruton,
comply
must
siring to
such evidence
offer
use of
juries, or abandon
separate
use
separate trials,
(stating
dissenting)
(Scalia, J.,
confession);
atS.,
523 U.
“may
be considered
confessions
that codefendant’s
defendant’s] guilt”); Richardson
determining [the
purpose of
v. Marsh, 481
U. S.
(“[W]here
two defendants
are tried jointly, the pretrial confession of one cannot be ad
against
mitted
the other unless the confessing defendant
takes
stand”);
Cruz v. New York,
“The practical consequences of this unreasoning limitation are shocking justice; sense of in for, its commonest application, requires, it in a criminal trial, rejection the of a confession, however well authenti- cated, person of a deceased or insane or fled from the jurisdiction (and quite therefore unavailable) who has avowed himself to be the true culprit.... It is therefore not too late to steps, retrace our and to discard this bar- barous doctrine, which would refuse to let an innocent accused vindicate himself by even producing to the tri- bunal a perfectly authenticated written confession,made 130 beyond culprit now by true the very gallows, the
on §1477, Evidence Wigmore, 5 J. justice.” of reach the 1940). (3d ed. pp. 289-290 (CA9 564 563, 2dF. States, 406 v. United Scolari See also Annunziato, v. States Donnelly); United 1969) (criticizing J.) (same); Hines 1961) (Friendly, (CA2 373, 378 2dF. (criticiz E.S. 136 Va. Commonwealth, law); state into incorporate it refusing to Donnelly and ing Rev. L. Cin. Hearsay, 26 U. and Rules Wright, Uniform enlightened more endorsed this Court 1973, Finally, Clause Process Due holding Chambers, view into right to introduce defendants criminal affords penal interest— parties’ declarations third evidence surrounding the circumstances confessions—when their relia- of their assurance considerable “provid[e] statements most States surprisingly, Not at 300. S., bility.” 410 U. admis- to allow hearsay rules their amended now have excep- against-penal-interest under statements such sion 9n. § p. 352, 1476, Evidence Wigmore, 5 J. See tions. 7; n. 1974); §1477, at id., (J. rev. Chadbourn (A. Best pp. 618-626 §§ Evidence Wigmore, J. this hearsay statements 1998). because But Supp. ed. admission accused, by offered definition, are, sort Clause Confrontation implicate does statements such re- whether decide is no need there Thus, concerns. dependable inherently is so liability such exception. firmly rooted they constitute would *13 us before one the like cases, category includes third The “a confes- introduce seeks government the today, which defend- criminal a incriminates accomplice which by an sion admitting practice n. 5. S., Lee, ant.” hear- an under category in this in certain exists practice such extent say rule —to sec- even category first unlike jurisdictions is,— typically category also This vintage. recent quite ond, includes statements that, when offered in the absence of the declarant, function similarly to those used in the ancient parte ex system. affidavit important,
Most this third category of hearsay encom passes statements that are inherently unreliable. Typical of ground swell scholarly judicial criticism that cul minated in the Chambers Wigmore’s decision, treatise still expressly distinguishes accomplices’ confessions that incul pate themselves and the accused as beyond proper under standing of the against-penal-interest exception because an accomplice often has a considerable interest in “confess ing and betraying his eoeriminals.” 5 Wigmore, Evidence § (J. 1477,at 358,n. 1 1974). Chadbourn rev. Consistent with this scholarship and the assumption that sis in our Bruton line of cases, we have analy underlies the years
over the
“spo
ken with one voice in declaring presumptively unreliable ac
complices’ confessions that incriminate defendants.” Lee,
In v. United States, (1909), 212 U. S. Crawford this Court stated that even when alleged accomplice testifies, his confession that “incriminate[s] together himself with ought defendant... to be received suspicion, with and very greatest care ought caution, and not to be passed upon by jury under the same rules governing other and apparently credible Id., witnesses.” at 204. years Over 30 ago, we applied this principle to the Sixth Amendment. We held Douglas v. Alabama, 380 U. S. (1965), that the admission aof nontestifying accomplice’s confession, which shifted responsibility implicated defendant as the triggerman, “plainly [the defendant] denied right cross-examination secured the Confrontation Clause.” Id., at
132 hold- its that explained Douglas and reaffirmed Lee, we In one when understanding that basic the on premised ing “was in circumstances under a crime another accuses person another, inculpating gain to stands declarant the which sub- be must suspect and presumptively is accusation the S., at U. 476 scrutiny of cross-examination.” the
jected to
so because
is
This
Clause
Confrontation
the
truthfinding function
“th[e]
confession
accomplice’s
an
when
threatened
uniquely
is
defendant
a criminal
introduced
sought to be
to
'Due
.
. .
of cross-examination.
benefit
the
without
to
defendant
the
implicate
to
strong motivation
his
about
statements
himself, a codefendant’s
exonerate
than
credible
less
are
did
said
defendant
the
what
Bruton,
(quoting
Ibid.
ordinary
evidence.’”
dissenting)).
(White, J.,
141
atS.,U.
391
“ac-
agreed that
Lee
in
dissenting Justices
the
Indeed, even
untrustworthy precisely
ordinarily are
complice confessions
penal
the
to
adverse
unambiguously
they
not
are
because
at-
likely
be
are
instead
but
declarant,”
of the
interest
atS.,U.
culpability.
declarant’s
the
minimize
tempts to
dissenting).2
(Blackmun, J.,
552-553
Fed-
construing the
approach
to this
adhered
have We
United
v.
in Williamson
Thus,
of Evidence.
eral Rules
our
arose in
cases
line of
unbroken
this
only arguable
held
we
(1970), in which
Evans,
74S.
in Dutton
opinion
plurality
indirectly
that
comment
spontaneous
accomplice’s
anof
admission
the
While
Clause.
Confrontation
not violate
did
defendant
inculpated
statement
declarant’s
observed
opinion
plurality
Stewart’s
Justice
did
id.,
judgment
Court’s
interest,”
at
penal
his
was “against
hold
way purported
no
and in
on that point,
rest
Jus
five
Rather,
admissible.
presumptively
were
attribute
such
empha
case
of the
unique aspects
emphasized
majority
in the
tices
“had
statement
made
spontaneously
co-conspirator
sized that
J.,
id., at 98
(Harlan,
Id.,
also
See
86-89.
to lie.”
reason
apparent
no
result).
concurring
*15
States,
134 state allowed rarely Virginia even that it 1995, appears used to be declarant interest the penal ments against Commonwealth, 219 g., e. Ellison See, trials. criminal that relaxed That Virginia 685 E. 2d 247 S. 404, Va. v. Com Chandler it decided when law hearsay itsof portion it (1995), 2dE. 455 S. monwealth, Va. penal all concluded
later apparently rooted’ ‘firmly “a within fall interest 534, is 2d, at E. Va., at in Virginia,” rule explicit make we fact, which The decisive consequence. no crimi inculpate confessions accomplices’ is that today, *16 exception rooted firmly a within not are defendant nal Confron our in defined been has concept as that rule hearsay jurisprudence.5 Clause tation Mc., 200 Ray, Anthony re In 1996); (Tex. App. Crim. 511, 515 W. 2d S.
918
have
(1997).
other States
Still
2dE.
321,
S.
489
Va.W.
Evid.
Rule
Ala.
See
all.
at
virtually
against-penal-interest
no
(1995) (excep
§24-3-8
Ann.
Code
Ga.
(no
exception);
804(b)(3)
such
view
made
and statement
deceased
is
if declarant
only
tion
(no
(Mo.)
877, 884-885
Skillicorn,
2d
S. W.
944
v.
State
litigation);
toward
999
denied,
U.
522
cert.
exception),
(1968), Cruz
v.
5
States,
123
U. S.
391
United
in Bruton
v.
holdings
Our
(1998),
S. 185
523
Maryland,
(1987), Gray
v.
York,
186
U. S.
New
or
explicitly
premised,
all
(1986), were
Illinois, U. S.
Lee
a
inculpate
that
confessions
accomplice
that
the principle
on
implicitly,
fall
necessarily
(and thus
se admissible
not per
are
defendant
criminal
those
much
how
matter
no
exception),
rooted
firmly
outside
“equally”
"genuinely"
If
accomplice.
incriminate
also
statements
Justice’s
Chief
were —as
accomplices
confessions
inculpatory
against
se admissible
per
at
post,
possible,
146—
suggests
concurrence
would
cases
of those
in each
defendants,
the confessions
then
criminal
accomplice
inculpated
confession
each
admissible, for
been
have
the dissent’s
in Lee
rejected
Court
But
at issue.
crimes
in
equally
“unambigu
are
that
confessions
accomplice's
nontestifying
that position
admissible, see
se
are per
interest
penal
accomplice’s
ously” against
Cruz,
Bruton,
in
ruled
and we
dissenting)
J.,
(Blackmun,
S., at 552
476 U.
inadmissible
are
statements
self-inculpatory
equally
such
Gray
holdings
these
reaffirm
merely
we
Today
defendants.
criminal
V
Aside from its conclusion that Mark’s statements were ad-
missible under a firmly rooted hearsay
exception,
Su-
preme Court of Virginia also affirmed the trial court’s hold-
ing
the statements were “reliable]..,
in the context of
the facts and circumstances under which [they
given”
were]
(i)
because
“Mark Lilly was cognizant of the import of his
statements
and that he was implicating himself as a partici-
pant
numerous crimes”
(ii)
“[elements of [his] state-
ments were independently corroborated” by other evidence
offered at trial
Id., at 574,
that falls into the category summarized in Lee—“a confession by an accom- plice which incriminates a criminal defendant,” 476 S,,U. at n. 5— does not come within a firmly rooted hearsay exception.
This, of course, does not mean, as The Chief Justice, post, at 147-148 (opinion concurring in judgment), and Thomas, Justice post, at 143 (opin- ion concurring in part and concurring in judgment), erroneously suggest, that the Confrontation Clause imposes a “blanket ban on the government’s use of [nontestifying] accomplice statements that incriminate a defend- ant.” Rather, it simply means that the government must satisfy the sec- ond prong of the Ohio v. Roberts, 448 U. S. (1980), 56 test in order to introduce such statements. V, See Part infra. 6Although The Chief Justice contends that we should remand this issue to the Supreme of Court Virginia, see post, at 148-149, it would be inappropriate to do so because granted we certiorari on issue, this Pet. see Cert, i, for and the parties have fully briefed and the argued issue. The that axiom the credits test “trustworthiness” residual admissibility for standard Clause’s of the application rigid a un an of a statement exclude ease exceptional
might in an competent, incontestably probative, is that witness available firmly rooted any of outside yet nonetheless reliable, 243- S., at U. Mattox, 68; id., Cf. exception. hearsay of context in the confident—as be can a court When 244. “the firmly rooted falling within —that cir surrounding the from clear sois truthfulness declarant’s of be would cross-examination of test the that cumstances “trust residual Amendment’s Sixth utility,” the marginal declarant’s the of admission the allows test worthiness” S., at Wright, 497 statements. that suggests however, opinions, prior Nothing our determinations courts’ to lower defer should courts appellate particularized has hearsay statement regarding whether contrary, those the To trustworthiness. of guarantees other as assumed, have we that indicate opinions that law, constitutional questions fact-intensive, mixed con- to maintain necessary ... is ... review “[^Independent fac- governing principles” legal clarify, to of, and trol protections satisfy the necessary to circumstances tual 690, 697 U. S. States, v. United Rights. Ornelas ofBill reason- review should courts appellate (1996) (holding that novo). de determinations probable-cause suspicion able determination courts’ Virginia accept the course, We, of hear- state purposes reliable were Mark’s review we court, any appellate should and, as say law, courts Virginia above, formula, recited circumstances” “facts virtually identi- holdings reliability reaching their employed already on well turns as test, which guarantees” “particularized the Roberts cal Wright, Idaho the statements. circumstances” “surrounding Common- dear, become Furthermore, will as U. S. Supreme issue this regarding fact any point fails wealth *18 serious requires consider explicitly did not Virginia Court analysis.
presence or absence of historical facts for clear error. But the surrounding circumstances relevant to a Sixth Amend- ment admissibility determination do not include the declar- ant’s (otherwise in-eourt demeanor the declarant would be testifying) any other factor uniquely suited to the province of trial courts. For these reasons, when deciding whether the admission of a declarant’s out-of-court state- ments violates the Confrontation Clause, courts should inde- pendently review whether government’s proffered guar- antees of satisfy trustworthiness the demands of the Clause.
The Commonwealth correctly notes that “the presumption
of unreliability that attaches to codefendants’ confessions
. . may
.
be rebutted.” Lee,
may properly ” Wright, trustworthiness.’ of guarantees 'particularized admis- the that concluded we Wright, In 822. S., at U. the violated declarant by child a hearsay statements of sion ad- were though statements the even Clause Confrontation recognized hearsay rule the to under missible by other they corroborated were though even Idaho, and in theoretically possible it was that recognized We evidence. guarantees “'particularized possess to statements such for admissibility, their justify would of trustworthiness’” trust- “bootstrap the on” to the State allow to refused we but under admissible be “To evidence. of other worthiness used “hearsay evidence held, Clause,” we Confrontation by vir- reliability of indicia possess must a defendant convict to other by reference not trustworthiness, inherent tue of its Ibid. trial.” at evidence rights Miranda of his informing Mark police’s did Nor sig- surrounding his statements circumstances render simi- a rejecting noted trustworthy. We nificantly more “vol- was confession a finding that a Lee that argument in lar on bear does ... purposes Amendment untary Fifth for from free also confession of whether question had may have declarant] [the impulse or motive, any desire, culpability own his of appearance mitigate the either defendant’s]involve- [the to overstate the blame spreading By the 544. S., at issue. at crimes in the ment” his consciousness suspect’s a believe token, we same likelihood bearing on the any, little, if rights has Miranda in cus- suspect is a When statements. his truthfulness his crimes, serious involvement obvious his tody for him against used may be says he anything knowledge that veracity. his on depending militates reliability— basis proffered next Commonwealth’s liabil- criminal himself exposing he was knew that Mark his portions fact ity merely restates — ex- have we asAnd penal interest. technically against were plained, such suspect statements are they insofar as incul- pate persons. “[T]hat other person making broadly self-inculpatory confession does not make more credible confession’s non-self-inculpatory parts.” Williamson, 512 U. S., at 599. Accord, Lee, 476 S.,U. Similarly, *20 of express absence promise leniency of to Mark does not enhance his reliability statements’ to the necessary level their untested police admission. The person need not tell a custody who is in that his may gain leniency him in order for suspect to speaking up, surmise that particularly placing blame on his may cohorts, to his inure advantage.
It is abundantly clear that neither the words that Mark spoke setting nor the in questioned which he was provides any concluding basis for that his regarding comments peti guilt tioner’s so were reliable that there was no to sub need ject to them testing adversarial setting. in a trial was Mark custody in for his knowledge involvement in, and of, serious crimes and made his supervision statements under the of governmental authorities. primarily He was responding leading questions, officers’ which were asked without any contemporaneous cross-examination parties. adverse Thus, Mark had a attempt natural motive exculpate to possible. himself as much id., as See at 544-545; Dutton v. (1970) (Harlan, Evans, 400 U. S. 98 concurring J., in re sult). Mark also obviously still under influence of alcohol. Each of these factors finding militates his inherently statements were so reliable that cross- examination superfluous. have would been
VI The admission of the Lilly untested confession of Mark vio- petitioner’s lated rights. Adhering Confrontation Clause general our of allowing initially custom state courts assess erroneously effect of light admitted evidence in of sub- stantive state criminal Virginia law, leave it to the we courts Amend- this Sixth whether in first instance to consider doubt.” a reasonable beyond "harmless ment error was also Chapman See U. v. California, of the judgment Lee, at 547. S., Accordingly, is case and the reversed, Court Supreme Virginia for further remanded proceedings. ordered.
It is so Breyer, Justice concurring. Clause gener the Confrontation
As currently interpreted, unless the a trial into of hearsay the introduction forbids ally rooted hearsay within a firmly exception” evidence "falls trustwor guarantees otherwise "particularized possesses (1980). Amici Roberts, 448 U. S. Ohio thiness.” of this Court Justices case, this opinions citing reexamine that we should have scholars, argued work the Confrontation have connected our cases which way *21 Civil Brief for American rule. See Clause and hearsay g., e. et al. Amici Curiae also, see 2-3; as Liberties Union (1992) J., Illinois, 502 U. S. 346, 358 joined v. White (Thomas, in judg in and concurring J., part concurring Scalia, Prin for Basie The Search Friedman, ment); Confrontation: The Constitution Amar, A. (1998); 86 J. 1011 L. Geo. ciples, Deconstitu The (1997); Procedure 129 Berger, and Criminal for a A Clause: Proposal of the Confrontation tionalization 557 Rev. Model, 76 Minn. L. Prosecutorial Restraint hear directly the Clause so effort to tie The Court’s supra, Roberts, recent vintage, compare rule is fairly say Green, 399 U. S. (1970), while 149, 155-156 with California that pre has ancient origins itself Clause Confrontation States, Salinger v. United see rule, date not did (1926) (“The orig of confrontation right S. Amendment, but was the Sixth in with the inate provision exceptions”). recognized a common-law having right is men face-to-face his accusers of an accused meet right Bible, Shakespeare, other in, things, tioned among 16th- 17th-century British statutes, eases, and treatises. See The Bible, Shakespeare, 25:16; Acts W. II, Richard act i, 1; sc. Shakespeare, W. Henry VIII, act ii, sc. 1; 30 Wright C. & K. Graham, Federal Practice and Procedure p. §6342, (quoting statutes King enacted under Edward VI in 1558); 1552 and Queen Elizabeth I in cf. Case Tong, Kelyng Thomas Eng. J. Rep. 1061, 1062 of (1662) (out-of-court may against confession be used the con against but fessor, co-conspirators); his History Hale, M. (C. of the England Common Law of Gray 1971); 163-164 ed. 3 W. Blackstone, Commentaries traditionally *373. As un right derstood, the designed prevent, example, for kind permitted of abuse that Crown convict Sir Walter Raleigh of treason on the basis of the out-of-court confession of Lord a co-conspirator. Cobham, Wright See 30 Gra & § supra, ham, 6342, at 258-269. light
Viewed in of its purposes, traditional current, hearsay-based Confrontation argue, test, Clause amici both too narrow and too arguably broad. The test is too insofar as it narrow authorizes the admission out-of-court prepared statements testimony as for a trial when such statements happen to fall well-recognized within some hear say exception. rule example, deposition For or videotaped confession sometimes could fall exception within for vicarious admissions or, in The Chief view, the Justice’s penal post, interest. See at generally 145-146. See supra, White, at 364-365 (Thomas, concurring J., part and concurring judgment); Friedman, supra, at supra, 1025; Berger, Amar, supra, 129; *22 at 596- 602; Brief for American Liberties Civil Union et al. as Amici why Curiae But 16-20. should a modern Lord Cobham’s out-of-court confession simply become admissible because of fortuity, a conspiracy such as the having through continued police questioning, thereby time bringing the confes sion within the exception “well-established” for the vicarious admissions of co-conspirator? a Evans, Cf. Dutton v. 400 142 why we, (1970) should opinion). Or (plurality
U. S. my “let Ac- deny plea to Raleigh’s a prosecutor, like Walter (now to the related words face,” with face to come cuser a presumes, man “The law exception) as, such penal interest Sir Trial another”? to accuse himself accuse not will Raleigh, Tr. St. How. Walter hearsay-based Confronta current time, the same At amake It would arguably broad. too test is tion Clause any relevant the admission out of issue constitutional only hearsay is statement if hearsay even statement, dispute, was made in or the elements tangentially related relation without occurred the crime long before admission not It obvious is hearsay prospect of future trial. business because record, which of business aof scrawled admission conducted,” “regularly not crime, many before months “Mary dated called,” note, right “to be constitutional basic the defendant’s violates cannot one Yet him.” the witnesses confronted with hearsay excep a traditional within easily evidence fit such special this Court’s it fit within Nor can one tion. “ of trustworthi guarantees ‘particularized hearsay the Sixth whether any is debatable event, it in and, ness’ “trustworthiness,” rather protects principally Amendment J., supra, at 368 White, See “confrontation.” than (Thomas, Mary concurring judgment); cf in concurring part and dis J., Craig, land v. (Scalia, guarantee (“[T]he not does Clause senting) Confrontation procedures that specific trial guarantees it evidence; reliable among undeniably evidence, thought assure reliable were confrontation”). which was ‘face-to-face’ between connection current need not reexamine We case, this rule in Clause the Confrontation Clause violate at issue the statements however, because point separately I write ante, at 139. regardless. See the link this do reevaluate that we the fact out that *23 case does not end matter. It leave may the question for another open day. in
Justice and concurring Scalia, in part concurring judgment.
During custodial interrogation, Mark Lilly told police officers that petitioner committed the charged murder. The prosecution introduced a tape these state recording ments at trial without Mark available making for cross- examination. In view, that is a my Confronta paradigmatic tion Clause violation. See White v. Illinois, 502 U. (1992) 364-365 J., concurring in and part concur (Thomas, (“The in ring judgment) federal constitutional of con right frontation extends any witness who testifies actually trial” and “extrajudicial statements insofar only as are they contained in formalized testimonial materials, such as affi davits, depositions, confessions”). or prior testimony, Since violation clear, the case need be remanded for a only harmless-error determination. I therefore Parts join I, II, and VI of the Court’s opinion and coneur in the judgment. in concurring
Justice Thomas, part in concurring the judgment.
I join Parts I and VI of the Court’s opinion concur in I judgment. continue to Though adhere to view that my the Confrontation Clause “extends witness who actu- any ally testifies at trial” and “is implicated by extrajudicial statements only insofar as they are in contained formalized testimonial material, such affidavits, as depositions, prior confessions,” White Illinois, testimony, U. S. (opinion concurring part concurring judg- ment), I with agree that the Glause does Chief Justice a “blanket impose ban on the use of government’s accom- post, plice statements incriminate defendant,” at 147. *24 original under- only departs from an approach not Such our freezes but also Clause standing of the Confrontation excluding such by making decisions court trial jurisprudence agree with I also The virtually unreviewable. statements “analyz[e] the did not lower courts that the Chief Justice inquiry,” Roberts prong of the second under confession plurality no reason see therefore post, 148, and at pass. not courts did upon those which an issue address Justice whom O’Con- Rehnquist, with Justice Chief Kennedy concurring join, Justice nor and judgment. accomplice confes- today all plurality concludes
The a are within defendant inculpate a criminal sions hearsay under Ohio rule exception to the firmly rooted con- It also ante, at 184. See Roberts, 448 U. S. independently review courts should appellate cludes that under of trustworthiness guarantees proffered government’s at I inquiry. ante, See the Roberts the second half of in the concur conclusions, but disagree both these Supreme Court reversing the judgment decision Virginia.
I case in correctly in this issue plurality states the The petitioner’s Con- opinion: of its Whether opening sentence anof admission rights were violated Clause frontation statements contained some “that accomplice’s confession incul- others that accomplice’spenal interest against ac- of the 120. The confession Ante, pated the accused.” Appendix, pages in the Joint Lilly, complice, covers Mark an hour. about themselves lasted and the interviews penal inter- Lilly against his are which of Mark and abettor— as an aider him probably show would est—and place other statements from separate in time quite are exculpating Mark incriminating petitioner his brother, Benjamin Lilly, in the murder of DeFilippis.1 Alexander
Thus one is at why loss know so plurality’s much of the opinion is devoted to whether a against penal declaration in “firmly terest is a exception” rooted hearsay rule under supra;. Ohio v. Certainly, Roberts, accept we must Virginia court’s determination that Mark’s statements as a whole against penal were declarations purposes interest for of the Commonwealth’s rule. ante, See at 125. Simply labeling a confession a “declaration penal in terest,” however, is purposes insufficient for Roberts, as this large “defines too meaningful class for Con *25 analysis.” frontation Clause Lee v. Illinois, 476 U. S. 5 544, n. plurality systematiz tries its hand at ing this class, ante, see at 127,but most of housecleaning its is unwarranted and results in complete ban govern on the accomplice ment’s use of confessions inculpate a co- categorical defendant. Such a holding place has no in this case portions because the relevant Lilly’s of Mark confession simply were against penal “declarations interest” as that is term understood in the law of may evidence. There be close eases where the against penal declaration por interest closely tion portion tied in incriminating the de- 1Mark identifies Ben as the one who murdered Alexander DeFilippis the following colloquy: “M. know, know, L. I don’t you dude shoots him. “G. P. When you say ‘dude shoots him’ which you one are calling a dude
here? Well, “M. L. Ben shoots him.
“G. brother, P. Talking your about what did he shoot him with? “M. L. Pistol.
“G. many P. How times he did shoot him?
“M. off, L. I couple go heard of shots I don’t know how many he times hit him.” App. id., A similar colloquy occurred the second interview. See at 312-313. (4th § Strong, on Evidence McCormick fendant, see J. 1992), Lilly’s Mark state- not one of them. but this is ed. DeFilippis inculpating in the murder brother ments his penal interest. against Mark’s not in the least are question whether does not raise the case This therefore genu- of a permits the admission the Confrontation Clause inculpates a co- inely self-inculpatory that also statement compel broad precedent does not defendant, and our today. by plurality Cf. holding suggested Williamson States, v. United (1994) (Kennedy, J., 618-619 examples providing of self- concurring) (explaining and against penal inter- serving and more neutral declarations est). Appeals have admitted cus- Indeed, Courts several inculpate equally both the declarant confessions that todial preclude us to I no reason for defendant,2 and the and see satisfying a statements as or similar consideration these firmly hearsay exception under rooted Roberts. Lilly’s incriminating only portions of Mark were the
Not penal interest, these but not a confession declaration part of the sort of a custodial confession were suspicion” given a “special viewed with that this Court has implicate the defendant “‘strong motivation codefendant’s (citations supra, Lee, at 541 to exonerate himself.’” omitted). support plurality Each of the cases cited *26 accusatory taken conclusion statements its broad involved prosecution. See personnel with a view enforcement law (1965); Lee, Douglas 415, 416-417 Alabama, 380 U. S. v. States, supra, 123, 391 U. S. at Bruton v. United 532-536; cf. (1968); supra, at These cases Williamson, 596-597. 124-125 United, 1998) (state (CA8 Keltner, 662, 670 e. See, 147 F. 3d g., States v. “activity liability to criminal subjected” ment declarant “clearly . . with . both participate planning which and was participated [he] (“entire (CA10 1996) 1123, 1134 Dorsey, Earnest v. defendants”); 3d F. and “nei equally” [defendant] [declarant] statement inculpated both curry nor to favor co-conspirators blame to his to shift [attempted] ther police prosecutor”). from
did solely not turn on the fact challenged that the statement inculpated the grounded defendant, but were instead in the suspicion Court’s of untested custodial confessions. See, g., e. supra, Lee, at plurality 544-545. The describes Dutton (1970), v. Evans, 400 U. 74 “exception” as an to this line of cases, ante, at 132,n. 2, but that case accomplice’s involved an prisoner, statement to a fellow see 400 S.,U. at 77-78, not a custodial confession.
The Court in Dutton held that the admission of an ac- complice’s statement to a fellow inmate did not violate the Confrontation Clause under the facts of that see case, id., at 86-89, and I see no possibility reason to foreclose the such statements, even inculpate those that a codefendant, may firmly fall under a hearsay rooted exception. The recognized Court in Dutton prison- statements to fellow ers, like family confessions to members or friends, bear suf- reliability ficient placed indicia of jury to be before a without confrontation of the Id., declarant. at 89. federal Several courts similarly have concluded that such fall firmly under a rooted exception.3 Dutton is thus “exception,” no wholly but a case outside the “unbroken line” of cases, ante, see n. 2, in which custodial confessions laying on a blame eodefendant have been found to violate the Confrontation Clause. The custodial confession in this case falls coverage under the of this latter set of cases, and I would holding any not extend the here further. plurality’s government’s blanket ban on the use of accomplice statements that incriminate a defendant thus sweeps beyond the facts of precedent, this case and our
3 See, e. g., York, United States (CA7 1991) 933 F. v. 2d 1362-1364 (finding federal declaration penal exception firmly interest rooted in case involving accomplice’s associates); statements made to two United States (CA11989) Seeley, 1, 2 F. 2d (exception firmly in case rooted involving statements made to declarant’s girlfriend stepfather); United (CA2 (no v. Katsougrakis, States 1983) 715 F. 2d violation *27 in friend). admitting accomplice’s confession of Mark’s nature exculpatory both the ignoring the given. Unlike it was which the circumstances and hand, case holding to the here our I would limit plurality, lay- confession Lilly’s custodial only Mark that decide and firmly satisfy a cannot petitioner responsibility on ing sole hearsay exception. rooted
II deci- the reverse than more to do any reason I see Nor do ease remand Virginia and of Supreme Court of sion confes- Mark’s that demonstrate the Commonwealth trustworthiness” guarantees “particularized bears sion of Vir- Supreme Court The atS., Roberts, 448 U. under admissible Lilly’s confession only Mark ginia held then and rules to its under state-law a firmly for Confrontation rooted exception was that this held E. 2d 573-574, Va. purposes. See Clause court trial court nor Neither 522, 533-534 Rob- of the prong the second under analyzed confession by the reliability cited inquiry, the discussion erts only to whether pertained 122-123, 135, ante, at Court, see hearsay rules, state admitted under be should confession Following normal our Clause. the Confrontation under not upon an issue to reach this Court reason for I see no course, College National pass. See did not courts lower which (“[W]e do 459, 525 S. Smith, Assn. Athletic below”). decided not issues instance first decide question should the harmless-error issue this Thus, both 139-140. ante, at See Virginia courts. sent back be es- makes in this case any decision reviewable lack of appellate plurality’s conclusion troubling the pecially determi- court’s lower independently review must courts guar- particularized bears hearsay statement that a nation particular Deciding whether of trustworthiness. antees reliability our under proper indicia bears statement question “may mixed be a precedent Clause Confrontation side. “fact” heavily on the weighs the mix but law,” fact *28 We have said that “deferential review questions of mixed law and fact is warranted appears when it that the district court is positioned’ ‘better appellate than the court decide the issue question or that probing appellate scrutiny will not contribute to the clarity legal doctrine.” Salve Re gina College v. (citation Russell, 499 U. S. omitted).
These factors counsel in favor of deference to judges trial who undertake the prong second of the inquiry. Roberts They are better able to evaluate whether a particular state- given ment particular in a setting is sufficiently reliable that cross-examination would add little to its trustworthiness. Admittedly, this inquiry require does not credibility determi- nations, but we have already held that deference to district courts depend does not on the credibility need for determina- tions. See Anderson v. Bessemer City, 470 U.
Accordingly, Anderson, I believe that in setting here, as in “[d ]uplieation judge’s the trial efforts in the court of appeals very would likely only contribute negligibly to the accuracy of fact huge determination at a cost in diversion of judicial resources.” See id., at 574-575. It is difficult to apply any standard in this case because none of the courts below conducted part second inquiry. the Roberts I would therefore remand this case to Supreme Court of Virginia carry out inquiry, any and, if error is found, to determine whether that error is harmless.