OCTOBER TERM, 1998SyllabusLILLY v. VIRGINIACERTIORARI TO THE SUPREME COURT OF VIRGINIA
No. 98-5881. Argued March 29, 1999-Decided June 10, 1999
Petitioner, his brother Mark, and Gary Barker were arrested atthe end of a 2-day crime spree, during which they, interalia, stole liquor and guns and abducted Alex DeFilippis, whowas later shot and killed. Under police questioning, Mark admittedstealing alcoholic beverages, but claimed that petitioner andBarker stole the guns and that petitioner shot DeFilippis. WhenVirginia called Mark as a witness at petitioner's subsequentcriminal trial, Mark invoked his Fifth Amendment privilege againstself-incrimination. The trial court then admitted his statements tothe police as declarations of an unavailable witness against penalinterest, overruling petitioner's objections that the statementswere not against Mark's penal interest because they shiftedresponsibility for the crimes to Barker and petitioner, and thattheir admission would violate the Sixth Amendment's ConfrontationClause. Petitioner was convicted of the DeFilippis murder and othercrimes. In affirming, the Virginia Supreme Court found that theConfrontation Clause was satisfied because Mark's statements fellwithin a firmly rooted exception to the hearsay rule. The courtalso held that the statements were reliable because Mark knew thathe was implicating himself as a participant in numerous crimes andbecause the statements were independently corroborated by otherevidence at trial.Held: The judgment is reversed, and the case is remanded.255 Va. 558, 499 S. E. 2d 522, reversed and remanded.JUSTICE STEVENS delivered the opinion of the Court with respectto Parts I, II, and VI, concluding:1. This Court has jurisdiction over petitioner's ConfrontationClause claim. He expressly argued the claim in his opening brief tothe Virginia Supreme Court; and his arguments based onWilliamson v. United States, 512 U. S. 594, and theConfrontation Clause opinion of Lee v. Illinois,476 U. S. 530, inresponding to the Commonwealth's position, sufficed to raise theissue in that court. P. 123.2. The admission of Mark's untested confession violatedpetitioner's Confrontation Clause rights. Adhering to this Court'sgeneral custom of allowing state courts initially to assess theeffect of erroneously admitted evidence in light of substantivestate criminal law, the Virginia courts are to consider in thefirst instance whether this Sixth Amend-
117ment violation was "harmless beyond a reasonable doubt."ChapmanJUSTICE STEVENS, joined by JUSTICE SOUTER, JUSTICE GINSBURG, andJUSTICE BREYER, concluded in Parts III, IV, and V that Mark'shearsay statements do not meet the requirements for admission setforth in Ohio v. Roberts, 448 U. S. 56, 66. Pp.123-139.(a) The Confrontation Clause ensures the reliability of evidenceagainst a defendant by subjecting it to rigorous testing in anadversary proceeding, Maryland v. Craig, 497 U. S. 836, 845, as bycrossexamination of a declarant, see California v.Green, 399 U.S. 149, 158. Hearsay statements are sufficiently dependable toallow their untested admission against an accused only when (1) thestatements fall "within a firmly rooted hearsay exception" or (2)they contain "particularized guarantees of trustworthiness" suchthat adversarial testing would be expected to add little, ifanything, to their reliability. Roberts, 448(b) Statements are admissible under a "firmly rooted" hearsayexception when they fall within a hearsay category whose conditionshave proved over time "to remove all temptation to falsehood, andto enforce as strict an adherence to the truth as would theobligation of an oath" and cross-examination at a trial.Mattox v. United States, 156 U. S. 237, 244. Thesimple categorization of a statement as "against penal interest"defines too large a class for meaningful Confrontation Clausereview. Such statements are offered into evidence (1) as voluntaryadmissions against the declarant; (2) as exculpatory evidenceoffered by a defendant who claims that the declarant committed, orwas involved in, the offense; and (3) as evidence offered by theprosecution to establish the guilt of an alleged accomplice of thedeclarant. The third category, which includes statements such asMark's, encompasses statements that are presumptively unreliable,Lee, 476 U. S., at 541, even when the accompliceincriminates himself together with the defendant. Accomplicestatements that shift or spread blame to a criminal defendant,therefore, fall outside the realm of those "hearsay exceptionEs][that are] so trustworthy that adversarial testing can be expectedto add little to [the statements'] reliability." White v.Illinois, 502U. S. 346, 357. Such statements are not within a firmly rootedexception to the hearsay rule. Pp. 125-134.(c) The Commonwealth contends that this Court should defer tothe Virginia Supreme Court's additional determination that Mark'sstatements were reliable and that the indicia of reliability thecourt found, coupled with the actions of police during Mark'sinterrogation, demonstrate that the circumstances surrounding hisstatements bore "particularized guarantees of trustworthiness,"Roberts, 448 U. S., at 66, suffi-
118Syllabuscient to satisfy the Confrontation Clause's residualadmissibility test. Nothing in this Court's prior opinions,however, suggests that appellate courts should defer to lower courtdeterminations regarding mixed questions of constitutional law suchas whether a hearsay statement has sufficient guarantees oftrustworthiness. See Ornelas v. United States,517 U. S. 690,697. Thus, courts should independently review whether thegovernment's proffered guarantees of trustworthiness satisfy theClause. Here, the Commonwealth's asserted trustworthinessguarantees are unconvincing. Mark was in custody for hisinvolvement in, and knowledge of, serious crimes. He made hisstatements under governmental authorities' supervision, and wasprimarily responding to the officers' leading questions. He alsohad a natural motive to attempt to exculpate himself and was underthe influence of alcohol during the interrogation. Each of thesefactors militates against finding that his statements were soinherently reliable that cross-examination would have beensuperfluous. Pp. 135-139.JUSTICE SCALIA concluded that introducing Mark Lilly'staperecorded statements to police at trial without making himavailable for cross-examination is a paradigmatic ConfrontationClause violation. Since the violation is clear, the case need beremanded only for a harmless-error determination. P. 143.JUSTICE THOMAS, while adhering to his view that theConfrontation Clause extends to any witness who actually testifiesat trial and is implicated by extrajudicial statements only insofaras they are contained in formalized testimonial material, such asaffidavits, depositions, prior testimony, or confessions,White v. Illinois, 502 U. S. 346, 365,agrees with THE CHIEF JUSTICE that the Clause does not impose ablanket ban on the use of accomplice statements that incriminate adefendant and that, since the lower courts did not analyze theconfession under the second prong of the Roberts inquiry,the plurality should not address that issue here. Pp. 143-144.THE CHIEF JUSTICE, joined by JUSTICE O'CONNOR and JUSTICEKENNEDY, concluded:1. Mark Lilly's confession incriminating petitioner does notsatisfy a firmly rooted hearsay exception because the statements inhis 50-page confession which are against his penal interest arequite separate from the statements exculpating him and inculpatingpetitioner, which are not in the least against his penal interest.This case, therefore, does not raise the question whether theConfrontation Clause permits the admission of a genuinelyself-inculpatory statement that also inculpates a codefendant. Notonly were the confession's incriminating portions not a declarationagainst penal interest, but these statements were part of acustodial confession of the sort that this Court has viewedwith
119special suspicion given a codefendant's strong motivation toimplicate the defendant and exonerate himself. Lee v.Illinois, 476U. S. 530, 541. A blanket ban on the government's use ofaccomplice statements that incriminate a defendant sweeps beyondthis case's facts and this Court's precedents. Pp. 144-148.2. The Virginia Supreme Court did not analyze the confessionunder the second prong of the Ohio v. Roberts,448 U. S. 56,inquiry, so the case should be remanded for the Commonwealth todemonstrate that the confession bears "particularized guarantees oftrustworthiness" and, if any error is found, to determine whetherthat error is harmless. Pp. 148-149.STEVENS, J., announced the judgment of the Court and deliveredthe opinion of the Court with respect to Parts I and VI, in whichSCALIA, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined, theopinion of the Court with respect to Part II, in which SCALIA,SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion withrespect to Parts III, IV, and V, in which SOUTER, GINSBURG, andBREYER, JJ., joined. BREYER, J., filed a concurring opinion,post, p. 140. SCALIA, J., post, p. 143, and THOMAS,J., post, p. 143, filed opinions concurring in part andconcurring in the judgment. REHNQUIST, C. J., filed an opinionconcurring in the judgment, in which O'CONNOR and KENNEDY, JJ.,joined, post, p. 144.Ira S. Sacks argued the cause for petitioner. Withhim on the briefs was Christopher A. Tuck.Katherine P. Baldwin, Assistant Attorney General ofVirginia, argued the cause for respondent. With her on the briefwas Mark L. Earley, Attorney General. **Briefs of amici curiae urging reversal were filed forthe American Civil Liberties Union et al. by Margaret A. Berger,Richard D. Friedman, and Steven R. Shapiro; and for theNational Association of Criminal Defense Lawyers et al. byWilliam S. Geimer, Lisa Kemler, and MarvinMiller.Briefs of amici curiae urging affirmance were filed forthe State of Nebraska et al. by Don Stenberg, AttorneyGeneral of Nebraska, J. Kirk Brown, AssistantAttorney General, and Michael C. Stern, ActingAttorney General of Guam, and by the Attorneys General for theirrespective States as follows: Janet Napolitano of Arizona,Carla J. Stovall of Kansas, Richard P.Ieyoub of Louisiana, J. Joseph Curran, Jr., ofMaryland, Michael C. Moore of Mississippi, JosephP. Mazurek of Montana, Frankie Sue Del Papa of Nevada,Michael F. Easley of North Carolina,
120JUSTICE STEVENS announced the judgment of the Court anddelivered the opinion of the Court with respect to Parts I, II, andVI, and an opinion with respect to Parts III, IV; and V, in whichJUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join.The question presented in this case is whether the accused'sSixth Amendment right "to be confronted with the witnesses againsthim" was violated by admitting into evidence at his trial anontestifying accomplice's entire confession that contained somestatements against the accomplice's penal interest and others thatinculpated the accused.IOn December 4, 1995, three men-Benjamin Lee Lilly (petitioner),his brother Mark, and Mark's roommate, Gary Wayne Barker-broke intoa home and stole nine bottles of liquor, three loaded guns, and asafe. The next day, the men drank the stolen liquor, robbed a smallcountry store, and shot at geese with their stolen weapons. Aftertheir car broke down, they abducted Alex DeFilippis and used hisvehicle to drive to a deserted location. One of them shot andkilled DeFilippis. The three men then committed two more robberiesbefore they were apprehended by the police late in the evening ofDecember 5.After taking them into custody, the police questioned each ofthe three men separately. Petitioner did not mention the murder tothe police and stated that the other two men had forced him toparticipate in the robberies. Petitioner's brother Mark and Barkertold the police somewhat different accounts of the crimes, but bothmaintained that petitionerHeidi Heitkamp of North Dakota, Betty D.Montgomery of Ohio, Hardy Myers of Oregon, D. MichaelFisher of Pennsylvania, Charles M. Condon of SouthCarolina, Mark Barnett of South Dakota, and Paul G.Summers of Tennessee; and for the Criminal Justice LegalFoundation by Kent S. Scheidegger and Charles L.Hobson.
121masterminded the robberies and was the one who had killedDeFilippis.A tape recording of Mark's initial oral statement indicates thathe was questioned from 1:35 a.m. until 2:12 a.m. on December 6. Thepolice interrogated him again from 2:30 a.m. until 2:53 a.m. Duringboth interviews, Mark continually emphasized how drunk he had beenduring the entire spree. When asked about his participation in thestring of crimes, Mark admitted that he stole liquor during theinitial burglary and that he stole a 12-pack of beer during therobbery of the liquor store. Mark also conceded that he had handleda gun earlier that day and that he was present during the moreserious thefts and the homicide.The police told Mark that he would be charged with armed robberyand that, unless he broke "family ties," petitioner "may bedragging you right in to a life sentence," App. 257. Markacknowledged that he would be sent away to the penitentiary. Heclaimed, however, that while he had primarily been drinking,petitioner and Barker had "got some guns or something" during theinitial burglary. Id., at 250. Mark said that Barker hadpulled a gun in one of the robberies. He further insisted thatpetitioner had instigated the carjacking and that he (Mark) "didn'thave nothing to do with the shooting" of DeFilippis. Id., at256. In a brief portion of one of his statements, Mark stated thatpetitioner was the one who shot DeFilippis.The Commonwealth of Virginia charged petitioner with severaloffenses, including the murder of DeFilippis, and tried himseparately. At trial, the Commonwealth called Mark as a witness,but he invoked his Fifth Amendment privilege againstself-incrimination. The Commonwealth therefore offered to introduceinto evidence the statements Mark made to the police after hisarrest, arguing that they were admissible as declarations of anunavailable witness against penal interest. Petitioner objected onthe ground that the statements were not actually against Mark'spenal
122interest because they shifted responsibility for the crimes toBarker and to petitioner, and that their admission would violatethe Sixth Amendment's Confrontation Clause. The trial judgeoverruled the objection and admitted the tape recordings andwritten transcripts of the statements in their entirety. The juryfound petitioner guilty of robbery, abduction, carjacking,possession of a firearm by a felon, and four charges of illegal useof a firearm, for which offenses he received consecutive prisonsentences of two life terms plus 27 years. The jury also convictedpetitioner of capital murder and recommended a sentence of death,which the court imposed.The Supreme Court of Virginia affirmed petitioner's convictionsand sentences. As is relevant here, the court first concluded thatMark's statements were declarations of an unavailable witnessagainst penal interest; that the statements' reliability wasestablished by other evidence; and, therefore, that they fellwithin an exception to the Virginia hearsay rule. The court thenturned to petitioner's Confrontation Clause challenge. It began byrelying on our opinion in White v. Illinois, 502 U. S. 346 (1992), forthe proposition that" '[w]here proffered hearsay has sufficientguarantees of reliability to come within a firmly rooted exceptionto the hearsay rule, the Confrontation Clause is satisfied.'" 255Va. 558, 574, 499 S. E. 2d 522, 534 (1998) (quoting White,502 U. S., at 356). The Virginia court also remarked:
"[A]dmissiblity into evidence of the statement against penalinterest of an unavailable witness is a 'firmly rooted' exceptionto the hearsay rule in Virginia. Thus, we hold that the trial courtdid not err in admitting Mark Lilly's statements into evidence."255 Va., at 575, 499 S. E. 2d, at 534.
"That Mark Lilly's statements were self-serving, in that theytended to shift principal responsibility to others or to offerclaims of mitigating circumstances, goes to the
weight the jury could assign to them and not to theiradmissibility." Id., at 574, 499 S. E. 2d, at 534.
Our concern that this decision represented a significantdeparture from our Confrontation Clause jurisprudence prompted usto grant certiorari. 525 U. S. 981 (1998).IIAs an initial matter, the Commonwealth asserts that we shoulddecline to exercise jurisdiction over petitioner's claim because hedid not fairly present his Confrontation Clause challenge to theSupreme Court of Virginia. We disagree. Although petitioner focusedon state hearsay law in his challenge to the admission of Mark'sstatements, petitioner expressly argued in his opening brief tothat court that the admission of the statements violated his SixthAmendment right to confrontation. He expanded his Sixth Amendmentargument in his reply brief and cited Lee v.Illinois, 476U. S. 530 (1986), and Williamson v. UnitedStates, 512 U. S.594 (1994), in response to the Commonwealth's contention thatthe admission of the statements was constitutional. Thesearguments, particularly the reliance on our Confrontation Clauseopinion in Lee, sufficed to raise in the Supreme Court ofVirginia the constitutionality of admitting Mark's statements. SeeTaylor v. Illinois, 484 U. S. 400, 406, n. 9(1988). Indeed, the court addressed petitioner's ConfrontationClause claim without mentioning any waiver problems.IIIIn all criminal prosecutions, state as well as federal, theaccused has a right, guaranteed by the Sixth and FourteenthAmendments to the United States Constitution, "to be confrontedwith the witnesses against him." U. S. Const., Amdt. 6;Pointer v. Texas, 380 U. S. 400 (1965)(applying Sixth Amendment to the States). "The central concern ofthe Confrontation Clause is to ensure the reliability of theevidence against a criminal defendant by subjecting it to rig-
124Opinion of STEVENS, J.orous testing in the context of an adversary proceeding beforethe trier of fact." Maryland v. Craig, 497 U. S. 836, 845(1990). When the government seeks to offer a declarant'sout-of-court statements against the accused, and, as in this case,the declarant is unavailable,l courts must decide whether theClause permits the government to deny the accused his usual rightto force the declarant "to submit to cross-examination, the'greatest legal engine ever invented for the discovery of truth.'''California v. Green, 399 U. S. 149, 158 (1970)(footnote and citation omitted).In our most recent case interpreting the Confrontation Clause,White v. Illinois, 502 U. S. 346 (1992), werejected the suggestion that the Clause should be narrowlyconstrued to apply only to practices comparable to "a particularabuse common in 16th- and 17th-century England: prosecuting adefendant through the presentation of ex parte affidavits,without the affiants ever being produced at trial." Id., at352. This abuse included using out-of-court depositions and"'confessions of accomplices.''' Green, 399 U. S., at 157.Accord, White, 502 U. S., at 361, 363 (THOMAS, J.,concurring in part and concurring in judgment) (noting that thisrule applies even if the confession is "found to be reliable").Because that restrictive reading of the Clause's term "witnesses"would have virtually eliminated the Clause's role in restrictingthe admission of hearsay testimony, we considered it foreclosed byour prior cases. Instead, we adhered to our general framework,summarized in Ohio v. Roberts, 448 U. S. 56 (1980), thatthe veracity of hearsay statements is sufficiently dependable toallow the untested admission of such statements against an accusedwhen (1) "the evidence1 Petitioner suggests in his merits brief that Mark was nottruly "unavailable" because the Commonwealth could have tried andsentenced him before petitioner's trial, thereby extinguishingMark's Fifth Amendment privilege. We assume, however, as petitionerdid in framing his petition for certiorari, that to the extent itis relevant, Mark was an unavailable witness for ConfrontationClause purposes.
125falls within a firmly rooted hearsay exception" or (2) itcontains "particularized guarantees of trustworthiness" such thatadversarial testing would be expected to add little, if anything,to the statements' reliability. I d., at 66.Before turning to the dual Roberts inquiries, however, wenote that the statements taken from petitioner's brother in theearly morning of December 6 were obviously obtained for the purposeof creating evidence that would be useful at a future trial. Theanalogy to the presentation of ex parte affidavits in theearly English proceedings thus brings the Confrontation Clause intoplay no matter how narrowly its gateway might be read.IVThe Supreme Court of Virginia held that the admission of MarkLilly's confession was constitutional primarily because, in itsview, it was against Mark's penal interest and because "thestatement against penal interest of an unavailable witness is a'firmly rooted' exception to the hearsay rule in Virginia." 255Va., at 575, 449 S. E. 2d, at 534. We assume, as we must, thatMark's statements were against his penal interest as a matter ofstate law, but the question whether the statements fall within afirmly rooted hearsay exception for Confrontation Clause purposesis a question of federal law. Accordingly, it is appropriate tobegin our analysis by examining the "firmly rooted" doctrine andthe roots of the "against penal interest" exception.We have allowed the admission of statements falling within afirmly rooted hearsay exception since the Court's recognition inMattox v. United States, 156 U. S. 237 (1895),that the Framers of the Sixth Amendment "obviously intended to ...respec[t]" certain unquestionable rules of evidence in drafting theConfrontation Clause. I d., at 243. Justice Brown, writingfor the Court in that case, did not question the wisdom ofexcluding deposition testimony, ex parte affidavits andtheir equivalents. But he reasoned that an unduly strict and"technical" reading of the Clause would
126Opinion of STEVENS, J.have the effect of excluding other hearsay evidence, such asdying declarations, whose admissibility neither the Framers noranyone else 100 years later "would have [had] the hardihood ... toquestion." Ibid.We now describe a hearsay exception as "firmly rooted" if, inlight of "longstanding judicial and legislative experience,"Idaho v. Wright, 497 U. S. 805, 817(1990), it "rest[s] [on] such [a] solid foundatio[n] that admissionof virtually any evidence within [it] comports with the 'substanceof the constitutional protection.'" Roberts, 448 U. S., at66 (quoting Mattox, 156 U. S., at 244). This standard isdesigned to allow the introduction of statements falling within acategory of hearsay whose conditions have proved over time "toremove all temptation to falsehood, and to enforce as strict anadherence to the truth as would the obligation of an oath" andcross-examination at a trial. Ibid. In White, forinstance, we held that the hearsay exception for spontaneousdeclarations is firmly rooted because it "is at least two centuriesold," currently "widely accepted among the States," and carries"substantial guarantees of ... trustworthiness ... [that] cannot berecaptured even by later in-court testimony." 502 U. S., at355-356, and n. 8. Established practice, in short, must confirmthat statements falling within a category of hearsay inherently"carr[y] special guarantees of credibility" essentially equivalentto, or greater than, those produced by the Constitution'spreference for cross-examined trial testimony. Id., at356.The "against penal interest" exception to the hearsayrule-unlike other previously recognized firmly rooted exceptions-isnot generally based on the maxim that statements made without amotive to reflect on the legal consequences of one's statement, andin situations that are exceptionally conducive to veracity, lackthe dangers of inaccuracy that typically accompany hearsay. Theexception, rather, is founded on the broad assumption "that aperson is unlikely to fabricate a statement against his owninterest at
127the time it is made." Chambers v. Mississippi,410 U. S. 284,299 (1973).We have previously noted that, due to the sweeping scope of thelabel, the simple categorization of a statement as a "'declarationagainst penal interest' ... defines too large a class formeaningful Confrontation Clause analysis." Lee v.Illinois, 476 U. S., at 544, n. 5. In criminal trials,statements against penal interest are offered into evidence inthree principal situations: (1) as voluntary admissions against thedeclarant; (2) as exculpatory evidence offered by a defendant whoclaims that the declarant committed, or was involved in, theoffense; and (3) as evidence offered by the prosecution toestablish the guilt of an alleged accomplice of the declarant. Itis useful to consider the three categories and their rootsseparately.Statements in the first category-voluntary admissions of thedeclarant-are routinely offered into evidence against the maker ofthe statement and carry a distinguished heritage confirming theiradmissibility when so used. See G. Gilbert, Evidence 139-140(1756); Lambe's Case, 2 Leach 552, 168 Eng. Rep. 379 (1791);State v. Kirby, 1 Strob. 155, 156 (1846);State v. Cowan, 29 N. C. 239, 246 (1847). Thus,assuming that Mark Lilly's statements were taken in conformancewith constitutional prerequisites, they would unquestionably beadmissible against him if he were on trial for stealing alcoholicbeverages.If Mark were a codefendant in a joint trial, however, even theuse of his confession to prove his guilt might have an adverseimpact on the rights of his accomplices. When dealing withadmissions against penal interest, we have taken great care toseparate using admissions against the declarant (the first categoryabove) from using them against other criminal defendants (the thirdcategory).In Bruton v. United States, 391 U. S. 123 (1968), twocodefendants, Evans and Bruton, were tried jointly and convicted ofarmed postal robbery. A postal inspector testified
128Opinion of STEVENS, J.that Evans had orally confessed that he and Bruton had committedthe crime. The jury was instructed that Evans' confession wasadmissible against him, but could not be considered in assessingBruton's guilt. Despite that instruction, this Court concluded thatthe introduction of Evans' confession posed such a serious threatto Bruton's right to confront and cross-examine the witnessesagainst him that he was entitled to a new trial. The case isrelevant to the issue before us today, not because of its principalholding concerning the ability or inability of the jury to followthe judge's instruction, but rather because it was common groundamong all of the Justices that the fact that the confession was astatement against the penal interest of Evans did not justify itsuse against Bruton. As Justice White noted at the outset of hisdissent, "nothing in that confession which was relevant andmaterial to Bruton's case was admissible against Bruton."Id., at 138.In the years since Bruton was decided, we have reviewed anumber of cases in which one defendant's confession has beenintroduced into evidence in a joint trial pursuant to instructionsthat it could be used against him but not against his codefendant.Despite frequent disagreement over matters such as the adequacy ofthe trial judge's instructions, or the sufficiency of the redactionof ambiguous references to the declarant's accomplice, we haveconsistently either stated or assumed that the mere fact that oneaccomplice's confession qualified as a statement against his penalinterest did not justify its use as evidence against anotherperson. See Gray v. Maryland, 523 U. S. 185, 194-195(1998) (stating that because the use of an accomplice's confession"creates a special, and vital, need for cross-examination," aprosecutor desiring to offer such evidence must comply withBruton, hold separate trials, use separate juries, orabandon the use of the confession); 523 U. S., at 200 (SCALIA, J.,dissenting) (stating that codefendant's confessions "may not beconsidered for the purpose of determining [the defendant's]guilt"); Richardson
129V. Marsh, 481 U. S. 200, 206 (1987)("[W]here two defendants are tried jointly, the pretrial confessionof one cannot be admitted against the other unless the confessingdefendant takes the stand"); Cruz v. New York,481 U. S. 186,189-190, 193 (1987) (same).The second category of statements against penal interestencompasses those offered as exculpatory evidence by a defendantwho claims that it was the maker of the statement, rather than he,who committed (or was involved in) the crime in question. In thiscontext, our Court, over the dissent of Justice Holmes, originallyfollowed the 19th-century English rule that categorically refusedto recognize any "against penal interest" exception to the hearsayrule, holding instead that under federal law only hearsaystatements against pecuniary (and perhaps proprietary) interestwere sufficiently reliable to warrant their admission at the trialof someone other than the declarant. See Donnelly v.United States, 228 U. S. 243, 272-277(1913). Indeed, most States adhered to this approach well into thelatter half of the 20th century. See Chambers, 410 U. S., at299 (collecting citations).As time passed, however, the precise Donnelly rule, whichbarred the admission of other persons' confessions that exculpatedthe accused, became the subject of increasing criticism. ProfessorWigmore, for example, remarked years after Donnelly:
"The only practical consequences of this unreasoning limitationare shocking to the sense of justice; for, in its commonestapplication, it requires, in a criminal trial, the rejection of aconfession, however well authenticated, of a person deceased orinsane or fled from the jurisdiction (and therefore quiteunavailable) who has avowed himself to be the true culprit .... Itis therefore not too late to retrace our steps, and to discard thisbarbarous doctrine, which would refuse to let an innocent accusedvindicate himself even by producing to the tribunal a perfectlyauthenticated written confession, made
130Opinion of STEVENS, J.
on the very gallows, by the true culprit now beyond the reach ofjustice." 5 J. Wigmore, Evidence § 1477, pp. 289-290 (3d ed.1940).
See also Scolari v. United States, 406 F.2d563, 564 (CA9 1969) (criticizing Donnelly); UnitedStates v. Annunziato, 293 F.2d373, 378 (CA2 1961) (Friendly, J.) (same); Hinesv. Commonwealth, 136 Va. 728, 117 S. E. 843 (1923)(criticizing Donnelly and refusing to incorporate it intostate law); Wright, Uniform Rules and Hearsay, 26 U. Cin. L. Rev.575 (1957).Finally, in 1973, this Court endorsed the more enlightened viewin Chambers, holding that the Due Process Clause affordscriminal defendants the right to introduce into evidence thirdparties' declarations against penal interesttheir confessions-whenthe circumstances surrounding the statements "provid[e]considerable assurance of their reliability." 410 U. S., at 300.Not surprisingly, most States have now amended their hearsay rulesto allow the admission of such statements underagainst-penal-interest exceptions. See 5 J. Wigmore, Evidence §1476, p. 352, and n. 9 (J. Chadbourn rev. 1974); id., §1477, at 360, and n. 7; J. Wigmore, Evidence §§ 1476 and 1477, pp.618-626 (A. Best ed. Supp. 1998). But because hearsay statements ofthis sort are, by definition, offered by the accused, the admissionof such statements does not implicate Confrontation Clauseconcerns. Thus, there is no need to decide whether the reliabilityof such statements is so inherently dependable that they wouldconstitute a firmly rooted hearsay exception.The third category includes cases, like the one before us today,in which the government seeks to introduce "a confession by anaccomplice which incriminates a criminal defendant." Lee,476 U. S., at 544, n. 5. The practice of admitting statements inthis category under an exception to the hearsay rule-to the extentthat such a practice exists in certain jurisdictions-is, unlike thefirst category or even the second, of quite recent vintage. Thiscategory also typically
131includes statements that, when offered in the absence of thedeclarant, function similarly to those used in the ancient exparte affidavit system.Most important, this third category of hearsay encompassesstatements that are inherently unreliable. Typical of the groundswell of scholarly and judicial criticism that culminated in theChambers decision, Wigmore's treatise still expresslydistinguishes accomplices' confessions that inculpate themselvesand the accused as beyond a proper understanding of theagainst-penal-interest exception because an accomplice often has aconsiderable interest in "confessing and betraying hiscocriminals." 5 Wigmore, Evidence § 1477, at 358, n. 1 (J.Chadbourn rev. 1974). Consistent with this scholarship and theassumption that underlies the analysis in our Bruton line ofcases, we have over the years "spoken with one voice in declaringpresumptively unreliable accomplices' confessions that incriminatedefendants." Lee, 476 U. S., at 541. See also Cruz,481 U. S., at 195 (White, J., dissenting) (such statements "havetraditionally been viewed with special suspicion"); Bruton,391 U. S., at 136 (such statements are "inevitably suspect").In Crawford v. United States, 212 U. S. 183 (1909),this Court stated that even when an alleged accomplice testifies,his confession that "incriminate[s] himself together with defendant... ought to be received with suspicion, and with the very greatestcare and caution, and ought not to be passed upon by the jury underthe same rules governing other and apparently credible witnesses."Id., at 204. Over 30 years ago, we applied this principle tothe Sixth Amendment. We held in Douglas v. Alabama,380 U. S. 415(1965), that the admission of a nontestifying accomplice'sconfession, which shifted responsibility and implicated thedefendant as the triggerman, "plainly denied [the defendant] theright of cross-examination secured by the Confrontation Clause."Id., at 419.
132Opinion of STEVENS, J.In Lee, we reaffirmed Douglas and explained thatits holding "was premised on the basic understanding that when oneperson accuses another of a crime under circumstances in which thedeclarant stands to gain by inculpating another, the accusation ispresumptively suspect and must be subjected to the scrutiny ofcross-examination." 476 U. S., at 541. This is so because
"th[e] truthfinding function of the Confrontation Clause isuniquely threatened when an accomplice's confession is sought to beintroduced against a criminal defendant without the benefit ofcross-examination .... 'Due to his strong motivation to implicatethe defendant and to exonerate himself, a codefendant's statementsabout what the defendant said or did are less credible thanordinary hearsay evidence.''' Ibid. (quoting Bruton,391 U. S., at 141 (White, J., dissenting)).
Indeed, even the dissenting Justices in Lee agreed that"accomplice confessions ordinarily are untrustworthy preciselybecause they are not unambiguously adverse to the penalinterest of the declarant," but instead are likely to be attemptsto minimize the declarant's culpability. 476 U. S., at 552-553(Blackmun, J., dissenting).2We have adhered to this approach in construing the Federal Rulesof Evidence. Thus, in Williamson v. United2 The only arguable exception to this unbroken line of casesarose in our plurality opinion in Dutton v. Evans,400 U. S. 74(1970), in which we held that the admission of an accomplice'sspontaneous comment that indirectly inculpated the defendant didnot violate the Confrontation Clause. While Justice Stewart'splurality opinion observed that the declarant's statement was"against his penal interest," id., at 89, the Court'sjudgment did not rest on that point, and in no way purported tohold that statements with such an attribute were presumptivelyadmissible. Rather, the five Justices in the majority emphasizedthe unique aspects of the case and emphasized that theco-conspirator spontaneously made the statement and "had noapparent reason to lie." Id., at 86-89. See also id.,at 98 (Harlan, J., concurring in result).
133States, 512U. S. 594 (1994), without reaching the Confrontation Clauseissue, we held that an accomplice's statement against his own penalinterest was not admissible against the defendant.3 We once againnoted the presumptive unreliability of the "non-self-inculpatory"portions of the statement:"One of the most effective ways to lie is to mix falsehood withtruth, especially truth that seems particularly persuasive becauseof its self-inculpatory nature." Id., at 599-60l.It is clear that our cases consistently have viewed anaccomplice's statements that shift or spread the blame to acriminal defendant as falling outside the realm of those "hearsayexceptiones] [that are] so trustworthy that adversarial testing canbe expected to add little to [the statements'] reliability."White, 502 U. S., at 357. This view is also reflected inseveral States' hearsay law.4 Indeed, prior3 Federal Rule of Evidence 804(b)(3) provides an exception tothe hearsay rule for the admission of "[a] statement which was atthe time of its making so far contrary to the declarant's pecuniaryor proprietary interest, or so far tended to subject the declarantto civil or criminal liability ... that a reasonable person in thedeclarant's position would not have made the statement unlessbelieving it to be true."4 Several States provide statutorily that theiragainst-penal-interest hearsay exceptions do not allow theadmission of "[a] statement or confession offered against theaccused in a criminal case, made by a codefendant or other personimplicating both himself and the accused." Ark. Rule Evid.804(b)(3) (1997). Accord, Ind. Rule Evid. 803(b)(3) (1999); Me.Rule Evid. 804(b)(3) (1998); Nev. Rev. Stat. § 51.345(2) (Supp.1996); N. J. Rule Evid. 803(25)(c) (1999); N. D. Cent. Code RuleEvid. § 804(b)(3) (1998); Vt. Rule Evid. 804(b)(3) (1998). See alsoState v. Myers, 229 Kan. 168, 172173, 625 P. 2d 1111,1115 (1981) ("Under [Kan. Stat. Ann. §]60-460(f) [(1976)], ahearsay confession of one coparticipant in a crime is notadmissible against another coparticipant"). Several otherStates have adopted the language of the Federal Rule, see n. 3,supra, and adhere to our interpretation of that rule inWilliamson. See Smith v. State, 647 A. 2d1083, 1088 (Del. 1994); United States v. Hammond, 681A. 2d 1140, 1146 (Ct. App. D. C. 1996); State v.Smith, 643 So. 2d 1221, 1221-1222 (La. 1994); Statev. Matusky, 343 Md. 467, 490-492, and n. 15,682 A. 2d694,705-706, and n. 15 (1996); State v. Ford, 539 N.W. 2d 214, 217 (Minn. 1995); State v. Castle, 285Mont. 363, 373-374, 948 P. 2d 688, 694 (1997); Miles v.State,
134Opinion of STEVENS, J.to 1995, it appears that even Virginia rarely allowed statementsagainst the penal interest of the declarant to be used at criminaltrials. See, e. g., Ellison v.Commonwealth, 219 Va. 404, 247 S. E. 2d 685 (1978). ThatVirginia relaxed that portion of its hearsay law when it decidedChandler v. Commonwealth, 249 Va. 270, 455 S. E. 2d219 (1995), and that it later apparently concluded that allstatements against penal interest fall within "a 'firmly rooted'exception to the hearsay rule in Virginia," 255 Va., at 575, 499 S.E. 2d, at 534, is of no consequence. The decisive fact, which wemake explicit today, is that accomplices' confessions thatinculpate a criminal defendant are not within a firmly rootedexception to the hearsay rule as that concept has been defined inour Confrontation Clause jurisprudence.5918 S. W. 2d 511, 515 (Tex. Crim. App. 1996); In re AnthonyRay, Me., 200 W. Va. 312, 321, 489 S. E. 2d 289, 298 (1997).Still other States have virtually no against-penal-interestexception at all. See Ala. Rule Evid. 804(b)(3) (1998) (no suchexception); Ga. Code Ann. § 24-3-8 (1995) (exception only ifdeclarant is deceased and statement was not made with view towardlitigation); State v. Skillieorn, 944 S. W. 2d877,884-885 (Mo.) (no exception), cert. denied, 522 U. S. 999(1997).5 Our holdings in Bruton v. United States,391 U. S. 123(1968), Cruz v.New York, 481 U. S. 186 (1987),Gray v. Maryland, 523 U. S. 185 (1998), andLee v. Illinois, 476 U. S. 530 (1986),were all premised, explicitly or implicitly, on the principle thataccomplice confessions that inculpate a criminal defendant are notper se admissible (and thus necessarily fall outside afirmly rooted hearsay exception), no matter how much thosestatements also incriminate the accomplice. If "genuinely" or"equally" inculpatory confessions of accomplices were-as THE CHIEFJUSTICE'S concurrence suggests is possible, post, at146-per se admissible against criminal defendants, then theconfessions in each of those cases would have been admissible, foreach confession inculpated the accomplice equally in the crimes atissue. But the Court in Lee rejected the dissent's positionthat a nontestifying accomplice's confessions that are"unambiguously" against the accomplice's penal interest are perse admissible, see 476 U. S., at 552 (Blackmun, J., dissenting)and we ruled in Bruton, Cruz, and Gray that suchequally self-inculpatory statements are inadmissible againstcriminal defendants. Today we merely reaffirm these holdings
135VAside from its conclusion that Mark's statements were admissibleunder a firmly rooted hearsay exception, the Supreme Court ofVirginia also affirmed the trial court's holding that thestatements were "reliabl[e] ... in the context of the facts andcircumstances under which [they were] given" because (i) "MarkLilly was cognizant of the import of his statements and that he wasimplicating himself as a participant in numerous crimes" and (ii)"[e]lements of [his] statements were independently corroborated" byother evidence offered at trial. Id., at 574, 499 S. E. 2d,at 534. See also App. 18 (trial court's decision). The Commonwealthcontends that we should defer to this "fact-intensive"determination. It further argues that these two indicia ofreliability, coupled with the facts that the police read Mark hisMiranda rights and did not promise him leniency in exchangefor his statements, demonstrate that the circumstances surroundinghis statements bore "particularized guarantees of trustworthiness,"Roberts, 448 U. S., at 66, sufficient to satisfy theConfrontation Clause's residual admissibility test.6and make explicit what was heretofore implicit: A statement(like Mark's) that falls into the category summarized inLee-"a confession by an accomplice which incriminates acriminal defendant," 476 U. S., at 544, n. 5does not come within afirmly rooted hearsay exception.This, of course, does not mean, as THE CHIEF JUSTICE,post, at 147-148 (opinion concurring in judgment), andJUSTICE THOMAS, post, at 143 (opinion concurring in part andconcurring in judgment), erroneously suggest, that theConfrontation Clause imposes a "blanket ban on the government's useof [nontestifying] accomplice statements that incriminate adefendant." Rather, it simply means that the government mustsatisfy the second prong of the Ohio v. Roberts,448 U. S. 56(1980), test in order to introduce such statements. See Part V,infra.6 Although THE CHIEF JUSTICE contends that we should remand thisissue to the Supreme Court of Virginia, see post, at148-149, it would be inappropriate to do so because we grantedcertiorari on this issue, see Pet. for Cert. i, and the partieshave fully briefed and argued the issue. The
136Opinion of STEVENS, J.The residual "trustworthiness" test credits the axiom that arigid application of the Clause's standard for admissibility mightin an exceptional case exclude a statement of an unavailablewitness that is incontestably probative, competent, and reliable,yet nonetheless outside of any firmly rooted hearsay exception. Cf.id., at 63; Mattox, 156 U. S., at 243244. When acourt can be confident-as in the context of hearsay falling withina firmly rooted exception-that "the declarant's truthfulness is soclear from the surrounding circumstances that the test ofcross-examination would be of marginal utility," the SixthAmendment's residual "trustworthiness" test allows the admission ofthe declarant's statements. Wright, 497 U. S., at 820.Nothing in our prior opinions, however, suggests that appellatecourts should defer to lower courts' determinations regardingwhether a hearsay statement has particularized guarantees oftrustworthiness. To the contrary, those opinions indicate that wehave assumed, as with other fact-intensive, mixed questions ofconstitutional law, that "[i]ndependent review is ... necessary ...to maintain control of, and to clarify, the legal principles"governing the factual circumstances necessary to satisfy theprotections of the Bill of Rights. Ornelas v. UnitedStates, 517 U. S.690, 697 (1996) (holding that appellate courts should reviewreasonable suspicion and probable-cause determinations denovo). We, of course, accept the Virginia courts' determinationthat Mark's statements were reliable for purposes of state hearsaylaw, and, as should any appellate court, we review the"facts and circumstances" formula, recited above, that theVirginia courts already employed in reaching their reliabilityholdings is virtually identical to the Roberts"particularized guarantees" test, which turns as well on the"surrounding circumstances" of the statements. Idaho v.Wright, 497 U. S. 805, 820 (1990). Furthermore, as willbecome clear, the Commonwealth fails to point to any fact regardingthis issue that the Supreme Court of Virginia did not explicitlyconsider and that requires serious analysis.
137presence or absence of historical facts for clear error. But thesurrounding circumstances relevant to a Sixth Amendmentadmissibility determination do not include the declarant's in-courtdemeanor (otherwise the declarant would be testifying) or any otherfactor uniquely suited to the province of trial courts. For thesereasons, when deciding whether the admission of a declarant'sout-of-court statements violates the Confrontation Clause, courtsshould independently review whether the government's profferedguarantees of trustworthiness satisfy the demands of theClause.The Commonwealth correctly notes that "the presumption ofunreliability that attaches to codefendants' confessions ... may berebutted." Lee, 476 U. S., at 543. We have held, in fact,that any inherent unreliability that accompanies co-conspiratorstatements made during the course and in furtherance of theconspiracy is per se rebutted by the circumstances givingrise to the long history of admitting such statements. SeeBourjaily v. United States, 483 U. S. 171, 182-184(1987). Nonetheless, the historical underpinnings of theConfrontation Clause and the sweep of our prior confrontation casesoffer one cogent reminder: It is highly unlikely that thepresumptive unreliability that attaches to accomplices' confessionsthat shift or spread blame can be effectively rebutted when thestatements are given under conditions that implicate the coreconcerns of the old ex parte affidavit practice-that is,when the government is involved in the statements' production, andwhen the statements describe past events and have not beensubjected to adversarial testing.Applying these principles, the Commonwealth's assertedguarantees of trustworthiness fail to convince us that Mark'sconfession was sufficiently reliable as to be admissible withoutallowing petitioner to cross-examine him. That other evidence attrial corroborated portions of Mark's statements is irrelevant. Wehave squarely rejected the notion that "evidence corroborating thetruth of a hearsay statement
138Opinion of STEVENS, J.may properly support a finding that the statement bears'particularized guarantees of trustworthiness.'" Wright, 497U. S., at 822. In Wright, we concluded that the admission ofhearsay statements by a child declarant violated the ConfrontationClause even though the statements were admissible under anexception to the hearsay rule recognized in Idaho, and even thoughthey were corroborated by other evidence. We recognized that it wastheoretically possible for such statements to possess"'particularized guarantees of trustworthiness'" that would justifytheir admissibility, but we refused to allow the State to"bootstrap on" the trustworthiness of other evidence. "To beadmissible under the Confrontation Clause," we held, "hearsayevidence used to convict a defendant must possess indicia ofreliability by virtue of its inherent trustworthiness, not byreference to other evidence at trial." Ibid.Nor did the police's informing Mark of his Miranda rightsrender the circumstances surrounding his statements significantlymore trustworthy. We noted in rejecting a similar argument inLee that a finding that a confession was "voluntary forFifth Amendment purposes ... does not bear on the question ofwhether the confession was also free from any desire, motive, orimpulse [the declarant] may have had either to mitigate theappearance of his own culpability by spreading the blame or tooverstate [the defendant's] involvement" in the crimes at issue.476 U. S., at 544. By the same token, we believe that a suspect'sconsciousness of his Miranda rights has little, if any,bearing on the likelihood of truthfulness of his statements. When asuspect is in custody for his obvious involvement in seriouscrimes, his knowledge that anything he says may be used against himmilitates against depending on his veracity.The Commonwealth's next proffered basis for reliabilitythat Markknew he was exposing himself to criminalliability-merely restatesthe fact that portions of his statements were technically againstpenal interest. And as we have ex-
139plained, such statements are suspect insofar as they inculpateother persons. "[T]hat a person is making a broadlyself-inculpatory confession does not make more credible theconfession's non-self-inculpatory parts." Williamson, 512 U.S., at 599. Accord, Lee, 476 U. S., at 545. Similarly, theabsence of an express promise of leniency to Mark does not enhancehis statements' reliability to the level necessary for theiruntested admission. The police need not tell a person who is incustody that his statements may gain him leniency in order for thesuspect to surmise that speaking up, and particularly placing blameon his cohorts, may inure to his advantage.It is abundantly clear that neither the words that Mark spokenor the setting in which he was questioned provides any basis forconcluding that his comments regarding petitioner's guilt were soreliable that there was no need to subject them to adversarialtesting in a trial setting. Mark was in custody for his involvementin, and knowledge of, serious crimes and made his statements underthe supervision of governmental authorities. He was primarilyresponding to the officers' leading questions, which were askedwithout any contemporaneous cross-examination by adverse parties.Thus, Mark had a natural motive to attempt to exculpate himself asmuch as possible. See id., at 544-545; Dutton v.Evans, 400 U.S. 74, 98 (1970) (Harlan, J., concurring in result). Mark alsowas obviously still under the influence of alcohol. Each of thesefactors militates against finding that his statements were soinherently reliable that crossexamination would have beensuperfluous.VIThe admission of the untested confession of Mark Lilly violatedpetitioner's Confrontation Clause rights. Adhering to our generalcustom of allowing state courts initially to assess the effect oferroneously admitted evidence in light of substantive statecriminal law, we leave it to the Virginia courts
140to consider in the first instance whether this Sixth Amendmenterror was "harmless beyond a reasonable doubt." Chapman v.California, 386U. S. 18, 24 (1967). See also Lee, 476 U. S., at 547.Accordingly, the judgment of the Supreme Court of Virginia isreversed, and the case is remanded for further proceedings.It is so ordered.JUSTICE BREYER, concurring.As currently interpreted, the Confrontation Clause generallyforbids the introduction of hearsay into a trial unless theevidence "falls within a firmly rooted hearsay exception" orotherwise possesses "particularized guarantees of trustworthiness."Ohio v. Roberts, 448 U. S. 56, 66 (1980).Amici in this case, citing opinions of Justices of thisCourt and the work of scholars, have argued that we shouldreexamine the way in which our cases have connected theConfrontation Clause and the hearsay rule. See Brief for AmericanCivil Liberties Union et al. as Amici Curiae 2-3; see also,e. g., White v. Illinois, 502 U. S. 346, 358 (1992)(THOMAS, J., joined by SCALIA, J., concurring in part andconcurring in judgment); Friedman, Confrontation: The Search forBasic Principles, 86 Geo. L. J. 1011 (1998); A. Amar, TheConstitution and Criminal Procedure 129 (1997); Berger, TheDeconstitutionalization of the Confrontation Clause: A Proposal fora Prosecutorial Restraint Model, 76 Minn. L. Rev. 557 (1992).The Court's effort to tie the Clause so directly to the hearsayrule is of fairly recent vintage, compare Roberts, supra,with California v. Green, 399 U. S. 149, 155-156(1970), while the Confrontation Clause itself has ancient originsthat predate the hearsay rule, see Salinger v. UnitedStates, 272 U. S.542, 548 (1926) ("The right of confrontation did not originatewith the provision in the Sixth Amendment, but was a common-lawright having recognized exceptions"). The right of an accused tomeet his accusers face-to-face is mentioned in, among other things,the Bible, Shakespeare, and
14116th- and 17th-century British statutes, cases, and treatises.See The Bible, Acts 25:16; W. Shakespeare, Richard II, act i, sc.1; W. Shakespeare, Henry VIII, act ii, sc. 1; 30 C. Wright & K.Graham, Federal Practice and Procedure § 6342, p. 227 (1997)(quoting statutes enacted under King Edward VI in 1552 and QueenElizabeth I in 1558); cf. Case of Thomas Tong, Kelyng J. 17,18, 84 Eng. Rep. 1061, 1062 (1662) (out-of-court confession may beused against the confessor, but not against his co-conspirators);M. Hale, History of the Common Law of England 163-164 (C.Grayed. 1971); 3 W. Blackstone, Commentaries *373. As traditionallyunderstood, the right was designed to prevent, for example, thekind of abuse that permitted the Crown to convict Sir WalterRaleigh of treason on the basis of the out-of-court confession ofLord Cobham, a co-conspirator. See 30 Wright & Graham,supra, § 6342, at 258-269.Viewed in light of its traditional purposes, the current,hearsay-based Confrontation Clause test, amici argue, isboth too narrow and too broad. The test is arguably too narrowinsofar as it authorizes the admission of out-of-court statementsprepared as testimony for a trial when such statements happen tofall within some well-recognized hearsay rule exception. Forexample, a deposition or videotaped confession sometimes could fallwithin the exception for vicarious admissions or, in THE CHIEFJUSTICE'S view, the exception for statements against penalinterest. See post, at 145-146. See generally White,supra, at 364-365 (THOMAS, J., concurring in part andconcurring in judgment); Friedman, supra, at 1025; Amar,supra, at 129; Berger, supra, at 596602; Brief forAmerican Civil Liberties Union et al. as Amici Curiae 16-20.But why should a modern Lord Cobham's out-of-court confessionbecome admissible simply because of a fortuity, such as theconspiracy having continued through the time of police questioning,thereby bringing the confession within the "well-established"exception for the vicarious admissions of a co-conspirator? Cf.Dutton v. Evans, 400
142u. S. 74, 83 (1970) (plurality opinion). Or why should we, likeWalter Raleigh's prosecutor, deny a plea to "let my Accuser comeface to face," with words (now related to the penal interestexception) such as, "The law presumes, a man will not accusehimself to accuse another"? Trial of Sir Walter Raleigh, 2How. St. Tr. 19 (1816).At the same time, the current hearsay-based Confrontation Clausetest is arguably too broad. It would make a constitutional issueout of the admission of any relevant hearsay statement, evenif that hearsay statement is only tangentially related to theelements in dispute, or was made long before the crime occurred andwithout relation to the prospect of a future trial. It is notobvious that admission of a business record, which is hearsaybecause the business was not "regularly conducted," or admission ofa scrawled note, "Mary called," dated many months before the crime,violates the defendant's basic constitutional right "to beconfronted with the witnesses against him." Yet one cannot easilyfit such evidence within a traditional hearsay exception. Nor canone fit it within this Court's special exception for hearsay with"'particularized guarantees of trustworthiness'''; and, in anyevent, it is debatable whether the Sixth Amendment principallyprotects "trustworthiness," rather than "confrontation." SeeWhite, supra, at 363 (THOMAS, J., concurring in part andconcurring in judgment); cf. Maryland v. Craig,497 U. S. 836,862 (1990) (SCALIA, J., dissenting) ("[T]he Confrontation Clausedoes not guarantee reliable evidence; it guarantees specific trialprocedures that were thought to assure reliable evidence,undeniably among which was 'face-to-face' confrontation").We need not reexamine the current connection between theConfrontation Clause and the hearsay rule in this case, however,because the statements at issue violate the Clause regardless. Seeante, at 139. I write separately to point out that the factthat we do not reevaluate the link in this
143case does not end the matter. It may leave the question open foranother day.JUSTICE SCALIA, concurring in part and concurring in thejudgment.During a custodial interrogation, Mark Lilly told policeofficers that petitioner committed the charged murder. Theprosecution introduced a tape recording of these statements attrial without making Mark available for crossexamination. In myview, that is a paradigmatic Confrontation Clause violation. SeeWhite v. Illinois, 502 U. S. 346, 364-365(1992) (THOMAS, J., concurring in part and concurring in judgment)("The federal constitutional right of confrontation extends to anywitness who actually testifies at trial" and "extrajudicialstatements only insofar as they are contained in formalizedtestimonial materials, such as affidavits, depositions, priortestimony, or confessions"). Since the violation is clear, the caseneed be remanded only for a harmless-error determination. Itherefore join Parts I, II, and VI of the Court's opinion andconcur in the judgment.JUSTICE THOMAS, concurring in part and concurring in thejudgment.I join Parts I and VI of the Court's opinion and concur in thejudgment. Though I continue to adhere to my view that theConfrontation Clause "extends to any witness who actually testifiesat trial" and "is implicated by extrajudicial statements onlyinsofar as they are contained in formalized testimonial material,such as affidavits, depositions, prior testimony, or confessions,"White v. Illinois, 502 U. S. 346, 365 (1992)(opinion concurring in part and concurring in judgment), I agreewith THE CHIEF JUSTICE that the Clause does not impose a "blanketban on the government's use of accomplice statements thatincriminate a defendant," post, at 147.
144REHNQUIST, C. J., concurring in judgmentSuch an approach not only departs from an original understandingof the Confrontation Clause but also freezes our jurisprudence bymaking trial court decisions excluding such statements virtuallyunreviewable. I also agree with THE CHIEF JUSTICE that the lowercourts did not "analyz[e] the confession under the second prong ofthe Roberts inquiry," post, at 148, and therefore seeno reason for the plurality to address an issue upon which thosecourts did not pass.CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR and JUSTICEKENNEDY join, concurring in the judgment.The plurality today concludes that all accomplice confessionsthat inculpate a criminal defendant are not within a firmly rootedexception to the hearsay rule under Ohio v. Roberts,448 U. S. 56(1980). See ante, at 134. It also concludes that appellatecourts should independently review the government's profferedguarantees of trustworthiness under the second half of theRoberts inquiry. See ante, at 137. I disagree withboth of these conclusions, but concur in the judgment reversing thedecision of the Supreme Court of Virginia.IThe plurality correctly states the issue in this case in theopening sentence of its opinion: Whether petitioner's ConfrontationClause rights were violated by admission of an accomplice'sconfession "that contained some statements against the accomplice'spenal interest and others that inculpated the accused."Ante, at 120. The confession of the accomplice, Mark Lilly,covers 50 pages in the Joint Appendix, and the interviewsthemselves lasted about an hour. The statements of Mark Lilly whichare against his penal interest-and would probably show him as anaider and abettorare quite separate in time and place from otherstatements
145exculpating Mark and incriminating his brother, petitionerBenjamin Lilly, in the murder of Alexander DeFilippis.1Thus one is at a loss to know why so much of the plurality'sopinion is devoted to whether a declaration against penal interestis a "firmly rooted exception" to the hearsay rule underOhio v. Roberts, supra. Certainly, we must accept theVirginia court's determination that Mark's statements as a wholewere declarations against penal interest for purposes of theCommonwealth's hearsay rule. See ante, at 125. Simplylabeling a confession a "declaration against penal interest,"however, is insufficient for purposes of Roberts, as thisexception "defines too large a class for meaningful ConfrontationClause analysis." Lee v. Illinois, 476 U. S. 530, 544, n. 5(1986). The plurality tries its hand at systematizing this class,see ante, at 127, but most of its housecleaning isunwarranted and results in a complete ban on the government's useof accomplice confessions that inculpate a codefendant. Such acategorical holding has no place in this case because the relevantportions of Mark Lilly's confession were simply not "declarationsagainst penal interest" as that term is understood in the law ofevidence. There may be close cases where the declaration againstpenal interest portion is closely tied in with the portionincriminating the de-1 Mark identifies Ben as the one who murdered AlexanderDeFilippis in the following colloquy:"M. L. I don't know, you know, dude shoots him."G. P. When you say 'dude shoots him' which one are you callinga dude here?"M. L. Well, Ben shoots him."G. P. Talking about your brother, what did he shoot him with?"M. L. Pistol."G. P. How many times did he shoot him?"M. L. I heard a couple of shots go off, I don't know how manytimes he hit him." App. 258.A similar colloquy occurred in the second interview. Seeid., at 312-313.
146REHNQUIST, C. J., concurring in judgmentfendant, see 2 J. Strong, McCormick on Evidence § 319 (4th ed.1992), but this is not one of them. Mark Lilly's statementsinculpating his brother in the murder of DeFilippis are not in theleast against Mark's penal interest.This case therefore does not raise the question whether theConfrontation Clause permits the admission of a genuinelyself-inculpatory statement that also inculpates a codefendant, andour precedent does not compel the broad holding suggested by theplurality today. Cf. Williamson v. United States,512 U. S. 594,618-619 (1994) (KENNEDY, J., concurring) (explaining and providingexamples of selfserving and more neutral declarations against penalinterest). Indeed, several Courts of Appeals have admittedcustodial confessions that equally inculpate both the declarant andthe defendant,2 and I see no reason for us to precludeconsideration of these or similar statements as satisfying a firmlyrooted hearsay exception under Roberts.Not only were the incriminating portions of Mark Lilly'sconfession not a declaration against penal interest, but thesestatements were part of a custodial confession of the sort thatthis Court has viewed with "special suspicion" given acodefendant's" 'strong motivation to implicate the defendant and toexonerate himself.'" Lee, supra, at 541 (citations omitted).Each of the cases cited by the plurality to support its broadconclusion involved accusatory statements taken by law enforcementpersonnel with a view to prosecution. See Douglas v.Alabama, 380U. S. 415, 416-417 (1965); Lee, supra, at 532-536; cf.Bruton v. United States, 391 U. S. 123, 124-125(1968); Williamson, supra, at 596-597. These cases2 See, e. g., United States v.Keltner, 147 F.3d662, 670 (CA8 1998) (statement "clearly subjected"declarant to criminal liability for "activity in which [he]participated and was planning to participate with ... bothdefendants"); Earnest v. Dorsey, 87 F.3d1123, 1134 (CAlO 1996) ("entire statement inculpated both[defendant] and [declarant] equally" and "neither [attempted] toshift blame to his co-conspirators nor to curry favor from thepolice or prosecutor").
147did not turn solely on the fact that the challenged statementinculpated the defendant, but were instead grounded in the Court'ssuspicion of untested custodial confessions. See, e. g., Lee,supra, at 544-545. The plurality describes Dutton v.Evans, 400 U.S. 74 (1970), as an "exception" to this line of cases,ante, at 132, n. 2, but that case involved an accomplice'sstatement to a fellow prisoner, see 400 U. S., at 77-78, not acustodial confession.The Court in Dutton held that the admission of anaccomplice's statement to a fellow inmate did not violate theConfrontation Clause under the facts of that case, see id.,at 86-89, and I see no reason to foreclose the possibility thatsuch statements, even those that inculpate a codefendant, may fallunder a firmly rooted hearsay exception. The Court in Duttonrecognized that statements to fellow prisoners, like confessions tofamily members or friends, bear sufficient indicia of reliabilityto be placed before a jury without confrontation of the declarant.Id., at 89. Several federal courts have similarly concludedthat such statements fall under a firmly rooted hearsay exception.3Dutton is thus no "exception," but a case wholly outside the"unbroken line" of cases, see ante, at 132, n. 2, in whichcustodial confessions laying blame on a codefendant have been foundto violate the Confrontation Clause. The custodial confession inthis case falls under the coverage of this latter set of cases, andI would not extend the holding here any further.The plurality's blanket ban on the government's use ofaccomplice statements that incriminate a defendant thus sweepsbeyond the facts of this case and our precedent,3 See, e. g., United States v. York, 933 F.2d1343, 1362-1364 (CA7 1991) (finding federal declarationagainst penal interest exception firmly rooted in case involvingaccomplice's statements made to two associates); UnitedStates v. Seeley, 892 F.2d1, 2 (CA1 1989) (exception firmly rooted in caseinvolving statements made to declarant's girlfriend andstepfather); United States v. Katsougrakis, 715 F.2d769, 776 (CA2 1983) (no violation in admittingaccomplice's statements to friend).
148REHNQUIST, C. J., concurring in judgmentignoring both the exculpatory nature of Mark's confession andthe circumstances in which it was given. Unlike the plurality, Iwould limit our holding here to the case at hand, and decide onlythat Mark Lilly's custodial confession laying sole responsibilityon petitioner cannot satisfy a firmly rooted hearsay exception.IINor do I see any reason to do more than reverse the decision ofthe Supreme Court of Virginia and remand the case for theCommonwealth to demonstrate that Mark's confession bears"particularized guarantees of trustworthiness" underRoberts, 448 U. S., at 66. The Supreme Court of Virginiaheld only that Mark Lilly's confession was admissible under astate-law exception to its hearsay rules and then held that thisexception was firmly rooted for Confrontation Clause purposes. See255 Va. 558, 573-574, 499 S. E. 2d 522, 533-534 (1998). Neitherthat court nor the trial court analyzed the confession under thesecond prong of the Roberts inquiry, and the discussion ofreliability cited by the Court, see ante, at 122-123, 135,pertained only to whether the confession should be admitted understate hearsay rules, not under the Confrontation Clause. Followingour normal course, I see no reason for this Court to reach an issueupon which the lower courts did not pass. See National CollegeAthletic Assn. v. Smith, 525 U. S. 459, 470 (1999)("[W]e do not decide in the first instance issues not decidedbelow"). Thus, both this issue and the harmless-error questionshould be sent back to the Virginia courts. See ante, at139-140.The lack of any reviewable decision in this case makesespecially troubling the plurality's conclusion that appellatecourts must independently review a lower court's determination thata hearsay statement bears particularized guarantees oftrustworthiness. Deciding whether a particular statement bears theproper indicia of reliability under our Confrontation Clauseprecedent "may be a mixed question of fact and law," but the mixweighs heavily on the "fact" side.
149We have said that "deferential review of mixed questions of lawand fact is warranted when it appears that the district court is'better positioned' than the appellate court to decide the issue inquestion or that probing appellate scrutiny will not contribute tothe clarity of legal doctrine." Salve Regina College v.Russell, 499U. S. 225, 233 (1991) (citation omitted).These factors counsel in favor of deference to trial judges whoundertake the second prong of the Roberts inquiry. They arebetter able to evaluate whether a particular statement given in aparticular setting is sufficiently reliable that cross-examinationwould add little to its trustworthiness. Admittedly, this inquirydoes not require credibility determinations, but we have alreadyheld that deference to district courts does not depend on the needfor credibility determinations. See Anderson v. BessemerCity, 470 U. S.564, 574 (1985).Accordingly, I believe that in the setting here, as inAnderson, "[dJuplication of the trial judge's efforts in thecourt of appeals would very likely contribute only negligibly tothe accuracy of fact determination at a huge cost in diversion ofjudicial resources." See id., at 574-575. It is difficult toapply any standard in this case because none of the courts belowconducted the second part of the Roberts inquiry. I wouldtherefore remand this case to the Supreme Court of Virginia tocarry out the inquiry, and, if any error is found, to determinewhether that error is harmless.
