(Page 5 of 8)

U.S. Supreme Court

  1. Our case law has been largely consistent with these two principles. Our leading early decision, for example, involved a deceased witness’s prior trial testimony. Mattox v. United States, 156 U.S. 237 (1895). In allowing the statement to be admitted, we relied on the fact that the defendant had had, at the first trial, an adequate opportunity to confront the witness: “The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination.  This, the law says, he shall under no circumstances be deprived of .” Id., at 244.

    Our later cases conform to Mattox’s holding that prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine. See Mancusi v. Stubbs, 408 U.S. 204, 213—216 (1972); California v. Green, 399 U.S. 149, 165—168 (1970); Pointer v. Texas, 380 U.S., at 406—408; cf. Kirby v. United States, 174 U.S. 47, 55—61 (1899). Even where the defendant had such an opportunity, we excluded the testimony where the government had not established unavailability of the witness. See Barber v. Page, 390 U.S. 719, 722—725 (1968); cf. Motes v. United States, 178 U.S. 458, 470—471 (1900). We similarly excluded accomplice confessions where the defendant had no opportunity to cross-examine. See Roberts v. Russell, 392 U.S. 293, 294—295 (1968) (per curiam); Bruton v. United States, 391 U.S. 123, 126—128 (1968); Douglas v. Alabama, 380 U.S. 415, 418—420 (1965). In contrast, we considered reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. See Dutton v. Evans, 400 U.S., at 87—89 (plurality opinion).

    Even our recent cases, in their outcomes, hew closely to the traditional line. Ohio v. Roberts, 448 U.S., at 67—70, admitted testimony from a preliminary hearing at which the defendant had examined the witness. Lilly v. Virginia, supra, excluded testimonial statements that the defendant had had no opportunity to test by cross-examination. And Bourjaily v. United States, 483 U.S. 171, 181—184 (1987), admitted statements made unwittingly to an FBI informant after applying a more general test that did not make prior cross-examination an indispensable requirement.[fn8]

    Lee v. Illinois, 476 U.S. 530 (1986), on which the State relies, is not to the contrary. There, we rejected the State’s attempt to admit an accomplice confession. The State had argued that the confession was admissible because it “interlocked” with the defendant’s. We dealt with the argument by rejecting its premise, holding that “when the discrepancies between the statements are not insignificant, the codefendant’s confession may not be admitted.” Id., at 545. Respondent argues that “[t]he logical inference of this statement is that when the discrepancies between the statements are insignificant, then the codefendant’s statement may be admitted.” Brief for Respondent 6. But this is merely a possible inference, not an inevitable one, and we do not draw it here. If Lee had meant authoritatively to announce an exception–previously unknown to this Court’s jurisprudence–for interlocking confessions, it would not have done so in such an oblique manner. Our only precedent on interlocking confessions had addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant’s own confession against him in a joint trial. See Parker v. Randolph, 442 U.S. 62, 69—76 (1979) (plurality opinion), abrogated by Cruz v. New York, 481 U.S. 186 (1987).

    Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.[fn9]
  2. Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales. Roberts conditions the admissibility of all hearsay evidence on whether it falls under a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” 448 U.S., at 66. This test departs from the historical principles identified above in two respects. First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony. This often results in close constitutional scrutiny in cases that are far removed from the core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect against paradigmatic confrontation violations.

    Members of this Court and academics have suggested that we revise our doctrine to reflect more accurately the original understanding of the Clause. See, e.g., Lilly, 527 U.S., at 140—143 (Breyer, J., concurring); White, 502 U.S., at 366 (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); A. Amar, The Constitution and Criminal Procedure 125—131 (1997); Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L. J. 1011 (1998). They offer two proposals: First, that we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law–thus eliminating the overbreadth referred to above. Second, that we impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine–thus eliminating the excessive narrowness referred to above.

    In White, we considered the first proposal and rejected it. 502 U.S., at 352—353. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today, because Sylvia Crawford’s statement is testimonial under any definition. This case does, however, squarely implicate the second proposal.