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U.S. Supreme Court

    1. Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 (“This open examination of witnesses . . . is much more conducive to the clearing up of truth”); M. Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing “beats and bolts out the Truth much better”).

      The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. See Reynolds v. United States, 98 U.S. 145, 158—159 (1879).

      The Raleigh trial itself involved the very sorts of reliability determinations that Roberts authorizes. In the face of Raleigh’s repeated demands for confrontation, the prosecution responded with many of the arguments a court applying Roberts might invoke today: that Cobham’s statements were self-inculpatory, 2 How. St. Tr., at 19, that they were not made in the heat of passion, id., at 14, and that they were not “extracted from [him] upon any hopes or promise of Pardon,” id., at 29. It is not plausible that the Framers’ only objection to the trial was that Raleigh’s judges did not properly weigh these factors before sentencing him to death. Rather, the problem was that the judges refused to allow Raleigh to confront Cobham in court, where he could cross-examine him and try to expose his accusation as a lie.

      Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
    2. The legacy of Roberts in other courts vindicates the Framers’ wisdom in rejecting a general reliability exception. The framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations.

      Reliability is an amorphous, if not entirely subjective, concept. There are countless factors bearing on whether a statement is reliable; the nine-factor balancing test applied by the Court of Appeals below is representative. See, e.g., People v. Farrell, 34 P.3d 401, 406—407 (Colo. 2001) (eight-factor test). Whether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them. Some courts wind up attaching the same significance to opposite facts. For example, the Colorado Supreme Court held a statement more reliable because its inculpation of the defendant was “detailed,” id., at 407, while the Fourth Circuit found a statement more reliable because the portion implicating another was “fleeting,” United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 245 (2001). The Virginia Court of Appeals found a statement more reliable because the witness was in custody and charged with a crime (thus making the statement more obviously against her penal interest), see Nowlin v. Commonwealth, 40 Va. App. 327, 335—338, 579 S. E. 2d 367, 371—372 (2003), while the Wisconsin Court of Appeals found a statement more reliable because the witness was not in custody and not a suspect, see State v. Bintz, 2002 WI App. 204, 13, 257 Wis. 2d 177, 187, 650 N. W. 2d 913, 918. Finally, the Colorado Supreme Court in one case found a statement more reliable because it was given “immediately after” the events at issue, Farrell, supra, at 407, while that same court, in another case, found a statement more reliable because two years had elapsed, Stevens v. People, 29 P.3d 305, 316 (2001).

      The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Despite the plurality’s speculation in Lilly, 527 U.S., at 137, that it was “highly unlikely” that accomplice confessions implicating the accused could survive Roberts, courts continue routinely to admit them. See Photogrammetric Data Servs., supra, at 245—246; Farrell, supra, at 406—408; Stevens, supra, at 314—318; Taylor v. Commonwealth, 63 S. W. 3d 151, 166—168 (Ky. 2001); State v. Hawkins, No. 2001—P—0060, 2002 WL 31895118, 34—37, *6 (Ohio App., Dec. 31, 2002); Bintz, supra, 7—14, 257 Wis. 2d, at 183—188, 650 N. W. 2d, at 916—918; People v. Lawrence, 55 P.3d 155, 160—161 (Colo. App. 2001); State v. Jones, 171 Ore. App. 375, 387—391, 15 P.3d 616, 623—625 (2000); State v. Marshall, 136 Ohio App. 3d 742, 747—748, 737 N. E. 2d 1005, 1009 (2000); People v. Schutte, 240 Mich. App. 713, 718—721, 613 N. W. 2d 370, 376—377 (2000); People v. Thomas, 313 Ill. App. 3d 998, 1005—1007, 730 N. E. 2d 618, 625—626 (2000); cf. Nowlin, supra, at 335—338, 579 S. E. 2d, at 371—372 (witness confessed to a related crime); People v. Campbell, 309 Ill. App. 3d 423, 431—432, 721 N. E. 2d 1225, 1230 (1999) (same). One recent study found that, after Lilly, appellate courts admitted accomplice statements to the authorities in 25 out of 70 cases–more than one-third of the time. Kirst, Appellate Court Answers to the Confrontation Questions in Lilly v. Virginia, 53 Syracuse L. Rev. 87, 105 (2003). Courts have invoked Roberts to admit other sorts of plainly testimonial statements despite the absence of any opportunity to cross-examine. See United States v. Aguilar, 295 F.3d 1018, 1021—1023 (CA9 2002) (plea allocution showing existence of a conspiracy); United States v. Centracchio, 265 F.3d 518, 527—530 (CA7 2001) (same); United States v. Dolah, 245 F.3d 98, 104—105 (CA2 2001) (same); United States v. Petrillo, 237 F.3d 119, 122—123 (CA2 2000) (same); United States v. Moskowitz, 215 F.3d 265, 268—269 (CA2 2000) (same); United States v. Gallego, 191 F.3d 156, 166—168 (CA2 1999) (same); United States v. Papajohn, 212 F.3d 1112, 1118—1120 (CA8 2000) (grand jury testimony); United States v. Thomas, 30 Fed. Appx. 277, 279 (CA4 2002) (same); Bintz, supra, 15—22, 257 Wis. 2d, at 188—191, 650 N. W. 2d, at 918—920 (prior trial testimony); State v. McNeill, 140 N. C. App. 450, 457—460, 537 S. E. 2d 518, 523—524 (2000) (same).

      To add insult to injury, some of the courts that admit untested testimonial statements find reliability in the very factors that make the statements testimonial. As noted earlier, one court relied on the fact that the witness’s statement was made to police while in custody on pending charges–the theory being that this made the statement more clearly against penal interest and thus more reliable. Nowlin, supra, at 335—338, 579 S. E. 2d, at 371—372. Other courts routinely rely on the fact that a prior statement is given under oath in judicial proceedings. E.g., Gallego, supra, at 168 (plea allocution); Papajohn, supra, at 1120 (grand jury testimony). That inculpating statements are given in a testimonial setting is not an antidote to the confrontation problem, but rather the trigger that makes the Clause’s demands most urgent. It is not enough to point out that most of the usual safeguards of the adversary process attend the statement, when the single safeguard missing is the one the Confrontation Clause demands.