PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE SUPREME
COURT OF WASHINGTON. State v. Crawford, 147 Wn.2d
424, 54 P.3d 656, 2002 Wash. LEXIS 598 (2002)
DISPOSITION: Reversed and remanded.
SYLLABUS: Petitioner was tried for assault and attempted
murder. The State sought to introduce a recorded statement
that petitioner's wife Sylvia had made during police interrogation,
as evidence that the stabbing was not in self-defense.
Sylvia did not testify at trial because of Washington's
marital privilege. Petitioner argued that admitting the
evidence would violate his Sixth Amendment right
to be "confronted with the witnesses against him."
Under Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597,
100 S. Ct. 2531, that right does not bar admission
of an unavailable witness's statement against a criminal
defendant if the statement [*2] bears "adequate
'indicia of reliability,'" a test met when the evidence
either falls within a "firmly rooted hearsay exception"
or bears "particularized guarantees of trustworthiness."
Id., at 66. The trial court admitted the statement
on the latter ground. The State Supreme Court upheld the
conviction, deeming the statement reliable because it
was nearly identical to, i.e., interlocked with,
petitioner's own statement to the police, in that both
were ambiguous as to whether the victim had drawn a weapon
before petitioner assaulted him.
Held: The State's use of Sylvia's statement violated
the Confrontation Clause because, where testimonial
statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is confrontation.
Pp. 5-33.
(a)
The Confrontation Clause's text does not alone
resolve this case, so this Court turns to the Clause's
historical background. That history supports two principles.
First, the principal evil at which the Clause was directed
was the civil-law mode of criminal procedure, particularly
the use of ex parte examinations as evidence against
the accused. The Clause's primary object is [*3]
testimonial hearsay, and interrogations by law enforcement
officers fall squarely within that class. Second, the
Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial unless
he was unavailable to testify and the defendant had had
a prior opportunity for cross-examination. English authorities
and early state cases indicate that this was the common
law at the time of the founding. And the "right .
. . to be confronted with the witnesses against him,"
Amdt. 6, is most naturally read as a reference
to the common-law right of confrontation, admitting only
those exceptions established at the time of the founding.
See Mattox v. United States, 156 U.S. 237, 243, 39
L. Ed. 409, 15 S. Ct. 337. Pp. 5-21.
(b)
This Court's decisions have generally remained faithful
to the Confrontation Clause's original meaning.
See, e.g., Mattox, supra. Pp. 21-23.
(c)
However, the same cannot be said of the rationales of
this Court's more recent decisions. See Roberts, supra,
at 66. The Roberts test departs from historical
principles because it admits statements consisting of
ex parte testimony upon a mere reliability [*4]
finding. Pp. 24-25.
(d)
The Confrontation Clause commands that reliability
be assessed in a particular manner: by testing in the
crucible of cross-examination. Roberts allows
a jury to hear evidence, untested by the adversary process,
based on a mere judicial determination of reliability,
thus replacing the constitutionally prescribed method
of assessing reliability with a wholly foreign one. Pp.
25-27.
(e)
Roberts' framework is unpredictable. Whether a
statement is deemed reliable depends on which factors
a judge considers and how much weight he accords each
of them. However, the unpardonable vice of the Roberts
test is its demonstrated capacity to admit core testimonial
statements that the Confrontation Clause plainly
meant to exclude. Pp. 27-30.
(f)
The instant case is a self-contained demonstration of
Roberts' unpredictable and inconsistent application.
It also reveals Roberts' failure to interpret the
Constitution in a way that secures its intended constraint
on judicial discretion. The Constitution prescribes the
procedure for determining the reliability of testimony
in criminal trials, and this Court, no less than the state
courts, lacks authority [*5] to replace it with
one of its own devising. Pp. 30-32.
147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.
JUDGES: SCALIA, J., delivered the opinion of the Court,
in which STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and
BREYER, JJ., joined. REHNQUIST, C. J., filed an opinion
concurring in the judgment, in which O'CONNOR, J., joined.
OPINIONBY: SCALIA
OPINION:
JUSTICE SCALIA delivered the opinion of the Court.
Petitioner Michael Crawford stabbed a man who allegedly
tried to rape his wife, Sylvia. At his trial, the State
played for the jury Sylvia's tape-recorded statement to
the police describing the stabbing, even though he had
no opportunity for cross-examination. The Washington Supreme
Court upheld petitioner's conviction after determining
that Sylvia's statement was reliable. The question presented
is whether this procedure complied with the Sixth Amendment's
guarantee that, "in all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with
the witnesses against him."
I
On August 5, 1999, Kenneth Lee was stabbed at his apartment.
Police arrested petitioner later that night. After giving
petitioner and his wife Miranda warnings, detectives
[*6] interrogated each of them twice. Petitioner
eventually confessed that he and Sylvia had gone in search
of Lee because he was upset over an earlier incident in
which Lee had tried to rape her. The two had found Lee
at his apartment, and a fight ensued in which Lee was
stabbed in the torso and petitioner's hand was cut.
Petitioner gave the following account
of the fight:
"Q. Okay. Did you ever see anything
in [Lee's] hands?
"A. I think so, but I'm not positive.
"Q. Okay, when you think so, what
do you mean by that?
"A. I coulda swore I seen him goin'
for somethin' before, right before everything happened.
He was like reachin', fiddlin' around down here and stuff
. . . and I just . . . I don't know, I think, this is
just a possibility, but I think, I think that he pulled
somethin' out and I grabbed for it and that's how I got
cut . . . but I'm not positive. I, I, my mind goes blank
when things like this happen. I mean, I just, I remember
things wrong, I remember things that just doesn't, don't
make sense to me later." App. 155 (punctuation added).
Sylvia generally corroborated petitioner's story about
the events leading up to the fight, but her account of
the fight itself was [*7] arguably different --
particularly with respect to whether Lee had drawn a weapon
before petitioner assaulted him:
"Q. Did Kenny do anything to fight
back from this assault?
"A. (pausing) I know he reached into
his pocket . . . or somethin' . . . I don't know what.
"Q. After he was stabbed?
"A. He saw Michael coming up. He lifted
his hand . . . his chest open, he might [have] went to
go strike his hand out or something and then (inaudible).
"Q. Okay, you, you gotta speak up.
"A. Okay, he lifted his hand over
his head maybe to strike Michael's hand down or something
and then he put his hands in his . . . put his right hand
in his right pocket . . . took a step back . . . Michael
proceeded to stab him . . . then his hands were like .
. . how do you explain this . . . open arms . . . with
his hands open and he fell down . . . and we ran (describing
subject holding hands open, palms toward assailant).
"Q. Okay, when he's standing there
with his open hands, you're talking about Kenny, correct?
"A. Yeah, after, after the fact, yes.
"Q. Did you see anything in his hands
at that point?
"A. (pausing) um um (no)." Id.,
at 137 (punctuation added).
The State charged petitioner [*8] with assault and
attempted murder. At trial, he claimed self-defense. Sylvia
did not testify because of the state marital privilege,
which generally bars a spouse from testifying without
the other spouse's consent. See Wash. Rev. Code §
5.60.060(1) (1994). In Washington, this privilege
does not extend to a spouse's out-of-court statements
admissible under a hearsay exception, see State v.
Burden, 120 Wn. 2d 371, 377, 841 P.2d 758, 761 (1992),
so the State sought to introduce Sylvia's tape-recorded
statements to the police as evidence that the stabbing
was not in self-defense. Noting that Sylvia had admitted
she led petitioner to Lee's apartment and thus had facilitated
the assault, the State invoked the hearsay exception for
statements against penal interest, Wash. Rule Evid. 804(b)(3)
(2003).
Petitioner countered that, state law notwithstanding,
admitting the evidence would violate his federal constitutional
right to be "confronted with the witnesses against
him." Amdt. 6. According to our description
of that right in Ohio v. Roberts, 448 U.S. 56, 65 L.
Ed. 2d 597, 100 S. Ct. 2531 (1980), it does not bar
admission of an unavailable witness's statement against
a criminal defendant [*9] if the statement bears
"adequate 'indicia of reliability.'" Id.,
448 U.S. at 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531.
To meet that test, evidence must either fall within a
"firmly rooted hearsay exception" or bear "particularized
guarantees of trustworthiness." Ibid. The
trial court here admitted the statement on the latter
ground, offering several reasons why it was trustworthy:
Sylvia was not shifting blame but rather corroborating
her husband's story that he acted in self-defense or "justified
reprisal"; she had direct knowledge as an eyewitness;
she was describing recent events; and she was being questioned
by a "neutral" law enforcement officer. App.
76-77. The prosecution played the tape for the jury and
relied on it in closing, arguing that it was "damning
evidence" that "completely refutes [petitioner's]
claim of self-defense." Tr. 468 (Oct. 21, 1999).
The jury convicted petitioner of assault.
The Washington Court of Appeals reversed. It applied a
nine-factor test to determine whether Sylvia's statement
bore particularized guarantees of trustworthiness, and
noted several reasons why it did not: The statement contradicted
one she had previously given; it was made in response
to specific questions; [*10] and at one point
she admitted she had shut her eyes during the stabbing.
The court considered and rejected the State's argument
that Sylvia's statement was reliable because it coincided
with petitioner's to such a degree that the two "interlocked."
The court determined that, although the two statements
agreed about the events leading up to the stabbing, they
differed on the issue crucial to petitioner's self-defense
claim: "[Petitioner's] version asserts that Lee may
have had something in his hand when he stabbed him; but
Sylvia's version has Lee grabbing for something only after
he has been stabbed." App. 32.
The Washington Supreme Court reinstated the conviction,
unanimously concluding that, although Sylvia's statement
did not fall under a firmly rooted hearsay exception,
it bore guarantees of trustworthiness: "'When a codefendant's
confession is virtually identical [to, i.e., interlocks
with,] that of a defendant, it may be deemed reliable.'"
147 Wash. 2d 424, 437, 54 P. 3d 656, 663 (2002)
(quoting State v. Rice, 120 Wn. 2d 549, 570, 844 P.2d
416, 427 (1993)). The court explained:
"Although the Court of Appeals
concluded that the statements [*11] were contradictory,
upon closer inspection they appear to overlap . . . .
"Both of the Crawfords' statements
indicate that Lee was possibly grabbing for a weapon,
but they are equally unsure when this event may have taken
place. They are also equally unsure how Michael received
the cut on his hand, leading the court to question when,
if ever, Lee possessed a weapon. In this respect they
overlap.
"Neither Michael nor Sylvia clearly
stated that Lee had a weapon in hand from which Michael
was simply defending himself. And it is this omission
by both that interlocks the statements and makes Sylvia's
statement reliable." 147 Wash. 2d, at 438-439,
54 P. 3d, at 664 (internal quotation marks omitted).
n1
n1 The court rejected the State's argument that guarantees
of trustworthiness were unnecessary since petitioner waived
his confrontation rights by invoking the marital privilege.
It reasoned that "forcing the defendant to choose
between the marital privilege and confronting his spouse
presents an untenable Hobson's choice." 147 Wash.
2d, at 432, 54 P. 3d, at 660. The State has not challenged
this holding here. The State also has not challenged the
Court of Appeals' conclusion (not reached by the State
Supreme Court) that the confrontation violation, if it
occurred, was not harmless. We express no opinion on these
matters.
[*12]
We granted certiorari to determine whether the State's
use of Sylvia's statement violated the Confrontation
Clause. 539 U.S. 914, 157 L. Ed. 2d 309, 124 S.
Ct. 460 (2003).
II
The Sixth Amendment's Confrontation Clause
provides that, "in all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with
the witnesses against him." We have held that this
bedrock procedural guarantee applies to both federal and
state prosecutions. Pointer v. Texas, 380 U.S. 400,
406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). As noted
above, Roberts says that an unavailable witness's
out-of-court statement may be admitted so long as it has
adequate indicia of reliability -- i.e., falls
within a "firmly rooted hearsay exception" or
bears "particularized guarantees of trustworthiness."
448 U.S., at 66, 13 L. Ed. 2d 923, 85 S. Ct. 1065.
Petitioner argues that this test strays from the original
meaning of the Confrontation Clause and urges us
to reconsider it.
A
The Constitution's text does not alone resolve this case.
One could plausibly read "witnesses against"
a defendant to mean those who actually testify at trial,
cf. Woodsides v. State, 3 Miss. 655, 664-665, 1 Morr.
St. Cas. 95 (1837), those whose statements are offered
at [*13] trial, see 3 J. Wigmore, Evidence §
1397, p. 104 (2d ed. 1923) (hereinafter Wigmore), or something
in-between, see infra, at 15-16. We must therefore
turn to the historical background of the Clause to understand
its meaning.
The right to confront one's accusers
is a concept that dates back to Roman times. See Coy
v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S.
Ct. 2798 (1988); Herrmann & Speer, Facing the
Accuser: Ancient and Medieval Precursors of the Confrontation
Clause, 34 Va. J. Int'l L. 481 (1994). The
founding generation's immediate source of the concept,
however, was the common law. English common law has long
differed from continental civil law in regard to the manner
in which witnesses give testimony in criminal trials.
The common-law tradition is one of live testimony in court
subject to adversarial testing, while the civil law condones
examination in private by judicial officers. See 3 W.
Blackstone, Commentaries on the Laws of England 373-374
(1768).
Nonetheless, England at times adopted elements of the
civil-law practice. Justices of the peace or other officials
examined suspects and witnesses before trial. These examinations
were sometimes read in court [*14] in lieu of live
testimony, a practice that "occasioned frequent demands
by the prisoner to have his 'accusers,' i.e. the
witnesses against him, brought before him face to face."
1 J. Stephen, History of the Criminal Law of England 326
(1883). In some cases, these demands were refused. See
9 W. Holdsworth, History of English Law 216-217, 228 (3d
ed. 1944); e.g., Raleigh's Case, 2 How. St.
Tr. 1, 15-16, 24 (1603); Throckmorton's Case, 1
How. St. Tr. 869, 875-876 (1554); cf. Lilburn's
Case, 3 How. St. Tr. 1315, 1318-1322, 1329 (Star Chamber
1637).
Pretrial examinations became routine under two statutes
passed during the reign of Queen Mary in the 16th century,
1 & 2 Phil. & M., c. 13 (1554), and 2 & 3
id., c. 10 (1555). These Marian bail and committal
statutes required justices of the peace to examine suspects
and witnesses in felony cases and to certify the results
to the court. It is doubtful that the original purpose
of the examinations was to produce evidence admissible
at trial. See J. Langbein, Prosecuting Crime in the Renaissance
21-34 (1974). Whatever the original purpose, however,
they came to be used as evidence [*15] in some cases,
see 2 M. Hale, Pleas of the Crown 284 (1736), resulting
in an adoption of continental procedure. See 4 Holdsworth,
supra, at 528-530.
The most notorious instances of civil-law examination
occurred in the great political trials of the 16th and
17th centuries. One such was the 1603 trial of Sir Walter
Raleigh for treason. Lord Cobham, Raleigh's alleged accomplice,
had implicated him in an examination before the Privy
Council and in a letter. At Raleigh's trial, these were
read to the jury. Raleigh argued that Cobham had lied
to save himself: "Cobham is absolutely in the King's
mercy; to excuse me cannot avail him; by accusing me he
may hope for favour." 1 D. Jardine, Criminal Trials
435 (1832). Suspecting that Cobham would recant, Raleigh
demanded that the judges call him to appear, arguing that
"the Proof of the Common Law is by witness and jury:
let Cobham be here, let him speak it. Call my accuser
before my face . . . ." 2 How. St. Tr., at 15-16.
The judges refused, id., at 24, and, despite Raleigh's
protestations that he was being tried "by the Spanish
Inquisition," id., at 15, the jury convicted,
and Raleigh was [*16] sentenced to death.
One of Raleigh's trial judges later lamented that "'the
justice of England has never been so degraded and injured
as by the condemnation of Sir Walter Raleigh.'" 1
Jardine, supra, at 520. Through a series of statutory
and judicial reforms, English law developed a right of
confrontation that limited these abuses. For example,
treason statutes required witnesses to confront the accused
"face to face" at his arraignment. E.g.,
13 Car. 2, c. 1, § 5 (1661); see 1 Hale,
supra, at 306. Courts, meanwhile, developed relatively
strict rules of unavailability, admitting examinations
only if the witness was demonstrably unable to testify
in person. See Lord Morley's Case, 6 How. St. Tr. 769,
770-771 (H. L. 1666); 2 Hale, supra, at 284;
1 Stephen, supra, at 358. Several authorities also
stated that a suspect's confession could be admitted only
against himself, and not against others he implicated.
See 2 W. Hawkins, Pleas of the Crown c. 46, § 3,
pp. 603-604 (T. Leach 6th ed. 1787); 1 Hale, supra,
at 585, n. (k); 1 G. Gilbert, Evidence 216 (C.
Lofft ed. 1791); cf. Tong's Case, Kel. J. 17, 18, 84
Eng. Rep. 1061, 1062 (1662) [*17] (treason).
But see King v. Westbeer, 1 Leach 12, 168
Eng. Rep. 108, 109 (1739).
One recurring question was whether the admissibility of
an unavailable witness's pretrial examination depended
on whether the defendant had had an opportunity to cross-examine
him. In 1696, the Court of King's Bench answered this
question in the affirmative, in the widely reported misdemeanor
libel case of King v. Paine, 5 Mod. 163, 87 Eng. Rep.
584. The court ruled that, even though a witness was
dead, his examination was not admissible where "the
defendant not being present when [it was] taken before
the mayor . . . had lost the benefit of a cross-examination."
Id., at 165, 87 Eng. Rep., at 585. The question
was also debated at length during the infamous proceedings
against Sir John Fenwick on a bill of attainder. Fenwick's
counsel objected to admitting the examination of a witness
who had been spirited away, on the ground that Fenwick
had had no opportunity to cross-examine. See Fenwick's
Case, 13 How. St. Tr. 537, 591-592 (H. C. 1696) (Powys)
("That which they would offer is something that Mr.
Goodman hath sworn when he was [*18] examined .
. .; sir J. F. not being present or privy, and no opportunity
given to cross-examine the person; and I conceive that
cannot be offered as evidence . . . "); id.,
at 592 (Shower) ("No deposition of a person can
be read, though beyond sea, unless in cases where the
party it is to be read against was privy to the examination,
and might have cross-examined him . . . . Our constitution
is, that the person shall see his accuser"). The
examination was nonetheless admitted on a closely divided
vote after several of those present opined that the common-law
rules of procedure did not apply to parliamentary attainder
proceedings -- one speaker even admitting that the evidence
would normally be inadmissible. See id., at 603-604
(Williamson); id., at 604-605 (Chancellor of the
Exchequer); id., at 607; 3 Wigmore § 1364,
at 22-23, n. 54. Fenwick was condemned, but the proceedings
"must have burned into the general consciousness
the vital importance of the rule securing the right of
cross-examination." Id., § 1364, at
22; cf. Carmell v. Texas, 529 U.S. 513, 526-530, 146
L. Ed. 2d 577, 120 S. Ct. 1620 (2000).
Paine had settled [*19] the
rule requiring a prior opportunity for cross-examination
as a matter of common law, but some doubts remained over
whether the Marian statutes prescribed an exception to
it in felony cases. The statutes did not identify the
circumstances under which examinations were admissible,
see 1 & 2 Phil. & M., c. 13 (1554); 2 & 3
id., c. 10 (1555), and some inferred that no prior
opportunity for cross-examination was required. See
Westbeer, supra, at 12, 168 Eng. Rep., at 109;
compare Fenwick's Case, 13 How. St. Tr., at 596
(Sloane), with id., at 602 (Musgrave). Many who
expressed this view acknowledged that it meant the statutes
were in derogation of the common law. See King
v. Eriswell, 3 T. R. 707, 710, 100 Eng. Rep.
815, 817 (K. B. 1790) (Grose, J.) (dicta); id.,
at 722-723, 100 Eng. Rep., at 823-824 (Kenyon, C. J.)
(same); compare 1 Gilbert, Evidence, at 215 (admissible
only "by Force 'of the Statute'"), with id.,
at 65. Nevertheless, by 1791 (the year the Sixth Amendment
was ratified), courts were applying the cross-examination
rule even to examinations by justices of the peace in
felony cases. See King v. [*20] Dingler,
2 Leach 561, 562-563, 168 Eng. Rep. 383, 383-384 (1791);
King v. Woodcock, 1 Leach 500, 502-504,
168 Eng. Rep. 352, 353 (1789); cf. King
v. Radbourne, 1 Leach 457, 459-461, 168 Eng.
Rep. 330, 331-332 (1787); 3 Wigmore § 1364,
at 23. Early 19th-century treatises confirm that requirement.
See 1 T. Starkie, Evidence 95 (1826); 2 id., at
484-492; T. Peake, Evidence 63-64 (3d ed. 1808). When
Parliament amended the statutes in 1848 to make the requirement
explicit, see 11 & 12 Vict., c. 42, § 17, the
change merely "introduced in terms" what was
already afforded the defendant "by the equitable
construction of the law." Queen v. Beeston,
29 Eng. L. & Eq. R. 527, 529 (Ct. Crim. App. 1854)
(Jervis, C. J.). n2
n2 There is some question whether the requirement of a
prior opportunity for cross-examination applied as well
to statements taken by a coroner, which were also authorized
by the Marian statutes. See 3 Wigmore § 1364, at
23 (requirement "never came to be conceded at all
in England"); T. Peake, Evidence 64, n. (m)
(3d ed. 1808) (not finding the point "expressly decided
in any reported case"); State v. Houser, 26 Mo.
431, 436 (1858) ("there may be a few cases .
. . but the authority of such cases is questioned, even
in [England], by their ablest writers on common law");
State v. Campbell, 30 S.C.L. 124 (1844) (point
"has not . . . been plainly adjudged, even in the
English cases"). Whatever the English rule, several
early American authorities flatly rejected any special
status for coroner statements. See Houser, supra, at
436; Campbell, supra, at 130; T. Cooley, Constitutional
Limitations *318.
[*21]
B
Controversial examination practices were also used in
the Colonies. Early in the 18th century, for example,
the Virginia Council protested against the Governor for
having "privately issued several commissions to examine
witnesses against particular men ex parte,"
complaining that "the person accused is not admitted
to be confronted with, or defend himself against his defamers."
A Memorial Concerning the Maladministrations of His Excellency
Francis Nicholson, reprinted in 9 English Historical Documents
253, 257 (D. Douglas ed. 1955). A decade before the Revolution,
England gave jurisdiction over Stamp Act offenses to the
admiralty courts, which followed civil-law rather than
common-law procedures and thus routinely took testimony
by deposition or private judicial examination. See 5
Geo. 3, c. 12, § 57 (1765); Pollitt, The Right
of Confrontation: Its History and Modern Dress, 8 J.
Pub. L. 381, 396-397 (1959). Colonial representatives
protested that the Act subverted their rights "by
extending the jurisdiction of the courts of admiralty
beyond its ancient limits." Resolutions of the Stamp
Act Congress § 8th (Oct. 19, 1765), reprinted in
Sources of Our [*22] Liberties 270, 271 (R. Perry
& J. Cooper eds. 1959). John Adams, defending a merchant
in a high-profile admiralty case, argued: "Examinations
of witnesses upon Interrogatories, are only by the Civil
Law. Interrogatories are unknown at common Law, and Englishmen
and common Lawyers have an aversion to them if not an
Abhorrence of them." Draft of Argument in Sewall
v. Hancock (1768-1769), in 2 Legal Papers of John
Adams 194, 207 (K. Wroth & H. Zobel eds. 1965).
Many declarations of rights adopted
around the time of the Revolution guaranteed a right of
confrontation. See Virginia Declaration of Rights §
8 (1776); Pennsylvania Declaration of Rights § IX
(1776); Delaware Declaration of Rights § 14 (1776);
Maryland Declaration of Rights § XIX (1776); North
Carolina Declaration of Rights § VII (1776); Vermont
Declaration of Rights Ch. I, § X (1777); Massachusetts
Declaration of Rights § XII (1780); New Hampshire
Bill of Rights § XV (1783), all reprinted in 1 B.
Schwartz, The Bill of Rights: A Documentary History 235,
265, 278, 282, 287, 323, 342, 377 (1971). The proposed
Federal Constitution, however, did not. At the Massachusetts
ratifying convention, Abraham Holmes objected [*23]
to this omission precisely on the ground that it would
lead to civil-law practices: "The mode of trial is
altogether indetermined; . . . whether [the defendant]
is to be allowed to confront the witnesses, and have the
advantage of cross-examination, we are not yet told .
. . . We shall find Congress possessed of powers enabling
them to institute judicatories little less inauspicious
than a certain tribunal in Spain, . . . the Inquisition."
2 Debates on the Federal Constitution 110-111 (J. Elliot
2d ed. 1863). Similarly, a prominent Antifederalist writing
under the pseudonym Federal Farmer criticized the use
of "written evidence" while objecting to the
omission of a vicinage right: "Nothing can be more
essential than the cross examining [of] witnesses, and
generally before the triers of the facts in question .
. . . Written evidence . . . [is] almost useless; it must
be frequently taken ex parte, and but very seldom leads
to the proper discovery of truth." R. Lee, Letter
IV by the Federal Farmer (Oct. 15, 1787), reprinted in
1 Schwartz, supra, at 469, 473. The First Congress
responded by including the Confrontation Clause
in the proposal that became the Sixth Amendment.
[*24]
Early state decisions shed light upon the original understanding
of the common-law right. State v. Webb, 2 N. C. 103
(1794) (per curiam), decided a mere three years
after the adoption of the Sixth Amendment, held
that depositions could be read against an accused only
if they were taken in his presence. Rejecting a broader
reading of the English authorities, the court held: "It
is a rule of the common law, founded on natural justice,
that no man shall be prejudiced by evidence which he had
not the liberty to cross examine." Id., at 104.
Similarly, in State v. Campbell, 30 S.C.L. 124 (1844),
South Carolina's highest law court excluded a deposition
taken by a coroner in the absence of the accused. It held:
"If we are to decide the question by the established
rules of the common law, there could not be a dissenting
voice. For, notwithstanding the death of the witness,
and whatever the respectability of the court taking the
depositions, the solemnity of the occasion and the weight
of the testimony, such depositions are ex parte,
and, therefore, utterly incompetent." Id., at
125. The court said that one of [*25] the "indispensable
conditions" implicitly guaranteed by the State Constitution
was that "prosecutions be carried on to the conviction
of the accused, by witnesses confronted by him, and subjected
to his personal examination." Ibid.
Many other decisions are to the same effect. Some early
cases went so far as to hold that prior testimony was
inadmissible in criminal cases even if the accused
had a previous opportunity to cross-examine. See Finn
v. Commonwealth, 26 Va. 701, 708 (1827); State
v. Atkins, 1 Tenn. 229 (1807) (per curiam).
Most courts rejected that view, but only after reaffirming
that admissibility depended on a prior opportunity for
cross-examination. See United States v. Macomb, 26
F. Cas. 1132, 1133, F. Cas. No. 15702 (No. 15,702)
(CC Ill. 1851); State v. Houser, 26 Mo. 431, 435-436
(1858); Kendrick v. State, 29 Tenn. 479, 485-488
(1850); Bostick v. State, 22 Tenn. 344, 345-346
(1842); Commonwealth v. Richards, 35 Mass. 434,
437, 18 Pick. 434 (1837); State v. Hill, 20 S.C.L.
607, 608-610 (S. C. 1835); Johnston v. State, 10
Tenn. 58, 59 (1821). [*26] Nineteenth-century
treatises confirm the rule. See 1 J. Bishop, Criminal
Procedure § 1093, p. 689 (2d ed. 1872); T. Cooley,
Constitutional Limitations *318.
III
This history supports two inferences about the meaning
of the Sixth Amendment.
A
First, the principal evil at which the Confrontation
Clause was directed was the civil-law mode of criminal
procedure, and particularly its use of ex parte examinations
as evidence against the accused. It was these practices
that the Crown deployed in notorious treason cases like
Raleigh's; that the Marian statutes invited; that English
law's assertion of a right to confrontation was meant
to prohibit; and that the founding-era rhetoric decried.
The Sixth Amendment must be interpreted with this
focus in mind.
Accordingly, we once again reject
the view that the Confrontation Clause applies
of its own force only to in-court testimony, and that
its application to out-of-court statements introduced
at trial depends upon "the law of Evidence for the
time being." 3 Wigmore § 1397, at 101; accord,
Dutton v. Evans, 400 U.S. 74, 94, 27 L. Ed. 2d 213,
91 S. Ct. 210 (1970) (Harlan, J., concurring in result).
Leaving the regulation of out-of-court statements [*27]
to the law of evidence would render the Confrontation
Clause powerless to prevent even the most flagrant
inquisitorial practices. Raleigh was, after all, perfectly
free to confront those who read Cobham's confession in
court.
This focus also suggests that not all hearsay implicates
the Sixth Amendment's core concerns. An off-hand,
overheard remark might be unreliable evidence and thus
a good candidate for exclusion under hearsay rules, but
it bears little resemblance to the civil-law abuses the
Confrontation Clause targeted. On the other hand,
ex parte examinations might sometimes be admissible
under modern hearsay rules, but the Framers certainly
would not have condoned them.
The text of the Confrontation Clause reflects this
focus. It applies to "witnesses" against the
accused -- in other words, those who "bear testimony."
1 N. Webster, An American Dictionary of the English Language
(1828). "Testimony," in turn, is typically "[a]
solemn declaration or affirmation made for the purpose
of establishing or proving some fact." Ibid.
An accuser who makes a formal statement to government
officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance [*28] does
not. The constitutional text, like the history underlying
the common-law right of confrontation, thus reflects an
especially acute concern with a specific type of out-of-court
statement.
Various formulations of this core class of "testimonial"
statements exist: "ex parte in-court testimony
or its functional equivalent -- that is, material such
as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect
to be used prosecutorially," Brief for Petitioner
23; "extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions," White
v. Illinois, 502 U.S. 346, 365, 116 L. Ed. 2d 848, 112
S. Ct. 736 (1992) (THOMAS, J., joined by SCALIA, J.,
concurring in part and concurring in judgment); "statements
that were made under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial," Brief
for National Association of Criminal Defense Lawyers et
al. as Amici Curiae 3. These formulations all share
a common nucleus and then define [*29] the Clause's
coverage at various levels of abstraction around it. Regardless
of the precise articulation, some statements qualify under
any definition -- for example, ex parte testimony
at a preliminary hearing.
Statements taken by police officers in the course of interrogations
are also testimonial under even a narrow standard. Police
interrogations bear a striking resemblance to examinations
by justices of the peace in England. The statements are
not sworn testimony, but the absence of oath was
not dispositive. Cobham's examination was unsworn, see
1 Jardine, Criminal Trials, at 430, yet Raleigh's trial
has long been thought a paradigmatic confrontation violation,
see, e.g., Campbell, 30 S.C.L., at 130.
Under the Marian statutes, witnesses were typically put
on oath, but suspects were not. See 2 Hale, Pleas of the
Crown, at 52. Yet Hawkins and others went out of their
way to caution that such unsworn confessions were not
admissible against anyone but the confessor. See supra,
at 8. n3
n3 These sources -- especially Raleigh's trial -- refute
THE CHIEF JUSTICE's assertion, post, at 3 (opinion
concurring in judgment), that the right of confrontation
was not particularly concerned with unsworn testimonial
statements. But even if, as he claims, a general bar on
unsworn hearsay made application of the Confrontation
Clause to unsworn testimonial statements a moot point,
that would merely change our focus from direct evidence
of original meaning of the Sixth Amendment to reasonable
inference. We find it implausible that a provision which
concededly condemned trial by sworn ex parte affidavit
thought trial by unsworn ex parte affidavit perfectly
OK. (The claim that unsworn testimony was self-regulating
because jurors would disbelieve it, cf. post, at
2, n. 1, is belied by the very existence of a general
bar on unsworn testimony.) Any attempt to determine the
application of a constitutional provision to a phenomenon
that did not exist at the time of its adoption (here,
allegedly, admissible unsworn testimony) involves some
degree of estimation -- what THE CHIEF JUSTICE calls use
of a "proxy," post, at 3 -- but that
is hardly a reason not to make the estimation as accurate
as possible. Even if, as THE CHIEF JUSTICE mistakenly
asserts, there were no direct evidence of how the Sixth
Amendment originally applied to unsworn testimony,
there is no doubt what its application would have been.
[*30]
That interrogators are police officers rather than magistrates
does not change the picture either. Justices of the peace
conducting examinations under the Marian statutes were
not magistrates as we understand that office today, but
had an essentially investigative and prosecutorial function.
See 1 Stephen, Criminal Law of England, at 221; Langbein,
Prosecuting Crime in the Renaissance, at 34-45. England
did not have a professional police force until the 19th
century, see 1 Stephen, supra, at 194-200, so it
is not surprising that other government officers performed
the investigative functions now associated primarily with
the police. The involvement of government officers in
the production of testimonial evidence presents the same
risk, whether the officers are police or justices of the
peace.
In sum, even if the Sixth Amendment is not solely
concerned with testimonial hearsay, that is its primary
object, and interrogations by law enforcement officers
fall squarely within that class. n4
n4 We use the term "interrogation" in its colloquial,
rather than any technical legal, sense. Cf. Rhode Island
v. Innis, 446 U.S. 291, 300-301, 64 L. Ed. 2d 297, 100
S. Ct. 1682 (1980). Just as various definitions of
"testimonial" exist, one can imagine various
definitions of "interrogation," and we need
not select among them in this case. Sylvia's recorded
statement, knowingly given in response to structured police
questioning, qualifies under any conceivable definition.
[*31]
B
The historical record also supports a second proposition:
that the Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination. The text of
the Sixth Amendment does not suggest any open-ended
exceptions from the confrontation requirement to be developed
by the courts. Rather, the "right . . . to be confronted
with the witnesses against him," Amdt. 6,
is most naturally read as a reference to the right of
confrontation at common law, admitting only those exceptions
established at the time of the founding. See Mattox
v. United States, 156 U.S. 237, 243, 39 L. Ed. 409, 15
S. Ct. 337 (1895); cf. Houser, 26 Mo., at 433-435.
As the English authorities above reveal, the common law
in 1791 conditioned admissibility of an absent witness's
examination on unavailability and a prior opportunity
to cross-examine. The Sixth Amendment therefore
incorporates those limitations. The numerous early state
decisions applying the same test confirm that these principles
were received as part of the common law in this country.
n5
n5 THE CHIEF JUSTICE claims that English law's treatment
of testimonial statements was inconsistent at the time
of the framing, post, at 4-5, but the examples
he cites relate to examinations under the Marian statutes.
As we have explained, to the extent Marian examinations
were admissible, it was only because the statutes derogated
from the common law. See supra, at 10. Moreover,
by 1791 even the statutory-derogation view had been rejected
with respect to justice-of-the-peace examinations -- explicitly
in King v. Woodcock, 1 Leach 500, 502-504,
168 Eng. Rep. 352, 353 (1789), and King
v. Dingler, 2 Leach 561, 562-563, 168 Eng. Rep.
383, 383-384 (1791), and by implication in King
v. Radbourne, 1 Leach 457, 459-461, 168 Eng.
Rep. 330, 331-332 (1787).
None of THE CHIEF JUSTICE's citations proves otherwise.
King v. Westbeer, 1 Leach 12, 168 Eng.
Rep. 108 (1739), was decided a half-century earlier
and cannot be taken as an accurate statement of the law
in 1791 given the directly contrary holdings of Woodcock
and Dingler. Hale's treatise is older still,
and far more ambiguous on this point, see 1 M. Hale, Pleas
of the Crown 585-586 (1736); some who espoused the requirement
of a prior opportunity for cross-examination thought it
entirely consistent with Hale's views. See Fenwick's
Case, 13 How. St. Tr. 537, 602 (H. C. 1696) (Musgrave).
The only timely authority THE CHIEF JUSTICE cites is King
v. Eriswell, 3 T. R. 707, 100 Eng. Rep. 815
(K. B. 1790), but even that decision provides no substantial
support. Eriswell was not a criminal case at all,
but a Crown suit against the inhabitants of a town to
charge them with care of an insane pauper. Id.,
at 707-708, 100 Eng. Rep., at 815-816. It is relevant
only because the judges discuss the Marian statutes in
dicta. One of them, Buller, J., defended admission of
the pauper's statement of residence on the basis of authorities
that purportedly held ex parte Marian examinations
admissible. Id., at 713-714, 100 Eng. Rep., at
819. As evidence writers were quick to point out, however,
his authorities said no such thing. See Peake, Evidence,
at 64, n. (m) ("Mr. J. Buller is reported
to have said that it was so settled in 1 Lev. 180,
and Kel. 55; certainly nothing of the kind appears in
those books"); 2 T. Starkie, Evidence 487-488, n.
(c) (1826) ("Buller, J. . . . refers to Radbourne's
case . . .; but in that case the deposition was taken
in the hearing of the prisoner, and of course the question
did not arise" (citation omitted)). Two other judges,
Grose, J., and Kenyon, C. J., responded to Buller's argument
by distinguishing Marian examinations as a statutory exception
to the common-law rule, but the context and tenor of their
remarks suggest they merely assumed the accuracy
of Buller's premise without independent consideration,
at least with respect to examinations by justices of the
peace. See 3 T. R., at 710, 100 Eng. Rep., at 817
(Grose, J.); id., at 722-723, 100 Eng. Rep., at
823-824 (Kenyon, C. J.). In fact, the case reporter specifically
notes in a footnote that their assumption was erroneous.
See id., at 710, n. (c), 100 Eng. Rep.,
at 817, n. (c). Notably, Buller's position
on pauper examinations was resoundingly rejected only
a decade later in King v. Ferry Frystone, 2 East 54,
55, 102 Eng. Rep. 289 (K. B. 1801) ("The point
. . . has been since considered to be so clear against
the admissibility of the evidence . . . that it was abandoned
by the counsel . . . without argument"), further
suggesting that his views on evidence were not mainstream
at the time of the framing.
In short, none of THE CHIEF JUSTICE's sources shows that
the law in 1791 was unsettled even as to examinations
by justices of the peace under the Marian statutes.
More importantly, however, even if the statutory rule
in 1791 were in doubt, the numerous early state-court
decisions make abundantly clear that the Sixth Amendment
incorporated the common-law right of confrontation
and not any exceptions the Marian statutes supposedly
carved out from it. See supra, at 13-14; see also
supra, at 11, n. 2 (coroner statements). The common-law
rule had been settled since Paine in 1696. See
King v. Paine, 5 Mod. 163, 165, 87 Eng. Rep. 584, 585
(K. B.).
[*32]
We do not read the historical sources
to say that a prior opportunity to cross-examine was merely
a sufficient, rather than a necessary, condition for admissibility
of testimonial statements. They suggest that this requirement
was dispositive, and not merely one of several ways to
establish reliability. This is not to deny, as THE CHIEF
JUSTICE notes, that "there were always exceptions
to the general rule of exclusion" of hearsay evidence.
Post, at 5. Several had become well established
by 1791. See 3 Wigmore § 1397, at 101; Brief for
United States as Amicus Curiae 13, n. 5. But there
is scant evidence that exceptions were invoked to admit
testimonial statements against the accused in
a criminal case. n6 Most of the hearsay exceptions
covered statements that by their nature were not testimonial
-- for example, business records or statements in furtherance
of a conspiracy. We do not infer from these that the Framers
thought exceptions would apply even to prior testimony.
Cf. Lilly v. Virginia, 527 U.S. 116, 134, 144 L. Ed.
2d 117, 119 S. Ct. 1887 (1999) (plurality opinion)
("Accomplices' confessions that inculpate a criminal
defendant are not within a firmly rooted exception to
[*33] the hearsay rule"). n7
n6 The one deviation we have found involves dying declarations.
The existence of that exception as a general rule of criminal
hearsay law cannot be disputed. See, e.g., Mattox
v. United States, 156 U.S. 237, 243-244, 39 L. Ed. 409,
15 S. Ct. 337 (1895); King v. Reason, 16 How. St.
Tr. 1, 24-38 (K. B. 1722); 1 D. Jardine, Criminal
Trials 435 (1832); Cooley, Constitutional Limitations,
at *318; 1 G. Gilbert, Evidence 211 (C. Lofft ed. 1791);
see also F. Heller, The Sixth Amendment 105 (1951)
(asserting that this was the only recognized criminal
hearsay exception at common law). Although many dying
declarations may not be testimonial, there is authority
for admitting even those that clearly are. See Woodcock,
supra, at 501-504, 168 Eng. Rep., at 353-354;
Reason, supra, at 24-38; Peake, Evidence, at
64; cf. Radbourne, supra, at 460-462, 168
Eng. Rep., at 332-333. We need not decide in this
case whether the Sixth Amendment incorporates an
exception for testimonial dying declarations. If this
exception must be accepted on historical grounds, it is
sui generis. [*34]
n7 We cannot agree with THE CHIEF JUSTICE that the fact
"that a statement might be testimonial does nothing
to undermine the wisdom of one of these [hearsay] exceptions."
Post, at 6. Involvement of government officers
in the production of testimony with an eye toward trial
presents unique potential for prosecutorial abuse -- a
fact borne out time and again throughout a history with
which the Framers were keenly familiar. This consideration
does not evaporate when testimony happens to fall within
some broad, modern hearsay exception, even if that exception
might be justifiable in other circumstances.
IV
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, 39 L. Ed. 409, 15 S. Ct.
337 (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
[*35] 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, 39 L. Ed. 409,
15 S. Ct. 337.
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, 33 L. Ed. 2d 293, 92 S. Ct. 2308 (1972);
California v. Green, 399 U.S. 149, 165-168, 26 L. Ed.
2d 489, 90 S. Ct. 1930 (1970); Pointer v. Texas,
380 U.S., at 406-408, 13 L. Ed. 2d 923, 85 S. Ct. 1064;
cf. Kirby v. United States, 174 U.S. 47, 55-61, 43
L. Ed. 890, 19 S. Ct. 574 (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,
20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968); cf. Motes
v. United States, 178 U.S. 458, 470-471, 44 L. Ed. 1150,
20 S. Ct. 993 (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, 20 L. Ed. 2d 1100, 88 S. Ct. 1921 (1968)
(per curiam); Bruton v. United States, 391 U.S. 123,
126-128, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968);
[*36] Douglas v. Alabama, 380 U.S. 415, 418-420,
13 L. Ed. 2d 934, 85 S. Ct. 1074 (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, 27 L. Ed. 2d213, 91 S. Ct. 210 (plurality
opinion).
Even our recent cases, in their outcomes, hew closely
to the traditional line. Ohio v. Roberts, 448 U.S.,
at 67-70, 65 L. Ed. 2d 597, 100 S. Ct. 2531, admitted
testimony from a preliminary hearing at which the defendant
had examined the witness. Lilly v. Virginia, supra,
527 U.S. 116, 144 L. Ed. 2d 117, 119 S. Ct. 1887,
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, 97 L. Ed. 2d
144, 107 S. Ct. 2775 (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. n8
n8 One case arguably in tension with the rule requiring
a prior opportunity for cross-examination when the proffered
statement is testimonial is White v. Illinois, 502
U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992),
which involved, inter alia, statements of a child
victim to an investigating police officer admitted as
spontaneous declarations. Id., at 349-35, 1116 L. Ed.
2d 848, 112 S. Ct. 736. It is questionable whether
testimonial statements would ever have been admissible
on that ground in 1791; to the extent the hearsay exception
for spontaneous declarations existed at all, it required
that the statements be made "immediately upon the
hurt received, and before [the declarant] had time to
devise or contrive any thing for her own advantage."
Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179
(K. B. 1694). In any case, the only question presented
in White was whether the Confrontation Clause
imposed an unavailability requirement on the types of
hearsay at issue. See 502 U.S., at 348-349, 116 L.
Ed. 2d 848, 112 S. Ct. 736. The holding did not address
the question whether certain of the statements, because
they were testimonial, had to be excluded even if
the witness was unavailable. We "[took] as a given
. . . that the testimony properly falls within the relevant
hearsay exceptions." Id., at 351, n. 4, 116 L.
Ed. 2d 848, 112 S. Ct. 736.
[*37]
Lee v. Illinois, 476 U.S. 530, 90 L.
Ed. 2d 514, 106 S. Ct. 2056 (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, 90 L. Ed. 2d 514,
106 S. Ct. 2056. Respondent argues that "the
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 [*38] own confession
against him in a joint trial. See Parker v. Randolph,
442 U.S. 62, 69-76, 60 L. Ed. 2d 713, 99 S. Ct. 2132 (1979)
(plurality opinion), abrogated by Cruz v. New York,
481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (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. n9
n9 THE CHIEF JUSTICE complains that our prior decisions
have "never drawn a distinction" like the one
we now draw, citing in particular Mattox v. United
States, 156 U.S. 237, 39 L. Ed. 409, 15 S. Ct. 337 (1895),
Kirby v. United States, 174 U.S. 47, 43 L. Ed. 890,
19 S. Ct. 574 (1899), and United States v. Burr,
25 F. Cas. 187, F. Cas. No. 14694 (No. 14,694) (CC
Va. 1807) (Marshall, C. J.). Post, at 4-6. But
nothing in these cases contradicts our holding in any
way. Mattox and Kirby allowed or excluded
evidence depending on whether the defendant had had an
opportunity for cross-examination. Mattox, supra, at
242-244, 39 L. Ed. 409, 15 S. Ct. 337; Kirby, supra,
at 55-61, 43 L. Ed. 890, 19 S. Ct. 574. That the two
cases did not extrapolate a more general class of evidence
to which that criterion applied does not prevent us from
doing so now. As to Burr, we disagree with THE
CHIEF JUSTICE's reading of the case. Although Chief Justice
Marshall made one passing reference to the Confrontation
Clause, the case was fundamentally about the hearsay
rules governing statements in furtherance of a conspiracy.
The "principle so truly important" on which
"inroads" had been introduced was the "rule
of evidence which rejects mere hearsay testimony."
See 25 F. Cas., at 193. Nothing in the opinion
concedes exceptions to the Confrontation Clause's
exclusion of testimonial statements as we use the term.
THE CHIEF JUSTICE fails to identify a single case (aside
from one minor, arguable exception, see supra,
at 22, n. 8), where we have admitted testimonial statements
based on indicia of reliability other than a prior opportunity
for cross-examination. If nothing else, the test we announce
is an empirically accurate explanation of the results
our cases have reached.
Finally, we reiterate that, when the declarant appears
for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial
statements. See California v. Green, 399 U.S. 149,
162, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970). It is
therefore irrelevant that the reliability of some out-of-court
statements "'cannot be replicated, even if the declarant
testifies to the same matters in court.'" Post,
at 6 (quoting United States v. Inadi, 475 U.S. 387,
395, 89 L. Ed. 2d 390, 106 S. Ct. 1121 (1986)). The
Clause does not bar admission of a statement so long as
the declarant is present at trial to defend or explain
it. (The Clause also does not bar the use of testimonial
statements for purposes other than establishing the truth
of the matter asserted. See Tennessee v. Street, 471
U.S. 409, 414, 85 L. Ed. 2d 425, 105 S. Ct. 2078 (1985).)
[*39]
V
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,
65 L. Ed. 2d 597, 100 S. Ct. 2531. 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, 144
L. Ed. 2d 117, 119 S. Ct 1887 (BREYER, J., concurring);
White, 502 U.S., at 366, 116 L. Ed. 2d 848, 112 S.
Ct. 736 [*40] (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, 116 L. Ed. 2d 848,
112 S. Ct. 736. 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.
A
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 [*41] 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
[*42] 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, 25 L. Ed. 244 (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. [*43] 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.
B
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 [*44] 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,"
