Criminal Justice Section  


Criminal Justice Magazine
Winter 2002
Volume 18 Issue 1

Trial Tactics

Stephen A. Saltzburg

Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a member of the Section Council.

Declarations Against Interest and the Confrontation Clause

In the last column we examined the U.S. Supreme Court’s analysis of declarations against interest as defined by Rule 804(b)(3) of the Federal Rules of Evidence in the case of Williamson v. United States, 512 U.S. 594 (1994). Williamson, confined to an interpretation of the rules of evidence, did not address constitutional principles. In this column we look to the relationship of declarations against interest and the Confrontation Clause of the Sixth Amendment. The Supreme Court indicated in Lilly v. Virginia, 527 U.S. 116 (1999), that this relationship is complex and divisive—at least in the nation’s High Court.

The facts of Lilly

Lilly is a case of family crime, family disloyalty, and constitutional criminal procedure. In December 1995, the Lilly brothers—Benjamin Lee and Mark—joined Mark’s roommate, Barker, in a crime spree. They first broke into a home and stole nine bottles of liquor, three loaded guns, and a safe. Satisfied, the three spent part of the next day drinking and shooting at geese. Later, their criminal activity escalated. They robbed a small country store, fleeing in their own car until it broke down. In need of another auto, they hijacked a car and drove the owner, Alex DeFilippis, to a deserted location where one of the three shot and killed him. By the end of the second day of criminal activity, the three committed two more robberies. But there it all ended.

Police arrested the three, took them into custody, and questioned each separately. Each of the men, including the brothers, demonstrated that the desire to escape punishment was stronger than blood or friendship. Benjamin Lee never acknowledged the murder, but he did admit to police that he participated in the robberies. His claim, however, was that the other two men forced him to take part. In statements that were inconsistent, Mark and Barker each admitted to police that they participated in the robberies and acknowledged that DeFilippis was killed. Both stated that Benjamin Lee had masterminded the robberies and was the killer.

Mark’s interrogation was tape-recorded. In it he blamed intoxication for his criminal acts. He admitted that he stole liquor from the home and a 12-pack of beer from the store, and that he’d handled a gun earlier in the day. He also admitted he was present during the more serious thefts and the homicide. But he was slow to blame his brother. It was after police told him that he would be charged with armed robbery and that, unless he broke "family ties," his brother "may be dragging you right into a life sentence," id. at 121, that Mark claimed it was Benjamin Lee and Barker who were responsible for stealing the guns and it was his brother who carjacked and killed DeFilippis.

State court proceedings

The prosecution in Virginia charged Benjamin Lee with several crimes, including the murder of DeFilippis. The circuit court tried Benjamin Lee separately from Mark and Barker. At trial, the prosecution called Mark as a witness. After Mark invoked his Fifth Amendment privilege against self-incrimination, the prosecution successfully introduced the statements Mark had made during the custodial interrogation. The prosecution’s theory was that the statements were admissible as declarations against penal interest by an unavailable witness. Benjamin Lee objected and argued that Mark’s statements were self-serving and designed to shift criminal responsibility to his brother and Barker. Benjamin Lee’s legal theory was that the statements were not declarations against penal interest and that their admission would violate the Confrontation Clause of the Sixth Amendment. The circuit judge overruled the objection. Thus, the jury heard the tape recordings of Mark’s statements and also saw written transcripts. The jury convicted Benjamin Lee of capital murder and recommended death. The circuit court agreed and imposed the death sentence. In addition, the jury found Benjamin Lee guilty of robbery, abduction, carjacking, possession of a firearm by a felon, and four charges of illegal use of a firearm. For these offenses, Benjamin Lee received consecutive prison sentences of two life terms plus 27 years.

Benjamin Lee appealed unsuccessfully to the Supreme Court of Virginia, which upheld both the convictions and sentences. The Virginia Supreme Court agreed with the circuit judge that Mark’s statements were declarations of an unavailable witness against penal interest that fell within the state’s hearsay exception. It also held that the statements’ reliability was established by other evidence and thus satisfied the Confrontation Clause as interpreted by the United States Supreme Court in White v. Illinois, 502 U.S. 346, 356 (1992) ("[w]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied"). (255 Va. 558, 574, 499 S.E.2d 522, 534 (1998).)

According to the Virginia Supreme Court, the fact that Mark’s statements were self-serving went to the weight they might be given by the trier of fact, not to their admissibility. (255 Va. at 574, 499 S.E.2d at 534.)

Supreme Court split

The United States Supreme Court granted Benjamin Lee Lilly’s petition for certiorari and proceeded to address the question of whether admission of Mark’s statements violated Benjamin Lee’s rights under the Confrontation Clause. This, of course, was the only question that the High Court could review, since the issues of admissibility under Virginia evidence law presented state not federal questions and were outside the High Court’s jurisdiction.

Justice Stevens announced the judgment of the Court but his opinion represented a majority opinion only as to three sections:

• Section I set forth the facts;
• Section II rejected Virginia’s argument that the Confrontation Clause argument had not been adequately raised below; and
• Section VI was a single paragraph stating that Benjamin Lee’s Confrontation Clause rights were violated, and remanded to the Virginia courts so they could take the first shot at determining whether the constitutional error was prejudicial or harmless beyond a reasonable doubt.

His Confrontation Clause analysis was joined by Justices Souter, Ginsburg, and Breyer. Justices Scalia and Thomas wrote opinions concurring in the judgment and in part in the Court’s opinion (but not in the Confrontation Clause analysis). Chief Justice Rehnquist also wrote an opinion concurring in the judgment and was joined by Justices O’Connor and Kennedy.

The Stevens analysis

Justice Stevens’ Confrontation Clause analysis is set forth in sections III, IV, and V of his plurality opinion. In section III, Justice Stevens offered two general observations regarding the Confrontation Clause and third-party confessions. The first was the following:

"The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). When the government seeks to offer a declarant’s out-of-court statements against the accused, and, as in this case, the declarant is unavailable, courts must decide whether the Clause permits the government to deny the accused his usual right to 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).

(527 U.S. at 123–24.)

Simply put, the first general notion is that the Supreme Court has been skeptical of the use of third-party statements by an unavailable witness against an accused.

Justice Stevens offered the following second point:

In our most recent case interpreting the Confrontation Clause, White v. Illinois, 502 U.S. 346 (1992), we rejected the suggestion that the Clause should be narrowly construed to apply only to practices comparable to "a particular abuse common in 16th- and 17th-century England: prosecuting a defendant through the presentation of ex parte affidavits, without the affiants ever being produced at trial." Id., at 352. This abuse included using out-of-court depositions and "confessions of accomplices." Green, 399 U.S., at 157. . . . Because that restrictive reading of the Clause’s term "witnesses" would have virtually eliminated the Clause’s role in restricting the admission of hearsay testimony, we considered it foreclosed by our prior cases. Instead, we adhered to our general framework, summarized in Ohio v. Roberts, 448 U.S. 56 (1980), that the veracity of hearsay statements is sufficiently dependable to allow the untested admission of such statements against an accused when (1) "the evidence falls within a firmly rooted hearsay exception" or (2) it contains "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to the statements’ reliability. Id., at 66.

Before turning to the dual Roberts inquiries, however, we note that the statements taken from petitioner’s brother . . . were obviously obtained for the purpose of creating evidence that would be useful at a future trial. The analogy to the presentation of ex parte affidavits in the early English proceedings thus brings the Confrontation Clause into play no matter how narrowly its gateway might be read.

(527 U.S. at 124–25.)

In sum, the second general principle is that hearsay statements satisfy the Confrontation Clause if they fall within a firmly rooted exception or are otherwise especially reliable, and that this principle plainly applied to an analysis of the admissibility of Mark’s statements. Although the plurality continued to reject the narrow reading of the Confrontation Clause suggested by Justice Thomas in White v. Illinois, it observed that, even under the narrow reading, the prosecution’s use of Mark Lilly’s statements against his brother brought the Confrontation Clause into play. This observation may have been a bow to Justice Scalia, given the fact, as explained below, that his separate vote was necessary to produce five votes for a holding that the Confrontation Clause was violated in the Lilly case.

In Section IV of his plurality opinion, Justice Stevens rejected the notion that the statements at issue fell within a firmly rooted hearsay exception. Calling an exception firmly rooted, he wrote, "is designed to allow the introduction of statements falling within a category of hearsay whose conditions have proven over time ‘to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath’ and cross-examination at a trial. Mattox [ v. United States], 156 U.S. [237] at 244." (527 U.S. at 126.)

Justice Stevens described declarations against interest as a hearsay exception that includes several different types of statements that require separate analysis.

We have previously noted that, due to the sweeping scope of the label, the simple categorization of a statement as a ‘declaration against penal interest’ . . . defines too large a class for meaningful Confrontation Clause analysis. Lee v. Illinois, 476 U.S., at 544, n.5. In criminal trials, statements against penal interest are offered into evidence in three principal situations: (1) as voluntary admissions against the declarant; (2) as exculpatory evidence offered by a defendant who claims that the declarant committed, or was involved in, the offense; and (3) as evidence offered by the prosecution to establish the guilt of an alleged accomplice of the declarant. It is useful to consider the three categories and their roots separately.

(527 U.S. at 126.)

Justice Stevens turned to the first situation in which declarations against penal interest are offered.

Statements in the first category—voluntary admissions of the declarant—are routinely offered into evidence against the maker of the statement and carry a distinguished heritage confirming their admissibility when so used. . . . Thus, assuming that Mark Lilly’s statements were taken in conformance with constitutional prerequisites, they would unquestionably be admissible against him if he were on trial for stealing alcoholic beverages.

If Mark were a codefendant in a joint trial, however, even the use of his confession to prove his guilt might have an adverse impact on the rights of his accomplices. When dealing with admissions against penal interest, we have taken great care to separate using admissions against the declarant (the first category above) from using them against other criminal defendants (the third category).

In Bruton v. United States, 391 U.S. 123 (1968), two codefendants, Evans and Bruton, were tried jointly and convicted of armed postal robbery. A postal inspector testified that Evans had orally confessed that he and Bruton had committed the crime. The jury was instructed that Evans’ confession was admissible against him, but could not be considered in assessing Bruton’s guilt. Despite that instruction, this Court concluded that the introduction of Evans’ confession posed such a serious threat to Bruton’s right to confront and cross-examine the witnesses against him that he was entitled to a new trial. The case is relevant to the issue before us today, not because of its principal holding concerning the ability or inability of the jury to follow the judge’s instruction, but rather because it was common ground among all of the Justices that the fact that the confession was a statement against the penal interest of Evans did not justify its use against Bruton. As Justice White noted at the outset of his dissent, "nothing in that confession which was relevant and material to Bruton’s case was admissible against Bruton." Id., at 138.

In the years since Bruton was decided, we have reviewed a number of cases in which one defendant’s confession has been introduced into evidence in a joint trial pursuant to instructions that it could be used against him but not against his codefendant. Despite frequent disagreement over matters such as the adequacy of the trial judge’s instructions, or the sufficiency of the redaction of ambiguous references to the declarant’s accomplice, we have consistently either stated or assumed that the mere fact that one accomplice’s confession qualified as a statement against his penal interest did not justify its use as evidence against another person. See Gray v. Maryland, 523 U.S. 185, 194–95 (1998) (stating that because the use of an accomplice’s confession "creates a special, and vital, need for cross-examination," a prosecutor desiring to offer such evidence must comply with Bruton, hold separate trials, use separate juries, or abandon the use of the confession); id., at 200 (Scalia, J., dissenting) (stating that codefendant’s confessions "may not be considered for the purpose of determining [the defendant’s] guilt"); Richardson v. Marsh, 481 U.S. 200, 206 (1987) ("[W]here two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand"); Cruz v. New York, 481 U.S. 186, 189–90, 193, (1987) (same).

(527 U.S. at 126–29.)

Justice Stevens turned to the second situation in which declarations against interest are offered.

The second category of statements against penal interest encompasses those offered as exculpatory evidence by a defendant who claims that it was the maker of the statement, rather than he, who committed (or was involved in) the crime in question. In this context, our Court, over the dissent of Justice Holmes, originally followed the 19th-century English rule that categorically refused to recognize any "against penal interest" exception to the hearsay rule, holding instead that under federal law only hearsay statements against pecuniary (and perhaps proprietary) interest were sufficiently reliable to warrant their admission at the trial of someone other than the declarant. See Donnelly v. United States, 228 U.S. 243, 272–77, (1913). Indeed, most States adhered to this approach well into the latter half of the 20th century. . . .

As time passed, however, the precise Donnelly rule, which barred the admission of other persons’ confessions that exculpated the accused, became the subject of increasing criticism. . . .

Finally, in 1973, this Court endorsed the more enlightened view in Chambers, holding that the Due Process Clause affords criminal defendants the right to introduce into evidence third parties’ declarations against penal interest—their confessions—when the circumstances surrounding the statements "provid[e] considerable assurance of their reliability." Chambers [v. Mississippi], 410 U.S. [284], at 300 [1973]. Not surprisingly, most States have now amended their hearsay rules to allow the admission of such statements under against-penal-interest exceptions. . . . But because hearsay statements of this sort are, by definition, offered by the accused, the admission of such statements does not implicate Confrontation Clause concerns. Thus, there is no need to decide whether the reliability of such statements is so inherently dependable that they would constitute a firmly rooted hearsay exception.

(527 U.S. 129–30.)

Justice Stevens turned to the third situation in which declarations against penal interest are offered.

The third category includes cases, like the one before us today, in which the government seeks to introduce "a confession by an accomplice which incriminates a criminal defendant." Lee, 476 U.S., at 544, n.5. The practice of admitting statements in this category under an exception to the hearsay rule—to the extent that such a practice exists in certain jurisdictions—is, unlike the first category or even the second, of quite recent vintage. This category also typically includes statements that, when offered in the absence of the declarant, function similarly to those used in the ancient ex parte affidavit system.

Most important, this third category of hearsay encompasses statements that are inherently unreliable. . . . [W]e have over the years "spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants." Lee, 476 U.S., at 541. . . .

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 greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses." Id., at 204. Over 30 years ago, we applied this principle to the Sixth Amendment. We held in Douglas v. Alabama, 380 U.S. 415 (1965), that the admission of a nontestifying accomplice’s confession, which shifted responsibility and implicated the defendant as the triggerman, "plainly denied [the defendant] the right of cross-examination secured by the Confrontation Clause." Id., at 419.

(427 U.S. at 130–31.)

For Justice Stevens, statements like those made by Mark Lilly were inherently unreliable and fell outside any firmly rooted hearsay exception.

In Section V of his plurality opinion, Justice Stevens rejected the reasoning of the Virginia Supreme Court that Mark’s statements were supported by particular indicia of reliability. Although Justice Stevens recognized that Virginia courts could make determinations of reliability for purposes of state evidence law, he observed that "the surrounding circumstances relevant to a Sixth Amendment admissibility determination do not include the declarant’s in-court demeanor (otherwise the declarant would be testifying) or any other factor uniquely suited to the province of trial courts," and "[f]or these reasons, when deciding whether the admission of a declarant’s out-of-court statements violates the Confrontation Clause, courts should independently review whether the government’s proffered guarantees of trustworthiness satisfy the demands of the Clause." ( Id. at 137.) He reasoned that the fact that Mark had received Miranda rights had little bearing on the reliability of his statements and the fact that some portions of his statements were against interest merely meant that they were in part declarations against penal interest. In the end, Justice Stevens reasoned "that neither the words that Mark spoke nor the setting in which he was questioned provides any basis for concluding that his comments regarding petitioner’s guilt were so reliable that there was no need to subject them to adversarial testing in a trial setting"; "Mark was in custody for his involvement in, and knowledge of, serious crimes and made his statements under the supervision of governmental authorities"; "[h]e was primarily responding to the officers’ leading questions, which were asked without any contemporaneous cross-examination by adverse parties"; and "[t]hus, Mark had a natural motive to attempt to exculpate himself as much as possible." ( Id. at 139.)

Justice Breyer’s opinion

Justice Breyer’s concurring opinion noted that the concerns giving rise to the Confrontation Clause long predated the Court’s focus on the relationship between that clause and the hearsay rule. He cited criticism of the Court’s current approach to confrontation/hearsay issues as being either too narrow or too broad and suggested that Lilly was not a case that required the Court to reexamine its approach since Mark’s statements clearly violated the Confrontation Clause under virtually any reasonable interpretation of that constitutional provision.

Justice Scalia’s opinion

Justice Scalia’s one-paragraph, separate opinion largely agreed with Justice Breyer’s analysis that, under any reasonable approach to confrontation, Benjamin Lee Lilly’s rights were violated. Justice Scalia referred to the use of Mark’s statements as a "paradigmatic" violation of the Confrontation Clause, as he cited Justice Thomas’s opinion in White v. Illinois, 502 U.S. 346, 364–65 (1992) (Thomas J., concurring in part and concurring in judgment) for the proposition that "[t]he federal constitutional right of confrontation extends to any witness who actually testifies at trial" and "extrajudicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions.) (527 U.S. at 143.) As shall become apparent, Justice Scalia cited Justice Thomas’s earlier opinion as persuasive, but Justice Scalia and Justice Thomas did not agree on the correct disposition of Mark Lilly’s statements in the prosecution of his brother.

Justice Thomas’s opinion

Justice Thomas continued to adhere to the view he set forth in White v. Illinois, but agreed with the views of Chief Justice Rehnquist (considered below) that the Confrontation Clause does not impose a "blanket ban" on all statements by an accomplice incriminating a defendant. (527 U.S. at 143.) Because he found that the Virginia Supreme Court had not examined Mark’s statements under a reliability standard (the second prong of the Roberts inquiry), Justice Thomas would have remanded the case for further consideration of whether a constitutional violation of Benjamin Lee Lilly’s rights occurred.

Chief Justice Rehnquist’s opinion

Chief Justice Rehnquist’s opinion, joined by Justices O’Connor and Kennedy, was a dissent in almost all respects but the formal title of the opinion. Because he agreed that a remand was necessary, he concurred in the judgment of the Court, but otherwise the Chief Justice disagreed with the plurality’s conclusion that statements by one accomplice implicating another are not within a firmly rooted hearsay exception and, further, the conclusion that an appellate court should conduct an independent review of the reliability of accomplice statements when a Confrontation Clause claim is made.

In some respects, the Chief Justice was more critical of the Virginia courts than was the plurality. He begins by noting that Mark’s statements occurred over a period of about an hour, and that some statements clearly incriminated Mark as an aider and abettor while others purported to exculpate Mark and incriminate Benjamin Lee. (527 U.S. at 144–45.) By dividing the statements into clearly inculpatory on the one hand and clearly exculpatory on the other hand, the Chief Justice concluded that the plurality’s broad rule was unnecessary in this case, "because the relevant portions of Mark Lilly’s confession were simply not declarations against penal interest" as that term is understood in the law of evidence. ( Id. at 145.) Chief Justice Rehnquist recognized that Virginia courts interpret Virginia evidence law, but his opinion essentially describes the Virginia courts’ reasoning as unreasonable and out of touch with traditional approaches to declarations against interest. In this respect, the Chief Justice arguably treats the state courts with less respect than does the plurality.

The Chief Justice agreed with the plurality and the concurring opinions that the exculpatory statements made by Mark that incriminated his brother should be viewed with special skepticism given the incentive by one suspect to exonerate himself and implicate another. ( Id. at 146.) Chief Justice Rehnquist departed from the plurality, however, in declining to find that all statements by one suspect that implicate another are equally suspect. He pointed to lower court decisions upholding admission of statements by one suspect that equally implicated the declarant and the defendant. Examples offered in a footnote were United States v. Keltner, 147 F.3d 662, 670 (8th Cir. 1998); and Earnest v. Dorsey, 87 F.3d 1123, 1134 (10th Cir. 1996).

Chief Justice Rehnquist also strongly disagreed with the plurality’s conclusion that an appellate court must engage in an independent review of the circumstances purporting to guarantee the trustworthiness of a declarations against penal interest. He argued as follows:

Deciding whether a particular statement bears the proper indicia of reliability under our Confrontation Clause precedent "may be a mixed question of fact and law," but the mix weighs heavily on the "fact" side. We have said that "deferential review of mixed questions of law and fact is warranted when it appears that the district court is ‘better positioned’ than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine." Salve Regina College v. Russell, 499 U.S. 225, 233 (1991) (citation omitted).

These factors counsel in favor of deference to trial judges who undertake the second prong of the Roberts inquiry. They are better able to evaluate whether a particular statement given in a particular setting is sufficiently reliable that cross-examination would add little to its trustworthiness. Admittedly, this inquiry does not require credibility determinations, but we have already held that deference to district courts does not depend on the need for credibility determinations. See Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). . . .

It is difficult to apply any standard in this case because none of the courts below conducted the second part of the Roberts inquiry. I would therefore remand this case to the Supreme Court of Virginia to carry out the inquiry, and, if any error is found, to determine whether that error is harmless.

(527 U.S. at 148–49.)

Counting the votes

To know the present state of Confrontation Clause analysis as applied to declarations against interest, it is necessary to count the votes in Lilly and to recognize that a change in a single vote could change the outcome of future cases.

The plurality has four votes for the proposition that statements like Mark Lilly’s are constitutionally suspect and generally will violate the Confrontation Clause to the extent that they implicate a third person like Benjamin Lee Lilly. Justice Breyer’s concurring opinion expresses an openness to reconsidering the relationship of the Confrontation Clause and the hearsay rule, but concludes that any reconsideration would result in statements like Mark Lilly’s being held to violate the clause if offered against a defendant like Benjamin Lee Lilly.

There are also four votes for the countervailing proposition that statements, whether or not they qualify as traditional declarations against interest under the common law, might be admissible as sufficiently reliable under the second prong of the Roberts inquiry. Justices O’Connor and Kennedy join Chief Justice Rehnquist’s opinion explaining why this is so, and Justice Thomas states in his separate opinion that he agrees with the Chief Justice and would also remand as the Chief Justice would. Interestingly, neither the Chief Justice nor Justice Thomas explains why he would remand for the Virginia Supreme Court to conduct a reliability inquiry rather than remanding so that the circuit court judge could conduct the inquiry. If the objection to independent appellate review of reliability is that trial judges are better equipped than appellate judges to do the inquiry, a remand with directions to have the trial judge conduct the inquiry would seem to make more sense.

Thus, the votes appear to be 4–4 with Justice Scalia casting the deciding vote. His short opinion can be read two ways. He reiterates his agreement with Justice Thomas’s analysis in White v. Illinois, but he does not join Justice Thomas in Lilly. This suggests that his view as to how the Thomas’s analysis in White v. Illinois should be applied to cases like Lilly differs from that of Justice Thomas and the Chief Justice. Indeed, he agrees with the Stevens plurality and with Justice Breyer’s separate concurring opinion that there is no doubt that there was a Confrontation Clause violation in Lilly, and, thus, that there was no need for a remand on the question whether there was error. There appear, then, to be five votes for the proposition that statements like Mark Lilly’s almost always violate the Confrontation Clause when used against third parties like Benjamin Lee Lilly.

But, there is need for caution. Justice Scalia did not join sections IV or V of the plurality opinion. His analysis is limited to certain types of declarations against interest—those obtained by the government that look like depositions or affidavits and the like. It is by no means clear that he would agree with the plurality if called upon to analyze declarations against interest made to non-governmental witnesses. Moreover, Justice Scalia did not agree that appellate courts should make an independent judgment as to the reliability of hearsay statements when Confrontation Clause challenges are raised. This might mean that his view is that statements like those at issue in Lilly are always unreliable, or simply that the statements in the particular case were obviously unreliable. It is not yet possible to know which is the better reading of his opinion, and the correct reading is important given the tie-breaking vote that he cast in Lilly.

One final note about Lilly: Justice Kennedy argued unsuccessfully in Williamson that the traditional common law approach to declarations against interest permitted collateral statements to be admitted as part of a declaration against interest. The Williamson majority never responded with an argument that the common law required exclusion of collateral statements. No Justice argued in Lilly that Mark’s statements implicating Benjamin Lee could be admitted as part of what were clearly declarations against Mark’s interest, even though Virginia was free to adopt a rule of evidence consistent with Justice Kennedy’s approach in Williamson rather than that of the majority. This could mean that it is now plain that the collateral statement notion will run afoul of the Confrontation Clause, and that states should not seek to embrace it. Or, it could mean that no one focused on the issue in Lilly and that the issue might once again rear its head in future cases.

The only thing that is clear after Lilly is that not much is yet certain about declarations against interest offered against third parties in criminal cases. Lilly raises as many questions as it answers. It seems likely that increased certainty will depend upon future decisions. It also seems clear that a change in the composition of the Court or in a single vote among the Lilly Justices could have a substantial impact on the specific relationship of declarations against interest and the Confrontation Clause and on the general relationship of the hearsay rule and the Confrontation Clause.

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