Case: Lilly v. Virginia
Issue: Whether the accused's Sixth Amendment right "to be confronted with the witnesses against him" was violated by admitting into evidence at his trial a non-testifying accomplice's entire confession that contained some statements against the accomplice's penal interest and some statements inculpating the defendant.
Facts: Petitioner Benjamin Lee Lilly, his brother Mark and Mark's roommate went on a two-day spree of drinking, burglary, theft and kidnapping, ultimately resulting in the murder of the kidnap victim. Mark was interviewed by the police and, while admitting to the burglary, theft and kidnapping, denied involvement in the murder, putting the blame on Lilly. The series of police interviews with Mark lasted almost an hour and Mark's admissions were separated in time from his inculpation of Lilly. Mark refused to testify against Lilly at trial, so the state admitted the entire taped confession against Lilly. The Virginia Supreme Court, utilizing the two-pronged Ohio v. Roberts Confrontation Clause analysis, held that the out-of-court taped confession was against penal interest and thus within a firmly rooted hearsay exception under the first prong of Roberts. [Under Ohio v. Roberts, 448 U.S. 56 (1980), the veracity of hearsay statements is sufficiently dependable, for purposes of the Confrontation Clause, to allow the untested admission of such statements against the accused if (1) the evidence falls within a firmly rooted hearsay exception or (2) the evidence contains particularized guarantees of trustworthiness such that adversarial testimony would be expected to add little, if anything, to the statement's reliability.] The lower court further held, according to Justice Stevens, that under the particular circumstances of the case, the out of court confession bore indicia of trustworthiness because Mark knew he was implicating himself in a crime, was Mirandized prior to his statement and his statement was corroborated by evidence at trial. The United States Supreme Court unanimously agreed that the admission into evidence of Mark's confession, which implicated Lilly, was a clear violation of the Confrontation Clause.
Holding: A majority of the Court held that an accused's Sixth Amendment right to confrontation is violated by admitting into evidence against him a non-testifying accomplice's entire confession which inculpates the accused but also contains statements against the accomplice's penal interest. Six justices joined parts I and VI of the Court's opinion, five joined part II and four joined parts III - V. Part I was the factual background of the case, part VI was the bare conclusion and part II dealt with whether the petitioner had preserved error below. In parts III - V, the four-member plurality of the Court opined that: (1) for purposes of the first prong of Ohio v. Roberts, "a hearsay exception is firmly rooted if in light of longstanding judicial and legislative experience it rest[s] [on] such a solid foundatio[n] that admission of virtually any evidence within it comports with the substance of the constitutional protection;" (2) an accomplice's confession which inculpates a criminal defendant is not within a firmly rooted exception to the hearsay rule as defined in the Court's Confrontation Clause jurisprudence; (3) under the second or "particularized guarantees of trustworthiness" prong of Ohio v. Roberts, the Supreme Court need not defer to a lower court's determination regarding whether a hearsay statement has particularized guarantees of trustworthiness; (4) trial evidence corroborating portions of an out-of-court admission are irrelevant to the trustworthiness determination; and (5) Mirandizing the out-of-court declarant prior to his confession is also irrelevant to the trustworthiness determination. Five justices explicitly refused to join the plurality's holding.
Reasoning: A majority of the Court agreed that "[t]he admission of the untested confession of Mark Lilly violated petitioner's Confrontation Clause rights." The plurality went on to state that "our cases have consistently viewed an accomplice's statements that shift or spread the blame to a criminal defendant as falling outside the realm of those 'hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add little to [the statement's] reliability.'"
Other Opinions: Justice Breyer concurred in the majority and plurality opinions noting that the court may want to re-examine in the future "the current connection between the Confrontation Clause and the hearsay rule." Justice Rehnquist, joined by O'Connor and Kennedy, concurred in the judgment only. Rehnquist explicitly disagreed with the plurality's conclusions that "all accomplice confessions that inculpate the criminal defendant are not within a firmly rooted exception to the hearsay rule under Ohio v. Roberts" and that "appellate courts should independently review the government's proffered guarantees of trustworthiness under the second half of the Roberts inquiry." According to Rehnquist, the plurality's "categorical holdings" that declarations against penal interest are not a firmly rooted exception to the hearsay rule and in effect that all accomplice confessions which inculpate a co-defendant are inadmissible, have "no place in this case because relevant portions of Mark Lilly's confession were simply not 'declarations against penal interest' as that term is understood in the law of evidence." Justice Rehnquist would have also remanded to the Supreme Court of Virginia in order for Virginia to demonstrate that Mark's confession bore "particularized guarantees of trustworthiness" under Ohio v. Roberts. According to Rehnquist, the Virginia Supreme Court never actually engaged in this analysis, thus, the Court should not have reached this issue at all and certainly should not have concluded that "appellate courts must independently review a lower court's determination that a hearsay statement bears particularized guarantees of trustworthiness." Rehnquist chided the plurality for failing to distinguish between confessions to the police and admissions to accomplices, citing Dutton v. Evans, 400 U.S. 74 (1970), for the proposition that admissions to accomplices can pass muster under the Confrontation Clause. Justice Thomas, joining parts I and VI of the Court's opinion and concurring in the judgment, explicitly agreed with Chief Justice Rehnquist's position that the Confrontation Clause does not impose a "blanket ban on the government's use of accomplice statements that incriminate a defendant." He also agreed that the lower court had not analyzed the confession under the second prong of Roberts and that therefore, the plurality improperly addressed that issue. Justice Scalia, concurring in parts I, II and VI of the Court's opinion and in the judgment, noted that Mark's taped statement was introduced at Lilly's trial without making Mark available for cross examination. "In my view, that is a paradigmatic Confrontation Clause violation. . . . Since the violation is clear, the case need be remanded only for a harmless error determination."
Comment: Justice Rehnquist's dissent to the contrary notwithstanding, the plurality explicitly failed to reach the question of whether an accomplice's confession which also implicates a defendant is always inadmissible under the Confrontation Clause. It only held that such a confession is not within a firmly rooted exception to the hearsay rule under the first prong of Ohio v. Roberts. Nevertheless, the plurality's finding that the Court has historically viewed such statements as "falling outside the realm of those 'hearsay exception[s] [that are] so trustworthy that adversarial testimony can be expected to add little to [the statement's] reliability'" is phrased almost precisely in the terminology of the second prong of Ohio v. Roberts.