lilly virginia argued march decided june petitioner brother mark gary barker arrested end crime spree inter alia stole liquor guns abducted alex defilippis later shot killed police questioning mark admitted stealing alcoholic beverages claimed petitioner barker stole guns petitioner shot defilippis virginia called mark witness petitioner subsequent criminal trial mark invoked fifth amendment privilege trial admitted statements police declarations unavailable witness penal interest overruling petitioner objections statements mark penal interest shifted responsibility crimes barker petitioner admission violate sixth amendment confrontation clause petitioner convicted defilippis murder crimes affirming virginia found confrontation clause satisfied mark statements fell within firmly rooted exception hearsay rule also held statements reliable mark knew implicating participant numerous crimes statements independently corroborated evidence trial held judgment reversed case remanded reversed remanded ustice stevens delivered opinion respect parts ii vi concluding jurisdiction petitioner confrontation clause claim expressly argued claim opening brief virginia arguments based williamson confrontation clause opinion lee illinois responding commonwealth position sufficed raise issue admission mark untested confession violated petitioner confrontation clause rights adhering general custom allowing state courts initially assess effect erroneously admitted evidence light substantive state criminal law virginia courts consider first instance whether sixth amendment violation harmless beyond reasonable doubt chapman california ustice stevens joined ustice souter ustice ginsburg ustice breyer concluded parts iii iv mark hearsay statements meet requirements admission set forth ohio roberts pp confrontation clause ensures reliability evidence defendant subjecting rigorous testing adversary proceeding maryland craig declarant see california green hearsay statements sufficiently dependable allow untested admission accused statements fall within firmly rooted hearsay exception contain particularized guarantees trustworthiness adversarial testing expected add little anything reliability roberts pp statements admissible firmly rooted hearsay exception fall within hearsay category whose conditions proven time remove temptation falsehood enforce strict adherence truth obligation oath trial mattox simple categorization statement penal interest defines large class meaningful confrontation clause review statements offered evidence voluntary admissions declarant exculpatory evidence offered defendant claims declarant committed involved offense evidence offered prosecution establish guilt alleged accomplice declarant third category includes statements mark encompasses statements presumptively unreliable lee even accomplice incriminates together defendant accomplice statements shift spread blame criminal defendant therefore fall outside realm hearsay exception trustworthy adversarial testing expected add little statements reliability white illinois statements within firmly rooted exception hearsay rule pp commonwealth contends defer virginia additional determination mark statements reliable indicia reliability found coupled actions police mark interrogation demonstrate circumstances surrounding statements bore particularized guarantees trustworthiness roberts sufficient satisfy confrontation clause residual admissibility test nothing prior opinions however suggests appellate courts defer lower determinations regarding mixed questions constitutional law whether hearsay statement sufficient guarantees trustworthiness see ornelas thus courts independently review whether government proffered guarantees trustworthiness satisfy clause commonwealth asserted trustworthiness guarantees unconvincing mark custody involvement knowledge serious crimes made statements governmental authorities supervision primarily responding officers leading questions also natural motive attempt exculpate influence alcohol interrogation factors militates finding statements inherently reliable superfluous pp justice scalia concluded introducing mark lilly statements police trial without making available paradigmatic confrontation clause violation since violation clear case need remanded determination ustice thomas adhering view confrontation clause extends witness actually testifies trial implicated extrajudicial statements insofar contained formalized testimonial material affidavits depositions prior testimony confessions white illinois agrees hief ustice clause impose blanket ban use accomplice statements incriminate defendant since lower courts analyze confession second prong roberts inquiry plurality address issue hief ustice joined ustice onnor ustice kennedy concluded mark lilly confession incriminating petitioner satisfy firmly rooted hearsay exception statements confession penal interest quite separate statements exculpating inculpating petitioner least penal interest case therefore raise question whether confrontation clause permits admission genuinely statement also inculpates codefendant confession incriminating portions declaration penal interest statements part custodial confession sort viewed special suspicion given codefendant strong motivation implicate defendant exonerate lee illinois blanket ban government use accomplice statements incriminate defendant sweeps beyond case facts precedents pp virginia analyze confession second prong ohio roberts inquiry case remanded commonwealth demonstrate confession bears particularized guarantees trustworthiness error found determine whether error harmless pp stevens announced judgment delivered opinion respect parts vi scalia souter thomas ginsburg breyer joined opinion respect part ii scalia souter ginsburg breyer joined opinion respect parts iii iv souter ginsburg breyer joined breyer filed concurring opinion scalia thomas filed opinions concurring part concurring judgment rehnquist filed opinion concurring judgment kennedy joined benjamin lee lilly petitioner virginia writ certiorari virginia june justice stevens announced judgment delivered opinion respect parts ii vi opinion respect parts iii iv justice souter justice ginsburg justice breyer join question presented case whether accused sixth amendment right confronted witnesses violated admitting evidence trial nontestifying accomplice entire confession contained statements accomplice penal interest others inculpated accused december three men benjamin lee lilly petitioner brother mark mark roommate gary wayne barker broke home stole nine bottles liquor three loaded guns safe next day men drank stolen liquor robbed small country store shot geese stolen weapons car broke abducted alex defilippis used vehicle drive deserted location one shot killed defilippis three men committed two robberies apprehended police late evening december taking custody police questioned three men separately petitioner mention murder police stated two men forced participate robberies petitioner brother mark barker told police somewhat different accounts crimes maintained petitioner masterminded robberies one killed defilippis tape recording mark initial oral statement indicates questioned december police interrogated interviews mark continually emphasized drunk entire spree asked participation string crimes mark admitted stole liquor initial burglary stole beer robbery liquor store mark also conceded handled gun earlier day present serious thefts homicide police told mark charged armed robbery unless broke family ties petitioner may dragging right life sentence app mark acknowledged sent away penitentiary claimed however primarily drinking petitioner barker got guns something initial burglary mark said barker pulled gun one robberies insisted petitioner instigated carjacking mark nothing shooting defilippis brief portion one statements mark stated petitioner one shot defilippis commonwealth virginia charged petitioner several offenses including murder defilippis tried separately trial commonwealth called mark witness invoked fifth amendment privilege commonwealth therefore offered introduce evidence statements mark made police arrest arguing admissible declarations unavailable witness penal interest petitioner objected ground statements actually mark penal interest shifted responsibility crimes barker petitioner admission violate sixth amendment confrontation clause trial judge overruled objection admitted tape recordings written transcripts statements entirety jury found petitioner guilty robbery abduction carjacking possession firearm felon four charges illegal use firearm offenses received consecutive prison sentences two life terms plus years jury also convicted petitioner capital murder recommended sentence death imposed virginia affirmed petitioner convictions sentences relevant first concluded mark statements declarations unavailable witness penal interest statements reliability established evidence therefore fell within exception virginia hearsay rule turned petitioner confrontation clause challenge began relying opinion white illinois proposition proffered hearsay sufficient guarantees reliability come within firmly rooted exception hearsay rule confrontation clause satisfied quoting white virginia also remarked dmissiblity evidence statement penal interest unavailable witness firmly rooted exception hearsay rule virginia thus hold trial err admitting mark lilly statements evidence id mark lilly statements tended shift principal responsibility others offer claims mitigating circumstances goes weight jury assign admissibility concern decision represented significant departure confrontation clause jurisprudence prompted us grant certiorari ii initial matter commonwealth asserts decline exercise jurisdiction petitioner claim fairly present confrontation clause challenge virginia disagree although petitioner focused state hearsay law challenge admission mark statements petitioner expressly argued opening brief admission statements violated sixth amendment right confrontation expanded sixth amendment argument reply brief cited lee illinois williamson response commonwealth contention admission statements constitutional arguments particularly reliance confrontation clause opinion lee sufficed raise virginia constitutionality admitting mark statements see taylor illinois indeed addressed petitioner confrontation clause claim without mentioning waiver problems iii criminal prosecutions state well federal accused right guaranteed sixth fourteenth amendments constitution confronted witnesses amdt pointer texas applying sixth amendment central concern confrontation clause ensure reliability evidence criminal defendant subjecting rigorous testing context adversary proceeding trier fact maryland craig government seeks offer declarant statements accused case declarant unavailable courts must decide whether clause permits government deny accused usual right force declarant submit greatest legal engine ever invented discovery truth california green citation omitted recent case interpreting confrontation clause white illinois rejected suggestion clause narrowly construed apply practices comparable particular abuse common england prosecuting defendant presentation ex parte affidavits without affiants ever produced trial abuse included using depositions confessions accomplices green accord white noting rule applies even confession found reliable thomas concurring part concurring judgment restrictive reading clause term witnesses virtually eliminated clause role restricting admission hearsay testimony considered foreclosed prior cases instead adhered general framework summarized ohio roberts veracity hearsay statements sufficiently dependable allow untested admission statements accused evidence falls within firmly rooted hearsay exception contains particularized guarantees trustworthiness adversarial testing expected add little anything statements reliability turning dual roberts inquiries however note statements taken petitioner brother early morning december obviously obtained purpose creating evidence useful future trial analogy presentation ex parte affidavits early english proceedings thus brings confrontation clause play matter narrowly gateway might read iv virginia held admission mark lilly confession constitutional primarily view mark penal interest statement penal interest unavailable witness firmly rooted exception hearsay rule virginia assume must mark statements penal interest matter state law question whether statements fall within firmly rooted hearsay exception confrontation clause purposes question federal law accordingly appropriate begin analysis examining firmly rooted doctrine roots penal interest exception allowed admission statements falling within firmly rooted hearsay exception since recognition mattox framers sixth amendment obviously intended respec certain unquestionable rules evidence drafting confrontation clause justice brown writing case question wisdom excluding deposition testimony ex parte affidavits equivalents reasoned unduly strict technical reading clause effect excluding hearsay evidence dying declarations whose admissibility neither framers anyone else years later hardihood question ibid describe hearsay exception firmly rooted light longstanding judicial legislative experience idaho wright rest solid foundatio admission virtually evidence within comports substance constitutional protection roberts quoting mattox standard designed allow introduction statements falling within category hearsay whose conditions proven time remove temptation falsehood enforce strict adherence truth obligation oath trial mattox white instance held hearsay exception spontaneous declarations firmly rooted least two centuries old currently widely accepted among carries substantial guarantees trustworthiness recaptured even later testimony established practice short must confirm statements falling within category hearsay inherently carr special guarantees credibility essentially equivalent greater produced constitution preference trial testimony penal interest exception hearsay rule unlike previously recognized firmly rooted exceptions generally based maxim statements made without motive reflect legal consequences one statement situations exceptionally conducive veracity lack dangers inaccuracy typically accompany hearsay exception rather founded broad assumption person unlikely fabricate statement interest time made chambers mississippi previously noted due sweeping scope label simple categorization statement declaration penal interest defines large class meaningful confrontation clause analysis lee illinois criminal trials statements penal interest offered evidence three principal situations voluntary admissions declarant exculpatory evidence offered defendant claims declarant committed involved offense evidence offered prosecution establish guilt alleged accomplice declarant useful consider three categories roots separately statements first category voluntary admissions declarant routinely offered evidence maker statement carry distinguished heritage confirming admissibility used see gilbert evidence lambe case leach eng state kirby strob state cowan thus assuming mark lilly statements taken conformance constitutional prerequisites unquestionably admissible trial stealing alcoholic beverages mark codefendant joint trial however even use confession prove guilt might adverse impact rights accomplices dealing admissions penal interest taken great care separate using admissions declarant first category using criminal defendants third category bruton two codefendants evans bruton tried jointly convicted armed postal robbery postal inspector testified evans orally confessed bruton committed crime jury instructed evans confession admissible considered assessing bruton guilt despite instruction concluded introduction evans confession posed serious threat bruton right confront witnesses entitled new trial case relevant issue us today principal holding concerning ability inability jury follow judge instruction rather common ground among justices fact confession statement penal interest evans justify use bruton justice white noted outset dissent nothing confession relevant material bruton case admissible bruton years since bruton decided reviewed number cases one defendant confession introduced evidence joint trial pursuant instructions used codefendant despite frequent disagreement matters adequacy trial judge instructions sufficiency redaction ambiguous references declarant accomplice consistently either stated assumed mere fact one accomplice confession qualified statement penal interest justify use evidence another person see gray maryland stating use accomplice confession creates special vital need prosecutor desiring offer evidence must comply bruton hold separate trials use separate juries abandon use confession scalia dissenting stating codefendant confessions may considered purpose determining defendant guilt richardson marsh two defendants tried jointly pretrial confession one admitted unless confessing defendant takes stand cruz new york second category statements penal interest encompasses offered exculpatory evidence defendant claims maker statement rather committed involved crime question context dissent justice holmes originally followed english rule categorically refused recognize penal interest exception hearsay rule holding instead federal law hearsay statements pecuniary perhaps proprietary interest sufficiently reliable warrant admission trial someone declarant see donnelly indeed adhered approach well latter half century see chambers collecting citations time passed however precise donnelly rule barred admission persons confessions exculpated accused became subject increasing criticism professor wigmore example remarked years donnelly practical consequences unreasoning limitation shocking sense justice commonest application requires criminal trial rejection confession however well authenticated person deceased insane fled jurisdiction therefore quite unavailable avowed true culprit therefore late retrace steps discard barbarous doctrine refuse let innocent accused vindicate even producing tribunal perfectly authenticated written confession made gallows true culprit beyond reach justice wigmore evidence pp ed see also scolari criticizing donnelly annunziato friendly hines commonwealth criticizing donnelly refusing incorporate state law wright uniform rules hearsay cin rev finally endorsed enlightened view chambers holding due process clause affords criminal defendants right introduce evidence third parties declarations penal interest confessions circumstances surrounding statements provid considerable assurance reliability surprisingly amended hearsay rules allow admission statements exceptions see wigmore evidence chadbourn rev wigmore evidence pp best ed supp hearsay statements sort definition offered accused admission statements implicate confrontation clause concerns thus need decide whether reliability statements inherently dependable constitute firmly rooted hearsay exception third category includes cases like one us today government seeks introduce confession accomplice incriminates criminal defendant lee practice admitting statements category exception hearsay rule extent practice exists certain jurisdictions unlike first category even second quite recent vintage category also typically includes statements offered absence declarant function similarly used ancient ex parte affidavit system important third category hearsay encompasses statements inherently unreliable typical groundswell scholarly judicial criticism culminated chambers decision wigmore treatise still expressly distinguishes accomplices confessions inculpate accused beyond proper understanding exception accomplice often considerable interest confessing betraying cocriminals wigmore evidence consistent scholarship assumption underlies analysis bruton line cases years spoken one voice declaring presumptively unreliable accomplices confessions incriminate defendants lee see also cruz hite dissenting statements traditionally viewed special suspicion bruton statements inevitably suspect crawford stated even alleged accomplice testifies confession incriminate together defendant received suspicion greatest care caution passed upon jury rules governing apparently credible witnesses years ago applied principle sixth amendment held douglas alabama admission nontestifying accomplice confession shifted responsibility implicated defendant triggerman plainly denied defendant right secured confrontation clause lee reaffirmed douglas explained holding premised basic understanding one person accuses another crime circumstances declarant stands gain inculpating another accusation presumptively suspect must subjected scrutiny th truthfinding function confrontation clause uniquely threatened accomplice confession sought introduced criminal defendant without benefit due strong motivation implicate defendant exonerate codefendant statements defendant said less credible ordinary hearsay evidence ibid quoting bruton white dissenting indeed even dissenting justices lee agreed accomplice confessions ordinarily untrustworthy precisely unambiguously adverse penal interest declarant instead likely attempts minimize declarant culpability blackmun dissenting adhered approach construing federal rules evidence thus williamson without reaching confrontation clause issue held accomplice statement penal interest admissible defendant noted presumptive unreliability portions statement one effective ways lie mix falsehood truth especially truth seems particularly persuasive nature clear cases consistently viewed accomplice statements shift spread blame criminal defendant falling outside realm hearsay exception trustworthy adversarial testing expected add little statements reliability white view also reflected several hearsay law indeed prior appears even virginia rarely allowed statements penal interest declarant used criminal trials see ellison commonwealth virginia relaxed portion hearsay law decided handler commonwealth later apparently concluded statements penal interest fall within firmly rooted exception hearsay rule virginia consequence decisive fact make explicit today accomplices confessions inculpate criminal defendant within firmly rooted exception hearsay rule concept defined confrontation clause jurisprudence aside conclusion mark statements admissible firmly rooted hearsay exception virginia also affirmed trial holding statements reliabl context facts circumstances given mark lilly cognizant import statements implicating participant numerous crimes ii lements statements independently corroborated evidence offered trial see also app trial decision commonwealth contends defer determination argues two indicia reliability coupled facts police read mark miranda rights promise leniency exchange statements demonstrate circumstances surrounding statements bore particularized guarantees trustworthiness roberts sufficient satisfy confrontation clause residual admissibility test residual trustworthiness test credits axiom rigid application clause standard admissibility might exceptional case exclude statement unavailable witness incontestably probative competent reliable yet nonetheless outside firmly rooted hearsay exception cf mattox confident context hearsay falling within firmly rooted exception declarant truthfulness clear surrounding circumstances test marginal utility sixth amendment residual trustworthiness test allows admission declarant statements wright nothing prior opinions however suggests appellate courts defer lower courts determinations regarding whether hearsay statement particularized guarantees trustworthiness contrary opinions indicate assumed mixed questions constitutional law independent review necessary maintain control clarify legal principles governing factual circumstances necessary satisfy protections bill rights ornelas holding appellate courts review reasonable suspicion probable cause determinations de novo course accept virginia courts determination mark statements reliable purposes state hearsay law appellate review presence absence historical facts clear error surrounding circumstances relevant sixth amendment admissibility determination include declarant demeanor otherwise declarant testifying factor uniquely suited province trial courts reasons deciding whether admission declarant statements violates confrontation clause courts independently review whether government proffered guarantees trustworthiness satisfy demands clause commonwealth correctly notes presumption unreliability attaches codefendants confessions may rebutted lee held fact inherent unreliability accompanies statements made course furtherance conspiracy per se rebutted circumstances giving rise long history admitting statements see bourjaily nonetheless historical underpinnings confrontation clause sweep prior confrontation cases offer one cogent reminder highly unlikely presumptive unreliability attaches accomplices confessions shift spread blame effectively rebutted statements given conditions implicate core concerns old ex parte affidavit practice government involved statements production statements describe past events subjected adversarial testing applying principles commonwealth asserted guarantees trustworthiness fail convince us mark confession sufficiently reliable admissible without allowing petitioner evidence trial corroborated portions mark statements irrelevant squarely rejected notion evidence corroborating truth hearsay statement may properly support finding statement bears particularized guarantees trustworthiness wright wright concluded admission hearsay statements child declarant violated confrontation clause even though statements admissible exception hearsay rule recognized idaho even though corroborated evidence recognized theoretically possible statements possess particularized guarantees justify admissibility refused allow state bootstrap trustworthiness evidence admissible confrontation clause held hearsay evidence used convict defendant must possess indicia reliability virtue inherent trustworthiness reference evidence trial ibid police informing mark miranda rights render circumstances surrounding statements significantly trustworthy noted rejecting similar argument lee finding confession voluntary fifth amendment purposes bear question whether confession also free desire motive impulse declarant may either mitigate appearance culpability spreading blame overstate defendant involvement crimes issue token believe suspect consciousness miranda rights little bearing likelihood truthfulness statements suspect custody obvious involvement serious crimes knowledge anything says may used militates depending veracity commonwealth next proffered basis reliability mark knew exposing criminal liability merely restates fact portions statements technically penal interest explained statements suspect insofar inculpate persons hat person making broadly confession make credible confession parts williamson accord lee similarly absence express promise leniency mark enhance statements reliability level necessary untested admission police need tell person custody statements may gain leniency order suspect surmise speaking particularly placing blame cohorts may inure advantage abundantly clear neither words mark spoke setting questioned provides basis concluding comments regarding petitioner guilt reliable need subject adversarial testing trial setting mark custody involvement knowledge serious crimes made statements supervision governmental authorities primarily responding officers leading questions asked without contemporaneous adverse parties thus mark natural motive attempt exculpate much possible see dutton evans harlan concurring result mark also obviously still influence alcohol factors militates finding statements inherently reliable superfluous vi admission untested confession mark lilly violated petitioner confrontation clause rights adhering general custom allowing state courts initially assess effect erroneously admitted evidence light substantive state criminal law leave virginia courts consider first instance whether sixth amendment error harmless beyond reasonable doubt chapman california see also lee accordingly judgment virginia reversed case remanded proceedings inconsistent opinion ordered benjamin lee lilly petitioner virginia writ certiorari virginia june justice breyer concurring currently interpreted confrontation clause generally forbids introduction hearsay trial unless evidence falls within firmly rooted hearsay exception otherwise possesses particularized guarantees trustworthiness ohio roberts amici case citing opinions justices work scholars argued reexamine way cases connected confrontation clause hearsay rule see brief american civil liberties union et al amici curiae see also white illinois thomas joined scalia concurring part concurring judgment friedman confrontation search basic principles geo amar constitution criminal procedure berger deconstitutionalization confrontation clause proposal prosecutorial restraint model rev effort tie clause directly hearsay rule fairly recent vintage compare roberts supra california green confrontation clause ancient origins predate hearsay rule see salinger right confrontation originate provision sixth amendment right recognized exceptions right accused meet accusers mentioned among things bible shakespeare century british statutes cases treatises see bible acts shakespeare richard ii act sc shakespeare henry viii act ii sc wright graham federal practice procedure quoting statutes enacted king edward vi queen elizabeth cf case thomas tong kelyng eng confession may used confessor hale history common law england gray ed blackstone commentaries traditionally understood right designed prevent example kind abuse permitted crown convict sir walter raleigh treason basis confession lord cobham see wright graham supra viewed light traditional purposes current confrontation clause test amici argue narrow broad test arguably narrow insofar authorizes admission statements prepared testimony trial statements happen fall within hearsay rule exception example deposition videotaped confession sometimes fall within exception vicarious admissions chief justice view exception statements penal interest see post see generally white supra thomas concurring part concurring judgment friedman supra amar supra berger supra brief american civil liberties union et al amici curiae modern lord cobham confession become admissible simply fortuity conspiracy continued time police questioning thereby bringing confession within exception vicarious admissions cf dutton evans plurality opinion like walter raleigh prosecutor deny plea let accuser come face face words related penal interest exception law presumes man accuse accuse another trial sir walter raleigh tr time current confrontation clause test arguably broad make constitutional issue admission relevant hearsay statement even hearsay statement tangentially related elements dispute made long crime occurred without relation prospect future trial obvious admission business record hearsay business regularly conducted admission scrawled note mary called dated many months crime violates defendant basic constitutional right confronted witnesses yet one easily fit evidence within traditional hearsay exception one fit within special exception hearsay particularized guarantees trustworthiness event debatable whether sixth amendment principally protects trustworthiness rather confrontation see white supra thomas concurring part concurring judgment cf maryland craig scalia dissenting confrontation clause guarantee reliable evidence guarantees specific trial procedures thought assure reliable evidence undeniably among confrontation need reexamine current connection confrontation clause hearsay rule case however statements issue violate clause regardless see ante write separately point fact reevaluate link case end matter may leave question open another day benjamin lee lilly petitioner virginia writ certiorari virginia june justice scalia concurring part concurring judgment custodial interrogation mark lilly told police officers petitioner committed charged murder prosecution introduced tape recording statements trial without making mark available view paradigmatic confrontation clause violation see white illinois thomas concurring part concurring judgment federal constitutional right confrontation extends witness actually testifies trial extrajudicial statements insofar contained formalized testimonial material affidavits depositions prior testimony confessions since violation clear case need remanded determination therefore join parts ii vi opinion concur judgment benjamin lee lilly petitioner virginia writ certiorari virginia june justice thomas concurring part concurring judgment join parts vi opinion concur judgment though continue adhere view confrontation clause extends witness actually testifies trial implicated extrajudicial statements insofar contained formalized testimonial material affidavits depositions prior testimony confessions white illinois opinion concurring part concurring judgment agree hief ustice clause impose blanket ban government use accomplice statements incriminate defendant post approach departs original understanding confrontation clause also freezes jurisprudence making trial decisions excluding statements virtually unreviewable also agree hief ustice lower courts analyz confession second prong roberts inquiry therefore see reason plurality address issue upon courts pass benjamin lee lilly petitioner virginia writ certiorari virginia june chief justice rehnquist justice justice kennedy join concurring judgment plurality today concludes accomplice confessions inculpate criminal defendant within firmly rooted exception hearsay rule ohio roberts see ante also concludes appellate courts independently review government proffered guarantees trustworthiness second half roberts inquiry see ante disagree conclusions concur judgment reversing decision virginia plurality correctly issue case opening sentence opinion whether petitioner confrontation clause rights violated admission accomplice confession contained statements accomplice penal interest others inculpated accused ante confession accomplice mark lilly covers pages joint appendix interviews lasted hour statements mark lilly penal interest probably show aider abettor quite separate time place statements exculpating mark incriminating brother petitioner benjamin lilly murder alexis defilippis thus one loss know much plurality opinion devoted whether declaration penal interest firmly rooted exception hearsay rule ohio roberts supra certainly must accept virginia determination mark statements whole declarations penal interest purposes commonwealth hearsay rule see ante simply labeling confession declaration penal interest however insufficient purposes roberts exception defines large class meaningful confrontation clause analysis lee illinois plurality tries hand systematizing class see ante housecleaning unwarranted results complete ban government use accomplice confessions inculpate codefendant categorical holding place case relevant portions mark lilly confession simply declarations penal interest term understood law evidence may close cases declaration penal interest portion closely tied portion incriminating defendant see strong mccormick evidence ed one mark lilly statements inculpating brother murder defilippis least mark penal interest case therefore raise question whether confrontation clause permits admission genuinely statement also inculpates codefendant precedent compel broad holding suggested plurality today cf williamson kennedy concurring explaining providing examples neutral declarations penal interest indeed several courts appeals admitted custodial confessions equally inculpate declarant defendant see reason us preclude consideration similar statements satisfying firmly rooted hearsay exception roberts incriminating portions mark lilly confession declaration penal interest statements part custodial confession sort viewed special suspicion given codefendant strong motivation implicate defendant exonerate lee supra citations omitted cases cited plurality support broad conclusion involved accusatory statements taken law enforcement personnel view prosecution see douglas alabama lee supra cf bruton williamson supra cases turn solely fact challenged statement inculpated defendant instead grounded suspicion untested custodial confessions see lee supra plurality describes dutton evans exception line cases ante case involved accomplice statement fellow prisoner see custodial confession dutton held admission accomplice statement fellow inmate violate confrontation clause facts case see id see reason foreclose possibility statements even inculpate codefendant may fall firmly rooted hearsay exception dutton recognized statements fellow prisoners like confessions family members friends bear sufficient indicia reliability placed jury without confrontation declarant several federal courts similarly concluded statements fall firmly rooted hearsay exception dutton thus exception case wholly outside unbroken line cases see ante custodial confessions laying blame codefendant found violate confrontation clause custodial confession case falls coverage latter set cases extend holding plurality blanket ban government use accomplice statements incriminate defendant thus sweeps beyond facts case precedent ignoring exculpatory nature mark confession circumstances given unlike plurality limit holding case hand decide mark lilly custodial confession laying sole responsibility petitioner satisfy firmly rooted hearsay exception ii see reason reverse decision virginia remand case commonwealth demonstrate mark confession bears particularized guarantees trustworthiness roberts virginia held mark lilly confession admissible state law exception hearsay rules held exception firmly rooted confrontation clause purposes see neither trial analyzed confession second prong roberts inquiry discussion reliability cited see ante pertained whether confession admitted state hearsay rules confrontation clause following normal course see reason reach issue upon lower courts pass see national college athletic assn smith slip decide first instance issues decided thus issue question sent back virginia courts see ante lack reviewable decision case makes especially troubling plurality conclusion appellate courts must independently review lower determination hearsay statement bears particularized guarantees trustworthiness deciding whether particular statement bears proper indicia reliability confrontation clause precedent may mixed question fact law mix weighs heavily fact side said deferential review mixed questions law fact warranted appears district better positioned appellate decide issue question probing appellate scrutiny contribute clarity legal doctrine salve regina college russell citation omitted factors counsel favor deference trial judges undertake second prong roberts inquiry better able evaluate whether particular statement given particular setting sufficiently reliable add little trustworthiness admittedly inquiry require credibility determinations already held deference district courts depend need credibility determinations see anderson bessemer city accordingly believe setting anderson uplication trial judge efforts appeals likely contribute negligibly accuracy fact determination huge cost diversion judicial resources see id difficult apply standard case none courts conducted second part roberts inquiry therefore remand case virginia carry inquiry error found determine whether error harmless footnotes petitioner suggests merits brief mark truly unavailable commonwealth tried sentenced petitioner trial thereby extinguishing mark fifth amendment privilege assume however petitioner framing petition certiorari extent relevant mark unavailable witness confrontation clause purposes arguable exception unbroken line cases arose plurality opinion dutton evans held admission accomplice spontaneous comment indirectly inculpated defendant violate confrontation clause justice stewart lead opinion observed declarant statement penal interest judgment rest point way purported hold statements attribute presumptively admissible rather five justices majority emphasized unique aspects case emphasized coconspirator spontaneously made statement apparent reason lie see also harlan concurring result federal rule evidence provides exception hearsay rule admission statement time making far contrary declarant pecuniary proprietary interest far tended subject declarant civil criminal liability reasonable person declarant position made statement unless believing true several provide statutorily hearsay exceptions allow admission statement confession offered accused criminal case made codefendant person implicating accused ark rule evid accord ind rule evid rule evid rev stat supp rule evid cent code rule evid rule evid see also state myers hearsay confession one coparticipant crime admissible another coparticipant several adopted language federal rule see supra adhere interpretation rule williamson see smith state del hammond app state smith la state matusky md state ford state castle mont miles state tex crim app anthony ray still virtually exception see rule evid exception code ann exception declarant deceased statement made view toward litigation state skillicorn mo exception cert denied holdings bruton cruz new york gray maryland lee illinois premised explicitly implicitly principle accomplice confessions inculpate criminal defendant per se admissible thus necessarily fall outside firmly rooted hearsay exception matter much statements also incriminate accomplice genuinely equally inculpatory confessions accomplices chief justice concurrence suggests possible post per se admissible criminal defendants confessions cases admissible confession inculpated accomplice equally crimes issue lee rejected dissent position nontestifying accomplice confessions unambiguously accomplice penal interest per se admissible see blackmun dissenting ruled bruton cruz gray equally statements inadmissible criminal defendants today merely reaffirm holdings make explicit heretofore implicit statement like mark falls category summarized lee confession accomplice incriminates criminal defendant come within firmly rooted hearsay exception course mean chief justice justice thomas erroneously suggest see post post confrontation clause imposes blanket ban government use nontestifying accomplice statements incriminate defendant rather simply means government must satisfy second prong ohio roberts test order introduce statements see part infra although chief justice contends remand issue virginia see post inappropriate granted certiorari issue see pet cert parties fully briefed argued issue facts circumstances formula recited virginia courts already employed reaching reliability holdings virtually identical roberts particularized guarantees test turns well surrounding circumstances statements idaho wright furthermore become clear commonwealth fails point fact regarding issue virginia explicitly consider requires serious analysis footnotes mark identifies ben one murdered alexis defilippis following colloquy know know dude shoots say dude shoots one calling dude well ben shoots talking brother shoot pistol many times shoot heard couple shots go know many times hit app similar colloquy occurred second interview see see keltner statement clearly subjected declarant criminal liability activity participated planning participate defendants earnest dorsey entire statement inculpated defendant declarant equally neither attempted shift blame curry favor police prosecutor see york finding federal declaration penal interest exception firmly rooted case involving accomplice statements made two associates seeley exception firmly rooted case involving statements made declarant girlfriend stepfather katsougrakis violation admitting accomplice statements friend