LILLY v. VIRGINIA 527 U.S. 116

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No. 98-5881. Argued March 29, 1999-Decided June 10, 1999

Petitioner, his brother Mark, and Gary Barker were arrested at the end of a 2-day crime spree, during which they, inter alia, stole liquor and guns and abducted Alex DeFilippis, who was later shot and killed. Under police questioning, Mark admitted stealing alcoholic beverages, but claimed that petitioner and Barker stole the guns and that petitioner shot DeFilippis. When Virginia called Mark as a witness at petitioner's subsequent criminal trial, Mark invoked his Fifth Amendment privilege against self-incrimination. The trial court then admitted his statements to the police as declarations of an unavailable witness against penal interest, overruling petitioner's objections that the statements were not against Mark's penal interest because they shifted responsibility for the crimes to Barker and petitioner, and that their admission would violate the Sixth Amendment's Confrontation Clause. Petitioner was convicted of the DeFilippis murder and other crimes. In affirming, the Virginia Supreme Court found that the Confrontation Clause was satisfied because Mark's statements fell within a firmly rooted exception to the hearsay rule. The court also held that the statements were reliable because Mark knew that he was implicating himself as a participant in numerous crimes and because the statements were independently corroborated by other evidence at trial.

Held: The judgment is reversed, and the case is remanded. 255 Va. 558, 499 S. E. 2d 522, reversed and remanded.

JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I, II, and VI, concluding:

1. This Court has jurisdiction over petitioner's Confrontation Clause claim. He expressly argued the claim in his opening brief to the Virginia Supreme Court; and his arguments based on Williamson v. United States, 512 U. S. 594, and the Confrontation Clause opinion of Lee v. Illinois, 476 U. S. 530, in responding to the Commonwealth's position, sufficed to raise the issue in that court. P. 123.

2. The admission of Mark's untested confession violated petitioner's Confrontation Clause rights. Adhering to this Court's general custom of allowing state courts initially to assess the effect of erroneously admitted evidence in light of substantive state criminal law, the Virginia courts are to consider in the first instance whether this Sixth Amend-


ment violation was "harmless beyond a reasonable doubt." Chapman

JUSTICE STEVENS, joined by JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER, concluded in Parts III, IV, and V that Mark's hearsay statements do not meet the requirements for admission set forth in Ohio v. Roberts, 448 U. S. 56, 66. Pp. 123-139.

(a) The Confrontation Clause ensures the reliability of evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding, Maryland v. Craig, 497 U. S. 836, 845, as by crossexamination of a declarant, see California v. Green, 399 U. S. 149, 158. Hearsay statements are sufficiently dependable to allow their untested admission against an accused only when (1) the statements fall "within a firmly rooted hearsay exception" or (2) they contain "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to their reliability. Roberts, 448

(b) Statements are admissible under a "firmly rooted" hearsay exception when they fall within a hearsay category whose conditions have proved 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, 244. The simple categorization of a statement as "against penal interest" defines too large a class for meaningful Confrontation Clause review. Such statements are offered into evidence (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. The third category, which includes statements such as Mark's, encompasses statements that are presumptively unreliable, Lee, 476 U. S., at 541, even when the accomplice incriminates himself together with the defendant. Accomplice statements that shift or spread blame to a criminal defendant, therefore, fall outside the realm of those "hearsay exceptionEs] [that are] so trustworthy that adversarial testing can be expected to add little to [the statements'] reliability." White v. Illinois, 502 U. S. 346, 357. Such statements are not within a firmly rooted exception to the hearsay rule. Pp. 125-134.

(c) The Commonwealth contends that this Court should defer to the Virginia Supreme Court's additional determination that Mark's statements were reliable and that the indicia of reliability the court found, coupled with the actions of police during Mark's interrogation, demonstrate that the circumstances surrounding his statements bore "particularized guarantees of trustworthiness," Roberts, 448 U. S., at 66, suffi-

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