In Lilly v. Virginia, 527 U.S. 116, (1999), an accomplice of the defendant's gave a statement to the police admitting complicity in a robbery but claiming that the defendant masterminded the plan and shot the victim. In the defendant's trial for murder, the accomplice refused to testify, invoking his Fifth Amendment privilege. The trial judge admitted the statements inculpating the defendant based on a Virginia statute which made admissible hearsay statements against a declarant's penal interest where the declarant was unavailable as a witness, a statute which closely parallels this state's Evidence Code section 1230. The Virginia Supreme Court affirmed the conviction. ( Lilly, supra, 527 U.S. at pp. 120-122 144 L. Ed. 2d at pp. 124-125.) The United States Supreme Court reversed. The court first noted that it has long recognized that admission of some declarations against penal interest do not violate the Confrontation Clause if based on a "firmly rooted hearsay exception," i.e., statements containing widely accepted guarantees of trustworthiness and which cannot be recaptured by in-court testimony. ( Lilly, supra, 527 U.S. at pp. 125-126.) However, where the government seeks to prove its case against a defendant by the incriminatory extrajudicial custodial statement of an accomplice unavailable for cross-examination, this is akin to the odious "ancient ex parte affidavit system" which the framers had in mind when drafting the Confrontation Clause. ( Lilly, supra, at p. 131.) The high court held such hearsay, which shifts or spreads the blame to a defendant, is outside the realm of so-called "firmly rooted" hearsay exceptions as it had defined the term under the Confrontation Clause, i.e., exceptions "'so trustworthy that adversarial testing can be expected to add little to . . . reliability.'" ( Lilly, supra, at pp. 133-134.) The defendant was involved in several robberies and a carjacking that resulted in the murder of the driver. Id. at 120. The defendant's brother and the brother's roommate also participated in these crimes. After being taken into custody, each man was questioned separately. Lilly did not discuss the murder, but accused the other two men of forcing him to participate in the robberies. Lilly's brother and the brother's roommate gave different accounts of the crimes, but both told police that Lilly had committed the murder and "masterminded" the robberies. Id. at 121. At Lilly's trial, his brother invoked his Fifth Amendment right against self-incrimination and refused to testify. Id. Instead, the prosecution was allowed to introduce statements made by Lilly's brother to the police after his arrest. The court allowed the statements as declarations of an unavailable witness against penal interest and found that such a declaration against interest was sufficiently firmly rooted that the admission of the hearsay statements did not violate the Confrontation Clause. Id. Lilly was eventually convicted of nine charges, including capital murder. On appeal, the Virginia Supreme Court affirmed Lilly's convictions and sentences, concluding that the defendant's brother's statements were properly admitted because they were "declarations of an unavailable witness against penal interest; that the statements' reliability was established by other evidence; and, therefore, that they fell within an exception to the Virginia hearsay rule." Id. at 122. The court also held that a statement against penal interest did fall within a firmly rooted hearsay exception, and thus the statements did not violate the Confrontation Clause despite the questions as to the statement's credibility. Id. at 122-23. The Supreme Court granted certiorari and reversed the Virginia court's interpretation of the Confrontation Clause's requirements. The Court held that "a hearsay exception is firmly rooted if, in light of longstanding judicial and legislative experience, it rests on such a solid foundation that admission of virtually any evidence within it comports with the substance of the constitutional protection." Id. at 126. In its analysis whether the exception to the hearsay rule was sufficiently strong to satisfy Confrontation Clause concerns, the Court also pointed out that in its other cases it had "consistently . . . viewed an accomplice's statements that shift or spread the blame to a criminal defendant as falling outside the realm of those hearsay exceptions that are so trustworthy that adversarial testing can be expected to add little to the statements' reliability." Lilly, 527 U.S. at 133. Ultimately, a majority of the Court made clear that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Id. at 134; see also id. at 148 (Rehnquist, C.J., concurring). In Lilly, the Court found that statements made by an accomplice to establish the guilt of an alleged accomplice are "inherently unreliable." 527 U.S. at 131. This finding was "premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination." Id. at 132.In Lilly v. Virginia, three defendants shot and killed a man. The only evidence that Lilly was the triggerman came from the testimony of one of his codefendants, Barker, and the statement given to police prior to trial by his other codefendant, his brother Mark. The United States Supreme Court held Mark's statement was inadmissible under the Sixth Amendment and remanded the case to the Virginia Supreme Court for a harmless error analysis. Lilly, 527 U.S. at 139-40. On remand, the Virginia Supreme Court noted that, excluding Mark's inadmissible statement, Lilly's conviction rested on the credibility of codefendant Barker's testimony. It further considered the likely impact of Mark's statement, "coming as it did, from Lilly's brother, it undoubtedly carried weight with the jury." Lilly, 258 Va. at 553, 523 S.E.2d at 210. The United States Supreme Court held that the admission of an accomplice's confession is a violation of a defendant's constitutional right to confrontation, unless "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." Id. at 134. An out-of-court statement is admissible to prove the truth of the matters asserted therein if three requirements are met: (1) the declarant is unavailable to testify at trial; (2) the statement is against the declarant's interest at the time it was made; (3) the declarant is subjectively aware at the time the statement is made that it is against his or her interest to make it. See Lilly, 255 Va. at 573, 499 S.E.2d at 533. The Court held that the admission of a non-testifying codefendant's custodial confession violates a defendant's rights under the Confrontation Clause, unless the prosecution can otherwise establish the inherent reliability of the confession. Lilly, 527 U.S. at 137-38. It is irrelevant that other evidence introduced at trial corroborates the codefendant's statement. Lilly, 527 U.S. at 137-38 . Additionally, the fact that the statement was made voluntarily, following the reading of one's Miranda rights, is also irrelevant in determining the trustworthiness of the statement. Lilly, 527 U.S. at 138. In Lilly v. Virginia, the confession of a nontestifying accomplice, which implicated the defendant, was admitted against the defendant in a separate trial on the grounds that it satisfied Virginia's "statement against penal interest" exception to the hearsay rule. Lilly, 527 U.S. at 121-22. A plurality of four Justices relied upon "the decisive fact . . . that accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Id. at 134 The Court in Lilly found unreliable an accomplice's confession obtained in police custody because of the accomplice's natural motive to attempt to exculpate himself. In Lilly v. Virginia (1999) 527 U.S. 116, a defendant was convicted of murder, based in part on the confession of an accomplice who would not testify at trial, asserting his Fifth Amendment privilege. The accomplice had been interrogated by the police while in custody and had told them that he and the defendant had driven a man to a deserted location, and that defendant had shot the man. The accomplice also said that he was intoxicated during the entire spree and that the defendant was the one who had instigated the abduction. (527 U.S. at pp. 120-121.) Furthermore, the interrogations were conducted while the accomplice was intoxicated. The United States Supreme Court reversed the conviction, and held the accomplice's prior confession inadmissible because the defendant did not have the opportunity to cross-examine him. ( Id. at pp. 123-124, 133-134.) It stated: "When a court can be confident--as in the context of hearsay falling within a firmly rooted exception--that 'the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility,' the Sixth Amendment's residual 'trustworthiness' test allows the admission of the declarant's statements. Nothing in our prior opinions, however, suggests that appellate courts should defer to lower courts' determinations regarding whether a hearsay statement has particularized guarantees of trustworthiness. . . . For 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 pp. 136-137.) The Lilly court also concluded that accomplices' confessions that inculpate a criminal defendant do not constitute firmly rooted exceptions to the hearsay rule. ( Id. at p. 134.) The Supreme Court stated: The residual "trustworthiness" test credits the axiom that a rigid application of the Confrontation Clause's standard for admissibility might in an exceptional case exclude a statement of an unavailable witness that is incontestably probative, competent, and reliable, yet nonetheless outside of any firmly rooted hearsay exception. When a court can be confident--as in the context of hearsay falling within a firmly rooted exception--that "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility," the Sixth Amendment's residual "trustworthiness" test allows the admission of the declarant's statements. In Lilly, id., p 138, the Court indicated that the prosecution may not "bootstrap" the trustworthiness of a declarant's statement by referring to evidence produced at trial. "To be admissible under the Confrontation Clause,". . . "hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Id., quoting Idaho v. Wright, 497 U.S. 805, 822; 110 S. Ct. 3139; 111 L. Ed. 2d 638 (1990). The Court held that the lower courts had erred by concluding that the statements "were so reliable that there was no need to subject them to adversarial testing in a trial setting." ( Lilly, supra, 527 U.S. at p. 139.) The court reasoned as follows: "The declarant was in custody for his involvement in, and knowledge of, serious crimes and made his statements under the supervision of governmental authorities. He was primarily responding to the officers' leading questions, which were asked without any contemporaneous cross-examination by adverse parties. Thus, the declarant had a natural motive to attempt to exculpate himself as much as possible. The declarant also was obviously still under the influence of alcohol. Each of these factors militates against finding that his statements were so inherently reliable that cross-examination would have been superfluous." (Ibid.) The Lilly court explained that, generally, hearsay statements are not trustworthy when they "are given under conditions that implicate the core concerns of the old ex parte affidavit practice -- that is, when the government is involved in the statements' production, and when the statements describe past events and have not been subjected to adversarial testing." ( Lilly, supra, 527 U.S. at p. 137.) Other factors relating to the trustworthiness of hearsay statements include spontaneity, consistent repetition, the declarant's mental state, and the declarant's motive to fabricate. ( Idaho v. Wright (1990) 497 U.S. 805, 821-822.) We are required to conduct an independent review of the trustworthiness issue. ( Lilly, supra, 527 U.S. at p. 137.) The Lilly court noted that the existence of corroborating evidence is irrelevant to the trustworthiness determination. "'To be admissible under the Confrontation Clause, . . . hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." ( Lilly, supra, 527 U.S. at p. 138, quoting Idaho v. Wright, supra, 497 U.S. at p. 822.) The Court addressed the Confrontation Clause's restraint upon the use of hearsay evidence of an accomplice's confession that shifts some of the blame to the defendant. In Lilly, the Court held that the "non-self-inculpatory" portion of an accomplice's confession implicating a criminal defendant is not a firmly rooted hearsay exception: "It is clear that our cases consistently have viewed an accomplice's statements that shift or spread the blame to a criminal defendant as falling outside the realm of those "hearsay exceptions that are so trustworthy that adversarial testing can be expected to add little to the statements' reliability." . . . The decisive fact, which we make explicit today, is that accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Id. at , 119 S. Ct. at 1898-99. The United States Supreme Court provided guidance on the showing required to constitutionally permit admission of a hearsay statement from a nontestifying accomplice that inculpates both the accomplice and the defendant. Lilly explained, "'When one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.'" (Id. at p. 132.) The Lilly court stated that when an accomplice's inculpatory statements "shift or spread the blame" to a defendant, the statements fall outside the realm of firmly rooted hearsay exceptions that apply to hearsay that is so inherently trustworthy as to satisfy the confrontation clause. (Id. at pp. 126, 133-134.) Accordingly, to satisfy constitutional confrontation clause requirements, an accomplice's hearsay statements that inculpate both the accomplice and the defendant are only admissible upon a showing of "'particularized guarantees of trustworthiness'"; i.e., when the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. (Id. at pp. 125, 136.) In Lilly, the declarant admitted some participation in the charged crimes, but claimed the defendant was the mastermind and the one who instigated a carjacking and committed a shooting, whereas the declarant had nothing to do with the shooting. (Id. at pp. 120-121.) The Lilly court concluded this trustworthiness test was not met because the circumstances showed the declarant made the statements in a custodial setting in response to police questioning and he had a natural motive to exculpate himself as much as possible. (Id. at p. 139.)