Exceptions to the Right to Confront Witnesses
"In all criminal prosecutions . . . the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, 'to be confronted with the witnesses against him.'" Lilly, 527 U.S. at 123, 144 L. Ed. 2d at 126 (quoting U.S. Const. amend. VI).
However, this right is not unqualified.
Rather, when a declarant is unavailable to testify at trial, his or her hearsay statement may only be admitted if it "is sufficiently dependable to allow its untested admission . . . 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." Lilly, 527 U.S. at 124-125, 144 L. Ed. 2d at 127 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531 (1980)).
In Lilly, the Virginia Supreme Court upheld a state trial court decision admitting, in their entirety, several tape recordings and written transcripts of a series of statements by the defendant's brother during a police interrogation.
In those statements, the defendant's brother admitted being present throughout the crime spree for which both were charged, but insisted that he was drunk at the time and that the defendant was primarily responsible for the assorted crimes and violence. See Lilly, 527 U.S. at 120-122, 144 L. Ed. 2d at 124-25.
The United States Supreme Court reversed, with a four justice plurality concluding that because this accomplice confession was largely "non-self inculpatory," in that the declarant minimized his own criminal responsibility and shifted blame to the defendant, it was presumptively unreliable. See Lilly, 527 U.S. at 133, 144 L. Ed. 2d at 135-36.
Additionally, the United States Supreme Court, by plurality opinion in Lilly, established that "statements against interest" do not fall within a "firmly rooted" hearsay exception.
Therefore, to be admissible into evidence, co-conspirator's statements must contain "'particularized guarantees of trustworthiness' such that adversarial testing would be expected to add little, if anything, to the statements' reliability." Lilly, 527 U.S. at 124, 144 L. Ed. 2d at 127.
Such indicia of reliability must be present in the statement itself and not by reference to other evidence presented at trial. See Lilly, 527 U.S. at 138, 144 L. Ed. 2d at 135.