Transcript:
Argument of Justice Stevens
Mr. Stevens: On the others.
Most important Mark claimed that petitioner had instigated the carjacking and had committed the homicide.
The Commonwealth elected to try petitioner first, when Mark invoked his right to remain silent and refused to take the stand.
The Commonwealth sought to introduce his custodial confession into evidence against petitioner.
Petitioner objected on the ground that since Mark was refusing to testify, admitting the confession would violate his Sixth Amendment right to be confronted with the witnesses against him.
The trial judge overruled the objection and admitted the entire confession.
Petitioner was convicted of several crimes including capital murder and sentenced to death.
The Supreme Court of Virginia affirmed the convictions and the sentence.
The court applied our long standing Confrontation Clause test to review the admissibility of Mark’s confession.
That test allows the admission of non-testifying witnesses’ statements against criminal defendants when one of two circumstances is present.
First, when the statement at issue falls within a firmly rooted exception to the hearsay rule; or second when it bears other particularized guarantees of trustworthiness.
When either one of these standards is met the Constitution permits the admission of the statement on the theory that it is sufficiently reliable, but denying the defendant his usual right to cross-examine the declaring does not impaired his ability to mount a defense.
The Supreme Court of Virginia concluded that Mark’s confession fell within a firmly rooted hearsay exception in that the statements were against his penal interest.
The Court also held that Mark’s statements were reliable under the facts and circumstances in which they were given, because it is unlikely that a person would fabricate a statement that inculpated himself in such serious crimes and because elements of Mark’s statements were corroborated by other evidence at trial.
Our concern that this decision represented a significant departure from our Confrontation Clause jurisprudence prompted us to grant certiorari.
In an opinion filed with the Clerk today, we reverse this judgment and remand for further proceedings.
We unanimously hold that the introduction of Mark’s confession which was partly exculpatory and partly incriminating cannot be supported as falling within a firmly rooted hearsay exception.
A majority of the Court for somewhat different reasons also holds more categorically that the admission of the confession violated petitioner’s Sixth Amendment right to confront the witnesses against him.
Accordingly, we remand the case to the Supreme Court of Virginia to determine whether or not the error was harmless.
The Chief Justice has filed an opinion concurring in the judgment in which Justice O’Connor and Justice Kennedy have joined; Justice Scalia and Justice Thomas each have filed opinions concurring in part and concurring in the judgment; Justice Breyer has filed a concurring opinion.
