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Syllabus
cient to satisfy the Confrontation Clause's residual admissibility test. Nothing in this Court's prior opinions, however, suggests that appellate courts should defer to lower court determinations regarding mixed questions of constitutional law such as whether a hearsay statement has sufficient guarantees of trustworthiness. See Ornelas v. United States, 517 U. S. 690, 697. Thus, courts should independently review whether the government's proffered guarantees of trustworthiness satisfy the Clause. Here, the Commonwealth's asserted trustworthiness guarantees are unconvincing. Mark was in custody for his involvement in, and knowledge of, serious crimes. He made his statements under governmental authorities' supervision, and was primarily responding to the officers' leading questions. He also had a natural motive to attempt to exculpate himself and was under the influence of alcohol during the interrogation. Each of these factors militates against finding that his statements were so inherently reliable that cross-examination would have been superfluous. Pp. 135-139.
Justice Scalia concluded that introducing Mark Lilly's tape-recorded statements to police at trial without making him available for cross-examination is a paradigmatic Confrontation Clause violation. Since the violation is clear, the case need be remanded only for a harmless-error determination. P. 143.
Justice Thomas, while adhering to his view that the Confrontation Clause extends to any witness who actually testifies at trial and is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions, White v. Illinois, 502 U. S. 346, 365, agrees with The Chief Justice that the Clause does not impose a blanket ban on the use of accomplice statements that incriminate a defendant and that, since the lower courts did not analyze the confession under the second prong of the Roberts inquiry, the plurality should not address that issue here. Pp. 143-144.
The Chief Justice, joined by Justice O'Connor and Justice Kennedy, concluded:
1. Mark Lilly's confession incriminating petitioner does not satisfy a firmly rooted hearsay exception because the statements in his 50-page confession which are against his penal interest are quite separate from the statements exculpating him and inculpating petitioner, which are not in the least against his penal interest. This case, therefore, does not raise the question whether the Confrontation Clause permits the admission of a genuinely self-inculpatory statement that also inculpates a codefendant. Not only were the confession's incriminating portions not a declaration against penal interest, but these statements were part of a custodial confession of the sort that this Court has viewed with
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