Lilly v. Virginia, 527 U.S. 116, 16 (1999)

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Cite as: 527 U. S. 116 (1999)

Opinion of Stevens, J.

includes statements that, when offered in the absence of the declarant, function similarly to those used in the ancient ex parte affidavit system.

Most important, this third category of hearsay encompasses statements that are inherently unreliable. Typical of the ground swell of scholarly and judicial criticism that culminated in the Chambers decision, Wigmore's treatise still expressly distinguishes accomplices' confessions that incul-pate themselves and the accused as beyond a proper understanding of the against-penal-interest exception because an accomplice often has a considerable interest in "confessing and betraying his cocriminals." 5 Wigmore, Evidence § 1477, at 358, n. 1 (J. Chadbourn rev. 1974). Consistent with this scholarship and the assumption that underlies the analysis in our Bruton line of cases, we have over the years "spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants." Lee, 476 U. S., at 541. See also Cruz, 481 U. S., at 195 (White, J., dissenting) (such statements "have traditionally been viewed with special suspicion"); Bruton, 391 U. S., at 136 (such statements are "inevitably suspect").

In Crawford v. United States, 212 U. S. 183 (1909), this Court stated that even when an alleged accomplice testifies, his confession that "incriminate[s] himself together with defendant . . . ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses." Id., at 204. Over 30 years ago, we applied this principle to the Sixth Amendment. We held in Douglas v. Alabama, 380 U. S. 415 (1965), that the admission of a nontestifying accomplice's confession, which shifted responsibility and implicated the defendant as the triggerman, "plainly denied [the defendant] the right of cross-examination secured by the Confrontation Clause." Id., at 419.

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