Lilly v. Virginia, 527 U.S. 116, 20 (1999)

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

Opinion of Stevens, J.

V

Aside from its conclusion that Mark's statements were admissible under a firmly rooted hearsay exception, the Supreme Court of Virginia also affirmed the trial court's holding that the statements were "reliabl[e] . . . in the context of the facts and circumstances under which [they were] given" because (i) "Mark Lilly was cognizant of the import of his statements and that he was implicating himself as a participant in numerous crimes" and (ii) "[e]lements of [his] statements were independently corroborated" by other evidence offered at trial. Id., at 574, 499 S. E. 2d, at 534. See also App. 18 (trial court's decision). The Commonwealth contends that we should defer to this "fact-intensive" determination. It further argues that these two indicia of reliability, coupled with the facts that the police read Mark his Miranda rights and did not promise him leniency in exchange for his statements, demonstrate that the circumstances surrounding his statements bore "particularized guarantees of trustworthiness," Roberts, 448 U. S., at 66, sufficient to satisfy the Confrontation Clause's residual admissibility test.6

and make explicit what was heretofore implicit: A statement (like Mark's) that falls into the category summarized in Lee—"a confession by an accomplice which incriminates a criminal defendant," 476 U. S., at 544, n. 5— does not come within a firmly rooted hearsay exception.

This, of course, does not mean, as The Chief Justice, post, at 147-148 (opinion concurring in judgment), and Justice Thomas, post, at 143 (opinion concurring in part and concurring in judgment), erroneously suggest, that the Confrontation Clause imposes a "blanket ban on the government's use of [nontestifying] accomplice statements that incriminate a defendant." Rather, it simply means that the government must satisfy the second prong of the Ohio v. Roberts, 448 U. S. 56 (1980), test in order to introduce such statements. See Part V, infra.

6 Although The Chief Justice contends that we should remand this issue to the Supreme Court of Virginia, see post, at 148-149, it would be inappropriate to do so because we granted certiorari on this issue, see Pet. for Cert. i, and the parties have fully briefed and argued the issue. The

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