Cite as: 527 U. S. 116 (1999)
Breyer, J., concurring
16th- and 17th-century British statutes, cases, and treatises. See The Bible, Acts 25:16; W. Shakespeare, Richard II, act i, sc. 1; W. Shakespeare, Henry VIII, act ii, sc. 1; 30 C. Wright & K. Graham, Federal Practice and Procedure § 6342, p. 227 (1997) (quoting statutes enacted under King Edward VI in 1552 and Queen Elizabeth I in 1558); cf. Case of Thomas Tong, Kelyng J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (out-of-court confession may be used against the confessor, but not against his co-conspirators); M. Hale, History of the Common Law of England 163-164 (C. Gray ed. 1971); 3 W. Blackstone, Commentaries *373. As traditionally understood, the right was designed to prevent, for example, the kind of abuse that permitted the Crown to convict Sir Walter Raleigh of treason on the basis of the out-of-court confession of Lord Cobham, a co-conspirator. See 30 Wright & Graham, supra, § 6342, at 258-269.
Viewed in light of its traditional purposes, the current, hearsay-based Confrontation Clause test, amici argue, is both too narrow and too broad. The test is arguably too narrow insofar as it authorizes the admission of out-of-court statements prepared as testimony for a trial when such statements happen to fall within some well-recognized hearsay rule exception. For example, a deposition or videotaped confession sometimes could fall within the exception for vicarious admissions or, in The Chief Justice's view, the exception for statements against penal interest. See post, at 145-146. See generally White, supra, at 364-365 (Thomas, J., concurring in part and concurring in judgment); Friedman, supra, at 1025; Amar, supra, at 129; Berger, supra, at 596- 602; Brief for American Civil Liberties Union et al. as Amici Curiae 16-20. But why should a modern Lord Cobham's out-of-court confession become admissible simply because of a fortuity, such as the conspiracy having continued through the time of police questioning, thereby bringing the confession within the "well-established" exception for the vicarious admissions of a co-conspirator? Cf. Dutton v. Evans, 400
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