144
Rehnquist, C. J., concurring in judgment
Such an approach not only departs from an original understanding of the Confrontation Clause but also freezes our jurisprudence by making trial court decisions excluding such statements virtually unreviewable. I also agree with The Chief Justice that the lower courts did not "analyz[e] the confession under the second prong of the Roberts inquiry," post, at 148, and therefore see no reason for the plurality to address an issue upon which those courts did not pass.
Chief Justice Rehnquist, with whom Justice O'Connor and Justice Kennedy join, concurring in the judgment.
The plurality today concludes that all accomplice confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule under Ohio v. Roberts, 448 U. S. 56 (1980). See ante, at 134. It also concludes that appellate courts should independently review the government's proffered guarantees of trustworthiness under the second half of the Roberts inquiry. See ante, at 137. I disagree with both of these conclusions, but concur in the judgment reversing the decision of the Supreme Court of Virginia.
I
The plurality correctly states the issue in this case in the opening sentence of its opinion: Whether petitioner's Confrontation Clause rights were violated by admission of an accomplice's confession "that contained some statements against the accomplice's penal interest and others that inculpated the accused." Ante, at 120. The confession of the accomplice, Mark Lilly, covers 50 pages in the Joint Appendix, and the interviews themselves lasted about an hour. The statements of Mark Lilly which are against his penal inter-est—and would probably show him as an aider and abettor— are quite separate in time and place from other statements
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