146
Rehnquist, C. J., concurring in judgment
fendant, see 2 J. Strong, McCormick on Evidence § 319 (4th ed. 1992), but this is not one of them. Mark Lilly's statements inculpating his brother in the murder of DeFilippis are not in the least against Mark's 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 co-defendant, and our precedent does not compel the broad holding suggested by the plurality today. Cf. Williamson v. United States, 512 U. S. 594, 618-619 (1994) (Kennedy, J., concurring) (explaining and providing examples of self-serving and more neutral declarations against penal interest). Indeed, several Courts of Appeals have admitted custodial confessions that equally inculpate both the declarant and the defendant,2 and I see no reason for us to preclude consideration of these or similar statements as satisfying a firmly rooted hearsay exception under Roberts.
Not only were the incriminating portions of Mark Lilly's confession not a declaration against penal interest, but these statements were part of a custodial confession of the sort that this Court has viewed with "special suspicion" given a codefendant's " 'strong motivation to implicate the defendant and to exonerate himself.' " Lee, supra, at 541 (citations omitted). Each of the cases cited by the plurality to support its broad conclusion involved accusatory statements taken by law enforcement personnel with a view to prosecution. See Douglas v. Alabama, 380 U. S. 415, 416-417 (1965); Lee, supra, at 532-536; cf. Bruton v. United States, 391 U. S. 123, 124-125 (1968); Williamson, supra, at 596-597. These cases
2 See, e. g., United States v. Keltner, 147 F. 3d 662, 670 (CA8 1998) (statement "clearly subjected" declarant to criminal liability for "activity in which [he] participated and was planning to participate with . . . both defendants"); Earnest v. Dorsey, 87 F. 3d 1123, 1134 (CA10 1996) ("entire statement inculpated both [defendant] and [declarant] equally" and "neither [attempted] to shift blame to his co-conspirators nor to curry favor from the police or prosecutor").
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