148
Rehnquist, C. J., concurring in judgment
ignoring both the exculpatory nature of Mark's confession and the circumstances in which it was given. Unlike the plurality, I would limit our holding here to the case at hand, and decide only that Mark Lilly's custodial confession laying sole responsibility on petitioner cannot satisfy a firmly rooted hearsay exception.
II
Nor do I see any reason to do more than reverse the decision of the Supreme Court of Virginia and remand the case for the Commonwealth to demonstrate that Mark's confession bears "particularized guarantees of trustworthiness" under Roberts, 448 U. S., at 66. The Supreme Court of Virginia held only that Mark Lilly's confession was admissible under a state-law exception to its hearsay rules and then held that this exception was firmly rooted for Confrontation Clause purposes. See 255 Va. 558, 573-574, 499 S. E. 2d 522, 533-534 (1998). Neither that court nor the trial court analyzed the confession under the second prong of the Roberts inquiry, and the discussion of reliability cited by the Court, see ante, at 122-123, 135, pertained only to whether the confession should be admitted under state hearsay rules, not under the Confrontation Clause. Following our normal course, I see no reason for this Court to reach an issue upon which the lower courts did not pass. See National College Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999) ("[W]e do not decide in the first instance issues not decided below"). Thus, both this issue and the harmless-error question should be sent back to the Virginia courts. See ante, at 139-140.
The lack of any reviewable decision in this case makes especially troubling the plurality's conclusion that appellate courts must independently review a lower court's determination that a hearsay statement bears particularized guarantees of trustworthiness. Deciding whether a particular statement bears the proper indicia of reliability under our Confrontation Clause precedent "may be a mixed question of fact and law," but the mix weighs heavily on the "fact" side.
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