458
Scalia, J., dissenting
ance of counsel is actually "violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent").
Similarly unsupportive of the supposed practice is Bruton v. United States, 391 U. S. 123 (1968), where we concluded that the Confrontation Clause of the Sixth Amendment forbids the admission of a nontestifying codefendant's facially incriminating confession in a joint trial, even where the jury has been given a limiting instruction. That decision was based, not upon the theory that this was desirable protection "beyond" what the Confrontation Clause technically required; but rather upon the self-evident proposition that the inability to cross-examine an available witness whose damaging out-of-court testimony is introduced violates the Confrontation Clause, combined with the conclusion that in these circumstances a mere jury instruction can never be relied upon to prevent the testimony from being damaging, see Richardson v. Marsh, 481 U. S. 200, 207-208 (1987).
The United States also relies on our cases involving the question whether a State's procedure for appointed counsel's withdrawal of representation on appeal satisfies the State's constitutional obligation to " 'affor[d] adequate and effective appellate review to indigent defendants.' " Smith v. Robbins, 528 U. S. 259, 276 (2000) (quoting Griffin v. Illinois, 351 U. S. 12, 20 (1956)). In Anders v. California, 386 U. S. 738 (1967), we concluded that California's procedure governing withdrawal fell short of the constitutional minimum, and we outlined a procedure that would meet that standard. But as we made clear earlier this Term in Smith, which upheld a procedure different from the one Anders suggested, the benchmark of constitutionality is the constitutional requirement of adequate representation, and not some excrescence upon that requirement decreed, for safety's sake, by this Court.
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