OPINION OF THE COURT CRAWFORD V. WASHINGTON 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-9410 MICHAEL D. CRAWFORD, PETITIONER v. WASHINGTON

															on writ of certiorari to the supreme court of
washington

															[March 8, 2004]

															   Justice Scalia delivered the
opinion of the Court.

															   Petitioner Michael Crawford
stabbed a man who allegedly tried to rape his wife, Sylvia. At his
trial, the State played for the jury Sylvia’s tape-recorded
statement to the police describing the stabbing, even though he had
no opportunity for cross-examination. The Washington Supreme Court
upheld petitioner’s conviction after determining that Sylvia’s
statement was reliable. The question presented is whether this
procedure complied with the Sixth Amendment’s guarantee that, “[i]n
all criminal prosecutions, the accused shall enjoy the right … to
be confronted with the witnesses against him.”

															I

															   On August 5, 1999, Kenneth Lee
was stabbed at his apartment. Police arrested petitioner later that
night. After giving petitioner and his wife Miranda warnings, detectives interrogated each of them twice. Petitioner
eventually confessed that he and Sylvia had gone in search of Lee
because he was upset over an earlier incident in which Lee had
tried to rape her. The two had found Lee at his apartment, and a
fight ensued in which Lee was stabbed in the torso and petitioner’s
hand was cut.

															   Petitioner gave the following
account of the fight:

															“Q.  Okay. Did you ever see anything in
[Lee’s] hands?

															“A.  I think so, but I’m not positive.

															“Q.  Okay, when you think so, what do you mean by
that?

															“A.  I coulda swore I seen him goin’ for somethin’
before, right before everything happened. He was like reachin’,
fiddlin’ around down here and stuff … and I just … I don’t know, I
think, this is just a possibility, but I think, I think that he
pulled somethin’ out and I grabbed for it and that’s how I got cut
… but I’m not positive. I, I, my mind goes blank when things like
this happen. I mean, I just, I remember things wrong, I remember
things that just doesn’t, don’t make sense to me later.” App. 155
(punctuation added).

															Sylvia generally corroborated petitioner’s story
about the events leading up to the fight, but her account of the
fight itself was arguably different—particularly with respect to
whether Lee had drawn a weapon before petitioner assaulted him:

															“Q.  Did Kenny do anything to fight back
from this assault?

															“A.  (pausing) I know he reached into his pocket … or
somethin’ … I don’t know what.

															“Q.  After he was stabbed?

															“A.  He saw Michael coming up. He lifted his hand …
his chest open, he might [have] went to go strike his hand out or
something and then (inaudible).

															“Q.  Okay, you, you gotta speak up.

															“A.  Okay, he lifted his hand over his head maybe to
strike Michael’s hand down or something and then he put his hands
in his … put his right hand in his right pocket … took a step back
… Michael proceeded to stab him … then his hands were like … how do
you explain this … open arms … with his hands open and he fell down
… and we ran (describing subject holding hands open, palms toward
assailant).

															“Q.  Okay, when he’s standing there with his open
hands, you’re talking about Kenny, correct?

															“A.  Yeah, after, after the fact, yes.

															“Q.  Did you see anything in his hands at that
point?

															“A.  (pausing) um um (no).” Id. , at 137
(punctuation added).

															   The State charged petitioner with
assault and attempted murder. At trial, he claimed self-defense.
Sylvia did not testify because of the state marital privilege,
which generally bars a spouse from testifying without the other
spouse’s consent. See Wash. Rev. Code §5.60.060(1) (1994). In
Washington, this privilege does not extend to a spouse’s
out-of-court statements admissible under a hearsay exception, see State v. Burden , 120 Wash. 2d
371 , 377, 841 P. 2d 758, 761 (1992), so the State sought
to introduce Sylvia’s tape-recorded statements to the police as
evidence that the stabbing was not in self-defense. Noting that
Sylvia had admitted she led petitioner to Lee’s apartment and thus
had facilitated the assault, the State invoked the hearsay
exception for statements against penal interest, Wash. Rule Evid.
804(b)(3) (2003).

															   Petitioner countered that, state law
notwithstanding, admitting the evidence would violate his federal
constitutional right to be “confronted with the witnesses against
him.” Amdt. 6. According to our description of that right in Ohio v. Roberts, 448 U. S. 56 (1980), it
does not bar admission of an unavailable witness’s statement
against a criminal defendant if the statement bears “adequate
‘indicia of reliability.’ ” Id. , at 66. To meet that
test, evidence must either fall within a “firmly rooted hearsay
exception” or bear “particularized guarantees of trustworthiness.” Ibid. The trial court here admitted the statement on the
latter ground, offering several reasons why it was trustworthy:
Sylvia was not shifting blame but rather corroborating her
husband’s story that he acted in self-defense or “justified
reprisal”; she had direct knowledge as an eyewitness; she was
describing recent events; and she was being questioned by a
“neutral” law enforcement officer. App. 76–77. The prosecution
played the tape for the jury and relied on it in closing, arguing
that it was “damning evidence” that “completely refutes
[petitioner’s] claim of self-defense.” Tr. 468 (Oct. 21, 1999). The
jury convicted petitioner of assault.

															   The Washington Court of Appeals reversed. It
applied a nine-factor test to determine whether Sylvia’s statement
bore particularized guarantees of trustworthiness, and noted
several reasons why it did not: The statement contradicted one she
had previously given; it was made in response to specific
questions; and at one point she admitted she had shut her eyes
during the stabbing. The court considered and rejected the State’s
argument that Sylvia’s statement was reliable because it coincided
with petitioner’s to such a degree that the two “interlocked.” The
court determined that, although the two statements agreed about the
events leading up to the stabbing, they differed on the issue
crucial to petitioner’s self-defense claim: “[Petitioner’s] version
asserts that Lee may have had something in his hand when he stabbed
him; but Sylvia’s version has Lee grabbing for something only after
he has been stabbed.” App. 32.

															   The Washington Supreme Court reinstated the
conviction, unanimously concluding that, although Sylvia’s
statement did not fall under a firmly rooted hearsay exception, it
bore guarantees of trustworthiness: “ ‘[W]hen a codefendant’s
confession is virtually identical [to, i.e. , interlocks
with,] that of a defendant, it may be deemed reliable.’ ” 147
Wash. 2d 424, 437, 54 P. 3d 656, 663 (2002) (quoting State v. Rice , 120 Wash. 2d
549 , 570, 844 P. 2d 416, 427 (1993)). The court
explained:

															   “Although the Court of Appeals
concluded that the statements were contradictory, upon closer
inspection they appear to overlap… .

															   “[B]oth of the Crawfords’ statements indicate
that Lee was possibly grabbing for a weapon, but they are equally
unsure when this event may have taken place. They are also equally
unsure how Michael received the cut on his hand, leading the court
to question when, if ever, Lee possessed a weapon. In this respect
they overlap.

															   “[N]either Michael nor Sylvia clearly stated
that Lee had a weapon in hand from which Michael was simply
defending himself. And it is this omission by both that interlocks
the statements and makes Sylvia’s statement reliable.” 147 Wash.
2d, at 438– 439, 54 P. 3d, at 664 (internal quotation marks
omitted).[ Footnote 1 ]

															   We granted certiorari to
determine whether the State’s use of Sylvia’s statement violated
the Confrontation Clause. 539 U. S. 914 (2003).

															II

															   The Sixth Amendment’s
Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right … to be confronted
with the witnesses against him.” We have held that this bedrock
procedural guarantee applies to both federal and state
prosecutions. Pointer v. Texas, 380 U. S. 400 , 406
(1965). As noted above, Roberts says that an unavailable
witness’s out-of-court statement may be admitted so long as it has
adequate indicia of reliability— i.e. , falls within a
“firmly rooted hearsay exception” or bears “particularized
guarantees of trustworthiness.” 448 U. S., at 66. Petitioner argues
that this test strays from the original meaning of the
Confrontation Clause and urges us to reconsider it.

															A

															   The Constitution’s text does not
alone resolve this case. One could plausibly read “witnesses
against” a defendant to mean those who actually testify at trial,
cf. Woodsides v. State , 3 Miss. 655, 664–665
(1837), those whose statements are offered at trial, see 3 J.
Wigmore, Evidence §1397, p. 104 (2d ed. 1923) (hereinafter
Wigmore), or something in-between, see infra ,
at 15–16. We must therefore turn to the historical background
of the Clause to understand its meaning.

															   The right to confront one’s
accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U. S. 1012 , 1015
(1988); Herrmann & Speer, Facing the Accuser: Ancient and
Medieval Precursors of the Confrontation Clause, 34 Va. J. Int’l L.
481 (1994). The founding generation’s immediate source of the
concept, however, was the common law. English common law has long
differed from continental civil law in regard to the manner in
which witnesses give testimony in criminal trials. The common-law
tradition is one of live testimony in court subject to adversarial
testing, while the civil law condones examination in private by
judicial officers. See 3 W. Blackstone, Commentaries on the Laws of
England 373–374 (1768).

															   Nonetheless, England at times adopted elements
of the civil-law practice. Justices of the peace or other officials
examined suspects and witnesses before trial. These examinations
were sometimes read in court in lieu of live testimony, a practice
that “occasioned frequent demands by the prisoner to have his
‘accusers,’ i.e. the witnesses against him, brought before
him face to face.” 1 J. Stephen, History of the Criminal Law of
England 326 (1883). In some cases, these demands were refused. See
9 W. Holdsworth, History of English Law 216–217, 228 (3d ed. 1944); e.g. , Raleigh’s Case , 2 How. St. Tr. 1, 15–16, 24
(1603); Throckmorton’s Case , 1 How. St. Tr. 869, 875–876
(1554); cf. Lilburn’s Case , 3 How. St. Tr. 1315,
1318–1322, 1329 (Star Chamber 1637).

															   Pretrial examinations became routine under two
statutes passed during the reign of Queen Mary in the 16th century,
1 & 2 Phil. & M., c. 13 (1554), and 2 & 3 id. ,
c. 10 (1555). These Marian bail and committal statutes required
justices of the peace to examine suspects and witnesses in felony
cases and to certify the results to the court. It is doubtful that
the original purpose of the examinations was to produce evidence
admissible at trial. See J. Langbein, Prosecuting Crime in the
Renaissance 21–34 (1974). Whatever the original purpose, however,
they came to be used as evidence in some cases, see 2 M. Hale,
Pleas of the Crown 284 (1736), resulting in an adoption of
continental procedure. See 4 Holdsworth, supra , at
528–530.

															   The most notorious instances of civil-law
examination occurred in the great political trials of the 16th and
17th centuries. One such was the 1603 trial of Sir Walter Raleigh
for treason. Lord Cobham, Raleigh’s alleged accomplice, had
implicated him in an examination before the Privy Council and in a
letter. At Raleigh’s trial, these were read to the jury. Raleigh
argued that Cobham had lied to save himself: “Cobham is absolutely
in the King’s mercy; to excuse me cannot avail him; by accusing me
he may hope for favour.” 1 D. Jardine, Criminal Trials 435 (1832).
Suspecting that Cobham would recant, Raleigh demanded that the
judges call him to appear, arguing that “[t]he Proof of the Common
Law is by witness and jury: let Cobham be here, let him speak it.
Call my accuser before my face … .” 2 How. St. Tr., at 15–16.
The judges refused, id. , at 24, and, despite Raleigh’s
protestations that he was being tried “by the Spanish Inquisition,” id., at 15, the jury convicted, and Raleigh was sentenced
to death.

															   One of Raleigh’s trial judges later lamented
that “ ‘the justice of England has never been so degraded and
injured as by the condemnation of Sir Walter Raleigh.’ ” 1
Jardine, supra , at 520. Through a series of statutory and
judicial reforms, English law developed a right of confrontation
that limited these abuses. For example, treason statutes required
witnesses to confront the accused “face to face” at his
arraignment. E.g. , 13 Car. 2, c. 1, §5 (1661); see 1 Hale, supra , at 306. Courts, meanwhile, developed relatively
strict rules of unavailability, admitting examinations only if the
witness was demonstrably unable to testify in person. See Lord
Morley’s Case , 6 How. St. Tr. 769, 770–771 (H. L. 1666); 2
Hale, supra , at 284; 1 Stephen, supra , at 358.
Several authorities also stated that a suspect’s confession could
be admitted only against himself, and not against others he
implicated. See 2 W. Hawkins, Pleas of the Crown c. 46, §3, pp.
603–604 (T. Leach 6th ed. 1787); 1 Hale, supra , at 585, n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791); cf. Tong’s Case , Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062
(1662) (treason). But see King v. Westbeer , 1
Leach 12, 168 Eng. Rep. 108, 109 (1739).

															   One recurring question was whether the
admissibility of an unavailable witness’s pretrial examination
depended on whether the defendant had had an opportunity to
cross-examine him. In 1696, the Court of King’s Bench answered this
question in the affirmative, in the widely reported misdemeanor
libel case of King v. Paine , 5 Mod. 163, 87 Eng.
Rep. 584. The court ruled that, even though a witness was dead, his
examination was not admissible where “the defendant not being
present when [it was] taken before the mayor … had lost the benefit
of a cross-examination.” Id. , at 165, 87 Eng. Rep., at
585. The question was also debated at length during the infamous
proceedings against Sir John Fenwick on a bill of attainder.
Fenwick’s counsel objected to admitting the examination of a
witness who had been spirited away, on the ground that Fenwick had
had no opportunity to cross-examine. See Fenwick’s Case ,
13 How. St. Tr. 537, 591–592 (H. C. 1696) (Powys) (“[T]hat which
they would offer is something that Mr. Goodman hath sworn when he
was examined … ; sir J. F. not being present or privy, and no
opportunity given to cross-examine the person; and I conceive that
cannot be offered as evidence …”); id. , at 592 (Shower)
(“[N]o deposition of a person can be read, though beyond sea,
unless in cases where the party it is to be read against was privy
to the examination, and might have cross-examined him … .
[O]ur constitution is, that the person shall see his accuser”). The
examination was nonetheless admitted on a closely divided vote
after several of those present opined that the common-law rules of
procedure did not apply to parliamentary attainder proceedings—one
speaker even admitting that the evidence would normally be
inadmissible. See id. , at 603–604 (Williamson); id. , at 604–605 (Chancellor of the Exchequer); id. , at 607; 3 Wigmore §1364, at 22–23, n. 54. Fenwick was
condemned, but the proceedings “must have burned into the general
consciousness the vital importance of the rule securing the right
of cross-examination.” Id. , §1364, at 22; cf. Carmell v. Texas, 529 U. S. 513 , 526–530
(2000). Paine had settled the rule requiring
a prior opportunity for cross-examination as a matter of common
law, but some doubts remained over whether the Marian statutes
prescribed an exception to it in felony cases. The statutes did not
identify the circumstances under which examinations were
admissible, see 1 & 2 Phil. & M., c. 13 (1554); 2 & 3 id. , c. 10 (1555), and some inferred that no prior
opportunity for cross-examination was required. See Westbeer , supra , at 12, 168 Eng. Rep., at 109;
compare Fenwick’s Case , 13 How. St. Tr., at 596 (Sloane),
with id. , at 602 (Musgrave). Many who expressed this view
acknowledged that it meant the statutes were in derogation of the
common law. See King v. Eriswell , 3 T. R. 707,
710, 100 Eng. Rep. 815, 817 (K. B. 1790) (Grose, J.) (dicta); id. , at 722–723, 100 Eng. Rep., at 823–824 (Kenyon, C. J.)
(same); compare 1 Gilbert, Evidence, at 215 (admissible only “by
Force ‘of the Statute’ ”), with id. , at 65.
Nevertheless, by 1791 (the year the Sixth Amendment was ratified),
courts were applying the cross-examination rule even to
examinations by justices of the peace in felony cases. See King v. Dingler , 2 Leach 561, 562–563, 168 Eng.
Rep. 383, 383–384 (1791); King v. Woodcock , 1
Leach 500, 502–504, 168 Eng. Rep. 352, 353 (1789); cf. King v. Radbourne , 1 Leach 457, 459–461, 168 Eng.
Rep. 330, 331–332 (1787); 3 Wigmore §1364, at 23. Early
19th-century treatises confirm that requirement. See 1 T. Starkie,
Evidence 95 (1826); 2 id. , at 484–492; T. Peake, Evidence
63–64 (3d ed. 1808). When Parliament amended the statutes in 1848
to make the requirement explicit, see 11 & 12 Vict., c. 42,
§17, the change merely “introduced in terms” what was already
afforded the defendant “by the equitable construction of the law.” Queen v. Beeston , 29 Eng. L. & Eq. R. 527,
529 (Ct. Crim. App. 1854) (Jervis, C. J.).[ Footnote 2 ]

															B

															   Controversial examination
practices were also used in the Colonies. Early in the 18th
century, for example, the Virginia Council protested against the
Governor for having “privately issued several commissions to
examine witnesses against particular men ex parte ,”
complaining that “the person accused is not admitted to be
confronted with, or defend himself against his defamers.” A
Memorial Concerning the Maladministrations of His Excellency
Francis Nicholson, reprinted in 9 English Historical Documents 253,
257 (D. Douglas ed. 1955). A decade before the Revolution, England
gave jurisdiction over Stamp Act offenses to the admiralty courts,
which followed civil-law rather than common-law procedures and thus
routinely took testimony by deposition or private judicial
examination. See 5 Geo. 3, c. 12, §57 (1765); Pollitt, The Right of
Confrontation: Its History and Modern Dress, 8 J. Pub. L. 381,
396–397 (1959). Colonial representatives protested that the Act
subverted their rights “by extending the jurisdiction of the courts
of admiralty beyond its ancient limits.” Resolutions of the Stamp
Act Congress §8th (Oct. 19, 1765), reprinted in Sources of Our
Liberties 270, 271 (R. Perry & J. Cooper eds. 1959). John
Adams, defending a merchant in a high-profile admiralty case,
argued: “Examinations of witnesses upon Interrogatories, are only
by the Civil Law. Interrogatories are unknown at common Law, and
Englishmen and common Lawyers have an aversion to them if not an
Abhorrence of them.” Draft of Argument in Sewall v. Hancock (1768–1769), in 2 Legal Papers of John Adams 194,
207 (K. Wroth & H. Zobel eds. 1965).

															   Many declarations of rights
adopted around the time of the Revolution guaranteed a right of
confrontation. See Virginia Declaration of Rights §8 (1776);
Pennsylvania Declaration of Rights §IX (1776); Delaware Declaration
of Rights §14 (1776); Maryland Declaration of Rights §XIX (1776);
North Carolina Declaration of Rights §VII (1776); Vermont
Declaration of Rights Ch. I, §X (1777); Massachusetts Declaration
of Rights §XII (1780); New Hampshire Bill of Rights §XV (1783), all
reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary
History 235, 265, 278, 282, 287, 323, 342, 377 (1971). The proposed
Federal Constitution, however, did not. At the Massachusetts
ratifying convention, Abraham Holmes objected to this omission
precisely on the ground that it would lead to civil-law practices:
“The mode of trial is altogether indetermined; … whether [the
defendant] is to be allowed to confront the witnesses, and have the
advantage of cross-examination, we are not yet told… . [W]e
shall find Congress possessed of powers enabling them to institute
judicatories little less inauspicious than a certain tribunal in
Spain, … the Inquisition. ” 2 Debates on the Federal
Constitution 110–111 (J. Elliot 2d ed. 1863). Similarly, a
prominent Antifederalist writing under the pseudonym Federal Farmer
criticized the use of “written evidence” while objecting to the
omission of a vicinage right: “Nothing can be more essential than
the cross examining [of] witnesses, and generally before the triers
of the facts in question… . [W]ritten evidence … [is] almost
useless; it must be frequently taken ex parte, and but very seldom
leads to the proper discovery of truth.” R. Lee, Letter IV by the
Federal Farmer (Oct. 15, 1787), reprinted in 1 Schwartz, supra , at 469, 473. The First Congress responded by
including the Confrontation Clause in the proposal that became the
Sixth Amendment.

															   Early state decisions shed light upon the
original understanding of the common-law right. State v. Webb , 2 N. C. 103 (1794) (per curiam), decided a mere three years after the adoption of the Sixth
Amendment, held that depositions could be read against an accused
only if they were taken in his presence. Rejecting a broader
reading of the English authorities, the court held: “[I]t is a rule
of the common law, founded on natural justice, that no man shall be
prejudiced by evidence which he had not the liberty to cross
examine.” Id., at 104.

															   Similarly, in State v. Campbell , 1 S. C. 124 (1844), South Carolina’s
highest law court excluded a deposition taken by a coroner in the
absence of the accused. It held: “[I]f we are to decide the
question by the established rules of the common law, there could
not be a dissenting voice. For, notwithstanding the death of the
witness, and whatever the respectability of the court taking the
depositions, the solemnity of the occasion and the weight of the
testimony, such depositions are ex parte , and, therefore,
utterly incompetent.” Id. , at 125. The court said that one
of the “indispensable conditions” implicitly guaranteed by the
State Constitution was that “prosecutions be carried on to the
conviction of the accused, by witnesses confronted by him, and
subjected to his personal examination.” Ibid. Many other decisions are to the same effect.
Some early cases went so far as to hold that prior testimony was
inadmissible in criminal cases even if the accused had a
previous opportunity to cross-examine. See Finn v. Commonwealth , 26 Va. 701, 708 (1827); State v. Atkins , 1 Tenn. 229 (1807) (per curiam) . Most
courts rejected that view, but only after reaffirming that
admissibility depended on a prior opportunity for
cross-examination. See United States v. Macomb ,
26 F. Cas. 1132, 1133 (No. 15,702) (CC Ill. 1851); State v. Houser , 26 Mo. 431, 435–436 (1858); Kendrick v. State , 29 Tenn. 479, 485–488 (1850); Bostick v. State , 22 Tenn. 344, 345–346 (1842); Commonwealth v. Richards , 35 Mass. 434, 437
(1837); State v. Hill , 2 Hill 607, 608–610
(S. C. 1835); Johnston v. State , 10 Tenn.
58, 59 (1821). Nineteenth-century treatises confirm the rule. See 1
J. Bishop, Criminal Procedure §1093, p. 689 (2d ed. 1872); T.
Cooley, Constitutional Limitations *318.

															III

															   This history supports two
inferences about the meaning of the Sixth Amendment.

															A

															   First, the principal evil at
which the Confrontation Clause was directed was the civil-law mode
of criminal procedure, and particularly its use of ex
parte examinations as evidence against the accused. It was
these practices that the Crown deployed in notorious treason cases
like Raleigh’s; that the Marian statutes invited; that English
law’s assertion of a right to confrontation was meant to prohibit;
and that the founding-era rhetoric decried. The Sixth Amendment
must be interpreted with this focus in mind.

															   Accordingly, we once again reject
the view that the Confrontation Clause applies of its own force
only to in-court testimony, and that its application to
out-of-court statements introduced at trial depends upon “the law
of Evidence for the time being.” 3 Wigmore §1397, at 101; accord, Dutton v. Evans, 400 U. S. 74 , 94 (1970)
(Harlan, J., concurring in result). Leaving the regulation of
out-of-court statements to the law of evidence would render the
Confrontation Clause powerless to prevent even the most flagrant
inquisitorial practices. Raleigh was, after all, perfectly free to
confront those who read Cobham’s confession in court.

															   This focus also suggests that not all hearsay
implicates the Sixth Amendment’s core concerns. An off-hand,
overheard remark might be unreliable evidence and thus a good
candidate for exclusion under hearsay rules, but it bears little
resemblance to the civil-law abuses the Confrontation Clause
targeted. On the other hand, ex parte examinations might
sometimes be admissible under modern hearsay rules, but the Framers
certainly would not have condoned them.

															   The text of the Confrontation Clause reflects
this focus. It applies to “witnesses” against the accused—in other
words, those who “bear testimony.” 1 N. Webster, An American
Dictionary of the English Language (1828). “Testimony,” in turn, is
typically “[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” Ibid. An
accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an
acquaintance does not. The constitutional text, like the history
underlying the common-law right of confrontation, thus reflects an
especially acute concern with a specific type of out-of-court
statement.

															   Various formulations of this core class of
“testimonial” statements exist: “ ex parte in-court
testimony or its functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially,” Brief for Petitioner 23; “extrajudicial
statements … contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U. S. 346 , 365 (1992) (Thomas, J.,
joined by Scalia, J., concurring in part and concurring in
judgment); “statements that were made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial,” Brief for
National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common
nucleus and then define the Clause’s coverage at various levels of
abstraction around it. Regardless of the precise articulation, some
statements qualify under any definition—for example, ex
parte testimony at a preliminary hearing.

															   Statements taken by police officers in the
course of interrogations are also testimonial under even a narrow
standard. Police interrogations bear a striking resemblance to
examinations by justices of the peace in England. The statements
are not sworn testimony, but the absence of oath was not
dispositive. Cobham’s examination was unsworn, see 1 Jardine,
Criminal Trials, at 430, yet Raleigh’s trial has long been thought
a paradigmatic confrontation violation, see, e.g. , Campbell , 1 S. C., at 130. Under the Marian statutes,
witnesses were typically put on oath, but suspects were not. See 2
Hale, Pleas of the Crown, at 52. Yet Hawkins and others went out of
their way to caution that such unsworn confessions were not
admissible against anyone but the confessor. See supra , at
8.[ Footnote 3 ]

															   That interrogators are police officers rather
than magistrates does not change the picture either. Justices of
the peace conducting examinations under the Marian statutes were
not magistrates as we understand that office today, but had an
essentially investigative and prosecutorial function. See 1
Stephen, Criminal Law of England, at 221; Langbein, Prosecuting
Crime in the Renaissance, at 34–45. England did not have a
professional police force until the 19th century, see 1 Stephen, supra , at 194–200, so it is not surprising that other
government officers performed the investigative functions now
associated primarily with the police. The involvement of government
officers in the production of testimonial evidence presents the
same risk, whether the officers are police or justices of the
peace.

															   In sum, even if the Sixth Amendment is not
solely concerned with testimonial hearsay, that is its primary
object, and interrogations by law enforcement officers fall
squarely within that class.[ Footnote 4 ]

															B

															   The historical record also
supports a second proposition: that the Framers would not have
allowed admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination. The
text of the Sixth Amendment does not suggest any open-ended
exceptions from the confrontation requirement to be developed by
the courts. Rather, the “right … to be confronted with the
witnesses against him,” Amdt. 6, is most naturally read as a
reference to the right of confrontation at common law, admitting
only those exceptions established at the time of the founding. See Mattox v. United States, 156
U. S. 237 , 243 (1895); cf. Houser , 26 Mo., at 433–435.
As the English authorities above reveal, the common law in 1791
conditioned admissibility of an absent witness’s examination on
unavailability and a prior opportunity to cross-examine. The Sixth
Amendment therefore incorporates those limitations. The numerous
early state decisions applying the same test confirm that these
principles were received as part of the common law in this
country.[ Footnote 5 ]

															   We do not read the historical
sources to say that a prior opportunity to cross-examine was merely
a sufficient, rather than a necessary, condition for admissibility
of testimonial statements. They suggest that this requirement was
dispositive, and not merely one of several ways to establish
reliability. This is not to deny, as The Chief Justice notes, that
“[t]here were always exceptions to the general rule of exclusion”
of hearsay evidence. Post , at 5. Several had become well
established by 1791. See 3 Wigmore §1397, at 101; Brief for United
States as Amicus Curiae 13, n. 5. But there is scant
evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case.[ Footnote 6 ] Most of the
hearsay exceptions covered statements that by their nature were not
testimonial—for example, business records or statements in
furtherance of a conspiracy. We do not infer from these that the
Framers thought exceptions would apply even to prior testimony. Cf. Lilly v. Virginia, 527 U. S. 116 , 134
(1999) (plurality opinion) (“[A]ccomplices’ confessions that
inculpate a criminal defendant are not within a firmly rooted
exception to the hearsay rule”).[ Footnote 7 ]

															IV

															   Our case law has been largely
consistent with these two principles. Our leading early decision,
for example, involved a deceased witness’s prior trial testimony. Mattox v. United States, 156
U. S. 237 (1895). In allowing the statement to be admitted, we
relied on the fact that the defendant had had, at the first trial,
an adequate opportunity to confront the witness: “The substance of
the constitutional protection is preserved to the prisoner in the
advantage he has once had of seeing the witness face to face, and
of subjecting him to the ordeal of a cross-examination.  This,
the law says, he shall under no circumstances be deprived of
… .” Id. , at 244.

															   Our later cases conform to Mattox ’s holding that prior trial or preliminary hearing
testimony is admissible only if the defendant had an adequate
opportunity to cross-examine. See Mancusi v. Stubbs, 408 U. S. 204 , 213–216
(1972); California v. Green, 399 U. S. 149 , 165–168 (1970); Pointer v. Texas, 380 U. S., at 406–408; cf. Kirby v. United States, 174 U. S. 47 , 55–61 (1899). Even where
the defendant had such an opportunity, we excluded the testimony
where the government had not established unavailability of the
witness. See Barber v. Page, 390 U. S. 719 , 722–725
(1968); cf. Motes v. United States, 178 U. S. 458 , 470–471
(1900). We similarly excluded accomplice confessions where the
defendant had no opportunity to cross-examine. See Roberts v. Russell, 392 U. S. 293 , 294–295
(1968) (per curiam); Bruton v. United
States, 391 U. S. 123 , 126–128
(1968); Douglas v. Alabama, 380 U. S. 415 , 418–420
(1965). In contrast, we considered reliability factors beyond prior
opportunity for cross-examination when the hearsay statement at
issue was not testimonial. See Dutton v. Evans, 400 U. S., at 87–89 (plurality opinion).

															   Even our recent cases, in their outcomes, hew
closely to the traditional line. Ohio v. Roberts, 448 U. S., at 67–70, admitted testimony from a preliminary hearing
at which the defendant had examined the witness. Lilly v. Virginia, supra , excluded testimonial statements that the
defendant had had no opportunity to test by cross-examination. And Bourjaily v. United States, 483 U. S. 171 , 181–184
(1987), admitted statements made unwittingly to an FBI informant
after applying a more general test that did not make prior
cross-examination an indispensable requirement.[ Footnote 8 ] Lee v. Illinois, 476 U. S. 530 (1986), on
which the State relies, is not to the contrary. There, we rejected the State’s attempt to admit an accomplice
confession. The State had argued that the confession was admissible
because it “interlocked” with the defendant’s. We dealt with the
argument by rejecting its premise, holding that “when the
discrepancies between the statements are not insignificant, the
codefendant’s confession may not be admitted.” Id. , at
545. Respondent argues that “[t]he logical inference of this
statement is that when the discrepancies between the statements are insignificant, then the codefendant’s statement may be admitted.” Brief for Respondent 6. But this is
merely a possible inference, not an inevitable one, and we do not
draw it here. If Lee had meant authoritatively to announce
an exception—previously unknown to this Court’s jurisprudence—for
interlocking confessions, it would not have done so in such an
oblique manner. Our only precedent on interlocking confessions had
addressed the entirely different question whether a limiting
instruction cured prejudice to codefendants from admitting a
defendant’s own confession against him in a joint trial.
See Parker v. Randolph, 442 U. S. 62 , 69–76
(1979) (plurality opinion), abrogated by Cruz v. New
York, 481
U. S. 186 (1987).

															   Our cases have thus remained faithful to the
Framers’ understanding: Testimonial statements of witnesses absent
from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior
opportunity to cross-examine.[ Footnote 9 ]

															V

															   Although the results of our
decisions have generally been faithful to the original meaning of
the Confrontation Clause, the same cannot be said of our
rationales. Roberts conditions the admissibility of all
hearsay evidence on whether it falls under a “firmly rooted hearsay
exception” or bears “particularized guarantees of trustworthiness.”
448 U. S., at 66. This test departs from the historical principles
identified above in two respects. First, it is too broad: It
applies the same mode of analysis whether or not the hearsay
consists of ex parte testimony. This often results in
close constitutional scrutiny in cases that are far removed from
the core concerns of the Clause. At the same time, however, the
test is too narrow: It admits statements that do consist
of ex parte testimony upon a mere finding of reliability.
This malleable standard often fails to protect against paradigmatic
confrontation violations.

															   Members of this Court and
academics have suggested that we revise our doctrine to reflect
more accurately the original understanding of the Clause. See, e.g. , Lilly , 527 U. S., at 140–143 (Breyer, J.,
concurring); White , 502 U. S., at 366 (Thomas, J., joined
by Scalia, J., concurring in part and concurring in judgment); A.
Amar, The Constitution and Criminal Procedure 125–131 (1997);
Friedman, Confrontation: The Search for Basic Principles, 86 Geo.
L. J. 1011 (1998). They offer two proposals: First, that we
apply the Confrontation Clause only to testimonial statements,
leaving the remainder to regulation by hearsay law—thus eliminating
the overbreadth referred to above. Second, that we impose an
absolute bar to statements that are testimonial, absent a prior
opportunity to cross-examine—thus eliminating the excessive
narrowness referred to above.

															   In White , we considered the first
proposal and rejected it. 502 U. S., at 352–353. Although our
analysis in this case casts doubt on that holding, we need not
definitively resolve whether it survives our decision today,
because Sylvia Crawford’s statement is testimonial under any
definition. This case does, however, squarely implicate the second
proposal.

															A

															   Where testimonial statements are
involved, we do not think the Framers meant to leave the Sixth
Amendment’s protection to the vagaries of the rules of evidence,
much less to amorphous notions of “reliability.” Certainly none of
the authorities discussed above acknowledges any general
reliability exception to the common-law rule. Admitting statements
deemed reliable by a judge is fundamentally at odds with the right
of confrontation. To be sure, the Clause’s ultimate goal is to
ensure reliability of evidence, but it is a procedural rather than
a substantive guarantee. It commands, not that evidence be
reliable, but that reliability be assessed in a particular manner:
by testing in the crucible of cross-examination. The Clause thus
reflects a judgment, not only about the desirability of reliable
evidence (a point on which there could be little dissent), but
about how reliability can best be determined. Cf. 3 Blackstone,
Commentaries, at 373 (“This open examination of witnesses . . . is
much more conducive to the clearing up of truth”); M. Hale, History
and Analysis of the Common Law of England 258 (1713) (adversarial
testing “beats and bolts out the Truth much better”).

															   The Roberts test allows
a jury to hear evidence, untested by the adversary process, based
on a mere judicial determination of reliability. It thus replaces
the constitutionally prescribed method of assessing reliability
with a wholly foreign one. In this respect, it is very different
from exceptions to the Confrontation Clause that make no claim to
be a surrogate means of assessing reliability. For example, the
rule of forfeiture by wrongdoing (which we accept) extinguishes
confrontation claims on essentially equitable grounds; it does not
purport to be an alternative means of determining reliability. See Reynolds v. United States, 98 U. S. 145 , 158–159
(1879).

															   The Raleigh trial itself involved the very
sorts of reliability determinations that Roberts authorizes. In the face of Raleigh’s repeated demands for
confrontation, the prosecution responded with many of the arguments
a court applying Roberts might invoke today: that Cobham’s
statements were self-inculpatory, 2 How. St. Tr., at 19, that they
were not made in the heat of passion, id. , at 14, and that
they were not “extracted from [him] upon any hopes or promise of
Pardon,” id. , at 29. It is not plausible that the Framers’
only objection to the trial was that Raleigh’s judges did not
properly weigh these factors before sentencing him to death.
Rather, the problem was that the judges refused to allow Raleigh to
confront Cobham in court, where he could cross-examine him and try
to expose his accusation as a lie.

															   Dispensing with confrontation because
testimony is obviously reliable is akin to dispensing with jury
trial because a defendant is obviously guilty. This is not what the
Sixth Amendment prescribes.

															B

															   The legacy of Roberts in
other courts vindicates the Framers’ wisdom in rejecting a general
reliability exception. The framework is so unpredictable that it
fails to provide meaningful protection from even core confrontation
violations.

															   Reliability is an amorphous, if
not entirely subjective, concept. There are countless factors
bearing on whether a statement is reliable; the nine-factor
balancing test applied by the Court of Appeals below is
representative. See, e.g. , People v. Farrell , 34 P. 3d 401, 406–407 (Colo. 2001)
(eight-factor test). Whether a statement is deemed reliable depends
heavily on which factors the judge considers and how much weight he
accords each of them. Some courts wind up attaching the same
significance to opposite facts. For example, the Colorado Supreme
Court held a statement more reliable because its inculpation of the
defendant was “detailed,” id. , at 407, while the Fourth
Circuit found a statement more reliable because the portion
implicating another was “fleeting,” United States v. Photogrammetric Data Servs., Inc. , 259 F. 3d 229, 245
(2001). The Virginia Court of Appeals found a statement more
reliable because the witness was in custody and charged with a
crime (thus making the statement more obviously against her penal
interest), see Nowlin v. Commonwealth , 40 Va.
App. 327, 335–338, 579 S. E. 2d 367, 371–372 (2003), while the
Wisconsin Court of Appeals found a statement more reliable because
the witness was not in custody and not a suspect,
see State v. Bintz , 2002 WI App. 204, ¶ ;13, 257
Wis. 2d 177, 187, 650 N. W. 2d 913, 918. Finally, the Colorado
Supreme Court in one case found a statement more reliable because
it was given “immediately after” the events at issue, Farrell , supra , at 407, while that same court, in
another case, found a statement more reliable because two years had
elapsed, Stevens v. People , 29 P. 3d 305,
316 (2001).

															   The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated
capacity to admit core testimonial statements that the
Confrontation Clause plainly meant to exclude. Despite the
plurality’s speculation in Lilly , 527 U. S., at 137, that
it was “highly unlikely” that accomplice confessions implicating
the accused could survive Roberts , courts continue
routinely to admit them. See Photogrammetric Data Servs.,
supra , at 245–246; Farrell , supra , at
406–408; Stevens , supra , at 314–318; Taylor v. Commonwealth , 63 S. W. 3d 151,
166–168 (Ky. 2001); State v. Hawkins , No.
2001–P–0060, 2002 WL 31895118, ¶ ;¶ ;34–37, *6 (Ohio App., Dec. 31,
2002); Bintz , supra , ¶ ;¶ ;7–14, 257 Wis. 2d, at
183–188, 650 N. W. 2d, at 916–918; People v. Lawrence , 55 P. 3d 155, 160–161 (Colo. App. 2001); State v. Jones , 171 Ore. App. 375, 387–391, 15
P. 3d 616, 623–625 (2000); State v. Marshall , 136 Ohio App. 3d 742, 747–748, 737 N. E. 2d
1005, 1009 (2000); People v. Schutte , 240 Mich.
App. 713, 718–721, 613 N. W. 2d 370, 376–377 (2000); People v. Thomas , 313 Ill. App. 3d 998,
1005–1007, 730 N. E. 2d 618, 625–626 (2000); cf. Nowlin , supra , at 335–338, 579 S. E. 2d, at
371–372 (witness confessed to a related crime); People v. Campbell , 309 Ill. App. 3d 423, 431–432, 721 N. E. 2d
1225, 1230 (1999) (same). One recent study found that, after Lilly , appellate courts admitted accomplice statements to
the authorities in 25 out of 70 cases—more than one-third of the
time. Kirst, Appellate Court Answers to the Confrontation Questions
in Lilly v. Virginia , 53 Syracuse L. Rev. 87, 105
(2003). Courts have invoked Roberts to admit other sorts
of plainly testimonial statements despite the absence of any
opportunity to cross-examine. See United States v. Aguilar , 295 F. 3d 1018, 1021–1023 (CA9 2002) (plea
allocution showing existence of a conspiracy); United
States v. Centracchio , 265 F. 3d 518, 527–530
(CA7 2001) (same); United States v. Dolah , 245
F. 3d 98, 104–105 (CA2 2001) (same); United States v. Petrillo , 237 F. 3d 119, 122–123 (CA2 2000) (same); United States v. Moskowitz , 215 F. 3d 265,
268–269 (CA2 2000) (same); United States v. Gallego , 191 F. 3d 156, 166–168 (CA2 1999) (same); United States v. Papajohn , 212 F. 3d 1112,
1118–1120 (CA8 2000) (grand jury testimony); United States v. Thomas , 30 Fed. Appx. 277, 279 (CA4 2002) (same); Bintz , supra , ¶ ;¶ ;15–22, 257 Wis. 2d, at
188–191, 650 N. W. 2d, at 918–920 (prior trial testimony); State v. McNeill , 140 N. C. App. 450,
457–460, 537 S. E. 2d 518, 523–524 (2000) (same).

															   To add insult to injury, some of the courts
that admit untested testimonial statements find reliability in the
very factors that make the statements testimonial. As
noted earlier, one court relied on the fact that the witness’s
statement was made to police while in custody on pending
charges—the theory being that this made the statement more clearly
against penal interest and thus more reliable. Nowlin , supra , at 335–338, 579 S. E. 2d, at 371–372. Other
courts routinely rely on the fact that a prior statement is given
under oath in judicial proceedings. E.g. , Gallego , supra , at 168 (plea allocution); Papajohn , supra , at 1120 (grand jury testimony).
That inculpating statements are given in a testimonial setting is
not an antidote to the confrontation problem, but rather the
trigger that makes the Clause’s demands most urgent. It is not
enough to point out that most of the usual safeguards of the
adversary process attend the statement, when the single safeguard
missing is the one the Confrontation Clause demands.

															C Roberts ’ failings were
on full display in the proceedings below. Sylvia Crawford made her
statement while in police custody, herself a potential suspect in
the case. Indeed, she had been told that whether she would be
released “depend[ed] on how the investigation continues.” App. 81.
In response to often leading questions from police detectives, she
implicated her husband in Lee’s stabbing and at least arguably
undermined his self-defense claim. Despite all this, the trial
court admitted her statement, listing several reasons why it was
reliable. In its opinion reversing, the Court of Appeals listed
several other reasons why the statement was not reliable. Finally, the State Supreme Court relied exclusively on
the interlocking character of the statement and disregarded every
other factor the lower courts had considered. The case is thus a
self-contained demonstration of Roberts’ unpredictable and
inconsistent application.

															   Each of the courts also made
assumptions that cross-examination might well have undermined. The
trial court, for example, stated that Sylvia Crawford’s statement
was reliable because she was an eyewitness with direct knowledge of
the events. But Sylvia at one point told the police that she had
“shut [her] eyes and … didn’t really watch” part of the fight, and
that she was “in shock.” App. 134. The trial court also buttressed
its reliability finding by claiming that Sylvia was “being
questioned by law enforcement, and, thus, the [questioner] is …
neutral to her and not someone who would be inclined to advance her
interests and shade her version of the truth unfavorably toward the
defendant.” Id. , at 77. The Framers would be astounded to
learn that ex parte testimony could be admitted against a
criminal defendant because it was elicited by “neutral” government
officers. But even if the court’s assessment of the officer’s
motives was accurate, it says nothing about Sylvia’s perception of
her situation. Only cross-examination could reveal that.

															   The State Supreme Court gave dispositive
weight to the interlocking nature of the two statements—that they
were both ambiguous as to when and whether Lee had a weapon. The
court’s claim that the two statements were equally ambiguous is hard to accept. Petitioner’s statement is ambiguous
only in the sense that he had lingering doubts about his
recollection: “A. I coulda swore I seen him goin’ for somethin’
before, right before everything happened… . [B]ut I’m not
positive.” Id. , at 155. Sylvia’s statement, on the other
hand, is truly inscrutable, since the key timing detail was simply
assumed in the leading question she was asked: “Q. Did Kenny do
anything to fight back from this assault?” Id. , at 137.
Moreover, Sylvia specifically said Lee had nothing in his hands
after he was stabbed, while petitioner was not asked about
that.

															   The prosecutor obviously did not share the
court’s view that Sylvia’s statement was ambiguous—he called it
“damning evidence” that “completely refutes [petitioner’s] claim of
self-defense.” Tr. 468 (Oct. 21, 1999). We have no way of knowing
whether the jury agreed with the prosecutor or the court. Far from
obviating the need for cross-examination, the “interlocking”
ambiguity of the two statements made it all the more imperative
that they be tested to tease out the truth.

															   We readily concede that we could resolve this
case by simply reweighing the “reliability factors” under Roberts and finding that Sylvia Crawford’s statement falls
short. But we view this as one of those rare cases in which the
result below is so improbable that it reveals a fundamental failure
on our part to interpret the Constitution in a way that secures its
intended constraint on judicial discretion. Moreover, to reverse
the Washington Supreme Court’s decision after conducting our own
reliability analysis would perpetuate, not avoid, what the Sixth
Amendment condemns. The Constitution prescribes a procedure for
determining the reliability of testimony in criminal trials, and
we, no less than the state courts, lack authority to replace it
with one of our own devising.

															   We have no doubt that the courts below were
acting in utmost good faith when they found reliability. The
Framers, however, would not have been content to indulge this
assumption. They knew that judges, like other government officers,
could not always be trusted to safeguard the rights of the people;
the likes of the dread Lord Jeffreys were not yet too distant a
memory. They were loath to leave too much discretion in judicial
hands. Cf. U. S. Const., Amdt. 6 (criminal jury trial); Amdt. 7
(civil jury trial); Ring v. Arizona, 536
U. S. 584 , 611–612 (2002) (Scalia, J., concurring). By
replacing categorical constitutional guarantees with open-ended
balancing tests, we do violence to their design. Vague standards
are manipulable, and, while that might be a small concern in
run-of-the-mill assault prosecutions like this one, the Framers had
an eye toward politically charged cases like Raleigh’s—great state
trials where the impartiality of even those at the highest levels
of the judiciary might not be so clear. It is difficult to imagine Roberts’ providing any meaningful protection in those
circumstances.

															* * *

															   Where nontestimonial hearsay is
at issue, it is wholly consistent with the Framers’ design to
afford the States flexibility in their development of hearsay
law—as does Roberts , and as would an approach that
exempted such statements from Confrontation Clause scrutiny
altogether. Where testimonial evidence is at issue, however, the
Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination. We
leave for another day any effort to spell out a comprehensive
definition of “testimonial.”[ Footnote 10 ] Whatever else the term covers, it applies at
a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations.
These are the modern practices with closest kinship to the abuses
at which the Confrontation Clause was directed.

															   In this case, the State admitted Sylvia’s
testimonial statement against petitioner, despite the fact that he
had no opportunity to cross-examine her. That alone is sufficient
to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia
of reliability. Where testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy constitutional
demands is the one the Constitution actually prescribes:
confrontation.

															   The judgment of the Washington Supreme Court
is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.

															It is so ordered. Footnote 1 The court rejected the State’s argument that
guarantees of trustworthiness were unnecessary since petitioner
waived his confrontation rights by invoking the marital privilege.
It reasoned that “forcing the defendant to choose between the
marital privilege and confronting his spouse presents an untenable
Hobson’s choice.” 147 Wash. 2d, at 432, 54 P. 3d, at 660. The
State has not challenged this holding here. The State also has not
challenged the Court of Appeals’ conclusion (not reached by the
State Supreme Court) that the confrontation violation, if it
occurred, was not harmless. We express no opinion on these
matters. Footnote 2 There is some question whether the
requirement of a prior opportunity for cross-examination applied as
well to statements taken by a coroner, which were also authorized
by the Marian statutes. See 3 Wigmore §1364, at 23 (requirement
“never came to be conceded at all in England”); T. Peake, Evidence
64, n. (m) (3d ed. 1808) (not finding the point “expressly
decided in any reported case”); State v. Houser ,
26 Mo. 431, 436 (1858) (“there may be a few cases … but the
authority of such cases is questioned, even in [England], by their
ablest writers on common law”); State v. Campbell , 1 S. C. 124, 130 (1844) (point “has not …
been plainly adjudged, even in the English cases”). Whatever the
English rule, several early American authorities flatly rejected
any special status for coroner statements. See Houser , supra , at 436; Campbell , supra , at 130;
T. Cooley, Constitutional Limitations *318. Footnote 3 These sources—especially Raleigh’s
trial—refute The Chief Justice’s assertion, post , at 3
(opinion concurring in judgment), that the right of confrontation
was not particularly concerned with unsworn testimonial statements.
But even if, as he claims, a general bar on unsworn hearsay made
application of the Confrontation Clause to unsworn testimonial
statements a moot point, that would merely change our focus from
direct evidence of original meaning of the Sixth Amendment to
reasonable inference. We find it implausible that a provision which
concededly condemned trial by sworn ex parte affidavit
thought trial by unsworn ex parte affidavit
perfectly OK. (The claim that unsworn testimony was self-regulating
because jurors would disbelieve it, cf. post , at 2,
n. 1, is belied by the very existence of a general bar on
unsworn testimony.) Any attempt to determine the application of a
constitutional provision to a phenomenon that did not exist at the
time of its adoption (here, allegedly, admissible unsworn
testimony) involves some degree of estimation—what The Chief
Justice calls use of a “proxy,” post , at 3—but that is
hardly a reason not to make the estimation as accurate as possible.
Even if, as The Chief Justice mistakenly asserts, there were no
direct evidence of how the Sixth Amendment originally applied to
unsworn testimony, there is no doubt what its application would
have been. Footnote 4 We use the term “interrogation” in its
colloquial, rather than any technical legal, sense. Cf. Rhode
Island v. Innis, 446 U. S. 291 , 300–301
(1980). Just as various definitions of “testimonial” exist, one can
imagine various definitions of “interrogation,” and we need not
select among them in this case. Sylvia’s recorded statement,
knowingly given in response to structured police questioning,
qualifies under any conceivable definition. Footnote 5 The Chief Justice claims that English law’s
treatment of testimonial statements was inconsistent at the time of
the framing, post , at 4–5, but the examples he cites
relate to examinations under the Marian statutes. As we have
explained, to the extent Marian examinations were admissible, it
was only because the statutes derogated from the common
law. See supra , at 10. Moreover, by 1791 even the
statutory-derogation view had been rejected with respect to
justice-of-the-peace examinations—explicitly in King v. Woodcock , 1 Leach 500, 502–504, 168 Eng. Rep. 352, 353
(1789), and King v. Dingler , 2 Leach 561,
562–563, 168 Eng. Rep. 383, 383–384 (1791), and by implication in King v. Radbourne , 1 Leach 457, 459–461, 168 Eng.
Rep. 330, 331–332 (1787).

															None of The Chief Justice’s citations proves otherwise. King v. Westbeer , 1 Leach 12, 168 Eng. Rep. 108
(1739), was decided a half-century earlier and cannot be taken as
an accurate statement of the law in 1791 given the directly
contrary holdings of Woodcock and Dingler . Hale’s
treatise is older still, and far more ambiguous on this point, see
1 M. Hale, Pleas of the Crown 585–586 (1736); some who espoused the
requirement of a prior opportunity for cross-examination thought it
entirely consistent with Hale’s views. See Fenwick’s Case ,
13 How. St. Tr. 537, 602 (H. C. 1696) (Musgrave). The only timely
authority The Chief Justice cites is King v. Eriswell , 3 T. R. 707, 100 Eng. Rep. 815 (K. B. 1790), but
even that decision provides no substantial support. Eriswell was not a criminal case at all, but a Crown suit
against the inhabitants of a town to charge them with care of an
insane pauper. Id. , at 707–708, 100 Eng. Rep., at 815–816.
It is relevant only because the judges discuss the Marian statutes
in dicta. One of them, Buller, J., defended admission of the
pauper’s statement of residence on the basis of authorities that
purportedly held ex parte Marian examinations admissible. Id. , at 713–714, 100 Eng. Rep., at 819. As evidence
writers were quick to point out, however, his authorities said no
such thing. See Peake, Evidence, at 64, n. (m) (“Mr. J.
Buller is reported to have said that it was so settled in 1 Lev.
180, and Kel. 55; certainly nothing of the kind appears in those
books”); 2 T. Starkie, Evidence 487–488, n. (c) (1826)
(“Buller, J. … refers to Radbourne ’s case … ; but in that
case the deposition was taken in the hearing of the prisoner, and
of course the question did not arise” (citation omitted)). Two
other judges, Grose, J., and Kenyon, C. J., responded to
Buller’s argument by distinguishing Marian examinations as a
statutory exception to the common-law rule, but the context and
tenor of their remarks suggest they merely assumed the
accuracy of Buller’s premise without independent consideration, at
least with respect to examinations by justices of the peace. See 3
T. R., at 710, 100 Eng. Rep., at 817 (Grose, J.); id. , at
722–723, 100 Eng. Rep., at 823–824 (Kenyon, C. J.). In fact, the
case reporter specifically notes in a footnote that their
assumption was erroneous. See id. , at 710, n. (c), 100 Eng. Rep., at 817, n. (c) . Notably,
Buller’s position on pauper examinations was resoundingly rejected
only a decade later in King v. Ferry Frystone , 2
East 54, 55, 102 Eng. Rep. 289 (K. B. 1801) (“The point … has been
since considered to be so clear against the admissibility of the
evidence … that it was abandoned by the counsel … without
argument”), further suggesting that his views on evidence were not
mainstream at the time of the framing.

															In short, none of The Chief Justice’s sources shows that the law
in 1791 was unsettled even as to examinations by justices of
the peace under the Marian statutes . More importantly,
however, even if the statutory rule in 1791 were in doubt, the
numerous early state-court decisions make abundantly clear that the
Sixth Amendment incorporated the common-law right of
confrontation and not any exceptions the Marian statutes supposedly
carved out from it. See supra , at 13–14; see also supra , at 11, n. 2 (coroner statements). The
common-law rule had been settled since Paine in 1696. See King v. Paine , 5 Mod. 163, 165, 87 Eng. Rep. 584,
585 (K. B.). Footnote 6 The one deviation we have found involves
dying declarations. The existence of that exception as a general
rule of criminal hearsay law cannot be disputed. See, e.g. , Mattox v. United
States, 156
U. S. 237 , 243–244 (1895); King v. Reason , 16
How. St. Tr. 1, 24–38 (K. B. 1722); 1 D. Jardine, Criminal Trials
435 (1832); Cooley, Constitutional Limitations, at *318; 1 G.
Gilbert, Evidence 211 (C. Lofft ed. 1791); see also F. Heller, The
Sixth Amendment 105 (1951) (asserting that this was the only recognized criminal hearsay exception at common law).
Although many dying declarations may not be testimonial, there is
authority for admitting even those that clearly are. See Woodcock , supra , at 501–504, 168 Eng. Rep., at
353–354; Reason , supra , at 24–38; Peake,
Evidence, at 64; cf. Radbourne , supra , at
460–462, 168 Eng. Rep., at 332–333. We need not decide in this case
whether the Sixth Amendment incorporates an exception for
testimonial dying declarations. If this exception must be accepted
on historical grounds, it is sui generis . Footnote 7 We cannot agree with The Chief Justice that
the fact “[t]hat a statement might be testimonial does nothing to
undermine the wisdom of one of these [hearsay] exceptions.” Post , at 6. Involvement of government officers in the
production of testimony with an eye toward trial presents unique
potential for prosecutorial abuse—a fact borne out time and again
throughout a history with which the Framers were keenly familiar.
This consideration does not evaporate when testimony happens to
fall within some broad, modern hearsay exception, even if that
exception might be justifiable in other circumstances. Footnote 8 One case arguably in tension with the rule
requiring a prior opportunity for cross-examination when the
proffered statement is testimonial is White v. Illinois, 502 U. S. 346 (1992), which involved, inter alia , statements of a child victim to an
investigating police officer admitted as spontaneous declarations. Id. , at 349–351. It is questionable whether testimonial
statements would ever have been admissible on that ground in 1791;
to the extent the hearsay exception for spontaneous declarations
existed at all, it required that the statements be made
“immediat[ely] upon the hurt received, and before [the declarant]
had time to devise or contrive any thing for her own advantage.” Thompson v. Trevanion , Skin. 402, 90 Eng. Rep.
179 (K. B. 1694). In any case, the only question presented in White was whether the Confrontation Clause imposed an
unavailability requirement on the types of hearsay at issue. See
502 U. S., at 348–349. The holding did not address the question
whether certain of the statements, because they were testimonial,
had to be excluded even if the witness was unavailable. We
“[took] as a given … that the testimony properly falls within the
relevant hearsay exceptions.” Id. , at 351, n. 4. Footnote 9 The Chief Justice complains that our prior
decisions have “never drawn a distinction” like the one we now
draw, citing in particular Mattox v. United
States, 156
U. S. 237 (1895), Kirby v. United
States, 174 U. S. 47 (1899), and United
States v. Burr , 25 F. Cas. 187 (No. 14,694) (CC
Va. 1807) (Marshall, C. J.). Post , at 4–6. But
nothing in these cases contradicts our holding in any way. Mattox and Kirby allowed or excluded evidence
depending on whether the defendant had had an opportunity for
cross-examination. Mattox , supra , at 242–244; Kirby , supra , at 55–61. That the two cases did
not extrapolate a more general class of evidence to which that
criterion applied does not prevent us from doing so now. As to Burr , we disagree with The Chief Justice’s reading of the
case. Although Chief Justice Marshall made one passing reference to
the Confrontation Clause, the case was fundamentally about the
hearsay rules governing statements in furtherance of a conspiracy.
The “principle so truly important” on which “inroad[s]” had been
introduced was the “rule of evidence which rejects mere hearsay
testimony.” See 25 F. Cas., at 193. Nothing in the opinion
concedes exceptions to the Confrontation Clause’s exclusion of
testimonial statements as we use the term. The Chief Justice fails
to identify a single case (aside from one minor, arguable
exception, see supra , at 22, n. 8), where we have
admitted testimonial statements based on indicia of reliability
other than a prior opportunity for cross-examination. If nothing
else, the test we announce is an empirically accurate explanation
of the results our cases have reached.

															Finally, we reiterate that, when the declarant appears for
cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.
See California v. Green , 399 U. S. 149 , 162 (1970). It is
therefore irrelevant that the reliability of some out-of-court
statements “ ‘cannot be replicated, even if the declarant
testifies to the same matters in court.’ ” Post , at 6
(quoting United States v. Inadi, 475 U. S. 387 , 395
(1986)). The Clause does not bar admission of a statement so long
as the declarant is present at trial to defend or explain it. (The
Clause also does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.
See Tennessee v. Street, 471 U. S. 409 , 414
(1985).) Footnote 10 We acknowledge The Chief Justice’s objection, post , at 7–8, that our refusal to articulate a
comprehensive definition in this case will cause interim
uncertainty. But it can hardly be any worse than the status quo.
See supra , at 27–30, and cases cited. The difference is
that the Roberts test is inherently , and
therefore permanently , unpredictable. REHNQUIST, C. J., CONCURRING IN JUDGMENT CRAWFORD V. WASHINGTON 541 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-9410 MICHAEL D. CRAWFORD, PETITIONER v. WASHINGTON

															on writ of certiorari to the supreme court of
washington

															[March 8, 2004]

															   Chief Justice Rehnquist, with
whom Justice O’Connor joins, concurring in the judgment.

															   I dissent from the Court’s
decision to overrule Ohio v. Roberts, 448 U. S. 56 (1980). I believe that the
Court’s adoption of a new interpretation of the Confrontation
Clause is not backed by sufficiently persuasive reasoning to
overrule long-established precedent. Its decision casts a mantle of
uncertainty over future criminal trials in both federal and state
courts, and is by no means necessary to decide the present
case.

															   The Court’s distinction between testimonial
and nontestimonial statements, contrary to its claim, is no better
rooted in history than our current doctrine. Under the common law,
although the courts were far from consistent, out-of-court
statements made by someone other than the accused and not taken
under oath, unlike ex parte depositions or affidavits,
were generally not considered substantive evidence upon which a
conviction could be based.[ Footnote
1 ] See, e.g. , King v. Brasier , 1
Leach 199, 200, 168 Eng. Rep. 202 (K. B. 1779); see also J.
Langbein, Origins of Adversary Criminal Trial 235–242 (2003); G.
Gilbert, Evidence 152 (3d ed 1769).[ Footnote 2 ] Testimonial statements such as accusatory
statements to police officers likely would have been disapproved of
in the 18th century, not necessarily because they resembled ex
parte affidavits or depositions as the Court reasons, but more
likely than not because they were not made under oath.[ Footnote 3 ] See King v. Woodcock , 1 Leach 500, 503, 168 Eng. Rep. 352, 353 (1789)
(noting that a statement taken by a justice of the peace may not be
admitted into evidence unless taken under oath). Without an oath,
one usually did not get to the second step of whether confrontation
was required.

															   Thus, while I agree that the
Framers were mainly concerned about sworn affidavits and
depositions, it does not follow that they were similarly concerned
about the Court’s broader category of testimonial statements. See 1
N. Webster, An American Dictionary of the English Language (1828)
(defining “Testimony” as “[a] solemn declaration or affirmation
made for the purpose of establishing or proving some fact. Such
affirmation in judicial proceedings, may be verbal or written, but
must be under oath ” (emphasis added)). As far as I can tell,
unsworn testimonial statements were treated no differently at
common law than were nontestimonial statements, and it seems to me
any classification of statements as testimonial beyond that of
sworn affidavits and depositions will be somewhat arbitrary, merely
a proxy for what the Framers might have intended had such evidence
been liberally admitted as substantive evidence like it is
today.[ Footnote 4 ]

															   I therefore see no reason why the
distinction the Court draws is preferable to our precedent.
Starting with Chief Justice Marshall’s interpretation as a Circuit
Justice in 1807, 16 years after the ratification of the Sixth
Amendment, United States v. Burr , 25 F. Cas. 187,
193 (No. 14,694) (CC Va. 1807), continuing with our cases in
the late 19th century, Mattox v. United
States, 156 U. S. 237 , 243–244
(1895); Kirby v. United States, 174 U. S. 47 , 54–57
(1899), and through today, e.g. , White v. Illinois, 502 U. S. 346 , 352–353
(1992), we have never drawn a distinction between testimonial and
nontestimonial statements. And for that matter, neither has any
other court of which I am aware. I see little value in trading our
precedent for an imprecise approximation at this late date.

															   I am also not convinced that the Confrontation
Clause categorically requires the exclusion of testimonial
statements. Although many States had their own Confrontation
Clauses, they were of recent vintage and were not interpreted with
any regularity before 1791. State cases that recently followed the
ratification of the Sixth Amendment were not uniform; the Court
itself cites state cases from the early 19th century that took a
more stringent view of the right to confrontation than does the
Court, prohibiting former testimony even if the witness was
subjected to cross-examination. See ante , at 13 (citing Finn v. Commonwealth , 26 Va. 701, 708 (1827); State v. Atkins , 1 Tenn. 229 (1807) (per
curiam) ).

															   Nor was the English law at the time of the
framing entirely consistent in its treatment of testimonial
evidence. Generally ex parte affidavits and depositions
were excluded as the Court notes, but even that proposition was not
universal. See King v. Eriswell , 3 T. R.
707, 100 Eng. Rep. 815 (K. B. 1790) (affirming by an equally
divided court the admission of an ex parte examination
because the declarant was unavailable to testify); King v. Westbeer , 1 Leach 12, 13, 168 Eng. Rep. 108, 109 (1739)
(noting the admission of an ex parte affidavit); see also
1 M. Hale, Pleas of the Crown 585–586 (1736) (noting that
statements of “accusers and witnesses” which were taken under oath
could be admitted into evidence if the declarant was “dead or not
able to travel”). Wigmore notes that sworn examinations of
witnesses before justices of the peace in certain cases would not
have been excluded until the end of the 1700’s, 5 Wigmore §1364, at
26–27, and sworn statements of witnesses before coroners became
excluded only by statute in the 1800’s, see ibid.; id., §1374, at 59. With respect to unsworn testimonial statements, there
is no indication that once the hearsay rule was developed courts
ever excluded these statements if they otherwise fell within a
firmly rooted exception. See, e.g ., Eriswell , supra , at 715–719 (Buller, J.), 720 (Ashhurst, J.), 100
Eng. Rep., at 819–822 (concluding that an ex parte examination was admissible as an exception to the hearsay rule
because it was a declaration by a party of his state and
condition). Dying declarations are one example. See, e.g. , Woodcock, supra , at 502–504, 168 Eng. Rep., at 353–354; King v. Reason , 16 How. St. Tr. 1, 22–23
(K. B. 1722).

															   Between 1700 and 1800 the rules regarding the
admissibility of out-of-court statements were still being
developed. See n. 1, supra. There were always
exceptions to the general rule of exclusion, and it is not clear to
me that the Framers categorically wanted to eliminate further ones.
It is one thing to trace the right of confrontation back to the
Roman Empire; it is quite another to conclude that such a right
absolutely excludes a large category of evidence. It is an odd
conclusion indeed to think that the Framers created a cut-and-dried
rule with respect to the admissibility of testimonial statements
when the law during their own time was not fully settled.

															   To find exceptions to exclusion under the
Clause is not to denigrate it as the Court suggests. Chief Justice
Marshall stated of the Confrontation Clause: “I know of no
principle in the preservation of which all are more concerned. I
know none, by undermining which, life, liberty and property, might
be more endangered. It is therefore incumbent on courts to be
watchful of every inroad on a principle so truly important.” Burr , 25 F. Cas., at 193. Yet, he recognized that such a
right was not absolute, acknowledging that exceptions to the
exclusionary component of the hearsay rule, which he considered as
an “inroad” on the right to confrontation, had been introduced. See ibid. Exceptions to confrontation have always been
derived from the experience that some out-of-court statements are
just as reliable as cross-examined in-court testimony due to the
circumstances under which they were made. We have recognized, for
example, that co-conspirator statements simply “cannot be
replicated, even if the declarant testifies to the same matters in
court.” United States v. Inadi, 475 U. S. 387 , 395
(1986). Because the statements are made while the declarant and the
accused are partners in an illegal enterprise, the statements are
unlikely to be false and their admission “actually furthers the
‘Confrontation Clause’s very mission’ which is to ‘advance the
accuracy of the truth-determining process in criminal
trials.’ ” Id. , at 396 (quoting Tennessee v. Street, 471 U. S. 409 , 415
(1985) (some internal quotation marks omitted)). Similar reasons
justify the introduction of spontaneous declarations, see White , 502 U. S., at 356, statements made in the course of
procuring medical services, see ibid. , dying declarations,
see Kirby, supra , at 61, and countless other hearsay
exceptions. That a statement might be testimonial does nothing to
undermine the wisdom of one of these exceptions.

															   Indeed, cross-examination is a tool used to
flesh out the truth, not an empty procedure. See Kentucky v. Stincer, 482 U. S. 730 , 737
(1987) (“The right to cross-examination, protected by the
Confrontation Clause, thus is essentially a ‘functional’ right
designed to promote reliability in the truth-finding functions of a
criminal trial”); see also Maryland v. Craig, 497 U. S. 836 , 845
(1990) (“The central concern of the Confrontation Clause is to
ensure the reliability of the evidence against a criminal defendant
by subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact”). “[I]n a given instance
[cross-examination may] be superfluous; it may be sufficiently
clear, in that instance, that the statement offered is free enough
from the risk of inaccuracy and untrustworthiness, so that the test
of cross-examination would be a work of supererogation.” 5 Wigmore
§1420, at 251. In such a case, as we noted over 100 years ago, “The
law in its wisdom declares that the rights of the public shall not
be wholly sacrificed in order that an incidental benefit may be
preserved to the accused.” Mattox, 156 U. S., at 243; see
also Salinger v. United States, 272 U. S. 542 , 548
(1926). By creating an immutable category of excluded evidence, the
Court adds little to a trial’s truth-finding function and ignores
this longstanding guidance.

															   In choosing the path it does, the Court of
course overrules Ohio v. Roberts, 448 U. S. 56 (1980), a case decided
nearly a quarter of a century ago. Stare decisis is not an
inexorable command in the area of constitutional law, see Payne v. Tennessee, 501 U. S. 808 , 828
(1991), but by and large, it “is the preferred course because it
promotes the evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process,” id. , at 827. And in making this appraisal, doubt
that the new rule is indeed the “right” one should surely be
weighed in the balance. Though there are no vested interests
involved, unresolved questions for the future of everyday criminal
trials throughout the country surely counsel the same sort of
caution. The Court grandly declares that “[w]e leave for another
day any effort to spell out a comprehensive definition of
‘testimonial,’ ” ante , at 33. But the thousands of
federal prosecutors and the tens of thousands of state prosecutors
need answers as to what beyond the specific kinds of “testimony”
the Court lists, see ibid., is covered by the new rule.
They need them now, not months or years from now. Rules of criminal
evidence are applied every day in courts throughout the country,
and parties should not be left in the dark in this manner.

															   To its credit, the Court’s analysis of
“testimony” excludes at least some hearsay exceptions, such as
business records and official records. See ante , at 20. To
hold otherwise would require numerous additional witnesses without
any apparent gain in the truth-seeking process. Likewise to the
Court’s credit is its implicit recognition that the mistaken
application of its new rule by courts which guess wrong as to the
scope of the rule is subject to harmless-error analysis. See ante, at 5, n. 1.

															   But these are palliatives to what I believe is
a mistaken change of course. It is a change of course not in the
least necessary to reverse the judgment of the Supreme Court of
Washington in this case. The result the Court reaches follows
inexorably from Roberts and its progeny without any need
for overruling that line of cases. In Idaho v. Wright , 497
U. S. 805 , 820–824 (1990), we held that an out-of-court
statement was not admissible simply because the truthfulness of
that statement was corroborated by other evidence at trial. As the
Court notes, ante , at 31, the Supreme Court of Washington
gave decisive weight to the “interlocking nature of the two
statements.” No re-weighing of the “reliability factors,” which is
hypothesized by the Court, ante , at 31, is required to
reverse the judgment here. A citation to Idaho v. Wright , supra , would suffice. For the reasons
stated, I believe that this would be a far preferable course for
the Court to take here. Footnote 1 Modern scholars have concluded that at the
time of the founding the law had yet to fully develop the
exclusionary component of the hearsay rule and its attendant
exceptions, and thus hearsay was still often heard by the jury. See
Gallanis, The Rise of Modern Evidence Law, 84 Iowa L. Rev.
499, 534–535 (1999); Mosteller, Remaking Confrontation Clause and
Hearsay Doctrine Under the Challenge of Child Sexual Abuse
Prosecutions, 1993 U. Ill. L. Rev. 691, 738–746. In many
cases, hearsay alone was generally not considered sufficient to
support a conviction; rather, it was used to corroborate sworn
witness testimony. See 5 J. Wigmore, Evidence, §1364, pp. 17,
19–20, 19, n. 33 (J. Chadbourn rev. 1974) (hereinafter
Wigmore) (noting in the 1600’s and early 1700’s testimonial and
nontestimonial hearsay was permissible to corroborate direct
testimony); see also J. Langbein, Origins of Adversary Criminal
Trial 238–239 (2003). Even when unsworn hearsay was proffered as
substantive evidence, however, because of the predominance of the
oath in society, juries were largely skeptical of it. See Landsman,
Rise of the Contentious Spirit: Adversary Procedure in Eighteenth
Century England, 75 Cornell L. Rev. 497, 506 (1990)
(describing late 17th-century sentiments); Langbein, Criminal Trial
before the Lawyers, 45 U. Chi. L. Rev. 263, 291–293 (1978). In
the 18th century, unsworn hearsay was simply held to be of much
lesser value than were sworn affidavits or depositions. Footnote 2 Gilbert’s noted in 1769:

															“Hearsay is no Evidence … though a Person Testify what he hath
heard upon Oath, yet the Person who spake it was not upon Oath; and
if a Man had been in Court and said the same Thing and had not
sworn it, he had not been believed in a Court of Justice; for all
Credit being derived from Attestation and Evidence, it can rise no
higher than the Fountain from whence it flows, and if the first
Speech was without Oath, an Oath that there was such a Speech makes
it no more than a bare speaking, and so of no Value in a Court of
Justice, where all Things were determined under the Solemnities of
an Oath … .” Footnote 3 Confessions not taken under oath were
admissible against a confessor because “ ‘the most obvious
Principles of Justice, Policy, and Humanity’ ” prohibited an
accused from attesting to his statements. 1 G. Gilbert, Evidence
216 (C. Lofft ed. 1791). Still, these unsworn confessions were
considered evidence only against the confessor as the Court points
out, see ante , at 16, and in cases of treason, were
insufficient to support even the conviction of the confessor, 2 W.
Hawkins, Pleas of the Crown, C. 46, §4, p. 604, n. 3 (T.
Leach 6th ed. 1787). Footnote 4 The fact that the prosecution introduced an
unsworn examination in 1603 at Sir Walter Raleigh’s trial, as the
Court notes, see ante , at 16, says little about the
Court’s distinction between testimonial and nontestimonial
statements. Our precedent indicates that unsworn testimonial
statements, as do some nontestimonial statements, raise
confrontation concerns once admitted into evidence, see, e.g ., Lilly v. Virginia, 527 U. S. 116 (1999); Lee v. Illinois, 476 U. S. 530 (1986),
and I do not contend otherwise. My point is not that the
Confrontation Clause does not reach these statements, but rather
that it is far from clear that courts in the late 18th century
would have treated unsworn statements, even testimonial ones, the
same as sworn statements.