In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot be made use of as evidence against any others whom on his Examination he confessed to be in the Treason. In 1791, the United States of America amended its new Constitution to provide, also in rather simple terms, that in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. In 1999, the United States Supreme Court faced another capital case, this one for murder, in Lilly v. Virginia. The critical evidence in Lilly was an accomplice's pretrial confession to the authorities: One Mark Lilly had given a statement to the police in which he identified his brother Benjamin, the defendant, as the triggerman in the murder, which was part of a crime spree in which both brothers and a third man had participated. Although Mark did not testify at Benjamin's trial, the trial court admitted his pretrial statement, and Benjamin was convicted. The Virginia Supreme Court upheld the conviction. The United States Supreme Court was split on admissibility of Mark’s statement. Four Justices B the Chief Justice joined by Justices O'Connor and Kennedy and, in substantial part, by Justice Thomas B were not satisfied that the Virginia courts had acted properly in allowing Mark's statement into evidence, but were also not sure that those courts had violated Benjamin's confrontation right. They would have remanded the case to the Virginia courts for a more detailed analysis of the facts. Five Justices, however, concluded that admitting the confession violated Benjamin's rights. A plurality of four, in an opinion by Justice Stevens, reached this result only after an extensive analysis, in accordance with prevailing confrontation doctrine, of the reliability of the statement. One of the four, Justice Breyer, raised serious doubts about that doctrine, however, and emphasized that the door was open for a much different approach to confrontation. Only Justice Scalia, who had joined an earlier attempt by Justice Thomas to reconceptualize confrontation theory, saw the case in simple, Tong-like terms, characterizing the admission of Mark's statement in a one-paragraph opinion as a paradigmatic Confrontation Clause violation." This is not, in my view, a happy story of the progress of human liberty over the last three and a half centuries. I believe the Tong court had a clearer conception of what the confrontation right means – and meant even then, long before the Sixth Amendment to the Constitution expressed it – than does most of the current Court. The right, one of the great glories of the Anglo-American system of Friedman: Lilly v. Virginia Glimmers of Hope for the Confrontation Clause? 1 adjudication, expresses the conditions under which testimonial statements must be given if they are to be acceptable proof against a criminal defendant. Recent Supreme Court doctrine has so deeply enshrouded the right in the mysteries of hearsay law that it has been all but lost. But Lilly also gives reason for hope, for Justices Scalia, Breyer, and Thomas have indicated that they are willing to think anew about what the confrontation right means and how it should be applied. In the first portion of this brief essay I will discuss Lilly against the backdrop of prevailing confrontation doctrine. I will focus on the opinions of Justices Stevens and Chief Justice Rehnquist, which purported to apply this doctrine, and I will argue that it is inadequate. In the second part of the essay, I will argue that the opinions of Justices Breyer and Scalia point the way to a sounder conception of the confrontation right: Lilly was as clear-cut as Justice Scalia made it seem, as becomes apparent under the type of approach for which Justice Breyer indicated sympathy. My own preference for such an approach will not surprise anyone familiar with the amicus brief, cited by Justice Breyer, that two co-authors and I submitted on behalf of the American Civil Liberties Union.
Friedman, Richard D. "Lilly v. Virginia Glimmers of Hope for the Confrontation Clause?" Int'l Comment. on Evidence 1, no. 2 (2000). The final publication is available at www.degruyter.com at http://dx.doi.org/10.2202/1554-4567.1006.