|CRAWFORD V. WASHINGTON (02-9410) 541 U.S. 36 (2004)
147 Wash. 2d 424, 54 P.3d 656, reversed and remanded.
[ Scalia ]
[ Rehnquist ]
MICHAEL D. CRAWFORD, PETITIONER
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 Sylvias tape-recorded statement to the police describing the stabbing, even though he had no opportunity for cross-examination. The Washington Supreme Court upheld petitioners conviction after determining that Sylvias statement was reliable. The question presented is whether this procedure complied with the Sixth Amendments guarantee that, [i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.
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 petitioners hand was cut.
Petitioner gave the following account of the fight:
Q. Okay. Did you ever see anything in [Lees] hands?
A. I think so, but Im 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 dont know, I think, this is just a possibility, but I think, I think that he pulled somethin out and I grabbed for it and thats how I got cut but Im 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 doesnt, dont make sense to me later. App. 155 (punctuation added).
Sylvia generally corroborated petitioners story about the events leading up to the fight, but her account of the fight itself was arguably differentparticularly 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 dont 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 Michaels 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 hes standing there with his open hands, youre 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 spouses consent. See Wash. Rev. Code §5.60.060(1) (1994). In Washington, this privilege does not extend to a spouses 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 Sylvias 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 Lees 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 witnesss
statement against a criminal defendant if the statement bears
adequate indicia of reliability.
The Washington Court of Appeals reversed. It applied a nine-factor test to determine whether Sylvias 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 States argument that Sylvias statement was reliable because it coincided with petitioners 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 petitioners self-defense claim: [Petitioners] version asserts that Lee may have had something in his hand when he stabbed him; but Sylvias 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 Sylvias statement did not fall under a firmly
rooted hearsay exception, it bore guarantees of
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 Sylvias
statement reliable. 147 Wash. 2d, at 438
439, 54 P.3d, at 664 (internal quotation marks omitted).1
We granted certiorari to determine whether the States use of Sylvias statement violated the Confrontation Clause. 539 U.S. 914 (2003).
The Sixth Amendments 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 witnesss out-of-court statement may be admitted so long as it has adequate indicia of reliabilityi.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.
The Constitutions 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, 664665 (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 1516. We must therefore turn to the historical background of the Clause to understand its meaning.
The right to confront ones 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. Intl L. 481 (1994). The founding generations 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 373374 (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 216217, 228 (3d ed. 1944); e.g., Raleighs Case, 2 How. St. Tr. 1, 1516, 24 (1603); Throckmortons Case, 1 How. St. Tr. 869, 875876 (1554); cf. Lilburns Case, 3 How. St. Tr. 1315, 13181322, 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 2134 (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 528530.
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, Raleighs alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleighs trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: Cobham is absolutely in the Kings 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 1516. The judges refused, id., at 24, and, despite Raleighs protestations that he was being tried by the Spanish Inquisition, id., at 15, the jury convicted, and Raleigh was sentenced to death.
One of Raleighs trial judges
later lamented that
One recurring question was whether the admissibility of an unavailable witnesss pretrial examination depended on whether the defendant had had an opportunity to cross-examine him. In 1696, the Court of Kings 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. Fenwicks 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 Fenwicks Case, 13 How. St. Tr. 537, 591592 (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 proceedingsone speaker even admitting that the evidence would normally be inadmissible. See id., at 603604 (Williamson); id., at 604605 (Chancellor of the Exchequer); id., at 607; 3 Wigmore §1364, at 2223, 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, 526530 (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 Fenwicks 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 722723, 100
Eng. Rep., at 823824 (Kenyon, C. J.) (same); compare 1
Gilbert, Evidence, at 215 (admissible only by Force
of the Statute
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, 396397 (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 (17681769), 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 110111 (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 Carolinas 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, 435436 (1858); Kendrick v. State, 29 Tenn. 479, 485488 (1850); Bostick v. State, 22 Tenn. 344, 345346 (1842); Commonwealth v. Richards, 35 Mass. 434, 437 (1837); State v. Hill, 2 Hill 607, 608610 (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.
This history supports two inferences about the meaning of the Sixth Amendment.
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 Raleighs; that the Marian statutes invited; that English laws 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 Cobhams confession in court.
This focus also suggests that not all hearsay implicates the Sixth Amendments 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 accusedin 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 equivalentthat 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 Clauses coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definitionfor 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. Cobhams examination was unsworn, see 1 Jardine, Criminal Trials, at 430, yet Raleighs 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 8.3
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 3445. England did not have a professional police force until the 19th century, see 1 Stephen, supra, at 194200, 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.
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 433435. As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witnesss 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.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.6 Most of the hearsay exceptions covered statements that by their nature were not testimonialfor 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).7
Our case law has been largely consistent with these two principles. Our leading early decision, for example, involved a deceased witnesss 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 Mattoxs 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, 213216 (1972); California v. Green, 399 U.S. 149, 165168 (1970); Pointer v. Texas, 380 U.S., at 406408; cf. Kirby v. United States, 174 U.S. 47, 5561 (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, 722725 (1968); cf. Motes v. United States, 178 U.S. 458, 470471 (1900). We similarly excluded accomplice confessions where the defendant had no opportunity to cross-examine. See Roberts v. Russell, 392 U.S. 293, 294295 (1968) (per curiam); Bruton v. United States, 391 U.S. 123, 126128 (1968); Douglas v. Alabama, 380 U.S. 415, 418420 (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 8789 (plurality opinion).
Even our recent cases, in their outcomes, hew closely to the traditional line. Ohio v. Roberts, 448 U.S., at 6770, 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, 181184 (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.8
Lee v. Illinois, 476 U.S. 530 (1986), on which the State relies, is not to the contrary. There, we rejected the States attempt to admit an accomplice confession. The State had argued that the confession was admissible because it interlocked with the defendants. We dealt with the argument by rejecting its premise, holding that when the discrepancies between the statements are not insignificant, the codefendants 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 codefendants 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 exceptionpreviously unknown to this Courts jurisprudencefor 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 defendants own confession against him in a joint trial. See Parker v. Randolph, 442 U.S. 62, 6976 (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.9
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 140143 (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 125131 (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 lawthus eliminating the overbreadth referred to above. Second, that we impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examinethus eliminating the excessive narrowness referred to above.
In White, we considered the first proposal and rejected it. 502 U.S., at 352353. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today, because Sylvia Crawfords statement is testimonial under any definition. This case does, however, squarely implicate the second proposal.
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendments 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 Clauses 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, 158159 (1879).
The Raleigh trial itself involved the very sorts of reliability determinations that Roberts authorizes. In the face of Raleighs repeated demands for confrontation, the prosecution responded with many of the arguments a court applying Roberts might invoke today: that Cobhams 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 Raleighs 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.
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, 406407 (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, 335338, 579 S. E. 2d 367, 371372 (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 pluralitys 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 245246; Farrell, supra, at 406408; Stevens, supra, at 314318; Taylor v. Commonwealth, 63 S. W. 3d 151, 166168 (Ky. 2001); State v. Hawkins, No. 2001P0060, 2002 WL 31895118, ¶¶3437, *6 (Ohio App., Dec. 31, 2002); Bintz, supra, ¶¶714, 257 Wis. 2d, at 183188, 650 N. W. 2d, at 916918; People v. Lawrence, 55 P.3d 155, 160161 (Colo. App. 2001); State v. Jones, 171 Ore. App. 375, 387391, 15 P.3d 616, 623625 (2000); State v. Marshall, 136 Ohio App. 3d 742, 747748, 737 N. E. 2d 1005, 1009 (2000); People v. Schutte, 240 Mich. App. 713, 718721, 613 N. W. 2d 370, 376377 (2000); People v. Thomas, 313 Ill. App. 3d 998, 10051007, 730 N. E. 2d 618, 625626 (2000); cf. Nowlin, supra, at 335338, 579 S. E. 2d, at 371372 (witness confessed to a related crime); People v. Campbell, 309 Ill. App. 3d 423, 431432, 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 casesmore 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, 10211023 (CA9 2002) (plea allocution showing existence of a conspiracy); United States v. Centracchio, 265 F.3d 518, 527530 (CA7 2001) (same); United States v. Dolah, 245 F.3d 98, 104105 (CA2 2001) (same); United States v. Petrillo, 237 F.3d 119, 122123 (CA2 2000) (same); United States v. Moskowitz, 215 F.3d 265, 268269 (CA2 2000) (same); United States v. Gallego, 191 F.3d 156, 166168 (CA2 1999) (same); United States v. Papajohn, 212 F.3d 1112, 11181120 (CA8 2000) (grand jury testimony); United States v. Thomas, 30 Fed. Appx. 277, 279 (CA4 2002) (same); Bintz, supra, ¶¶1522, 257 Wis. 2d, at 188191, 650 N. W. 2d, at 918920 (prior trial testimony); State v. McNeill, 140 N. C. App. 450, 457460, 537 S. E. 2d 518, 523524 (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 witnesss statement was made to police while in custody on pending chargesthe theory being that this made the statement more clearly against penal interest and thus more reliable. Nowlin, supra, at 335338, 579 S. E. 2d, at 371372. 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 Clauses 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.
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 Lees 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 Crawfords 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 didnt 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 courts assessment of the officers motives was accurate, it says nothing about Sylvias perception of her situation. Only cross-examination could reveal that.
The State Supreme Court gave dispositive weight to the interlocking nature of the two statementsthat they were both ambiguous as to when and whether Lee had a weapon. The courts claim that the two statements were equally ambiguous is hard to accept. Petitioners 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 Im not positive. Id., at 155. Sylvias 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 courts view that Sylvias statement was ambiguoushe called it damning evidence that completely refutes [petitioners] 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 Crawfords 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 Courts 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, 611612 (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 Raleighsgreat 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 lawas 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.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 Sylvias 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.
1. The court rejected the States 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 Hobsons 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.
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.
3. These sourcesespecially Raleighs trialrefute The Chief Justices 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 estimationwhat The Chief Justice calls use of a proxy, post, at 3but 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.
4. We use the term interrogation in its colloquial, rather than any technical legal, sense. Cf. Rhode Island v. Innis, 446 U.S. 291, 300301 (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. Sylvias recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition.
5. The Chief Justice claims that English laws treatment of testimonial statements was inconsistent at the time of the framing, post, at 45, 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 examinationsexplicitly in King v. Woodcock, 1 Leach 500, 502504, 168 Eng. Rep. 352, 353 (1789), and King v. Dingler, 2 Leach 561, 562563, 168 Eng. Rep. 383, 383384 (1791), and by implication in King v. Radbourne, 1 Leach 457, 459461, 168 Eng. Rep. 330, 331332 (1787). None of The Chief Justices 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. Hales treatise is older still, and far more ambiguous on this point, see 1 M. Hale, Pleas of the Crown 585586 (1736); some who espoused the requirement of a prior opportunity for cross-examination thought it entirely consistent with Hales views. See Fenwicks 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 707708, 100 Eng. Rep., at 815816. It is relevant only because the judges discuss the Marian statutes in dicta. One of them, Buller, J., defended admission of the paupers statement of residence on the basis of authorities that purportedly held ex parte Marian examinations admissible. Id., at 713714, 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 487488, n. (c) (1826) (Buller, J. refers to Radbournes 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 Bullers 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 Bullers 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 722723, 100 Eng. Rep., at 823824 (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, Bullers 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 Justices 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 1314; 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.).
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, 243244 (1895); King v. Reason, 16 How. St. Tr. 1, 2438 (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 501504, 168 Eng. Rep., at 353354; Reason, supra, at 2438; Peake, Evidence, at 64; cf. Radbourne, supra, at 460462, 168 Eng. Rep., at 332333. 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.
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 abusea 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.
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 349351. 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 348349. 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.
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 46. 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 242244; Kirby, supra, at 5561. 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 Justices 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 Clauses 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).)
10. We acknowledge The Chief
Justices objection, post, at 78, that our
refusal to articulate a comprehensive definition in this case
will cause interim uncertainty. But it can hardly be any worse
the status quo. See supra, at 2730, and cases cited. The difference
is that the Roberts test is inherently, and therefore permanently,