1 of 83

2010 University of Toledo Law Review Writing Competition

Included in this Packet:
General Writing Competition Instructions …………………………………………… 1
Instructions for Writing the Memo …………………………………………………… 3
Memo: Statement of the Case .……………………………………………………….. 5
Memo: Library of Cases ……………………………………………………………… 8

Please note: You must also download “Bluebook Exercise Instructions.pdf” and “Bluebook
Exercise.doc” to complete your application.

General Writing Competition Instructions

1. Writing Competition Eligibility:

To be eligible to compete in this writing competition, students must meet the
following criteria:
a. The student must be in good academic standing with at least a 3.2 GPA [core classes
only] at the end of the 2010 summer semester.
b. Students must have completed all core classes required by the current first year day
division curriculum of the College of Law at the end of the summer 2010 semester
[Civil Procedure I & II, Constitutional Law I, Contracts I & II, Criminal Law,
Legal Research & Writing I & II, Property I & II, Torts].
c. Students who were eligible for any prior University of Toledo Law Review writing
competition are not eligible to compete in this writing competition. Questions
regarding eligibility should be directed to the Editor-in-Chief [Katie
Kormanyos: Ph: 419.509.6757, kathleen.kormanyos@rockets.utoledo.edu].

2. Components of the Writing Competition

The writing competition consists of two components, a memo and a Bluebook
exercise. You must complete both to be considered for membership to the University
of Toledo Law Review.
a. The memo component asks you to respond to a question following a brief set
of facts. This component allows you to demonstrate your writing and analytical
skills.
b. The Bluebook exercise asks you to edit a series of footnotes in compliance
with Bluebook and Greybook (law review amendments to the Bluebook)
citation standards.

3. Honor Code
a. Entrants in the writing competition are bound by the College of Law Honor Code.
YOU ARE FORBIDDEN FROM COMMUNICATING WITH ANYONE
[FACULTY INCLUDED] ABOUT ANY ASPECT OF THIS EXERCISE.
b. If you violate the Honor Code during this exercise, you will be disqualified from the
competition.
 2 of 83

c. If you have any questions, please contact the Operations Editor [Aamir Mahboob: Ph:
419.410.5250, aamir.mahboob@rockets.utoledo.edu].

4. Plagiarism
a. You must be careful to avoid plagiarism in your writing. The fundamental problem
of plagiarism is not only the USE of another’s words or ideas without citation, but in
also passing those words off as one’s own.
b. There are some common misconceptions about plagiarism that need to be corrected:
i. Plagiarism does not consist only of copying whole sentences. Borrowed
words, phrases [4 words or greater], and ideas are included in the definition.
ii. Intent is not necessary to the act. If Person A borrows ideas or words from
Person B’s work and incorporates them into his or her own work without
accreditation, and readers of the work assume A’s words or ideas are original, the
result is plagiarism. Proper paraphrasing requires interpreting or
translating completely a passage into different words and crediting the source
of the idea. If paraphrasing is impossible, make sure to quote the original
source.
iii. It is not acceptable to lift sentences, phrases, or paragraphs from any source
without quoting and end noting that source.

5. Technical Rules
a. The competition will be available on a LexisNexis Web Course starting Friday
May 7, 2010 at 5:00p.m.
b. Each student will have exactly ten days (to the minute) to complete the project.
Students may submit their written piece to the Web Course any time prior to the
deadline; however, no submissions after 5:00 p.m. on May 17 will be accepted.
c. To assure anonymity in the selection process, we require that students only use their
assigned number for identification purposes. The selection committee will not know the
correlation between papers and applicants’ assigned numbers until all entries have been
evaluated. Please ensure your application conforms to the following anonymity
requirements:
i. Add a cover page to your competition submission that lists only your assigned
number.
ii. Use your assigned number as your submission’s filename.
iii. Submit your entry in PDF format.

6. Saving Your Paper in PDF Format

a. You may convert files to PDF format for free by going to:
www.pdfonline.com/convert_pdf.asp. Upload your file and a PDF version will be emailed
to you.
b. Also, if you have Microsoft Office 2007, Microsoft has provided a plug-in that allows
you to save files directly to PDF format from within MS Word. You may download the
plug-in at: http://www.microsoft.com/downloads/details.aspx?FamilyID=f1fc413c-6d89-
4f15-991b-63b07ba5f2e5&displaylang=en
c. IF you run into problems and cannot create a PDF file, then submit in DOC format to
avoid missing the competition deadline.
 3 of 83

7. Scoring the Writing Competition

a. The editors comprising the Writing Competition Committee will read and evaluate
each paper. Their evaluation scores will be averaged together to provide the most objective
selection criteria possible.
b. The score will be based upon grammar, organization, writing style, legal analysis,
adherence to citation format, and proper use of endnotes, for a maximum total of 130 points.
c. Applicants' writing competition scores will be added to their GPA scores at the end
of the summer semester. YOU MUST OBTAIN AT LEAST65 POINTS IN THE WRITING
COMPETITION TO BE CONSIDERED FOR ASSOCIATE MEMBER STATUS,
REGARDLESS OF YOUR GPA.

Total possible points: 450, calculated as follows:

Score of paper: 130

Score of Bluebook exercise: 50

GPA: 270 [grade point multiplied by 67.5]

Example:

Score on paper: 100

Score on Bluebook exercise: 35

Sub-total: 135

GPA: 3.4 x 67.5 = 229.5

Total = 364.5 out of 450

d. You will be notified of the results of the competition, by mail or phone, between mid-July and
early August.
e. NOTE:
i. A PAPER TURNED IN AFTER THE DEADLINE WILL NOT BE ACCEPTED.
ii. WRITING COMPETITION PAPERS WILL NOT BE RETURNED.
iii. FAILURE TO FOLLOW INSTRUCTIONS MAY RESULT IN
DISQUALIFICATION.

Instructions for Writing the Memo

1. Technical Rules:
a. You are submitting ONLY your analysis of the question presented in the provided materials.
 4 of 83

Your six to ten page submission should read as though you developed a memo on this topic
and REMOVED all portions (e.g. question presented, facts) EXCEPT the analysis and
conclusion. Your analysis:
1. May not exceed TEN double-spaced, typed pages:
2. Font size must be 12-point;
3. Margins must be at least one-inch; and
4. Handwritten papers will not be considered.
b. Cite to the cases in the library using endnotes, which must be separate from the text and are
not included in the total page count.
c. Endnotes should adhere to Bluebook form (legal memoranda), and should be double-spaced.
d. Number your pages and attach a blank cover page with your competition number. Your
paper is to be identified ONLY by the competition number on the cover page.
e. Save your paper in PDF format.
f. The filename of your paper should be “memoXXXX” where “XXXX” is your competition
number.
g. Upload your maximum ten-page analysis of the question presented to the LexisNexis Web
Course by no later than 5:00 p.m. on Monday, May 17 Eastern Time.

2. Substantive Instructions
a. Completing the Competition and Materials to be Used
i. ANALYZE THE QUESTION PRESENTED: Your task is to analyze the
questions presented at the end of the Statement of the Case. The fact pattern you
will analyze is based on several cases involving the Confrontation Clause of the
Sixth Amendment. Concentrate on providing a complete analysis of the issue,
not on being right or wrong. Remember proper endnote format.
ii. LIBRARY: All of the materials you will need to complete this assignment are
included in this packet. Your source list includes redacted versions of:

U.S. CONST. amend. VI.

Maryland v. Craig, 497 U.S. 836 (1990).
Crawford v. Washington, 541 U.S. 36 (2004).
Davis v. Washington, 547 U.S. 813 (2006).
Giles v. California, 128 S. Ct. 2678 (2008).
Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).

iii. If you have any non-substantive questions during the competition or further
questions on the Associate Member selection process, please contact the
Publications Editor, Peggy Ery [419.530.2962 or peggy.ery@utoledo.edu].

ADDITIONAL RESEARCH IS NOT PERMITTED. ANY SUBMISSION CONTAINING ADDITIONAL

RESEARCH WILL BE AUTOMATICALLY EXCLUDED.
COMPLETE THE ASSIGNMENT USING ONLY THE CASES PROVIDED IN THIS PACKET.
 5 of 83

STATEMENT OF THE CASE

Kris Allen, Justin Houser, and Chanley Painter share an apartment in sunny San Diego,

California, where they are known to frequent the local piano bars. Kris currently works for a local

modeling agency, but struggles to make ends meet. Chanley works as an editor for a major online

news site, known as “The Online Companion.” Justin, a musician, is quite infamous in San Diego,

and authorities have suspected his involvement in unscrupulously distributing unoriginal music as

his own.

In the early hours of March 17, 2010, authorities received a 911 call describing a disturbance

at a local piano bar known as “The New Filthy McNastys.” The following conversation was

recorded by Mr. Rizzo, the 911 operator:

RIZZO: San Diego 911 … what is your emergency?

CHANLEY: It’s Justin … he’s out of control!

RIZZO: Ma’am … just try and calm down … I didn’t really prepare any remarks for this

conversation … and I’m going to have to hold my tongue because this conversation is recorded …

but try and tell me what’s happening.

CHANLEY: It’s Justin … he’s gone berserk! Kris told him that he wasn’t really that famous …

and Justin lost it. He savagely tied Kris up and waterboarded him! I don’t know what’s gotten into

him… it must be that “New Year’s Concoction” he smoked…

RIZZO: “New Year’s Concoction?”

CHANLEY: What!? Are you sending someone over? Please come soon!

RIZZO: Ma’am please calm down … waterboarding isn’t the end of the world …

(Chanley became very panicky for a short period of time. Several minutes later, after authorities

were sent to the bar, the situation had been diffused, and Chanley began to relax, Rizzo asked a few
 6 of 83

more questions.)

RIZZO: OK now ma’am … what was this “New Year’s Concoction” you described? We need to

ensure that everyone is safe.

CHANLEY: Oh I don’t know … Kris saw Justin with the “New Year’s Concoction” and knew all

about what was in it … he even tried to persuade him not to use it … of course Justin wouldn’t take

the advice and became enraged … oh wait!

(A brief rustling can be heard in the background; suddenly a disoriented male voice begins to

speak)

KRIS: Uh … hello? Yeah … he had cocaine and heroin in there. He’s nuts.

Shortly after the call, the police entered “The New Filthy McNastys” piano bar. Inside,

police found Kris unconscious on the floor in a backroom. Additionally, a shattered vial labeled

“The Concoction” was found near the backdoor exit. Officials collected substance from the vial

and submitted it to lab analysts to determine the composition of the substance. Medical experts

concluded that Kris had succumbed to a coma as a result of the waterboarding just after the 911 call,

and has been in the coma ever since. Drug lab analysts determined that the “New Year’s

Concoction” contained cocaine, heroin, and marijuana, which they reported in a lab report.

A grand jury indicted Justin Houser for possession of cocaine, heroin, and marijuana, a

federal crime, and criminal assault. The prosecution sought to introduce both the 911 call and the

lab reports prepared by the drug analysts at trial. Alternatively, the prosecution requested that

Chanley be able to testify via a statutorily authorized one-way closed circuit television procedure,

allowing her to testify from a room outside the courtroom with both prosecutor and defense counsel

present should the court prohibit the introduction of the 911 call. According to the prosecution, the

courtroom setting would traumatize Chanley, and her nervousness during trial would make her
 7 of 83

unable to testify. Over objection, the trial judge admitted both the 911 call and the lab reports, and

the appellate court affirmed.

Justin Houser is certain that his sixth amendment rights were violated by the admission of

the 911 call and lab reports into evidence. He has retained the law firm Napolitano, Ray & Hamm,

where you are an associate, to assist him. A partner in your firm has asked you to evaluate the case,

and write a memorandum detailing whether Houser’s rights were violated. Specifically, the partner

would like you to analyze: (1) whether Chanley’s statements to the 911 operator were admissible at

trial under the sixth amendment, (2) whether Kris’ statements to the 911 operator were admissible at

trial under the sixth amendment, (3) whether Chanley would be permitted to testify by one-way

closed circuit television, and (4) whether the drug analysts’ reports regarding the “New Years

Concoction” were admissible at trial under the sixth amendment. Your partner will focus on all

other relevant areas of law and asks that you focus your analysis on these issues alone.
 8 of 83

U.S. CONST. amend. VI

“Rights of the accused”

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
 9 of 83

LEXSEE 497 U.S. 836

MARYLAND v. CRAIG

No. 89-478

SUPREME COURT OF THE UNITED STATES

497 U.S. 836; 110 S. Ct. 3157; 111 L. Ed. 2d 666; 1990 U.S. LEXIS
3457; 58 U.S.L.W. 5044; 30 Fed. R. Evid. Serv. (Callaghan) 1

April 18, 1990, Argued

June 27, 1990, Decided

PRIOR HISTORY: CERTIORARI TO Connecticut, Charles M. Oberly III,

THE COURT OF APPEALS OF
MARYLAND.
DISPOSITION: 316 Md. 551, 560 A. 2d
1120, vacated and remanded.
COUNSEL: J. Joseph Curran, Jr., Attorney
General of Maryland, argued the cause for
petitioner. With him on the briefs were Gary E.
Bair and Ann N. Bosse, Assistant Attorneys
General, and William R. Hymes.
William H. Murphy, Jr., argued the cause for
respondent. With him on the brief were Maria
Cristina Gutierrez, Gary S. Bernstein, Byron L.
Warnken, and Clarke F. Ahlers. *
* Briefs of amici curiae urging reversal
were filed for the State of Florida et al.
by Robert A. Butterworth, Attorney
General of Florida, and Richard E. Doran
and Bradley R. Bischoff, Assistant
Attorneys General, Don Siegelman,
Attorney General of Alabama, Doug
Baily, Attorney General of Alaska,
Robert K. Corbin, Attorney General of
Arizona, John Steven Clark, Attorney
General of Arkansas, Duane Woodard,
Attorney General of Colorado, John J.
Kelly, Chief State's Attorney of
Attorney General of Delaware, Warren
Price III, Attorney General of Hawaii,
Jim Jones, Attorney General of Idaho,
Neil F. Hartigan, Attorney General of
Illinois, Linley E. Pearson, Attorney
General of Indiana, Thomas J. Miller,
Attorney General of Iowa, Robert T.
Stephan, Attorney General of Kansas,
Frederic J. Cowan, Attorney General of
Kentucky, William J. Guste, Jr., Attorney
General of Louisiana, James E. Tierney,
Attorney General of Maine, James M.
Shannon, Attorney General of
Massachusetts, Frank J. Kelley, Attorney
General of Michigan, Hubert H.
Humphrey III, Attorney General of
Minnesota, Mike Moore, Attorney
General of Mississippi, William L.
Webster, Attorney General of Missouri,
Marc Racicot, Attorney General of
Montana, Robert M. Spire, Attorney
General of Nebraska, Brian McKay,
Attorney General of Nevada, Robert J.
Del Tufo, Attorney General of New
Jersey, Hal Stratton, Attorney General of
New Mexico, Robert Abrams, Attorney
General of New York, Lacy H.
Thornburg, Attorney General of North
Carolina, Anthony J. Celebrezze, Jr.,
Attorney General of Ohio, Robert H.

Henry, Attorney General of Oklahoma,
Ernest D. Preate, Attorney General of
Pennsylvania, Hector Rivera Cruz,
Attorney General of Puerto Rico, T.
Travis Medlock, Attorney General of
South Carolina, Roger A. Tellinghuisen,
Attorney General of South Dakota,
Charles W. Burson, Attorney General of
Tennessee, Jim Mattox, Attorney
General of Texas, R. Paul Van Dam,
Attorney General of Utah, Godfrey R. de
Castro, Attorney General of the Virgin
Islands, Mary Sue Terry, Attorney
General of Virginia, Kenneth O.
Eikenberry, Attorney General of
Washington, and Joseph B. Mayer,
Attorney General of Wyoming; for the
District Attorney of Kings County, New
York, et al. by Charles J. Hynes, Peter A.
Weinstein, Jay Cohen, Robert T.
Johnson, Anthony Girese, and Howard
R. Relin; for the Criminal Justice Legal
Foundation by Kent S. Scheidegger and
Charles L. Hobson; for the National
Association of Counsel for Children et al.
by Jacqueline Y. Parker, Philip J.
McCarthy, Jr., and Thomas R. Finn; for
People Against Child Abuse by Judith D.
Schretter, Wallace A. Christensen, and
Paul A. Dorf; and for the Stephanie
Roper Foundation by Gary B. Born.
Briefs of amici curiae urging
affirmance were filed for the Illinois
Public Defender Association et al. by
David P. Bergschneider; for the National
Association of Criminal Defense
Lawyers by Maria Cristina Gutierrez and
Annabelle Whiting Hall; and for Victims
of Child Abuse Laws National Network
(Vocal) by Alan Silber.
Briefs of amici curiae were filed for
the American Psychological Association
by David W. Ogden; for the Appellate
Committee of the California District
Attorney's Association by Jonathan B.
10 of 83
Conklin; for the Institute for
Psychological Therapies by Louis Kiefer;
and for Richard A. Gardner by Alan
Silber.
JUDGES: O'CONNOR, J., delivered the
opinion of the Court, in which REHNQUIST,
C. J., and WHITE, BLACKMUN, and
KENNEDY, JJ., joined. SCALIA, J., filed a
dissenting opinion, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined, post,
p. 860.
OPINION BY: O'CONNOR
OPINION
[*840] [***675] [**3160] JUSTICE
O'CONNOR delivered the opinion of the
Court.
[***LEdHR1A] [1A]This case requires us
to decide whether the Confrontation Clause of
the Sixth Amendment categorically prohibits a
child witness in a child abuse case from
testifying against a defendant at trial, outside
the defendant's physical presence, by one-way
closed circuit television.
I
In October 1986, a Howard County grand
jury charged respondent, Sandra Ann Craig,
with child abuse, first and second degree sexual
offenses, perverted sexual practice, assault, and
battery. The named victim in each count was a
6-year-old girl who, from August 1984 to June
1986, had attended a kindergarten and
prekindergarten center owned and operated by
Craig.
In March 1987, before the case went to
trial, the State sought to invoke a Maryland
[**3161] statutory procedure that permits a
judge to receive, by one-way closed circuit
television, the testimony of a child witness who
is alleged to be a victim of child abuse. 1 To
invoke the procedure, the [*841] trial judge
must first "determine that testimony by the

child victim in the courtroom will result in the
child suffering serious emotional distress such
that the child cannot reasonably communicate."
Md. Cts. & [***676] Jud. Proc. Code Ann. §
9-102(a)(1)(ii) (1989). Once the procedure is
invoked, the child witness, prosecutor, and
defense counsel withdraw to a separate room;
the judge, jury, and defendant remain in the
courtroom. The child witness is then examined
and cross-examined in the separate room, while
a video monitor records and displays the
witness' testimony to those in the courtroom.
During this time the witness cannot see the
defendant. [*842] The defendant remains in
electronic communication with defense
counsel, and objections may be made and ruled
on as if the witness were testifying in the
courtroom.
1 Maryland Cts. & Jud. Proc. Code
Ann. § 9-102 (1989) provides in full:
"(a)(1) In a case of abuse of a child as
defined in § 5-701 of the Family Law
Article or Article 27, § 35A of the Code,
a court may order that the testimony of a
child victim be taken outside the
courtroom and shown in the courtroom
by means of a closed circuit television if:
"(i) The testimony is taken during the
proceeding; and
"(ii) The judge determines that
testimony by the child victim in the
courtroom will result in the child
suffering serious emotional distress such
that the child cannot reasonably
communicate.
"(2) Only the prosecuting attorney,
the attorney for the defendant, and the
judge may question the child.
"(3) The operators of the closed
circuit television shall make every effort
to be unobtrusive.
11 of 83
"(b)(1) Only the following persons
may be in the room with the child when
the child testifies by closed circuit
television:
"(i) The prosecuting attorney;
"(ii) The attorney for the defendant;
"(iii) The operators of the closed
circuit television equipment; and
"(iv) Unless the defendant objects,
any person whose presence, in the
opinion of the court, contributes to the
well-being of the child, including a
person who has dealt with the child in a
therapeutic setting concerning the abuse.
"(2) During the child's testimony by
closed circuit television, the judge and
the defendant shall be in the courtroom.
"(3) The judge and the defendant
shall be allowed to communicate with the
persons in the room where the child is
testifying by any appropriate electronic
method.
"(c) The provisions of this section do
not apply if the defendant is an attorney
pro se.
"(d) This section may not be
interpreted to preclude, for purposes of
identification of a defendant, the
presence of both the victim and the
defendant in the courtroom at the same
time."
For a detailed description of the § 9-
102 procedure, see Wildermuth v. State,
310 Md. 496, 503-504, 530 A.2d 275,
278-279 (1987).
In support of its motion invoking the one-
way closed circuit television procedure, the
State presented expert testimony that the named
victim, as well as a number of other children
who were alleged to have been sexually abused
by Craig, would suffer "serious emotional
distress such that [they could not] reasonably

communicate," § 9-102(a)(1)(ii), if required to
testify in the courtroom. App. 7-59. The
Maryland Court of Appeals characterized the
evidence as follows:
"The expert testimony in each
case suggested that each child
would have some or considerable
difficulty in testifying in Craig's
presence. For example, as to one
child, the expert said that what
'would cause him the most anxiety
would be to testify in front of Mrs.
Craig. . . .' The child 'wouldn't be
able to communicate effectively.'
As to another, an expert said she
'would probably stop talking and
she would withdraw and curl up.'
With respect to two others, the
testimony was that one would
'become highly agitated, that he
may refuse to talk or if he did talk,
that he would choose his subject
regardless of the questions' while
the other would 'become extremely
timid and unwilling to talk.'" 316
Md. 551, 568-569, 560 A.2d 1120,
1128-1129 (1989).
Craig objected to the use of the procedure on
Confrontation Clause grounds, but the trial
[**3162] court rejected that contention,
concluding that although the statute "take[s]
away the right of the defendant to be face to
face with his or her accuser," the defendant
retains the "essence of the right of
confrontation," including the right to observe,
cross-examine, and have the jury view the
demeanor of the witness. App. 65-66. The trial
court further found that, "based upon the
evidence presented . . . the testimony of each of
these children in a courtroom will result in each
child suffering serious emotional distress . . .
such that each of these children cannot
reasonably [*843] communicate." Id., at 66.
12 of 83
The trial court then found the named victim and
three other children competent to testify and
accordingly permitted them to testify against
Craig via the one-way closed circuit television
procedure. The jury convicted Craig on all
counts, and the Maryland Court of Special
Appeals affirmed the convictions, 76 Md. App.
250, 544 A.2d 784 (1988).
The Court of Appeals of Maryland reversed
and remanded for a new trial. 316 Md. 551,
560 A.2d 1120 (1989). The Court of Appeals
rejected Craig's argument that the
Confrontation Clause requires in all cases a
face-to-face courtroom encounter between the
accused and his accusers, id., at 556-562, 560
A.2d at 1122-1125, but concluded:
"Under § 9-102(a)(1)(ii), the
operative 'serious [***677]
emotional distress' which renders a
child victim unable to 'reasonably
communicate' must be determined
to arise, at least primarily, from
face-to-face confrontation with the
defendant. Thus, we construe the
phrase 'in the courtroom' as
meaning, for sixth amendment and
[state constitution] confrontation
purposes, 'in the courtroom in the
presence of the defendant.' Unless
prevention of 'eyeball-to-eyeball'
confrontation is necessary to
obtain the trial testimony of the
child, the defendant cannot be
denied that right." Id., at 566, 560
A.2d at 1127.
Reviewing the trial court's finding and the
evidence presented in support of the § 9-102
procedure, the Court of Appeals held that, "as
[it] read Coy [v. Iowa, 487 U.S. 1012, 101 L.
Ed. 2d 857, 108 S. Ct. 2798 (1988)], the
showing made by the State was insufficient to
reach the high threshold required by that case
before § 9-102 may be invoked." Id., 316 Md.

at 554-555, 560 A.2d at 1121 (footnote
omitted).
We granted certiorari to resolve the
important Confrontation Clause issues raised
by this case. 493 U.S. 104 (1990).
[*844] II
[***LEdHR2] [2]The Confrontation
Clause of the Sixth Amendment, made
applicable to the States through the Fourteenth
Amendment, provides: "In all criminal
prosecutions, the accused shall enjoy the right .
. . to be confronted with the witnesses against
him."
We observed in Coy v. Iowa that "the
Confrontation Clause guarantees the defendant
a face-to-face meeting with witnesses
appearing before the trier of fact." 487 U.S. at
1016 (citing Kentucky v. Stincer, 482 U.S. 730,
748, 749-750, 96 L. Ed. 2d 631, 107 S. Ct. 2658
(1987) (MARSHALL, J., dissenting)); see also
Pennsylvania v. Ritchie, 480 U.S. 39, 51, 94 L.
Ed. 2d 40, 107 S. Ct. 989 (1987) (plurality
opinion); California v. Green, 399 U.S. 149,
157, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970);
Snyder v. Massachusetts, 291 U.S. 97, 106, 78
L. Ed. 674, 54 S. Ct. 330 (1934); Dowdell v.
United States, 221 U.S. 325, 330, 55 L. Ed.
753, 31 S. Ct. 590 (1911); Kirby v. United
States, 174 U.S. 47, 55, 43 L. Ed. 890, 19 S. Ct.
574 (1899); Mattox v. United States, 156 U.S.
237, 244, 39 L. Ed. 409, 15 S. Ct. 337 (1895).
This interpretation derives not only from the
literal text of the Clause, but also from our
understanding of its historical roots. See Coy,
supra, 487 U.S. at 1015-1016; Mattox, supra,
156 U.S. at 242 (Confrontation Clause
intended to prevent conviction by affidavit);
Green, supra, 399 U.S. at 156 [**3163]
(same); cf. 3 J. Story, Commentaries on the
Constitution § 1785, p. 662 (1833).
[***LEdHR3] [3]We have never held,
however, that the Confrontation Clause
guarantees criminal defendants the absolute
13 of 83
right to a face-to-face meeting with witnesses
against them at trial. Indeed, in Coy v. Iowa, we
expressly "left for another day . . . the question
whether any exceptions exist" to the
"irreducible literal meaning of the Clause: 'a
right to meet face to face all those who appear
and give evidence at trial.'" 487 U.S. at 1021
(quoting Green, supra, 399 U.S. at 175
(Harlan, J., concurring)). The procedure
challenged [***678] in Coy involved the
placement of a screen that prevented two child
witnesses in a child abuse case from seeing the
defendant as they testified against him at trial.
See 487 U.S. at 1014-1015. In holding that the
use of this procedure violated the defendant's
right to confront witnesses against him, we
suggested that [*845] any exception to the
right "would surely be allowed only when
necessary to further an important public policy"
-- i. e., only upon a showing of something
more than the generalized, "legislatively
imposed presumption of trauma" underlying
the statute at issue in that case. Id., at 1021;
see also id., at 1025 (O'CONNOR, J.,
concurring). We concluded that "since there
had been no individualized findings that these
particular witnesses needed special protection,
the judgment [in the case before us] could not
be sustained by any conceivable exception."
Id., at 1021. Because the trial court in this case
made individualized findings that each of the
child witnesses needed special protection, this
case requires us to decide the question reserved
in Coy.
[***LEdHR4] [4]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. The word "confront," after all, also means
a clashing of forces or ideas, thus carrying with
it the notion of adversariness. As we noted in
our earliest case interpreting the Clause:

"The primary object of the
constitutional provision in question
was to prevent depositions or ex
parte affidavits, such as were
sometimes admitted in civil cases,
being used against the prisoner in
lieu of a personal examination and
cross-examination of the witness in
which the accused has an
opportunity, not only of testing the
recollection and sifting the
conscience of the witness, but of
compelling him to stand face to
face with the jury in order that they
may look at him, and judge by his
demeanor upon the stand and the
manner in which he gives his
testimony whether he is worthy of
belief." Mattox, supra, 156 U.S. at
242-243.
As this description indicates, the right
guaranteed by the Confrontation Clause
includes not only a "personal examination,"
156 U.S. at 242, but also "(1) insures that the
witness will give his statements under oath --
thus impressing him with [*846] the
seriousness of the matter and guarding against
the lie by the possibility of a penalty for
perjury; (2) forces the witness to submit to
cross-examination, the 'greatest legal engine
ever invented for the discovery of truth'; [and]
(3) permits the jury that is to decide the
defendant's fate to observe the demeanor of the
witness in making his statement, thus aiding the
jury in assessing his credibility." Green, supra,
at 158 (footnote omitted).
The combined effect of these elements of
confrontation -- physical presence, oath, cross-
examination, and observation of demeanor by
the trier of fact -- serves the purposes of the
Confrontation Clause by ensuring that evidence
admitted against an accused is reliable and
subject to [***679] the rigorous adversarial
testing that is the norm of Anglo-American
14 of 83
criminal proceedings. See Stincer, supra, at
739 ("The right to confrontation is a functional
[**3164] one for the purpose of promoting
reliability in a criminal trial"); Dutton v. Evans,
400 U.S. 74, 89, 27 L. Ed. 2d 213, 91 S. Ct. 210
(1970) (plurality opinion) ("The mission of the
Confrontation Clause is to advance a practical
concern for the accuracy of the truth-
determining process in criminal trials by
assuring that 'the trier of fact [has] a
satisfactory basis for evaluating the truth of the
[testimony]'"); Lee v. Illinois, 476 U.S. 530,
540, 90 L. Ed. 2d 514, 106 S. Ct. 2056 (1986)
(confrontation guarantee serves "symbolic
goals" and "promotes reliability"); see also
Faretta v. California, 422 U.S. 806, 818, 45 L.
Ed. 2d 562, 95 S. Ct. 2525 (1975) (Sixth
Amendment "constitutionalizes the right in an
adversary criminal trial to make a defense as
we know it"); Strickland v. Washington, 466
U.S. 668, 684-685, 80 L. Ed. 2d 674, 104 S. Ct.
2052 (1984).
We have recognized, for example, that
face-to-face confrontation enhances the
accuracy of factfinding by reducing the risk
that a witness will wrongfully implicate an
innocent person. See Coy, supra, 487 U.S. at
1019-1020 ("It is always more difficult to tell a
lie about a person 'to his face' than 'behind his
back.' . . . That face-to-face presence may,
unfortunately, upset the truthful rape victim or
abused child; but by the same token it may
confound and undo the false accuser, or [*847]
reveal the child coached by a malevolent
adult"); Ohio v. Roberts, 448 U.S. 56, 63, n.6,
65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980); see
also 3 W. Blackstone, Commentaries *373-
*374. We have also noted the strong symbolic
purpose served by requiring adverse witnesses
at trial to testify in the accused's presence. See
Coy, 487 U.S. at 1017 ("There is something
deep in human nature that regards face-to-face
confrontation between accused and accuser as
'essential to a fair trial in a criminal
prosecution'") (quoting Pointer v. Texas, 380

U.S. 400, 404, 13 L. Ed. 2d 923, 85 S. Ct. 1065
(1965)).
[***LEdHR5A] [5A]Although face-to-face
confrontation forms "the core of the values
furthered by the Confrontation Clause," Green,
399 U.S. at 157, we have nevertheless
recognized that it is not the sine qua non of the
confrontation right. See Delaware v. Fensterer,
474 U.S. 15, 22, 88 L. Ed. 2d 15, 106 S. Ct. 292
(1985) (per curiam) ("The Confrontation
Clause is generally satisfied when the defense
is given a full and fair opportunity to probe and
expose [testimonial] infirmities [such as
forgetfulness, confusion, or evasion] through
cross-examination, thereby calling to the
attention of the factfinder the reasons for giving
scant weight to the witness' testimony");
Roberts, supra, at 69 (oath, cross-examination,
and demeanor provide "all that the Sixth
Amendment demands: 'substantial compliance
with the purposes behind the confrontation
requirement'") (quoting Green, supra, at 166);
see also Stincer, 482 U.S. at 739-744
(confrontation right not violated by exclusion
of defendant from competency hearing of child
witnesses, where defendant had opportunity for
full and effective cross-examination at trial);
Davis v. [***680] Alaska, 415 U.S. 308, 315-
316, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974);
Douglas v. Alabama, 380 U.S. 415, 418, 13 L.
Ed. 2d 934, 85 S. Ct. 1074 (1965); Pointer,
supra, 380 U.S. at 406-407; 5 J. Wigmore,
Evidence § 1395, p. 150 (J. Chadbourn rev.
1974).
[***LEdHR1B] [1B]For this reason, we have
never insisted on an actual face-to-face
encounter at trial in every instance in which
testimony is admitted against a defendant.
Instead, we have repeatedly held that the
Clause permits, where necessary, the admission
of certain hearsay statements against a
defendant despite [*848] the defendant's
inability to confront the declarant at trial. See,
e. g., Mattox, 156 U.S. at 243 ("There could be
15 of 83
nothing more directly contrary to the letter of
the provision in question than the admission of
dying declarations [**3165] "); Pointer, supra,
at 407 (noting exceptions to the confrontation
right for dying declarations and "other
analogous situations"). In Mattox, for example,
we held that the testimony of a Government
witness at a former trial against the defendant,
where the witness was fully cross-examined but
had died after the first trial, was admissible in
evidence against the defendant at his second
trial. See 156 U.S. at 240-244. We explained:
"There is doubtless reason for
saying that . . . if notes of [the
witness'] testimony are permitted
to be read, [the defendant] is
deprived of the advantage of that
personal presence of the witness
before the jury which the law has
designed for his protection. But
general rules of law of this kind,
however beneficent in their
operation and valuable to the
accused, must occasionally give
way to considerations of public
policy and the necessities of the
case. To say that a criminal, after
having once been convicted by the
testimony of a certain witness,
should go scot free simply because
death has closed the mouth of that
witness, would be carrying his
constitutional protection to an
unwarrantable extent. 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." Id., at
243.
We have accordingly stated that a literal
reading of the Confrontation Clause would
"abrogate virtually every hearsay exception, a

result long rejected as unintended and too
extreme." Roberts, 448 U.S. at 63. Thus, in
certain narrow circumstances, "competing
interests, if 'closely examined,' may warrant
dispensing with confrontation at trial." Id., at
64 (quoting Chambers v. Mississippi, 410 U.S.
284, 295, 35 L. Ed. 2d 297, 93 S. Ct. 1038
(1973), and citing Mattox, supra). We have
recently held, [*849] for example, that
hearsay statements of nontestifying co-
conspirators may be admitted against a
defendant despite the lack of any face-to-face
encounter with the accused. See Bourjaily v.
United States, 483 U.S. 171, 97 L. Ed. 2d 144,
107 S. Ct. 2775 (1987); United States v. Inadi,
475 U.S. 387, 89 L. Ed. 2d 390, 106 S. Ct. 1121
(1986). Given our hearsay cases, the word
"confronted," as used in the Confrontation
Clause, cannot simply mean face-to-face
confrontation, for the Clause would then,
contrary to our cases, prohibit [***681] the
admission of any accusatory hearsay statement
made by an absent declarant -- a declarant who
is undoubtedly as much a "witness against" a
defendant as one who actually testifies at trial.
[***LEdHR1C] [1C] [***LEdHR5B] [5B]In
sum, our precedents establish that "the
Confrontation Clause reflects a preference for
face-to-face confrontation at trial," Roberts,
supra, at 63 (emphasis added; footnote
omitted), a preference that "must occasionally
give way to considerations of public policy and
the necessities of the case," Mattox, supra, at
243."We have attempted to harmonize the goal
of the Clause -- placing limits on the kind of
evidence that may be received against a
defendant -- with a societal interest in accurate
factfinding, which may require consideration of
out-of-court statements." Bourjaily, supra, at
182. We have accordingly interpreted the
Confrontation Clause in a manner sensitive to
its purposes and sensitive to the necessities of
trial and the adversary process. See, e. g.,
Kirby, 174 U.S. at 61 ("It is scarcely necessary
to say that to the rule that an accused is entitled
16 of 83
to be confronted with witnesses against him the
admission of dying declarations is an exception
which arises from the necessity of the case");
Chambers, supra, at 295 ("Of course, the right
to confront and to cross-examine is not absolute
and may, in appropriate cases, bow to
accommodate other legitimate interests in the
criminal trial process"). Thus, though we
reaffirm the importance of face-to-face
confrontation with witnesses [**3166]
appearing at trial, we cannot say that such
confrontation is an indispensable element of the
Sixth Amendment's guarantee [*850] of the
right to confront one's accusers. Indeed, one
commentator has noted that "it is all but
universally assumed that there are
circumstances that excuse compliance with the
right of confrontation." Graham, The Right of
Confrontation and the Hearsay Rule: Sir Walter
Raleigh Loses Another One, 8 Crim. L. Bull.
99, 107-108 (1972).
[***LEdHR1D] [1D]This interpretation of the
Confrontation Clause is consistent with our
cases holding that other Sixth Amendment
rights must also be interpreted in the context of
the necessities of trial and the adversary
process. See, e. g., Illinois v. Allen, 397 U.S.
337, 342-343, 25 L. Ed. 2d 353, 90 S. Ct. 1057
(1970) (right to be present at trial not violated
where trial judge removed defendant for
disruptive behavior); Ritchie, 480 U.S. at 51-54
(plurality opinion) (right to cross-examination
not violated where State denied defendant
access to investigative files); Taylor v. Illinois,
484 U.S. 400, 410-416, 98 L. Ed. 2d 798, 108
S. Ct. 646 (1988) (right to compulsory process
not violated where trial judge precluded
testimony of a surprise defense witness); Perry
v. Leeke, 488 U.S. 272, 280-285, 102 L. Ed. 2d
624, 109 S. Ct. 594 (1989) (right to effective
assistance of counsel not violated where trial
judge prevented testifying defendant from
conferring with counsel during a short break in
testimony). We see no reason to treat the face-
to-face component of the confrontation right

any differently, and indeed we think it would
be anomalous to do so.
[***LEdHR5C] [5C]That the face-to-face
confrontation [***682] requirement is not
absolute does not, of course, mean that it may
easily be dispensed with. As we suggested in
Coy, our precedents confirm that a defendant's
right to confront accusatory witnesses may be
satisfied absent a physical, face-to-face
confrontation at trial only where denial of such
confrontation is necessary to further an
important public policy and only where the
reliability of the testimony is otherwise assured.
See 487 U.S. at 1021 (citing Roberts, supra,
448 U.S. at 64;Chambers, supra, at 295);Coy,
supra, 487 U.S. at 1025 (O'CONNOR, J.,
concurring).
[*851] III
[***LEdHR1E] [1E]Maryland's statutory
procedure, when invoked, prevents a child
witness from seeing the defendant as he or she
testifies against the defendant at trial. We find
it significant, however, that Maryland's
procedure preserves all of the other elements of
the confrontation right: The child witness must
be competent to testify and must testify under
oath; the defendant retains full opportunity for
contemporaneous cross-examination; and the
judge, jury, and defendant are able to view
(albeit by video monitor) the demeanor (and
body) of the witness as he or she testifies.
Although we are mindful of the many subtle
effects face-to-face confrontation may have on
an adversary criminal proceeding, the presence
of these other elements of confrontation -- oath,
cross-examination, and observation of the
witness' demeanor -- adequately ensures that
the testimony is both reliable and subject to
rigorous adversarial testing in a manner
functionally equivalent to that accorded live,
in-person testimony. These safeguards of
reliability and adversariness render the use of
such a procedure a far cry from the undisputed
prohibition of the Confrontation Clause: trial
17 of 83
by ex parte affidavit or inquisition, see Mattox,
156 U.S. at 242; see also Green, 399 U.S. at
179 (Harlan, J., concurring) ("The
Confrontation Clause was meant to
constitutionalize a barrier against flagrant
abuses, trials by anonymous accusers, and
absentee witnesses"). Rather, we think these
elements of effective confrontation not only
permit a defendant to "confound and undo the
false accuser, or reveal the child coached by a
malevolent adult," Coy, supra, 487 U.S. at
1020, [**3167] but may well aid a defendant
in eliciting favorable testimony from the child
witness. Indeed, to the extent the child witness'
testimony may be said to be technically given
out of court (though we do not so hold), these
assurances of reliability and adversariness are
far greater than those required for admission of
hearsay testimony under the Confrontation
Clause. See Roberts, [*852] 448 U.S. at 66.
We are therefore confident that use of the one-
way closed circuit television procedure, where
necessary to further an important state interest,
does not impinge upon the truth-seeking or
symbolic purposes of the Confrontation
Clause.
The critical inquiry in this case, therefore, is
whether use of the procedure is necessary to
further an important state interest. The State
contends that it has a substantial interest in
protecting children who [***683] are
allegedly victims of child abuse from the
trauma of testifying against the alleged
perpetrator and that its statutory procedure for
receiving testimony from such witnesses is
necessary to further that interest.
We have of course recognized that a State's
interest in "the protection of minor victims of
sex crimes from further trauma and
embarrassment" is a "compelling" one. Globe
Newspaper Co. v. Superior Court of Norfolk
County, 457 U.S. 596, 607, 73 L. Ed. 2d 248,
102 S. Ct. 2613 (1982); see also New York v.
Ferber, 458 U.S. 747, 756-757, 73 L. Ed. 2d
1113, 102 S. Ct. 3348 (1982); FCC v. Pacifica

Foundation, 438 U.S. 726, 749-750, 57 L. Ed.
2d 1073, 98 S. Ct. 3026 (1978); Ginsberg v.
New York, 390 U.S. 629, 640, 20 L. Ed. 2d 195,
88 S. Ct. 1274 (1968); Prince v. Massachusetts,
321 U.S. 158, 168, 88 L. Ed. 645, 64 S. Ct. 438
(1944). "We have sustained legislation aimed at
protecting the physical and emotional well-
being of youth even when the laws have
operated in the sensitive area of constitutionally
protected rights." Ferber, supra, at 757. In
Globe Newspaper, for example, we held that a
State's interest in the physical and
psychological well-being of a minor victim was
sufficiently weighty to justify depriving the
press and public of their constitutional right to
attend criminal trials, where the trial court
makes a case-specific finding that closure of
the trial is necessary to protect the welfare of
the minor. See 457 U.S. at 608-609. This Term,
in Osborne v. Ohio, 495 U.S. 103, 109 L. Ed.
2d 98, 110 S. Ct. 1691 (1990), we upheld a
state statute that proscribed the possession and
viewing of child pornography, reaffirming that
"'it is evident beyond the need for elaboration
that a State's interest in "safeguarding the
physical and [*853] psychological well-being
of a minor" is "compelling."'" Id., at 109
(quoting Ferber, supra, 458 U.S. at 756-757).
We likewise conclude today that a State's
interest in the physical and psychological well-
being of child abuse victims may be
sufficiently important to outweigh, at least in
some cases, a defendant's right to face his or
her accusers in court. That a significant
majority of States have enacted statutes to
protect child witnesses from the trauma of
giving testimony in child abuse cases attests to
the widespread belief in the importance of such
a public policy. See Coy, 487 U.S. at 1022-
1023 (O'CONNOR, J., concurring) ("Many
States have determined that a child victim may
suffer trauma from exposure to the harsh
atmosphere of the typical courtroom and have
undertaken to shield the child through a variety
of ameliorative measures"). Thirty-seven
States, for example, permit the use of
18 of 83
videotaped testimony of sexually abused
children; 2 24 States have authorized [***684]
the use of [**3168] one-way [*854] closed
circuit television testimony in child abuse
cases; 3 and 8 States authorize the use of a two-
way system in which the child witness is
permitted to see the courtroom and the
defendant on a video monitor and in which the
jury and judge are permitted to view the child
during the testimony. 4
2 See Ala. Code § 15-25-2 (Supp.
1989); Ariz. Rev. Stat. Ann. §§ 13-4251
and 4253(B), (C) (1989); Ark. Code Ann.
§ 16-44-203 (1987); Cal. Penal Code
Ann. § 1346 (West Supp. 1990); Colo.
Rev. Stat. §§ 18-3-413 and 18-6-401.3
(1986); Conn. Gen. Stat. § 54-86g
(1989); Del. Code Ann., Tit. 11, § 3511
(1987); Fla. Stat. § 92.53 (1989); Haw.
Rev. Stat., ch. 626, Rule Evid. 616
(1985); Ill. Rev. Stat., ch. 38, P106A-2
(1989); Ind. Code §§ 35-37-4-8(c), (d),
(f), (g) (1988); Iowa Code § 910A.14
(1987); Kan. Stat. Ann. § 38-1558
(1986); Ky. Rev. Stat. Ann. § 421.350(4)
(Baldwin Supp. 1989); Mass. Gen. Laws
§ 278:16D (Supp. 1990); Mich. Comp.
Laws Ann. § 600.2163a(5) (Supp. 1990);
Minn. Stat. § 595.02(4) (1988); Miss.
Code Ann. § 13-1-407 (Supp. 1989); Mo.
Rev. Stat. §§ 491.675-491.690 (1986);
Mont. Code Ann. §§ 46-15-401 to 46-15-
403 (1989); Neb. Rev. Stat. § 29-1926
(1989); Nev. Rev. Stat. § 174.227 (1989);
N. H. Rev. Stat. Ann. § 517:13-a (Supp.
1989); N. M. Stat. Ann. § 30-9-17 (1984);
Ohio Rev. Code Ann. §§ 2907.41(A), (B),
(D), (E) (1987); Okla. Stat., Tit. 22, §
753(c) (Supp. 1988); Ore. Rev. Stat. §
40.460(24) (1989); 42 Pa. Cons. Stat. §§
5982, 5984 (1988); R. I. Gen. Laws § 11-
37-13.2 (Supp. 1989); S. C. Code Ann. §
16-3-1530(G) (1985); S. D. Codified
Laws § 23A-12-9 (1988); Tenn. Code
Ann. §§ 24-7-116(d), (e), (f) (Supp.

1989); Tex. Code Crim. Proc. Ann., Art.
38.071, § 4 (Vernon Supp. 1990); Utah
Rule Crim. Proc. 15.5 (1990); Vt. Rule
Evid. 807(d) (Supp. 1989); Wis. Stat. §§
967.04(7) to (10) (1987-1988); Wyo.
Stat. § 7-11-408 (1987).
3 See Ala. Code § 15-25-3 (Supp.
1989); Alaska Stat. Ann. § 12.45.046
(Supp. 1989); Ariz. Rev. Stat. Ann. § 13-
4253 (1989); Conn. Gen. Stat. § 54-86g
(1989); Fla. Stat. § 92.54 (1989); Ga.
Code Ann. § 17-8-55 (Supp. 1989); Ill.
Rev. Stat., ch. 38, P106A-3 (1987); Ind.
Code § 35-37-4-8 (1988); Iowa Code §
910A-14 (Supp. 1990); Kan. Stat. Ann. §
38-1558 (1986); Ky. Rev. Stat. Ann. §§
421-350(1), (3) (Baldwin Supp. 1989);
La. Rev. Stat. Ann. § 15:283 (West Supp.
1990); Md. Cts. & Jud. Proc. Code Ann.
§ 9-102 (1989); Mass. Gen. Laws §
278:16D (Supp. 1990); Minn. Stat. §
595.02(4) (1988); Miss. Code Ann. § 13-
1-405 (Supp. 1989); N. J. Stat. Ann. §
2A:84A-32.4 (West Supp. 1989); Okla.
Stat., Tit. 22, § 753(b) (Supp. 1988); Ore.
Rev. Stat. § 40.460(24) (1989); 42 Pa.
Cons. Stat. §§ 5982, 5985 (1988); R. I.
Gen. Laws § 11-37-13.2 (Supp. 1989);
Tex. Code Crim. Proc. Ann., Art. 38.071,
§ 3 (Vernon Supp. 1990); Utah Rule
Crim. Proc. 15.5 (1990); Vt. Rule Evid.
807(d) (Supp. 1989).
4 See Cal. Penal Code Ann. § 1347
(West Supp. 1990); Haw. Rev. Stat., ch.
626, Rule Evid. 616 (1985); Idaho Code
§ 19-3024A (Supp. 1989); Minn. Stat. §
595.02(4)(c)(2) (1988); N. Y. Crim. Proc.
Law §§ 65.00 to 65.30 (McKinney Supp.
1990); Ohio Rev. Code Ann. §§
2907.41(C), (E) (1987); Va. Code Ann. §
18.2-67.9 (1988); Vt. Rule Evid. 807(e)
(Supp. 1989).
[***LEdHR6A] [6A] [***LEdHR7] [7]The
statute at issue in this case, for example, was
specifically intended "to safeguard the physical
19 of 83
and psychological well-being of child victims
by avoiding, or at least minimizing, the
emotional trauma produced by testifying."
Wildermuth v. State, 310 Md. 496, 518, 530
A.2d 275, 286 (1987). The Wildermuth court
noted:
"In Maryland, the Governor's
Task Force on Child Abuse in its
Interim Report (Nov. 1984)
documented the existence of the
[child abuse] problem in our State.
Interim Report at 1. It brought the
picture up to date in its Final
Report (Dec. 1985). In the first six
months of 1985, investigations of
child abuse were 12 percent more
numerous than during the same
period of 1984. In 1979 4,615
cases of child abuse were
investigated; in 1984, [*855]
8,321. Final Report at iii. In its
Interim Report at 2, the
Commission proposed legislation
that, with some changes, became §
9-102. The proposal was 'aimed at
alleviating the trauma to a child
victim in the courtroom
atmosphere by allowing the child's
testimony to be obtained outside of
the courtroom.' Id., at 2. This
would both protect the child and
enhance the public interest by
encouraging effective prosecution
of the alleged abuser." Id., at 517,
530 A.2d at 285.
Given the State's traditional and "'transcendent
interest in protecting the welfare of children,'"
Ginsberg, 390 U.S. at 640 (citation omitted),
and buttressed by the growing body of
academic literature documenting the [***685]
psychological trauma suffered by child abuse
victims who must testify in court, see Brief for
American Psychological Association as Amicus

Curiae 7-13; G. Goodman et al., Emotional
Effects of Criminal Court Testimony on Child
Sexual [**3169] Assault Victims, Final
Report to the National Institute of Justice
(presented as conference paper at annual
convention of American Psychological Assn.,
Aug. 1989), we will not second-guess the
considered judgment of the Maryland
Legislature regarding the importance of its
interest in protecting child abuse victims from
the emotional trauma of testifying.
Accordingly, we hold that, if the State makes
an adequate showing of necessity, the state
interest in protecting child witnesses from the
trauma of testifying in a child abuse case is
sufficiently important to justify the use of a
special procedure that permits a child witness
in such cases to testify at trial against a
defendant in the absence of face-to-face
confrontation with the defendant.
[***LEdHR1F] [1F] [***LEdHR6B] [6B]
[***LEdHR8] [8]The requisite finding of
necessity must of course be a case-specific one:
The trial court must hear evidence and
determine whether use of the one-way closed
circuit television procedure is necessary to
protect the welfare of the particular child
witness who seeks to testify. See Globe
Newspaper Co., 457 U.S. at 608-609
(compelling interest in protecting [*856] child
victims does not justify a mandatory trial
closure rule); Coy, 487 U.S. at 1021; id., at
1025 (O'CONNOR, J., concurring); see also
Hochheiser v. Superior Court, 161 Cal. App. 3d
777, 793, 208 Cal. Rptr. 273, 283 (1984). The
trial court must also find that the child witness
would be traumatized, not by the courtroom
generally, but by the presence of the defendant.
See, e. g., State v. Wilhite, 160 Ariz. 228, 772
P.2d 582 (1989); State v. Bonello, 210 Conn.
51, 554 A.2d 277 (1989); State v. Davidson,
764 S.W.2d 731 (Mo. App. 1989);
Commonwealth v. Ludwig, 366 Pa. Super. 361,
531 A.2d 459 (1987). Denial of face-to-face
confrontation is not needed to further the state
20 of 83
interest in protecting the child witness from
trauma unless it is the presence of the
defendant that causes the trauma. In other
words, if the state interest were merely the
interest in protecting child witnesses from
courtroom trauma generally, denial of face-to-
face confrontation would be unnecessary
because the child could be permitted to testify
in less intimidating surroundings, albeit with
the defendant present. Finally, the trial court
must find that the emotional distress suffered
by the child witness in the presence of the
defendant is more than de minimis, i. e., more
than "mere nervousness or excitement or some
reluctance to testify," Wildermuth, supra, at
524, 530 A.2d at 289; see also State v.
Mannion, 19 Utah 505, 511-512, 57 P. 542,
543-544 (1899). We need not decide the
minimum showing of emotional trauma
required for use of the special procedure,
however, because the Maryland statute, which
requires a determination that the child witness
will suffer "serious emotional distress such that
the child cannot reasonably communicate," § 9-
102(a)(1)(ii), clearly suffices to meet
constitutional standards.
[***LEdHR1G] [1G]To be sure, face-to-face
confrontation may be said to cause trauma for
the very purpose of eliciting truth, cf. Coy,
supra, 487 U.S. at 1019-1020, [***686] but
we think that the use of Maryland's special
procedure, where necessary to further the
important state interest in preventing trauma to
child witnesses in child [*857] abuse cases,
adequately ensures the accuracy of the
testimony and preserves the adversary nature of
the trial. See supra, at 851-852. Indeed, where
face-to-face confrontation causes significant
emotional distress in a child witness, there is
evidence that such confrontation would in fact
disserve the Confrontation Clause's truth-
seeking goal. See, e. g., Coy, supra, 487 U.S. at
1032 (BLACKMUN, J., dissenting) (face-to-
face confrontation "may so overwhelm the
child as to prevent the possibility of effective

testimony, thereby undermining the truth-
finding function of the trial itself"); Brief for
American Psychological Association as Amicus
Curiae 18-24; State v. Sheppard, 197 N.J.
Super. 411, 416, 484 A.2d 1330, 1332 (1984);
Goodman & Helgeson, Child Sexual Assault:
Children's Memory and the Law, 40 [**3170]
U. Miami L. Rev. 181, 203-204 (1985); Note,
Videotaping Children's Testimony: An
Empirical View, 85 Mich. L. Rev. 809, 813-
820 (1987).
In sum, we conclude that where necessary
to protect a child witness from trauma that
would be caused by testifying in the physical
presence of the defendant, at least where such
trauma would impair the child's ability to
communicate, the Confrontation Clause does
not prohibit use of a procedure that, despite the
absence of face-to-face confrontation, ensures
the reliability of the evidence by subjecting it to
rigorous adversarial testing and thereby
preserves the essence of effective
confrontation. Because there is no dispute that
the child witnesses in this case testified under
oath, were subject to full cross-examination,
and were able to be observed by the judge, jury,
and defendant as they testified, we conclude
that, to the extent that a proper finding of
necessity has been made, the admission of such
testimony would be consonant with the
Confrontation Clause.
IV
The Maryland Court of Appeals held, as we
do today, that although face-to-face
confrontation is not an absolute constitutional
requirement, it may be abridged only where
there [*858] is a "'case-specific finding of
necessity.'" 316 Md. at 564, 560 A.2d at 1126
(quoting Coy, supra, 487 U.S. at 1025
(O'CONNOR, J., concurring)). Given this
latter requirement, the Court of Appeals
reasoned that "the question of whether a child
is unavailable to testify . . . should not be asked
in terms of inability to testify in the ordinary
courtroom setting, but in the much narrower
21 of 83
terms of the witness's inability to testify in the
presence of the accused." 316 Md. at 564, 560
A.2d at 1126 (footnote omitted). "The
determinative inquiry required to preclude face-
to-face confrontation is the effect of the
presence of the defendant on the witness or the
witness's testimony." Id., at 565, 560 A.2d at
1127. The Court of Appeals accordingly
concluded that, as a prerequisite to use of the §
9-102 procedure, the Confrontation Clause
requires the trial court to make a specific
finding that testimony by the child in the
courtroom in the presence of the defendant
would result in the child suffering serious
emotional distress such [***687] that the
child could not reasonably communicate. Id., at
566, 560 A.2d at 1127. This conclusion, of
course, is consistent with our holding today.
In addition, however, the Court of Appeals
interpreted our decision in Coy to impose two
subsidiary requirements. First, the court held
that "§ 9-102 ordinarily cannot be invoked
unless the child witness initially is questioned
(either in or outside the courtroom) in the
defendant's presence." Id., at 566, 560 A.2d at
1127; see also Wildermuth, 310 Md. at 523-
524, 530 A.2d at 289 (personal observation by
the judge should be the rule rather than the
exception). Second, the court asserted that,
before using the one-way television procedure,
a trial judge must determine whether a child
would suffer "severe emotional distress" if he
or she were to testify by two-way closed circuit
television. 316 Md. at 567, 560 A.2d at 1128.
Reviewing the evidence presented to the
trial court in support of the finding required
under § 9-102(a)(1)(ii), the Court of Appeals
determined that "the finding of necessity
required [*859] to limit the defendant's right
of confrontation through invocation of § 9-102
. . . was not made here." Id., at 570-571, 560
A.2d at 1129. The Court of Appeals noted that
the trial judge "had the benefit only of expert
testimony on the ability of the children to
communicate; he did not question any of the

children himself, nor did he observe any child's
behavior on the witness stand before making
his ruling. He did not explore any alternatives
to the use of one-way closed-circuit television."
Id., at 568, 560 A.2d at 1128 (footnote
omitted). The Court of Appeals also observed
that "the testimony in this case was not sharply
focused on the effect of the defendant's
presence [**3171] on the child witnesses."
Id., at 569, 560 A.2d at 1129. Thus, the Court
of Appeals concluded:
"Unable to supplement the expert
testimony by responses to
questions put by him, or by his
own observations of the children's
behavior in Craig's presence, the
judge made his § 9-102 finding in
terms of what the experts had said.
He ruled that 'the testimony of
each of these children in a
courtroom will [result] in each
child suffering serious emotional
distress . . . such that each of these
children cannot reasonably
communicate.' He failed to find --
indeed, on the evidence before
him, could not have found -- that
this result would be the product of
testimony in a courtroom in the
defendant's presence or outside the
courtroom but in the defendant's
televised presence. That, however,
is the finding of necessity required
to limit the defendant's right of
confrontation through invocation
of § 9-102. Since that finding was
not made here, and since the
procedures we deem requisite to
the valid use of § 9-102 were not
followed, the judgment of the
Court of Special Appeals must be
reversed and the case remanded for
a new trial." Id., at 570-571, 560
A.2d at 1129 (emphasis added).
22 of 83
[***LEdHR9] [9] [***LEdHR10] [10]The
Court of Appeals appears to have rested its
conclusion at least in part on the trial court's
failure to observe the children's behavior in the
defendant's presence and its failure to [*860]
explore less restrictive alternatives to the use of
the one-way closed circuit television procedure.
See id., at 568-571, 560 A.2d at 1128-1129.
Although we think [***688] such evidentiary
requirements could strengthen the grounds for
use of protective measures, we decline to
establish, as a matter of federal constitutional
law, any such categorical evidentiary
prerequisites for the use of the one-way
television procedure. The trial court in this
case, for example, could well have found, on
the basis of the expert testimony before it, that
testimony by the child witnesses in the
courtroom in the defendant's presence "will
result in [each] child suffering serious
emotional distress such that the child cannot
reasonably communicate," § 9-102(a)(1)(ii).
See id., at 568-569, 560 A.2d at 1128-1129; see
also App. 22-25, 39, 41, 43, 44-45, 54-57. So
long as a trial court makes such a case-specific
finding of necessity, the Confrontation Clause
does not prohibit a State from using a one-way
closed circuit television procedure for the
receipt of testimony by a child witness in a
child abuse case. Because the Court of Appeals
held that the trial court had not made the
requisite finding of necessity under its
interpretation of "the high threshold required by
[Coy] before § 9-102 may be invoked," 316
Md. at 554-555, 560 A.2d at 1121 (footnote
omitted), we cannot be certain whether the
Court of Appeals would reach the same
conclusion in light of the legal standard we
establish today. We therefore vacate the
judgment of the Court of Appeals of Maryland
and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered.
 23 of 83

LEXSEE 541 U.S. 36

MICHAEL D. CRAWFORD, Petitioner v. WASHINGTON

No. 02-9410

SUPREME COURT OF THE UNITED STATES

541 U.S. 36; 124 S. Ct. 1354; 158 L. Ed. 2d 177; 2004 U.S. LEXIS 1838;
72 U.S.L.W. 4229; 63 Fed. R. Evid. Serv. (Callaghan) 1077; 17 Fla. L.
Weekly Fed. S 181

November 10, 2003, Argued

March 8, 2004, Decided

PRIOR HISTORY: ON WRIT OF [*38] [**1356] Justice Scalia delivered

CERTIORARI TO THE SUPREME COURT
OF WASHINGTON.
State v. Crawford, 147 Wn.2d 424, 54 P.3d
656, 2002 Wash. LEXIS 598 (2002)
DISPOSITION: Reversed and remanded.
COUNSEL: Jeffrey L. Fisher argued the
cause for petitioner.
Michael R. Dreeben argued the cause for the
United States, as amicus curiae, by special
leave of court.
Steven C. Sherman argued the cause for
respondent.
JUDGES: Scalia, J., delivered the opinion of
the Court, in which Stevens, Kennedy, Souter,
Thomas, Ginsburg, and Breyer, JJ., joined.
Rehnquist, C. J., filed an opinion concurring
in the judgment, in which O'Connor, J.,
joined.
OPINION BY: SCALIA
OPINION
the opinion of the Court.
[***LEdHR1A] [1A] Petitioner Michael
Crawford stabbed a man who allegedly tried
to rape his wife, Sylvia. At his trial, the State
played for [**1357] 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 [***185]
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 [*39] 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.
24 of 83
"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?
[*40] "A. (pausing) um um
(no)." Id., at 137 (punctuation
added).
[***LEdHR2] [2] 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).
[**1358] 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 Wn. 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 [***186] 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,
65 L. Ed. 2d 597, 100 S. Ct. 2531 (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, 65 L. Ed. 2d
597, 100 S. Ct. 2531. 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 [*41]
refutes [petitioner's] claim of self-defense."
Tr. 468 (Oct. 21, 1999). The jury convicted
petitioner of assault.
25 of 83
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 Wn. 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, [***187] if ever,
Lee possessed a weapon. In this
respect they overlap.
[**1359] [*42] "[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). 1
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.
We granted certiorari to determine
whether the State's use of Sylvia's statement
violated the Confrontation Clause. 540 U.S.
964, 157 L. Ed. 2d 309, 124 S. Ct. 460 (2003).
II
26 of 83
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, 13 L. Ed. 2d 923, 85 S. Ct.
1065 (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, 13 L. Ed. 2d
923, 85 S. Ct. 1065. 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 [*43]
mean those who actually testify at trial, cf.
Woodsides v. State, 3 Miss. 655, 664-665, 1
Morr. St. Cas. 95 (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 ____ - ____, 158 L.
Ed. 2d, at 192-193. 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, 101 L. Ed.
2d 857, 108 S. Ct. 2798 (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
 27 of 83

trials. The common-law tradition is one of trials of the 16th and 17th centuries. One
live testimony in court subject to adversarial such was the 1603 trial of Sir Walter Raleigh
testing, while the civil law condones for treason. Lord Cobham, Raleigh's alleged
examination in private by judicial officers. accomplice, had implicated him in an
See 3 W. Blackstone, Commentaries on the examination before the Privy Council and in a
Laws of England 373-374 (1768). letter. At Raleigh's trial, these were read to
the jury. Raleigh argued that Cobham had
[***188] Nonetheless, England at times
lied to save himself: "Cobham is absolutely in
adopted elements of the civil-law practice.
the King's mercy; to excuse me cannot avail
Justices of the peace or other officials
him; by accusing me he may hope for favour."
examined suspects and witnesses before trial.
1 D. Jardine, Criminal Trials 435 (1832).
These examinations were sometimes read in
Suspecting that Cobham would recant,
court in lieu of live testimony, a practice that
Raleigh demanded that the judges call him to
"occasioned frequent demands by the prisoner
to have his 'accusers,' i.e. the witnesses appear, arguing that "[t]he Proof of the
Common Law is by witness and jury: let
against him, brought before him face to face."
Cobham be here, let him speak it. Call my
1 J. Stephen, History of the [**1360]
accuser before my face . . . ." 2 How. St. Tr.,
Criminal Law of England 326 (1883). In
at 15-16. The judges refused, id., at 24, and,
some cases, these demands were refused. See
despite Raleigh's protestations that he was
9 W. Holdsworth, History of English Law
being tried "by the Spanish Inquisition," id., at
216-217, 228 (3d ed. 1944); e.g., Raleigh's
15, the jury convicted, and Raleigh was
Case, 2 How. St. Tr. 1, 15-16, 24 (1603);
sentenced to death.
Throckmorton's Case, 1 How. St. Tr. 869,
875-876 (1554); cf. Lilburn's Case, 3 How. One of Raleigh's trial judges later
St. Tr. 1315, 1318-1322, 1329 (Star Chamber lamented that "'the justice of England has
1637). never been so degraded and injured as by the
condemnation of Sir Walter Raleigh.'" 1
Pretrial examinations became routine
Jardine, supra, at 520. Through a series of
under two statutes passed during the reign of
statutory and judicial reforms, English law
Queen Mary in the 16th century, 1 & 2 Phil.
developed a right of confrontation that limited
& M., c. 13 (1554), and 2 & 3 id., c. 10
these abuses. For example, treason statutes
(1555). [*44] These Marian bail and
required witnesses to confront the accused
committal statutes required justices of the
"face to face" at his arraignment. E.g., 13
peace to examine suspects and witnesses in
Car. 2, c. 1, § 5 (1661); see 1 Hale, [*45]
felony cases and to certify the results to the
supra, at 306. Courts, meanwhile, developed
court. It is doubtful that the original purpose
relatively strict rules of unavailability,
of the examinations was to produce evidence
admitting examinations only if the witness
admissible at trial. See J. Langbein,
was demonstrably unable to testify in person.
Prosecuting Crime in the Renaissance 21-34
See Lord Morley's Case, 6 How. St. Tr. 769,
(1974). Whatever the original purpose,
770-771 (H. L. 1666); 2 Hale, supra, at 284; 1
however, they came to be used as evidence in
Stephen, supra, at 358. Several authorities
some cases, see 2 M. Hale, Pleas of the
also stated that a suspect's confession
Crown 284 (1736), resulting in an adoption of
[***189] could be admitted only against
continental procedure. See 4 Holdsworth,
himself, and not against others he implicated.
supra, at 528-530.
See 2 W. Hawkins, Pleas of the Crown c. 46,
The most notorious instances of civil-law § 3, pp 603-604 (T. Leach 6th ed. 1787); 1
examination occurred in the great political 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 [**1361]
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 [*46] 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
28 of 83
(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,
146 L. Ed. 2d 577, 120 S. Ct. 1620 (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. [***190] 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); [*47]
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.). 2
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, 30 S.C.L. 124
(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.
[**1362] 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
29 of 83
before the Revolution, England gave
jurisdiction over Stamp Act offenses to the
admiralty courts, which followed civil-law
rather than common-law [*48] 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).
[***191] 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 [*49]
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 [**1363] 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, 30 S.C.L.
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
30 of 83
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 [*50] to the conviction of the accused, by
witnesses confronted by him, and subjected to
his personal examination." Ibid.
Many other decisions are to the [***192]
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, F. Cas. No. 15702
(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, 18 Pick. 434 (1837); State v. Hill, 20
S.C.L. 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
[***LEdHR3A] [3A] [***LEdHR4A]
[4A] This history supports two inferences
about the meaning of the Sixth Amendment.
A
[***LEdHR3B] [3B] [***LEdHR5A]
[5A] 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.
[**1364] 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 [*51] 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, 27
L. Ed. 2d 213, 91 S. Ct. 210 (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.
[***LEdHR5B] [5B] 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.
[***LEdHR3C] [3C] The text of the
Confrontation Clause reflects this focus. It
applies to "witnesses" against the accused--in
other words, those who "bear testimony." 2 N.
Webster, An American Dictionary of the
31 of 83
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
[***193] 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 . . . [*52] contained
in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or
confessions," White v. Illinois, 502 U.S. 346,
365, 116 L. Ed. 2d 848, 112 S. Ct. 736 (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, 30 S.C.L., at 130. Under the
Marian statutes, witnesses were typically put
on oath, but suspects [**1365] 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 ____, 158 L.Ed. 2d,
at 189. 3
3 These sources--especially Raleigh's
trial--refute the Chief Justice's
assertion, post, at ____, 158 L. Ed. 2d,
at 204-205 (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
____, n 1, 158 L. Ed. 2d, at 204, 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
32 of 83
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 ____, 158 L. Ed. 2d, at
204-205 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.
[*53] 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 [***194]
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.
[***LEdHR3D] [3D] [***LEdHR6A]
[6A] 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. 4
4 [***LEdHR6B] [6B] 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, 64 L. Ed. 2d 297, 100 S. Ct.

1682 (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.
B
[***LEdHR4B] [4B] The historical
record also supports a second proposition:
that the Framers would not have allowed
admission of testimonial [*54] 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,
39 L. Ed. 409, 15 S. Ct. 337 (1895); cf.
Houser, 26 Mo., at 433-435. As the English
authorities above reveal, [**1366] 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. 5
5 The Chief Justice claims that
English law's treatment of testimonial
statements was inconsistent at the time
of the framing, post, at ____ - ____,
158 L. Ed. 2d, at 205-206, but the
examples he cites relate to
33 of 83
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 ____, 158 L. Ed. 2d, at 189-
190. 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.
34 of 83
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 ____ - ____, 158 L. Ed. 2d, at
191-192; see also supra, at ____, n 2,
158 L. Ed. 2d, at 190 (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.).
[***LEdHR4C] [4C] [*55] We do not
read the historical sources to say that a prior
opportunity [***195] to cross-examine was
merely a sufficient, rather than a necessary,
condition for admissibility of [**1367]
testimonial statements. They suggest that this
requirement was dispositive, [*56] 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 ____, 158 L. Ed.
2d, at 206. 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 testimonial--for example,
business records [***196] 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, 144 L. Ed. 2d 117, 119 S. Ct. 1887

(1999) (plurality opinion) ("[A]ccomplices'
confessions that inculpate a criminal
defendant are not within a firmly rooted
exception to the hearsay rule"). 7
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, 39 L.
Ed. 409, 15 S. Ct. 337 (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, supra, 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.
7 [***LEdHR4D] [4D] 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 ____, 158 L. Ed. 2d, at 206-
207. 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
35 of 83
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.
[*57] IV
[***LEdHR4E] [4E] 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, 39 L. Ed. 409, 15 S. Ct. 337 (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, 39 L. Ed. 409, 15 S. Ct. 337.
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, 33 L. Ed. 2d 293, 92 S. Ct.
2308 (1972); California v. Green, 399 U.S.
149, 165-168, 26 L. Ed. 2d 489, 90 S. Ct.
1930 (1970); Pointer v. Texas, 380 U.S., at
406-408, 13 L. Ed. 2d 923, 85 S. Ct. 1065; cf.
Kirby v. United States, 174 U.S. 47, 55-61, 43
L. Ed. 890, 19 S. Ct. 574 (1899). Even where
the defendant had such an opportunity,
[**1368] we excluded the testimony where
the government had not established
unavailability of the witness. See Barber v.
Page, 390 U.S. 719, 722-725, 20 L. Ed. 2d
255, 88 S. Ct. 1318 (1968); cf. Motes v.
United States, 178 U.S. 458, 470-471, 44 L.
Ed. 1150, 20 S. Ct. 993 (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, 20 L. Ed. 2d 1100, 88 S. Ct.
1921 (1968) (per curiam); Bruton v. United
States, 391 U.S. 123, 126-128, 20 L. Ed. 2d
476, 88 S. Ct. 1620 (1968); Douglas v.
Alabama, 380 U.S. 415, 418-420, 13 L. Ed. 2d
934, 85 S. Ct. 1074 (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, 27 L. Ed. 2d213, 91 S. Ct. 210
(plurality opinion).
[*58] Even our recent cases, in their
outcomes, hew closely to the traditional line.
Ohio v. Roberts, 448 U.S., at 67-70, 65 L. Ed.
2d 597, 100 S. Ct. 2531, 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. [***197] United States, 483
U.S. 171, 181-184, 97 L. Ed. 2d 144, 107 S.
Ct. 2775 (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
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, 116 L.
Ed. 2d 848, 112 S. Ct. 736 (1992),
which involved, inter alia, statements
of a child victim to an investigating
police officer admitted as spontaneous
declarations. Id., at 349-35, 1116 L.
Ed. 2d 848, 112 S. Ct. 736. It is
questionable whether testimonial
statements would ever have been
admissible on that ground in 1791; to
the extent the hearsay exception for
36 of 83
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.
1693). 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, 116 L. Ed. 2d 848, 112 S. Ct.
736. 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,
116 L. Ed. 2d 848, 112 S. Ct. 736.
Lee v. Illinois, 476 U.S. 530, 90 L. Ed. 2d
514, 106 S. Ct. 2056 (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, 90 L. Ed. 2d 514, 106
S. Ct. 2056. Respondent argues that "[t]he
logical inference of this statement [*59] 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 [**1369] own
confession against him in a joint trial. See
Parker v. Randolph, 442 U.S. 62, 69-76, 60 L.
Ed. 2d 713, 99 S. Ct. 2132 (1979) (plurality
opinion), abrogated by Cruz v. New York, 481
U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714
(1987).
[***LEdHR4F] [4F] [***LEdHR7A]
[7A] 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
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, 39 L. Ed. 409, 15
S. Ct. 337 (1895), Kirby v. United
States, 174 U.S. 47, 43 L. Ed. 890, 19 S.
Ct. 574 (1899), and United States v.
Burr, 25 F. Cas. 187, F. Cas. No.
14694 (No. 14,694) (CC Va 1807)
(Marshall, C. J.). Post, at ____ - ____,
158 L. Ed. 2d, at 205-207. 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, 39 L. Ed.
409, 15 S. Ct. 337; Kirby, supra, at 55-
61, 43 L. Ed. 890, 19 S. Ct. 574. 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
37 of 83
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 ____, n 8, 158
L. Ed. 2d, at 197), 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.
[***LEdHR7B] [7B] 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, 26 L. Ed.
2d 489, 90 S. Ct. 1930 (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 ____, 158 L. Ed. 2d, at
206-207 (quoting United States v.
Inadi, 475 U.S. 387, 395, 89 L. Ed. 2d
390, 106 S. Ct. 1121 (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, 85 L. Ed. 2d
425, 105 S. Ct. 2078 (1985).)
[***198] [*60] 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, 65 L. Ed. 2d 597, 100 S. Ct.
2531. 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,
[**1370] 527 U.S., at 140-143, 144 L. Ed. 2d
117, 119 S. Ct 1887 (Breyer, J., concurring);
White, 502 U.S., at 366, 116 L. Ed. 2d 848,
112 S. Ct. 736 [*61] (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
38 of 83
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, 116 L.
Ed. 2d 848, 112 S. Ct. 736. Although our
analysis in this [***199] 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
[***LEdHR8A] [8A] 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 [*62] 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").
[***LEdHR9] [9] 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, 25 L. Ed.
244 (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 [**1371] 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.
[***LEdHR8B] [8B] 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.
[***200] B
The legacy of Roberts in other courts
vindicates the Framers' wisdom in rejecting a
general reliability exception. [*63] The
framework is so unpredictable that it fails to
39 of 83
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., 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, P13, 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, 144 L. Ed. 2d 117, 119 S. Ct. 1887, that
it was "highly unlikely" that [*64]
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, 2002 Ohio 7347, No. 2001-P-0060,
2002 WL 31895118, PP34-37, *6 (Ohio App.,
Dec. 31, 2002); Bintz, supra, PP7-14, 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,
246 Ill. Dec. 593 (2000); cf. Nowlin, supra, at
335-338, 579 S. E. 2d, at 371-372 (witness
confessed to a related crime); [**1372]
People v. Campbell, 309 Ill. App. 3d 423,
431-432, 721 N.E.2d 1225, 1230, 242 Ill.
Dec. 694 (1999) (same). One recent study
found that, after Lilly, appellate courts
admitted accomplice statements to the
authorities in 25 out of [***201] 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
40 of 83
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, PP15-22, 257 Wis. 2d, at 188-191,
[*65] 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 [*66] 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 [***202] 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. [**1373] 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.
[***LEdHR1B] [1B] 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
41 of 83
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 [*67] 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 [***203] 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, 153 L. Ed. 2d 556, 122 S. Ct. 2428
(2002) (Scalia, J., concurring). By replacing
categorical constitutional guarantees with
[*68] 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
[**1374] 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.
***
[***LEdHR1C] [1C] [***LEdHR10]
[10] 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
42 of 83
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.
10 We acknowledge the Chief
Justice's objection, post, at ____ - ____,
158 L. Ed. 2d, at 207-208, 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 ____ - ____, 158 L. Ed. 2d, at 200-
201, and cases cited. The difference is
that the Roberts test is inherently, and
therefore permanently, unpredictable.
[***LEdHR1D] [1D] 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 [*69]
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.
 53 of 83

LEXSEE 547 U.S. 813

ADRIAN MARTELL DAVIS, Petitioner v. WASHINGTON,

HERSHEL HAMMON, Petitioner v. INDIANA

(No. 05-5224), (No. 05-5705)

SUPREME COURT OF THE UNITED STATES

547 U.S. 813; 126 S. Ct. 2266; 165 L. Ed. 2d 224; 2006 U.S. LEXIS
4886; 74 U.S.L.W. 4356; 70 Fed. R. Evid. Serv. (Callaghan) 472; 30
A.L.R.6th 599; 19 Fla. L. Weekly Fed. S 299

March 20, 2006, Argued

June 19, 2006, Decided

NOTICE:
Thomas M. Fisher argued the cause for
The LEXIS pagination of this document is
respondent in No. 05-5705.
subject to change pending release of the final
published version.
Michael R. Dreeben argued the cause for the
United States, as amicus curiae, by special
SUBSEQUENT HISTORY: On remand at,
leave of court in No. 05-5224.
Remanded by Hammon v. State, 853 N.E.2d
477, 2006 Ind. LEXIS 793 (Ind., Sept. 7, 2006)
Irving L. Gornstein argued the cause for the
United States, as amicus curiae, by special
PRIOR HISTORY: ON WRIT OF
leave of court in No. 05-5705.
CERTIORARI TO THE SUPREME COURT
OF WASHINGTON. ON WRIT OF
JUDGES: Scalia, J., delivered the opinion of
CERTIORARI TO THE SUPREME COURT
the Court, in which Roberts, C. J., and Stevens,
OF INDIANA.
Kennedy, Souter, Ginsburg, Breyer, and Alito,
State v. Davis, 154 Wn.2d 291, 111 P.3d 844,
JJ., joined. Thomas, J., filed an opinion
2005 Wash. LEXIS 462 (2005)
concurring in the judgment in part and
Hammon v. State, 829 N.E.2d 444, 2005 Ind.
dissenting in part, post, p.834.
LEXIS 541 (Ind., 2005)
OPINION BY: SCALIA
DISPOSITION: Reversed and remanded.

COUNSEL: Jeffrey L. Fisher argued the OPINION

cause for petitioner in No. 05-5224.
Richard D. Friedman argued the cause for
petitioner in No. 05-5705.
James M. Whisman argued the cause for
respondent in No. 05-5224.
[*817] [**2270] Justice Scalia delivered
the opinion of the Court.
[***LEdHR1A] [1A] [***LEdHR2A]
[2A] [***LEdHR3A] [3A] [***LEdHR4A]
[4A] [***LEdHR5A] [5A] These cases require
us to determine when statements made to law
 44 of 83

enforcement personnel during a 911 call or at a [*818] "911 Operator: Listen

crime scene are "testimonial" and thus subject to me carefully. Do you know his
to the requirements of the Sixth Amendment's last name?
Confrontation Clause. "Complainant: It's Davis.
I "911 Operator: Davis? Okay,
A what's his first name?
The relevant statements in Davis v. "Complainant: Adran
Washington, No. 05-5224, were made to a 911 "911 Operator: What is it?
emergency operator on February 1, 2001.
When the operator answered the initial call, the "Complainant: Adrian.
connection terminated before anyone spoke. "911 Operator: Adrian?
She reversed the call, [**2271] and Michelle
McCottry answered. In the ensuing "Complainant: Yeah.
conversation, the operator ascertained that "911 Operator: Okay. What's
McCottry was involved in a domestic his middle initial?
disturbance with her former boyfriend Adrian
Davis, the petitioner in this case: "Complainant: Martell. He's
runnin' now." App. in No. 05-
"911 Operator: Hello. 5224, pp 8-9.

"Complainant: Hello.
"911 Operator: What's going As the conversation continued, the operator
on? learned that Davis had "just r[un] out the door"
"Complainant: He's here after hitting McCottry, and that he was leaving
jumpin' on me again. in a car with someone else. Id., at 9-10.
McCottry started talking, but the operator cut
"911 Operator: Okay. Listen to her off, saying, "Stop talking and answer my
me carefully. Are you in a house questions." Id., at 10. She then gathered more
or an apartment? information about Davis (including his
"Complainant: I'm in a house. birthday), and learned that Davis had told
McCottry that his purpose in coming to the
"911 Operator: Are there any house was "to get his stuff," since McCottry
weapons? was moving. Id., at [***235] 11-12.
"Complainant: No. He's usin' McCottry described the context of the assault,
his fists. id., at 12, after which the operator told her that
the police were on their way. "They're gonna
"911 Operator: Okay. Has he
check the area for him first," the operator said,
been drinking?
"and then they're gonna come talk to you." Id.,
"Complainant: No. at 12-13.
"911 Operator: Okay, sweetie. The police arrived within four minutes of
I've got help started. Stay on the the 911 call and observed McCottry's shaken
line with me, okay? state, the "fresh injuries on her forearm and her
"Complainant: I'm on the line. face," and her "frantic efforts to gather her
belongings and her children so that they could

leave the residence." 154 Wn. 2d 291, 296, 111
P. 3d 844, 847 (2005) (en banc).
The State charged Davis with felony
violation of a domestic no-contact order. "The
State's only witnesses were the two police
officers who responded to the 911 call. Both
officers testified that McCottry exhibited
injuries that appeared [*819] to be recent, but
neither officer could testify as to the cause of
the injuries." Ibid. McCottry presumably could
have testified as to whether Davis was her
assailant, but she did not appear. Over Davis's
objection, based on the Confrontation Clause of
the Sixth Amendment, the trial court admitted
the recording of her exchange with the 911
operator, and the jury convicted him. The
Washington Court of Appeals affirmed, 116
Wn. App. 81, 64 P. 3d 661 (2003). The
Supreme Court of Washington, with one
dissenting justice, also affirmed, concluding
that the portion of the 911 conversation in
which McCottry identified Davis was not
testimonial, and that if other portions of the
conversation were testimonial, [**2272]
admitting them was harmless beyond a
reasonable doubt. 154 Wn. 2d, at 305, 111 P.
3d, at 851. We granted certiorari. 546 U.S.
975, 126 S. Ct. 547, 163 L. Ed. 2d 458 (2005).
B
In Hammon v. Indiana, No. 05-5705, police
responded late on the night of February 26,
2003, to a "reported domestic disturbance" at
the home of Hershel and Amy Hammon. 829
N.E.2d 444, 446 (Ind. 2005). They found Amy
alone on the front porch, appearing "'somewhat
frightened,'" but she told them that "'nothing
was the matter,'" id., at 446, 447. She gave
them permission to enter the house, where an
officer saw "a gas heating unit in the corner of
the living room" that had "flames coming out
of the . . . partial glass front. There were pieces
of glass on the ground in front of it and there
was flame emitting from the front of the
heating unit." App. in No. 05-5705, p 16.
45 of 83
Hershel, meanwhile, was in the kitchen. He
told the police "that he and his wife had 'been
in an argument' but 'everything was fine now'
and the argument 'never became physical.'"
829 N. E. 2d, at 447. By this point Amy had
come back inside. One of the officers remained
with Hershel; the other went to the living room
to talk with Amy, and "again asked [her] what
had occurred." Ibid.; App. in No. 05-5705, at
17, 32. Hershel made several attempts to
[*820] participate in Amy's conversation with
the police, see id., at 32, but was rebuffed. The
officer later testified that Hershel "became
angry when I insisted that [he] stay separated
from Mrs. Hammon so that we can investigate
what had happened." Id., at 34. After hearing
Amy's account, the officer "had her fill out and
sign a battery affidavit." Id., at 18. Amy
handwrote the following: "Broke our Furnace
& shoved me down on the floor into the broken
glass. Hit me in the chest and threw me down.
Broke our lamps & phone. Tore up my van
where I couldn't leave [***236] the house.
Attacked my daughter." Id., at 2.
The State charged Hershel with domestic
battery and with violating his probation. Amy
was subpoenaed, but she did not appear at his
subsequent bench trial. The State called the
officer who had questioned Amy, and asked
him to recount what Amy told him and to
authenticate the affidavit. Hershel's counsel
repeatedly objected to the admission of this
evidence. See id., at 11, 12, 13, 17, 19, 20, 21.
At one point, after hearing the prosecutor
defend the affidavit because it was made
"under oath," defense counsel said, "That
doesn't give us the opportunity to cross
examine [the] person who allegedly drafted it.
Makes me mad." Id., at 19. Nonetheless, the
trial court admitted the affidavit as a "present
sense impression," id., at 20, and Amy's
statements as "excited utterances" that "are
expressly permitted in these kinds of cases even
if the declarant is not available to testify," id.,
at 40. The officer thus testified that Amy

"informed me that she and
Hershel had been in an argument.
That he became irrate [sic] over
the fact of their daughter going to a
boyfriend's house. The argument
became . . . physical after being
verbal and she informed me that
Mr. Hammon, during the verbal
part of the argument was breaking
things in the living room and I
believe she stated he broke the
phone, broke the lamp, broke the
front of the heater. When it
became physical he threw her
down into the glass of the heater.
***
[*821] "She informed me Mr.
Hammon had pushed her onto the
ground, had shoved her head into
the broken glass of the [**2273]
heater and that he had punched her
in the chest twice I believe." Id., at
17-18.
The trial judge found Hershel guilty on both
charges, id., at 40, and the Indiana Court of
Appeals affirmed in relevant part, 809 N.E.2d
945 (2004). The Indiana Supreme Court also
affirmed, concluding that Amy's statement was
admissible for state-law purposes as an excited
utterance, 829 N. E. 2d, at 449; that "a
'testimonial' statement is one given or taken in
significant part for purposes of preserving it for
potential future use in legal proceedings,"
where "the motivations of the questioner and
declarant are the central concerns," id., at 456,
457; and that Amy's oral statement was not
"testimonial" under these standards, id., at 458.
It also concluded that, although the affidavit
was testimonial and thus wrongly admitted, it
was harmless beyond a reasonable doubt,
largely because the trial was to the bench. Id.,
at 458-459. We granted certiorari. 546 U.S.
975, 126 S. Ct. 547, 163 L. Ed. 2d 458 (2005).
46 of 83
II
[***LEdHR1B] [1B] The Confrontation
Clause of the Sixth Amendment provides: "In
all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the
witnesses against him." In Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004), we held that
this provision bars "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." A critical portion of this
holding, and the portion central to resolution of
the two cases now [***237] before us, is the
phrase "testimonial statements." Only
statements of this sort cause the declarant to be
a "witness" within the meaning of the
Confrontation Clause. See id., at 51, 124 S. Ct.
1354, 158 L. Ed. 2d 177. It is the testimonial
character of the statement that separates it from
other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not
subject to the Confrontation Clause.
[*822] Our opinion in Crawford set forth
"[v]arious formulations" of the core class of
"'testimonial'" statements, ibid., but found it
unnecessary to endorse any of them, because
"some statements qualify under any definition,"
id., at 52, 124 S. Ct. 1354, 158 L. Ed. 2d 177.
Among those, we said, were "[s]tatements
taken by police officers in the course of
interrogations," ibid.; see also id., at 53, 124 S.
Ct. 1354, 158 L. Ed. 2d 177. The questioning
that generated the deponent's statement in
Crawford--which was made and recorded while
she was in police custody, after having been
given Miranda warnings as a possible suspect
herself--"qualifies under any conceivable
definition" of an "'interrogation,'" 541 U.S., at
53, n. 4, 124 S. Ct. 1354, 158 L. Ed. 2d 177.
We therefore did not define that term, except to
say that "[w]e use [it] . . . in its colloquial,
rather than any technical legal, sense," and that
"one can imagine various definitions . . ., and

we need not select among them in this case."
Ibid. The character of the statements in the
present cases is not as clear, and these cases
require us to determine more precisely which
police interrogations produce testimony.
[***LEdHR1C] [1C] [***LEdHR6A]
[6A] Without attempting to produce an
exhaustive classification of all conceivable
statements--or even all conceivable statements
in response to police interrogation--as either
testimonial or nontestimonial, it suffices to
decide the present cases to hold as follows:
Statements are nontestimonial when made in
the course of police interrogation under
circumstances objectively indicating that the
primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there is
no [**2274] such ongoing emergency, and that
the primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution. 1
1 [***LEdHR6B] [6B] Our holding
refers to interrogations because, as
explained below, the statements in the
cases presently before us are the products
of interrogations--which in some
circumstances tend to generate
testimonial responses. This is not to
imply, however, that statements made in
the absence of any interrogation are
necessarily nontestimonial. The Framers
were no more willing to exempt from
cross-examination volunteered testimony
or answers to open-ended questions than
they were to exempt answers to detailed
interrogation. (Part of the evidence
against Sir Walter Raleigh was a letter
from Lord Cobham that was plainly not
the result of sustained questioning.
Raleigh's Case, 2 How. St. Tr. 1, 27
(1603).) And of course even when
interrogation exists, it is in the final
analysis the declarant's statements, not
47 of 83
the interrogator's questions, that the
Confrontation Clause requires us to
evaluate.
III
A
[*823] [***LEdHR2B] [2B]
[***LEdHR3B] [3B] In Crawford, it sufficed
for resolution of the case before us to determine
that "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." Id., at 53, [***238] 124 S. Ct. 1354,
158 L. Ed. 2d 177. Moreover, as we have just
described, the facts of that case spared us the
need to define what we meant by
"interrogations." The Davis case today does not
permit us this luxury of indecision. The
inquiries of a police operator in the course of a
911 call 2 are an interrogation in one sense, but
not in a sense that "qualifies under any
conceivable definition." We must decide,
therefore, whether the Confrontation Clause
applies only to testimonial hearsay; and, if so,
whether the recording of a 911 call qualifies.
2 [***LEdHR3C] [3C] If 911 operators
are not themselves law enforcement
officers, they may at least be agents of
law enforcement when they conduct
interrogations of 911 callers. For
purposes of this opinion (and without
deciding the point), we consider their
acts to be acts of the police. As in
Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), therefore, our holding today
makes it unnecessary to consider whether
and when statements made to someone
other than law enforcement personnel are
"testimonial."
[***LEdHR2C] [2C] The answer to the
first question was suggested in Crawford, even
if not explicitly held:

"The text of the Confrontation
Clause reflects this focus [on
testimonial hearsay]. It applies to
'witnesses' against the accused--in
other words, those who 'bear
testimony.' 1 N. Webster, An
American Dictionary of [*824]
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." 541 U.S., at 51, 124 S. Ct.
1354, 158 L. Ed. 2d 177.
A limitation so clearly reflected in the text
of the constitutional provision must fairly be
said to mark out not merely its "core," but its
perimeter.
We are not aware of any early American
case invoking the Confrontation Clause or the
common-law right to confrontation that did not
clearly involve testimony as thus defined. 3
Well into the 20th century, our [**2275] own
Confrontation Clause jurisprudence was
carefully applied only in the testimonial
context. See, e.g., Reynolds v. United States,
98 U.S. 145, 158, [*825] 25 L. Ed. 244 (1879)
(testimony at prior trial was subject to the
Confrontation Clause, but petitioner had
forfeited that right by procuring witness's
absence); Mattox v. United States, 156 U.S.
237, 240-244, [***239] 15 S. Ct. 337, 39 L.
Ed. 409 (1895) (prior trial testimony of
deceased witnesses admitted because subject to
cross-examination); Kirby v. United States, 174
U.S. 47, 55-56, 19 S. Ct. 574, 43 L. Ed. 890
(1899) (guilty pleas and jury conviction of
48 of 83
others could not be admitted to show that
property defendant received from them was
stolen); Motes v. United States, 178 U.S. 458,
467, 470-471, 20 S. Ct. 993, 44 L. Ed. 1150
(1900) (written deposition subject to cross-
examination was not admissible because
witness was available); Dowdell v. United
States, 221 U.S. 325, 330-331, 31 S. Ct. 590, 55
L. Ed. 753 (1911) (facts regarding conduct of
prior trial certified to by the judge, the clerk of
court, and the official reporter did not relate to
defendants' guilt or innocence and hence were
not statements of "witnesses" under the
Confrontation Clause).
3 See, e.g., State v. Webb, 2 N. C. 103,
103-104 (Super. L. & Eq. 1794) (per
curiam) (excluding deposition taken in
absence of the accused); State v. Atkins, 1
Tenn. 229 (Super. L. & Eq. 1807) (per
curiam) (excluding prior testimony of
deceased witness); Johnston v. State, 10
Tenn. 58, 59 (Err. & App. 1821)
(admitting written deposition of deceased
deponent, because defendant had the
opportunity to cross-examine); Finn v.
Commonwealth, 26 Va. 701, 707-708
(1827) (excluding prior testimony of a
witness still alive, though outside the
jurisdiction); State v. Hill, 20 S. C. L.
607 (App. 1835) (excluding deposition of
deceased victim taken in absence of the
accused); Commonwealth v. Richards, 35
Mass. 434, 436-439, 18 Pick. 434 (1837)
(excluding preliminary examination
testimony of deceased witness because
the witness's precise words were not
available); Bostick v. State, 22 Tenn. 344
(1842) (admitting deposition of deceased
where defendant declined opportunity to
cross-examine); People v. Newman, 5
Hill 295 (N. Y. Sup. Ct. 1843) (per
curiam) (excluding prior trial testimony
of witness who was still alive); State v.
Campbell, 30 S. C. L. 124, 125 (App. L.
1844) (excluding deposition taken in

absence of the accused); State v.
Valentine, 29 N. C. 225 (1847) (per
curiam) (admitting preliminary
examination testimony of decedent
where defendant had opportunity to
cross-examine); Kendrick v. State, 29
Tenn. 479, 491 (1850) (admitting
testimony of deceased witness at
defendant's prior trial); State v. Houser,
26 Mo. 431, 439-441 (1858) (excluding
deposition of deponent who was still
alive).
Even our later cases, conforming to the
reasoning of Ohio v. Roberts, 448 U.S. 56, 100
S. Ct. 2531, 65 L. Ed. 2d 597 (1980), 4 never in
practice dispensed with the Confrontation
Clause requirements of unavailability and prior
cross-examination in cases that involved
testimonial hearsay, see Crawford, 541 U.S., at
57-59, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(citing cases), with one arguable exception, see
id., at 58, n. 8, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (discussing White v. Illinois, 502 U.S. 346,
112 S. Ct. 736, 116 L. Ed. 2d 848 (1992)).
Where our cases did dispense with those
requirements--even under the Roberts
approach--the statements at issue were clearly
nontestimonial. See, e.g., Bourjaily v. United
States, 483 U.S. 171, 181-184, 107 S. Ct. 2775,
97 L. Ed. 2d 144 (1987) (statements made
unwittingly to a Government informant);
Dutton v. Evans, 400 U.S. 74, 87-89, 91 S. Ct.
210, 27 L. Ed. 2d 213 (1970) (plurality opinion)
(statements from one prisoner to another).
4 "Roberts condition[ed] the
admissibility of all hearsay evidence on
whether it falls under a 'firmly rooted
hearsay exception' or bears
'particularized guarantees of
trustworthiness.'" Crawford, 541 U.S., at
60, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(quoting Roberts, 448 U.S., at 66, 100 S.
Ct. 2531, 65 L. Ed. 2d 597). We
overruled Roberts in Crawford by
49 of 83
restoring the unavailability and cross-
examination requirements.
Most of the American cases applying the
Confrontation Clause or its state constitutional
or common-law counterparts [*826] involved
testimonial statements of the most formal sort--
sworn testimony in prior judicial [**2276]
proceedings or formal depositions under oath--
which invites the argument that the scope of the
Clause is limited to that very formal category.
But the English cases that were the progenitors
of the Confrontation Clause did not limit the
exclusionary rule to prior court testimony and
formal depositions, see Crawford, supra, at 52,
124 S. Ct. 1354, 158 L. Ed. 2d 177. In any
event, we do not think it conceivable that the
protections of the Confrontation Clause can
readily be evaded by having a note-taking
policeman recite the unsworn hearsay
testimony of the declarant, instead of having
the declarant sign a deposition. Indeed, if there
is one point for which no case--English or early
American, state or federal--can be cited, that is
it.
[***LEdHR2D] [2D] [***LEdHR3D]
[3D] The question before us in Davis, then, is
whether, objectively considered, the
interrogation that took place in the course of
the 911 call produced testimonial statements.
When we said in Crawford, supra, at 53, 124 S.
Ct. 1354, 158 L. Ed. 2d 177, that
"interrogations by law enforcement officers fall
squarely within [***240] [the] class" of
testimonial hearsay, we had immediately in
mind (for that was the case before us)
interrogations solely directed at establishing the
facts of a past crime, in order to identify (or
provide evidence to convict) the perpetrator.
The product of such interrogation, whether
reduced to a writing signed by the declarant or
embedded in the memory (and perhaps notes)
of the interrogating officer, is testimonial. It is,
in the terms of the 1828 American dictionary
quoted in Crawford, "'[a] solemn declaration or
affirmation made for the purpose of

establishing or proving some fact.'" 541 U.S.,
at 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177. (The
solemnity of even an oral declaration of
relevant past fact to an investigating officer is
well enough established by the severe
consequences that can attend a deliberate
falsehood. See, e.g., United States v. Stewart,
433 F.3d 273, 288 (CA2 2006) (false
statements made to federal investigators violate
18 U.S.C. § 1001); State v. Reed, 2005 WI 53,
P30, [*827] 280 Wis. 2d 68, 85, 695 N.W.2d
315, 323 (state criminal offense to "knowingly
giv[e] false information to [an] officer with
[the] intent to mislead the officer in the
performance of his or her duty").) A 911 call,
on the other hand, and at least the initial
interrogation conducted in connection with a
911 call, is ordinarily not designed primarily to
"establis[h] or prov[e]" some past fact, but to
describe current circumstances requiring police
assistance.
[***LEdHR3E] [3E] The difference
between the interrogation in Davis and the one
in Crawford is apparent on the face of things.
In Davis, McCottry was speaking about events
as they were actually happening, rather than
"describ[ing] past events," Lilly v. Virginia, 527
U.S. 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d
117 (1999) (plurality opinion). Sylvia
Crawford's interrogation, on the other hand,
took place hours after the events she described
had occurred. Moreover, any reasonable
listener would recognize that McCottry (unlike
Sylvia Crawford) was facing an ongoing
emergency. Although one might call 911 to
provide a narrative report of a crime absent any
imminent danger, McCottry's call was plainly a
call for help against a bona fide physical threat.
Third, the nature of what was asked and
answered in Davis, again viewed objectively,
was such that the elicited statements were
necessary to be able to resolve the present
emergency, rather than simply to learn (as in
Crawford) what had happened in the past. That
is true even of the operator's effort to establish
the identity of the assailant, so that the
50 of 83
dispatched officers might know whether they
would be encountering a violent felon. See,
e.g., Hiibel v. Sixth Judicial Dist. Court of
Nev., Humboldt Cty., 542 U.S. 177, 186, 124 S.
Ct. 2451, 159 L. Ed. 2d 292 (2004). And
finally, the difference in the [**2277] level of
formality between the two interviews is
striking. Crawford was responding calmly, at
the station house, to a series of questions, with
the officer-interrogator taping and making
notes of her answers; McCottry's frantic
answers were provided over the phone, in an
environment that was not tranquil, or even (as
far as any reasonable 911 operator could make
out) safe.
[*828] We conclude from all this that the
circumstances of McCottry's interrogation
objectively indicate its primary purpose was to
enable police assistance to meet an ongoing
emergency. She simply was not acting as a
witness; she was not testifying. What she said
was not "a weaker substitute for [***241] live
testimony" at trial, United States v. Inadi, 475
U.S. 387, 394, 106 S. Ct. 1121, 89 L. Ed. 2d
390 (1986), like Lord Cobham's statements in
Raleigh's Case, 2 How. St. Tr. 1 (1603), or
Jane Dingler's ex parte statements against her
husband in King v. Dingler, 2 Leach 561, 168
Eng. Rep. 383 (1791), or Sylvia Crawford's
statement in Crawford. In each of those cases,
the ex parte actors and the evidentiary products
of the ex parte communication aligned
perfectly with their courtroom analogues.
McCottry's emergency statement does not. No
"witness" goes into court to proclaim an
emergency and seek help.
Davis seeks to cast McCottry in the
unlikely role of a witness by pointing to
English cases. None of them involves
statements made during an ongoing emergency.
In King v. Brasier, 1 Leach 199, 168 Eng. Rep.
202 (1779), for example, a young rape victim,
"immediately on her coming home, told all the
circumstances of the injury" to her mother. Id.,
at 200, 168 Eng. Rep., at 202. The case would

be helpful to Davis if the relevant statement
had been the girl's screams for aid as she was
being chased by her assailant. But by the time
the victim got home, her story was an account
of past events.
[***LEdHR3F] [3F] [***LEdHR7] [7]
[***LEdHR8] [8] This is not to say that a
conversation which begins as an interrogation
to determine the need for emergency assistance
cannot, as the Indiana Supreme Court put it,
"evolve into testimonial statements," 829 N. E.
2d, at 457, once that purpose has been
achieved. In this case, for example, after the
operator gained the information needed to
address the exigency of the moment, the
emergency appears to have ended (when Davis
drove away from the premises). The operator
then told McCottry to be quiet, and proceeded
to pose a battery of questions. It could readily
be maintained that, [*829] from that point on,
McCottry's statements were testimonial, not
unlike the "structured police questioning" that
occurred in Crawford, 541 U.S., at 53, n. 4, 124
S. Ct. 1354, 158 L. Ed. 2d 177. This presents
no great problem. Just as, for Fifth Amendment
purposes, "police officers can and will
distinguish almost instinctively between
questions necessary to secure their own safety
or the safety of the public and questions
designed solely to elicit testimonial evidence
from a suspect," New York v. Quarles, 467 U.S.
649, 658-659, 104 S. Ct. 2626, 81 L. Ed. 2d 550
(1984), trial courts will recognize the point at
which, for Sixth Amendment purposes,
statements in response to interrogations become
testimonial. Through in limine procedure, they
should redact or exclude the portions of any
statement that have become testimonial, as they
do, for example, with unduly prejudicial
portions of otherwise admissible evidence.
Davis's jury did not hear the complete 911 call,
although it may well have heard some
testimonial portions. We were asked to classify
only McCottry's early statements identifying
Davis as her assailant, and we agree with the
Washington Supreme Court that they were not
51 of 83
testimonial. That court [**2278] also
concluded that, even if later parts of the call
were testimonial, their admission was harmless
beyond a reasonable doubt. Davis does not
challenge that holding, and we therefore
assume it to be correct.
B
[***LEdHR4B] [4B] Determining the
testimonial or nontestimonial character of the
statements that were the product of the
interrogation in Hammon is a much [***242]
easier task, since they were not much different
from the statements we found to be testimonial
in Crawford. It is entirely clear from the
circumstances that the interrogation was part of
an investigation into possibly criminal past
conduct--as, indeed, the testifying officer
expressly acknowledged, App. in No. 05-5705,
at 25, 32, 34. There was no emergency in
progress; the interrogating officer testified that
he had heard no arguments or crashing and saw
no one throw or break anything, id., at 25.
When the [*830] officers first arrived, Amy
told them that things were fine, id., at 14, and
there was no immediate threat to her person.
When the officer questioned Amy for the
second time, and elicited the challenged
statements, he was not seeking to determine (as
in Davis) "what is happening," but rather "what
happened." Objectively viewed, the primary, if
not indeed the sole, purpose of the interrogation
was to investigate a possible crime--which is,
of course, precisely what the officer should
have done.
[***LEdHR2E] [2E] [***LEdHR4C] [4C]
[***LEdHR6C] [6C] [***LEdHR9A] [9A] It
is true that the Crawford interrogation was
more formal. It followed a Miranda warning,
was tape-recorded, and took place at the station
house, see 541 U.S., at 53, n. 4, 124 S. Ct.
1354, 158 L. Ed. 2d 177. While these features
certainly strengthened the statements'
testimonial aspect--made it more objectively
apparent, that is, that the purpose of the
exercise was to nail down the truth about past

criminal events--none was essential to the
point. It was formal enough that Amy's
interrogation was conducted in a separate room,
away from her husband (who tried to
intervene), with the officer receiving her replies
for use in his "investigat[ion]." App. in No. 05-
5705, at 34. What we called the "striking
resemblance" of the Crawford statement to
civil-law ex parte examinations, 541 U.S., at
52, 124 S. Ct. 1354, 158 L. Ed. 2d 177, is
shared by Amy's statement here. Both
declarants were actively separated from the
defendant--officers forcibly prevented Hershel
from participating in the interrogation. Both
statements deliberately recounted, in response
to police questioning, how potentially criminal
past events began and progressed. And both
took place some time after the events described
were over. Such statements under official
interrogation are an obvious substitute for live
testimony, because they do precisely what a
witness does on direct examination; they are
inherently testimonial. 5
5 [***LEdHR6D] [6D] The dissent
criticizes our test for being "neither
workable nor a targeted attempt to reach
the abuses forbidden by the
[Confrontation] Clause," post, at 842,
165 L. Ed. 2d, at 249 (Thomas, J.,
concurring in judgment in part and
dissenting in part). As to the former: We
have acknowledged that our holding is
not an "exhaustive classification of all
conceivable statements--or even all
conceivable statements in response to
police interrogation," supra, at 822, 165
L. Ed. 2d, at 237, but rather a resolution
of the cases before us and those like
them. For those cases, the test is
objective and quite "workable." The
dissent, in attempting to formulate an
exhaustive classification of its own, has
not provided anything that deserves the
description "workable"--unless one
thinks that the distinction between
52 of 83
"formal" and "informal" statements, see
post, at 836 - 838, 165 L. Ed. 2d, at 246-
247, qualifies. And the dissent even
qualifies that vague distinction by
acknowledging that the Confrontation
Clause "also reaches the use of
technically informal statements when
used to evade the formalized process,"
post, at 838, 165 L. Ed. 2d, at 247, and
cautioning that the Clause would stop the
State from "us[ing] out-of-court
statements as a means of circumventing
the literal right of confrontation," ibid., at
838, 165 L. Ed. 2d, at 247. It is hard to
see this as much more "predictable,"
ibid., than the rule we adopt for the
narrow situations we address. (Indeed,
under the dissent's approach it is
eminently arguable that the dissent
should agree, rather than disagree, with
our disposition in Hammon v. Indiana,
No. 05-5705.)
[***LEdHR2F] [2F]
[***LEdHR9B] [9B] As for the charge
that our holding is not a "targeted attempt
to reach the abuses forbidden by the
[Confrontation] Clause," post, at 842,
165 L. Ed. 2d, at 249, which the dissent
describes as the depositions taken by
Marian magistrates, characterized by a
high degree of formality, see post, at 835
- 836, 165 L. Ed. 2d, at 245-246: We do
not dispute that formality is indeed
essential to testimonial utterance. But we
no longer have examining Marian
magistrates; and we do have, as our 18th-
century forebears did not, examining
police officers, see L. Friedman, Crime
and Punishment in American History 67-
68 (1993)--who perform investigative
and testimonial functions once performed
by examining Marian magistrates, see J.
Langbein, The Origins of Adversary
Criminal Trial 41 (2003). It imports
sufficient formality, in our view, that lies
to such officers are criminal offenses.

Restricting the Confrontation Clause to
the precise forms against which it was
originally directed is a recipe for its
extinction. Cf. Kyllo v. United States,
533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed.
2d 94 (2001).
[*831] [***LEdHR3G] [3G]
[***LEdHR4D] [4D] [**2279] Both Indiana
and the United States as amicus curiae argue
[***243] that this case should be resolved
much like Davis. For the reasons we find the
comparison to Crawford compelling, we find
the comparison to Davis unpersuasive. The
statements in Davis were taken when McCottry
was alone, not only unprotected by police (as
Amy Hammon was protected), but apparently
in immediate danger from Davis. She was
seeking aid, not telling a story about the past.
McCottry's present-tense statements showed
immediacy; [*832] Amy's narrative of past
events was delivered at some remove in time
from the danger she described. And after Amy
answered the officer's questions, he had her
execute an affidavit, in order, he testified, "[t]o
establish events that have occurred previously."
App. in No. 05-5705, at 18.
[***LEdHR4E] [4E] [***LEdHR10] [10]
[***LEdHR11A] [11A] Although we
necessarily reject the Indiana Supreme Court's
implication that virtually any "initial inquiries"
at the crime scene will not be testimonial, see
829 N. E. 2d, at 453, 457, we do not hold the
opposite--that no questions at the scene will
yield nontestimonial answers. We have already
observed of domestic disputes that "[o]fficers
called to investigate . . . need to know whom
they are dealing with in order to assess the
situation, the threat to their own safety, and
possible danger to the potential victim."
Hiibel, 542 U.S., at 186, 124 S. Ct. 2451, 159
L. Ed. 2d 292. Such exigencies may often
mean that "initial inquiries" produce
nontestimonial statements. But in cases like
this one, where Amy's statements were neither
a cry for help nor the provision of information
53 of 83
enabling officers immediately to end a
threatening situation, the fact that they were
given at an alleged crime scene and were
"initial inquiries" is immaterial. Cf. Crawford,
supra, at 52, n. 3, 124 S. Ct. 1354, 158 L. Ed.
2d 177. 6
6 [***LEdHR11B] [11B] Police
investigations themselves are, of course,
in no way impugned by our
characterization of their fruits as
testimonial. Investigations of past crimes
prevent future harms and lead to
necessary arrests. While prosecutors
may hope that inculpatory
"nontestimonial" evidence is gathered,
this is essentially beyond police control.
Their saying that an emergency exists
cannot make it be so. The Confrontation
Clause in no way governs police
conduct, because it is the trial use of, not
the investigatory collection of, ex parte
testimonial statements which offends that
provision. But neither can police
conduct govern the Confrontation
Clause; testimonial statements are what
they are.
IV
[***LEdHR5B] [5B] [***LEdHR12] [12]
Respondents in both cases, joined by a number
of their amici, contend that the nature of the
offenses charged in these two cases--domestic
violence--requires greater flexibility in the use
of testimonial [***244] evidence. This
particular [*833] type of crime is [**2280]
notoriously susceptible to intimidation or
coercion of the victim to ensure that she does
not testify at trial. When this occurs, the
Confrontation Clause gives the criminal a
windfall. We may not, however, vitiate
constitutional guarantees when they have the
effect of allowing the guilty to go free. Cf.
Kyllo v. United States, 533 U.S. 27, 121 S. Ct.
2038, 150 L. Ed. 2d 94 (2001) (suppressing
evidence from an illegal search). But when

defendants seek to undermine the judicial
process by procuring or coercing silence from
witnesses and victims, the Sixth Amendment
does not require courts to acquiesce. While
defendants have no duty to assist the State in
proving their guilt, they do have the duty to
refrain from acting in ways that destroy the
integrity of the criminal-trial system. We
reiterate what we said in Crawford: that "the
rule of forfeiture by wrongdoing . . .
extinguishes confrontation claims on
essentially equitable grounds. " 541 U.S., at
62, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (citing
Reynolds, 98 U.S., at 158-159, 25 L. Ed. 244).
That is, one who obtains the absence of a
witness by wrongdoing forfeits the
constitutional right to confrontation.
We take no position on the standards
necessary to demonstrate such forfeiture, but
federal courts using Federal Rule of Evidence
804(b)(6), which codifies the forfeiture
doctrine, have generally held the Government
to the preponderance-of-the-evidence standard,
see, e.g., United States v. Scott, 284 F.3d 758,
762 (CA7 2002). State courts tend to follow
the same practice, see, e.g., Commonwealth v.
Edwards, 444 Mass. 526, 542, 830 N.E.2d 158,
172 (2005). Moreover, if a hearing on
forfeiture is required, Edwards, for instance,
observed that "hearsay evidence, including the
unavailable witness's out-of-court statements,
may be considered." Id., at 545, 830 N. E. 2d,
at 174. The Roberts approach to the
Confrontation Clause undoubtedly made
recourse to this doctrine less necessary, because
prosecutors could show the "reliability" of ex
54 of 83
parte statements more easily than they could
show the defendant's procurement of the
witness's absence. [*834] Crawford, in
overruling Roberts, did not destroy the ability
of courts to protect the integrity of their
proceedings.
[***LEdHR4F] [4F] [***LEdHR5C] [5C]
We have determined that, absent a finding of
forfeiture by wrongdoing, the Sixth Amendment
operates to exclude Amy Hammon's affidavit.
The Indiana courts may (if they are asked)
determine on remand whether such a claim of
forfeiture is properly raised and, if so, whether
it is meritorious.
***
We affirm the judgment of the Supreme
Court of Washington in No. 05-5224. We
reverse the judgment of the Supreme Court of
Indiana in No. 05-5705, and remand the case to
that court for proceedings not inconsistent with
this opinion.
It is so ordered.
 55 of 83

LEXSEE 128 S. CT. 2678

DWAYNE GILES, Petitioner v. CALIFORNIA

No. 07-6053

SUPREME COURT OF THE UNITED STATES

128 S. Ct. 2678; 171 L. Ed. 2d 488; 2008 U.S. LEXIS 5264; 76 U.S.L.W.
4568; 21 Fla. L. Weekly Fed. S 439

April 22, 2008, Argued

June 25, 2008, Decided

NOTICE:
The LEXIS pagination of this document is
subject to change pending release of the final
published version.
PRIOR HISTORY: [***1]
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF CALIFORNIA.
People v. Giles, 40 Cal. 4th 833, 55 Cal. Rptr.
3d 133, 152 P.3d 433, 2007 Cal. LEXIS 1913
(2007)
DISPOSITION: Vacated and remanded.
COUNSEL: Marilyn G. Burkhardt argued
the cause for petitioner.
Donald E. De Nicola argued the cause for
respondent
JUDGES: Scalia, J., delivered the opinion of
the Court, except as to Part II-D-2. Roberts, C.
J., and Thomas and Alito, JJ., joined that
opinion in full, and Souter and Ginsburg, JJ.,
joined as to all but Part II-D-2. Thomas, J., and
Alito, J., filed concurring opinions. Souter, J.,
filed an opinion concurring in part, in which
Ginsburg, J., joined. Breyer, J., filed a
dissenting opinion, in which Stevens and
Kennedy, JJ., joined.
OPINION BY: SCALIA
OPINION
[*2681] Justice Scalia delivered the
opinion of the Court, except as to Part II-D-2.
We consider whether a defendant forfeits
his Sixth Amendment right to confront a witness
against him when a judge determines that a
wrongful act by the defendant made the witness
unavailable to testify at trial.
I
On September 29, 2002, petitioner Dwayne
Giles shot his ex-girlfriend, [***5] Brenda
Avie, outside the garage of his grandmother's
house. No witness saw the shooting, but Giles'
niece heard what transpired from inside the
house. She heard Giles and Avie speaking in
conversational tones. Avie then yelled
"Granny" several times and a series of gunshots
sounded. Giles' niece and grandmother ran
outside and saw Giles standing near Avie with
a gun in his hand. Avie, who had not been
carrying a weapon, had been shot six times.
One wound was consistent with Avie's holding
her hand up at the time she was shot, another
was consistent with her having turned to her
side, and a third was consistent with her having
been shot while lying on the ground. Giles fled
the scene after the shooting. He was
apprehended by police about two weeks later
and charged with murder.

At trial, Giles testified that he had acted in
self-defense. Giles described Avie as jealous,
and said he knew that she had once shot a man,
that he had seen her threaten people with a
knife, and that she had vandalized his home and
car on prior occasions. He said that on the day
of the shooting, Avie came to his grandmother's
house and threatened to kill him and his new
girlfriend, who had been at the house earlier.
[***6] He said that Avie had also threatened to
kill his new girlfriend when Giles and Avie
spoke on the [**494] phone earlier that day.
Giles testified that after Avie threatened him at
the house, he went into the garage and retrieved
a gun, took the safety off, and started walking
toward the back door of the house. He said that
Avie charged at him, and that he was afraid she
had something in her hand. According to
Giles, he closed his eyes and fired several
shots, but did not intend to kill Avie.
Prosecutors sought to introduce statements
that Avie had made to a police officer
responding to a domestic-violence report about
three weeks before the shooting. Avie, who
was crying when she spoke, told the officer that
Giles had accused her of having an affair, and
that after the two began to argue, Giles grabbed
her by the shirt, lifted her off the floor, and
began to choke her. According [*2682] to
Avie, when she broke free and fell to the floor,
Giles punched her in the face and head, and
after she broke free again, he opened a folding
knife, held it about three feet away from her,
and threatened to kill her if he found her
cheating on him. Over Giles' objection, the
trial court admitted these statements into
[***7] evidence under a provision of California
law that permits admission of out-of-court
statements describing the infliction or threat of
physical injury on a declarant when the
declarant is unavailable to testify at trial and
the prior statements are deemed trustworthy.
Cal. Evid. Code Ann. § 1370 (West Supp.
2008).
56 of 83
A jury convicted Giles of first-degree
murder. He appealed. While his appeal was
pending, this Court decided in Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004), that the
Confrontation Clause requires that a defendant
have the opportunity to confront the witnesses
who give testimony against him, except in
cases where an exception to the confrontation
right was recognized at the time of the
founding. The California Court of Appeal held
that the admission of Avie's unconfronted
statements at Giles' trial did not violate the
Confrontation Clause as construed by
Crawford because Crawford recognized a
doctrine of forfeiture by wrongdoing. 123 Cal.
App. 4th 475, 19 Cal.Rptr. 3d 843, 847 (2004)
(officially depublished). It concluded that
Giles had forfeited his right to confront Avie
because he had committed the murder for
which he was on trial, and because his
intentional criminal act made Avie unavailable
[***8] to testify. The California Supreme
Court affirmed on the same ground. 40 Cal.
4th 833, 837, 55 Cal. Rptr. 3d 133, 152 P. 3d
433, 435 (2007). We granted certiorari. 552
U.S. , 128 S. Ct. 976, 169 L. Ed. 2d 800
(2008).
II
[**LEdHR1] [1] The Sixth Amendment
provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be
confronted with the witnesses against him."
The Amendment contemplates that a witness
who makes testimonial statements admitted
against a defendant will ordinarily be present at
trial for cross-examination, and that if the
witness is unavailable, his prior testimony will
be introduced only if the defendant had a prior
opportunity to cross-examine him. Crawford,
541 U.S., at 68, 124 S. Ct. 1354, 158 L. Ed. 2d
177. The State does not dispute here, and we
accept without deciding, that Avie's statements
accusing Giles of assault were testimonial. But
it maintains (as did the California Supreme

Court) that the Sixth Amendment did not
prohibit prosecutors from introducing [**495]
the statements because an exception to the
confrontation guarantee permits the use of a
witness's unconfronted testimony if a judge
finds, as the judge did in this case, that the
defendant committed a wrongful act that
rendered the witness unavailable to testify at
trial. We held in Crawford [***9] that
[**LEdHR2] [2] the Confrontation Clause 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." Id., at 54, 124 S. Ct. 1354, 158
L. Ed. 2d 177. We therefore ask whether the
theory of forfeiture by wrongdoing accepted by
the California Supreme Court is a founding-era
exception to the confrontation right.
A
[**LEdHR3] [3] We have previously
acknowledged that two forms of testimonial
statements were admitted at common law even
though they were unconfronted. See id., at 56,
n. 6, 62, 124 S. Ct. 1354, 158 L. Ed. 2d 177.
The first of these were declarations made by a
speaker who was both on the brink of death and
aware that he was dying. See, e.g., King v.
Woodcock, 1 Leach 500, 501-504, 168 Eng.
[*2683] Rep. 352, 353-354 (1789); State v.
Moody, 3 N. C. 31 (Super. L. & Eq. 1798);
United States v. Veitch, 28 F. Cas. 367, 367-
368, 1 Cranch C.C. 115, F. Cas. No. 16614
(No. 16,614) (CC DC 1803); King v.
Commonwealth, 4 Va. 78, 80-81 (Gen. Ct.
1817). Avie did not make the unconfronted
statements admitted at Giles' trial when she was
dying, so her statements do not fall within this
historic exception.
[**LEdHR4] [4] A second common-law
doctrine, which we will refer to as forfeiture by
wrongdoing, permitted the introduction of
statements of a witness who [***10] was
"detained" or "kept away" by the "means or
procurement" of the defendant. See, e.g., Lord
Morley's Case, 6 How. St. Tr. 769, 771 (H. L.
57 of 83
1666) ("detained"); Harrison's Case, 12 How.
St. Tr. 833, 851 (H. L. 1692) ("made him keep
away"); Queen v. Scaife, 117 Q. B. 238, 242,
117 Eng. Rep. 1271, 1273 (K. B. 1851) ("kept
away"); see also 2 W. Hawkins, Pleas of the
Crown 425 (4th ed. 1762) (hereinafter
Hawkins) (same); T. Peake, Compendium of
the Law of Evidence 62 (2d ed. 1804) ("sent"
away); 1 G. Gilbert, Law of Evidence 214
(1791) ("detained and kept back from
appearing by the means and procurement of the
prisoner"). The doctrine has roots in the 1666
decision in Lord Morley's Case, at which
judges concluded that a witness's having been
"detained by the means or procurement of the
prisoner," provided a basis to read testimony
previously given at a coroner's inquest. 6 How.
St. Tr., at 770-771. Courts and commentators
also concluded that wrongful procurement of a
witness's absence was among the grounds for
admission of statements made at bail and
committal hearings conducted under the Marian
statutes, which directed justices of the peace to
take the statements of felony suspects and
[***11] the persons bringing the suspects
before the magistrate, and to certify those
statements to the court, Crawford, supra, at 43-
44, 124 S. Ct. 1354, 158 L. Ed. 2d 177; J.
Langbein, Prosecuting Crime in the
Renaissance 10-12, 16-20 (1974). See 2
Hawkins 429. This class of confronted
statements was also admissible if the witness
who made them was dead or unable to travel.
Ibid.
[**LEdHR5] [5] The terms used to define
the scope of the forfeiture rule suggest that the
exception applied only when the defendant
engaged in conduct designed [**496] to
prevent the witness from testifying. The rule
required the witness to have been "kept back"
or "detained" by "means or procurement" of the
defendant. Although there are definitions of
"procure" and "procurement" that would
merely require that a defendant have caused the
witness's absence, other definitions would limit
the causality to one that was designed to bring

about the result "procured." See 2 N. Webster,
An American Dictionary of the English
Language (1828) (defining "procure" as "to
contrive and effect" (emphasis added)); ibid.
(defining "procure" as "to get; to gain; to
obtain; as by request, loan, effort, labor or
purchase"); 12 Oxford English Dictionary 559
(2d ed. 1989) (def. I(3)) (defining [***12]
"procure" as "[t]o contrive or devise with care
(an action or proceeding); to endeavour to
cause or bring about (mostly something evil) to
or for a person"). Similarly, while the term
"means" could sweep in all cases in which a
defendant caused a witness to fail to appear, it
can also connote that a defendant forfeits
confrontation rights when he uses an
intermediary for the purpose of making a
witness absent. See 9 id., at 516 ("[A] person
who intercedes for another or uses influence in
order to bring about a desired result"); N.
Webster, An American Dictionary of the
English Language 822 (1869) ("That through
which, or by the help of which, an end is
attained").
Cases and treatises of the time indicate that
a purpose-based definition of these [*2684]
terms governed. A number of them said that
prior testimony was admissible when a witness
was kept away by the defendant's "means and
contrivance." See 1 J. Chitty, A Practical
Treatise on the Criminal Law 81 (1816) ("kept
away by the means and contrivance of the
prisoner"); S. Phillipps, A Treatise on the Law
of Evidence 165 (1814) ("kept out of the way
by the means and contrivance of the prisoner");
Drayton v. Wells, 10 S. C. L. 409, 411 (S. C.
1819) [***13] ("kept away by the contrivance
of the opposite party"). This phrase requires
that the defendant have schemed to bring about
the absence from trial that he "contrived."
Contrivance is commonly defined as the act of
"inventing, devising or planning," 1 Webster,
supra, at 47, "ingeniously endeavoring the
accomplishment of anything," "the bringing to
pass by planning, scheming, or stratagem," or
"[a]daption of means to an end; design,
58 of 83
intention," 3 Oxford English Dictionary, supra,
at 850.1
1 The dissent asserts that a defendant
could have "contrived, i.e., devised or
planned . . . to murder a victim" without
the purpose of keeping the victim away
from trial. See post, at ____, 171 L. Ed.
2d, at 515 (opinion of Breyer, J.). But
that would not be contriving to keep the
witness away. The dissent further
suggests that these authorities are
irrelevant because "the relevant phrase"
in Lord Morley's Case itself is "'by
means or procurement'" of the defendant
and means "may, or may not, refer to an
absence that the defendant desired, as
compared to an absence that the
defendant caused." Post, at ____ - ____,
171 L. Ed. 2d, at 515-516 (emphasis
added). But the authorities we cited
resolve this ambiguity in favor of
purpose by substituting for the "means
[***14] or procurement" of Lord
Morley's Case either "contrivance" or
"means and contrivance." (Emphasis
added.)
An 1858 treatise made the purpose
requirement more explicit still, stating that the
forfeiture rule applied when a witness "had
been kept out of the way by the prisoner, or by
some one on the prisoner's behalf, in order to
prevent him from giving evidence against him."
E. Powell, The Practice of the Law of Evidence
166 (1st ed. 1858) (emphasis added). The
wrongful-procurement exception was invoked
in a manner consistent with this definition. We
are aware of no [**497] case in which the
exception was invoked although the defendant
had not engaged in conduct designed to prevent
a witness from testifying, such as offering a
bribe.
B
[**LEdHR6] [6] The manner in which the
rule was applied makes plain that unconfronted

testimony would not be admitted without a
showing that the defendant intended to prevent
a witness from testifying. In cases where the
evidence suggested that the defendant had
caused a person to be absent, but had not done
so to prevent the person from testifying--as in
the typical murder case involving accusatorial
statements by the victim--the testimony was
excluded unless it was confronted [***15] or
fell within the dying-declaration exception.
Prosecutors do not appear to have even argued
that the judge could admit the unconfronted
statements because the defendant committed
the murder for which he was on trial.
Consider King v. Woodcock. William
Woodcock was accused of killing his wife,
Silvia, who had been beaten and left near death.
A Magistrate took Silvia Woodcock's account
of the crime, under oath, and she died about 48
hours later. The judge stated that "[g]reat as a
crime of this nature must always appear to be,
yet the inquiry into it must proceed upon the
rules of evidence." 1 Leach, at 500, 168 Eng.
Rep., at 352. Aside from testimony given at
trial in the presence of the prisoner, the judge
said, there were "two other species which are
admitted by law: The one is the dying
declaration of a person [*2685] who has
received a fatal blow; the other is the
examination of a prisoner, and the depositions
of the witnesses who may be produced against
him" taken under the Marian bail and
committal statutes. Id., at 501, 168 Eng. Rep.,
at 352-353 (footnote omitted). Silvia
Woodcock's statement could not be admitted
pursuant to the Marian statutes because it was
unconfronted--the defendant [***16] had not
been brought before the examining Magistrate
and "the prisoner therefore had no opportunity
of contradicting the facts it contains." Id., at
502, 168 Eng. Rep., at 353. Thus, the
statements were admissible only if the witness
"apprehended that she was in such a state of
mortality as would inevitably oblige her soon to
answer before her Maker for the truth or
falsehood of her assertions." Id., at 503, 168
59 of 83
Eng. Rep., at 353-354 (footnote omitted).
Depending on the account one credits, the court
either instructed the jury to consider the
statements only if Woodcock was "in fact
under the apprehension of death," id., at 504,
168 Eng. Rep., at 354, or determined for itself
that Woodcock was "quietly resigned and
submitting to her fate" and admitted her
statements into evidence, 1 E. East, Pleas of the
Crown 356 (1803).
King v. Dingler, 2 Leach 561, 168 Eng.
Rep. 383 (1791), applied the same test to
exclude unconfronted statements by a murder
victim. George Dingler was charged with
killing his wife Jane, who suffered multiple
stab wounds that left her in the hospital for 12
days before she died. The day after the
stabbing, a Magistrate took Jane Dingler's
deposition--as in Woodcock, [***17] under
oath--"of the facts and circumstances which
had attended the outrage committed upon her."
2 Leach, at 561, 168 Eng. Rep., at 383. George
Dingler's attorney argued that the statements
did not qualify as dying declarations and were
not admissible Marian examinations because
they were not [**498] taken in the presence of
the prisoner, with the result that the defendant
did not "have, as he is entitled to have, the
benefit of cross-examination." Id., at 562, 168
Eng. Rep., at 384. The prosecutor agreed, but
argued the deposition should still be admitted
because "it was the best evidence that the
nature of the case would afford." Id., at 563,
168 Eng. Rep., at 384. Relying on Woodcock,
the court "refused to receive the examination
into evidence." Id., at 563, 168 Eng. Rep., at
384.
Many other cases excluded victims'
statements when there was insufficient
evidence that the witness was aware he was
about to die. See Thomas John's Case, 1 East
357, 358 (P. C. 1790); Welbourn's Case, 1 East
358, 360 (P. C. 1792); United States v. Woods,
28 F. Cas. 762, 763, F. Cas. No. 16760, 4 D.C.
484 (No. 16,760) (CC DC 1834); Lewis v.

State, 17 Miss. 115, 120, 1 Morr. St. Cas. 392
(1847); Montgomery v. State, 11 Ohio 424,
425-426 (1842); Nelson v. State, 26 Tenn. 542,
543 (1847); [***18] Smith v. State, 28 Tenn. 9,
23 (1848). Courts in all these cases did not
even consider admitting the statements on the
ground that the defendant's crime was to blame
for the witness's absence--even when the
evidence establishing that was overwhelming.
The reporter in Woodcock went out of his way
to comment on the strength of the case against
the defendant: "The evidence, independent of
the information or declarations of the deceased,
was of a very pressing and urgent nature
against the prisoner." 1 Leach, at 501, 168
Eng. Rep., at 352.
Similarly, in Smith v. State, supra, the
evidence that the defendant had caused the
victim's death included, but was not limited to,
the defendant's having obtained arsenic from a
local doctor a few days before his wife became
violently ill; the defendant's paramour
testifying at trial that the defendant admitted to
poisoning his wife; the defendant's having
asked a [*2686] physician "whether the
presence of arsenic could be discovered in the
human stomach a month after death"; and, the
answer to that inquiry apparently not having
been satisfactory, the defendant's having tried
to hire a person to burn down the building
containing his wife's body. Id., at 10-11.
[***19] If the State's reading of common law
were correct, the dying declarations in these
cases and others like them would have been
admissible.
Judges and prosecutors also failed to invoke
forfeiture as a sufficient basis to admit
unconfronted statements in the cases that did
apply the dying-declarations exception. This
failure, too, is striking. At a murder trial,
presenting evidence that the defendant was
responsible for the victim's death would have
been no more difficult than putting on the
government's case in chief. Yet prosecutors did
not attempt to obtain admission of dying
60 of 83
declarations on wrongful-procurement-of-
absence grounds before going to the often
considerable trouble of putting on evidence to
show that the crime victim had not believed he
could recover. See, e.g., King v.
Commonwealth, 4 Va., at 80-81 (three
witnesses called to testify on the point); Gibson
v. Commonwealth, 4 Va. 111, 116-117 (Gen.
Ct. 1817) (testimony elicited from doctor and
witness); Anthony v. State, 19 Tenn. 265, 278-
279 (1838) (doctor questioned about expected
fatality of victim's wound and about victim's
demeanor).
The State offers another explanation for the
above cases. It argues that when a defendant
[***20] committed some act of wrongdoing
that rendered a witness unavailable, he forfeited
his right to object to the witness's testimony
[**499] on confrontation grounds, but not on
hearsay grounds. See Brief for Respondent 23-
24. No case or treatise that we have found,
however, suggested that a defendant who
committed wrongdoing forfeited his
confrontation rights but not his hearsay rights.
And the distinction would have been a
surprising one, because courts prior to the
founding excluded hearsay evidence in large
part because it was unconfronted. See, e.g., 2
Hawkins 606 (6th ed. 1787); 2 M. Bacon, A
New Abridgment of the Law 313 (1736). As
the plurality said in Dutton v. Evans, 400 U.S.
74, 86, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970),
"[i]t seems apparent that the Sixth Amendment's
Confrontation Clause and the evidentiary
hearsay rule stem from the same roots."
The State and the dissent note that
common-law authorities justified the wrongful-
procurement rule by invoking the maxim that a
defendant should not be permitted to benefit
from his own wrong. See, e.g., G. Gilbert, Law
of Evidence 140-141 (1756) (if a witness was
"detained and kept back from appearing by the
means and procurement" testimony would be
read because a defendant [***21] "shall never
be admitted to shelter himself by such evil

Practices on the Witness, that being to give him
Advantage of his own Wrong"). But as the
evidence amply shows, the "wrong" and the
"evil Practices" to which these statements
referred was conduct designed to prevent a
witness from testifying. The absence of a
forfeiture rule covering this sort of conduct
would create an intolerable incentive for
defendants to bribe, intimidate, or even kill
witnesses against them. There is nothing
mysterious about courts' refusal to carry the
rationale further. [**LEdHR7] [7] The notion
that judges may strip the defendant of a right
that the Constitution deems essential to a fair
trial, on the basis of a prior judicial assessment
that the defendant is guilty as charged, does not
sit well with the right to trial by jury. It is akin,
one might say, to "dispensing with jury trial
because a defendant is obviously guilty."
Crawford, 541 U.S., at 62, 124 S. Ct. 1354, 158
L. Ed. 2d 177.
[*2687] C
[**LEdHR8] [8] Not only was the State's
proposed exception to the right of confrontation
plainly not an "exceptio[n] established at the
time of the founding," id., at 54, 124 S. Ct.
1354, 158 L. Ed. 2d 177; it is not established in
American jurisprudence since the founding.
American courts never--prior to 1985--invoked
[***22] forfeiture outside the context of
deliberate witness tampering.
This Court first addressed forfeiture in
Reynolds v. United States, 98 U.S. 145, 25 L.
Ed. 244 (1879), where, after hearing testimony
that suggested the defendant had kept his wife
away from home so that she could not be
subpoenaed to testify, the trial court permitted
the government to introduce testimony of the
defendant's wife from the defendant's prior
trial. See id., at 148-150, 25 L. Ed. 244. On
appeal, the Court held that admission of the
statements did not violate the right of the
defendant to confront witnesses at trial, because
when a witness is absent by the defendant's
"wrongful procurement," the defendant "is in
61 of 83
no condition to assert that his constitutional
rights have been violated" if "their evidence is
supplied in some lawful way." Id., at 158, 25
L. Ed. 244. Reynolds invoked broad forfeiture
principles to explain its holding. The decision
stated, for example, that "[t]he Constitution
[**500] does not guarantee an accused person
against the legitimate consequences of his own
wrongful acts," ibid., and that the wrongful-
procurement rule "has its foundation" in the
principle that no one should be permitted to
take advantage of his wrong, and is "the
outgrowth [***23] of a maxim based on the
principles of common honesty," id., at 159, 25
L. Ed. 244.
Reynolds relied on these maxims (as the
common-law authorities had done) to be sure.
But it relied on them (as the common-law
authorities had done) to admit prior testimony
in a case where the defendant had engaged in
wrongful conduct designed to prevent a
witness's testimony. The Court's opinion
indicated that it was adopting the common-law
rule. It cited leading common-law cases-- Lord
Morley's Case, Harrison's Case, and Scaife--
described itself as "content with" the "long-
established usage" of the forfeiture principle,
and admitted prior confronted statements under
circumstances where admissibility was open to
no doubt under Lord Morley's Case. Reynolds,
supra, at 158-159, 25 L. Ed. 244.
If the State's rule had an historical pedigree
in the common law or even in the 1879
decision in Reynolds, one would have expected
it to be routinely invoked in murder
prosecutions like the one here, in which the
victim's prior statements inculpated the
defendant. It was never invoked in this way.
The earliest case identified by the litigants
and amici curiae which admitted unconfronted
statements on a forfeiture theory without
evidence that the [***24] defendant had acted
with the purpose of preventing the witness from
testifying was decided in 1985. United States
v. Rouco, 765 F.2d 983 (CA11).

In 1997, this Court approved a Federal Rule
of Evidence, entitled "Forfeiture by
wrongdoing," which applies only when the
defendant "engaged or acquiesced in
wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a
witness." Fed. Rule of Evid. 804(b)(6). We
have described this as a rule "which codifies
the forfeiture doctrine." Davis v. Washington,
547 U.S. 813, 833, 126 S. Ct. 2266, 165 L. Ed.
2d 224 (2006). Every commentator we are
aware of has concluded the requirement of
intent "means that the exception applies only if
the defendant has in mind the particular
purpose of making the witness unavailable." 5
C. Mueller & L. Kirkpatrick, Federal Evidence
§ 8:134, p 235 (3d ed. 2007); 5 J. Weinstein &
M. Berger, [*2688] Weinstein's Federal
Evidence § 804.03[7][b], p 804-32 (J.
McLaughlin ed., 2d ed. 2008); 2 S. Brown,
McCormick on Evidence 176 (6th ed. 2006).2
The commentators come out this way because
the dissent's claim that knowledge is sufficient
to show [**501] intent is emphatically not the
modern view. See 1 W. LaFave, Substantive
Criminal Law § 5.2, [***25] p 340 (2d ed.
2003).
2 Only a single state evidentiary code
appears to contain a forfeiture rule
broader than our holding in this case (and
in Crawford) allow. Seven of the 12
States that recognize wrongdoing as
grounds for forfeiting objection to out-of-
court statements duplicate the language
of the federal forfeiture provision that
requires purpose, see Del. Rule Evid.
804(b)(6) (2001); Ky. Rule Evid.
804(b)(5) (2004); N. D. Rule Evid.
804(b)(6) (2007); Pa. Rule Evid.
804(b)(6) (2005); Vt. Rule Evid.
804(b)(6) (2004); see also Tenn. Rule
Evid. 804(b)(6) (2003) (identical except
that it excludes mention of
acquiescence); Mich. Rule Evid.
804(b)(6) (2008) (substitutes "engaged in
62 of 83
or encouraged" for "engaged or
acquiesced in"). Two others require
"purpose" by their terms. Ohio Rule
Evid. 804(B)(6) (2008); Cal. Evid. Code
Ann. § 1350 (West Supp. 2008). Two of
the three remaining forfeiture provisions
require the defendant to have "procured"
the unavailability of a witness, Haw.
Rule 804(b)(7) (2007); Md. Cts. & Jud.
Proc. Code Ann. § 10-901 (Lexis 2006)--
which, as we have discussed, is a term
traditionally used in the forfeiture context
to require intent. Maryland's rule has
thus been [***26] described as
"requir[ing] that the judge must find that
[the] wrongdoing or misconduct was
undertaken with the intent of making the
witness unavailable to testify." 6A L.
McLain, Maryland Evidence, State and
Federal § 804(6):1, p 230 (West Supp.
2007-2008). These rules cast more than
a little doubt on the dissent's assertion
that the historic forfeiture rule creates
intolerable problems of proof. The lone
forfeiture exception whose text reaches
more broadly than the rule we adopt is an
Oregon rule adopted in 2005. See 2005
Ore. Laws p 1232, Ch. 458 (S. B. 287).
In sum, our interpretation of the common-
law forfeiture rule is supported by (1) the most
natural reading of the language used at
common law; (2) the absence of common-law
cases admitting prior statements on a forfeiture
theory when the defendant had not engaged in
conduct designed to prevent a witness from
testifying; (3) the common law's uniform
exclusion of unconfronted inculpatory
testimony by murder victims (except testimony
given with awareness of impending death) in
the innumerable cases in which the defendant
was on trial for killing the victim, but was not
shown to have done so for the purpose of
preventing testimony; [***27] (4) a
subsequent history in which the dissent's broad
forfeiture theory has not been applied. The first

two and the last are highly persuasive; the third
is in our view conclusive.
D
1 in common-law felony trials: "[W]here
The dissent evades the force of that third
point by claiming that no testimony would
come in at common law based on a forfeiture
theory unless it was confronted. It explains the
exclusion of murder victims' testimony by
arguing that wrongful procurement was
understood to be a basis for admission of
Marian depositions --which the defendant
would have had the opportunity to confront--
but not for the admission of unconfronted
testimony. See post, at ____, 171 L. Ed. 2d, at
517.
That explanation is not supported by the
cases. In Harrison's Case, the leading English
case finding wrongful procurement, the
witness's statements were admitted without
regard to confrontation. An agent of the
defendant had attempted to bribe a witness,
who later disappeared under mysterious
circumstances. The prosecutor contended that
he had been "spirited, or withdrawn from us, by
a gentleman that said he came to [the witness]
from the prisoner, and desired him to be
[*2689] kind to the prisoner." 12 How. St. Tr.,
at 851. The court allowed the witness's prior
statements [***28] before the coroner to be
read, id., at 852, although there was no reason
to think the defendant would have been present
at the prior examination.3
3 Wrongful procurement was also
described as grounds for admitting
unconfronted testimony in Fenwick's
Case, 13 How. St. Tr. 537 (H. C. 1696),
a parliamentary attainder proceeding.
Although many speakers argued for
admission of unconfronted testimony
simply because Parliament was not
bound by the rules of evidence for felony
cases, see Crawford v. Washington, 541
63 of 83
U.S. 36, 46, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004), it was also argued that
witness tampering could be a basis for
admitting unconfronted statements even
persons do stand upon their lives,
accused for crimes, if it appears to the
court that the prisoner hath, by fraudulent
and indirect means, procured a person
that hath given information against him
to a proper magistrate, to withdraw
himself, so that he cannot give evidence
as regularly as they used to do; in that
case his information hath been read;
which, I suppose, with humble
submission, is this case . . . ." 13 How.
St. Tr., at 594 (remarks of Lovel). The
dissent responds that in most
circumstances in which a witness
[***29] had given information against a
defendant before "'a proper magistrate,'"
the testimony would have been
confronted. Post, at ____, 171 L. Ed. 2d,
at 520. Perhaps so, but the speaker was
arguing that the wrongful-procurement
exception applied in "this case"--
Fenwick's Case, in which the testimony
was unconfronted, see 13 How. St. Tr., at
591-592.
[**502] The reasoning of the common-law
authorities reinforces the conclusion that the
wrongful-procurement rule did not depend on
prior confrontation. The judge in Harrison's
Case, after being told that "Mr. Harrison's
agents or friends have, since the last sessions,
made or conveyed away a young man that was
a principal evidence against him," declared that
if this were proved, "it will no way conduce to
Mr. Harrison's advantage." Id., at 835-836.
Similarly, a leading treatise's justification of the
use of statements from coroner's inquests when
a witness was "detained and kept back from
appearing by the means and procurement" of
the defendant was that the defendant "shall
never be admitted to shelter himself by such
evil Practices on the Witness, that being to give

him Advantage of his own Wrong." G. Gilbert,
Law of Evidence 140 (1756). But if the
defendant could keep out [***30]
unconfronted prior testimony of a wrongfully
detained witness he would profit from "such
evil Practices."
While American courts understood the
admissibility of statements made at prior
proceedings (including coroner's inquests like
the one in Harrison's Case) to turn on prior
opportunity for cross-examination as a general
matter, see Crawford, 541 U.S., at 47, n. 2, 124
S. Ct. 1354, 158 L. Ed. 2d 177, no such limit
was applied or expressed in early wrongful-
procurement cases. In Rex v. Barber, 1 Root 76
(Conn. Super. Ct. 1775), "[o]ne White, who
had testified before the justice and before the
grand-jury against Barber, and minutes taken of
his testimony, was sent away by one Bullock, a
friend of Barber's, and by his instigation; so
that he could not be had to testify before the
petit-jury. The court admitted witnesses to
relate what White had before testified." Two
leading evidentiary treatises and a Delaware
case reporter cite that case for the proposition
that grand jury statements were admitted on a
wrongful-procurement theory. See Phillipps,
Treatise on Evidence, at 200, n (a); T. Peake,
Compendium of the Law of Evidence 91, n (m)
(American ed. 1824); State v. Lewis, 1 Del.
Cas. 608, 609, n. 1 (Ct. Quarter Sess. 1818).
[***31] (Of course the standard practice since
approximately the 17th century has been to
conduct grand jury proceedings in secret,
without confrontation, in part so that the
defendant does not learn the State's case
[*2690] in advance. S. Beale, W. Bryson, J.
Felman, & M. Elston, Grand Jury Law and
Practice § 5.2 (2d ed. 2005); see also 8 J.
Wigmore Evidence § 2360, pp 728-735 (J.
McNaughton rev. 1961)).4
4 Three commentators writing more
than a century after the Barber decision,
said, without explanation, that they
understood the case to have admitted
64 of 83
only confronted testimony at a
preliminary examination. W. Best, The
Principles of the Law of Evidence 473, n
(e) (American ed. 1883); J. Stephen, A
Digest of the Law of Evidence 161
(1902); 2 J. Bishop, New Criminal
Procedure § 1197, p 1024 (2d ed. 1913).
We know of no basis for that
understanding. The report of the case
does not limit the admitted testimony to
statements that were confronted.
The Georgia Supreme Court's articulation
of the forfeiture rule similarly [**503]
suggests that it understood forfeiture to be a
basis for admitting unconfronted testimony.
The court wrote that Lord Morley's Case
established that if a witness "who had been
examined [***32] by the Crown, and was then
absent, was detained by the means or
procurement of the prisoner," "then the
examination should be read" into evidence.
Williams v. State, 19 Ga. 402, 403 (1856). Its
rule for all cases in which the witness "had
been examined by the Crown" carried no
confrontation limit, and indeed, the court
adopted the rule from Lord Morley's Case
which involved not Marian examinations
carrying a confrontation requirement, but
coroner's inquests that lacked one.
The leading American case on forfeiture of
the confrontation right by wrongful
procurement was our 1879 decision in
Reynolds. That case does not set forth prior
confrontation as a requirement for the
doctrine's application, and begins its historical
analysis with a full description of the rule set
forth in Lord Morley's Case, which itself
contained no indication that the admitted
testimony must have been previously
confronted. It followed that description with a
citation of Harrison's Case--which, like Lord
Morley's Case, applied wrongful procurement
to coroner's inquests, not confronted Marian
examinations --saying that the rule in those
cases "seems to have been recognized as the

law of England ever since." 98 U.S., at 158, 25
L. Ed. 244. [***33] The opinion's description
of the forfeiture rule is likewise unconditioned
by any requirement of prior confrontation:
[**LEdHR9] [9]"The
Constitution gives the accused the
right to a trial at which he should
be confronted with the witnesses
against him; but if a witness is
absent by his own wrongful
procurement, he cannot complain
if competent evidence is admitted
to supply the place of that which
he kept away. . . . [The
Constitution] grants him the
privilege of being confronted with
the witnesses against him; but if he
voluntarily keeps the witnesses
away, he cannot insist on his
privilege. If, therefore, when
absent by his procurement, their
evidence is supplied in some
lawful way, he is in no condition to
assert that his constitutional rights
have been violated." Ibid.
There is no mention in this paragraph of a
need for prior confrontation, even though if the
Court believed such a limit applied, the phrase
"their evidence is supplied" would more
naturally have read "their previously
confronted evidence is supplied." Crawford
reaffirmed this understanding by citing
Reynolds for a forfeiture exception to the
confrontation right. 541 U.S., at 54, 124 S. Ct.
1354, 158 L. Ed. 2d 177. And what Reynolds
and Crawford described as the law [***34]
became a seeming holding of this Court in
Davis, which, after finding an absent witness's
unconfronted statements introduced at trial to
have been testimonial, and after observing that
"one who obtains the absence of a witness by
wrongdoing forfeits the [*2691] constitutional
right to confrontation," 547 U.S., at 833, 126 S.
65 of 83
Ct. 2266, 165 L. Ed. 2d 224, remanded with the
instruction that "[t]he Indiana courts may (if
they are asked) determine on remand whether .
. . a claim of forfeiture is properly raised and, if
so, whether it is meritorious," id. at 834, 126 S.
Ct. 2266, 165 L. Ed. 2d 224.
[**LEdHR10] [10] Although the case law
is sparse, in light of these decisions and the
absence of even a single case declining to
admit unconfronted statements [**504] of an
absent witness on wrongful-procurement
grounds when the defendant sought to prevent
the witness from testifying, we are not
persuaded to displace the understanding of our
prior cases that wrongful procurement permits
the admission of prior unconfronted testimony.
But the parsing of cases aside, the most
obvious problem with the dissent's theory that
the forfeiture rule applied only to confronted
testimony is that it amounts to self-immolation.
If it were true, it would destroy not only our
case for a narrow forfeiture rule, but [***35]
the dissent's case for a broader one as well.
[**LEdHR11] [11] Prior confronted statements
by witnesses who are unavailable are
admissible whether or not the defendant was
responsible for their unavailability. Id., at 68,
124 S. Ct. 1354, 158 L. Ed. 2d 177. If the
forfeiture doctrine did not admit unconfronted
prior testimony at common law, the conclusion
must be, not that the forfeiture doctrine requires
no specific intent in order to render
unconfronted testimony available, but that
unconfronted testimony is subject to no
forfeiture doctrine at all.5
5 The dissent attempts to reconcile its
approach with Crawford by saying the
wrongful-procurement cases used
language "broad enough" to reach every
case in which a defendant committed
wrongful acts that caused the absence of
a victim, and that there was therefore an
"'exception" "established at the time of
the founding,'" post, at ____, 171 L. Ed.

2d, at 510, reaching all such misconduct.
But an exception to what? The dissent
contends that it was not an exception to
confrontation. Were that true, it would
be the end of the Crawford inquiry.
2
Having destroyed its own case, the dissent
issues a thinly veiled invitation to overrule
Crawford and adopt an approach not much
different from the regime of Ohio v. Roberts,
448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597
(1980), [***36] under which the Court would
create the exceptions that it thinks consistent
with the policies underlying the confrontation
guarantee, regardless of how that guarantee was
historically understood. The "basic purposes
and objectives" of forfeiture doctrine, it says,
require that a defendant who wrongfully caused
the absence of a witness be deprived of his
confrontation rights, whether or not there was
any such rule applicable at common law. Post,
at ____, 171 L. Ed. 2d, at 510.
If we were to reason from the "basic
purposes and objectives" of the forfeiture
doctrine, we are not at all sure we would come
to the dissent's favored result. The common-
law forfeiture rule was aimed at removing the
otherwise powerful incentive for defendants to
intimidate, bribe, and kill the witnesses against
them--in other words, it is grounded in "the
ability of courts to protect the integrity of their
proceedings." Davis, 547 U.S., at 834, 126 S.
Ct. 2266, 165 L. Ed. 2d 224. The boundaries of
the doctrine seem to us intelligently fixed so as
to avoid a principle repugnant to our
constitutional system of trial by jury: that those
murder defendants whom the judge considers
guilty (after less than a full trial, mind you, and
of course before the jury has pronounced guilt)
[***37] should be deprived of fair-trial rights,
lest they benefit from their judge-determined
wrong.6
6 The dissent identifies one
circumstance--and only one--in which a
66 of 83
court may determine the outcome of a
case before it goes to the jury: A judge
may determine the existence of a
conspiracy in order to make
incriminating statements of co-
conspirators admissible against the
defendant under Federal Rule of
Evidence 801(d)(2)(E). Bourjaily v.
United States, 483 U.S. 171, 107 S. Ct.
2775, 97 L. Ed. 2d 144 (1987), held that
admission of the evidence did not violate
the Confrontation Clause because it
"falls within a firmly rooted hearsay
exception"--the test under Ohio v.
Roberts, 448 U.S. 56, 66, 100 S. Ct.
2531, 65 L. Ed. 2d 597 (1980), the case
that Crawford overruled. In fact it did
not violate the Confrontation Clause for
the quite different reason that it was not
(as an incriminating statement in
furtherance of the conspiracy would
probably never be) testimonial. The co-
conspirator hearsay rule does not pertain
to a constitutional right and is in fact
quite unusual. We do not say, of course,
that a judge can never be allowed to
inquire into guilt of the charged offense
in order to make a preliminary
evidentiary ruling. That must sometimes
be done under the [***38] forfeiture rule
that we adopt--when, for example, the
defendant is on trial for murdering a
witness in order to prevent his testimony.
But the exception to ordinary practice
that we support is (1) needed to protect
the integrity of court proceedings, (2)
based upon longstanding precedent, and
(3) much less expansive than the
exception proposed by the dissent.
[*2692] Since it is most certainly not the
[**505] norm that trial rights can be "forfeited"
on the basis of a prior judicial determination of
guilt, the dissent must go far afield to argue
even by analogy for its forfeiture rule. See
post, at ____, 171 L. Ed. 2d, at 511 (discussing
common-law doctrine that prohibits the

murderer from collecting insurance on the life
of his victim, or an inheritance from the
victim's estate); post, at ____, 171 L. Ed. 2d, at
511 (noting that many criminal statutes punish
a defendant regardless of his purpose). These
analogies support propositions of which we
have no doubt: States may allocate property
rights as they see fit, and a murderer can and
should be punished, without regard to his
purpose, after a fair trial. But a legislature may
not "punish" a defendant for his evil acts by
stripping him of the right to have his guilt in a
criminal proceeding determined [***39] by a
jury, and on the basis of evidence the
Constitution deems reliable and admissible.
The larger problem with the dissent's
argument, however, is that the guarantee of
confrontation is no guarantee at all if it is
subject to whatever exceptions courts from
time to time consider "fair." It is not the role of
courts to extrapolate from the words of the
Sixth Amendment to the values behind it, and
then to enforce its guarantees only to the extent
they serve (in the courts' views) those
underlying values. The Sixth Amendment seeks
fairness indeed--but seeks it through very
specific means (one of which is confrontation)
that were the trial rights of Englishmen. It
"does not suggest any open-ended exceptions
from the confrontation requirement to be
developed by the courts." Crawford, supra, at
54, 124 S. Ct. 1354, 158 L. Ed. 2d 177.7
7 The dissent also implies that we
should not adhere to Crawford because
the confrontation guarantee limits the
evidence a State may introduce without
limiting the evidence a defendant may
introduce. See post, at ____, 171 L. Ed.
2d, at 513. That is true. Just as it is true
that the State cannot decline to provide
testimony harmful to its case or complain
of the lack of a speedy trial. The
asymmetrical nature of the Constitution's
[***40] criminal-trial guarantees is not
an anomaly, but the intentional
67 of 83
conferring of privileges designed to
prevent criminal conviction of the
innocent. The State is at no risk of that.
E
The dissent closes by pointing out that a
forfeiture rule which ignores Crawford would
be particularly helpful to women in abusive
relationships--or at least particularly helpful in
punishing their abusers. Not as helpful as the
dissent suggests, since [**LEdHR12] [12] only
testimonial statements are excluded by the
Confrontation Clause. Statements to friends
and neighbors about [*2693] abuse and
intimidation, and statements to physicians in
the course of receiving treatment [**506]
would be excluded, if at all, only by hearsay
rules, which are free to adopt the dissent's
version of forfeiture by wrongdoing. In any
event, we are puzzled by the dissent's decision
to devote its peroration to domestic abuse
cases. Is the suggestion that we should have
one Confrontation Clause (the one the Framers
adopted and Crawford described) for all other
crimes, but a special, improvised,
Confrontation Clause for those crimes that are
frequently directed against women? Domestic
violence is an intolerable offense that
legislatures may choose to combat through
[***41] many means--from increasing criminal
penalties to adding resources for investigation
and prosecution to funding awareness and
prevention campaigns. But for that serious
crime, as for others, abridging the
constitutional rights of criminal defendants is
not in the State's arsenal.
The domestic-violence context is, however,
relevant for a separate reason. [**LEdHR13]
[13] Acts of domestic violence often are
intended to dissuade a victim from resorting to
outside help, and include conduct designed to
prevent testimony to police officers or
cooperation in criminal prosecutions. Where
such an abusive relationship culminates in
murder, the evidence may support a finding
that the crime expressed the intent to isolate the

victim and to stop her from reporting abuse to
the authorities or cooperating with a criminal
prosecution --rendering her prior statements
admissible under the forfeiture doctrine.
Earlier abuse, or threats of abuse, intended to
dissuade the victim from resorting to outside
help would be highly relevant to this inquiry, as
would evidence of ongoing criminal
proceedings at which the victim would have
been expected to testify. This is not, as the
dissent charges, post, at ____, 171 L. Ed. 2d, at
523, nothing more than [***42] "knowledge-
based intent." (Emphasis deleted.)
[**LEdHR14] [14] The state courts in this
case did not consider the intent of the defendant
because they found that irrelevant to
application of the forfeiture doctrine. This
68 of 83
view of the law was error, but the court is free
to consider evidence of the defendant's intent
on remand.
* * *
[**LEdHR15] [15] We decline to approve
an exception to the Confrontation Clause
unheard of at the time of the founding or for
200 years thereafter. The judgment of the
California Supreme Court is vacated, and the
case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
 69 of 83

LEXSEE 129 S.CT. 2527

LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS

No. 07-591

SUPREME COURT OF THE UNITED STATES

129 S. Ct. 2527; 174 L. Ed. 2d 314; 2009 U.S. LEXIS 4734; 21 Fla. L.
Weekly Fed. S 990

November 10, 2008, Argued

June 25, 2009, Decided

NOTICE: petitioner was convicted. The Massachusetts

The LEXIS pagination of this document is
subject to change pending release of the final
published version.
PRIOR HISTORY: [***1]
ON WRIT OF CERTIORARI TO THE
APPEALS COURT OF MASSACHUSETTS.
Commonwealth v. Melendez-Diaz, 69 Mass.
App. Ct. 1114, 870 N.E.2d 676, 2007 Mass.
App. LEXIS 855 (2007)
DISPOSITION: Reversed and remanded.
LexisNexis(R) Headnotes
SYLLABUS
[*2529] At petitioner's state-court drug
trial, the prosecution introduced certificates of
state laboratory analysts stating that material
seized by police and connected to petitioner
was cocaine of a certain quantity. As required
by Massachusetts law, the certificates were
sworn to before a notary public and were
submitted as prima facie evidence of what they
asserted. Petitioner objected, asserting that
Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177, required the
analysts to testify in person. The trial court
disagreed, the certificates were admitted, and
Appeals Court affirmed, rejecting petitioner's
claim that the certificates' admission violated
the Sixth Amendment.
Held: The admission of the certificates
violated petitioner's Sixth Amendment right to
confront the witnesses against him. Pp. 3-23.
(a) Under Crawford, a witness's testimony
against a defendant is inadmissible unless the
witness appears at trial or, if the witness is
unavailable, the defendant had a prior
opportunity for cross-examination. 541 U.S., at
54, 124 S. Ct. 1354, 158 L. Ed. 2d 177. The
certificates [***2] here are affidavits, which
fall within the "core class of testimonial
statements" covered by the Confrontation
Clause, id., at 51, 124 S. Ct. 1354, 158 L. Ed.
2d 177. They asserted that the substance found
in petitioner's possession was, as the
prosecution claimed, cocaine of a certain
weight -- the precise testimony the analysts
would be expected to provide if called at trial.
Not only were the certificates made, as
Crawford required for testimonial statements,
"under circumstances which would lead an
objective witness reasonably to believe that the
statement would be available for use at a later
trial," id., at 52, 124 S. Ct. 1354, 158 L. Ed. 2d
177, but under the relevant Massachusetts law
their sole purpose was to provide prima facie
evidence of the substance's composition,

quality, and net weight. Petitioner was entitled
to "be confronted with" the persons giving this
testimony at trial. Id., at 54, 124 S. Ct. 1354,
158 L. Ed. 2d 177. Pp. 3-5.
(b) The arguments advanced to avoid this
rather straightforward application of Crawford
are rejected. Respondent's claim that the
analysts are not subject to confrontation
because they are not "accusatory" witnesses
finds no support in the Sixth Amendment's text
or in this Court's case law. The affiants'
testimonial statements were not "nearly [***3]
contemporaneous" with their observations, nor,
if they had been, would that fact alter the
statements' testimonial character. There is no
support for the proposition that witnesses who
testify regarding facts other than those
observed at the crime scene are exempt from
confrontation. The absence of interrogation is
irrelevant; a witness who volunteers his
testimony is no less a witness for Sixth
Amendment purposes. The affidavits do not
qualify as traditional official or business
records. The argument that the analysts should
not be subject to confrontation because their
statements result from neutral scientific testing
is little more than an invitation to return to the
since-overruled decision in Ohio v. Roberts,
448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d
597, which held that evidence with
"particularized guarantees of trustworthiness"
was admissible without confrontation.
Petitioner's power to subpoena the analysts is
no substitute for the right of confrontation.
Finally, the requirements of the Confrontation
Clause may not be relaxed because they make
the prosecution's task burdensome. [*2530] In
any event, the practice in many States already
accords with today's decision, and the serious
disruption predicted by respondent [***4] and
the dissent has not materialized. Pp. 5-23.
69 Mass. App. Ct. 1114, 870 N.E.2d 676,
reversed and remanded.
70 of 83
COUNSEL: Jeffrey L. Fisherargued the
cause for petitioner.
Martha Coakley argued the cause for
respondent.
Lisa H. Schertler argued the cause for the
United States, as amicus curiae, by special
leave court.
JUDGES: SCALIA, J., delivered the opinion
of the Court, in which STEVENS, SOUTER,
THOMAS, and GINSBURG, JJ., joined.
THOMAS, J., filed a concurring opinion.
KENNEDY, J., filed a dissenting opinion, in
which ROBERTS, C. J., and BREYER and
ALITO, JJ., joined.
OPINION BY: SCALIA
OPINION
[**319] JUSTICE SCALIA delivered the
opinion of the Court.
The Massachusetts courts in this case
admitted into evidence affidavits reporting the
results of forensic analysis which showed that
material seized by the police and connected to
the defendant was cocaine. The question
presented is whether those affidavits are
"testimonial," rendering the affiants
"witnesses" subject to the defendant's right of
confrontation under the Sixth Amendment.
I
In 2001, Boston police officers received a
tip that a Kmart employee, Thomas Wright,
was engaging in suspicious activity. The
informant reported that Wright repeatedly
received phone calls at work, after each of
which he would be picked up in front of the
store by a blue sedan, and would return to the
store a short time later. The police set up
surveillance in the Kmart parking lot and
witnessed [***5] this precise sequence of
events. When Wright got out of the car upon

his return, one of the officers detained and
searched him, finding four clear white plastic
bags containing a substance resembling
cocaine. The officer then signaled other officers
on the scene to arrest the two men in the
[**320] car -- one of whom was petitioner
Luis Melendez-Diaz. The officers placed all
three men in a police cruiser.
During the short drive to the police station,
the officers observed their passengers fidgeting
and making furtive movements in the back of
the car. After depositing the men at the station,
they searched the police cruiser and found a
plastic bag containing 19 smaller plastic bags
hidden in the partition between the front and
back seats. They submitted the seized evidence
to a state laboratory required by law to conduct
chemical analysis upon police request. Mass.
Gen. Laws, ch. 111, § 12 (West 2006).
Melendez-Diaz was charged with
distributing cocaine and with trafficking in
cocaine in an amount between 14 and 28
grams. Ch. 94C, §§ 32A, 32E(b)(1). At trial, the
prosecution placed into evidence [*2531] the
bags seized from Wright and from the police
cruiser. It also submitted three "certificates of
[***6] analysis" showing the results of the
forensic analysis performed on the seized
substances. The certificates reported the weight
of the seized bags and stated that the bags
"[h]a[ve] been examined with the following
results: The substance was found to contain:
Cocaine." App. to Pet. for Cert. 24a, 26a, 28a.
The certificates were sworn to before a notary
public by analysts at the State Laboratory
Institute of the Massachusetts Department of
Public Health, as required under Massachusetts
law. Mass. Gen. Laws, ch. 111, § 13.
Petitioner objected to the admission of the
certificates, asserting that our Confrontation
Clause decision in Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), required the analysts to testify in
person. The objection was overruled, and the
certificates were admitted pursuant to state law
71 of 83
as "prima facie evidence of the composition,
quality, and the net weight of the narcotic . . .
analyzed." Mass. Gen. Laws, ch. 111, § 13.
The jury found Melendez-Diaz guilty. He
appealed, contending, among other things, that
admission of the certificates violated his Sixth
Amendment right to be confronted with the
witnesses against him. The Appeals Court of
Massachusetts rejected the claim, [***7]
affirmance order, 69 Mass. App. Ct. 1114, 870
N.E.2d 676, 2007 WL 2189152, *4, n. 3 (July
31, 2007), relying on the Massachusetts
Supreme Judicial Court's decision in
Commonwealth v. Verde, 444 Mass. 279, 283-
285, 827 N.E.2d 701, 705-706 (2005), which
held that the authors of certificates of forensic
analysis are not subject to confrontation under
the Sixth Amendment. The Supreme Judicial
Court denied review. 449 Mass. 1113, 874
N.E.2d 407 (2007). We granted certiorari. 552
U.S. ___, 128 S. Ct. 1647, 170 L. Ed. 2d 352
(2008).
II
The Sixth Amendment to the United States
Constitution, made applicable to the States via
the Fourteenth Amendment, Pointer v. Texas,
380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d
923 (1965), provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right .
. . to be confronted with the witnesses against
him." In Crawford, after reviewing the Clause's
historical underpinnings, we held that it
guarantees a defendant's right to confront those
"who 'bear testimony'" against him. 541 U.S.,
at 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177. A
witness's testimony against a defendant is thus
inadmissible unless [**321] the witness
appears at trial or, if the witness is unavailable,
the defendant had a prior opportunity for cross-
examination. Id., at 54, 124 S. Ct. 1354, 158 L.
Ed. 2d 177.
Our opinion described [***8] the class of
testimonial statements covered by the
Confrontation Clause as follows:

"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; extrajudicial
statements . . . contained in
formalized testimonial materials,
such as affidavits, depositions,
prior testimony, or confessions;
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."
Id., at 51-52, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (internal quotation
marks and citations omitted).
[*2532] There is little doubt that the
documents at issue in this case fall within the
"core class of testimonial statements" thus
described. Our description of that category
mentions affidavits twice. See also White v.
Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 116
L. Ed. 2d 848 (1992) (THOMAS, J., concurring
in part and concurring in judgment) ("[T]he
Confrontation Clause is implicated by
extrajudicial statements only [***9] insofar as
they are contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions"). The documents at
issue here, while denominated by
Massachusetts law "certificates," are quite
plainly affidavits: "declaration[s] of facts
written down and sworn to by the declarant
before an officer authorized to administer
oaths." Black's Law Dictionary 62 (8th ed.
2004). They are incontrovertibly a "'solemn
72 of 83
declaration or affirmation made for the purpose
of establishing or proving some fact.'"
Crawford, supra, at 51, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (quoting 2 N. Webster, An
American Dictionary of the English Language
(1828)). The fact in question is that the
substance found in the possession of Melendez-
Diaz and his codefendants was, as the
prosecution claimed, cocaine -- the precise
testimony the analysts would be expected to
provide if called at trial. The "certificates" are
functionally identical to live, in-court
testimony, doing "precisely what a witness
does on direct examination." Davis v.
Washington, 547 U.S. 813, 830, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006) (emphasis
deleted).
Here, moreover, not only were the
affidavits "'made under circumstances which
would lead an objective witness reasonably to
believe [***10] that the statement would be
available for use at a later trial,'" Crawford,
supra, at 52, 124 S. Ct. 1354, 158 L. Ed. 2d
177, but under Massachusetts law the sole
purpose of the affidavits was to provide "prima
facie evidence of the composition, quality, and
the net weight" of the analyzed substance,
Mass. Gen. Laws, ch. 111, § 13. We can safely
assume that the analysts were aware of the
affidavits' evidentiary purpose, since that
purpose -- as stated in the relevant state-law
provision -- was reprinted on the affidavits
themselves. See App. to Pet. for Cert. 25a, 27a,
29a.
In short, under our decision in [**322]
Crawford the analysts' affidavits were
testimonial statements, and the analysts were
"witnesses" for purposes of the Sixth
Amendment. Absent a showing that the analysts
were unavailable to testify at trial and that
petitioner had a prior opportunity to cross-
examine them, petitioner was entitled to "'be
confronted with'" the analysts at trial.
Crawford, supra, at 54, 124 S. Ct. 1354, 158 L.
Ed. 2d 177. 1

1 Contrary to the dissent's suggestion,
post, at 3-4, 7 (opinion of KENNEDY,
J.), we do not hold, and it is not the case,
that anyone whose testimony may be
relevant in establishing the chain of
custody, authenticity of the sample, or
accuracy of the testing [***11] device,
must appear in person as part of the
prosecution's case. While the dissent is
correct that "[i]t is the obligation of the
prosecution to establish the chain of
custody," post, at 7, this does not mean
that everyone who laid hands on the
evidence must be called. As stated in the
dissent's own quotation, ibid., from
United States v. Lott, 854 F.2d 244, 250
(CA7 1988), "gaps in the chain [of
custody] normally go to the weight of the
evidence rather than its admissibility." It
is up to the prosecution to decide what
steps in the chain of custody are so
crucial as to require evidence; but what
testimony is introduced must (if the
defendant objects) be introduced live.
Additionally, documents prepared in the
regular course of equipment maintenance
may well qualify as nontestimonial
records. See infra, at 15-16, 18.
III
Respondent and the dissent advance a
potpourri of analytic arguments in an effort
[*2533] to avoid this rather straightforward
application of our holding in Crawford. Before
addressing them, however, we must assure the
reader of the falsity of the dissent's opening
alarum that we are "sweep[ing] away an
accepted rule governing the admission of
scientific evidence" that has been [***12]
"established for at least 90 years" and "extends
across at least 35 States and six Federal Courts
of Appeals." Post, at 1 (opinion of KENNEDY,
J.).
The vast majority of the state-court cases
the dissent cites in support of this claim come
73 of 83
not from the last 90 years, but from the last 30,
and not surprisingly nearly all of them rely on
our decision in Ohio v. Roberts, 448 U.S. 56,
100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), or its
since-rejected theory that unconfronted
testimony was admissible as long as it bore
indicia of reliability, id., at 66, 100 S. Ct. 2531,
65 L. Ed. 2d 597. See post, at 30. 2 As for the
six Federal Courts of Appeals cases cited by
the dissent, five of them postdated and
expressly relied on Roberts. See post, at 21-22.
The sixth predated Roberts but relied entirely
on the same erroneous theory. See Kay v.
United States, 255 F.2d 476, 480-481 (CA4
1958) (rejecting confrontation clause challenge
"where there is reasonable necessity for [the
evidence] and where . . . the evidence has those
qualities of reliability and trustworthiness").
2 The exception is a single pre-Roberts
case that relied on longstanding
Massachusetts precedent. See
Commonwealth v. Harvard, 356 Mass.
452, 462, 253 N.E.2d 346, 352 (1969).
Others are simply irrelevant, [***13]
since they involved medical reports
created for treatment purposes, which
would not be testimonial under our
decision today. See, e.g., Baber v. State,
775 So. 2d 258, 258-259 (Fla. 2000);
State v. Garlick, 313 Md. 209, 223-225,
545 A.2d 27, 34-35 (1998).
A review of cases that predate the Roberts
era yields a mixed picture. As the dissent notes,
three state supreme court decisions from the
early 20th century denied confrontation with
respect to certificates of analysis regarding a
substance's alcohol content. See post, at 21
(citing cases from Massachusetts, [**323]
Connecticut, and Virginia). But other state
courts in the same era reached the opposite
conclusion. See Torres v. State, 18 S.W.2d 179,
180 (Tex. Crim. App. 1929); Volrich v. State, 4
Ohio Law Abs. 253, 1925 WL 2473 (Ohio App.
1925). At least this much is entirely clear: In
faithfully applying Crawford to the facts of this

case, we are not overruling 90 years of settled
jurisprudence. It is the dissent that seeks to
overturn precedent by resurrecting Roberts a
mere five years after it was rejected in
Crawford.
We turn now to the various legal arguments
raised by respondent and the dissent.
A
Respondent first argues that the analysts
[***14] are not subject to confrontation
because they are not "accusatory" witnesses, in
that they do not directly accuse petitioner of
wrongdoing; rather, their testimony is
inculpatory only when taken together with
other evidence linking petitioner to the
contraband. See Brief for Respondent 10. This
finds no support in the text of the Sixth
Amendment or in our case law.
The Sixth Amendment guarantees a
defendant the right "to be confronted with the
witnesses against him." (Emphasis added.) To
the extent the analysts were witnesses (a
question resolved above), they certainly
provided testimony against petitioner, proving
one fact necessary for his conviction -- that the
substance he possessed was cocaine. The
contrast between the text of the Confrontation
Clause and the text of the adjacent Compulsory
Process Clause [*2534] confirms this
analysis. While the Confrontation Clause
guarantees a defendant the right to be
confronted with the witnesses "against him,"
the Compulsory Process Clause guarantees a
defendant the right to call witnesses "in his
favor." U.S. Const., Amdt. 6. The text of the
Amendment contemplates two classes of
witnesses -- those against the defendant and
those in his favor. The [***15] prosecution
must produce the former; 3 the defendant may
call the latter. Contrary to respondent's
assertion, there is not a third category of
witnesses, helpful to the prosecution, but
somehow immune from confrontation.
74 of 83
3 The right to confrontation may, of
course, be waived, including by failure to
object to the offending evidence; and
States may adopt procedural rules
governing the exercise of such
objections. See infra, at 21.
It is often, indeed perhaps usually, the case
that an adverse witness's testimony, taken
alone, will not suffice to convict. Yet
respondent fails to cite a single case in which
such testimony was admitted absent a
defendant's opportunity to cross-examine. 4
Unsurprisingly, since such a holding would be
contrary to longstanding case law. In Kirby v.
United States, 174 U.S. 47, 19 S. Ct. 574, 43 L.
Ed. 890 (1899), the Court considered Kirby's
[**324] conviction for receiving stolen
property, the evidence for which consisted, in
part, of the records of conviction of three
individuals who were found guilty of stealing
the relevant property. Id., at 53, 19 S. Ct. 574,
43 L. Ed. 890. Though this evidence proved
only that the property was stolen, and not that
Kirby received it, the Court nevertheless ruled
that admission of the records [***16] violated
Kirby's rights under the Confrontation Clause.
Id., at 55, 19 S. Ct. 574, 43 L. Ed. 890. See also
King v. Turner, 1 Mood. 347, 168 Eng. Rep.
1298 (1832) (confession by one defendant to
having stolen certain goods could not be used
as evidence against another defendant accused
of receiving the stolen property).
4 Respondent cites our decision in Gray
v. Maryland, 523 U.S. 185, 118 S. Ct.
1151, 140 L. Ed. 2d 294 (1998). That
case did indeed distinguish between
evidence that is "incriminating on its
face" and evidence that "bec[omes]
incriminating . . . only when linked with
evidence introduced later at trial," id., at
191, 118 S. Ct. 1151, 140 L. Ed. 2d 294
(internal quotation marks omitted). But it
did so for the entirely different purpose
of determining when a nontestifying
codefendant's confession, redacted to

remove all mention of the defendant,
could be admitted into evidence with
instruction for the jury not to consider the
confession as evidence against the
nonconfessor. The very premise of the
case was that, without the limiting
instruction even admission of a redacted
confession containing evidence of the
latter sort would have violated the
defendant's Sixth Amendment rights. See
id., at 190-191, 118 S. Ct. 1151, 140 L.
Ed. 2d 294.
B
Respondent and the dissent argue that the
analysts should not be subject [***17] to
confrontation because they are not
"conventional" (or "typical" or "ordinary")
witnesses of the sort whose ex parte testimony
was most notoriously used at the trial of Sir
Walter Raleigh. Post, at 15-16; Brief for
Respondent 28. It is true, as the Court
recognized in Crawford, that ex parte
examinations of the sort used at Raleigh's trial
have "long been thought a paradigmatic
confrontation violation." 541 U.S., at 52, 124 S.
Ct. 1354, 158 L. Ed. 2d 177. But the
paradigmatic case identifies the core of the
right to confrontation, not its limits. The right
to confrontation was not invented in response
to the use of the ex parte examinations in
Raleigh's Case, 2 How. St. Tr. 1 (1603). That
use provoked such an outcry precisely because
it flouted the deeply rooted common-law
tradition "of live testimony in court subject to
adversarial testing." Crawford, supra, at 43,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (citing 3 W.
Blackstone, Commentaries on the Laws of
England 373-374 [*2535] (1768)). See also
Crawford, supra, at 43-47, 124 S. Ct. 1354,
158 L. Ed. 2d 177.
In any case, the purported distinctions
respondent and the dissent identify between
this case and Sir Walter Raleigh's
"conventional" accusers do not survive
scrutiny. The dissent first contends that a
75 of 83
"conventional witness recalls events observed
[***18] in the past, while an analyst's report
contains near-contemporaneous observations of
the test." Post, at 16-17. It is doubtful that the
analyst's reports in this case could be
characterized as reporting "near-
contemporaneous observations"; the affidavits
were completed almost a week after the tests
were performed. See App. to Pet. for Cert. 24a-
29a (the tests were performed on November 28,
2001, and the affidavits sworn on December 4,
2001). But regardless, the dissent
misunderstands the role that "near-
contemporaneity" has played in our case law.
The dissent notes that that factor was given
"substantial weight" in Davis, post, at 17, but in
fact that decision disproves the dissent's
position. There the Court considered the
admissibility of statements made to police
officers responding to a report of a domestic
disturbance. By the time officers arrived the
assault had ended, but the victim's statements --
written and oral -- were sufficiently close in
time to the alleged assault that the trial court
admitted her affidavit as a "present sense
impression." Davis, 547 U.S., at 820, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (internal quotation
marks omitted). Though the witness's
statements in Davis [**325] were "near-
contemporaneous" [***19] to the events she
reported, we nevertheless held that they could
not be admitted absent an opportunity to
confront the witness. Id., at 830, 126 S. Ct.
2266, 165 L. Ed. 2d 224.
A second reason the dissent contends that
the analysts are not "conventional witnesses"
(and thus not subject to confrontation) is that
they "observe[d] neither the crime nor any
human action related to it." Post, at 17. The
dissent provides no authority for this particular
limitation of the type of witnesses subject to
confrontation. Nor is it conceivable that all
witnesses who fit this description would be
outside the scope of the Confrontation Clause.
For example, is a police officer's investigative
report describing the crime scene admissible

absent an opportunity to examine the officer?
The dissent's novel exception from coverage of
the Confrontation Clause would exempt all
expert witnesses -- a hardly "unconventional"
class of witnesses.
A third respect in which the dissent asserts
that the analysts are not "conventional"
witnesses and thus not subject to confrontation
is that their statements were not provided in
response to interrogation. Ibid. See also Brief
for Respondent 29. As we have explained,
"[t]he Framers were no more willing to
[***20] exempt from cross-examination
volunteered testimony or answers to open-
ended questions than they were to exempt
answers to detailed interrogation." Davis,
supra, at 822-823, n. 1, 126 S. Ct. 2266, 165 L.
Ed. 2d 224. Respondent and the dissent cite no
authority, and we are aware of none, holding
that a person who volunteers his testimony is
any less a "'witness against' the defendant,"
Brief for Respondent 26, than one who is
responding to interrogation. In any event, the
analysts' affidavits in this case were presented
in response to a police request. See Mass. Gen.
Laws, ch. 111, §§ 12-13. If an affidavit
submitted in response to a police officer's
request to "write down what happened" suffices
to trigger the Sixth Amendment's protection (as
it apparently does, see Davis, 547 U.S., at 819-
820, 126 S. Ct. 2266, 165 L. Ed. 2d 224; id., at
840, n. 5, 126 S. Ct. 2266, 165 L. Ed. 2d 224
(THOMAS, J., concurring in judgment in part
and dissenting in part)), then the analysts'
testimony should be subject to confrontation as
well.
[*2536] C
Respondent claims that there is a
difference, for Confrontation Clause purposes,
between testimony recounting historical events,
which is "prone to distortion or manipulation,"
and the testimony at issue here, which is the
"resul[t] of neutral, scientific testing." Brief
[***21] for Respondent 29. Relatedly,
respondent and the dissent argue that
76 of 83
confrontation of forensic analysts would be of
little value because "one would not reasonably
expect a laboratory professional . . . to feel
quite differently about the results of his
scientific test by having to look at the
defendant." Id., at 31 (internal quotation marks
omitted); see post, at 10-11.
This argument is little more than an
invitation to return to our overruled decision in
Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed.
2d 597, which held that evidence with
"particularized guarantees of trustworthiness"
was admissible notwithstanding the
Confrontation Clause. Id., at 66, 100 S. Ct.
2531, 65 L. Ed. 2d 597. [**326] What we said
in Crawford in response to that argument
remains true:
"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. . . . 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." 541 U.S., at 61-62,
124 S. Ct. 1354, 158 L. Ed. 2d 177.
Respondent [***22] and the dissent may be
right that there are other ways -- and in some
cases better ways -- to challenge or verify the
results of a forensic test. 5 But the Constitution
guarantees one way: confrontation. We do not
have license to suspend the Confrontation
Clause when a preferable trial strategy is
available.

5 Though surely not always. Some
forensic analyses, such as autopsies and
breathalyzer tests, cannot be repeated,
and the specimens used for other
analyses have often been lost or
degraded.
Nor is it evident that what respondent calls
"neutral scientific testing" is as neutral or as
reliable as respondent suggests. Forensic
evidence is not uniquely immune from the risk
of manipulation. According to a recent study
conducted under the auspices of the National
Academy of Sciences, "[t]he majority of
[laboratories producing forensic evidence] are
administered by law enforcement agencies,
such as police departments, where the
laboratory administrator reports to the head of
the agency." National Research Council of the
National Academies, Strengthening Forensic
Science in the United States: A Path Forward
6-1 (Prepublication Copy Feb. 2009)
(hereinafter National Academy Report). And
"[b]ecause [***23] forensic scientists often are
driven in their work by a need to answer a
particular question related to the issues of a
particular case, they sometimes face pressure to
sacrifice appropriate methodology for the sake
of expediency." Id., at S-17. A forensic analyst
responding to a request from a law enforcement
official may feel pressure -- or have an
incentive -- to alter the evidence in a manner
favorable to the prosecution.
Confrontation is one means of assuring
accurate forensic analysis. While it is true, as
the dissent notes, that an honest analyst will not
alter his testimony when forced to confront the
defendant, post, at 10, the same cannot be said
of the fraudulent analyst. See Brief for National
Innocence Network as Amicus Curiae 15-17
[*2537] (discussing cases of documented
"drylabbing" where forensic analysts report
results of tests that were never performed);
National Academy Report 1-8 to 1-10
(discussing documented cases of fraud and
error involving the use of forensic evidence).
77 of 83
Like the eyewitness who has fabricated his
account to the police, the analyst who provides
false results may, under oath in open court,
reconsider his false testimony. See Coy v. Iowa,
487 U.S. 1012, 1019, 108 S. Ct. 2798, 101 L.
Ed. 2d 857 (1988). [***24] And, of course, the
prospect of confrontation will deter fraudulent
analysis in the first place.
Confrontation is designed to weed out not
only the fraudulent analyst, but the incompetent
one as well. Serious deficiencies have been
found in the forensic evidence used in criminal
[**327] trials. One commentator asserts that
"[t]he legal community now concedes, with
varying degrees of urgency, that our system
produces erroneous convictions based on
discredited forensics." Metzger, Cheating the
Constitution, 59 Vand. L. Rev. 475, 491 (2006).
One study of cases in which exonerating
evidence resulted in the overturning of criminal
convictions concluded that invalid forensic
testimony contributed to the convictions in
60% of the cases. Garrett & Neufeld, Invalid
Forensic Science Testimony and Wrongful
Convictions, 95 Va. L. Rev. 1, 14 (2009). And
the National Academy Report concluded:
"The forensic science system,
encompassing both research and
practice, has serious problems that
can only be addressed by a
national commitment to overhaul
the current structure that supports
the forensic science community in
this country." National Academy
Report P-1 (emphasis in original). 6
Like expert witnesses generally, [***25] an
analyst's lack of proper training or deficiency in
judgment may be disclosed in cross-
examination.
6 Contrary to the dissent's suggestion,
post, at 23, we do not "rel[y] in such
great measure" on the deficiencies of

crime-lab analysts shown by this report
to resolve the constitutional question
presented in this case. The analysts who
swore the affidavits provided testimony
against Melendez-Diaz, and they are
therefore subject to confrontation; we
would reach the same conclusion if all
analysts always possessed the scientific
acumen of Mme. Curie and the veracity
of Mother Theresa. We discuss the report
only to refute the suggestion that this
category of evidence is uniquely reliable
and that cross-examination of the
analysts would be an empty formalism.
This case is illustrative. The affidavits
submitted by the analysts contained only the
bare-bones statement that "[t]he substance was
found to contain: Cocaine." App. to Pet. for
Cert. 24a, 26a, 28a. At the time of trial,
petitioner did not know what tests the analysts
performed, whether those tests were routine,
and whether interpreting their results required
the exercise of judgment or the use of skills that
the analysts may not have [***26] possessed.
While we still do not know the precise tests
used by the analysts, we are told that the
laboratories use "methodology recommended
by the Scientific Working Group for the
Analysis of Seized Drugs," App. to Brief for
Petitioner 1a-2a. At least some of that
methodology requires the exercise of judgment
and presents a risk of error that might be
explored on cross-examination. See 2 P.
Giannelli & E. Imwinkelried, Scientific
Evidence § 23.03[c], pp. 532-533, ch. 23A, p.
607 (4th ed. 2007) (identifying four "critical
errors" that analysts may commit in interpreting
the results of the commonly used gas
chromatography/mass spectrometry analysis);
Shellow, The Application of Daubert to the
Identification of Drugs, 2 Shepard's Expert &
Scientific Evidence Quarterly 593, 600 (1995)
(noting that while spectrometers [*2538] may
be equipped with computerized matching
systems, "forensic analysts in crime
laboratories typically do not utilize this feature
78 of 83
of the instrument, but rely exclusively on their
subjective judgment").
The same is true of many of the other types
of forensic evidence commonly used in
criminal prosecutions. "[T]here is wide
variability across forensic science disciplines
with [***27] regard to techniques,
methodologies, reliability, types and numbers
of potential errors, research, general
acceptability, and published material." National
Academy Report S-5. See also id., at [**328]
5-9, 5-12, 5-17, 5-21 (discussing problems of
subjectivity, bias, and unreliability of common
forensic tests such as latent fingerprint analysis,
pattern/impression analysis, and toolmark and
firearms analysis). Contrary to respondent's and
the dissent's suggestion, there is little reason to
believe that confrontation will be useless in
testing analysts' honesty, proficiency, and
methodology -- the features that are commonly
the focus in the cross-examination of experts.
D
Respondent argues that the analysts'
affidavits are admissible without confrontation
because they are "akin to the types of official
and business records admissible at common
law." Brief for Respondent 35. But the
affidavits do not qualify as traditional official
or business records, and even if they did, their
authors would be subject to confrontation
nonetheless.
Documents kept in the regular course of
business may ordinarily be admitted at trial
despite their hearsay status. See Fed. Rule Evid.
803(6). But that is not the case [***28] if the
regularly conducted business activity is the
production of evidence for use at trial. Our
decision in Palmer v. Hoffman, 318 U.S. 109,
63 S. Ct. 477, 87 L. Ed. 645 (1943), made that
distinction clear. There we held that an accident
report provided by an employee of a railroad
company did not qualify as a business record
because, although kept in the regular course of
the railroad's operations, it was "calculated for

use essentially in the court, not in the business."
Id., at 114, 63 S. Ct. 477, 87 L. Ed. 645. 7 The
analysts' certificates -- like police reports
generated by law enforcement officials -- do
not qualify as business or public records for
precisely the same reason. See Rule 803(8)
(defining public records as "excluding,
however, in criminal cases matters observed by
police officers and other law enforcement
personnel").
7 The early common-law cases likewise
involve records prepared for the
administration of an entity's affairs, and
not for use in litigation. See, e.g., King v.
Rhodes, 1 Leach 24, 168 Eng. Rep. 115
(1742) (admitting into evidence ship's
muster-book); King v. Martin, 2 Camp.
100, 101, 170 Eng. Rep. 1094, 1095
(1809) (vestry book); King v. Aickles, 1
Leach 390, 391-392, 168 Eng. Rep. 297,
298 (1785) [***29] (prison logbook).
Respondent seeks to rebut this limitation by
noting that at common law the results of a
coroner's inquest were admissible without an
opportunity for confrontation. But as we have
previously noted, whatever the status of
coroner's reports at common law in England,
they were not accorded any special status in
American practice. See Crawford, 541 U.S., at
47, n. 2, 124 S. Ct. 1354, 158 L. Ed. 2d 177;
Giles v. California, 554 U.S. ___, ___, 128 S.
Ct. 2678, 171 L. Ed. 2d 488 (2008) (slip op., at
20) (BREYER, J., dissenting); Evidence --
Official Records -- Coroner's Inquest, 65 U. Pa.
L. Rev. 290 (1917).
The dissent identifies a single class of
evidence which, though prepared for use at
trial, was traditionally admissible: a clerk's
certificate authenticating an official record -- or
a copy thereof -- for use as evidence. See post,
at 19. But a [*2539] clerk's authority in that
regard was narrowly circumscribed. He was
permitted "to certify to the correctness of a
copy of a record kept in his office," but had "no
79 of 83
authority to furnish, as evidence for the trial of
a lawsuit, his interpretation of what the record
contains or shows, or to certify to its substance
or effect." State v. Wilson, 141 La. 404, 409,
[**329] 75 So. 95, 97 (1917). See also State v.
Champion, 116 N. C. 987, 21 S. E. 700, 700-
701 (1895); [***30] 5 J. Wigmore, Evidence §
1678 (3d ed. 1940). The dissent suggests that
the fact that this exception was "'narrowly
circumscribed'" makes no difference. See post,
at 20. To the contrary, it makes all the
difference in the world. It shows that even the
line of cases establishing the one narrow
exception the dissent has been able to identify
simultaneously vindicates the general rule
applicable to the present case. A clerk could by
affidavit authenticate or provide a copy of an
otherwise admissible record, but could not do
what the analysts did here: create a record for
the sole purpose of providing evidence against
a defendant. 8
8 The dissent's reliance on our decision
in Dowdell v. United States, 221 U.S.
325, 31 S. Ct. 590, 55 L. Ed. 753 (1911),
see post, at 20 (opinion of KENNEDY,
J.), is similarly misplaced. As the opinion
stated in Dowdell -- and as this Court
noted in Davis v. Washington, 547 U.S.
813, 825, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006) -- the judge and clerk who
made the statements at issue in Dowdell
were not witnesses for purposes of the
Confrontation Clause because their
statements concerned only the conduct of
defendants' prior trial, not any facts
regarding defendants' guilt or innocence.
221 U.S., at 330-331, 31 S. Ct. 590, 55 L.
Ed. 753.
Far more probative [***31] here are those
cases in which the prosecution sought to admit
into evidence a clerk's certificate attesting to
the fact that the clerk had searched for a
particular relevant record and failed to find it.
Like the testimony of the analysts in this case,
the clerk's statement would serve as substantive

evidence against the defendant whose guilt
depended on the nonexistence of the record for
which the clerk searched. Although the clerk's
certificate would qualify as an official record
under respondent's definition -- it was prepared
by a public officer in the regular course of his
official duties -- and although the clerk was
certainly not a "conventional witness" under the
dissent's approach, the clerk was nonetheless
subject to confrontation. See People v.
Bromwich, 200 N. Y. 385, 388-389, 93 N. E.
933, 934, 25 N.Y. Cr. 340 (1911); People v.
Goodrode, 132 Mich. 542, 547, 94 N. W. 14, 16
(1903); Wigmore, supra, § 1678. 9
9 An earlier line of 19th century state-
court cases also supports the notion that
forensic analysts' certificates were not
admitted into evidence as public or
business records. See Commonwealth v.
Waite, 93 Mass. 264, 266, 11 Allen 264
(1865); Shivers v. Newton, 45 N. J. L.
469, 476 (Sup. Ct. 1883); [***32] State
v. Campbell, 64 N. H. 402, 403, 13 A.
585, 586 (1888). In all three cases,
defendants -- who were prosecuted for
selling adulterated milk -- objected to the
admission of the state chemists'
certificates of analysis. In all three cases,
the objection was defeated because the
chemist testified live at trial. That the
prosecution came forward with live
witnesses in all three cases suggests
doubt as to the admissibility of the
certificates without opportunity for cross-
examination.
Respondent also misunderstands the
relationship between the business-and-official-
records hearsay exceptions and the
Confrontation Clause. As we stated in
Crawford: "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." 541
U.S., at 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177.
Business and public records are generally
80 of 83
admissible absent confrontation not because
they qualify under an exception to the hearsay
rules, but because -- having been created for the
administration of an entity's affairs and not for
[*2540] the purpose of establishing or proving
some fact at trial -- they are not testimonial.
Whether or not they qualify as business
[***33] or official records, the analysts'
statements here -- prepared specifically for use
at petitioner's trial -- were testimony [**330]
against petitioner, and the analysts were subject
to confrontation under the Sixth Amendment.
E
Respondent asserts that we should find no
Confrontation Clause violation in this case
because petitioner had the ability to subpoena
the analysts. But that power -- whether
pursuant to state law or the Compulsory
Process Clause -- is no substitute for the right
of confrontation. Unlike the Confrontation
Clause, those provisions are of no use to the
defendant when the witness is unavailable or
simply refuses to appear. See, e.g., Davis, 547
U.S., at 820, 126 S. Ct. 2266, 165 L. Ed. 2d 224
("[The witness] was subpoenaed, but she did
not appear at . . . trial"). Converting the
prosecution's duty under the Confrontation
Clause into the defendant's privilege under
state law or the Compulsory Process Clause
shifts the consequences of adverse-witness no-
shows from the State to the accused. More
fundamentally, the Confrontation Clause
imposes a burden on the prosecution to present
its witnesses, not on the defendant to bring
those adverse witnesses into court. Its value to
the defendant is not replaced by a system
[***34] in which the prosecution presents its
evidence via ex parte affidavits and waits for
the defendant to subpoena the affiants if he
chooses.
F
Finally, respondent asks us to relax the
requirements of the Confrontation Clause to
accommodate the "'necessities of trial and the

adversary process.'" Brief for Respondent 59. It
is not clear whence we would derive the
authority to do so. The Confrontation Clause
may make the prosecution of criminals more
burdensome, but that is equally true of the right
to trial by jury and the privilege against self-
incrimination. The Confrontation Clause -- like
those other constitutional provisions -- is
binding, and we may not disregard it at our
convenience.
We also doubt the accuracy of respondent's
and the dissent's dire predictions. The dissent,
respondent, and its amici highlight the
substantial total number of controlled-
substance analyses performed by state and
federal laboratories in recent years. But only
some of those tests are implicated in
prosecutions, and only a small fraction of those
cases actually proceed to trial. See Brief for
Law Professors as Amici Curiae 7-8 (nearly
95% of convictions in state and federal courts
are obtained via guilty [***35] plea). 10
10 The dissent provides some back-of-
the-envelope calculations regarding the
number of court appearances that will
result from today's ruling. Post, at 13-14.
Those numbers rely on various
unfounded assumptions: that the
prosecution will place into evidence a
drug analysis certificate in every case;
that the defendant will never stipulate to
the nature of the controlled substance;
that even where no such stipulation is
made, every defendant will object to the
evidence or otherwise demand the
appearance of the analyst. These
assumptions are wildly unrealistic, and,
as discussed below, the figures they
produce do not reflect what has in fact
occurred in those jurisdictions that have
already adopted the rule we announce
today.
Perhaps the best indication that the sky will
not fall after today's decision is that it has not
81 of 83
done so already. Many States have already
adopted the constitutional rule we announce
today, 11 while many others [*2541] permit the
[**331] defendant to assert (or forfeit by
silence) his Confrontation Clause right after
receiving notice of the prosecution's intent to
use a forensic analyst's report, id., at 13-15
(cataloging such state laws). Despite these
widespread practices, [***36] there is no
evidence that the criminal justice system has
ground to a halt in the States that, one way or
another, empower a defendant to insist upon
the analyst's appearance at trial. Indeed, in
Massachusetts itself, a defendant may subpoena
the analyst to appear at trial, see Brief for
Respondent 57, and yet there is no indication
that obstructionist defendants are abusing the
privilege.
11 State v. Johnson, 982 So. 2d 672,
680-681 (Fla. 2008); Hinojos-Mendoza
v. People, 169 P. 3d 662, 666-667 (Colo.
2007); State v. Birchfield, 342 Ore. 624,
631-632, 157 P. 3d 216, 220 (2007);
State v. March, 216 S. W. 3d 663, 666-
667 (Mo. 2007); Thomas v. United
States, 914 A.2d 1, 12-13 (D. C. 2006);
State v. Caulfield, 722 N.W.2d 304, 310
(Minn. 2006); Las Vegas v. Walsh, 121
Nev. 899, 904-906, 124 P. 3d 203, 207-
208 (2005); People v. McClanahan, 191
Ill. 2d 127, 133-134, 729 N.E.2d 470,
474-475, 246 Ill. Dec. 97 (2000); Miller
v. State, 266 Ga. 850, 854-855, 472 S. E.
2d 74, 78-79 (1996); Barnette v. State,
481 So. 2d 788, 792 (Miss. 1985).
The dissent finds this evidence "far less
reassuring than promised." Post, at 28. But its
doubts rest on two flawed premises. First, the
dissent believes that those state statutes
[***37] "requiring the defendant to give early
notice of his intent to confront the analyst," are
"burden-shifting statutes [that] may be
invalidated by the Court's reasoning." Post, at
22, 28-29. That is not so. In their simplest form,
notice-and-demand statutes require the

prosecution to provide notice to the defendant
of its intent to use an analyst's report as
evidence at trial, after which the defendant is
given a period of time in which he may object
to the admission of the evidence absent the
analyst's appearance live at trial. See, e.g, Ga.
Code Ann. § 35-3-154.1 (2006); Tex. Code
Crim. Proc. Ann., Art. 38.41, § 4 (Vernon
2005); Ohio Rev. Code Ann. § 2925.51(C)
(West 2006). Contrary to the dissent's
perception, these statutes shift no burden
whatever. The defendant always has the burden
of raising his Confrontation Clause objection;
notice-and-demand statutes simply govern the
time within which he must do so. States are free
to adopt procedural rules governing objections.
See Wainwright v. Sykes, 433 U.S. 72, 86-87,
97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). It is
common to require a defendant to exercise his
rights under the Compulsory Process Clause in
advance of trial, announcing his intent to
present certain witnesses. [***38] See Fed.
Rules Crim. Proc. 12.1(a), (e), 16(b)(1)(C);
Comment: Alibi Notice Rules: The Preclusion
Sanction as Procedural Default, 51 U. Chi. L.
Rev. 254, 254-255, 281-285 (1984) (discussing
and cataloguing State notice-of-alibi rules);
Taylor v. Illinois, 484 U.S. 400, 411, 108 S. Ct.
646, 98 L. Ed. 2d 798 (1988); Williams v.
Florida, 399 U.S. 78, 81-82, 90 S. Ct. 1893, 26
L. Ed. 2d 446 (1970). There is no conceivable
reason why he cannot similarly be compelled to
exercise his Confrontation Clause rights before
trial. See Hinojos-Mendoza v. People, 169 P.
3d 662, 670 (Colo. 2007) (discussing and
approving Colorado's notice-and-demand
provision). Today's decision will not disrupt
criminal prosecutions in the many large States
whose practice is already in accord with the
Confrontation Clause. 12
12 As the dissent notes, post, at 27,
some state statutes, "requir[e] defense
counsel to subpoena the analyst, to show
good cause for demanding the analyst's
presence, or even to affirm under oath an
82 of 83
intent to cross-examine the analyst." We
have no occasion today to pass on the
constitutionality of every variety of
statute commonly given the notice-and-
demand label. It suffices to say that what
we have referred to as the "simplest form
[of] notice-and-demand statutes,"
[***39] supra, at 21, is constitutional;
that such provisions are in place in a
number of States; and that in those
States, and in other States that require
confrontation without notice-and-
demand, there is no indication that the
dire consequences predicted by the
dissent have materialized.
[*2542] [**332] Second, the dissent
notes that several of the state-court cases that
have already adopted this rule did so pursuant
to our decision in Crawford, and not
"independently . . . as a matter of state law."
Post, at 28. That may be so. But in assessing
the likely practical effects of today's ruling, it is
irrelevant why those courts adopted this rule; it
matters only that they did so. It is true that
many of these decisions are recent, but if the
dissent's dire predictions were accurate, and
given the large number of drug prosecutions at
the state level, one would have expected
immediate and dramatic results. The absence of
such evidence is telling.
But it is not surprising. Defense attorneys
and their clients will often stipulate to the
nature of the substance in the ordinary drug
case. It is unlikely that defense counsel will
insist on live testimony whose effect will be
merely to highlight rather than cast doubt
[***40] upon the forensic analysis. Nor will
defense attorneys want to antagonize the judge
or jury by wasting their time with the
appearance of a witness whose testimony
defense counsel does not intend to rebut in any
fashion. 13 The amicus brief filed by District
Attorneys in Support of the Commonwealth in
the Massachusetts Supreme Court case upon
which the Appeals Court here relied said that

"it is almost always the case that [analysts'
certificates] are admitted without objection.
Generally, defendants do not object to the
admission of drug certificates most likely
because there is no benefit to a defendant from
such testimony." Brief for District Attorneys in
Support of the Commonwealth in No. SJC-
09320 (Mass.), p. 7 (footnote omitted). Given
these strategic considerations, and in light of
the experience in those States that already
provide the same or similar protections to
defendants, there is little reason to believe that
our decision today will commence the parade
of horribles respondent and the dissent predict.
13 Contrary to the dissent's suggestion,
post, at 24-25, we do not cast aspersions
on trial judges, who we trust will not be
antagonized by good-faith requests for
analysts' [***41] appearance at trial.
Nor do we expect defense attorneys to
refrain from zealous representation of
their clients. We simply do not expect
defense attorneys to believe that their
clients' interests (or their own) are
furthered by objections to analysts'
reports whose conclusions counsel have
no intention of challenging.
***
This case involves little more than the
application of our holding in Crawford v.
83 of 83
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177. The Sixth Amendment does not
permit the prosecution to prove its case via ex
parte out-of-court affidavits, and the admission
of such evidence against Melendez-Diaz was
error. 14 We therefore reverse the judgment of
the Appeals Court of Massachusetts [**333]
and remand the case for further proceedings not
inconsistent with this opinion.
14 We of course express no view as to
whether the error was harmless. The
Massachusetts Court of Appeals did not
reach that question and we decline to
address it in the first instance. Cf. Coy v.
Iowa, 487 U.S. 1012, 1021-1022, 108 S.
Ct. 2798, 101 L. Ed. 2d 857 (1988). In
connection with that determination,
however, we disagree with the dissent's
contention, post, at 25, that "only an
analyst's testimony suffices to prove [the]
fact" that "the substance is cocaine."
Today's [***42] opinion, while insisting
upon retention of the confrontation
requirement, in no way alters the type of
evidence (including circumstantial
evidence) sufficient to sustain a
conviction.
It is so ordered.