CRAWFORD v. WASHINGTON

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36 OCTOBER TERM, 2003
Syllabus
CRAWFORD v. WASHINGTON
certiorari to the supreme court of washington
No. 02–9410. Argued November 10, 2003—Decided March 8, 2004
Petitioner was tried for assault and attempted murder. The State sought
to introduce a recorded statement that petitioner’s wife Sylvia had made
during police interrogation, as evidence that the stabbing was not in
self-defense. Sylvia did not testify at trial because of Washington’s
marital privilege. Petitioner argued that admitting the evidence would
violate his Sixth Amendment right to be “confronted with the witnesses
against him.” Under Ohio v. Roberts, 448 U. S. 56, that right does not
bar admission of an unavailable witness’s statement against a criminal
defendant if the statement bears “adequate ‘indicia of reliability,’ ” a
test met when the evidence either falls within a “firmly rooted hearsay
exception” or bears “particularized guarantees of trustworthiness.”
Id., at 66. The trial court admitted the statement on the latter ground.
The State Supreme Court upheld the conviction, deeming the statement
reliable because it was nearly identical to, i. e., interlocked with, peti-
tioner’s own statement to the police, in that both were ambiguous as to
whether the victim had drawn a weapon before petitioner assaulted him.
Held: The State’s use of Sylvia’s statement violated the Confrontation
Clause because, where testimonial statements are at issue, the only indi-
cium of reliability sufficient to satisfy constitutional demands is confron-
tation. Pp. 42–69.
(a) The Confrontation Clause’s text does not alone resolve this case,
so this Court turns to the Clause’s historical background. That history
supports two principles. First, the principal evil at which the Clause
was directed was the civil-law mode of criminal procedure, particularly
the use of ex parte examinations as evidence against the accused. The
Clause’s primary object is testimonial hearsay, and interrogations by
law enforcement officers fall squarely within that class. Second, the
Framers would not have allowed admission of testimonial statements of
a witness who did not appear at trial unless he was unavailable to testify
and the defendant had had a prior opportunity for cross-examination.
English authorities and early state cases indicate that this was the com-
mon law at the time of the founding. And the “right . . . to be con-
fronted with the witnesses against him,” Amdt. 6, is most naturally read
as a reference to the common-law right of confrontation, admitting only
those exceptions established at the time of the founding. See Mattox
v. United States, 156 U. S. 237, 243. Pp. 42–56.

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Syllabus
(b) This Court’s decisions have generally remained faithful to the
Confrontation Clause’s original meaning. See, e. g., Mattox, supra.
Pp. 57–59.
(c) However, the same cannot be said of the rationales of this Court’s
more recent decisions. See Roberts, supra, at 66. The Roberts test
departs from historical principles because it admits statements consist-
ing of ex parte testimony upon a mere reliability finding. Pp. 60–61.
(d) The Confrontation Clause commands that reliability be assessed
in a particular manner: by testing in the crucible of cross-examination.
Roberts allows a jury to hear evidence, untested by the adversary proc-
ess, based on a mere judicial determination of reliability, thus replacing
the constitutionally prescribed method of assessing reliability with a
wholly foreign one. Pp. 61–62.
(e) Roberts’ framework is unpredictable. Whether a statement is
deemed reliable depends on which factors a judge considers and how
much weight he accords each of them. However, the unpardonable vice
of the Roberts test is its demonstrated capacity to admit core testimonial
statements that the Confrontation Clause plainly meant to exclude.
Pp. 62–65.
(f) The instant case is a self-contained demonstration of Roberts’
unpredictable and inconsistent application. It also reveals Roberts’ fail-
ure to interpret the Constitution in a way that secures its intended
constraint on judicial discretion. The Constitution prescribes the pro-
cedure for determining the reliability of testimony in criminal trials,
and this Court, no less than the state courts, lacks authority to replace
it with one of its own devising. Pp. 65–68.
147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.
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, post, p. 69.
Jeffrey L. Fisher, by appointment of the Court, 540 U. S.
807, argued the cause for petitioner. With him on the briefs
was Bruce E. H. Johnson.
Steven C. Sherman argued the cause for respondent.
With him on the brief was John Michael Jones.
Deputy Solicitor General Dreeben argued the cause for
the United States as amicus curiae urging affirmance.
With him on the brief were Solicitor General Olson, Acting

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38 CRAWFORD v. WASHINGTON
Opinion of the Court
Assistant Attorney General Wray, Sri Srinivasan, and Joel
M. Gershowitz.*
Justice Scalia delivered the opinion of the Court.
Petitioner Michael Crawford stabbed a man who allegedly
tried to rape his wife, Sylvia. At his trial, the State played
for the jury Sylvia’s tape-recorded statement to the police
describing the stabbing, even though he had no opportunity
for cross-examination. The Washington Supreme Court up-
held petitioner’s conviction after determining that Sylvia’s
statement was reliable. The question presented is whether
this procedure complied with the Sixth Amendment’s guar-
antee 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 apart-
ment. Police arrested petitioner later that night. After
giving petitioner and his wife Miranda warnings, detectives
interrogated each of them twice. Petitioner eventually con-
fessed that he and Sylvia had gone in search of Lee because
he was upset over an earlier incident in which Lee had tried
to rape her. The two had found Lee at his apartment, and
a fight ensued in which Lee was stabbed in the torso and
petitioner’s hand was cut.
Petitioner gave the following account of the fight:
“Q. Okay. Did you ever see anything in [Lee’s] hands?
“A. I think so, but I’m not positive.
“Q. Okay, when you think so, what do you mean by that?
“A. I could a swore I seen him goin’ for somethin’ be-
fore, right before everything happened. He was like
*Briefs of amici curiae urging reversal were filed for the National Asso-
ciation of Criminal Defense Lawyers et al. by Jeffrey T. Green, David M.
Porter, and Steven R. Shapiro; and for Sherman J. Clark et al. by Richard
D. Friedman and David A. Moran.

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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 as-
saulted him:
“Q. Did Kenny do anything to fight back from this
assault?
“A. (pausing) I know he reached into his pocket . . . or
somethin’ . . . I don’t know what.
“Q. After he was stabbed?
“A. He saw Michael coming up. He lifted his hand . . .
his chest open, he might [have] went to go strike his
hand out or something and then (inaudible).
“Q. Okay, you, you gotta speak up.
“A. Okay, he lifted his hand over his head maybe to
strike Michael’s hand down or something and then he
put his hands in his . . . put his right hand in his right
pocket . . . took a step back . . . Michael proceeded to
stab him . . . then his hands were like . . . how do you
explain this . . . open arms . . . with his hands open and
he fell down . . . and we ran (describing subject holding
hands open, palms toward assailant).
“Q. Okay, when he’s standing there with his open hands,
you’re talking about Kenny, correct?
“A. Yeah, after, after the fact, yes.
“Q. Did you see anything in his hands at that point?

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“A. (pausing) um um (no).” Id., at 137 (punctuation
added).
The State charged petitioner with assault and attempted
murder. At trial, he claimed self-defense. Sylvia did not
testify because of the state marital privilege, which gener-
ally bars a spouse from testifying without the other spouse’s
consent. See Wash. Rev. Code § 5.60.060(1) (1994). In
Washington, this privilege does not extend to a spouse’s out-
of-court statements admissible under a hearsay exception,
see State v. Burden, 120 Wash. 2d 371, 377, 841 P. 2d 758,
761 (1992), so the State sought to introduce Sylvia’s tape-
recorded statements to the police as evidence that the stab-
bing was not in self-defense. Noting that Sylvia had ad-
mitted she led petitioner to Lee’s apartment and thus had
facilitated the assault, the State invoked the hearsay excep-
tion for statements against penal interest, Wash. Rule Evid.
804(b)(3) (2003).
Petitioner countered that, state law notwithstanding, ad-
mitting the evidence would violate his federal constitutional
right to be “confronted with the witnesses against him.”
Amdt. 6. According to our description of that right in Ohio
v. Roberts, 448 U. S. 56 (1980), it does not bar admission of
an unavailable witness’s statement against a criminal defend-
ant if the statement bears “adequate ‘indicia of reliability.’ ”
Id., at 66. To meet that test, evidence must either fall
within a “firmly rooted hearsay exception” or bear “partic-
ularized guarantees of trustworthiness.” Ibid. The trial
court here admitted the statement on the latter ground, of-
fering 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, ar-
guing that it was “damning evidence” that “completely

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refutes [petitioner’s] claim of self-defense.” Tr. 468 (Oct. 21,
1999). The jury convicted petitioner of assault.
The Washington Court of Appeals reversed. It applied
a nine-factor test to determine whether Sylvia’s statement
bore particularized guarantees of trustworthiness, and noted
several reasons why it did not: The statement contradicted
one she had previously given; it was made in response to
specific questions; and at one point she admitted she had shut
her eyes during the stabbing. The court considered and re-
jected the State’s argument that Sylvia’s statement was reli-
able 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 pe-
titioner’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 some-
thing 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 guar-
antees of trustworthiness: “ ‘[W]hen a codefendant’s confes-
sion is virtually identical [to, i. e., interlocks with,] that of a
defendant, it may be deemed reliable.’ ” 147 Wash. 2d 424,
437, 54 P. 3d 656, 663 (2002) (quoting State v. Rice, 120 Wash.
2d 549, 570, 844 P. 2d 416, 427 (1993)). The court explained:
“Although the Court of Appeals concluded that the
statements were contradictory, upon closer inspection
they appear to overlap. . . .
“[B]oth of the Crawfords’ statements indicate that Lee
was possibly grabbing for a weapon, but they are
equally unsure when this event may have taken place.
They are also equally unsure how Michael received the
cut on his hand, leading the court to question when,
if ever, Lee possessed a weapon. In this respect they
overlap. . . .

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“[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
We granted certiorari to determine whether the State’s
use of Sylvia’s statement violated the Confrontation Clause.
539 U. S. 914 (2003).
II
The Sixth Amendment’s Confrontation Clause provides
that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against
him.” We have held that this bedrock procedural guarantee
applies to both federal and state prosecutions. Pointer v.
Texas, 380 U. S. 400, 406 (1965). As noted above, Roberts
says that an unavailable witness’s out-of-court statement
may be admitted so long as it has adequate indicia of reliabil-
ity—i. e., falls within a “firmly rooted hearsay exception” or
bears “particularized guarantees of trustworthiness.” 448
U. S., at 66. Petitioner argues that this test strays from the
original meaning of the Confrontation Clause and urges us
to reconsider it.
A
The Constitution’s text does not alone resolve this case.
One could plausibly read “witnesses against” a defendant to
1 The court rejected the State’s argument that guarantees of trustwor-
thiness were unnecessary since petitioner waived his confrontation rights
by invoking the marital privilege. It reasoned that “forcing the defend-
ant 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.

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mean those who actually testify at trial, cf. Woodsides
v. State, 3 Miss. 655, 664–665 (1837), those whose state-
ments are offered at trial, see 3 J. Wigmore, Evidence § 1397,
p. 104 (2d ed. 1923) (hereinafter Wigmore), or something in-
between, see infra, at 52–53. We must therefore turn to
the historical background of the Clause to understand its
meaning.
The right to confront one’s accusers is a concept that dates
back to Roman times. See Coy v. Iowa, 487 U. S. 1012, 1015
(1988); Herrmann & Speer, Facing the Accuser: Ancient and
Medieval Precursors of the Confrontation Clause, 34 Va. J.
Int’l L. 481 (1994). The founding generation’s immediate
source of the concept, however, was the common law. Eng-
lish common law has long differed from continental civil law
in regard to the manner in which witnesses give testimony
in criminal trials. The common-law tradition is one of live
testimony in court subject to adversarial testing, while the
civil law condones examination in private by judicial officers.
See 3 W. Blackstone, Commentaries on the Laws of England
373–374 (1768).
Nonetheless, England at times adopted elements of the
civil-law practice. Justices of the peace or other officials ex-
amined suspects and witnesses before trial. These exami-
nations were sometimes read in court in lieu of live testi-
mony, a practice that “occasioned frequent demands by the
prisoner to have his ‘accusers,’ i. e. the witnesses against
him, brought before him face to face.” 1 J. Stephen, History
of the Criminal Law of England 326 (1883). In some cases,
these demands were refused. See 9 W. Holdsworth, History
of English Law 216–217, 228 (3d ed. 1944); e. g., Raleigh’s
Case, 2 How. St. Tr. 1, 15–16, 24 (1603); Throckmorton’s Case,
1 How. St. Tr. 869, 875–876 (1554); cf. Lilburn’s Case, 3 How.
St. Tr. 1315, 1318–1322, 1329 (Star Chamber 1637).
Pretrial examinations became routine under two statutes
passed during the reign of Queen Mary in the 16th century,
1 & 2 Phil. & M., c. 13 (1554), and 2 & 3 id., c. 10 (1555).

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These Marian bail and committal statutes required justices
of the peace to examine suspects and witnesses in felony
cases and to certify the results to the court. It is doubtful
that the original purpose of the examinations was to produce
evidence admissible at trial. See J. Langbein, Prosecuting
Crime in the Renaissance 21–34 (1974). Whatever the origi-
nal purpose, however, they came to be used as evidence in
some cases, see 2 M. Hale, Pleas of the Crown 284 (1736),
resulting in an adoption of continental procedure. See 4
Holdsworth, supra, at 528–530.
The most notorious instances of civil-law examination oc-
curred in the great political trials of the 16th and 17th centu-
ries. One such was the 1603 trial of Sir Walter Raleigh for
treason. Lord Cobham, Raleigh’s alleged accomplice, had
implicated him in an examination before the Privy Council
and in a letter. At Raleigh’s trial, these were read to the
jury. Raleigh argued that Cobham had lied to save himself:
“Cobham is absolutely in the King’s mercy; to excuse me
cannot avail him; by accusing me he may hope for favour.”
1 D. Jardine, Criminal Trials 435 (1832). Suspecting that
Cobham would recant, Raleigh demanded that the judges
call him to appear, arguing that “[t]he Proof of the Common
Law is by witness and jury: let Cobham be here, let him
speak it. Call my accuser before my face . . . .” 2 How.
St. Tr., at 15–16. The judges refused, id., at 24, and, despite
Raleigh’s protestations that he was being tried “by the Span-
ish Inquisition,” id., at 15, the jury convicted, and Raleigh
was sentenced to death.
One of Raleigh’s trial judges later lamented that “ ‘the jus-
tice of England has never been so degraded and injured as
by the condemnation of Sir Walter Raleigh.’ ” 1 Jardine,
supra, at 520. Through a series of statutory and judicial
reforms, English law developed a right of confrontation that
limited these abuses. For example, treason statutes re-
quired witnesses to confront the accused “face to face” at his
arraignment. E. g., 13 Car. 2, c. 1, § 5 (1661); see 1 Hale,

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supra, at 306. Courts, meanwhile, developed relatively
strict rules of unavailability, admitting examinations only if
the witness was demonstrably unable to testify in person.
See Lord Morley’s Case, 6 How. St. Tr. 769, 770–771 (H. L.
1666); 2 Hale, supra, at 284; 1 Stephen, supra, at 358. Sev-
eral authorities also stated that a suspect’s confession could
be admitted only against himself, and not against others he
implicated. See 2 W. Hawkins, Pleas of the Crown, ch. 46,
§ 3, pp. 603–604 (T. Leach 6th ed. 1787); 1 Hale, supra, at 585,
n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791);
cf. Tong’s Case, Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662)
(treason). But see King v. Westbeer, 1 Leach 12, 168 Eng.
Rep. 108, 109 (1739).
One recurring question was whether the admissibility of
an unavailable witness’s pretrial examination depended on
whether the defendant had had an opportunity to cross-
examine him. In 1696, the Court of King’s Bench answered
this question in the affirmative, in the widely reported mis-
demeanor libel case of King v. Paine, 5 Mod. 163, 87 Eng.
Rep. 584. The court ruled that, even though a witness was
dead, his examination was not admissible where “the defend-
ant 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 spir-
ited away, on the ground that Fenwick had had no opportu-
nity 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 con-
ceive 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

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against was privy to the examination, and might have cross-
examined him . . . . [O]ur constitution is, that the person
shall see his accuser”). The examination was nonetheless
admitted on a closely divided vote after several of those
present opined that the common-law rules of procedure did
not apply to parliamentary attainder proceedings—one
speaker even admitting that the evidence would normally be
inadmissible. See id., at 603–604 (Williamson); id., at 604–
605 (Chancellor of the Exchequer); id., at 607; 3 Wigmore
§ 1364, at 22–23, n. 54. Fenwick was condemned, but the
proceedings “must have burned into the general conscious-
ness the vital importance of the rule securing the right of
cross-examination.” Id., § 1364, at 22; cf. Carmell v. Texas,
529 U. S. 513, 526–530 (2000).
Paine had settled the rule requiring a prior opportunity
for cross-examination as a matter of common law, but some
doubts remained over whether the Marian statutes pre-
scribed an exception to it in felony cases. The statutes did
not identify the circumstances under which examinations
were admissible, see 1 & 2 Phil. & M., c. 13 (1554); 2 & 3 id.,
c. 10 (1555), and some inferred that no prior opportunity for
cross-examination was required. See Westbeer, supra, at 12,
168 Eng. Rep., at 109; compare Fenwick’s Case, 13 How.
St. Tr., at 596 (Sloane), with id., at 602 (Musgrave). Many
who expressed this view acknowledged that it meant the
statutes were in derogation of the common law. See King
v. Eriswell, 3 T. R. 707, 710, 100 Eng. Rep. 815, 817 (K. B.
1790) (Grose, J.) (dicta); id., at 722–723, 100 Eng. Rep.,
at 823–824 (Kenyon, C. J.) (same); compare 1 Gilbert, Evi-
dence, 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. Wood-
cock, 1 Leach 500, 502–504, 168 Eng. Rep. 352, 353 (1789);

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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, Evi-
dence 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
B
Controversial examination practices were also used in the
Colonies. Early in the 18th century, for example, the Vir-
ginia Council protested against the Governor for having
“privately issued several commissions to examine witnesses
against particular men ex parte,” complaining that “the per-
son accused is not admitted to be confronted with, or defend
himself against his defamers.” A Memorial Concerning the
Maladministrations of His Excellency Francis Nicholson,
reprinted in 9 English Historical Documents 253, 257 (D.
Douglas ed. 1955). A decade before the Revolution, Eng-
land gave jurisdiction over Stamp Act offenses to the admi-
ralty courts, which followed civil-law rather than common-
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 ques-
tioned, even in [England], by their ablest writers on common law”); State
v. Campbell, 30 S. C. L. 124, 130 (App. L. 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.

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law procedures and thus routinely took testimony by
deposition or private judicial examination. See 5 Geo. 3,
c. 12, § 57 (1765); Pollitt, The Right of Confrontation: Its
History and Modern Dress, 8 J. Pub. L. 381, 396–397 (1959).
Colonial representatives protested that the Act subverted
their rights “by extending the jurisdiction of the courts of
admiralty beyond its ancient limits.” Resolutions of the
Stamp Act Congress § 8th (Oct. 19, 1765), reprinted in
Sources of Our Liberties 270, 271 (R. Perry & J. Cooper eds.
1959). John Adams, defending a merchant in a high-profile
admiralty case, argued: “Examinations of witnesses upon In-
terrogatories, 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 (Oct. 1768–
Mar. 1769), in 2 Legal Papers of John Adams 194, 207 (L.
Wroth & H. Zobel eds. 1965).
Many declarations of rights adopted around the time of the
Revolution guaranteed a right of confrontation. See Vir-
ginia Declaration of Rights § 8 (1776); Pennsylvania Declara-
tion 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 Decla-
ration 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, how-
ever, 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 defend-
ant] 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

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tribunal in Spain, . . . the Inquisition.” 2 Debates on the
Federal Constitution 110–111 (J. Elliot 2d ed. 1863). Simi-
larly, a prominent Antifederalist writing under the pseud-
onym Federal Farmer criticized the use of “written evi-
dence” 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 under-
standing of the common-law right. State v. Webb, 2 N. C.
103 (Super. L. & Eq. 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 (App. L.
1844), South Carolina’s highest law court excluded a deposi-
tion taken by a coroner in the absence of the accused. It
held: “[I]f we are to decide the question by the established
rules of the common law, there could not be a dissenting
voice. For, notwithstanding the death of the witness, and
whatever the respectability of the court taking the deposi-
tions, 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

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to the conviction of the accused, by witnesses confronted by
him, and subjected to his personal examination.” Ibid.
Many other decisions are to the same effect. Some early
cases went so far as to hold that prior testimony was inad-
missible 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 (Super.
L. & Eq. 1807) (per curiam). Most courts rejected that
view, but only after reaffirming that admissibility depended
on a prior opportunity for cross-examination. See United
States v. Macomb, 26 F. Cas. 1132, 1133 (No. 15,702) (CC Ill.
1851); State v. Houser, 26 Mo. 431, 435–436 (1858); Kendrick
v. State, 29 Tenn. 479, 485–488 (1850); Bostick v. State, 22
Tenn. 344, 345–346 (1842); Commonwealth v. Richards, 35
Mass. 434, 437 (1837); State v. Hill, 20 S. C. L. 607, 608–610
(App. 1835); Johnston v. State, 10 Tenn. 58, 59 (Err. & App.
1821). Nineteenth-century treatises confirm the rule. See
1 J. Bishop, Criminal Procedure § 1093, p. 689 (2d ed. 1872);
T. Cooley, Constitutional Limitations *318.
III
This history supports two inferences about the meaning of
the Sixth Amendment.
A
First, the principal evil at which the Confrontation Clause
was directed was the civil-law mode of criminal procedure,
and particularly its use of ex parte examinations as evidence
against the accused. It was these practices that the Crown
deployed in notorious treason cases like Raleigh’s; that the
Marian statutes invited; that English law’s assertion of a
right to confrontation was meant to prohibit; and that the
founding-era rhetoric decried. The Sixth Amendment must
be interpreted with this focus in mind.
Accordingly, we once again reject the view that the Con-
frontation Clause applies of its own force only to in-court
testimony, and that its application to out-of-court statements

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introduced at trial depends upon “the law of Evidence for
the time being.” 3 Wigmore § 1397, at 101; accord, Dutton
v. Evans, 400 U. S. 74, 94 (1970) (Harlan, J., concurring in
result). Leaving the regulation of out-of-court statements
to the law of evidence would render the Confrontation
Clause powerless to prevent even the most flagrant inquisito-
rial practices. Raleigh was, after all, perfectly free to con-
front those who read Cobham’s confession in court.
This focus also suggests that not all hearsay implicates the
Sixth Amendment’s core concerns. An off-hand, overheard
remark might be unreliable evidence and thus a good candi-
date for exclusion under hearsay rules, but it bears little re-
semblance to the civil-law abuses the Confrontation Clause
targeted. On the other hand, ex parte examinations might
sometimes be admissible under modern hearsay rules, but
the Framers certainly would not have condoned them.
The text of the Confrontation Clause reflects this focus.
It applies to “witnesses” against the accused—in other
words, those who “bear testimony.” 2 N. Webster, An
American Dictionary of the English Language (1828).
“Testimony,” in turn, is typically “[a] solemn declaration
or affirmation made for the purpose of establishing or prov-
ing some fact.” Ibid. An accuser who makes a formal
statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance
does not. The constitutional text, like the history underly-
ing 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 func-
tional equivalent—that is, material such as affidavits, custo-
dial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecuto-
rially,” Brief for Petitioner 23; “extrajudicial statements . . .

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contained in formalized testimonial materials, such as affi-
davits, depositions, prior testimony, or confessions,” White
v. Illinois, 502 U. S. 346, 365 (1992) (Thomas, J., joined by
Scalia, J., concurring in part and concurring in judgment);
“statements that were made under circumstances which
would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial,”
Brief for National Association of Criminal Defense Lawyers
et al. as Amici Curiae 3. These formulations all share a
common nucleus and then define the Clause’s coverage at
various levels of abstraction around it. Regardless of the
precise articulation, some statements qualify under any
definition—for example, ex parte testimony at a prelimi-
nary hearing.
Statements taken by police officers in the course of inter-
rogations are also testimonial under even a narrow standard.
Police interrogations bear a striking resemblance to exami-
nations 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 stat-
utes, witnesses were typically put on oath, but suspects were
not. See 2 Hale, Pleas of the Crown, at 52. Yet Hawkins
and others went out of their way to caution that such un-
sworn confessions were not admissible against anyone but
the confessor. See supra, at 45. 3
3 These sources—especially Raleigh’s trial—refute The Chief Jus-
tice’s assertion, post, at 71 (opinion concurring in judgment), that the
right of confrontation was not particularly concerned with unsworn testi-
monial statements. But even if, as he claims, a general bar on unsworn
hearsay made application of the Confrontation Clause to unsworn testimo-
nial 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 con-
demned trial by sworn ex parte affidavit thought trial by unsworn ex

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That interrogators are police officers rather than magis-
trates does not change the picture either. Justices of the
peace conducting examinations under the Marian statutes
were not magistrates as we understand that office today, but
had an essentially investigative and prosecutorial function.
See 1 Stephen, Criminal Law of England, at 221; Langbein,
Prosecuting Crime in the Renaissance, at 34–45. England
did not have a professional police force until the 19th century,
see 1 Stephen, supra, at 194–200, so it is not surprising that
other government officers performed the investigative func-
tions now associated primarily with the police. The involve-
ment of government officers in the production of testimonial
evidence presents the same risk, whether the officers are
police or justices of the peace.
In sum, even if the Sixth Amendment is not solely con-
cerned with testimonial hearsay, that is its primary object,
and interrogations by law enforcement officers fall squarely
within that class.4
B
The historical record also supports a second proposition:
that the Framers would not have allowed admission of testi-
parte affidavit perfectly OK. (The claim that unsworn testimony was
self-regulating because jurors would disbelieve it, cf. post, at 69–70, n. 1,
is belied by the very existence of a general bar on unsworn testimony.)
Any attempt to determine the application of a constitutional provision to
a phenomenon that did not exist at the time of its adoption (here, allegedly,
admissible unsworn testimony) involves some degree of estimation—what
The Chief Justice calls use of a “proxy,” post, at 71—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.
4 We use the term “interrogation” in its colloquial, rather than any tech-
nical legal, sense. Cf. Rhode Island v. Innis, 446 U. S. 291, 300–301 (1980).
Just as various definitions of “testimonial” exist, one can imagine various
definitions of “interrogation,” and we need not select among them in this
case. Sylvia’s recorded statement, knowingly given in response to struc-
tured police questioning, qualifies under any conceivable definition.

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monial 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 ex-
ceptions from the confrontation requirement to be developed
by the courts. Rather, the “right . . . to be confronted with
the witnesses against him,” Amdt. 6, is most naturally read
as a reference to the right of confrontation at common law,
admitting only those exceptions established at the time of
the founding. See Mattox v. United States, 156 U. S. 237,
243 (1895); cf. Houser, 26 Mo., at 433–435. As the English
authorities above reveal, the common law in 1791 conditioned
admissibility of an absent witness’s examination on unavail-
ability and a prior opportunity to cross-examine. The Sixth
Amendment therefore incorporates those limitations. The
numerous early state decisions applying the same test con-
firm that these principles were received as part of the com-
mon 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 72–73, but
the examples he cites relate to examinations under the Marian statutes.
As we have explained, to the extent Marian examinations were admissible,
it was only because the statutes derogated from the common law. See
supra, at 46–47. Moreover, by 1791 even the statutory-derogation view
had been rejected with respect to justice-of-the-peace examinations—ex-
plicitly 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

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We do not read the historical sources to say that a prior
opportunity to cross-examine was merely a sufficient, rather
than a necessary, condition for admissibility of testimonial
statements. They suggest that this requirement was dis-
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 stat-
utes 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 authori-
ties 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, Evi-
dence 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 spe-
cifically 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 admis-
sibility of the evidence . . . that it was abandoned by the counsel . . .
without argument”), further suggesting that his views on evidence were
not mainstream at the time of the framing.
In short, none of The Chief Justice’s sources shows that the law in
1791 was unsettled even as to examinations by justices of the peace under
the Marian statutes. More importantly, however, even if the statutory
rule in 1791 were in doubt, the numerous early state-court decisions make
abundantly clear that the Sixth Amendment incorporated the common-
law right of confrontation and not any exceptions the Marian statutes
supposedly carved out from it. See supra, at 49–50; see also supra, at 47,
n. 2 (coroner statements). The common-law rule had been settled since
Paine in 1696. See King v. Paine, 5 Mod. 163, 165, 87 Eng. Rep. 584, 585
(K. B.).

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positive, and not merely one of several ways to establish re-
liability. 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 73. 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 crimi-
nal case.6 Most of the hearsay exceptions covered state-
ments that by their nature were not testimonial—for exam-
ple, business records or statements in furtherance of a
conspiracy. We do not infer from these that the Framers
thought exceptions would apply even to prior testimony.
Cf. Lilly v. Virginia, 527 U. S. 116, 134 (1999) (plurality opin-
ion) (“[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 can-
not be disputed. See, e. g., Mattox v. United States, 156 U. S. 237, 243–244
(1895); King v. Reason, 16 How. St. Tr. 1, 24–38 (K. B. 1722); 1 D. Jardine,
Criminal Trials 435 (1832); Cooley, Constitutional Limitations, at *318; 1
G. Gilbert, Evidence 211 (C. Lofft ed. 1791); see also F. Heller, The Sixth
Amendment 105 (1951) (asserting that this was the only recognized crimi-
nal hearsay exception at common law). Although many dying declara-
tions 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 testimo-
nial dying declarations. If this exception must be accepted on historical
grounds, it is sui generis.
7 We cannot agree with The Chief Justice that the fact “[t]hat a state-
ment might be testimonial does nothing to undermine the wisdom of one
of these [hearsay] exceptions.” Post, at 74. Involvement of government
officers in the production of testimony with an eye toward trial presents
unique potential for prosecutorial abuse—a fact borne out time and again
throughout a history with which the Framers were keenly familiar. This
consideration does not evaporate when testimony happens to fall within

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IV
Our case law has been largely consistent with these two
principles. Our leading early decision, for example, involved
a deceased witness’s prior trial testimony. Mattox v.
United States, 156 U. S. 237 (1895). In allowing the state-
ment to be admitted, we relied on the fact that the defendant
had had, at the first trial, an adequate opportunity to con-
front the witness: “The substance of the constitutional pro-
tection is preserved to the prisoner in the advantage he has
once had of seeing the witness face to face, and of subjecting
him to the ordeal of a cross-examination. This, the law says,
he shall under no circumstances be deprived of . . . .” Id.,
at 244.
Our later cases conform to Mattox’s holding that prior trial
or preliminary hearing testimony is admissible only if the
defendant had an adequate opportunity to cross-examine.
See Mancusi v. Stubbs, 408 U. S. 204, 213–216 (1972); Cali-
fornia v. Green, 399 U. S. 149, 165–168 (1970); Pointer v.
Texas, 380 U. S., at 406–408; cf. Kirby v. United States, 174
U. S. 47, 55–61 (1899). Even where the defendant had such
an opportunity, we excluded the testimony where the gov-
ernment had not established unavailability of the witness.
See Barber v. Page, 390 U. S. 719, 722–725 (1968); cf. Motes
v. United States, 178 U. S. 458, 470–471 (1900). We similarly
excluded accomplice confessions where the defendant had no
opportunity to cross-examine. See Roberts v. Russell, 392
U. S. 293, 294–295 (1968) (per curiam); Bruton v. United
States, 391 U. S. 123, 126–128 (1968); Douglas v. Alabama,
380 U. S. 415, 418–420 (1965). In contrast, we considered
reliability factors beyond prior opportunity for cross-
examination when the hearsay statement at issue was not
testimonial. See Dutton v. Evans, 400 U. S., at 87–89 (plu-
rality opinion).
some broad, modern hearsay exception, even if that exception might be
justifiable in other circumstances.

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Even our recent cases, in their outcomes, hew closely to
the traditional line. Ohio v. Roberts, 448 U. S., at 67–70, ad-
mitted testimony from a preliminary hearing at which the
defendant had examined the witness. Lilly v. Virginia,
supra, excluded testimonial statements that the defendant
had had no opportunity to test by cross-examination. And
Bourjaily v. United States, 483 U. S. 171, 181–184 (1987), ad-
mitted statements made unwittingly to a Federal Bureau of
Investigation informant after applying a more general test
that did not make prior cross-examination an indispensable
requirement.8
Lee v. Illinois, 476 U. S. 530 (1986), on which the State
relies, is not to the contrary. There, we rejected the State’s
attempt to admit an accomplice confession. The State had
argued that the confession was admissible because it “inter-
locked” with the defendant’s. We dealt with the argument
by rejecting its premise, holding that “when the discrep-
ancies between the statements are not insignificant, the
codefendant’s confession may not be admitted.” Id., at 545.
Respondent argues that “[t]he logical inference of this state-
8 One case arguably in tension with the rule requiring a prior opportu-
nity for cross-examination when the proffered statement is testimonial is
White v. Illinois, 502 U. S. 346 (1992), which involved, inter alia, state-
ments of a child victim to an investigating police officer admitted as spon-
taneous declarations. Id., at 349–351. It is questionable whether testi-
monial statements would ever have been admissible on that ground in
1791; to the extent the hearsay exception for spontaneous declarations
existed at all, it required that the statements be made “immediat[ely] upon
the hurt received, and before [the declarant] had time to devise or contrive
any thing for her own advantage.” Thompson v. Trevanion, Skin. 402,
90 Eng. Rep. 179 (K. B. 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.
The holding did not address the question whether certain of the state-
ments, 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.

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ment 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 jurispru-
dence—for interlocking confessions, it would not have done
so in such an oblique manner. Our only precedent on inter-
locking confessions had addressed the entirely different
question whether a limiting instruction cured prejudice to
codefendants from admitting a defendant’s own confession
against him in a joint trial. See Parker v. Randolph, 442
U. S. 62, 69–76 (1979) (plurality opinion), abrogated by Cruz
v. New York, 481 U. S. 186 (1987).
Our cases have thus remained faithful to the Framers’ un-
derstanding: 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 (1895), Kirby v. United States, 174 U. S. 47
(1899), and United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807)
(Marshall, C. J.). Post, at 71–72. But nothing in these cases contradicts
our holding in any way. Mattox and Kirby allowed or excluded evidence
depending on whether the defendant had had an opportunity for cross-
examination. Mattox, supra, at 242–244; Kirby, supra, at 55–61. That
the two cases did not extrapolate a more general class of evidence to which
that criterion applied does not prevent us from doing so now. As to Burr,
we disagree with The Chief Justice’s reading of the case. Although
Chief Justice Marshall made one passing reference to the Confrontation
Clause, the case was fundamentally about the hearsay rules governing
statements in furtherance of a conspiracy. The “principle so truly impor-
tant” 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

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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 condi-
tions the admissibility of all hearsay evidence on whether
it falls under a “firmly rooted hearsay exception” or bears
“particularized guarantees of trustworthiness.” 448 U. S.,
at 66. This test departs from the historical principles iden-
tified above in two respects. First, it is too broad: It applies
the same mode of analysis whether or not the hearsay con-
sists of ex parte testimony. This often results in close con-
stitutional 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 paradig-
matic confrontation violations.
Members of this Court and academics have suggested that
we revise our doctrine to reflect more accurately the original
understanding of the Clause. See, e. g., Lilly, 527 U. S., at
140–143 (Breyer, J., concurring); White, 502 U. S., at 366
to identify a single case (aside from one minor, arguable exception, see
supra, at 58, n. 8), where we have admitted testimonial statements based
on indicia of reliability other than a prior opportunity for cross-
examination. If nothing else, the test we announce is an empirically accu-
rate explanation of the results our cases have reached.
Finally, we reiterate that, when the declarant appears for cross-
examination at trial, the Confrontation Clause places no constraints at all
on the use of his prior testimonial statements. See California v. Green,
399 U. S. 149, 162 (1970). It is therefore irrelevant that the reliability of
some out-of-court statements “ ‘cannot be replicated, even if the declarant
testifies to the same matters in court.’ ” Post, at 74 (quoting United
States v. Inadi, 475 U. S. 387, 395 (1986)). The Clause does not bar admis-
sion 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 state-
ments for purposes other than establishing the truth of the matter as-
serted. See Tennessee v. Street, 471 U. S. 409, 414 (1985).)

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(Thomas, J., joined by Scalia, J., concurring in part and con-
curring in judgment); A. Amar, The Constitution and Crimi-
nal 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 over-
breadth referred to above. Second, that we impose an abso-
lute bar to statements that are testimonial, absent a prior
opportunity to cross-examine—thus eliminating the exces-
sive narrowness referred to above.
In White, we considered the first proposal and rejected it.
502 U. S., at 352–353. Although our analysis in this case
casts doubt on that holding, we need not definitively resolve
whether it survives our decision today, because Sylvia Craw-
ford’s statement is testimonial under any definition. This
case does, however, squarely implicate the second proposal.
A
Where testimonial statements are involved, we do not
think the Framers meant to leave the Sixth Amendment’s
protection to the vagaries of the rules of evidence, much less
to amorphous notions of “reliability.” Certainly none of the
authorities discussed above acknowledges any general relia-
bility exception to the common-law rule. Admitting state-
ments 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 com-
mands, 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 reliabil-
ity can best be determined. Cf. 3 Blackstone, Commen-
taries, at 373 (“This open examination of witnesses . . . is

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much more conducive to the clearing up of truth”); M. Hale,
History and Analysis of the Common Law of England 258
(1713) (adversarial testing “beats and bolts out the Truth
much better”).
The Roberts test allows a jury to hear evidence, untested
by the adversary process, based on a mere judicial determi-
nation of reliability. It thus replaces the constitutionally
prescribed method of assessing reliability with a wholly for-
eign one. In this respect, it is very different from excep-
tions to the Confrontation Clause that make no claim to
be a surrogate means of assessing reliability. For exam-
ple, the rule of forfeiture by wrongdoing (which we accept)
extinguishes confrontation claims on essentially equitable
grounds; it does not purport to be an alternative means of
determining reliability. See Reynolds v. United States, 98
U. S. 145, 158–159 (1879).
The Raleigh trial itself involved the very sorts of reliabil-
ity determinations that Roberts authorizes. In the face of
Raleigh’s repeated demands for confrontation, the prosecu-
tion 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 Par-
don,” id., at 29. It is not plausible that the Framers’ only
objection to the trial was that Raleigh’s judges did not prop-
erly weigh these factors before sentencing him to death.
Rather, the problem was that the judges refused to allow
Raleigh to confront Cobham in court, where he could cross-
examine him and try to expose his accusation as a lie.
Dispensing with confrontation because testimony is obvi-
ously reliable is akin to dispensing with jury trial because a
defendant is obviously guilty. This is not what the Sixth
Amendment prescribes.
B
The legacy of Roberts in other courts vindicates the Fram-
ers’ wisdom in rejecting a general reliability exception.

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The framework is so unpredictable that it fails to pro-
vide meaningful protection from even core confrontation
violations.
Reliability is an amorphous, if not entirely subjective, con-
cept. 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 de-
pends 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 “de-
tailed,” id., at 407, while the Fourth Circuit found a state-
ment more reliable because the portion implicating another
was “fleeting,” United States v. Photogrammetric Data
Servs., Inc., 259 F. 3d 229, 245 (2001). The Virginia Court
of Appeals found a statement more reliable because the wit-
ness was in custody and charged with a crime (thus making
the statement more obviously against her penal interest), see
Nowlin v. Commonwealth, 40 Va. App. 327, 335–338, 579
S. E. 2d 367, 371–372 (2003), while the Wisconsin Court of
Appeals found a statement more reliable because the witness
was not in custody and not a suspect, see State v. Bintz, 2002
WI App. 204, ¶ 13, 257 Wis. 2d 177, ¶13, 650 N. W. 2d 913,
¶13. Finally, the Colorado Supreme Court in one case found
a statement more reliable because it was given “immediately
after” the events at issue, Farrell, supra, at 407, while that
same court, in another case, found a statement more reliable
because two years had elapsed, Stevens v. People, 29 P. 3d
305, 316 (2001).
The unpardonable vice of the Roberts test, however, is not
its unpredictability, but its demonstrated capacity to admit
core testimonial statements that the Confrontation Clause
plainly meant to exclude. Despite the plurality’s speculation
in Lilly, 527 U. S., at 137, that it was “highly unlikely” that

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accomplice confessions implicating the accused could survive
Roberts, courts continue routinely to admit them. See Pho-
togrammetric Data Servs., supra, at 245–246; Farrell, supra,
at 406–408; Stevens, supra, at 314–318; Taylor v. Common-
wealth, 63 S. W. 3d 151, 166–168 (Ky. 2001); State v. Hawkins,
No. 2001–P–0060, 2002 WL 31895118, ¶¶ 34–37, *6 (Ohio
App., Dec. 31, 2002); Bintz, supra, ¶¶ 7–14, 257 Wis. 2d, at
183–188, 650 N. W. 2d, at 916–918; People v. Lawrence, 55
P. 3d 155, 160–161 (Colo. App. 2001); State v. Jones, 171 Ore.
App. 375, 387–391, 15 P. 3d 616, 623–625 (2000); State v. Mar-
shall, 136 Ohio App. 3d 742, 747–748, 737 N. E. 2d 1005, 1009
(2000); People v. Schutte, 240 Mich. App. 713, 718–721, 613
N. W. 2d 370, 376–377 (2000); People v. Thomas, 313 Ill. App.
3d 998, 1005–1007, 730 N. E. 2d 618, 625–626 (2000);
cf. Nowlin, supra, at 335–338, 579 S. E. 2d, at 371–372 (wit-
ness confessed to a related crime); People v. Campbell, 309
Ill. App. 3d 423, 431–432, 721 N. E. 2d 1225, 1230 (1999)
(same). One recent study found that, after Lilly, appellate
courts admitted accomplice statements to the authorities in
25 out of 70 cases—more than one-third of the time. Kirst,
Appellate Court Answers to the Confrontation Questions in
Lilly v. Virginia, 53 Syracuse L. Rev. 87, 105 (2003). Courts
have invoked Roberts to admit other sorts of plainly testimo-
nial 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 exist-
ence of a conspiracy); United States v. Centracchio, 265 F. 3d
518, 527–530 (CA7 2001) (same); United States v. Dolah, 245
F. 3d 98, 104–105 (CA2 2001) (same); United States v. Pe-
trillo, 237 F. 3d 119, 122–123 (CA2 2000) (same); United
States v. Moskowitz, 215 F. 3d 265, 268–269 (CA2 2000) (per
curiam) (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) (per
curiam) (same); Bintz, supra, ¶¶ 15–22, 257 Wis. 2d, at 188–

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191, 650 N. W. 2d, at 918–920 (prior trial testimony); State v.
McNeill, 140 N. C. App. 450, 457–460, 537 S. E. 2d 518, 523–
524 (2000) (same).
To add insult to injury, some of the courts that admit
untested testimonial statements find reliability in the very
factors that make the statements testimonial. As noted
earlier, one court relied on the fact that the witness’s state-
ment 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 con-
frontation 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 “de-
pend[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 sev-
eral 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

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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 knowl-
edge of the events. But Sylvia at one point told the police
that she had “shut [her] eyes and . . . didn’t really watch”
part of the fight, and that she was “in shock.” App. 134.
The trial court also buttressed its reliability finding by claim-
ing that Sylvia was “being questioned by law enforcement,
and, thus, the [questioner] is . . . neutral to her and not some-
one who would be inclined to advance her interests and
shade her version of the truth unfavorably toward the de-
fendant.” 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” gov-
ernment officers. But even if the court’s assessment of the
officer’s motives was accurate, it says nothing about Sylvia’s
perception of her situation. Only cross-examination could
reveal that.
The State Supreme Court gave dispositive weight to the
interlocking nature of the two statements—that they were
both ambiguous as to when and whether Lee had a weapon.
The court’s claim that the two statements were equally am-
biguous is hard to accept. Petitioner’s statement is ambig-
uous only in the sense that he had lingering doubts about
his recollection: “A. I could a 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 (punctuation added). Moreover, Sylvia specifi-

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cally 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 “damn-
ing 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 sim-
ply 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 se-
cures its intended constraint on judicial discretion. More-
over, to reverse the Washington Supreme Court’s decision
after conducting our own reliability analysis would perpetu-
ate, 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 Fram-
ers, however, would not have been content to indulge this
assumption. They knew that judges, like other government
officers, could not always be trusted to safeguard the rights
of the people; the likes of the dread Lord Jeffreys were not
yet too distant a memory. They were loath to leave too
much discretion in judicial hands. Cf. U. S. Const., Amdt. 6
(criminal jury trial); Amdt. 7 (civil jury trial); Ring v. Ari-
zona, 536 U. S. 584, 611–612 (2002) (Scalia, J., concurring).
By replacing categorical constitutional guarantees with

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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 impartial-
ity of even those at the highest levels of the judiciary might
not be so clear. It is difficult to imagine Roberts’ providing
any meaningful protection in those circumstances.
* * *
Where nontestimonial hearsay is at issue, it is wholly con-
sistent with the Framers’ design to afford the States flexi-
bility in their development of hearsay law—as does Roberts,
and as would an approach that exempted such statements
from Confrontation Clause scrutiny altogether. Where tes-
timonial evidence is at issue, however, the Sixth Amendment
demands what the common law required: unavailability and
a prior opportunity for cross-examination. We leave for an-
other day any effort to spell out a comprehensive definition
of “testimonial.” 10 Whatever else the term covers, it ap-
plies at a minimum to prior testimony at a preliminary hear-
ing, before a grand jury, or at a former trial; and to police
interrogations. These are the modern practices with closest
kinship to the abuses at which the Confrontation Clause
was directed.
In this case, the State admitted Sylvia’s testimonial state-
ment 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
10 We acknowledge The Chief Justice’s objection, post, at 75–76, 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 63–67, and cases cited. The difference is that the Roberts
test is inherently, and therefore permanently, unpredictable.

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issue, the only indicium of reliability sufficient to satisfy con-
stitutional demands is the one the Constitution actually pre-
scribes: 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.
Chief Justice Rehnquist, with whom Justice O’Con-
nor joins, concurring in the judgment.
I dissent from the Court’s decision to overrule Ohio v. Rob-
erts, 448 U. S. 56 (1980). I believe that the Court’s adop-
tion of a new interpretation of the Confrontation Clause is
not backed by sufficiently persuasive reasoning to overrule
long-established precedent. Its decision casts a mantle of
uncertainty over future criminal trials in both federal and
state courts, and is by no means necessary to decide the pres-
ent case.
The Court’s distinction between testimonial and nontesti-
monial statements, contrary to its claim, is no better rooted
in history than our current doctrine. Under the common
law, although the courts were far from consistent, out-of-
court statements made by someone other than the accused
and not taken under oath, unlike ex parte depositions or af-
fidavits, were generally not considered substantive evidence
upon which a conviction could be based.1 See, e. g., King v.
1 Modern scholars have concluded that at the time of the founding the
law had yet to fully develop the exclusionary component of the hearsay
rule and its attendant exceptions, and thus hearsay was still often heard
by the jury. See Gallanis, The Rise of Modern Evidence Law, 84 Iowa
L. Rev. 499, 534–535 (1999); Mosteller, Remaking Confrontation Clause
and Hearsay Doctrine Under the Challenge of Child Sexual Abuse Prose-
cutions, 1993 U. Ill. L. Rev. 691, 738–746. In many cases, hearsay alone
was generally not considered sufficient to support a conviction; rather,
it was used to corroborate sworn witness testimony. See 5 J. Wigmore,
Evidence § 1364, pp. 17, 19–20, 19, n. 33 (J. Chadbourn rev. 1974) (herein-
after Wigmore) (noting in the 1600’s and early 1700’s testimonial and non-

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Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202 (K. B. 1779);
see also J. Langbein, Origins of Adversary Criminal Trial
235–242 (2003); G. Gilbert, Evidence 152 (3d ed. 1769).2 Tes-
timonial statements such as accusatory statements to police
officers likely would have been disapproved of in the 18th
century, not necessarily because they resembled ex parte af-
fidavits or depositions as the Court reasons, but more likely
than not because they were not made under oath.3 See King
v. Woodcock, 1 Leach 500, 503, 168 Eng. Rep. 352, 353 (1789)
(noting that a statement taken by a justice of the peace may
not be admitted into evidence unless taken under oath).
testimonial hearsay was permissible to corroborate direct testimony); see
also J. Langbein, Origins of Adversary Criminal Trial 238–239 (2003).
Even when unsworn hearsay was proffered as substantive evidence, how-
ever, because of the predominance of the oath in society, juries were
largely skeptical of it. See Landsman, Rise of the Contentious Spirit:
Adversary Procedure in Eighteenth Century England, 75 Cornell L. Rev.
497, 506 (1990) (describing late 17th-century sentiments); Langbein, Crimi-
nal Trial before the Lawyers, 45 U. Chi. L. Rev. 263, 291–293 (1978). In
the 18th century, unsworn hearsay was simply held to be of much lesser
value than were sworn affidavits or depositions.
2 Gilbert’s noted in 1769:
“Hearsay is no Evidence . . . though a Person Testify what he hath heard
upon Oath, yet the Person who spake it was not upon Oath; and if a Man
had been in Court and said the same Thing and had not sworn it, he had
not been believed in a Court of Justice; for all Credit being derived from
Attestation and Evidence, it can rise no higher than the Fountain from
whence it flows, and if the first Speech was without Oath, an Oath that
there was such a Speech makes it no more than a bare speaking, and so of
no Value in a Court of Justice, where all Things were determined under
the Solemnities of an Oath . . . .”
3 Confessions not taken under oath were admissible against a confessor
because “ ‘the most obvious Principles of Justice, Policy, and Humanity’ ”
prohibited an accused from attesting to his statements. 1 G. Gilbert, Evi-
dence 216 (C. Lofft ed. 1791). Still, these unsworn confessions were
considered evidence only against the confessor as the Court points out,
see ante, at 52, and in cases of treason, were insufficient to support even
the conviction of the confessor, 2 W. Hawkins, Pleas of the Crown, ch. 46,
§ 4, p. 604, n. 3 (T. Leach 6th ed. 1787).

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Without an oath, one usually did not get to the second step
of whether confrontation was required.
Thus, while I agree that the Framers were mainly con-
cerned about sworn affidavits and depositions, it does not
follow that they were similarly concerned about the Court’s
broader category of testimonial statements. See 2 N. Web-
ster, An American Dictionary of the English Language
(1828) (defining “Testimony” as “[a] solemn declaration or af-
firmation made for the purpose of establishing or proving
some fact. Such affirmation in judicial proceedings, may
be verbal or written, but must be under oath” (emphasis
added)). As far as I can tell, unsworn testimonial state-
ments were treated no differently at common law than were
nontestimonial statements, and it seems to me any classifi-
cation of statements as testimonial beyond that of sworn
affidavits and depositions will be somewhat arbitrary, merely
a proxy for what the Framers might have intended had such
evidence been liberally admitted as substantive evidence like
it is today.4
I therefore see no reason why the distinction the Court
draws is preferable to our precedent. Starting with Chief
Justice Marshall’s interpretation as a Circuit Justice in 1807,
16 years after the ratification of the Sixth Amendment,
United States v. Burr, 25 F. Cas. 187, 193 (No. 14,694) (CC
Va. 1807), continuing with our cases in the late 19th century,
Mattox v. United States, 156 U. S. 237, 243–244 (1895); Kirby
4 The fact that the prosecution introduced an unsworn examination in
1603 at Sir Walter Raleigh’s trial, as the Court notes, see ante, at 52, says
little about the Court’s distinction between testimonial and nontestimonial
statements. Our precedent indicates that unsworn testimonial state-
ments, as do some nontestimonial statements, raise confrontation concerns
once admitted into evidence, see, e. g., Lilly v. Virginia, 527 U. S. 116
(1999); Lee v. Illinois, 476 U. S. 530 (1986), and I do not contend otherwise.
My point is not that the Confrontation Clause does not reach these state-
ments, but rather that it is far from clear that courts in the late 18th
century would have treated unsworn statements, even testimonial ones,
the same as sworn statements.

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v. United States, 174 U. S. 47, 54–57 (1899), and through
today, e. g., White v. Illinois, 502 U. S. 346, 352–353 (1992),
we have never drawn a distinction between testimonial and
nontestimonial statements. And for that matter, neither
has any other court of which I am aware. I see little value
in trading our precedent for an imprecise approximation at
this late date.
I am also not convinced that the Confrontation Clause cat-
egorically requires the exclusion of testimonial statements.
Although many States had their own Confrontation Clauses,
they were of recent vintage and were not interpreted with
any regularity before 1791. State cases that recently fol-
lowed the ratification of the Sixth Amendment were not uni-
form; the Court itself cites state cases from the early 19th
century that took a more stringent view of the right to con-
frontation than does the Court, prohibiting former testimony
even if the witness was subjected to cross-examination. See
ante, at 50 (citing Finn v. Commonwealth, 26 Va. 701, 708
(1827); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807)
(per curiam)).
Nor was the English law at the time of the framing en-
tirely consistent in its treatment of testimonial evidence.
Generally ex parte affidavits and depositions were excluded
as the Court notes, but even that proposition was not univer-
sal. See King v. Eriswell, 3 T. R. 707, 100 Eng. Rep. 815
(K. B. 1790) (affirming by an equally divided court the admis-
sion of an ex parte examination because the declarant was
unavailable to testify); King v. Westbeer, 1 Leach 12, 13, 168
Eng. Rep. 108, 109 (1739) (noting the admission of an ex parte
affidavit); see also 1 M. Hale, Pleas of the Crown 585–586
(1736) (noting that statements of “accusers and witnesses”
which were taken under oath could be admitted into evidence
if the declarant was “dead or not able to travel”). Wigmore
notes that sworn examinations of witnesses before justices
of the peace in certain cases would not have been excluded

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until the end of the 1700’s, 5 Wigmore § 1364, at 26–27, and
sworn statements of witnesses before coroners became
excluded only by statute in the 1800’s, see ibid.; id., § 1374,
at 59. With respect to unsworn testimonial statements,
there is no indication that once the hearsay rule was devel-
oped courts ever excluded these statements if they other-
wise fell within a firmly rooted exception. See, e. g., Eris-
well, supra, at 715–719 (Buller, J.), 720 (Ashhurst, J.), 100
Eng. Rep., at 819–822 (concluding that an ex parte exami-
nation was admissible as an exception to the hearsay rule
because it was a declaration by a party of his state and con-
dition). Dying declarations are one example. See, e. g.,
Woodcock, supra, at 502–504, 168 Eng. Rep., at 353–354;
King v. Reason, 16 How. St. Tr. 1, 22–23 (K. B. 1722).
Between 1700 and 1800 the rules regarding the admissibil-
ity of out-of-court statements were still being developed.
See n. 1, supra. There were always exceptions to the gen-
eral rule of exclusion, and it is not clear to me that the Fram-
ers categorically wanted to eliminate further ones. It is one
thing to trace the right of confrontation back to the Roman
Empire; it is quite another to conclude that such a right abso-
lutely excludes a large category of evidence. It is an odd
conclusion indeed to think that the Framers created a cut-
and-dried rule with respect to the admissibility of testimo-
nial statements when the law during their own time was not
fully settled.
To find exceptions to exclusion under the Clause is not to
denigrate it as the Court suggests. Chief Justice Marshall
stated of the Confrontation Clause: “I know of no principle
in the preservation of which all are more concerned. I know
none, by undermining which, life, liberty and property, might
be more endangered. It is therefore incumbent on courts to
be watchful of every inroad on a principle so truly impor-
tant.” Burr, 25 F. Cas., at 193. Yet, he recognized that
such a right was not absolute, acknowledging that exceptions

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to the exclusionary component of the hearsay rule, which he
considered as an “inroad” on the right to confrontation, had
been introduced. See ibid.
Exceptions to confrontation have always been derived
from the experience that some out-of-court statements are
just as reliable as cross-examined in-court testimony due to
the circumstances under which they were made. We have
recognized, for example, that co-conspirator statements sim-
ply “cannot be replicated, even if the declarant testifies to
the same matters in court.” United States v. Inadi, 475
U. S. 387, 395 (1986). Because the statements are made
while the declarant and the accused are partners in an illegal
enterprise, the statements are unlikely to be false and their
admission “actually furthers the ‘Confrontation Clause’s very
mission’ which is to ‘advance the accuracy of the truth-
determining process in criminal trials.’ ” Id., at 396 (quot-
ing Tennessee v. Street, 471 U. S. 409, 415 (1985) (some inter-
nal quotation marks omitted)). Similar reasons justify the
introduction of spontaneous declarations, see White, 502
U. S., at 356, statements made in the course of procuring
medical services, see ibid., dying declarations, see Kirby,
supra, at 61, and countless other hearsay exceptions. That
a statement might be testimonial does nothing to undermine
the wisdom of one of these exceptions.
Indeed, cross-examination is a tool used to flesh out the
truth, not an empty procedure. See Kentucky v. Stincer,
482 U. S. 730, 737 (1987) (“The right to cross-examination,
protected by the Confrontation Clause, thus is essentially a
‘functional’ right designed to promote reliability in the
truth-finding functions of a criminal trial”); see also Mary-
land v. Craig, 497 U. S. 836, 845 (1990) (“The central concern
of the Confrontation Clause is to ensure the reliability of
the evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding
before the trier of fact”). “[I]n a given instance [cross-

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75 Cite as: 541 U. S. 36 (2004)
Rehnquist, C. J., concurring in judgment
examination may] be superfluous; it may be sufficiently clear,
in that instance, that the statement offered is free enough
from the risk of inaccuracy and untrustworthiness, so that
the test of cross-examination would be a work of supereroga-
tion.” 5 Wigmore § 1420, at 251. In such a case, as we
noted over 100 years ago, “The law in its wisdom declares
that the rights of the public shall not be wholly sacrificed
in order that an incidental benefit may be preserved to the
accused.” Mattox, 156 U. S., at 243; see also Salinger v.
United States, 272 U. S. 542, 548 (1926). By creating an im-
mutable category of excluded evidence, the Court adds little
to a trial’s truth-finding function and ignores this longstand-
ing guidance.
In choosing the path it does, the Court of course overrules
Ohio v. Roberts, 448 U. S. 56 (1980), a case decided nearly a
quarter of a century ago. Stare decisis is not an inexorable
command in the area of constitutional law, see Payne v. Ten-
nessee, 501 U. S. 808, 828 (1991), but by and large, it “is the
preferred course because it promotes the evenhanded, pre-
dictable, and consistent development of legal principles, fos-
ters reliance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial process,” id., at
827. And in making this appraisal, doubt that the new rule
is indeed the “right” one should surely be weighed in the
balance. Though there are no vested interests involved, un-
resolved questions for the future of everyday criminal trials
throughout the country surely counsel the same sort of cau-
tion. The Court grandly declares that “[w]e leave for an-
other day any effort to spell out a comprehensive definition
of ‘testimonial,’ ” ante, at 68. But the thousands of federal
prosecutors and the tens of thousands of state prosecutors
need answers as to what beyond the specific kinds of “testi-
mony” the Court lists, see ibid., is covered by the new rule.
They need them now, not months or years from now. Rules
of criminal evidence are applied every day in courts through-

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76 CRAWFORD v. WASHINGTON
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out the country, and parties should not be left in the dark in
this manner.
To its credit, the Court’s analysis of “testimony” excludes
at least some hearsay exceptions, such as business records
and official records. See ante, at 56. To hold otherwise
would require numerous additional witnesses without any
apparent gain in the truth-seeking process. Likewise to the
Court’s credit is its implicit recognition that the mistaken
application of its new rule by courts which guess wrong as
to the scope of the rule is subject to harmless-error analysis.
See ante, at 42, n. 1.
But these are palliatives to what I believe is a mistaken
change of course. It is a change of course not in the least
necessary to reverse the judgment of the Supreme Court of
Washington in this case. The result the Court reaches fol-
lows inexorably from Roberts and its progeny without any
need for overruling that line of cases. In Idaho v. Wright,
497 U. S. 805, 820–824 (1990), we held that an out-of-court
statement was not admissible simply because the truthful-
ness of that statement was corroborated by other evidence
at trial. As the Court notes, ante, at 66, the Supreme Court
of Washington gave decisive weight to the “interlocking na-
ture of the two statements.” No re-weighing of the “relia-
bility factors,” which is hypothesized by the Court, ante, at
67, is required to reverse the judgment here. A citation to
Idaho v. Wright, supra, would suffice. For the reasons
stated, I believe that this would be a far preferable course
for the Court to take here.