Lilly v. Virginia
Decided on June 10, 1999; 527 US 116


A. Issues Discussed:  Criminal Justice (procedure), Sixth Amendment

B. Legal Question Presented:

Is the Sixth Amendment right to confrontation and cross-examination violated when, at trial, the entire confession of an accomplice who is not testifying is admitted into evidence and that confession contains both statements against the accomplice's penal interest and statements that inculpate the accused?


A. Background:

Benjamin Lee Lilly (petitioner), his brother Mark, and Mark's roommate were taken into custody after a multi-day crime spree. They were each questioned apart from one another. Petitioner's brother Mark was interviewed twice and, after police told him that unless he broke "family ties," his brother "may be dragging you right in to a life sentence," he implicated his brother as the one who had committed a murder during the course of the group's other crimes.

Petitioner was charged with several offenses, including the murder, and was tried separately. At trial, Mark was called as a witness, but invoked his Fifth Amendment privilege against self-incrimination. The Commonwealth of Virginia offered to introduce into evidence Mark's statements to police, arguing that they were admissible as declarations of an unavailable witness against penal interest. The trial judge overruled Petitioner's objection and admitted the tape recordings and written transcripts of the statements in their entirety.

Petitioner was found guilty and the Supreme Court of Virginia affirmed his convictions and sentences. In so doing, the court first concluded that Mark's statements were declarations of an unavailable witness against penal interest; that the statements' reliability was established by other evidence; and, therefore, that they fell within an exception to the Virginia hearsay rule. Second, as to Petitioner's Confrontation Clause challenge, the Supreme Court of Virginia maintained that the trial court did not err by admitting the statement into evidence and allowing the jury to assign weight to them.

B. Counsel of Record:
Opposing Side
Ira S. Sacks argued the cause for petitioner.

With him on the briefs was Christopher A. Tuck.
Katherine P. Baldwin, Assistant Attorney General of Virginia, argued the cause for respondent.

With her on the brief was Mark L. Earley, Attorney General of Virginia.
C. The Arguments:
Opposing Side
Opposing Side
Margaret A. Berger, Richard D. Friedman, and Steven R. Shapiro filed amicus briefs urging reversal for the ACLU.

William S. Geimer, Lisa Kemler, and Marvin Miller filed amicus briefs urging reversal for the National Association of Criminal Defense Lawyers.
Briefs of amici curiae urging affirmance were filed for the State of Nebraska et al., by Don Stenberg, Attorney General of Nebraska; J. Kirk Brown, Assistant Attorney General; and Michael C. Stern, Acting Attorney General of Guam; and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Carla J. Stovall of Kansas, Richard P. leyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Michael C. Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, and Paul G. Summers of Tennessee; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

"The residual 'trustworthiness' test credits the axiom that a rigid application of the Clause's standard for admissibility might in an exceptional case exclude a statement of an unavailable witness that is incontestably probative, competent, and reliable, yet nonetheless outside of any firmly rooted hearsay exception. When a court can be confident... that 'the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility,' the Sixth Amendment's residual 'trustworthiness' test allows the admission of the declarant's statements...

"...[A]ny inherent unreliability that accompanies co-conspirator statements made during the course and in furtherance of the conspiracy is per se rebutted by the circumstances giving rise to the long history of admitting such statements... Nonetheless, the historical underpinnings of the Confrontation Clause and the sweep of our prior confrontation cases offer one cogent reminder: It is highly unlikely that the presumptive unreliability that attaches to accomplices' confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice-that is, when the government is involved in the statements' production, and when the statements describe past events and have not been subjected to adversarial testing.

Applying these principles, the Commonwealth's asserted guarantees of trustworthiness fail to convince us that Mark's confession was sufficiently reliable as to be admissible without allowing petitioner to cross-examine him. That other evidence at trial corroborated portions of Mark's statements is irrelevant. We have squarely rejected the notion that 'evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears 'particularized guarantees of trustworthiness.'

The Commonwealth's next proffered basis for reliability - that Mark knew he was exposing himself to criminalliability - merely restates the fact that portions of his statements were technically against penal interest. And as we have explained, such statements are suspect insofar as they inculpate other persons... Similarly, the absence of an express promise of leniency to Mark does not enhance his statements' reliability to the level necessary for their untested admission. The police need not tell a person who is in custody that his statements may gain him leniency in order for the suspect to surmise that speaking up, and particularly placing blame on his cohorts, may inure to his advantage. It is abundantly clear that neither the words that Mark spoke nor the setting in which he was questioned provides any basis for concluding that his comments regarding petitioner's guilt were so reliable that there was no need to subject them to adversarial testing in a trial setting. Mark was in custody for his involvement in, and knowledge of, serious crimes and made his statements under the supervision of governmental authorities. He was primarily responding to the officers' leading questions, which were asked without any contemporaneous cross-examination by adverse parties. Thus, Mark had a natural motive to attempt to exculpate himself as much as possible... Mark also was obviously still under the influence of alcohol. Each of these factors militates against finding that his statements were so inherently reliable that crossexamination would have been superfluous...

The admission of the untested confession of Mark Lilly violated petitioner's Confrontation Clause rights. Adhering to our general custom of allowing state courts initially to assess the effect of erroneously admitted evidence in light of substantive state criminal law, we leave it to the Virginia courts to consider in the first instance whether this Sixth Amendment error was 'harmless beyond a reasonable doubt.'

Held: The judgment is reversed, and the case is remanded.
Justice Vote: 9 Pro vs. 0 Con

  • Stevens, J. Pro (Wrote majority opinion)
  • Ginsburg, R. Pro (Joined majority opinion)
  • Breyer, S. Pro (Wrote concurring opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Rehnquist, W. Pro (Wrote concurring opinion)
  • Kennedy, A. Pro (Joined Rehnquist's concurrence)
  • O'Connor, S. Pro (Joined Rehnquist's concurrence)
  • Scalia, A. Pro (Wrote concurring opinion)
  • Thomas, C. Pro (Wrote concurring opinion)

The ACLU filed as amicus urging reversal.  The Supreme Court reversed and remanded the lower court's ruling in a unanimous 9-0 vote, giving the ACLU an apparent win.