The Court concluded with the following in relevant part: 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 common law at the time of the founding. And the “right to be confronted with the witnesses against him,” 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.
This Court’s decisions have generally remained faithful to the Confrontation Clause’s original meaning. However, the same cannot be said of the rationales of this Court’s more recent decisions. The Roberts test departs from historical principles because it admits statements consisting of ex parte testimony upon a mere reliability finding.
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 process, based on a mere judicial determination of reliability, thus replacing the constitutionally prescribed method of assessing reliability with a wholly foreign one.
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.
The instant case is a self-contained demonstration of Roberts’ unpredictable and inconsistent application. It also reveals Roberts’ failure to interpret the Constitution in a way that secures its intended constraint on judicial discretion. The Constitution prescribes the procedure 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.
Justice Scalia’s reasoning demonstrates that a contrary holding would undermine the fundamental right to cross-examine witnesses. It would also undermine the right to an impartial jury when unreliable hearsay evidence is permitted to sway a jury.
