Page:United States Reports 502 OCT. TERM 1991.pdf/521

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Cite as: 502 U. S. 346 (1992)

363

Opinion of Thomas, J.

language, however, it is difficult to see how or why the Clause should apply to hearsay evidence as a general proposition. As Justice Harlan observed: “If one were to translate the Confrontation Clause into language in more common use today, it would read: ‘In all criminal prosecutions, the accused shall enjoy the right to be present and to cross-examine the witnesses against him.’ Nothing in this language or in its 18thcentury equivalent would connote a purpose to control the scope of the rules of evidence. The language is particularly ill-chosen if what was intended was a prohibition on the use of any hearsay. . . .” Id., at 95 (opinion concurring in result). The standards that the Court has developed to implement its assumption that the Confrontation Clause limits admission of hearsay evidence have no basis in the text of the Sixth Amendment. Ever since Ohio v. Roberts, 448 U. S. 56 (1980), the Court has interpreted the Clause to mean that hearsay may be admitted only under a “firmly rooted” exception, id., at 66, or if it otherwise bears “particularized guarantees of trustworthiness,” ibid. See, e. g., Idaho v. Wright, 497 U. S., at 816; Bourjaily v. United States, 483 U. S. 171, 183 (1987). This analysis implies that the Confrontation Clause bars only unreliable hearsay. Although the historical concern with trial by affidavit and anonymous accusers does reflect concern with the reliability of the evidence against a defendant, the Clause makes no distinction based on the reliability of the evidence presented. Nor does it seem likely that the drafters of the Sixth Amendment intended to permit a defendant to be tried on the basis of ex parte affidavits found to be reliable. Cf. U. S. Const., Art. III, § 3 (“No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court”). Reliability is more properly a due should not be read as having established that the drafters intended the Clause to encompass all hearsay, or even hearsay in general.