Page:United States Reports 502 OCT. TERM 1991.pdf/523

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

365

Opinion of Thomas, J.

est reading of the text. Despite this tension, I believe it is possible to interpret the Confrontation Clause along the lines suggested by the United States in a manner that is faithful to both the provision’s text and history. One possible formulation is as follows: The federal constitutional right of confrontation extends to any witness who actually testifies at trial, but the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions. It was this discrete category of testimonial materials that was historically abused by prosecutors as a means of depriving criminal defendants of the benefit of the adversary process, see, e. g., Mattox v. United States, 156 U. S., at 242–243, and under this approach, the Confrontation Clause would not be construed to extend beyond the historical evil to which it was directed. Such an approach would be consistent with the vast majority of our cases, since virtually all of them decided before Ohio v. Roberts involved prior testimony or confessions,2 exactly the type of formalized testimonial evidence that lies at the core of the Confrontation Clause’s concern. This narrower reading of the Confrontation Clause would greatly simplify the inquiry in the hearsay context. Furthermore, this interpretation would avoid the problem posed by the 2 See, e. g., Reynolds v. United States, 98 U. S. 145, 158–161 (1879) (testimony at prior trial); Mattox v. United States, 156 U. S. 237, 240–244 (1895) (same); Motes v. United States, 178 U. S. 458, 471–474 (1900) (testimony at “preliminary trial”); Pointer v. Texas, 380 U. S. 400, 406–408 (1965) (preliminary hearing testimony); Douglas v. Alabama, 380 U. S. 415, 418–420 (1965) (codefendant’s confession); Brookhart v. Janis, 384 U. S. 1, 4 (1966) (same); Barber v. Page, 390 U. S. 719, 722–725 (1968) (preliminary hearing testimony); Bruton v. United States, 391 U. S. 123, 126–128, and n. 3 (1968) (codefendant’s confession); Roberts v. Russell, 392 U. S. 293, 294–295 (1968) (per curiam) (same); Berger v. California, 393 U. S. 314, 314–315 (1969) (per curiam) (preliminary hearing testimony); California v. Green, 399 U. S., at 152 (preliminary hearing testimony and statement to police); Mancusi v. Stubbs, 408 U. S. 204, 213–216 (1972) (prior testimony).