Justice THOMAS, with whom Justice SCALIA joins, concurring in part and concurring in the judgment.
The Court reaches the correct result under our precedents. I write separately only to suggest that our Confrontation Clause jurisprudence has evolved in a manner that is perhaps inconsistent with the text and history of the Clause itself. The Court unnecessarily rejects, in dicta, the United States' suggestion that the Confrontation Clause in general may not regulate the admission of hearsay evidence. See ante, at 352-353. The truth may be that this Court's cases unnecessarily have complicated and confused the relationship between the constitutional right of confrontation and the hearsay rules of evidence.
The Confrontation Clause provides simply that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S.C.onst., Amdt. 6. It is plain that the critical phrase within the Clause for purposes of this case is "witnesses against him." Any attempt at unraveling and understanding the relationship between the Clause and the hearsay rules must begin with an analysis of the meaning of that phrase. Unfortunately, in recent cases in this area, the Court has assumed that all hearsay declarants are "witnesses against" a defendant within the meaning of the Clause, see, e.g., Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Idaho v. Wright, 497 U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), an assumption that is neither warranted nor supported by the history or text of the Confrontation Clause.
There is virtually no evidence of what the drafters of the Confrontation Clause intended it to mean. See California v. Green, 399 U.S. 149, 176, n. 8, 90 S.Ct. 1930, 1944, n. 8, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring); Dutton v. Evans, 400 U.S. 74, 95, 91 S.Ct. 210, 222-223, 27 L.Ed.2d 213 (1970) (Harlan, J., concurring in result); Baker, The Right to Confrontation, The Hearsay Rules, and Due Process-A Proposal for Determining When Hearsay May be Used in Criminal Trials, 6 Conn.Law Rev. 529, 532 (1974). The strictest reading would be to construe the phrase "witnesses against him" to confer on a defendant the right to confront and cross-examine only those witnesses who actually appear and testify at trial. This was Wigmore's view:
"The net result, then, under the constitutional rule, is that, so far as testimony is required under the hearsay rule to be taken infrajudicially, it shall be taken in a certain way, namely, subject to cross-examination-not secretly or ex parte away from the accused. The Constitution does not prescribe what kinds of testimonial statements (dying declarations or the like) shall be given infrajudicially-this depends on the law of evidence for the time being-but only what mode of procedure shall be followed-i.e., a cross-examining procedure-in the case of such testimony as is required by the ordinary law of evidence to be given infrajudicially." 5 J. Wigmore, Evidence § 1397, p. 159 (J. Chadbourn rev. 1974) (footnote omitted) (emphasis modified).
The Wigmore view was endorsed by Justice Harlan in his opinion concurring in the result in Dutton v. Evans, supra, at 94, 91 S.Ct., at 222. It also finds support in the plain language of the Clause. As Justice SCALIA recently observed:
"The Sixth Amendment does not literally contain a prohibition upon [hearsay] evidence, since it guarantees the defendant only the right to confront the 'witnesses against him.' As applied in the Sixth Amendment's context of a prosecution, the noun 'witness'-in 1791 as today-could mean either (a) one 'who knows or sees any thing; one personally present' or (b) 'one who gives testimony' or who 'testifies,' i.e., '[i]n judicial proceedings, [one who] make[s] a solemn declaration under oath, for the purpose of establishing or making proof of some fact to a court.' 2 N. Webster, An American Dictionary of the English Language (1828) (emphasis added). See also J. Buchanan, Linguae Britannicae Vera Pronunciatio (1757). The former meaning (one 'who knows or sees') would cover hearsay evidence, but is excluded in the Sixth Amendment by the words following the noun: 'witnesses against him.''' The phrase obviously refers to those who give testimony against the defendant at trial." Maryland v. Craig, 497 U.S. [----, ----, 110 S.Ct. 3157, 3173, 111 L.Ed.2d 666] (1990) (dissenting opinion).