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High court toughens standard for trial testimony

Justices say right to confront witnesses is crucial for a fair trial,

It has always been a basic right under the US Constitution that a criminal defendant be afforded the opportunity to confront witnesses against him.

But when Mark Lilly refused to testify against his brother, Ben Lilly, at Ben's 1996 murder trial in Virginia, prosecutors had an alternative plan. They decided to use a transcript and tape of an earlier confession Mark made to police, which also implicated his brother as the trigger man.

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Judges in Virginia, including the Virginia Supreme Court, found no problem with the tactic. But last week, the US Supreme Court ruled that prosecutors violated Ben Lilly's Sixth Amendment right to confront and cross-examine all witnesses at his trial.

The justices ordered the Virginia Supreme Court to reconsider the case and determine whether the transcript and tape of Mark's earlier statement might have caused the jury to reach a different verdict. If it did, Ben Lilly should receive a new trial.

The case is important for at least two reasons. Ben Lilly is on Virginia's death row, and if the jury made a mistake in reaching its verdict, it could mean the difference between life and death.

In addition, the high court's unanimous action sends a loud and clear message to judges, prosecutors, and defense lawyers across the nation that the justices take seriously the Sixth Amendment right to confront witnesses.

Legal analysts say the decision may help halt a recent trend by some prosecutors to attempt to carve out ever larger exceptions to the so-called hearsay rule, which prohibits the introduction of uncorroborated statements at trial.

THE essence of the Sixth Amendment's Confrontation Clause is that a defense attorney will have the opportunity to cross-examine all witnesses. It is seen as an efficient and effective means of discovering the truth while helping jurors gauge the credibility of witnesses.

But when prosecutors build a case around transcripts and tape recordings from police interrogations, defense attorneys can't cross-examine their contents, and a jury may place too much or too little importance on them.

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Mark Lilly's statement was admitted at his brother's trial after prosecutors argued that it was so obviously truthful that the crucible of cross-examination under oath before a jury at trial would be unnecessary. Judges in Virginia agreed.

But all nine US Supreme Court justices saw the case in a different light. "The admission of the untested confession of Mark Lilly violated [Ben Lilly's] Confrontation Clause rights," wrote Justice John Paul Stevens for the court.

Antonin Scalia, one of the high court's most conservative justices, called the case "a paradigmatic Confrontation Clause violation."

"We've seen [the Confrontation Clause] being chipped away at," says Christopher Tuck, the defense lawyer in Blacksburg, Va., who represented Ben Lilly at his trial and in his appeal before the Virginia Supreme Court.

"I think the US Supreme Court is saying, 'Hold on a second, it is pretty clear,' " he says. "This is a conservative Supreme Court and a court that is not going to go out on a limb."

William Geimer, a law professor at Washington and Lee University, says the case is important because it establishes that evolving rules of evidence in state courts will be closely scrutinized by the US Supreme Court.

The case now returns to the Virginia Supreme Court to determine whether the decision to allow the jury to hear the tape and see the transcript was a harmless error in that it did not alter the outcome of the trial.

If it was harmless, Ben Lilly's conviction and death sentence will stand. If it was not harmless, Lilly would receive a new trial.

Legal analysts say it is unclear how the Virginia court might rule.

"In Virginia, the supreme court almost never finds error, particularly in capital cases," says Marvin Miller, an Alexandria, Va., defense lawyer who is a board member of the National Association of Criminal Defense Lawyers.

If the Virginia court orders a new trial for Ben Lilly, the attorney general's office says it will again seek the death penalty.

But even if jurors at a new trial balk at sending Ben Lilly back to Virginia's death row, any lesser conviction in the murder case would likely send him to prison for life.

"There is no question that we are not going to be seeing Ben Lilly on the streets of Blacksburg," says Mr. Geimer. "At least not in my lifetime."

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