United States v. Inadi

Justice Marshall,

with whom Justice Brennan joins, dissenting.

With respect to the case before us, the majority takes but a small step. In Ohio v. Roberts, 448 U. S. 56 (1980), the Court held: “[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’” Id., at 66 (quoting Dutton v. Evans, 400 U. S. 74, 89 (1970) (plurality opinion)). The majority now assures us that “[t]he reliability of the out-of-court statements is not at issue in this case.” Ante, at 391, n. 3. Respondent is thus free to return to the Court of Appeals and argue that the *401 co-conspirator declarations admitted against him lack the “in-dicia of reliability” demanded by the Confrontation Clause. 1

With respect to its constitutional analysis, however, the majority makes a giant leap. Even while conceding that the “ ‘very mission’ ” of the Confrontation Clause is to “ ‘advance “the accuracy of the truth-determining process in criminal trials,””’ ante, at 396 (citations omitted), the Court today holds that the Clause is not offended when the prosecution fails to make even the slightest effort to produce for cross-examination the authors of the out-of-court statements with which it hopes to convict a defendant. Because I cannot share the majority’s implicit faith that the camaraderie of a criminal conspiracy can substitute for in-court cross-examination to guarantee the reliability of conspiratorial statements, I can neither accept the majority’s analysis nor stand silent while the values embodied in the Sixth Amendment are so cavalierly subordinated to prosecutorial efficiency.

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<C

In Ohio v. Roberts, supra, after canvassing the many previous cases that had examined the relationship between the *402 Confrontation Clause of the Sixth Amendment and the many exceptions to the hearsay rule, the Court noted:

“The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the. Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. . . .

“The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that There is no material departure from the reason of the general rule.’” Id., at 65 (quoting Snyder v. Massachusetts, 291 U. S. 97, 107 (1934)).

This sweeping language was in no way limited to any particular variety of out-of-court declarations, and the Third Circuit panel that the Court reverses today was hardly alone in believing the rule in Roberts to be applicable to all such declarations. See, e. g., United States v. Massa, 740 F. 2d 629, 639 (CA8 1984); Hoggins v. Warden, 715 F. 2d 1050, 1055 (CA6 1983), cert. denied, 464 U. S. 1071 (1984); see also United States v. Caputo, 758 F. 2d 944, 950, n. 2 (CA3 1985) (collecting cases). The majority, however, now tells us that Roberts “simply reaffirmed a longstanding rule . . . that applies unavailability analysis to prior testimony.” Ante, at 394. This effort to confine Roberts misconstrues both the meaning of that decision and the essential command of the Confrontation Clause.

Contrary to the majority’s suggestion, it is clear that the Roberts Court consciously sought to lay down an analytical *403 framework applicable to all out-of-court declarations introduced by the prosecution for the truth they contain. Justice Blackmun, writing for the Court, introduced his affirmation of the Confrontation Clause’s twin requirements of unavailability and reliability by noting: “The Court has not sought to ‘map out a theory of the Confrontation Clause that would determine the validity of all. . . hearsay “exceptions.”’ California v. Green, 399 U. S. [149,] 162 [1970]. But a general approach to the problem is discernible.” 448 U. S., at 64-65 . For its general principles, the Roberts Court of course turned to a number of cases involving former testimony, e. g., Mancusi v. Stubbs, 408 U. S. 204 (1972); Barber v. Page, 390 U. S. 719 (1968); Motes v. United States, 178 U. S. 458 (1900); California v. Green, 399 U. S. 149 (1970) (all cited at 448 U. S., at 65 ). But it also relied on Dutton v. Evans, 400 U. S. 74 (1970) (cited at 448 U. S., at 65, n. 7 , and 66), where the hearsay had been admitted pursuant to the Georgia co-conspirator exception, and Douglas v. Alabama, 380 U. S. 415 (1965) (cited at 448 U. S., at 63 ), which involved an accomplice’s confession. Indeed, it was on Douglas that Roberts relied for the proposition that “the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that a ‘primary interest secured by [the provision] is the right of cross-examination.’” 448 U. S., at 63 (footnote omitted) (quoting Douglas, supra, at 418 ).

The absence of any language in Roberts confining its analysis to prior testimony is not surprising. The Court simply recognized that whenever the prosecution seeks to convict a defendant by relying on the truth asserted in out-of-court declarations, confrontation and cross-examination of the de-clarant in open court are the most trusted guarantors of the reliability that is the primary concern of the Confrontation Clause. The need for these guarantors is as critical in cases involving the extrajudicial statements of co-conspirators as it is in cases involving the prior testimony of an absent declar-ant or the confession of an accomplice.

*404 B

When the prosecution introduces the statements of a co-conspirator merely to show what the declarant might have been thinking or what he wished his listeners to believe at the time he spoke, neither the rule against hearsay nor the Confrontation Clause is implicated by their admission against a defendant. See Tennessee v. Street, 471 U. S. 409 (1985). However, when the prosecution invokes the co-conspirator exemption to the hearsay rule, as it does in this case, it is urging the truth of the matters asserted in the extrajudicial statements. The question here must be whether we have so much confidence in the factual accuracy of statements made by conspirators in furtherance of their conspiracy that we deem the testing of these statements by cross-examination unnecessary to guarantee the reliability of a trial’s result.

The majority is quite right to suggest that “[cjonspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand.” Ante, at 395. However, the differences between an accomplice’s conspiratorial utterances and his testimony in court are not merely those of diction and demeanor. That a statement was truly made “in furtherance” of a conspiracy cannot possibly be a guarantee, or even an indicium, of its reliability. See Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378 , 1384-1391 (1972); Note, Federal Rule of Evidence 801(d)(2)(E) and the Confrontation Clause: Closing the Window of Admissibility for Coconspirator Hearsay, 53 Ford. L. Rev. 1291, 1311-1312 (1985). As one commentator has noted:

“Conspirators’ declarations are good to prove that some conspiracy exists but less trustworthy to show its aims and membership. The conspirator’s interest is likely to lie in misleading the listener into believing the conspiracy stronger with more members (and different *405 members) and other aims than in fact it has. It is no victory for common sense to make a belief that criminals are notorious for their veracity the basis for law.” Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159 , 1165-1166 (1954).

The unreliability of co-conspirator declarations as trial evidence is not merely a product of the duplicity with which criminals often conduct their business. It also stems from the ambiguities that so often appear in all casual conversations, not just those of outlaws. See, e. g., Dutton v. Evans, supra, at 104 (Marshall, J., dissenting). And the difficulties one has in making sense of slang and dialect can be compounded where conspirators use private codes, as indeed they did in this case. Because of these problems, trained case agents are often hard pressed to piece together the facts of a criminal conspiracy from the confused tangle of conversations they have intercepted. The appearance of a co-conspirator declarant in court will allow the elimination of ambiguity that neither side has a right to profit from.

C

Consideration of the reasons why co-conspirator declarations have been exempted from the rule against hearsay only confirms doubts as to the reliability of the truth asserted in those statements. In contrast to other types of statements excepted from the rule, the co-conspirator declarations have not been admitted because of a belief in their special reliability. See Davenport, supra, at 1384-1385; Levie, supra, at 1161-1167. Rather, the root of the exemption lies in substantive law. Under the agency theory that supports conspiracy law, “once the conspiracy or combination is established, the act of one conspirator, in the prosecution of the enterprise, is considered the act of all, and is evidence against all.” United States v. Gooding, 12 Wheat. 460, 469 (1827). Every statement of co-conspirators in furtherance of *406 their illegal scheme is thus a verbal act admissible against each conspirator as if it had been his own.

This agency theory, which even the Advisory Committee on the proposed Federal Rules of Evidence labeled “at best a fiction,” Advisory Committee Notes on Fed. Rule Evid. 801(d)(2)(E), 28 U. S. C. App., p. 718, might justify the exemption conferred upon co-conspirator declarations from the traditional rule against hearsay. But it speaks not at all to the Confrontation Clause’s concern for reliable factfinding.

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Without even attempting to argue that co-conspirator declarations have an inherent reliability that might justify then-admission at trial when the declarant is not present in court for cross-examination, the majority instead supports its holding by arguing that “it is extremely unlikely that in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force.” Ante, at 395. Indeed, the Court asserts, “co-conspirator statements derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence.” Ante, at 395-396.

I truly cannot understand the majority’s fear that a rule requiring the prosecution to do its best to produce a co-conspirator declarant in court would somehow deprive triers of fact of valuable evidence. Under this rule, if the prosecution could not in all good faith produce the declarant, the extrajudicial statements could come in, so long as they could be shown to have “adequate ‘indicia of reliability,’” Roberts, 448 U. S., at 66 . The majority’s fear must therefore stem from a notion that if the prosecution is able to produce the declarant in court, his presence will somehow prevent the jury from hearing the truth. This conclusion overlooks the critical importance of cross-examination in the truth-seeking process.

*407 If a declarant takes the stand, his out-of-court statements will still be admitted as evidence, so long as they are sufficiently reliable and there are no other grounds for their exclusion. And cross-examination will only enhance their value to the jury. The defendant will have a chance to inquire into the circumstances under which the statements were made and the motives that might have led the declarant to color their truth at the time. Cross-examination also may force the declarant to clarify ambiguous phrases and coded references. If anything he says is inconsistent with his prior statement, the declarant will no doubt advance some explanation for the inaccuracy of the extrajudicial statement — “an explanation a jury may be expected to understand and take into account in deciding which, if either, of the statements represents the truth,” California v. Green, 399 U. S. 149, 159 (1970). Cf. Nelson v. O’Neil 402 U. S. 622, 627-629 (1971).

Whether or not a co-conspirator produced in court affirms, denies, or qualifies the truth of his out-of-court statement, his presence will contribute to the accuracy of the factfinding enterprise, the accuracy that is the primary concern of the Confrontation Clause. Whatever truth is contained in his extrajudicial declarations cannot be lost. It can only be supplemented by additional information of no less use to the triers of fact.

Ill

Recognizing that there may well be cases in which the cross-examination of a co-conspirator declarant is indispensable to a defendant’s case, the Court reminds us that a defendant can always exercise his rights under the Compulsory Process Clause and call the declarant as his own witness. As long as this option remains open to a defendant, the Court reasons, “it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant ‘available.’” Ante, at 398. However, even assuming, as the Court seems to do, that the “good faith standard governing *408 the state’s obligation to produce defense witnesses [pursuant to the Compulsory Process Clause] is precisely the same one that governs the state’s obligation to confront a defendant with the witnesses against him [pursuant to the Confrontation Clause],” Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567 , 588 (1978), this is not a satisfactory response to respondent’s Confrontation Clause claim.

The short answer to the majority’s argument is that the Confrontation Clause gives a defendant a right to be confronted with the witnesses against him, not merely an opportunity to seek out witnesses on his own. As one court once noted of a situation similar to that presented in this case:

“That [a co-conspirator declarant] was available to be called as a witness does not mitigate the prosecution’s misconduct here. The State sought to shift to the defendant the risk of calling [the declarant] to the stand. To accept the State’s argument that the availability of [the declarant] is the equivalent of putting him on the stand and subjecting him to cross-examination would severely alter the presumptions of innocence and the burdens of proof which protect the accused.” Hoover v. Beto, 439 F. 2d 913, 924 (CA5 1971) (Wisdom, J.), rev’d on rehearing en banc, 467 F. 2d 516 (CA5) (over dissent of seven judges), cert. denied, 409 U. S. 1086 (1972).

See also Dutton v. Evans, 400 U. S., at 104 (Marshall, J., dissenting).

The disadvantages that the majority would impose upon a defendant are not merely theoretical. The Court notes the “significant practical burden” placed on the prosecution by a requirement that the Government identify co-conspirator de-clarants with specificity. Ante, at 399. As an illustration of the difficulties that the prosecution would be forced to face, the majority refers to United States v. Ordonez, 737 F. 2d 793 (CA9 1984), where the court found a Confrontation Clause violation in the Government’s failure to identify the *409 individuals who had made the entries in the “drug ledgers” introduced as evidence against the defendant. Ante, at 399, n. 13. However, the Court now places this “significant practical burden” upon the defendant, who may well be in no better a position to make such identifications. Even were it proper to assume the defendant’s guilt and impute to him knowledge regarding pending charges, it can hardly be claimed that a defendant who has played but a minor role in a complex conspiracy necessarily has an intimate knowledge of the names and activities of his alleged co-conspirators. 2 “The prosecution therefore [should have] the burden of producing and calling to the witness stand the persons whose out-of-court statements it uses against the accused because, as between the two sides, the prosecution is in a better position to identify them and to initiate their production at that time.” Westen, supra, at 616.

Even when a defendant is in as good a position as the prosecution to subpoena available declarants, a rule requiring him to call those declarants as his own witnesses may deny the defendant certain tactical advantages vouchsafed him by the Confrontation Clause. Under the regime established today, the only cross-examination that will attend the prosecution’s introduction of co-conspirator declarations will be of whoever heard or recorded those statements and will focus merely on whether or not the statements were actually made. Any inquiry into the reliability of the statements must await the defendant’s case. But if the defendant chooses to call the declarant as a defense witness, defendant risks bolstering in the jury’s eyes the very conspiracy allegations he wishes to rebut. That the witness is viewed as hostile by the defendant, and has possibly been certified as such by the trial judge, does not necessarily mean that his relationship to the defendant will be so perceived by the jury, unless defense counsel *410 chooses to dramatize the antagonism with hyperbole that might lose him the sympathy of the jury.

Moreover, even the harshest grilling of a declarant by the defense can occur only after the prosecution has rested its case. In a complex conspiracy trial, the time elapsing between the introduction of the hearsay and the cross-examination of the declarant may be quite substantial. During this time, the declarations wall be unrebutted in jurors’ minds. And their effect may actually be enhanced should either the defense or prosecution repeat the statements in the course of examining the declarant. In short, “[o]nly a lawyer without trial experience would suggest that the limited right to impeach one’s own witness is the equivalent of that right to immediate cross-examination which has always been regarded as the greatest safeguard of American trial procedure.” New York Life Ins. Co. v. Taylor, 79 U. S. App. D. C. 66, 74, 147 F. 2d 297, 305 (1945); see United States v. Oates, 560 F. 2d 45, 82, n. 39 (CA2 1977).

In federal prosecutions, there is an additional drawback. When a defendant calls a declarant as his own witness, he has no statutory right to obtain any prior statements of that de-clarant in the Government’s possession — a right that attaches only “[a]fter a witness called by the United States has testified on direct examination,” 18 U. S. C. § 3500 .

In view of all the disadvantages that attend a defendant’s decision to call a co-conspirator declarant as a witness, the majority’s reliance on the defendant’s right to compulsory process to justify a decision to deprive him of a critical aspect of his Confrontation Clause right cannot be supported. The two are simply not equivalent. Moreover, the majority’s belief that an unavailability requirement would contribute nothing but a cast of unwanted supernumeraries has no basis in the realities of criminal prosecutions. There might be instances in which an available declarant is of so little value to either side that calling him as a witness would truly be an unnecessary exercise. See, e. g., Anderson v. United States, *411 417 U. S. 211, 220, n. 11 (1974). But a defendant’s failure to call a declarant as his own witness can in no way be taken as proof that such is the case.

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At bottom, today’s decision rests upon the Court’s judgment that a defendant’s constitutional interest in subjecting the extrajudicial declarations of co-conspirators to the cross-examination that has traditionally been the primary guarantee of reliability in trials must be subordinated to considerations of prosecutorial efficiency. I do not believe the concerns of the Confrontation Clause should be so easily disregarded. The plight of Sir Walter Raleigh, condemned on the deposition of an alleged accomplice who had since recanted, may have loomed large in the eyes of those who drafted that constitutional guarantee. See F. Heller, The Sixth Amendment 104 (1951); Stephen, The Trial of Sir Walter Raleigh, in 2 Transactions of the Royal Historical Society 172 (4th series 1919). But the Framers, had they the prescience, would surely have been as apprehensive of the spectacle of a defendant’s conviction upon the testimony of a handful of surveillance technicians and a very large box of tapes recording the boasts, faulty recollections, and coded or ambiguous utterances of outlaws. The Court’s decision helps clear the way for this spectacle to become a common occurrence. I dissent.

Today’s decision does nothing to resolve the conflict among the lower courts as to whether declarations of co-conspirators who are not present in court for cross-examination must be shown to have particularized “indicia of reliability” before they can be admitted for substantive purposes against a criminal defendant. Compare United States v. DeLuna, 763 F. 2d 897 (CA8 1985) (particularized inquiry into reliability of co-conspirator statements demanded in addition to unavailability requirement); United States v. Ordonez, 722 F. 2d 530, 535 (CA9 1983) (particularized assessment of reliability needed for every statement admitted under co-conspirator hearsay exemption); United States v. Perez, 702 P. 2d 33 (CA2) (same), cert. denied, 462 U. S. 1108 (1983), with Boone v. Marshall, 760 F. 2d 117, 119 (CA6 1985) (declaration admitted under co-conspirator exemption “automatically satisfies the Sixth Amendment requirements”); United States v. Molt, 758 F. 2d 1198 (CA7 1985) (same); Ottomano v. United States, 468 F. 2d 269, 273 (CA1 1972) (same), cert. denied, 409 U. S. 1128 (1973). See Mueller, The Federal Coconspirator Exception: Action, Assertion, and Hearsay, 12 Hofstra L. Rev. 323 , 361-362, and nn. 131-132 (1984).

I realize that this was not the case here. However, the Court’s holding addresses all cases involving co-conspirator declarations and thus extends to all the hypotheticals I discuss.