Petitioners Brief — United States v. Inadi

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No. 84-1580 JOSEPH F. 208 ok up

— ae

Supreme Court, U.S.

FILED

AUG 12 1985

In the Supreme Court of the United States

OCTOBER TERM, 1985

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOSEPH INADI

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 205380

202) 633-2217

QUESTIONS PRESENTED

1. Whether the Confrontation Clause bars the prose-

cution from introducing statements falling within the co-

conspirator exception to the hearsay rule (Fed. R. Evid.

801(d) (2) (E)) unless it establishes that the declarant

is unavailable to testify at trial.

2. Whether, if the court of appeals was correct that

proof of unavailability is required, it should have ordered

a remand hearing to determine the question of unavail-

ability rather than ordering a new trial.

(I)

TABLE OF CONTENTS

I ldiicliniblldicatalbcachinesinbadnesiabe

ES EOE RE RETRO Oe De

Introducti

on and summary of argument ........................

Argument:

I. The admission of statements in conformity with

the

traditional co-conspirator rule does not vio-

late the Confrontation Clause _...........0..000000000....

The Confrontation Clause was intended to

prohibit trial by affidavit and comparable

practices, not to proscribe or generally regu-

late the admission of hearsay .......................

This Court’s Confrontation Clause decisions

have closely regulated the admission of

former testimony but have treated most

other traditional hearsay exceptions as pre-

I a essslbinintienene

Reevaluating the co-conspirator rule and

other traditional hearsay exceptions under

the Confrontation Clause would be point-

lessly duplicative and disruptive and would

stultify the evolution of federal and state

I Si.

Even if the federal co-conspirator rule is re-

evaluated under the Confrontation Clause, no

sound constitutional policy justifies striking

down the settled rule that co-conspirator

declarations are admissible without regard

to the availability of declarant .......0.00000

(IIT)

Argument—Continued : Page

Il. If proof of unavailability is a prerequisite for

admission of a co-conspirator statement, the

court of appeals should have ordered a remand

hearing to determine the question of unavail-

ability rather than ordering a new trial -........... 44

a... cccsstnsiseapianaiinianeitnatanicinmanibliebeitiasiiaittiasinttimibeneletins 46

TABLE OF AUTHORITIES

Cases:

American Fur Co. v. United States, 27 U.S. (2

A RAT Sevier caret GS Ae 35

Anderson v. United States, 417 U.S. 211 -.............. 34

Anthony v. State, 19 Tenn. (Meigs) 265 -............... 22

po aS OE OS 26

Boone Vv. Marshall, 760 F.2d 117 ..............................- 7

Brady Vv. Maryland, 373 U.S. 838 ................--------------+- 46

Brookhart v. Janis, 384 U.S. 1 ................................ 33

Broughton Vv. Ward, 1 Tyl. 187 ....................-......--.-. 20

Brown Vv. United States, 150 U.S. 98 ........................ 35

Brown Vv. United States, 411 U.S. 223 ...................... 28

Bruton v. United States, 391 U.S. 123 ........--......... 28

California v. Green, 399 U.S. 149 ........................ 28, 31, 36

Campbell vy. State, 11 Ga. 372 ............................. eli 22

Campbell v. United States, 365 U.S. 85 —................ 46

Chambers Vv. Mississippi, 410 U.S. 284 _...00..00000.. 33

Claytor v. Anthony, 27 Va. (6 Rand.) 285 _.......... 20-21

Clune v. United States, 159 U.S. 590 —.....000.... 35

Commonwealth vy. Carey, 16 Mass. (12 Cush.) 246.. 22

Bala Ga. a, Ge Tis asses tcecceiinceeee 33

Delaney v. United States, 263 U.S. 586 —..00000000.... 29

Douglas v. Alabama, 380 U.S. 415 000000. 28

Dowdell v. United States, 221 U.S. 325 -.0000000 0... 33

Dutton v. Evans, 400 U.S. 74 ~............ 30, 31, 32, 33, 34, 36

Gannett Co. v. DePasquale, 443 U.S. 368 ............... 14

Glasser v. United States, 315 U.S. 60 000000. 35

Goldberg v. United States, 425 U.S. 94 0000. 45

Haggins v. Warden, 715 F.2d 1050

Cases—Continued : Page

Harrington v. California, 395 U.S. 250 —................ 29

Hoffman v. United States, 341 U.S. 479 -.............. 40

Be Gi. A Te ie I eaten crcccceninec 33

Jackson Vv. Denno, 378 U.S. 368 ................-...------------ 46

Kirby v. United States, 174 U.S. 4 .......................... 33

Krulewitch v. United States, 336 U.S. 440 —.......... 34-35

Lambeth v. State, 23 Miss. 322 .........................--.---- 22

Lenzar V. Wyrick, 665 F.2d 804 .............................. 8

Lincoln v. Claflin, 74 U.S. (7 Wall.) 132 .................. 35

Logan v. United States, 144 U.S. 263 -..........0....... 35

Lutwak v. United States, 344 U.S. 604 0.000000... 34

Mancusi Vv. Stubbs, 408 U.S. 204 ~...........222.22.222..-.... 26

Mattox v. United States, 156 U.S. 237........ 26, 28, 29, 30

Motes v. United States, 178 U.S. 458 ....00.0.00.. 26

Nemen Vv. (iem, 48 U.6. G82 ................................ 29

Nudd Vv. Burrows, 91 U.S. 426 ........................0000-..... 35

a FES SS eee passim

Ottomano v. United States, 468 F.2d 269, cert. de-

I ccibtnicinpenisioons 7

Parker v. Randolph, 442 U.S. 62 ........0000.00..002222-.... 28

Patton ¥. Freeman, 1 N.J.L. 118 .............................. 20

Pointer V. Tezas, 360 U.S. 400 ............................... am 30

Reitenbach v. Reitenbach, 1 Rawle 362... 21

Reynolds v. United States, 98 U.S. 145...... 25, 26, 28, 36

Roberts v. Russell, 392 U.S. 293 ................... 29

St. Clair v. United States, 154 U.S. 134 35

Salinger v. United States, 272 U.S. 542 29

Sandstrom v. Montana, 442 U.S. 510 33

Schneble v. Florida, 405 U.S. 427 28-29

Smith Vv. Illinois, 390 U.S. 129 .................................. 33

Snyder v. Massachusetts, 291 U.S. 97 _........... 33

State v. Tilghman, 33 N.C. (11 Ired.) 513 _.......... 22

State v. Waldron, 16 R.I. 191 .......... 22

Tennessee V. Street, No. 83-2143 (May 13, 1985).. 28, 36

Trial of Daniel Dammaree, 15 State Tr. 522. 19, 20

Trial of John Horne Tooke, 25 State Tr.1 20

Trial of Lord George Gordon, 21 State Tr. 522... 20

Trial of Thomas Hardy, 24 State Tr. 200 20

Trial of William Stone, 25 State Tr. 1155 20

United States v. Alfonso, 738 F.2d 369... 8

Cases—Continued : Page

United States v. Ammar, 714 F.2d 238, cert. de-

I a iia ikcsciicccitertlnancsstscienishlieneansliseenid 7, 32

United States v. Bagley, No. 84-48 (July 2, 1985) .. 45

United States v. Blue, 384 U.S. 251 ........................ 45

United States v. Caputo, 758 F.2d 944 W000... 7,40

United States v. DeLuna, 763 F.2d 897 -................... 7

United States v. Gibbs, 739 F.2d 838 _.................... 45

United States v. Gooding, 25 U.S. (12 Wheat.)

ai imseleentsisdnie 21, 34

United States v. Goodwin, 625 F.2d 693 _................ 40

United States v. Hasting, 461 U.S. 499 _.................. 45

United States v. Hodgson, 492 F.2d 1175 ................ 40

United States v. Horton, 629 F.2d 577 .................... 40

United States v. Kelley, 526 F.2d 615, cert. denied,

TR RE RE ee a 32

United States v. Leon, No. 82-1771 (July 5, 1984)... 45

United States v. Lisotto, 722 F.2d 85, cert. denied,

Ne. 63-1417 (ier. 36, 19864) ............................... 8

United States v. Lurz, 666 F.2d 69, cert. denied,

I De sssdeuiabanguabes 8

United States v. Molt, 758 F.2d 1198....................... 7

United States v. Morrison, 449 U.S. 361 ................ 45

United States v. Nixon, 418 U.S. 683 -.....0.0000000. 34

United States v. Ordonez, 737 F.2d 793 ................ 7, 32, 39

United States v. Peacock, 654 F.2d 339, cert. de-

cia hahaa 8

United States v. Perez, 702 F.2d 33, cert. denied,

i slam iabnniioate 7-8

United States v. Roberts, 583 F.2d 1173, cert. de-

SO I a chineoiaass &

United States v. Rodriguez, 706 F.2d 31 ............... 40

United States v. Snow, 521 F.2d 730, cert. denied,

he SRRNEE oR PNR Re i nepEne r 32

United States v. Tille, 729 F.2d 615, cert. denied,

Nos. 83-6907, 83-6978 (Oct. 1, 1984) _................ 7

United States v. Wade, 388 U.S. 218 00000. 46

United States v. Washington, 688 F.2d 953 _........ 8

United States v. Wolfe, No. 84-9009 (July 29,

RTI ge NP PASE tek LT Sey Ne 7

United States v. Wright, 588 F.2d 31, cert. denied,

BR PRED ORO re ea BD TLE 8, 32

—_

Vil

Cases—Continued : Page

Walker v. Georgia, No. 83-321 (May 21, 1984)... 46

Walston v. Commonwealth, 55 Ky. (16 B. Mon.)

ee RR tet inne toad Rani aoe arene 22

Wiborg v. United States, 163 U.S. 632 0000000000000... 35

Wong Sun v. United States, 371 U.S. 471 —...... 34

Woodsides v. State, 3 Miss. (2 Howard) 655........ 21

Constitution, statutes and rules:

U.S. Const. :

ESSIEN Rit Sg 43

Amend. VI (Confrontation Clause) ................ passim

Pub. L. No. 93-595, § 1, 88 Stat. 1926 00000. 34, 35

Pe 35

FFs, FR SF |. Seana 14

2&3 Phil. & M. ch. 10 (1666) .................................... 14

Fed. R. Evid.:

art. VIII advisory committee note 34

EEE RE 36

I 2,6

Ee ROE re 2, 4, 6, 35

advisory committee note 0.00 35

ESC SS RL I a 6

Aha t h G E aa NER. 6, 27, 38, 34

advisory committee note 0.000000. 31, 34

ETE alee ke Oe a 8 WORRY WIRES 23, 27

ESR ERE ENE RE RO Li oe 23

A Ne CR RL 27

TE CR Seen OER mF 23, 27

EE a OE So 23

cies iii dincdnsishedpniandicunsndiiibiiaamsamaials 23, 27

EEC a nee nw ee oR 33

I .....6, 27, 33, 34, 39, 41

TR IE Rana eae aan EAE 24

advisory committee note 24

i 23

I a I 24

Rule 804 advisory committee note _.................. 34

VIII

Miscellaneous : Page

1 Annals of Cong.: 1785-1790 (1789) _.................. 18

3 W. Blackstone, Commentaries on the Law of

NE OD acide ttkceshesicienscincieninabennosstnlicad 13, 16, 17

Davenport, The Confrontation Clause and the Co-

Conspirator Exception in Criminal Prosecu-

tions: A Functional Analysis, 85 Harv. L. Rev.

PRR CRED SR ee 42

E. Dumbauld, The Bill of Rights (1957) --............. 18

46 F.R.D. 161 (1969) (Rule 8-01(c) (3) (v)) ~~... 35

fe Nf eR RE a 34, 35

M. Hale, The History of the Common Law of Eng-

BE TE a a 15-16

2 W. Hawkins, A Treatise of the Pleas of the

ES Ea ae ee oe or oe 16

9 W. Holdsworth, History of the English Law

la a RARE ER TENE A SEO ee 12, 13-14, 15

4 D. Louisell & C. Mueller, Federal Evidence

ERE cS RES Ae SRR OE Te ee ee 7

McCormick on Evidence (2d ed. 1972) .................... 13

Morgan, Hearsay Dangers and the Application of

the Hearsay Concept, 62 Harv. L. Rev. 177

UUM -Lsbictsebenngibicsteedsbaaiesicn adivdsbadmiaaecindebendebuhivnies 12, 13

Morgan, The Hearsay Rule, 12 Wash. L. Rev. 1

RES GSS Tals A EOI os SR ae OR = OO 12

Pollitt, The Right of Confrontation: Its History

and Modern Dress, 8 J. Pub. L. 381 (1959) ........ 14, 15

B. Schwartz, The Bill of Rights: A Documentary

History (1971):

, EUS pean ues oe wah 2 re 17

Ree een he Crem eer 17, 18, 19

S. Rep. 93-1277, 93d Cong., 2d Sess. (1974) —.......... 35

J. Stephen, A History of the Criminal Law of Eng-

land (1883) :

RATE ATEN ae tae Re ae abet Ec Re 12, 14-15, 19

ON a 19

Stephen, Criminal Procedure from the Thirteenth

to the Eighteenth Century, in 2 Select Essays in

Anglo-American Legal History (1908) ............... 15

3 J. Story, Commentaries on the Constitution (2d

Ee dencenhceetnteah decbiceininnitiiligsiltiabbinsitbitlnsaiiidibiienens 21

Miscellaneous—Continued : Page

Wigmore on Evidence:

Vol.3 (Chadbourn rev. ed. (1970) 13

Vol. 5:

ET 2s 33

(Chadbourn rev. ed. 1974) ...... 12, 13

Wolfram, John Lilburne: Democracy’s Pillar of

Fire, 3 Syracuse L. Rev. 213 (1952) 15

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1580

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOSEPH INADI

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-l6a)

is reported at 748 F.2d 812. The order amending that

opinion (Pet. App. 17a-19a) is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered on

November 13, 1984. The order denying rehearing was

entered on February 8, 1985 (Pet. App. 20a). The peti-

tion for a writ of certiorari was filed on April 4, 1985,

and was granted on May 28, 1985. The jurisdiction of

this Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION AND RULE INVOLVED

The Sixth Amendment provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right * * * to be confronted with the witnesses

against him * * *,

(1)

Rule 301(d) of the Federal Rules of Evidence provides

oe in pertinent part:

A statement is not hearsay if—

. t * * *

(2) * * * The statement is offered against a party

and is * * * (E) a statement by a co-conspirator of

a party during the course and in furtherance of the

conspiracy.

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of Pennsylvania, respondent was

convicted on six counts arising from a scheme to manu-

facture and distribute methamphetamine. He was sen-

tenced to three years’ imprisonment to be followed by a

seven-year special parole term. The court of appeals

reversed (Pet. App. la-l6a).

_ 1. The evidence at trial showed that in September

1979 unindicted co-conspirator Michael McKeon ap-

proached respondent seeking a distribution “outlet” for

methamphetamine. The two men agreed that respondent

would supply cash and chemicals for the venture and

would also be responsible for distribution, while McKeon

and co-conspirator William Levan would actually manu-

facture the drug (Tr. 77-83, 93).

McKeon and Levan made three attempts to manufac-

ture methamphetamine in Philadeiphia between December

1979 and April 1980. On the first occasion, McKeon

made three pounds of methamphetamine using P-2-P, a

precursor chemical, supplied by respondent. This meth-

amphetamine was delivered to respondent. McKeon,

Levan, and respondent shared a profit of $19,500 on this

transaction. The second “cook” failed to produce meth-

amphetamine because a necessary ingredient supplied by

respondent turned out to be a substance other than P-2-P.

A third “cook” succeeded in producing three and one-

half pounds of methamphetamine, which Levan delivered

to respondent (Tr. 83-93).

Thereafter, McKeon went to Cape May, New Jersey,

with the liquid residue from the third “cook.” He met

respondent, Levan, co-conspirator John Lazaro, as well as

two others not named as co-conspirators, at an empty

house that McKeon believed had been rented through

Lazaro. There they attempted to extract additional meth-

amphetamine from the liquid residue. This “drying”

resulted in less than an ounce of iow quality product,

which McKeon promptly sold for $200 (Tr. 95).

In the early morning hours of May 23, 1980, two local

police officers, acting pursuant to a search warrant, sur-

reptitiously entered the Cape May house and removed a

tray covered with drying methamphetamine. With the

permission of the issuing magistrate, the officers delayed

returning an inventory, leaving the participants to specu-

late about what had happened to the missing tray (Tr.

257-260, 275, 299-300).

On May 25, 1980, two DEA agents observed a meet-

ing between respondent and Lazaro alongside Lazaro’s

car in the parking lot of a restaurant in Philadelphia.

At one point, one of the agents observed respondent lean

into the car. After Lazaro drove off, the agents over-

took and stopped his car. They searched the car, as well

as Lazaro and his wife Marianne, who was a passenger

at the time. Finding nothing, the agents allowed the

Lazaros to leave. Marianne Lazaro later recounted that

during the search she threw away a clear plastic bag

containing white powder that her husband had handed to

her after the meeting with respondent. Eight hours after

the search, one of the agents returned to the scene of the

stop and found a clear plastic bag containing a small

quantity of methamphetmine (Tr. 361, 432-439, 472-485,

555-556) .

1 Marianne Lazaro, who was named as an unindicved co-conspirator

and who testified for the government under a grant of use im-

munity, denied that the bag found by the agent was the same one

that her husband had given her (Tr. 505-506).

From May 23 to May 27, 1980, state officers lawfully

intercepted five telephone conversations between various

participants in the conspiracy. These taped conversations

were played for the jury at trial. In one conversation,

Lazaro asked respondents, in code, for a quantity of

methamphetamine and reported on the residue missing

from the Cape May hbuse, suggesting that “Mike”

probably took it. In another conversation, Lazaro and

respondent arranged the meeting in the parking lot. In a

third conversation, Lazaro reported to respondent that

he kicked a “piece” under his car during the May 25

stop b the DEA agents, and he wondered how the agents

were tipped off. (GX 8-10).

In a fourth conversation, between McKeon and iMari-

anne Lazaro, the latter described the May 25 incident

and suggested that respondent might have set them up.

McKeon assured her that respondent was not an inform-

ant. In the final intercepted conversation, Levan and

John Lazaro discussed the missing residue and speculated

about who had set Lazaro up for the May 25 stop. (GX

13-14).

2. At trial, respondent sought to exclude the recorded

statements of John Lazaro and the other co-conspirators

on the ground that the statements did not satisfy the re-

quirements of Fed. R. Evid. 801(d) (2) (E), which regu-

lates admission of co-conspirator declarations. The court

deferred ruling on this issue until after hearing the evi-

dence (see J.A. 16); it then admitted the statements,

finding that a preponderance of the evidence established

that the statements were made by conspirators in fur-

therance of and during the course of the conspiracy

(J.A. 21).

Respondent also objected to the admission of the state-

ments on Confrontation Clause grounds, contending that

the government had the burden of showing that the

declarants were unavailable (J.A. 17). In response, the

prosecutor informed the court that Lazaro had advised

her personally that he would refuse to testify even if

held in contempt. Nevertheless, at the judge’s suggestion,

total 8], eee oerrrmrrrrmererrerrerl ce-rmhrt lr TL eee

the prosecutor promised to bring Lazaro to court. The

judge also asked defense counsel whether she wanted the

prosecution to call Lazaro, since this might result in his

testifying, and defense counsel stated that she would

discuss this “weighty matter” with her client (J.A. 18).

The government subpoenaed Lazaro (see Pet. App. 15a),

but he failed to appear, advising the prosecutor that he

had “car problems” (J.A. 19). The defense did not

subpoena Lazaro, seek the issuance of a bench warrant,

or (as far as the record indicates) make any other efforts

to secure Lazaro’s presence in court.

The court ultimately rejected all of respondent’s Con-

frontation Clause objections. It noted (J.A. 21) that two

of the four co-conspirator declarants (Mrs. Lazaro and

McKeon) had testified and that the third (Levan) had

asserted his Fifth Amendment privilege outside the pres-

ence of the jury. The court then implicitly rejected re-

spondent’s contention that the government was obligated

to produce Mr. Lazaro or prove his unavailability. La-

zaro’s statements were admissible, the court held (J.A.

21), simply because they satisfied the co-conspirator rule.

3. On appeal, respondent reiterated his contention that

the admission of John Lazaro’s recorded statements vio-

lated both the co-conspirator exception to the hearsay

rule and the Confrontation Clause. The court of appeals

held that Lazaro’s statements satisfied the requirements

of the co-conspirator rule (Pet. App. 8a-lla). However,

the court accepted respondent’s contention that the Con-

frontation Clause requires the government to show the

unavailability of a non-testifying co-conspirator as a pre-

condition to admitting his out-of-court statements (id. at

lla-13a).

In imposing an “unavailability” requirement under the

Confrontation Clause, the court relied almost exclusively

(Pet. App. 12a) on this Court’s dictum in Ohio v.

Roberts, 448 U.S. 56, 65 (1980), that “in conformance

with the Framers’ preference for face-to-face accusation,

the Sixth Amendment establishes a rule of necessity. In

the usual case * * * the prosecution must either produce,

or demonstrate the unavailability of, the declarant whose

statement it wishes to use against the defendant.” The

court of appeals found no reason for excepting co-

conspirator statements from “the clear constitutional rule

laid down in Roberts” (Pet. App. 12a). The court added

(id. at 18a) that “it does not seem unreasonable to re-

quire the government to demonstrate that its hardship is

real before availing itself of this tremendous evidentiary

advantage.”

The court rejected the government’s argument that

Lazaro’s unavailability had in fact been sufficiently estab-

lished, suggesting that the government should have re-

quested a bench warrant to secure Lazaro’s presence after

he failed to obey the subpoena (Pet. App. 13a-16a). The

court declined to credit the government’s representation

that Lazaro would refuse to testify and insisted that

nothing less than “an actual assertion of privilege and

exemption by ruling of the court” would suffice (id. at

16a). Respondent’s convictions were reversed, and the

case was remanded for a new trial (ibid.).

INTRODUCTION AND SUMMARY OF ARGUMENT

Under common law, hearsay evidence was generally

inadmissible, but exceptions to this rule for specific cate-

gories of hearsay were always recognized. Over the

years, these exceptions were forged by litigation, ex-

amined by scholars and legislators, and modified in light

of ongoing experience and study. The provisions of the

Federal Rules of Evidence dealing with hearsay represent

a codification and refinement of the common law ap-

proach: hearsay is generally made inadmissible (Rule

802), but there are more than 30 exemptions and excep-

tions (Rules 801(d), 803, 804). One of these exemptions,

Rule 801(d)(2)(E), codifies the common law rule

(which this Court adopted more than 150 years ago)

permitting the admission of statements made by a co-

conspirator during and in furtherance of the conspiracy.

—~aew

eqn: A Oe Ee Segre

This ancient and highly developed scheme for regulat-

ing the admission of hearsay has been thrown into con-

fusion in recent years as a result of claims made by

criminal defendants that the introduction of hearsay ad-

missible under long accepted common law rules never-

theless violated their Sixth Amendment right “to con-

front the witnesses against” them. Because the co-con-

spirator rule is apparently the most frequently used ex-

ception to the hearsay rule, the bulk of the lower court

litigation has concerned co-conspirator declarations, and

the courts of appeals are in sharp conflict regarding the

effect of the Confrontation Clause on this rule. While

some circuits have held that statements falling within

the co-conspirator rule automatically satisfy the Con-

frontation Clause,* other circuits, including the Third

Circuit, whose decision is now before the Court, have

held that co-conspirator statements are barred by the

Confrontation Clause unless the government (a) pro-

duces the declarant or establishes that he is unavailable

and (b) establishes that the particular statements at

issue are reliable.* In addition, several courts of appeals

? See 4 D. Louisell & C. Mueller, Federal Evidence § 427, at 331

(1980).

8 E.g., Boone Vv. Marshall, 760 F.2d 117 (6th Cir. 1985); United

States v. Molt, 758 F.2d 1198 (7th Cir. 1985); Ottomano v. United

States, 468 F.2d 269, 273 (1st Cir. 1972), cert. denied, 409 U.S.

1128 (1973). See United States v. Wolfe, No. 84-9009 (11th Cir.

July 29, 1985), slip op. 5544 (co-conspirator statements presump-

tively reliable; issue of declarants’ availability not presented).

* In addition to the instant case, see United States v. Caputo, 758

F.2d 944 (3d Cir. 1985) (availability); United States v. Ammar,

714 F.2d 238, 254-257 (8d Cir. 1983), cert. denied, 464 U.S. 936

(1983) (reliability) ; United States v. DeLuna, 763 F.2d 897 (8th

Cir. 1985) ; United States v. Ordonez, 737 F.2d 793, 802-804 (9th

Cir. 1984) ; United States v. Tille, 729 F.2d 615, 620-621 (9th Cir.

1984), cert. denied, Nos. 83-6907, 83-6978 (Oct. 1, 1984).

The Second and Tenth Circuits appear to take an intermediate

position, i.e., that whether or not the co-conspirator declarant is

available, the Confrontation Clause demands that the trier of fact

have an adequate basis for judging reliability. See United States

have held that the Confrontation Clause imposes similar

requirements as prerequisites for admission of evidence

falling within other traditional hearsay exceptions.°

We find it hard to understand, nearly two hundred

years after the adoption of the Sixth Amendment, what

sudden epiphany could provide a supportable basis for the

conclusion that the Constitution has been routinely vio-

lated under settled past practice. In our view, this re-

evaluation of traditional hearsay exceptions under the

Confrontation Clause is unwarranted by the purposes of

the Clause, which was primarily intended to prohibit

trial by affidavit or deposition and analogous practices

and was not meant to furnish a standard for close regu-

lation of all traditional hearsay exceptions.

1. The hearsay rule, which has never been without

exceptions, developed during the same general period as

the right to confrontation, but they were doctrinally dis-

crete. The hearsay rule, which applies both to criminal

and civil trials, provided detailed regulation of the ad-

mission of out-of-court statements, while the right to

confrontation developed in specific response to the hated

17th century practice of trying criminal defendants based

on affidavits and depositions obtained ex parte by ex-

v. Perez, 702 F.2d 33 (2d Cir. 1983) (adding that co-conspirator

statements are usually reliable because they are against penal

interest), cert. denied, 462 U.S. 1108 (1983); United States v.

Wright, 588 F.2d 31, 37-38 (2d Cir.), cert. denied, 440 U.S. 917

(1979) ; United States v. Alfonso, 738 F.2d 369 (10th Cir. 1984) ;

United States v. Roberts, 583 F.2d 1173, 1175-1176 (10th Cir.

1978), cert. denied, 489 U.S. 1080 (1979).

Fourth and Fifth Circuit precedent on this point are unclear.

Compare United States v. Lisotto, 722 F.2d 85, 88 (4th Cir. 1983),

cert. denied, No. 83-1417 (Mar. 26, 1984), with United States v.

Lurz, 666 F.2d 69, 80-81 (4th Cir. 1981), cert. denied, 458 U.S.

1005 (1982); see United States v. Peacock, 654 F.2d 339, 349 (5th

Cir. 1981), cert. denied, 464 U.S. 965 (1983).

5 See Haggins v. Warden, 715 F.2d 1050 (6th Cir. 1983) (excited

utterance) ; United States v. Washington, 688 F.2d 953, 959 (5th

Cir. 1982) (business records) ; Lenzar v. Wyrick, 665 F.2d 804, 810-

811 (8th Cir. 1981) (state-of-mind exception).

ane rere ten

amining magistrates. Eighteenth century authorities per-

ceived no contradiction between the recognized hearsay

exceptions and the confrontation right.

In this country, the Confrontation Clause was in-

serted in the Bill of Rights with scarcely any discussion

or debate. Had there been any thought that this pro-

vision departed from the settled understanding of the

right of confrontation and affected the established excep-

tions to the hearsay rule, there would have surely been

some explanation or controversy. This interpretation of

the Confrontation Clause is strongly supported by early

19th century case law.

2. The present confusion regarding the meaning of

the Confrontation Clause is traceable chiefly to a single

hearsay exception, that for prior recorded testimony.

This type of traditionally admissible hearsay may be

aptly analogized to an affidavit or deposition, because

like them it is generally nothing more than an inferior

substitute for live testimony. Accordingly, this Court has

tested former testimony against Confrontation Clause

standards; and because former testimony is ordinarily

only a next-best substitute for live testimony, former tes-

timony has been held to be generally inadmissible unless

live testimony cannot be obtained.

Unlike former testimony, evidence falling within other

traditional hearsay exceptions, including the co-conspira-

tor rule, has probative value very different from sub-

sequent live testimony, and therefore under the law of

hearsay the availability of the declarant to give live tes-

timony has not been regarded as having any bearing on

the admissibility of statements falling within most tra-

ditional exceptions. The court of appeals in this case

and some other lower courts have in recent years lost

sight of this critical distinction and have erred in me-

chanically subjecting the co-conspirator rule and other

time-honored hearsay exceptions to additional obstacles

to use derived from this Court’s cases involving only the

problems specifically associated with former testimony.

This Court’s decisions do not support such an approach.

On the contrary, this Court’s Confrontation Clause cases

involving the admission of hearsay appear to take a

very different, three-part approach. First, in accordance

with the historical crigin of the Confrontation Clause,

those forms of potentially admissible hearsay that re-

semble affidavits or depositions have been closely regu-

lated—and it is in this specific context that availability

has been considered important. Second, the Court has

regarded other firmly rooted hearsay exceptions as pre-

sumptively constitutional. Third, the Court has held out

the possibility that novel hearsay exceptions may be sub-

jected to more exacting scrutiny.

3. Close reexamination of all of the traditional hear-

say exceptions under the Confrontation Clause would be

a burdensome and pointlessly duplicative process, espe-

cially since those exceptions have been forged with full

consideration of the very same fundamental concern that

underlies the Confrontation Clause: what kind of evi-

dence is too likely to mislead the finder of fact to permit

its use at trial. In the case of the co-conspirator rule,

moreover, the Court would be reevaluating a doctrine

that may aptly be characterized as the Court’s own crea-

tion. Constitutionalizing the hearsay rules would also

stunt beneficial evolution and experimentation.

4. The specific holding of the court of appeals in this

case—that the prosecution may not introduce a co-con-

spirator statement unless the declarant is produced or

the prosecution carries the burden of showing the de-

clarant to be unavailable—would substantially impair .

the prosecution of crime without any appreciable bene-

fits. Indeed, it does not seem an exaggeration to state

that the Court has seldom had before it a proposed con-

stitutional rule that would add more to the expense and

complexity of criminal trials while contributing less to

the reliability of their outcomes than the rule adopted by

the court of appeals in this case.

The use of co-conspirator declarations as evidence at

criminal trials is one of the great commonplaces of the

American legal landscape, surely occurring tens of thou-

ae _—

sands of times each year in state and federal courtrooms

throughout the nation. Up until the last couple of years,

the rules surrounding the admission or exclusion of such

evidence never conditioned the admissibility of co-con-

spirator declarations on any showing respecting the avail-

ability or unavailability of the extra-judicial declarant.

Under the court of appeals’ rule, however, each extra-

judicial declarant must now be produced in court (or

his absence satisfactorily explained) as a condition to

admission of his or her statement in furtherance of the

conspiracy, whether or not any party actually wishes to

call the declarant as a witness. Many of these individuals

will not be locatable at the time of trial, in which case

a hearing (potentially lengthy and complex) will have

to be held into whether the prosecution made all reason-

able efforts to locate the declarant or was somehow at

fault in losing track of his or her whereabouts. Others

may be serving prison sentences and will be producible

only at considerable expense. Most of the declarants,

if they are not already to be witnesses for one side or

the other, will refuse to testify, and hearings will then

be required to evaluate their claims of privilege and/or

to determine whether they should be held in contempt be-

fore being found unavailable. And, of course, rulings of

unavailability will provide fertile new ground for appel-

late review.

Moreover, all of this time, effort, and expense that will

go into producing or litigating the unavailability of co-

conspirator/declarants will have little effect on the actual

course of the trial. It must be done even though the

defendant has not independently elected to call the de-

clarant as a witness and may have no interest whatever

in having him actually testify, as likely was the case

here (see J.A. 18), and even though the admissibility of

statements made in furtherance of the conspiracy is the

same whether the declarant in fact testifies or not.

II.

Finally, even if unavailability must be shown, the

court of appeals should have remanded this case for a

hearing on the co-conspirator/declarant’s availability

rather than reflexively ordering a new trial. If the de

clarant was indeed unavailable at the time of trial,

reversal was an inappropriate remedy, and a retrial

would be pointless.

ARGUMENT

I. THE ADMISSION OF STATEMENTS IN CONFORM-

ITY WITH THE TRADITIONAL CO-CONSPIRATOR

RULE DOES NOT VIOLATE THE CONFRONTA-

TION CLAUSE

A. The Confrontation Clause Was Intended To Pro-

hibit Trial By Affidavit And Comparable Practices,

Not To Proscribe Or Generally Regulate The Admis-

sion Of Hearsay

In recent years, there has been much confusion regard-

ing the relationship between the right of confrontation

protected by the Sixth Amendment and the rules regulat-

ing the admission or exclusion of hearsay. Historically,

the right of confrontation and the hearsay rule were re-

lated but doctrinally discrete reforms of pre-18th century

trial procedures. There was no mixing or confusion of

these two doctrines in the minds of jurists, scholars, and

statesmen at the time of the adoption of the Bill of

Rights, and no intent to regulate hearsay generally by

means of the Confrontation Clause.

1. The history of the hearsay rule has been recounted

by legal scholars and need not be detailed here. See, e.g.,

5 Wigmore on Evidence § 1364 (Chadbourn rev. ed.

1974) [hereinafter cited as Wigmore]; 9 W. Holdsworth,

History of the English Law 177-187, 214-219, 222-236

(1926) ; 1 J. Stephen, A History of the Criminal Law of

England 216-233, 324-427 (1883); Morgan, Hearsay

Dangers and the Application of the Hearsay Concept, 62

Harv. L. Rev. 177, 179-183 (1948); Morgan, The Hear-

say Rule, 12 Wash. L. Rev. 1 (1937). Before the 16th

century, it was accepted practice for jurors to obtain in-

formation by consulting persons not called into court. 5

Wigmore § 1364, at 13-15. During the 1500s, evidence

obtained in this manner began to be overshadowed by evi-

dence given by witnesses appearing in court (id. at 15),

but hearsay statements were “constantly received” (id.

at 17). Doubts about the value of such evidence arose

during the 16th century and increased during the 17th,

and by the 1680s there was “a fairly constant enforce-

ment [of the hearsay rule] both in civil] and criminal

eases.” Jd. at 18. By the 18th century, the general rule

was firmly established. Jd. at 19.

This rule, however, was never devoid of exceptions.

See 5 Wigmore § 1397, at 158; Morgan, 62 Harv. L. Rev.

at 179. Scholars have found that the following excep-

tions had taken shape by the late 18th century: dying

declarations,® regularly kept records,’ declarations against

interest,* past recollection recorded,® evidence of pedigree

and family history,” and various types of reputation evi-

dence." In addition, as we will discuss (see pages 19-21,

infra), the co-conspirator rule emerged during this same

period.

2. The right of confrontation developed during the

17th century in response to the practice of convicting

criminal defendants based upon affidavits. Towards the

end of the 16th century, “[t]hough the crown was be-

ginning to call witnesses, * * * the witnesses were not

confronted with the prisoner.” 9 W. Holdsworth, supra,

®5 Wigmore § 1430, at 275 (“This exception, as such, dates back

as far as the first half of the 1700s.”); McCormick on Evidence

680 (2d ed. 1972) [hereinafter cited as McCormick] (“as soon

as we find a hearsay rule we also find a recognized exception for

dying declarations”).

™5 Wigmore § 1518, at 426-428; McCormick 717-718; 3 W. Black-

stone, Commentaries on the Law of England 368 (1768).

85 Wigmore § 1476, at 350.

°3 Wigmore § 735, at 78-84; McCormick, 712.

105 Wigmore § 1480, at 363; McCormick, 745.

115 Wigmore § 1580, at 544; McCormick 748-759; 3 W. Black-

stone, supra, at 368.

at 224; see also Gannett Co. v. DePasquale, 443 U.S. 368,

421 (1979) (Blackmun, J.).

Particularly relevant for present purposes was the

function of the examining magistrate. Statutes enacted

in 1554 and 1555 (1 & 2 Phil. & M. ch. 13; 2 & 3 Phil. &

M. ch. 10) directed magistrates to interview and take the

depositions of all witnesses to felonies; ** this examina-

tion “was intended only for the information of the court.

The prisoner had no right to be, and probably never was

present. * * * [T]he depositions were to be returned

to the court, but there is evidence to show that the

prisoner was not allowed even to see them.” 1 J. Stephen,

supra, at 221.

These depositions were often the principal “evidence”

at trial. As Stephen relates (id. at 325-326) :

The proof was usually given by reading depositions,

confessions of accomplices, letters, and the like; and

this occasioned frequent demands by the prisoner to

have his “accusers,” i.e., the witnesses against him,

brought before him face to face, though in many

cases the prisoners appear to have been satisfied with

the depositions.

The trial of Sir Walter Raleigh for treason in 1603 is

illustrative of this procedure. A crucial element of the

evidence against Raleigh consisted of the deposition of

one Cobham and a letter that Cobham wrote thereafter,

both of which indirectly implicated Raleigh in a plot to

seize the throne. Raleigh had a written retraction from

Cobham, and believed that Cobham would now testify in

his favor. There was a lengthy dispute over Raleigh’s

right to have Cobham called as a witness, but the court

refused the request, reasoning that “so many horse-

stealers may escape, if they may not be condemned with-

out witnesses,” and Raleigh was convicted. 1 J.

12 Misdemeanors were under the jurisdiction of the Star Cham-

ber, which followed essentially similar procedures. 1 Stephen, supre,

at 338.

18 Quoted in Pollitt, The Right of Confrontation: Its History

and Modern Dress, 8 J. Pub. L. 381, 389 (1959).

Stephen, supra, at 333-336; 9 W. Holdsworth, supra, at

216-217, 226-228.

Another celebrated 17th century trial, that of the

Quaker preacher John Lilburne, led to recognition of the

right of confrontation. See Pollitt, The Right of Con-

frontation: Its History and Modern Dress, 8 J. Pub.

L. 381, 389-390 (1959). Charged in 1637 with illegally

importing books attacking the Anglican bishops, Lilburne

refused to answer the prosecution’s questions, insisting

that “my accusers ought to be brought face to face, to

justify what they accuse me of.” ** Found in contempt by

the Star Chamber, Lilburne was freed in 1640 by an act

of Parliament condemning the action of the Star Cham-

ber.” ‘) hereafter,” according to a commentator, “there

was no :|..pute in England about the right to confronta-

tion.” Pc litt, supra, 8 J. Pub. L. at 390.

3. The 18th century understanding of the relation be-

tween the right of confrontation and the hearsay rule is

illustrated by the writings of Hale and Blackstone. Two

points of importance for the present case are highlighted

by their analyses: first, these two doctrines were not tied

together but were viewed as distinct; second, no contra-

diction was perceived between the right of confrontation

and the existence of exceptions to the hearsay rule.

Discussing trial by jury, Hale made express reference

to the hearsay exceptions for regularly kept records and

ancient deeds. He stated that evidence in jury trials was

given “upon the OATH of witnesses, or other evidence by

law allowed;—as Records and Ancients Deeds.” M. Hale,

The History of the Common Law of England 342 \6th

ed. 1820). Several pages later, without any hint of con-

tradiction, he wrote that “by [tne] personal appearance

14 Stephen, Criminal Procedure From the Thirteenth to the

Eighteenth Century, in 2 Select Essays in Anglo-American Legal

History 443, 506 (1908).

15 Stephen, Criminal Procedure From the Thirteenth to the

Eighteenth Century in 2 Select Essays in Anglo-American Legal

History, supra, at 507. See generally, Wolfram, John Lilburne:

Democracy’s Pillar of Fire, 3 Syracuse L. Rev. 213 (1952).

and testimony of witnesses, there is opportunity of con-

fronting the adverse witnesses; * * * and by this means

great opportunities are gained, for the true and clear dis-

covery of the truth.” Jd. at 345-346."

Blackstone’s discussion is similar but more detailed.

After disclaming any intent “to enter into the number-

less niceties and distinctions of what is, or is not, legal

evidence to a jury” (3 W. Blackstone, Commeniuries on

the Law of England 367 (1768) (emphasis in original) ),

he referred to the hearsay rule and the fact that it has

exceptions (id. at 368) :

[N]Jo evidence of a discourse with another will be

admitted, but the man himself must be produced; yet

in some cases (as in proof of any general customs, or

matters of common tradition or repute) the courts

admit of hearsay evidence * * *.

Five pages later, Blackstone provided a classic statement

of the right of confrontation, explaining both its mean-

ing and purpose (id. at 373-374) (footnotes omitted; em-

phasis added) :

This open examination of witnesses viva voce, in

the presence of all mankind, is much more conducive

to the clearing up of truth, than the private and

secret examination taken down in writing before an

officer, or his clerk in the ecclesiastical courts and

all others that have borrowed their practice from

civil law: where a witness may frequently depose

that in private, which he will be ashamed to testify

in a public and solemn tribunal. There an artful or

careless scribe may make a witness speak what he

never meant, by dressing up his depositions in his

own forms and language; but he is here at liberty

to correct and explain his meaning, if misunderstood,

which he can never do after a written deposition is

once taken. Besides the occasional questions of the

judge, the jury, and the counsel, propounded to the

16 See also 2 W. Hawkins, A Treatise of the Pleas of the Crown

429-431 (1721) (treating the admission of depositions takcu pur-

suant to the above-noted statutes and the admission of hearsay as

two separate questions).

witnesses on a sudden, will sift out the truth much

better than a formal set of interrogatories previously

penned and settled: and the confronting of adverse

witnesses is also another opportunity of obtaining a

clear discovery, which can never be had upon any

other method of trial. * * * In short by this method

of examination, and this only, the persons who are

to decide upon the evidence have an opportunity of

observing the quality, age, education, understanding,

behavior, and inclinations of the witness; in which

points all persons must appear alike, when their

depositions are reduced to writing, and read to the

judge, in the absence of those who made them: and

yet as much may be freyuently collected from the

manner in which the evidence is delivered, as from

the matter of it. These are a few of the advantages

attending this, the English way of giving testimony,

ore tenus.

In short, Blackstone explained that the right to con-

frontation was nothing more than the right to a trial in

which the prosecution’s case was established by live wit-

nesses rather than by depositions or written interroga-

tories.

4. In view of this understanding of the nature and

extent of the right of confrontation, the events surround-

ing the adoption of the Sixth Amendment take on an

unmistakable meaning.

Most of the state constitutions in effect at the time of

federal constitutional convention of 1787 guaranteed the

right to confrontation.'7 When the Constitution was con-

sidered by the state ratifying conventions and a con-

sensus emerged that a Bill of Rights should be added,

amendments proposed in several of the state conventions

contained provisions guaranteeing this right.’* Inclusion

of the confrontation right in these proposals occasioned

17 See 1 B. Schwartz, The Bill of Rights: A Documentary History

235 (1971) (Va.); id. at 265 (Pa.); id. at 277 (Del.); id. at 282

(Md.) ; id. at 287 (N.C.) ; id. at 8323 (Vt.) ; id. at 341, 371 (Mass.) :

id, at 377 (N.H.).

18 2 B. Schwartz, supra, at 665 (Pa.) (unsuccessful proposal) ; id.

at 841 (Va.); id. at 913 (N.Y.).

little discussion and no controversy, but the few remarks

made about this right fully support the view that there

was no intention to alter or expand the common law

doctrine.

In Pennsylvania, where the first convention was held,

amendments unsuccessiully proposed by Antifederalists

would have guaranteed “[t]hat in all capital and crimi-

nal prosecutions, a man has a right * * * to be con-

fronted with the accusers and witnesses.” ’® The pro-

ponents explained that their aim was to preserve “the

common law proceedings for the safety of the accused in

criminal prosecutions.” ** Although rejected in Pennsyl-

vania, the Antifederalist proposal became the model for

states “which desired to ratify the Constitution and, at

the same time, wanted a Bill of Rights.” ™

In Virginia, Patrick Henry criticized the Constitution

because it failed to protect individual rights guaranteed

at common law and by the Virginia Declaration of Rights

of 1776 * (which protected the right of confrontation) .**

The Virginia Convention appointed a committee, includ-

ing Henry and James Madison, to draft proposed amend-

ments.** The committee’s proposal, which contained a

confrontation provision identical to that in the Virginia

Declaration, was adopted by the Convention.”

After ratification of the Constitution, James Madison

proposed adoption by the First Congress of 12 constitu-

tional amendments, one of which protected the confronta-

tion right.*° This right was included in the Sixth Amend-

ment and adopted without discussion.”’

19 2 B. Schwartz, supra, at 665.

20 2 B. Schwartz, supra, at 668.

21 2 B. Schwartz, supra, at 628.

22 2 B. Schwartz, supra, at 798-799.

231 B. Schwartz, supra, at 235.

24 2 B. Schwartz, supra, at 839.

25 2 B. Schwartz, supra, at 841.

261 Annals of Cong. 1785-1790 (1789).

27 Ibid. See E. Dumbauld, The Bill of Rights 33-49, 53-54 (1957).

From this history and the 18th century understanding

of the right of confrontation, three points of importance

for present purposes emerge. First, the paucity of ex-

planation or discussion about the meaning of the right to

confrontation can signify only that the meaning of that

right was commonly understood and that there was no

thought that the Sixth Amendment departed from this

settled meaning. Thi is reinforced by the absence of any

controversy regarding the inclusion of the Confrontation

Clause in the Bill of Rights. Second, as best we can

determine, not a word was spoken or written—by those

who sought the adoption of a bill of rights, by the First

Congress, or by the state legislatures that ratified the

Bill of Rights—to suggest that the confrontation right

had anything to do with the general regulation of hearsay

or the details of the law of evidence.

It is also telling for present purposes that the rule

allowing admission of co-conspirator declarations had al-

ready emerged in England at the time of the adoption of

the Sixth Amendment. In a famous trial in 1710, Daniel

Dammaree and others were convicted of treason for lead-

ing a mob that pulled down four dissenting meeting

houses. Trial of Daniel Dammaree, 15 State Tr. 522

(1710); see 1 J. Stephen, supra, at 270-271. The Lord

Chief Justice instructed the jury that in order to con-

vict Dammaree of treason it was necessary to show that

it was his intention not simply to destroy a single meet-

ing house, “but to pull them down all” (15 State Tr.

at 607), and in this connection the prosecution’s wit-

nesses permissibly related numerous statements made by

members of the mob that bore upon their intentions (id.

at 552-562, 595-599).

In an equally well known case, Lord George Gordon

was tried for treason in 1781 for leading a mob that

attempted by force to procure the repeal of a law miti-

gating the penalties imposed on Roman Catholics. The

mob broke open jails, assaulted the Bank of England,

and “tried to burn down London.” 2 J. Stephen, A His-

tory of the Criminal Law of England 273 (1883). Lord

Gordon’s defense was that he did not intend to encourage

these extreme acts but merely to engage in petitioning.

Trial of Lord George Gordon, 21 State Tr. 522, 591-592

(1781). Again, as in the Dammaree case, numerous

statements made by members of the mob were admitted

(see 21 State Tr. at 514-515, 526-527, 529-540).

The contemporary understanding of these precedents

was shown in a string of treason trials in which the

defendants were charged with trying to bring the French

Revolution to England. For example, in the Trial of

Thomas Hardy, 24 State Tr. 200, 453 (1794), Lord Chief

Justice Eyre relied on Dammaree and Gordon for the

proposition that “the correspondence of one man who

is a party iii a conspiracy, would undoubtedly be evi-

dence, correspondence in furtherance of the plot.” Jus-

tice Buller observed (24 State Tr. at 452) (footnotes

omitted) :

In Dammaree and Purchase’s cases evidence was

received of what some of the parties had done when

the prisoner was not there. The attorney general

says, I call this witness, not to speak in particular

to the prisoner, but to shew the intention of the

mob. * * * In the cases that have happened in our

own time, in Lord George Gordon’s case, evidence of

what different persons of the mob had said, though

he was not there, was admitted.

See also Trial of John Horne Tooke, 25 State Tr. 1

(1794); Trial of William Stone, 25 State Tr. 1155,

1277-1278 (1794). In sum, at the time of the adoption

of the Bill of Rights, the co-conspirator rule was, if not

firmly established, at least very clearly foreshadowed in

English law.

In this country, the co-conspirator rule was adopted by

the Supreme Court of New Jersey in 1791, the very year

in which the Bill of Rights was ratified. Patton v. Free-

man, 1 N.J.L. 118, 115 (1791). Similar decisions were

soon handed down by the highest courts of Vermont,

Virginia, and Pennsylvania. Broughton v. Ward, 1 Tyl.

137, 139 (Vt. 1801); Claytor v. Anthony, 27 Va. (6

Rand.) 285, 300-301 (1828); Reitenbach v. Reitenbach,

1 Rawle 362, 365 (Pa. 1829). This Court first recog-

nized the co-conspirator rule in United States v. Gooding,

25 U.S. (12 Wheat.) 459 (1827). Justice Story, the

author of that opinion, made clear in his constitutional

treatise that he did not perceive any inconsistency be-

tween the Confrontation Clause and traditional hearsay

exceptions. The Confrontation Clause, he wrote, “does

but follow out the established course of the common law

in all trials for crimes. The trial is always public; the

witnesses are sworn, and give their testimony (at least

in capital cases) in the presence of the accused.” 3 J.

Story, Commentaries on the Constitution 662 (2d ed.

1833).

In our view, this history weighs very heavily against

the view that the traditional co-conspirator rule—with

criteria for admissibility that include no requirement of

a showing of unavailability or of an individualized deter-

mination of reliability of particular statements otherwise

satisfying the rule—is inconsistent with the Confronta-

tion Clause.

5. The meaning of the Confrontation Clause is also

illuminated by the views of judges of the early and

mid-19th century, who evinced no doubt about the origin

and scope of the right to confrontation and were firmly

of the view that this right did not call into question the

validity of traditional hearsay exceptions.

In Woodsides v. State, 3 Miss. (2 Howard) 655 (1837),

the Mississippi High Court of Errors and Appeals held

that the confrontation clause in the state constitution did

not preclude the admission of a dying declaration. The

court stated (id. at 665) that the confrontation require-

ment “was but an affirmation of a long cherished prin-

ciple of tne common law,” i.e., that “the accused is se

cured in the right of an oral examination of the opposing

witnesses, and of the advantages of a cross-examination.”

Admission of a dying declaration did not abridge the de-

fendant’s right “to be confronted with the witness against

him,” the court explained (ibid.), because “the murdered

individual is not a witness.” “It is the individual who

swears to the statements of the deceased that is the wit-

ness” (ibid.).

During this period, several other state courts heard

similar objections to the admission of dying declarations,

to which they invariably gave the same answer. The Su-

preme Court of Tennessee wrote (Anthony v. State, 19

Tenn. (Meigs) 265, 277-278 (1838)), that the purpose

of the state confrontation clause “was not to introduce

a new principle” but to perpetuate a right won in Eng-

land “after a long contest” with the crown. The Supreme

Court of Georgia wrote (Campbell v. State, 11 Ga. 353,

374 (1852) ):

The right of a party accused of a crime, to meet

the witnesses against him, face to face, is no new

principle. It is coeval with the Common Law. * * *

The argument for the exclusion of the testimony [re-

specting the dying declaration], proceeds upon the

idea that the deceased is the witness, when in fact

it is the individual who swears to the statements of

the deceased, who is the witness. * * *

The admission of dying declarations in evidence,

was never supposed, in England, to violate the well-

established principles of the Common Law, that the

witnesses against the accused should be examined in

his presence.

See also, e.g., State v. Tilghman, 33 N.C. (11 Ired.) 5138,

554 (1850) ; Commonwealth v. Carey, 16 Mass. (12 Cush.)

246 (1851) ; Lambeth v. State, 23 Miss. 322, 357 (1852) ;

Walston v. Commonwealth, 55 Ky. (16 B. Mon.) 15, 245

(1855) ; State v. Waldron, 16 R.I. 191, 193-195 (1888).

6. As we have seen, the jurists and scholars of the

18th and early 19th centuries saw no contradiction be-

tween the right to confrontation and the admission of

out-of-court statements falling within exceptions to the

= Se

hearsay rule. For them, the difference between trial by

affidavit and the recognition of hearsay exceptions was so

obvious that they apparently saw no need to articulate

the reasons for prohibiting the former while allowing the

latter. But the reasons can easily be explained.

An affidavit or deposition, particularly if created ex

parte, is ordinarily nothing but a less desirable substi-

tute for live testimony. It can be as detailed and compre-

hensive as the direct examination of a live witness. It

can be crafted to make out all of the elements of a

criminal charge. It is usually created with litigation in

mind and thus is subject to all of the slanting and dis-

tortion that the pressures of litigation may produce. It

is also usually created in the presence or with the co

operation (and thus under the potential influence) of one

of the parties.

Most admissible hearsay shares none of these charac-

teristics. It often consists of a few utterances (see, ¢.9.,

Fed. R. Evid. 803(1) (present sense impressions), 803

(2) (excited utterances)). It is rarely made during or

even in contemplation of litigation (see, e.g., Fed. R. Evid.

803(5) (past recollection recorded), 803(6) (business

records) ). And most admissible hearsay is widely thought

to have probative value independent of whatever testi-

mony the declarant might later give at trial. To take just

one of many possible examples, a statement made for

purposes of medical diagnosis or treatment (see Fed. R.

Evid. 803(4)), when the declarant’s health may lie in

the balance, is thought to have a probative significance

quite independent of and possibly greater than testimony

that the declarant might later give in court. It is for

this reason that the common law did not condition use of

most hearsay exceptions upon a showing of unavailability

by the proponent of the evidence and that 23 of 27 specific

hearsay exceptions in the Federal Rules of Evidence apply

irrespective of the declarant’s availability. Compare Fed.

R. Evid. 803(1)-(23) with Fed. R. Evid. 804(b) (1)-(4).

There are, however, a few types of potentially admis-

sible hearsay that can aptly be compared to an affidavit

or deposition, and it is there that the requirements of the

Confrontation Clause and the hearsay rules overlap. For-

mer testimony (see Fed. R. Evid. 804(b) (1)) is the most

striking example. Absent special circumstances, former

testimony is simply a next-best substitute for live testi-

mony and therefore is admissible as substantive evidence

under the Federal Rules only if the declarant is unavail-

able. Former testimony may be similar in breadth and

detail to live testimony. It occurs in a court proceeding—

often a proceeding related to that in which it is later

sought to be introduced. And even when accompanied

by cross-examination, former testimony is thought to

be generally less reliable than live testimony because the

trier of fact cannot observe the witness’s demeanor. Fed.

R. Evid. 804(b) (1) advisory committee note.

A third party’s confession, which may fall within the

modern exception for declarations against penal interest

(Fed. R. Evid. 804(b) (3)), is another example of hear-

say that may properly be subject to close regulation un-

der the Confrontation Clause. Confessions may have all

the breadth and detail of an affidavit or deposition. And

like the affidavits and depositions obtained by examining

magistrates in the 17th century, confessions are generally

obtained ex parte, in contemplation of litigation, and with

the participation of prosecutorial authorities.

The court of appeals’ erroneous decision in the present

ease resulted from a failure to appreciate the difference

between those types of potentially admissible hearsay

that are analogous to ex parte affidavits and depositions

and are thus properly subject to close Confrontation

Clause scrutiny and the remaining traditional hearsay

exceptions, which should be regarded as presumptively

valid.

B. This Court’s Confrontation Clause Decisions Have

Closely Regulated The Admission Of Former Testi-

mony But Have Treated Most Other Traditional

Hearsay Exceptions As Presumptively Valid

This Court’s Confrontation Clause cases disclose a

three-part approach to the admission of hearsay. First,

this Court has closely regulated the admission of hearsay,

such as former testimony, that is broadly analogous to an

affidavit or deposition. The vast bulk of this Court’s

Confrontation Clause cases have dealt with former testi-

mony and thus fall into this category. Second, the Court

has not subjected other traditional hearsay exceptions to

the same close regulation. Recognizing that the Con-

frontation Clause and the hearsay rule both embody the

view that live testimony, with an opportunity for cross-

examination, is generally the most reliable form of evi-

dence, the Court has regarded time-tested hearsay excep-

tions as presumptively consonant with the Constitution.

Third, the Court has held out the possibility of closer

examination of any new and radical departures from

traditional hearsay rules.

1. Most of this Court’s Confrontation Clauses cases

dealing with hearsay have concerned the propriety of ad-

mitting former testimony. As previously noted, former

testimony is comparable in several critical respects to an

affidavit or deposition, and thus close regulation of this

type of hearsay is consistent with the historical roots

of the confrontation right.

This close examination has focused first upon the avail-

ability of the declarant to give live testimony. As earlier

discussed, former testimony usually ; simply an inferior

substitute for live testimony, and accordingly there is

generally no reason to admit former testimony if live

testimony can reasonably be obtained. Thus, from the

Court’s first Confrontation Clause case, Reynolds v.

United States, 98 U.S. 145 (1879), to Ohio v. Roberts,

448 U.S. 56 (1980), the Court has explored the circum-

stances in which there is sufficieut reason to permit the

prosecution to use a substitute for live testimony. The

Court has found adequate cause for admitting former tes-

timony where the absence of the declarant was procured

by the defendant (Reynolds, 98 U.S. at 158-161), where

the declarant had died (Mattox v. United States, 156

U.S. 237 (1895) ), where the declarant had left the coun-

try and was beyond the reach of the court’s process

(Mancusi v. Stubbs, 408 U.S. 204 (1972)), and where

the declarant was a young person who had left home, was

“traveling,” and could not be located by her parents or

by the authorities (Ohio v. Roberts, supra). By contrast,

the Court has held that resort to former testimony was

not justified where the government negligently allowed

the declarant to slip out of the courthouse before testi-

fying (Motes v. United States, 178 U.S. 458 (1900)),

and where the state did not pursue available procedures

for obtaining the presence in court of a declarant incar-

cerated in a federal prison in another state (Barber v.

Page, 390 U.S. 719 (1968) ).

Roberts summarized this case law as follows (448 U.S.

at 65):

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. See Mancusi v. Stubbs, 408

U.S. 204 (1972); Barber v. Page, 390 U.S. 719

(1968). See also Motes v. United States, 178 U.S.

458 (1900); California v. Green, 399 U.S. at 161-

162, 167 n.16."

7A demonstration of unavailability, however, is not always

required * * *.

The court of appeals in this case (Pet. App. 12a) in-

terpreted this passage to mean that a demonstration of

unavailability is generally required before any hearsay

can be admitted, but in our view this statement must

have been intended to describe only the exception for

former testimony. The four cases cited by the Court all

ees

involved former testimony. The Court’s suggestion that

“the usual case” may feature “prior cross-examination”

also indicates that the Court had former testimony in

mind, since no other type of hearsay statement is likely

to have been subjected to prior cross-examination. More-

over, since most traditionally admissible hearsay has a

probative value independent of any testimony that the

declarant might later give, it would be strange to bar the

admission of such hearsay on the ground that the de-

clarant was available to testify. Twenty-three of the 27

specific hearsay exceptions recognized in the Federal

Rules of Evidence do not require the unavailability of the

declarant. Fed. R. Evid. 803, 804. If the court of ap-

peals’ reading of Roberts were correct, all of these excep-

tions (and thus a substantial portion of the federal hear-

say rule) would contravene the Confrontation Clause.

We do not believe that the Roberts Court intended to

embrace such a revolutionary proposition in such an off-

hand manner.

In addition to unavailability, the second question in

this Court’s former testimony cases has been whether

the former testimony was given under circumstances pro-

viding sufficient guarantees of trustworthiness. All hear-

say exceptions identify circumstances thought to provide

sufficient assurance of reliability that it is deemed better

to let the fact-finder hear and weigh the evidence than

to exclude it entirely. For example, some types of hear-

say are thought to possess qualities of reliability because

uttered in circumstances that preclude reflection or con-

scious fabrication * or in circumstances in which the

declarant has a strong self-interest in making a truthful

statement.*® With respect to former testimony, which

28 See, e.g., Fed. R\\Evid. 80341) (present sense impression),

29 See, e.g., Fed. R. Evid.

medical diagnosis or treatm

ducted activity) .

lacks these reassuring characteristics, trustworthiness is

instead advanced by legal procedures at the proceeding in

which the former testimony is given. In its former testi-

mony cases, this Court has considered the adequacy of

these safeguards and has found them satisfactory where

the former testimony was given under oath and was cross-

examined, or where there was at least opportunity and

similar motive for cross-examination or its equivalent.

See Reynolds, 98 U.S. at 161; Mattox, 156 U.S. at 249;

California v. Gree,., 399 U.S. 149, 165-168 (1970) ; Ohio

v. Roberts, 448 U.S. at 67-73. Not only is this close exami-

nation of the trustworthiness of former testimony con-

sistent with the historical purpose of the Confrontation

Clause, but it is singularly appropriate in this context

because it entails an evaluation of court procedures rather

than the psychological judgments about human behavior

outside the courtroom that underlie most of the other

traditional hearsay exceptions.

Besides these former testimony cases, the Court has also

decided several Confrontation Clause cases involving the

use of third-party confessions. As previously noted, such

confessions, like former testimony, bear sufficient resem-

blance to ex parte affidavits or depositions to call for close

examination under the Confrontation Clause. Accordingly,

in Douglas v. Alabama, 380 U.S. 415 (1965), the Court

found a Confrontation Clause violation where the prose-

cuting attorney, in the guise of refreshing the recollection

of an accomplice who refused to testify on the ground of

self-incrimination, read the accomplice’s confession to the

jury. And in Bruton v. United States, 391 U.S. 123

(1968), the Court held that the Confrontation Clause was

violated by the admission at a joint trial of a confession

made by a non-testifying defendant and implicating his

co-defendant.”

3% See also Tennessee Vv. Street, No. 83-2143 (May 13, 1985) (no

Bruton violation where confession introduced for non-hearsay pur-

poses); Parker v. Randolph, 442 U.S. 62 (1979) (application of

Bruton to interlocking confessions) ; Brown v. United States, 411

U.S. 223, 230-232 (1973) (Bruton error harmless); Schneble v.

2. The Court has taken a very different approach to

other traditional hearsay exceptions. On the few occasions

when such exceptions have been challenged under the

Confrontation Clause, the challenges were firmly rebuffed.

In Delaney v. United States, 263 U.S. 586, 590 (1924),

the Court rejected a Confrontation Clause objection to the

admission of co-conspirator statements, tersely observing

that the statements were “within the ruling of the cases”

of this Court recognizing the co-conspirator rule. Two

years later, in Salinger v. United States, 272 U.S. 542,

547-548 (1926), the Court considered a Confrontation

Clause challenge to documentary evidence admitted as

res gestae. Noting that the evidence had hearsay and non-

hearsay components (272 U.S. at 547-548), the Court

rejected the Confrontation Clause argument, stating (id.

at 548):

The right of confrontation did not originate with

the provision in the Sixth Amendment, but was a

common-law right having recognized exceptions. The

purpose of that provision, this Court often has said,

it to continue and preserve that right, and not to

broaden it or disturb the exceptions. * * * * The

present contention attributes to the right a much

broader scope than it had at common law * * *,

The Court has also repeatedly commented on the pre-

sumptive constitutionality of statements falling within

traditional hearsay exceptions. In Mattox, 156 U.S. at

237, the Court stated that the Clause must be interpreted

“in the light of the law as it existed at the time it was

adopted,” including “exceptions [that were] recognzed

long before the adoption of the Constitution * * * [and

that] were obviously intended to be respected” (id. at

243). Noting the settled hearsay exception for dying

declarations, the Court stated (id. at 243-244) that “no

Florida, 405 U.S. 427 (1972) (Bruton error harmless); Nelson v.

O'Neill, 402 U.S. 622 (1971) (Bruton does not apply where co-

defendant testifies in defendant’s favor and denies incriminating

statement) ; Harrington Vv. California, 395 U.S. 250 (1969) (Bruton

error harmless); Roberts v. Russell, 392 U.S. 293 (1968) (Bruton

retroactive and applies to the states).

one would have the hardihood at this day to question their

admissibility.” See also Pointer v. Texas, 380 U.S. at 407.

In Dutton v. Evans, 400 U.S. 74 (1970), which in-

volved a state provision expanding the traditional co-

conspirator rule, the plurality noted and appeared to dis-

approve (id. at 80) the lower court’s interpretation of the

Confrontation Clause, because it would “require[] a re-

appraisal of every exception to the hearsay rule, no matter

how long established, in order to determine whether * * *

it is supported by ‘salient and cogent reasons.’” The plu-

rality continued (400 U.S. at 80) that it did “question

the validity of the co-conspirator exception applied in

the federal courts.”

Ohio v. Roberts, supra, capsulized this approach by stat-

ing that “certain hearsay exceptions rest upon such solid

foundations that admission of virtually any evidence

within them comports with the ‘substance of the consti-

tutional protection’” (448 U.S. at 66, quoting Mattox,

156 U.S. at 244).

The reasons for this approach are apparent. Although

doctrinally discrete, the Confrontation Clause and the hear-

say rule are both based upon the view that live testimony

with the opportunity for cross-examination is generally

the best procedure for discovering the truth. But more

than 400 years of experience have given rise to many

refinements of the general prohibition against hearsay,

and a consensus has been reached, both here and through-

out the common-law world, that certain types of hearsay

statements are sufficiently trustworthy to permit their

admission and evaluation by the trier of fact. This Court

has declined to overrule the collective judgment of the

countless common law judges, scholars, and legislators

whose experiences and thinking are embodied in the tradi-

tional hearsay exceptions. As the Court succinctly put it

in Roberts (448 U.S. at 66): “Reliability can be inferred

without more in a case where the evidence falls within a

firmly rooted hearsay exception.”

The concept of “reliability” in hearsay and Confronta-

tion Clause analysis is both narrower and broader than

_— ae -- ee - eee

one might generally suppose. It is narrower, in part, be-

cause the question raised by an objection to hearsay on the

ground of reliability is not whether the particular evi-

dence is true or believable (much live testimony, after all,

is neither) but whether the evidence is by its nature so

misleading that the trier of fact should not even be allowed

to hear it. Moreover, when this Court is called upon to

propound a standard of constitutionally required relia-

bility, the Court’s task is not to evaluate which of many

possible rules of admission or exclusion is the soundest

“purely as a matter of the law of evidence” (California Vv.

Green, 399 U.S. at 155). Rather, the Court must articu-

late durable, national standards that will assure minimum

levels of trial fairness without unduly restricting federal

and state evidence law either now or for the future.

The concept of “reliability” in the present context is

broader than might otherwise be assumed because the

judgment underlying most of the traditional hearsay ex-

ceptions is that statements falling within those categor’»s

“possess circumstantial guarantees of trustworthiness suf-

ficient to justify nonproduction of the declarant in person

at trial even though he may be available.” Fed. R. Evid.

803 advisory committee note (proposed rules) (emphasis

added). Thus, respect for the process of incremental

legal development that has refined the traditional hearsay

rules leads to the conclusion that evidence falling within

most of the traditional hearsay exceptions is trustworthy

enough for admission whether or not the declarant is

available. It would be strange to defer to only one-half

of this unitary evolutionary judgment.

3. While this Court has not questioned the constitu-

tionality of most traditional hearsay exceptions, it has left

open the possibility that novel exceptions or radical de-

partures may be tested against stricter standards. In

Dutton v. Evans, supra, as previously noted, the Court

considered the constitutionality of admitting evidence un-

der just such an exception—a Georgia variation of the

traditional co-conspirator rule that permitted the admis-

sion of statements made during the concealment phase of

the conspiracy. Without intimating that it would be ap-

propriate “to require a constitutional reassessment of every

established hearsay exception” (400 U.S. at 80), the Dut-

ton plurality weighed the constitutionality of admitting the

co-conspirator statement in that case and found no Con-

frontation Clause violation. In support of this conclusion,

the plurality noted that the challenged statement was “of

peripheral significance” (400 U.S. at 87), that the co-

conspirator’s statement bore “indicia of reliability” (id.

at 89), and that the value of cross-examining the co-con-

spirator declarant was “wholly unreal” (ibid.).

At most, the Dutton plurality opinion suggests that

novel hearsay exceptions may be subject to closer analy-

sis than those that have become established through the

common law process. We see little justification for the

drastic view of those courts, including the Third Circuit,

that have read Dfitton to restructure the law of evidence

by introducing a general requirement that each piece of

hearsay evidence be separately assessed for reliability even

if it falls within a general class recognized under the law

of evidence as admissible despite its hearsay character.”

Instead, the Dutton plurality should be taken at its word,

i.e., that it was merely “deciding the case before [it]”

(400 U.S. at 86). Moreover, two of the four members of

the plurality, Justice Blackmun and the Chief Justice,

thought that the case could have been decided on the

basis of harmless error (id. at 90-93), and the fifth mem-

ber of the majority, Justice Harlan, would have adopted

Wigmore’s view that the Confrontation Clause does not

“prescribe what kinds of testimonial statements * * *

31 See, e.g., United States v. Ordonez, 737 F.2d 793, 802-804 (9th

Cir. 1983); United States v. Ammar. 714 F.2d 238, 254-257 (3d

Cir. 1983), cert. denied, 464 U.S. 936 (1983); United States v.

Wright, 588 F.2d 31, 37-38 (2d Cir. 1978), cert. denied, 440 U.S.

917 (1979) ; United States v. Kelley, 526 F.2d 615, 620-621 (8th Cir.

1975), cert. denied, 424 U.S. 971 (1976); United States v. Snow,

521 F.2d 730, 734-735 (9th Cir. 1975), cert. denied, 423 U.S. 1090

(1976).

ee Ce ee

shall be given infra-judicially’”’ (400 U.S. at 94, quoting

5 Wigmore on Evidence § 1397, at 131 (3d ed. 1940) ).*

C. Reevaluating The Co-Conspirator Rule And Other

Traditional Hearsay Exceptions Under The Con-

frontation Clause Would Be Pointlessly Duplicative

And Disruptive And Would Stultify The Evolution

Of Federal And State Rules Of Evidence

1. If most traditional hearsay exceptions are not pre-

sumptively constitutional, the Court will be compelled to

82 In addition to the cases surveyed in the text, the Court has

decided Confrontation Clause cases that did not concern the admis-

sion of evidence and are thus not relevant for present purposes.

Some of these cases involved restrictions on cross-examination.

E.g., Davis v. Alaska, 415 U.S. 308 (1974) ; Chambers v. Mississippi,

410 U.S. 284 (1973) ; Smith v. Illinois, 390 U.S. 129 (1968) ; Brook-

hart v. Janis, 384 U.S. 1 (1966). Others, like Jllinois v. Allen, 397

U.S. 337, (1970), concerned the defendant’s right to be present at

trial. See also Snyder v. Massachusetts, 291 U.S. 97 (1934) (due

process not violated by pretrial view of murder scene by jury with-

out defendants’ presence).

The unusual cases of Kirby v. United States, 174 U.S. 4 (1899),

and Dowdell v. United States, 221 U.S. 325 (1911), also did not

concern the admission of evidence. In Kirby, the Court struck down

a statute providing that in a prosecution for receipt and possession

of stolen stamps the thieves’ judgment of conviction was conclusive

proof that the stamps were stolen. Invoking the Confrontation

Clause, the first Justice Harlan noted (174 U.S. at 54) that the

defendant against whom the judgments were admitted had not been

present at the thieves’ trial and that, as a non-party, he could not

have cross-examined them even if he had been there. But as the

second Justice Harlan suggested (Dutton v. Evans, 400 U.S. at 98-

99), the more fundamental error was a misapplication of principles

of res judicata that amounted to a denial of due process. See Sand-

strom V. Montana, 442 U.S. 510 (1979); cf. Fed. R. Evid. 803(22).

Dowdell likewise did not involve the admission of hearsay but

what is perhaps best viewed as judicial notice of court records

relating to a claim of procedural error. The Supreme Court of the

Philippine Islands had directed the trial judge, court reporter, and

court clerk to forward certificates relating whether the defendants

had been arraigned, whether they had entered a plea, and whether

they had been present at their trials (221 U.S. at 327-328). This

Court held that the right to confrontation allowed this procedure

because the trial judge, reporter, and clerk did not “testify to facts

concerning * * * guilt” (id. at 330-331).

reevaluate all of these exceptions and the numerous varia-

tions that have grown up in federal and state evidence

law. This would be, in our view, a pointlessly duplicative

process. As we have observed, the traditional exceptions

to the hearsay rule embody the thinking and experience of

generations of judges, legislators, scholars, and practi-

tioners about the kinds of evidence that fact-finders may

safely be permitted to consider. Moreover, these excep-

tions have been forged with full consideration of the very

concepts—reliability and availability of the declarant—

that this Court identified in Ohio v. Roberts, 448 U.S. at

65-66, as material under the Confrontation Clause. In de-

veloping the proposed Federal Rules of Evidence, for

example, the advisory committee carefully considered

whether each of the hearsay exceptions possessed sufficient

“ouarantees of trustworthiness.” Fed. R. Evid. art. VII

advisory committee note. The advisors likewise consid-

ered whether each exception should contain a require-

ment of unavailability. See Fed. R. Evid. 803, 804 &

advisory committee notes. This scheme was reviewed, re-

vised, and adopted by this Court. 56 F.R.D. 183 (1972).

It was again reviewed, revised, and adopted by Congress.

Pub. L. No. 93-595, §1, 88 Stat. 1926. It is puzzling,

therefore, what it is thought would be gained by repeat-

ing this process under the aegis of the Confrontation

Clause.

The argument that this Court should reexamine the

federal co-conspirator rule under the light of the Con-

frontation Clause seems particularly pointless, for that

rule in its modern form is in every sense the creation

of this very Court. This Court adopted the rule more

than a century and a half ago in United States v. Good-

ing, 25 U.S. (12 Wheat.) 460, 469-470 (1827), and since

then has frequently reaffirmed, applied, and refined it.

See, e.g., United States v. Nixon, 418 U.S. 683, 701

(1974) ; Anderson v. United States, 417 U.S. 211, 218

(1974) ; Dutton v. Evans, 400 U.S. 74, 81 (1970) ; Wong

Sun v. United States, 371 U.S. 471, 490 (1963) ; Lutwak

v. United States, 344 U.S. 604, 617-618 (1953); Krule-

witch v. United States, 336 U.S. 440, 442-443 (1949);

Glasser Vv. United States, 315 U.S. 60, 74-75 (1942);

Wiborg v. United States, 163 U.S. 632, 657-658 (1896) ;

Clune Vv. United States, 159 U.S. 590, 593 (1895); St.

Clair v. United States, 154 U.S. 134, 149-150 (1894) ;

Brown v. United States, 150 U.S. 93, 97-98 (1893) ;

Logan Vv. United States, 144 U.S. 263, 308-309 (1892) ;

Nudd vy. Burrows, 91 U.S. 426, 438 (1875); Lincoln v.

Claflin, 74 U.S. (7 Wall.) 132, 138-139 (1868) ; Ameri-

can Fur Co. v. United States, 27 U.S. (2 Pet.) 358, 364

(1829).** It seems to us virtually inconceivable that the

Third Circuit and like-minded courts could be correct in

their recent and astonishing discovery that this firmly

anchored and carefully evolved body of doctrine articu-

lated by this Court over the past 150 years fails to meet

basic constitutional minima established in the Bill of

Rights.

2. Our point is not that the traditional hearsay rules

or the federal or state variations are perfect and should

never be reexamined. On the contrary, periodic reex-

amination and refinement are essential. But this task

should not be performed by this Court under the au-

thority of the Confrontation Clause. Constitutionalizing

the hearsay rules would stunt their development and pre-

clude beneficial experimentation both at the federal and

state levels. Both the Court and individual Justices have

frequently observed that the Confrontation Clause should

83 Moreover, Fed. R. Evid. 801(d)(2)(E) was promulgated by

this Court in precisely its present form. 56 F.R.D. at 293. From

the Preliminary Draft of The Proposed Rules of Evidence submitted

by the Advisory Committee of the Judicial Conference in March

1969 (see 46 F.R.D. 161, 331 (1969) ; Rule 8-01(c) (3) (v)), through

the final version of the Rules submitted by this Court to Congress

and passed by Congress in 1975, Pub. L. No. 93-595, art. VIII, 88

Stat. 1938, the co-conspirator exception remained unchanged and

engendered no controversy. Both the Advisory Committee (see Fed.

R. Evid. 801(d) (2) (E) advisory committee note) and the Senate

committee (see S. Rep. 93-1277, 93d Cong., 2d Sess. 26-27 (1974) ).

viewed this rule as a codification of federal laws as it had evolved

in the courts.

not be interpreted in a way that would stultify this de-

velopment. See, ¢.g., Ohio v. Roberts, 448 U.S. at 64-65;

Dutton v. Evans, 400 U.S. at 80, 86 n.17; California Vv.

Green, 399 U.S. at 156; id. at 171-172 (Burger, C.J.,

concurring) .

The review of hearsay exceptions under the Confronta-

tion Clause would also be enormously disruptive. To take

the Federal Rules of Evidence as an example, this Court

has thus far addressed the constitutionality of only two

of the 27 specific exceptions—former testimony and

dying declarations. If each of the remaining 25 excep-

tions, as well as the exemptions in Rule 801, must now be

reassessed under the Confrontation Clause, the mode of

proof in federal trials will be thrown into doubt pending

the outcome of this reassessment. And the same will be

true of all of the state variations. This thought is par-

ticularly sobering in view of the many decisions, from

Reynolds in 1879 to Roberts in 1980, that have been re-

quired to hammer out the constitutional constraints affect-

ing the single hearsay exception for former testimony.

D. Even If The Federal Co-Conspirator Rule Is Re-

evaluated Under The Confrontation Clause, No

Sound Constitutional Policy Justifies Striking Down

The Settled Rule That Co-Conspirator Declarations

Are Admissible Without Regard To The Availability

Of The Declarant

The court of appeals held in this case that the govern-

ment may not introduce a statement falling within the

co-conspirator rule unless it also produces the declarant or

shows that he is unavailable to testify (Pet. App. 12a).

This rule would exact a grave toll on the resources of the

criminal justice system and would create a serious poten-

tial for disruption of prosecutions without benefiting the

defendant in any significant legitimate way and without

serving the Confrontation Cleuse’s “mission [of] ad-

vanc[ing] ‘the accuracy of the truth-determining process

in criminal trials.’” Tennessee v. Street, No. 83-2143

(May 13, 1985), slip op. 6, quoting Dutton v. Evans, 400

U.S. at 89.

In assessing the practical wisdom of the court of ap-

peals’ rule, several factors must be kept in mind. First,

not every case in which the prosecution wishes to intro-

duce co-conspirator declarations will be as geographically

or temporally compact as this one or involve just a few

readily identifiable and locatable declarants. In the prose-

cution of large-scale drug conspiracy or organized crime

cases, there may be literally dozens of conspirators whose

statements the prosecution proposes to introduce. The

task of locating, bringing to court, and adjudicating the

testimonial availability of all of these individuals (none

of whom the parties have independently decided to call

as witnesses) can be massive indeed, and it is required

by the decision below in every case, even though the de-

fendant is under no obligation to ask a single question

of any of these declarants once the prosecution has pro-

duced them.

1. The unjustifiable costs associated with the court of

appeals’ rule take several forms:

a. The first type of cost arises from the duty to pro-

duce the declarant in the court or satisfactorily demon-

strate his physical unavailability. Even with respect to

those individuals whose identity and whereabouts are

known at the time of trial, this can be a burdensome and

expensive undertaking. To begin with, because the co-

conspirator/declarants are participants in criminal activ-

ity, many of them will be incarcerated, sometimes in

facilities far removed from the venue of the trial. The

problems associated with the need to transport such

individuals to and from the courtroom under guard are

manifest.

Among those co-conspirator/declarants who are not in

custody and have not agreed to be prosecution witnesses,

many if not most will have little interest in assisting the

government in discharging its burden of production—

especially if they realize that their failure to appear in

court may delay or disrupt the prosecution’s case or even

preclude the admission of statements damaging to the

defendants. Many of these individuals may still be in

league with, or at least sympathetic to, the defendants

who who are on trial; they may be relatives, close

friends, or business associates. Even if not personally

sympathetic, they may fear that their appearance in

court would lead to retaliation. Consequently, what will

frequently happen is just what happened here. The co-

conspirator/declarant will not appear in court as re-

quested, making various excuses such as “car problems,”

illness, or lapse of memory. Until the declarant has

disobeyed a subpoena (and thus disrupted the trial pro-

ceedings on at least one occasion), there will be no cause

for issuing a bench warrant; and until a warrant is

issued, the government has no ability to compel the at-

tendance of a balky witness.

The failure of a declarant like Lazaro in this case to

appear in court as requested will cause very serious prac-

tical problems. if he is apparently only temporarily un-

reachahle—because he purportedly “has gone fishing,” or

is visiting a distant relative or taking a short vacation, or

simply hasn’t shown up in court for reasons as yet up-

determined—he may not be “unavailable” within the

meaning of the court of appeals’ rule (indeed, he prob-

ably would not be considered unavailable within the

meaning of this Court’s precedents if the purpose of the

inquiry were to determine the propriety of using former

testimony). In such circumstances, the government would

have the task of quickly finding the individual and bring-

ing him in. Failing that, the court would be forced to

grant a continuance (especially undesirable where the

jury is sequestered), exclude the co-conspirator’s state-

ments, or perhaps even declare a mistrial if the state-

ments have been previously admitted subject to later

production of the witness by the prosecution. Once it is

commonly understood that the temporary disappearance

of the declarant can have such consequences, the fre-

quency of such occurrences is likely to increase dra-

matically.

b. Apart from the burdens and expenses of securing

the physical presence in court of known and locatable co-

conspirator/declarants, the court of appeals’ rule imposes

heavy costs on both prosecutors and courts arising from

the process of establishing that declarants who have not

appeared or who refuse to testify are indeed unavailable.”

In many instances, the declarant will not be identified

by the prosecution or will not be locatable at the time of

trial. In such cases, it will presumably be the prosecu-

tion’s obligation to show the investigative avenues it

pursued to identify or locate the declarant, and this in

turn will lead to litigation about whether other leads

or investigative techniques were reasonably available that

might have brought about production of the declarant in

court. The burden of showing in such cases that the co-

conspirator/declarant cannot be found will be an onerous

one, especially in prosecutions involving large-scale con-

spiracies that have operated over a period of years. Con-

sider for instance the situation in which a conspiratorial

conversation recorded by electronic surveillance includes

statements made by unidentified speakers or speakers

identified only by their first names or by aliases. How

far must the prosecution go in its efforts to identify and

produce such persons? See United States v. Ordonez,

737 F.2d at 802 (government failed to make sufficient

showing that unknown maker of entries in drug busi-

ness’s ledger was unavailable). Consider also the case of

a known declarant who has disappeared between the time

of indictment and trial. To what extent does the govern-

ment’s duty of production make it a guarantor of the in-

dividual’s availability at trial?

The existence of these kinds of questions opens vir-

tually unlimited vistas of trial and appellate litigation

whenever the government fails to produce the co-con-

spirator/declarant in court.* But even when produced,

34 Because the co-conspirator rule is used so much more often

than any of the hearsay exceptions contained in Fed. R. Evid. 804,

the burden of showing unavailability would far exceed that for

those situations in which such a showing is required by rule.

35 This point is well illustrated by the disagreement between the

majority and the dissent in Ohio v. Roberts, supra, on whether

unavailability had been satisfactorily demonstrated.

the declarant is likely to refuse to testify, necessitating

the conduct of a hearing to evaluate any claim of privilege

or an adjudication of contempt before a valid finding of

unavailability may be made.*

ce. Finally, even when the prosecution has brought to

court a declarant who is willing to or can be compelled

to testify, it is not clear from the court of appeals’ opin-

ion that its obligations are satisfied. The court held that

the co-conspirator must be “preduce[d] * * * for cross-

examination.” Pet. App. 12a; see also United States v.

Caputo, 758 F.2d 944, 952 (3d Cir. 1985). Does this

mean that the prosecution must conduct a direct exami-

nation of a co-conspirator who may well be in the defense

camp and whose anticipated testimony the prosecution

%6 The majority of co-conspirator/declarants are likely to have

a Fifth Amendment privilege available to refuse to testify regard-

ing the conspiracy in which they were involved and the statements

made by them during its course. (Even if already convicted of an

offense or offenses arising from the conspiracy, there will remain

a risk—theoretical if not real—of prosecution for related offenses

or for the same offenses by a different sovereign.) Unless they

have already agreed to cooperate with the prosecution or the de-

fense by testifying at trial (and the present issue does not concern

such individuals), they are likely to invoke their privilege and to

be in fact unavailable. Even where it is obvious that this is what

will transpire, the court of appeals’ decision appears to require

bringing these individuals to court solely for the formality of hav-

ing them claim their privilege before the judge.

The court of appeals thought this burden could be alleviated by

allowing the assertion of the privilege by affidavit, as its amended

opinion suggests (Pet. App. 18a). Many co-conspirator/declarants,

however, will not obligingly sign these affidavits, perhaps requesting

the appointment of counsel to advise them with respect to their

obligation to be available to testify. In addition, it is far from

clear that defendants can be required to accept such affidavits rather

than having the court assess the claim of privilege in light of spe-

cific questions that the defendant might propound. See Hoffman v.

United States, 341 U.S. 479 (1951); United States v. Rodriguez,

706 F.2d 31, 34, 37 (2d Cir. 1983) ; United States v. Horton, 629 F.2d

577, 579 (9th Cir. 1980) ; United States v. Goodwin, 625 F.2d 693,

701 (5th Cir. 1980) ; United States v. Hodgson, 492 F.2d 1175, 1177

(10th Cir. 1974).

does not believe is true? What questions must be asked?

If the court of appeals’ decision requires the prosecutor

to do anything more than make the co-conspirator avail-

able to be called by the defense, it constitutes a severe

intrusion upon prosecutorial prerogative.

2. If the substantial costs associated with locating,

producing, and litigating at trial and on appeal the avail-

ability or unavailability of every co-conspirator/declarant

were offset by real and substantial gains to the fairness

and reliability of the criminal trial, perhaps it would be

justified to hold that the broadly accepted rule of evi-

dence that has evolved over the years to regulate the ad-

mission of co-conspirator declarations is so fundamentally

flawed as to be unconstitutional. In point of fact, how-

ever, the rule announced by the court of appeals in this

case is likely to be almost all cost and no benefit.

a. First, the requirement cannot be justified on the

ground that it serves to limit admission of an inferior

type of evidence. Unless the prosecution makes a blunder

in jumping through the necessary hoops, the evidence will

be admitted. If the declarant is available and is pro-

duced, his out-of-court statements (unlike prior testi-

mony) are fully admissible under the court of appeals’

holding. And if the deciarant is unavailable and the gov-

ernment shows this in court, his out-of-court statements

are likewise to be admitted.

37 If the court of appeals’ rule were recast in the mold of Fed. R.

Evid. 804 to prohibit the admission of co-conspirator statements

unless the declarant is unavailable, the rule would be objectionable

on other grounds. Unlike former testimony, statements made by

a co-conspirator in furtherance of a conspiracy are not an inferior

substitute for live testimony by the declarant, but have discrete

and independent probative value. Between the time the statements

are made and the time of the trial, the situation of the declarant

will have necessarily undergone such a dramatic transformation

that his testimony will inevitably be seen in a very different light.

This will be so whether at the time of trial he is cooperating with

government, is allied with the defendants (out of sympathy or fear),

or occupies a less well-defined position. Thus, the rule requiring

unavailability as a prerequisite for the admission of co-conspirator

b. Even though the evidence is admissible whether the

declarant is unavailable or is produced, there will of

course be some cases in which, like here, the prosecution

fails to produce the declarant but also fails to demon-

strate unavailability to the satisfaction of the trial court

(leading, as discussed above, to continuance, exclusion of

evidence, or mistrial) or to the satisfaction of the court

of appeals (leading to reversal of the conviction). The

possibility of such results will no doubt provide sub-

stantial incentives to prosecutors to do all in their power

(at the cost of considerabie drain on available investiga-

tive and prosecutive resources) to assure that co-con-

spirator/declarants are produced in court. But there is

little basis for concluding that these added incentives to

the prosecution will materially increase the number of

co-conspirator/declarants who can actually be made avail-

able to testify; and to the extent some are made avail-

able who otherwise would not be, it is by no means clear

that they would be called upon by the defense to give

evidence. In other words, the new constitutional require-

ment created by the court of appeals cannot be justified

on the basis that it will bring needed additional evidence

before the trier of fact.

To begin with, if a declarant is slated to testify for

either the prosecution or the defense independently of

any rule relating to the admissibility of his out-of-court

statements, the court of appeals’ decision will not produce

any additional evidence for consideration by the trier of

fact. Accordingly, we deal here only with those declar-

ants whom neither side wishes to call to the stand as

part of its case. Here, for example, the defense did not

statements, unlike the unavailability requirement applicable to

former testimony, cannot b° defended as a best evidence rule.

Davenport, The Confrontativn Clause and the Co-Conspirator Ex-

ception in Criminal Prosecutions: A Functional Analysis, 85 Harv.

L. Rev. 1378, 1403 (1972). Live testimony is different from but not

necessarily better than statements made during the execution of

the conspiracy.

— 7

subpoena the declarant Lazaro or make any other efforts

to secure his presence in court.*

Despite the added incentives to produce non-witness/

co-conspirator/declarants generated by the court of ap-

peals’ rule, we think it quite clear that their actual avail-

ability to give testimony will not be materially increased.

Many of these individuals will not be locatable despite

reasonable efforts to do so, and most of those produced

in court will invoke the Fifth Amendment privilege (see

note 40, supra).

But even as to those non-witness/declarants who can

be produced in court and are willing to or can be com-

pelled to give testimony, we seriously doubt whether the

defense will actually wish to examine them. After all,

these are potential witnesses whom the defense has not

independently elected to call as part of its case. Many

of them will be individuals whose present sympathies are

in doubt and whose likely testimony cannot reliably be

ascertained, making it too risky for either party to ex-

amine them. Others, if forced to testify, would give evi-

dence favorable to the prosecution. And even as to those

declarants who would be prepared to disavow the making

of the declaration introduced by the prosecution, testify

that it was a lie, or give it an exculpatory explanation,

many of them would be subject to such devastating cross-

examination by the prosecution that their testimony

would be worthless or positively damaging to the defense.

In the instant case, respondent’s counsel, while demand-

ing that the government prove Lazaro’s unavailab lity

(J.A. 17), was unwilling to commit herself to having him

testify if available to do so (J.A. 18).

In general, if the defense would not call such an in-

dividual as part of its case (whether as a regular or a

hostile witness), it is not all clear why the defense would

wish to examine the individual if produced by the gov-

ernment pursuant to a Confrontation Clause obligation.

88 Moreover, if the defense had subpoenaed Lazaro, the case

would be more properly analyzed under the Compulsory Process

rather than the Confrontation Clause.

In any event, in those few cases in which (1) the witness

is available to testify and (2) the defense actually wants

to question him at trial, it will ordinarily be as easy for

the defense to arrange for the declarant’s appearance as

for the prosecution to do so (as it would have been here).

It simply makes no sense to allocate to the prosecution the

burden of producing or proving the unavailability of

every co-conspirator/declarant rather than simply re-

quiring the defense to call as witnesses those very few

who are in fact available and whose testimony the de-

fense actually desires. In sum, we seriously doubt whether

the court of appeals’ rule, while gravely burdening the

criminal process, will produce anything more than negli-

gible benefits.

Il. IF PROOF OF UNAVAILABILITY IS A PREREQUI-

SITE FOR ADMISSION OF A CO-CONSPIRATOR

STATEMENT, THE COURT OF APPEALS SHOULD

HAVE ORDERED A REMAND HEARING TO DE-

TERMINE THE QUESTION OF UNAVAILABILITY

RATHER THAN ORDERING A NEW TRIAL

Even if the court of appeals were correct in holding

that the government may not introduce a co-conspirator

statement without producing the declarant or establish-

ing that he is unavailable, the court erred in ordering a

new trial without giving the government an oppor-

tunity on remand to prove unavailability. At trial, the

district court admitted Lazaro’s taped conversations with-

out demanding proof of unavailability. Because of this

ruling, proof of unavailability would have been super-

fluous; the government had already won the evidentiary

contest. Accordingly, the government should not be pen-

alized for failing to prove a point that, at the time of

trial, it had no reason to prove.

Even more important, requiring a new trial without

a remand hearing would gratuitously punish society and

waste judicial and prosecutorial resources if, on a re-

mand hearing, the government would be able to show

that Lazaro was indeed unavailable. In such an event,

his out-of-court statements were properly admitted and

there would be no need for a retrial. A retrial would be

a wasteful and meaningless gesture because it would

simply duplicate the first trial: the identical proof

would be presented to a new jury. In the meantime,

this unnecesasry replay of the first trial will preclude the

judge and prosecutor from trying another case. Both

society and other defendants will suffer from the delay of

trials that had already been scheduled. See United States

v. Gibbs, 739 F.2d 838, 857-858 (3d Cir. 1984) (en banc)

(Seitz, J., dissenting).

This Court has repeatedly eschewed remedies that are

more harsh than needed to correct the asserted error.

See, e.g., United States v. Bagley, No. 84-48 (July 2,

1985) ; United States v. Hasting, 461 U.S. 499 (1983) ;

United States v. Morrison, 449 U.S. 361 (1981); United

States v. Blue, 384 U.S. 251, 255 (1966). This Court has

shown particular reluctance to grant relief where the

asserted error has not diminished the reliability of the

verdict. See United States v. Leon, No. 82-1771 (July

5, 1984), slip op. 7-9. In the present case, if Lazaro was

in fact unavailable, and there was no Confrontation

Clause violation, allowing the government to prove his

unavailability after rather than before the out-of-court

statements were introduced does not in any way reflect

on the proof of respondent’s guilt.

This Court has expressly recognized the advantage of

remanding for a limited hearing that would give the

trial court an opportunity to apply the correct law where

the result of doing so might be to obviate the need for

retrial of the entire case. Thus, in Goldberg v. United

States, 425 U.S. 94 (1976), the Court remanded the case

to the district court for a determination whether, under

the correct standard, the particular writings in question

qualified as Jencks Act material that the government

should have produced. 7d. at 111. In so doing, the Court

stated (id. at 111-112 (footnote omitted) ) :

[W]e do not think that this Court should vacate

[petitioner’s] conviction and order a new trial, since

petitioner’s rights can be fully protected by a remand

to the trial court with direction to hold an inquiry

consistent with this opinion. The District Court will

supplement the record with findings and enter a new

final judgment of conviction if the court concludes

after the inquiry to reaffirm its denial of petitioner’s

[Jencks Act] motion. This procedure will preserve

petitioner’s opportunity to seek further appellate re-

view on the augmented record. On the other hand, if

the court concludes that the Government should have

been required to deliver the material, or part of it,

to petitioner, and that the error was not harmless,

the District Court will vacate the judgment of con-

viction and accord petitioner a new trial.

See also, e.g., Walker v. Georgia, No. 83-321 (May 21,

1984), slip op. 9-11; United States v. Wade, 388 U.S.

218, 242 (1967); Jackson v. Denno, 378 U.S. 368, 394

(1964) ; Brady v. Maryland, 373 U.S. 83, 88-91 (1963) ;

Campbell v. United States, 365 U.S. 85, 98-99 (1961).

The court of appeals should have followed the same pro-

cedure here.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

AUGUST 1985

W ov. 8. coveenment printing orrice; 1965 461531 10273

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