Respondents Brief — United States v. Inadi

Supreme Court, U.S.

REIL L b

Oct 2 988

' ANIOL, JR.

No. 84-1580 josePH F. S

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In The

Supreme Court of the United States

October Term, 1985

UNITED STATES OF AMERICA,

Pi 17610. 5

JOSEPH INADI,

Re sponde nt,

O—

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

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BRIEF FOR RESPONDENT

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Hotty Maavuican, Esquire,

Counsel of Reeord G

JuLie Suaprro, Esquire

Maavican, SHaprro, ENGLE

& Tryak

1200 Walnut Street, Suite 400

Philadelphia, PA 19107

(215) 563-8312

Of Counsel:

WLan F. SHeenan, Esquire

SHEA & GARDNER

1800 Massachusetts Avenue, N. W.

Washington, D.C. 20036

(202) 828-2000

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

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QUESTION PRESENTED

Whether the Confrontation Clause requires that the

government make a good faith effort to produce a co-

conspirator whose out-of-court declarations it seeks to use

against the defendant at trial.

ii

TABLE OF CONTENTS

Pages

Question Presented i

Statement 1

Summary of Argument

Argument:

I. The Confrontation Clause requires that the Gov-

ernment make a good faith effort to produce a

co-conspirator whose declarations it seeks to use

at trial 9

A. The government’s historical analysis is un-

founded and provides no bas‘s for its effort

to place co-conspirator declarations wholly be-

yond the reach of the Confrontation Clause 9

B. Admission of co-conspirator declarations is

not based on a theory of reliability which

might justify their removal from Confronta-

tion Clause serutimy cee 14

C. The Court’s Confrontation Clause decisions

establish a rule of unavailability for the gov-

ernment’s use of out-of-court declarations ... 18

D. The rationale and purpose of this Court’s

rule of unavailability apply to co-conspirator

declaration cases 28

II. This Court should not order a remand for a hear-

ing on the question of the witness’ unavailabil-

ity

| Conclusion

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TABLE OF AUTHORITIES

CasEs :

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Pages

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

(2 Pet.) 358 (1829) 15

Barber v. Page, 390 U.S. 719 (1969) 24

Bruton v. United States, 391 U.S. 123 (1968) 20, 30

California v. Green, 399 U.S. 149 (19700) 11, 20,

23, 29

Douglas v. Alabama, 380 U.S. 415 (1965) — 30

Dutton v. Evans, 400 U.S. 74 (19700 D722 11, 19, 35

Krulewitch v. United States, 336 U.S. 400

(1949) Weine 3

Lincoln v. Claflin, 74 U.S. (7 Wall.) 132 (1868) 15

Mancusi v. Stubbs, 408 U.S. 204 (197277 25

Mo v. United States, 156 U.S. 237 (1895) 13, 21,

22, 23, 29

Motes v. United States, 178 U.S. 458 (1900) 21, 23

Ohio v. Roberts, 448 U.S. 56 (1980) passim

Pointer v. Texas, 380 U.S. 400 (1965) 17, 22

Singleton v. Wulff, 428 U.S. 106 (1976). 40

Tennessee v. Street, No. 83-2143 (May 13, 1985) 35

United States v. Ammar, 714 F. 2d 238 (3d

Cir.), cert. denied, 464 U.S. 936 (1983) 17

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

459 (1827) 14, 15

United States v. Lovasco, 431 U.S. 783 (1977) — 40

United States v. Miller, 664 F. 2d 94 (5th Cir.

1981), cert. denied, 103 S.Ct. 121 (1982) — 17

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3

iv

TABLE OF AUTHORITIES—Continued

Pages

Usery v. Turner Elkhorn Mining Company,

428 U.S. 1 (1976) 40

Youakim v. Miller, 425 U.S. 231 (19760) 40

CoNnsTITUTION AND RULEs:

U.S. Const. Amend. VI (Confrontation Clause) passim

Fed.R.Evid. 801(d) (1) 33

Fed.R.Evid. 801(d) (2) 16

Fed.R.Evid. 801{d) (2) (B) 16

Fed.R.Evid. 801(d) (2) (C) a 96

Fed.R.Evid. 801(d) (2) (D) 16

Fed.R.Evid. 801(d) (2) (E) 4, 7, 15, 16, 17

Advisory Committee Note to Fed. R. Evid.

801 (d) (2) 16

Fed. R. Evid. 803 7, 17, 34

Fed. R. Evid. 804 17

MISCELLANEOUS:

3 W. Blackstone, Commentaries on the Law of

England 368 (1768) 12, 36

Davenport, The Confrontation Clause and the

Co-Conspirator Exception in Criminal

Prosecutions: A Functional Analysis, 85

Harv. L. Rev. 1378 (1972) 7, 17, 26

M. Hale, The History of the Common Law al |

England (2d od. 1716) 12

V

TABLE OF AUTHORITIES—Continued

Pages

Mueller, The Federal Coconspirator Excep-

tion: Action, Assertion, and Hearsay, 12

Hofstra L. Rev. 323 (1984) 16

1 J. Stephen, A History of the Criminal Law

of England (1883) 5, 29

5 Wigmore, Evidence (3d ed. 1940) 22

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STATEMENT OF THE CASE

Respondent was convicted by a jury of one count of

conspiring to manufacture and distribute methampheta-

mine, and of four counts of related offenses. His convic-

tion was reversed by the Court of Appeals for the Third

Circuit because the government had failed to produce at

trial or demonstrate the unavailability of an alleged co-

conspirator whose declarations were introduced at trial.

As the Court of Appeals noted (Pet. App. 4a), five

tape-recorded telephone conversations were the “linchpins

of the government’s case”. Three of these conversations

were between respondent and one John Lazaro, an unin-

dicted co-conspirator. Portions of each of the conversa-

tions were conducted in code language, as the government

concedes (Pet. 4a), and the government asked two wit-

nesses at the trial to translate those conversations for the

jury. (2 Trs. 104-5; 4 Trs. 444.) Mr. Lazaro did not tes-

tify at trial. The fourth conversation played to the jury

involved Marianne Lazaro (John Lazaro’s wife) and

Michael McKeon, both unindicted co-conspirators who

testified at trial pursuant to grants of immunity. The fifth

tape recording was of a conversation between John Lazaro

and William Levan, an unindicted co-conspirator. Mr.

Levan did not testify at trial, having appeared out of the

presence of the jury and invoked his privilege against

self-incrimination. The jury returned its verdict shortly

after listening to the Levan-Lazaro tape a second time.'

1 After several hours of deliberation, the jury requested and

obtained permission to a again to the Levan-Lazaro con-

versation. (6 Trs. 665.) The jury iy did not have the tapes with

* during their delibe 8, and requested access only

to this one.

Respondent objected at trial that Lazaro’s recorded

statements were inadmissible under the Confrontation

Clause because the government had neither produced La-

zaro for trial nor demonstrated his unavailability. The

government took the position that it did not have to show

Lazaro’s unavailability. (3 Trs. 288.) The government’s

attorney represented to the district court that Lazaro had

advised her that he would refuse to testify if called, de-

spite her warnings that if he did so he faced penalties for

contempt. (13 Trs. 292.)

The district court conditionally admitted the Lazaro

conversations in reliance on the prosecutor’s representa-

tion that she would produce Lazaro and that he would re-

fuse to testify. (3 Trs. 292-3.) The government made no

claim at trial that Lazaro had any legitimate Fifth Amend-

ment privilege upon which to base a refusal to testify.

That contention was raised first in its brief to the Court

of Appeals. In the trial court the government toox the

contrary position, suggesting that Lazaro had no such

claim of privilege (4 Trs. 408), and explaining his absence

as “apparently” due to “car problems” (Id.). The trial

court then expressly agreed to hear Lazaro out of the

presence of the jury upon his arrival (Id.). The govern-

ment, however, did not at any time call Lazaro to testify,

either before the jury or out of its presence. The order

which finally admitted the Lazaro conversations contained

no response to respondent’s continuing objection to the

failure to produce him for cross-examination. (5 Trs.

574-5.)

On this record, the Court of Appeals ruled that ad-

mission of the Lazaro conversations was error, despite

their qualification as co-conspirator declarations under

Fed.R.Evid. 801(d) (2) (E), because the government had

failed either to produce Lazaro for cross-examination or

to make the minimal showing of unavailability that will

satisfy the Confrontation Clause” (Pet. App. 14a-15a)

(emphasis in original). It relied for its holding on this

Court’s decision in Ohio v. P sberts, 448 U.S. 56 (1980), in

which the Court ruled that, ‘‘in conformance with the

Framers’ preference for face-to-face accusation”, normally

the prosecutor must either produce, or demonstrate the

unavailability of, the declarant whose statement it wished

to use against the defendant.” 448 U.S. at 65. (Pet. App.

12a.) The Court of Appeals also noted that the govern-

ment argued that it was not required to demonstrate the

unavailability of a nontestifying co-conspirator declarant,

but had not suggest [ed] any reason why we should create

an exception to the clear constitutional rule laid down in

Roberts.” (Pet. App. 12a; footnote omitted.)

The court ruled that there were no policy reasons for

excepting co-conspirator declarations from the Roberts

rule. It held that the Confrontation Clause required the

government to make a good faith effort to produce the

declarant ‘‘before availing itself of [the] tremendous evi-

dentiary advantage” of seeking and obtaining convictions

on the basis of testimony not subject to cross-examination.

(Pet. App. 13a.)

The court then set forth three alternative ways in

which the government might make the requisite minimal

showing (none of which was pursued by the government

at the trial of this case): demonstration of a good faith

effort on the part of the government to secure the wit-

+

ness’ attendance at trial; production of the witness to in-

voke a claim of privilege; or production of a record, such

as an affidavit from the declarant, which establishes both

that he will claim the privilege and that requiring his ac-

tual appearance would be a meaningless formality. (Pet.

App. 15a 15a, 18a.)

The government petitioned for rehearing, challenging

the holding of the court and urging in the alternative, for

the first time, that the proper remedy was a remand for a

hearing on Lazaro’s unavailability rather than a new trial.

The petition for rehearing was denied.

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is

SUMMARY OF ARGUMENT

I.

The Confrontation Clause provides that: In all

criminal prosecutions, the accused shall enjoy the right

... to be confronted with the witnesses against him

It is designed to protect an accused individual from con-

viction on the basis of out-of-court statements, without

benefit of cross-examination.

In this case, the government used out-of-court declara-

tions, admissible in evidence under Fed.R.Evid. 801 (d)

(2)(E), to obtain a conviction. The issue here is whether

the Confrontation Clause affords protection to a defendant

against whom such declarations are introduced. The nar-

row question is whether the government was obliged by

the Constitution to either produce the declarant for cross-

examination or demonstrate his unavailability before mak-

ing use of his declarations.

5

A. Many commentators trace the origin of the right

to confrontation to the trial of Sir Walter Raleigh.

Raleigh was tried and convicted on the basis of the depo-

sition of one Cobham, who was never called as a witness.

It was apparently in response to Raleigh’s conviction the

right of confrontation developed in English law. 1 J.

Stephen, A History of the Criminal Law of England 333-

336 (1883). At the trial below, John Lazaro, through the

tape recordings introduced into evidence, was a critical wit-

ness against respondent, just as the deponent Cobham,

through the depositions introduced at trial, was a witness

against Sir Walter Raleigh.

The earliest history of the right of confrontation,

discussed at length by the government, does not lead to

the conclusion it seeks—that hearsay exceptions, includ-

ing the exemption for co-conspirator declarations, should

be viewed as immune from Confrontation Clause seru-

tiny. While the earliest history of the Clause does not

provide the answer to today’s question, it provides useful

guidance: it is clear from that history that the right of

confrontation, which was seen as a protection of the right

of cross-examination as well, was considered one of the

fundamental aspects of a fair trial.

B. The scope and meaning of the confrontation right

is apparent from the decisions of this Court. The Court

has developed a rule of necessity in cases construing the

Confrontation Clause:

The Confrontation Clause operates in two sep-

arate ways to restrict the range of admissible hearsay.

First, in conformance with the Framers’ preference

for face-to-face accusation, the Sixth Amendment es-

6

tablishes a rule of necessity. In the usual case (in-

cluding cases where prior cross-examination has oc-

curred), the prosecution must either produce, or dem-

onstrate the unavailability of, the declarent 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, 165, 167, n. 16.“

Ohio v. Roberts, 448 U.S. 56, 65 (1980).

Additionally, the Court said, an inquiry into the reliability

of the offered statement is required “once a witness is

shown to be unavailable.” (Id.) With regard to state-

ments falling within a traditional hearsay exception, the

Court noted that reliability can often be inferred without

more. (Id. at 66.)

The rule of necessity is not new. On the contrary, in

Ohio v. Roberts the Court described the two-step ap-

proach that the Court has adopted in its past Confronta-

tion Clause cases as reflecting ‘‘the Framers’ preference

for face-to-face accusation’’. Although the government

argues that the Roberts statement of the rule of unavail-

ability is limited to former testimony cases, the Court

there indicated just the opposite by stating that the rule

applies generally, including [in] cases where prior ex-

amination has occurred. 448 U.S. at 65.

By its terms, the Court’s rvle of unavailability applies

to all out-of-court declarations, whether or not they fall

within traditional hearsay exceptions. However, the Court

there noted that in certain cases, where the utility of cross-

examination is sufficiently remote, the government’s fail-

ure to produce a witness or show his 3 may

be harmless error.

C. The specific statements at issue here were admitted

under the exemption to the hearsay bar for co-conspirator

statements. This exemption rests on the fiction that each

co-conspirator is an agent of every other co-conspirator.

In our adversarial system of justice, admissions are ad-

missible against a party, though they may be hearsay. By

extension, admissions of agents or servants are admissible

against the principal or master, and by further exten-

sion, co-conspirator statements are admissible against an

accused other co-conspirator.

Admissibility of these statements, unlike those ad-

mitted under Rule 803 and similar state-law exceptions,

is entirely unrelated to the likely reliability of the state-

ments. Statements admissible under Rule 801 (d)(2)(E)

are often without any hint of reliability. Such declara-

tions will meet the rule’s requirements despite the fact

that they contain falsehoods: ‘‘Many statements actually

in furtherance of an alleged conspiracy will be quite un-

reliable in whole or in part.“ Davenport, The Confronta-

tion Clause and the Co-Conspirator Exception in Criminal

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

1378, 1387 (1972).

D. The fact that most of the Confrontation Clause

cases examined by this Court involved prior recorded

testimony certainly does not lead to a conclusion that a

different result is warranted in cases involving co-con-

spirator declarations. Former testimony, although given

under oath, in the presence of the defendant, and in fact

subjected to cross-examination, is not admissible unless

the government demonstrates that its admission is neces-

sary because the declarant is unavailable. There is no

justification for the government’s assertion that co-con-

spirator declarations—declarations not made under oath,

often not made in the presence of the defendant, never

made subject to cross-examination, are not governed by

the same clear rule.2 The requirement of production or

demonstration of the unavailability of the declarant ap-

plies to co-conspirator declarations with at least the force

it has in application to cases involving prior testimony,

which is more reliable than co-conspirator statements.

There is not a solitary statement identified by the

government to support its remarkable contention that the

Confrontation Clause decisions of this Court may be re-

duced to a rule applicable only to former testimony cases.

So far as we are avure neither this Court nor any other

court nor any commentator has ever read them in the

way the government proposes.

2 We do not contend that the co-conspirator declarations

are not admissible once the declarant is either called by the

government as shown to be unavailable. in

9

II.

The government urges the proposition that, even if

this Court agrees that a good faith effort to produce a co-

conspirator is a necessary predicate to the use of his out-

of-court declarations, the court of appeals ‘‘erred in or-

dering a new trial without giving the government an op-

portunity on remand to prove unavailability.’’ (Govt.

Br. 44.) On this record, it is clear that there are two

reasons for determining that the court of appeals did not

err: the government had and declined its opportunity in

the trial court to prove unavailability or produce the

declarant; and a hearing more than two years after the

trial would be useless for determination of availability

vel non at trial.

if’.

*

ARGUMENT

I. THE CONFRONTATION CLAUSE REQUIRES

THAT THE GOVERNMENT MAKE A GOOD FAITH

EFFORT TO PRODUCE A CO-CONSPIRATOR

WHOSE DECLARATIONS IT TO USE AT

TRIAL

A. The Government’s Historical Analysis Is Un-

founded And Provides No Basis For Its Effort To

Place Co-conspirator Declarations Wholly Be-

yond The Reach Of The Confrontation Clause

The government opens its argument in this case with

a lengthy historical review designed to show that when

the Confrontation Clause was adopted it was understood

that it had no role to play in cases involving “the admis-

sion of out-of-court statements falling within exceptions

10

to the hearsay rule.” But none of the historical sources

relied upon by the government says as much. Hale and

Blackstone did not discuss co-conspirator hearsay, and

for purposes of disposition of this case it seems to us in-

conclusive, to say the least, to assert that they discused

the right of confrontation and the hearsay rules on differ-

ent pages of their treatises, without addressing whether

and under what circumstances an available hearsay de-

clarant should be called to testify. And the early recog-

nition that dying declarations could come in without af-

front to state confrontation clauses is inconclusive as well,

since so far as appears the decisions cited by the govern-

ment all involved declarations of witnesses who were dead

and hence unavailable. Those decisions, then, do not es-

tablish a historicai acceptance of all hearsay exceptions

regardless of the availability of the witness.

The government seeks to explain the absence of any

square support for its view—that statements admissible

as exceptions to the hearsay rule are immune from Con-

frontation Clause scrutiny—in the writings of “the jurists

and scholars of the 18th and early 19th centuries” (Govt.

Br. 23) by arguing that the issue was too obvious to war-

rant comment. According to the government, it was clear

that the Confrontation Clause was meant to bar evidence

in the form of affidavits or depositions obtained by the

prosecution ez parte, but to allow evidence falling within

traditional exceptions, because the latter carry with them

certain independent indicia of reliability that could not

be said to characterize affidavits and depositions. But

whatever force that argument may have with respect to

hearsay exceptions that have arisen on the basis of judg-

ments about the trustworthiness of the out-of-court state-

11

ments, the government ignores the fact that it has no bear-

ing on the co-conspirator hearsay exemption whose his-

tory, as show later, demonstrates that it is rooted in

considerations other than reliability or trustworthiness.

In short, we believe that the government’s historical

exegesis is simply wrong in suggesting that the issue in

this case was resolved in its favor in 1787, and that the

course of history has run sure-footedly ever since toward

a reversal here on the “sudden epiphany” (Govt. Br. 8)

of the court below. Justice Harlan, concurring in Cali-

fornia v. Green, 399 U.S. 149, 173-4 (1970), noted that “the

Confrontation Clause comes to us on faded parchment,”

and that [history seems to give us very little insight

into the intended scope of the Sixth Amendment Confron-

tation Clause.“ And in Ohio v. Roberts, 448 U.S. 56, 66

n.9 (1980), the Court noted that [the complexity of rec-

onciling the Confrontation Clause and the hearsay rules

has triggered an outpouring of scholarly commentary”

vouching for widely different, even contradictory ap-

proaches and hiving in common only a declared fidelity

to historical accuracy.

The government’s review gives short shrift to the

discussion of the historical function of the right of con-

frontation which does emerge from the old sources. While

Hale’s characterization of confrontation as affording

“great opportunities .. for the true and clear discovery

of the truth” is quoted (Govt. Br. 15-16), the government

3 See also Dutton v. Evans, 440 U.S. 74, 95 (1970) (Harlan,

J., concurring) (“It is common ground that the historical un-

reser my a the clause furnishes no solid guide to ad-

judication.”).

12

fails to take into account the method by which confronta-

tion of witnesses leads to determination of the truth. In

an earlier edition, after the section quoted by the govern-

ment in its brief, Hale explains the method:

“The very quality, carriage, age, condition, education,

and place of commorance of witnesses, is by this means

plainly and evidently set forth to the court and the

jury, whereby the judge and jurors may have full in-

formation of them, and the jurors as they see cause

may give the more or less credit to their testimony,

for the jurors are not only judges of the fact, but many

times of the truth of evidence; and if there be just

cause to disbelieve what a witness swears, they are

not bound to give their verdict according to the evi-

dence or testimony of that witness... .”

M. Hale, The History of the Common Law of England,

255-56 (2d ed. 1716).

The government’s characterization of Blackstone’s

Commentaries as containing no reference to confrontation

rights in its discussion of hearsay is incorrect, perhaps

because of a misreading of the language cited in its brief

at page 16 (the emphasized portion was omitted from the

government’s quote) :

No evidence of a discourse with another will be ad-

mitted, 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, or an account of what per-

sons deceased have declared in their lifetime: but

such evidence will not be received for any particular

facts.”

3 W. Blackstone, Commentaries on the Law of Eng-

land, 368 (1768) (emphasis added).

13

That statement of the rule against receipt of hearsay

for the truth of the matter asserted follows immediately

an analysis of the requirement of live testimony:

“(T]he one general rule that runs through all the doc-

trine of trials is this, that the best evidence the nature

of the case will admit of shall always be required, if

possible to be had; but, if not possible, then the best

evidence that can be had shall be allowed.”

Id.

That general rule, when applied in the specific con-

text of a criminal case, implicates the confrontation rights

discussed at pages 373-374 of the Commentaries and quoted

in the government’s brief at pages 16-17. In a criminal

context, this Court has long recognized that the confron-

tation clause protects the “general rule” which Blackstone

describes as requiring the “best evidence”. Thus, a crim-

inal defendant is guaranteed the opportunity ‘‘of compel-

ling [the witness] to stand face to face with the jury in

order that they may look at him and judge by his demeanor

upon the stand and the manner in which he gives his tes-

timony whether he is worthy of belief.” Mattox v. United

States, supra, at 242-243.

The relevant history offers no support for the govern-

ment’s notion that “traditional hearsay exceptions .. .

should be regarded as presumptively valid” (Govt. Br.

24).4 Indeed, it is clear that acceptance of the govern-

ment’s notion of “presumptive validity”, if it is meant to

preclude Confrontation Clause analysis of any hearsay

exception established in the law of evidence, would achieve

Nor does history support the extension of such a notion,

even if the Court were to accept its application to hearsay

exceptions, to co-conspirator declarations.

14

what the government is at pains to deplore, namely the

constitutionalization of those very exceptions by annoint-

ing them all as untouchable under the Confrontation Clause.

Moreover, the “presumptive validity” concept, if it is meant

to be an in limine yet dispositive answer to cases such as

this one, is contrary to the case-by-case approach that this

Court has followed over the years and has ruled is the

correct approach. Ohio v. Roberts, 448 U.S. 56 (1980).

This case arises in the context of the role of confron-

tation to insure the true and clear discovery of the

truth”. Hale, at 255. The history that is relevant to its

disposition, and to which we now turn, is to be found in

the development of the co-conspirator declaration’s exemp-

tion from the bar against hearsay and in this Court’s Con-

frontation Clause decisions.

B. Admission Of Co-conspirator Declarations Is Not

Based On A Theory Of Reliability Which Might

Justify Their Removal From Confrontation Clause

Scrutiny

This Court’s adoption of the rule providing for admis-

sion of co-conspirator statements is most often traced to

United States v. Gooding, 25 U.S. (12 Wheat) 459 (1827).

In that case, which concerned the use of statements made

by the captain of a ship in the ship-owner’s trial, the issue

before the Court was admission of statements of an agent

against the principal. The Court noted that its rule was

also applicable to conspiracy where “once the conspiracy

or combination is established the act of one conspirator,

in the prosecution of the enterprise, is considered the act

of all, and is evidence against all. Each is deemed to con-

sent to, or command, what is done by any other in further-

15

ance of the common object.” Id., 469. As is apparent,

the rationale for admission of evidence concerning co-

conspirators is that of agency. Subsequent cases, includ-

ing those cited by the government at 34-35 of its brief,

elaborated on the discussion in Gooding and applied it

specifically to declarations of co-conspirators as well as

to their acts. See, e.g., American Fur Co. v. United States,

27 U.S. (2 Pet.) 358 (1829) (“where two or more persons

are associated together for the same illegal purpose, any

act or declaration of one of the parties, in reference to

the common object, . may be given in evidence against

the others”. Jd. 365) (emphasis added); Lincoln v. Claf-

lin, 74 U.S. (7 Wall.) 132 (1868) ( The declarations of

each defendant, relating to the transaction under consid-

eration, were evidence against the other, . . if the two

were engaged at the time in the furtherance of a com-

mon design.” Jd. 139) (emphasis added). The reasoning

in each instance proceeds from the notion that each co-

conspirator is the agent of every other co-conspirator.

The exemption for co-conspirator statements recog-

nized by the Court in Gooding and American Fur Co.

was included in the Federal Rules of Evidence in Rule

801(d) (2) (E), which provides in relevant portion that:

A statement is not hearsay if—

(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 conspir-

acy.

The rule imposes three separate conditions on admis-

sibility of a statement: that it be made by a co-conspira-

16

tor; that it be made during the course of the conspiracy

and that it be made in furtherance of the conspiracy. The

rule does not impose a requirement that the statement be

reliable or trustworthy.

Structurally, the rule is embedded in the general ex-

emption for admissions of a party opponent, Fed.R.Evid.

801(d) (2). It follows the specific exemptions for state-

ments adopted by the party, Fed.R.Evid. 801(d) (2) (B),

statements made pursuant o authorization provided by a

party, Fed.R.Evid. 801 (d) (2) (C), and statements made

by an agent or a servant concerning a matter within the

scope of his duties made during the course of his employ-

ment, Fed.R.Evid. 801(d) (2) (D).

The history of the co-conspirator exemption, its form-

ulation, and its placement demonstrate that admissibility

of co-conspirator statements is not based on their inherent

reliability or trustworthiness. Indeed, In]o guarantee of

trustworthiness is required in the case of admissions.”

Advisory Committee Note to Fed.R.Evid. 801(d) (2).

Commentators and courts have recognized that state-

ments admissible under Rule 801(d) (2) (E) are often

without any hint of reliability. Statements will meet the

rule’s requirements despite the fact that they contain false-

hoods :

„A statement may actually further a conspiracy

simply by being plausible to its audience, which means

that it may well fit within the circumstances without

being true, and such a statement may appear to sat-

isfy very well both the furtherance and the independ-

ent evidence requirements.”

Mueller, The Federal Coconspirator Exception: Action,

Assertion, and Hearsay, 12 Hofstra L. Rev. 323, 357 (1984)

17

(emphasis added). See also Davenport, supra, at 1387

(‘‘Many statements actually in furtherance of an alleged

conspiracy will be quite unreliable in whole or in part.”).

Circuit courts have recognized that statements wholly

unreliable from the point of view of the truth of the repre-

sentations therein are admissible as co-conspirator declara-

tions. For instance, [pluffing, boasts, and other con-

versation” are deemed to be in furtherance of a conspir-

acy when they are used “to obtain the confidence of one

involved in the conspiracy”. United States v. Miller, 664

F.2d 94, 98 (5th Cir. 1981), cert. denied, 103 S.Ct. 121

(1982). And inaccurate recitations of past fact are ad-

missible when they are ‘‘[s]tatements between conspira-

tors which provide reassurance [and] serve to maintain

trust and cohesiveness among them.” United States v.

Ammar, 714 F. 2d 238, 252 (3rd Cir.), cert. denied, 464

U.S. 936 (1983).

Statements admissible under Fed.R.Evid. 801(d) (2)

(E) may inelude deliberately deceptive statements be-

tween co-conspirators. There is no analytical reason to

assume that such statements would be truthful or accurate

or that they are within that class of statements for which

reliability may be inferred.

The government’s brief fails to take note of the dif-

ferences—in terms of bases for inferring reliability—be-

tween Rule 801(d) (2) (E) and Rule 803.“ Co- conspirator

a Sr ised on the unavailabil

ci the declarant. le the Clause may still

fn srt, meg Mery ype eee

v. Texas, 380 U.S. 400 (1965) (requiring an

opportunity for prior cross-examination for admission of for-

18

statements and hearsay exceptions are classified separately

in the federal rules. This separation reflects the signifi-

cant theoretical distinction between co-conspirator state-

ments and other hearsay exceptions.

C. The Court’s Confrontation Clause Decisions Es-

tablish A Rule Of Unavailability For The Gov-

ernment’s Use Of Out-Of-Court Declarations

The Confrontation Clause provides that: “In all

criminal prosecutions, the accused shall enjoy the right

... to be confronted with the witnesses against him

It is designed to protect a person accused of crime from

conviction on the basis of out-of-court testimony without

benefit of cross-examination.

The government argues that the Court’s decisions un-

der the Confrontation Clause fall into three neat categor-

ies: it says that the Court subjects to ‘‘close regulation”

the admission of hearsay which is “broadly analogous to

an affidavit or deposition”; that other hearsay exceptions

are not subject to “the same close regulation”; and “the

Court has held out the possibility of closer examination

of any new and radical departures from traditional hear-

say rales.” ‘Govt. Br. 25.)

We are not sure what it means to decide Confronta-

tion Clause cases according to norms of “close regula-

tion”, not-so-close regulation, or possibilities of ‘‘closer

examination”. And, so far as we are aware, no decision

of this Court, or of any lower court, and no commentator

has adopted or even perceived the tripartite approach

urged by the government. Moreover, the case cited for

the proposition that new and radical departures” fall

into the third defined camp of cases, where the Court is

said to have “left open the possibility” of application of

‘stricter standards” (Govt. Br. 31), involved the admis-

sion of evidence ‘‘under a long-established and well-recog-

nized rule of state law” (400 U.S. at 83) that was hardly

unique” and “was recognized in Krulewttch [v. United

19

States, 336 U.S. 400 (1949)]”. Dutton v. Evans, 400 U.S.

74, 83 & n. 15 (1970).

Our view is that the best indication of this Court’s

approach to Confrontation Clause cases is to be found in

the Court’s own description, given in Ohio v. Roberts.

That case involved the admissibility at the defendant’s

trial of the transcript of testimony given at a preliminary

hearing by a witness called and questioned by defense

counsel. After a careful review of its earlier decisions

under the Confrontation Clause, the Court noted that “a

general approach is discernible” (448 U.S. at 65), which

it then set forth:

“The Confrontation Clause operates in two sep-

arate ways to restrict the range of admissible hear-

say. First, in conformance with the Framers’ prefer-

ence for face-to-face accusation, the Sixth Amend-

ment establishes a rule of necessity. In the usual case

(including cases where prior cross-examination has

occurred), the prosecution must either produce, or

demonstrate the unavailability of, the declarant whose

satement 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, 165, 167, n. 16.”

Id. (Footnote omitted but discussed below at note 6).

And second, said the Court, an inquiry into the reliability

of the offered statement is required ‘‘once a witness is

shown to be unavailable.” (Id.) With regard to statements

falling within a traditional hearsay exception, the Court

noted that reliability can often be inferred without more.

(Id. at 66.)

20

By its terms, the Roberts rule of unavailability ap-

plies to all out-of-court declarations, whether or not they

fall within traditional hearsay exceptions. The Court

there noted, however, that the threshold requirement of

production of the declarant or demonstration of unavail-

ability need not always be met.“ (The second inquiry, into

reliability of the out-of-court declaration, will often be sat-

isfied by a showing that the declaration is within a tra-

ditional exception to the rule against hearsay.’)

This Court’s recognition of an established ‘‘rule of

necessity” requiring the prosecutor ‘‘to demonstrate the

unavailability of” an unproduced declarant, far from be-

ing an “off-hand” embrace of ‘‘a revolutionary proposi-

6 The Roberts Court observed in a footnote that in Dutton

v. Evans, 400 U.S. 74 (1970), “the Court found the utility of

trial confrontation so remote that it did not require the

cution to produce a seemingly available witness.” 448 U.S.

at 65 n. 7. The result in Dutton reflected no judgment by

the Court that co-conspirator hearsay by its nature was im-

mune from the availability requirement, but rather a prac-

tical, essentially harmless error is based on the fact

that the hearsay in that case came in through brief testimony,

“of peripheral significance at most“, of one of twenty wit-

nesses who test for the prosecution. 400 U.S. at 74.

The Dutton exception has no relevance to this case, where,

as the court below noted, the recorded conversations con-

stituted Aa linchpins of the government’s case“ (pet.

App. 4a) the government — made no argument

to the Court below that the testimony of Lazaro was of peri-

wae, significance or that cross-examination of him would

ave had no utility. F . ,

7 The Court has declined in the past to decide—and need

not decide in today’s case—on whether the inferred reliabil-

ity of statements within certain “firmly rooted” exceptions

to the hearsay rule may warrant relaxation of or dispensing

with the rule of unavailability. See, e.g., Ohio v. erts,

448 U.S. at 66 & n. 8 (1980); California v. Green, 399 U.S.

* I . 70). Bruton v. United States, 391 U.S. 123, 128-9

n. ). 4

21

tion” (Govt. Br. 27), was one which was supported by the

decisions relied on by this Court and one which the Court

returned to and repeated, saying, ‘‘In sum, when a hear-

say declarant is not present for cross-examination at trial,

the Confrontation Clause normally requires a showing that

he is unavailable.” (Id. 66.)

‘As the Court noted, the rule of necessity finds explicit

support as far back as 1900. In Motes v. United States,

178 U.S. 458 (1900), a co-conspirator confessed ard im-

plicated the defendants at a preliminary hearing where

he was cross-examined by defense counsel. The co-con-

spirator thereafter escaped before trial, and at trial his

confession, reduced to writing, was introduced, as was

testimony about the confession from several officials who

had attended the preliminary hearing. The Court held

that the statements were admitted ‘‘in violation of the

constitutional right of the defendants to be confronted

with the witnesses against them,” notwithstanding their

prior opportunity for cross-examination, because the un-

availability of the witness at trial was manifestly due to

the negligence of the officers of the Government.” (Jd.

471; see also id. 474.)

The unavailability rule was foreshadowed in deci-

sions of this Court even earlier than Motes. In Mattoz v.

United States, 156 US. 237 (1895), during a homicide

prosecution the government introduced the testimony of

two witnesses who had testified at a former trial and who

had since died. At the former trial they had been cross-

examined. The Court reviewed the authorities and con-

cluded that ‘‘the right «f cross examination having once

been exercised, it was no hardship on the defendant to

allow the testimony of the deceased witness to be read.”

22

The Court also, in dictum, vouched for the admissibility

of dying declarations under the Confrontation Clause.

Even in that circumstance, it was clear that the unavail-

ability of the witnesses was assumed to be a predicate for

the admission of the declaration. Thus the Court said,

presaging Ohio v. Roberts, that the necessities of the

case” justified the admission of such declarations ‘‘be-

cause made by a person then dead.” Mattox v. United

States, 156 U.S. at 244 (emphasis added.)

Pointer v. Texas, 380 U.S. 400 (1965) makes clear

that the right secured by the Confrontation Clause is not

simply the right to face one’s accuser in court. The victim

of a robbery, Phillips, testified at Pointer’s preliminary

hearing. Pointer was present, but was not represented by

counsel and did not cross-examine Phillips. Phillips did

not appear at the trial and his preliminary hearing testi-

mony was introduced against Pointer. The Court reversed

Pointer’s conviction, holding that his rights under the

Confrontation Clause had been violated. The Court stated:

“Tt cannot seriously be doubted at this late date that

the right of cross-examination is included in the right

of an accused in a criminal case to confront the wit-

nesses against him. And probably no one, certainly no

one experienced in the trial of lawsuits, would deny

the value of cross-examination in exposing falsehood

and bringing out the truth in the trial of a criminal

case. See, e.g., 5 Wigmore, Evidence, Section 1367

(3d ed. 1940).”

Id. 404. Later, the Court continued:

Under this Court’s prior decisions, the Sixth Amend-

ment’s guarantee of confrontation and cross-examina-

tion was unquestionably denied petitioner in this case.

As has been pointed out, a major reason underlying

23

the constitutional confrontation rule is to give a de-

fendant charged with crime an opportunity to cross-

examine the witnesses against him.”

Id. 406-07 (citations omitted). Thus, the Court recognized

that the Confrontation Clause embodies the right to cross-

examine witnesses.

The Court’s Confrontation Clause analyses in deci-

sions after Mattox and Motes demonstrate the continuity

between those early decisions and the Ohio v. Roberts rule

of necessity. For instance, in California v. Green, 399 U.S.

149 (1970), the Court faced a Confrontation Clause chal-

lenge to the substantive use at trial of prior inconsistent

testimony of a witness who appeared at trial and whose

earlier testimony had been subject to cross-examination.

The former testimony was admitted pursuant to a state

rule of evidence, but this Court explained that admis-

sibility under rules of evidence did not establish con-

stitutionality under the Confrontation Clause (id. 155):

„Our decisions have never established such a con-

gruence; indeed, we have more than once found a

violation of confrontation values even though the

statements in issue were admitted under an arguably

recognized hearsay exception. See Barber v. Page,

390 U.S. 719 (1969); Pointer v. Texas, 380 U.S. 400

(1965).”

The Court upheld the admission of the former testimony,

since the declarant had actually appeared at trial. It said

that its previous Confrontation Clause cases do not ‘‘re-

quire excluding the vut-of-court statements of a witness

who is available and testifies,” but instead mostly dealt

with the opposite situation, which the declarant was

unavailable ‘‘despite good- fa efforts of the State.” Id.

161.

24

The Court also held that the witness’ statements in

that case were admissible because they had been subject

to cross-examination at the earlier hearing, but in so doing

squarely recognized the unavailability rule: [The wit-

ness] Porter’s statement would, we think, have been ad-

missible at trial even if Porter had been actually unavail-

able, despite good-faith efforts of the State to produce

him.” (Id. 165.) And again: If Porter had died or was

otherwise unavailable, the Confrontation Clause would

not have been violated by admitting his testimony at the

preliminary hearing” because the right of cross examina-

tion afforded at that hearing provided “substantial com-

pliance with the purposes behind the confrontation re-

quirement, as long as the declarant’s inability to give live

testimony is in no way the fault of the State.” Id. 166.“

Similarly, in Barber v. Page, 390 U.S. 719 (1969),

where the state introduced out-of-court statements of a

declarant who was jailed in a nearby state, the rule of un-

availability was assumed and the question was whether

the declarant’s incarceration satisfied it. The Court held

not: ‘‘In short, a witness is not ‘unavaliable’ for the pur-

poses of the foregoing exception to the confrontation re-

1 — 2 an ong ty that good faith —

e government to produce t are a precondi-

tion to the admission of the declarant's out-of-court state-

ments permeates the entire decision. In addition to the ex-

amples already noted, see id. 167 (‘The State here has made

every effort“); 167 n. 16 Ir ists When a witness

the State’s ‘need’ to introduce

quirement unless the prosecutorial authorities have made

a good faith effort to obtain his presence at trial.” Id.

724-725. The Court also ruled that, even if the statements

that were introduced had been subject to cross-examina-

tion at the time they were made, they would nonetheless

have been inadmissible under the Confrontation Clause

unless the witness is shown to be actually unavailable”

at trial. Id. 725-726.

Mancusi v. Stubbs, 408 U.S. 204 (1972), is the same.

There the initial question was whether the declarant’s

out-of-court statements were admissible under the Con-

frontation Clause on the ground that the declarant, who

by the time of trial resided in Sweden, was unavailable.

Following precisely the two-part analysis later said to be

the hallmark of the Court’s Confrontation Clause cases

in Ohio v. Roberts, the Court first determined that the

declarant was actually unavailable, the State having been

„powerless to compel his attendance” at the trial, id. 212,

and then turned to the question of reliability: ‘‘It is clear

. . . from numerous prior decisions of this Court, that

even though the witness be unavailable his prior testimony

must bear some... ‘indicia of reliability’... . Id. 213

(citations omitted).

In the face of this longstanding, consistent string of

harmonious rulings from this Court establishing a rule of

unavailability, there is simply no merit to the govern-

ment’s position that the holding of the court below—which

is absolutely faithful to these decisions—marks a sudden,

erratic departure from Confrontation Clause jurispru-

26

dence. The government supports its view in that regard

and seeks to deal with all of these decisions, by saying

that they ‘‘must have been intended to describe only the

exception for former testimony.” (Govt. Br. 26.)

There is not a solitary statement in any of those de-

cisions (and the government identifies none) to support

the remarkable view that the Confrontation Clause deci-

sions of this Court boil down to a rule applicable only to

former testimony cases, and so far as we are aware neither

this Court nor any other court nor any commentator has

ever read them in the way the government proposes.? On

9 Indeed, one commentator, cited with approval in Ohio

v. Roberts (albeit for other reasons), has taken the contrary

view:

“The rules formulated above [for assessing reliability]

should not be applied to justify a failure by the prose-

custor to call an available declarant. Those rules are

at best inferior substitutes for cross examination of the

actual declarant and should be resorted to only where

the declarant is in fact unavailable to testify. As the Su-

preme Court has indicated several times, the confron-

tation clause should require the prosecutor to make a

good faith effort to produce the literal accuser. Thus:

Rule IV—Co-Conspirator hearsay is not admissible until

the prosecution has made an affirmative showing that

the declarant is unavailable.”

Davenport, The Confrontation Clause and the Co-conspira-

tor Exception in Criminal Prosecutions: A Functional Analy-

sis, 85 HARV. L. REV. 1378, 1403 (1972) (citations omitted,

emphasis in original).

27

the contrary, in Ohio v. Roberts the Court described the

two-step approach that the Court has adopted in its past

Confrontation Clause cases as reflecting “the Framers’

preference for face-to-face accusation”, and its statement

of the rule of unavailability, far from being limited to for-

mer testimony cases, indicated just the opposite by stating

that the rule applies generally, ‘‘including [in] cases

where prior examination has occurred.” 448 U.S. at 65.

In short, the history of the Confrontation Clause jur-

isprudence that is relevant to this case, found in an un-

broken line of decisions of this Court spanning at least 85

years, sides with us and warrants affirmance of the deci-

sion below since the prosecution ‘‘[nJeither produce[d],

{nJor demonstate[d] the unavailability of, the declarant

whose statement is ... use[d] against the defendant.”

Ohio v. Roberts, 448 USS. at 65.

The fact that most of the Confrontation Clause cases

examined by this Court involved prior recorded testimony

certainly does not lead to a conclusion that a different, re-

sult is warranted in cases involving co-conspirator declara-

tions—declarations not made under oath, often not made

in the presence of the defendant, never made subject to

cross-examination. Surely such declarations, if used

against a defendant, must be attended by at least the safe-

28

guards required for the government’s use at trial of former

testimony.

D. The Rationale And Purpose Of This Court’s Rule

Of Unavailability Apply To Co-conspirator Dec-

laration Cases

Initially, we highlight the fundamentally simple rules

emerging from this Court’s holdings which are omitted

from the government’s analysis: the Court’s rule of

necessity applies to all out-of-court declarations; where

the utility of cross examination is sufficiently remote, the

government’s failure to produce a declarant or to demon-

strate his unavailability may be harmless error; when the

out-of-court declaration falls within a traditional hearsay

exception, reliability may be inferred.

The Confrontation Clause and the hearsay bar are

not congruent, but do spring from the same roots. Their

common source is a concern for the reliability of the evi-

dence put before a fact-finder. The exceptions to the

hearsay rule reflect a concern for rules which do not un-

duly hinder the fact-finder’s access to reliable evidence.”

Their roots are different from the source of the rule

which permits receipt of co-conspirator declarations.

The exemption for co-conspirator declarations does

not arise from judgments about trustworthiness of certain

sorts of out-of-court declarations. It is justified by the

adversary system and by the ‘‘fiction’’ that a co-conspira-

tor speaks for all members of the conspiracy as an agent

10 ft is this concern which explains this Court’s willingness

to —— reliability in most traditional exceptions to th ar-

say rule. 4

29

speaks for a principal. That fiction is grounded in a

notion quite distinct from truthfuiness or reliability of

evidence.

We consider next what follows from application of

these rules to this case. Clearly, the Confrontation Clause

originally developed as a protection against trial by affi-

davit or deposition:

(T]he particular vice that gave impetus to the con-

frontation claim was the practice of trying defend-

ants on “evidence” which consisted solely of ex parte

affidavits or depositions .. thus denying the defend-

ant the opportunity to challenge his accuser in a face-

to-face encounter in front of the trier of fact... The

proof was usually given by reading depositions, con-

fessions of accomplices, letters and the like.

California v. Green, 399 U.S. at 156-57 (quoting 1 J. Ste-

phen, A History of the Crimimal Law of England 326

(1883) ).

The protection extends to the government’s use of

former testimony. The defendant may not be deprived

of the right to confront and cross-examine the witnesses

against him unless resort to that testimony is necessary.

Use of former testimony denies a defendant the opportu-

nity

“not only of testing the recollection and sifting the

conscience of the witness, but of compelling him to

stand face to face with the jury in order that they

may look at him and judge by his demeanor upon the

stand and the manner in which he gives his testimony

whether he is worthy of belief.”

Mattoæ, 156 U.S. at 242-43.

This is so, as a matter of constitutional law, even

though in the case of former testimony a defendant may

30

have had the opportunity to physically confront the wit-

ness in court and the witness testified under oath and was

subjected to cross-examination. These features of prior

confrontation distinguish former testimony from affidavits

or depositions“ They insure some protection to the

rights secured by the Confrontation Clause, but do not ex-

cuse the government from its obligation to produce the

witness or demonstrate his unavailability.

By contrast with former testimony, co-conspirator

statements are not made in court under oath and subject

to cross-examination. While they may be made in the

presence of the defendant, they need not be. The use of

such statements at trial without confrontation imperils

precisely the same values as does the use of former testi-

mony, but offers far less protection. There is no compre-

hensible reason why, in such a case, the government should

be excused from its burden of producing an available wit-

ness.” If, as is clearly the case, previously recorded testi-

11 Former testimony is preferable to affidavits and deposi-

tions in this regard since at least a defendant may have once

had an opportunity to confront and cross-examine the wit-

ness against him. In recognition of this, former testimony

may be admissible, despite the denial of trial confrontation,

where the witness is shown to be unavailable. By contrast,

depositions and affidavits cannot be used in a criminal trial,

even though the witness may be unavailable. See Bruton v.

United States, 391 U.S. 123 (1968); Douglas v. Alabama, 380

U.S. 415 (1965).

12 Adoption of the government's position could lead to

anomalous results. If, at a first trial, a co-conspirator were

called to testify and did testify, and if a new trial were or-

dered, at the second trial, absent a showing of unavailability,

the agg any could not use the prior testimony, despite

the that the defendant may have vigorously cross-ex-

amined the witness. The government could, however, use

out-of-court statements, unsworn and not subject to cross-

examination. ‘

31

mony may not be introduced unless the declarant is un-

available, it seems to us a fortiori that the same rule must

apply to co-conspirator statements.

As we see it, the government offers three reasons in

support of its view that the unavailability requirement

should not apply in co-conspirator declaration cases: (1)

co-conspirator declarations are meaningfully different

from prior recorded testimony in that the latter is an in-

ferior substitute for live testimony, whereas co-conspirator

declarations carry their own saving independent proba-

tive value; (2) if an exception is not announced in this

ease, the Court will necessarily have to decide the same

issue with respect to all the exceptions to the hearsay rule

set forth at Rule 803; and (3) an affirmance here would

have a calamitous effect on the government’s ability to

prosecute conspiracy cases.

The government’s first reason for arguing that the

rule of necessity should not apply in co-conspirator cases

—that the Roberts rule is designed for only former testi-

mony situations—is fundamentally in error and rests on

an incorrect and narrow view of the purposes of the Con-

frontation Clause. Cases involving the admission of prior

recorded testimony, the government repeatedly says, prop-

erly require application of the rule of unavailability be-

cause prior recorded testimony is like affidavits or depo-

sitions.

32

Though never explicitly stating the ways in which

former testimony is comparable to affidavits or deposi-

tions, the government refers to several “critical respects”

which it claims are relevant. (Govt. Er. 25.) These criti-

cal respects apparently are that affidavits and depositions

can be detailed and comprehensive, can be crafted to make

out all elements of the charge against the defendant, are

created with litigation in mind and are therefore subject

to distortion, and are created in the presence of and under

the potential influence of one of the parties. (Govt. Br.

24.)

It may be true that affidavits, depositions and former

testimony are similar in those respects. However, the

government omits the most crucial features of confronta-

tion from its list of “critical respects.” It was the absence

of these features from depositions and affidavits that was

most objectionable to the early creators of the right to

confront witnesses.

The government characterizes ‘‘evidence falling with-

in other traditional hearsay exceptions,” as having pro-

bative value very different from subsequent live testimony”

and says that such evidence does not require a: redicate

101 its admissibility a showing of the unavaila. „ of the

declarant. That evidence is distinguished from former

33

testimony, which it describes as a next-best substitute.“

(Id. at 9. See also id. at 23, 27.) It is correct that some

out-of-court statements may have independent probative

value. Thus, a jurisdiction may, as an evidentiary matter,

choose to admit them into evidence for their own merit,

even where the declarant is available. Yet this neither

logically compels nor justifies their exclusion from the

realm of evidence subject to the Confrontation Clause.

The government’s position—assenting to an unavail-

ability requirement for prior testimony but not for cases

involving hearsay historically judged to be reliable (Govt.

Br. 28)—is inappropriately taken in this case. Assuming

arguendo that considerations of reliability should bear on

the rule of unavailability, that question is not before the

Court in this case: whatever the merits of its argument

with respect to the exceptions to the hearsay rule codified

in Federal Rule of Evidence 803, exceptions which we ad-

mit to be based on judgments about reliability, the gov-

ernment’s position is wholly without substance in cases,

such as this one, involving co-conspirator declarations.

1 Former testimony is said to be a “next-best substitute“

because ordinarily i: adds nothing to the live testimony of-

fered in court and before the jury. If the witness has testi-

fied consistently before the jury, admission of the former

testimony would add nothing that could aid the jury in its

deli . It simply restates the live testimony, without

allowing the jury the opportunity to assess the witness. If

the witness has testified inconsistently, or if the earlier testi-

mony was offered before a motive to fabricate arose, the

former testimony may add something to the jury’s delibera-

tions, and is often admissible. See Rule 801(d)(1).

34

For similar reasons, the government is wrong in its

second argument, that an affirmance in this case would

necessarily mean that 23 of the exceptions recognized in

Rule 803 without regard to availability ‘‘contravene the

Confrontation Clause” (Govt. Br. 27), or anyway would

introduce the camel’s nose into the tent and require a

“Tejlose reexamination of all the traditional hearsay ex-

ceptions under the Confrontation Clause.” (Id. at 10)

Those exceptions, the government says, ‘‘have been forged

with full consideration of the very same fundamental con-

cern that underlies the Confrontation Clause: what kind

of evidence is too likely tc mislead the finder of fact to

permit its use at trial.” (Id.) But as we have shown, the

co-conspirator exception has not been forged with those

considerations in mind. Thus the government cannot rea-

sonably support its position by pointing out that ‘‘[i]n

developing the proposed Rules of Evidence . . the ad-

visory committe > carefully considered whether each of the

hearsay exceptions possessed sufficient ‘guarantee of

trustworthiness’ ” (Id. at 34), since the rule they devised to

govern the admissibility of co-conspirator statements was

acknowledged, as we showed above, to have nothing to

do with trustworthiness.

Accordingly, if, as we urge, the Court declines the

government’s invitation to dispense with the rule of un-

availability in co-conspirator declaration cases, recogniz-

ing that that particular exemption from the hearsay bar

does not carry with it the sort of indicia of reliability rec-

ognized for the exceptions listed in Rule 803, there need

be no fear than an affirmance in this case will prejudge

the constitutionality of any of the Rule 803 exceptions.

This case does not involve any of those exceptions. There

35

will be time enough, in the appropriate case, to consider

the government’s argument that those exceptions are en-

titled to presumptions of validity based on their under-

lying and long-standing psychological judgments about

human behavior outside the courtroom.” (Jd. at 28.)

We come, finally, to the government’s third argument,

that an exception to the rule of unavailebility is required

for co-conspirator declarations because that kind of evi-

dence is used ‘‘tens of thousands of times each year”

(Govt. Br. 10-11); because the rule will burden the gov-

ecnment, which in a single case may wish to introduce the

out-of-court statements of ‘‘literally dozens of conspira-

tors” (id. at 37); and because ‘‘[i]n many instances the

declarant will not be identified by the prosecution” (id.

at 39).

In our view that proves too much. The co-conspirator

hearsay exemption is a formidable prosecutorial advan-

tage—one given quite without regard to the reliability or

trustworthiness of such declaraticas, and indeed in the

teeik of the recognition that those declarations are in fact

unreliable. That advantage is the very reason why it is

used tens of thousands of times each year. And that is

the very reason why the core values of the Confrontation

Clause require that the declarant be produced if the gov-

ernment can do so with a good faith effort.

This Court has recently reaffirmed the Clause’s ‘‘fun-

damental role in protecting the right of cross-examination”

and that its ‘‘very mission” is to advance ‘the accuracy of

the truth-determining process in criminal trials.’” Ten-

nessee v. Street, No. 83-2143 (May 13, 1985), slip op. 6,.

quoting Dutton v. Evans, 400 U.S. at 89. It seems to us

36

that this truth-seeking goal would not be served by a rule

that would allow the government, without any showing of

a good faith effort to produce them, to seek and obtain

convictions on the basis of out-of-court statements of

dozens of individuals. The rule for which we contend—

the requirement that the government produce or demon-

strate the unavailability of the individuals whose cut-of-

court declarations are to be used against a defendant—

is more in harmony than is the government’s proposed

rule with the long-recognized truth-protecting mission of

the right of confrontation, to insure that

„the persons who are to decide upon the evidence

have an opportunity of observing the quality, age,

education, understanding, behavior, and inclinations

of the wit ness.

3 W. Blackstone, Commentaries on the Law of Eng-

land 374 (1768).

Moreover, the government’s parade of burdens is

vastly overstated, and in any event is wholly unrelated

to the facts of the case now before the Court, where the

prosecution used the out-of-court statements of four de-

clarants aside from the defendant, all of whom were well

known to the government and located in time for trial.

The requirement that the goverrment show a good faith

effort to produce the declarant is itself straightforward

and simple enough.“ It may be that the requirement would

become onerous as applied to dozens of out-of-court de-

clarants in a single case, but as a practical matter we find

14 The test of unavailability and on good-faith efforts is not

unduly burdensome. See, Be , Ohio v. Roberts, supra (wit-

ness was found to be una vailable where she was travelling

in the United States * had not called her mother)

37

it hard to imagine the situation in which hearsay by the

dozen would not be cumulative. Thus, the rule of un-

availability is more likely simply to prompt the govern-

ment to be selective in its choice of which declarations to

use, rather than to ‘‘exact a grave toll on the resources

of the criminal justice system.” (Govt. Br. 36.)

The government also opposes the unavailability rule

on the asserted ground that many declarants, if called,

would exercise their privilege not to testify. That, too,

is a matter of some speculation. In many cases, the gov-

ernment itself may wish to call the declarants to testify

—as it did in ti is case—and accordingly grant immunity

to those declarants, which is likely to occur long before,

and thus cause no disruption to, the trial. That is what

happened here: The gove t introduced the out-of-

court statements of McKeon an Lazaro; and it called

them to testify after having made immunity arrangements

with them far in advance of trial. Beyond that, the court

of appeals noted that in some circumstances the govern-

ment could show its good faith efforts to produce through

the simple procedure of presenting an affidavit from the

declarant establishing that he would claim the privilege.

(Pet. App. 18a.) And, finally, it bears repeating that

these hardship claims by the government that the rule of

unavailability will cause considerable drain on available

investigative and prosecutive resources” (Govt. Br. 42)

amount to speculations and scary predictions that are not

grounded in the facts of this case nor, apparently, in the

1 And if, as the government suggests, the prosecution seeks

to. 90 29 NN Ne

eans for prod the declarant have long been readily

— as — 1 v. Page, supra.

38

government’s experience during the last year in the Third

Cireuit (where the rule has been in effect since the de-

cision below in November 1984) or in any other circuit

where the rule has been held to apply and where, appar-

ently, the government’s ability to discharge its prosecu-

torial function has not been harmed.

The government claims additionally that the unavail-

ability rule in co-conspirator declaration cases will not

serve the truth-seeking goals of the Confrontation Clause

because defense counsel will not wish to cross-examine any

declarants that the government does produce or because

declarants who do testify ‘‘would give evidence favorable

to the prosecution.” (Govt. Br. 43.) We are not so cer-

tain that testifying declarants would necessarily give evi-

dence favorable to the government or that those who did

would not be the subject of cross-examination by defen-

dants. Im the case here the defendant cross-examined

both McKeon and Mrs. Lazaro at length and was pre-

pared to cross-examine Mr. Lazaro had the government

called him, as it repeatedly said it would. Certainly there

is no reason to allow the government to defeat the un-

availability rule on the basis of predictions that defend-

ants would not wish to cross-examine the out-of-court de-

clarants.

Finally, it seems to us worthwhile to put the govern-

ment’s claims of hardship in proper context under the

Confrontation Clause. The government has presented hy-

pothetical examples of geographically dispersed conspira-

cies involving dozens of conspirators acting over a period

of years. Let us instead present a more simple example

—the murder prosecution of a single defendant. In this

example, the government presents only two witnesses at

39

trial: the coroner who testifies as to the manner of death,

and one Allen, an unindicted co-conspirator. Allen testi-

fies that he and the defendant and a third conspirator,

Brown, agreed to murder the deceased. That testimony

establishes the foundation for admission of Brown’s out-

of-court statements. Allen then testifies that he himself

was elsewhere at the time of the murder but that on the

following day Brown (a) reported to him that the objec.

tive of the conspiracy was mainly accomplished because

he had witnessed the defendant commit the murder and

(b) asked for advice on disposing of the murder weapon

in order to accomplish the conspiracy’s final goal of leav-

ing no evidence. The latter inquiry brings the entire state-

ment within the furtherance of the conspiracy. That is the

sum of the government’s case.

There can be no doubt in this example that Brown, a

purported eyewitness to the murder, and the defendant’s

accuser, is a ‘‘witness against’’ the defendant within the

meaning of the Confrontation Clause, and we would have

thought that the core values protected by the Clause would

entitle the defendant ‘‘to be confronted with“ Brown, not

simply with Allen’s testimony that Brown, murder weapon

in hand, said that the crime was the defendant’s. And it

seems to us inconceivable that the government should be

able to defeat the guarantee of the Sixth Amendment in

such a case on the ground that making a good faith effort

to produce the out-of-court declarant is burdensome. If

burdensomeness is to be the test under the Confrontation

Clause, then the government could dispense ius well with

producing the coroner and Allen, substituting in their place

affidavits and depositions.

40

II. THIS COURT SHOULD NOT ORDER A REMAND

FOR A HEARING ON THE QUESTION OF THE

WITNESS’ UNAVAILABILITY

The government urges the proposition that, even if

this Court agrees that a good faith effort to produce a

co-conspirator is a necessary predicate to the use of his

out-of-court declarations, the court of appeals “erred in

ordering a new trial without giving the government an

opportunity on remand to prove unavailability.’’ (Govt.

Br. 44.) On this record, it is clear that there are two rea-

sons for determining that the court of appeals did not err:

the government had and declined its opportunity in the

trial court to prove unavailability or produce the declar-

ant; and a hearing more than two years after the trial

would be useless for determination of availability vel non

at trial.'®

The government asks here for a second bite at an apple

it once rejected. The government was advised at trial

that it should produce the witness. The trial judge spe-

cifically told the government’s attorney that he would

hear from the witness once the government put him on the

16 An additional reason for decti to grant the govern-

ment’s request for a remand is act that the question of

remand was not ruled on by the court of appeals. The gov-

ernment never raised the issue until its Petition for Rehear-

ing and Suggestion for Rehearing In Banc. “Ordinarily, this

Court does not decide questions not raised or resolved in the

lower court.” Youakim v. Miller, 425 U.S. 231, 233-34 (1976).

See also United States v. Lovasco, 431 U.S. 783, 788-89 (1977);

Usery v. Turner Elkhorn Mining Company, 428 U.S. 1, 37-38

(1976); Singleton v. Wulff, 428 U.S. 106, 120 (1976). The

remedy now i, de the United States is neither simple

nor expeditious. use the issue was not properly raised,

the scope and purpose of such a hearing are ill-defined and

raise factual issues not addressed by the parties.

41

stand out of the presence of the jury. (4 Trs. 408.) The

judge admonished the government that it should establish

unavailability at trial, rather than risk litigating on appeal

its failure to do so. (3 Trs. 292.) The government chose

to ignore that admonition, and rested its case after repre-

senting only that the witness ‘‘apparently’’ had car

trouble.“ (4 Trs. 408.)

A hearing now would be completely inadequate as a

device for resolving the question whether the witness

would have testified had the government accepted the trial

court’s offer to hear from him first out of the jury’s

presence. There is no allegation that the witness was

physically unavailable, a matter which might be suscept-

ible of determination two years after the trial. It is clear

that the government was in touch with the witness, since

it made repeated representations that he would testify

against respondent.“ Rather, the issue which the govern-

ment proposes to resolve on remand (in addition to the

17 The court below commented on the government's fail-

ure to try to secure the witness’s presence:

“Government counsel did not request a bench warrant,

nor does it appear that they made any additional effort

to compel his attendance at trial. We can safely assume

that counsel’s conduct would have been considerably

n

order to Under such circumstances, counsel would

the Jada a an ae and oe —

process is so impotent that a witness’s hos-

tility is a basis for making no effort. Counsel’s efforts

here clearly do not constitute a ‘good faith effort’ under

Barber.” (Pet. App. 15a.)

42

witness’ ‘‘car trouble’’), is whether Lazaro would have

refused to answer questions on pain of contempt.”

Whether or not Lazaro would have gone to contempt

at time of trial, or whether or not he will choose to go

to contempt at a new trial, cannot be answered outside the

context of a trial. As the court below noted, any such de-

termination of the witness likely response to a threat of

contempt would be based on speculation: “Every veteran

trial judge has experienced the situation where a hostile

witness discards his ‘stonewalling’ tactics when faced with

an imminent contempt citation” (Pet. App. 15a).

Even the government does not contend that this record

supports a conclusion that the utility of cross-examination

of Lazaro, if he had testified, is remote. In this case, where

several conversations were partly in code, where it was

one of Lazaro’s conversations which the jury asked to hear

again before returning its verdict against respondent, and

where the government does not contest the utility of con-

frontation, there is no likelihood that the district court

would find beyond a reasonable doubt that cross-examina-

tion of Lazaro would not have been useful at trial. The

18 The Fifth Amendment claim was never made at trial.

Indeed, the government suggested there that the witness had

no such privilege. (4 Trs. 408.) It was raised for the first

time by way of speculation in the government's brief to the

court of appeals. Thus, it is not properly before the court

now. Even were it properly raised, the court of appeals was

correct when it noted that it “would not find an adequate

showing of unavailability absent an actual assertion ot a

lege and exemption by ruling of the court. Unlike

ants, witnesses have no blanket right to stand mute; we can-

not say on the basis of this record that John Lazaro would

oni asserted the fifth amendment privilege.” (Pet. App.

13

likely effect of his testimony on eross-examination could

not, at a remand hearing, be determined to be 80 pallid

thi.t denial of confrontation could be ruled harmless error.

In this instance the hearing requested by the govern-

ment would be meaningless. The Court should not order

a remand.

ra’

Vv

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted,

Hotty Macutiaan, Esquire,

Counsel of Record

Jute Sapo, Esquire

Macuiean, Snarmo, ENGie

& Tmrak

1200 Walnut Street, Suite 400

Philadelphia, PA 19107

(215) 563-8312

Of Counsel:

Wuuum F. Sazenan, Esquire

Suea & GaRDNER

1800 Massachusetts Avenue, N. W.

Washington, D.C. 20036

(202) 828-2000