Amicus Curiae Brief — Dutton v. Evans

Page

ns below. - - -----------------------------*----- 1

: Bation . . .- << oo oo oo wn ne eee rere sees eee eseesses® 1

tions presented . -- ------------------------------- 2

Fanstitutional provisions and statute involved. ---.-.---- 2

Seemmamnt_ _ . <2 --- - - == + = none nnn nnn neennen=s 2

Atgument:

T Introduction and summary... --.------------------ 4

¥ The co-conspirator hearsay exception is fundamentally

valid under the Confrontation Clause of the Sixth

Amendment. - - - --------------------------+---- 10

A. The principles of the doctrine are consistent

pes with the Confrontation Clause__- ----.---- 10

: B. The problems of applying the doctrine, con-

aS sistently with the Confrontation Clause, to

edt particular fact situations. --.......----- 18

‘IL Application of the Sixth Amendment confrontation re-

"quirement in state criminal trials. ...----------- 21

pO A. General principles - --------------------- 22

ao B. Suggested lines of analysis-_..--.---------- 28

aa C. Resolution of the admissibility question in

Be! this state case.........-.-...-.-------- 32

: le. .ccnccccassacencncccecenessccsccccecess 35

CITATIONS

» Barber v. Page, 390 U.S. 719.--------------------- 11, 16

_* Bloom v. Illinois, 391 U.S. 194_....---------------- 31

|» Blumenthal v. United States, 332 U.S. 539. ---------- 17

* Brown v. United States, 150 U.S. 93. -.------------- 12

"+ Bruton v. United States, 391 U.S. 123_-..~---------- 31

California v. Green, 399 U.S. 149...---------------- 5,

6, 8, 10, 12, 16, 19, 22, 23, 25, 30

Chapman v. California, 386 U.S. 18....------------- 34

Clune v. United States, 159 U.S. 590... --.---------- 12

Ww)

404-951—70——-1

Cases—Continued

Frank v. eet 237 US. $09. naarnimineneisiel ceil

Great Northern Railway Co. v. Washington, 300 US,

| SAAR ERE RIE ae CRETE ap 4

Grunewald v. United States, 353 U.S. 391_.....__.- 7, 12,21

Guy v. Donald, 203 U.S. 399.....-...-----------... 27

Harrington v. California, 395 U.S. 250... ----...-... 34

Harris v. Nelson, 394 U.S. 286_......-------------- 28

Kaiz v. United States, Re kavan kt conees 13

Ker v. California, 374 U.S. 23. ..--.-------------.- 29

Krulewitch v. United States, 336 U.S. 440__-..-.-. 12, 21, 33

Linkletter v. Walker, 381 U.S. 618_-.-.-------------- 32

Lutwak v. United States, 344 U.S. 604-.....----- 12, 13, 21

Mattox v. United States, 146 U.S. 140_-.-..------.-- ll

Mattox v. United States, 156 U.S. 237_...-------.---- 11, 16

Motes v. United States, 178 U.S. 458__....--...----- 16

New State Ice Co. v. Liebmann, 285 U.S. 262--._.-_- 26

People v. Spriggs, 36 Cal. Rptr. 841, 389 P. 2d 377___ 26, 34

Pinkerton v. United Staies, 328 U.S. 640. _-....-..-- 13

Pointer v. Texas, 380 U.S. 400... ...--------------- 22

Price v. Johnston, 334 U.S. 266---.....------------- 28

Roberts v. Russell, 392 U.S. 293_.....-.---------.-- 32

Snyder v. Massachusetts, 291 U.S. 97...-.---.------ 30

Stein v. New York, 346 U.S. 156_.-.--------------- 30

Townsend v. Sain, 372 U.S. 293.......------------- 28

United States v. Gooding, 12 Wheat. 460-_-.......-.- 11, 14

Williams v. Dutton, 400 F. 2d 797_....------------- 4

Williams v. Florida, 399 U.S. 78_.....-.-------- 26, 27, 30

Williams v. State, 222 Ga. 208, 149 S.E. 2d 499,

certiorari denied, 385 U.S. 887_........--..------ 4

Witherspoon v. Illinois, 391 U.S. 510__...---------- 35

Wong Sun v. United States, 371 U.S. 471_....------- 12

‘mtion and statute:

United States Constitution: P

Sixth Amendment----.-----------------------

; 8, 4, 6, 7, 10, 11, 18, 21, 22,

Fourteenth Amendment- ----------- 2, 4,7

Ga. Code Ann. § 38-306... .--------------------------

aneous:

Annual Report, Director of the Administrative Office

of the United States Courts (1968)_.. .-..-------- 27

, Bentham and the Hearsay Rule—A Ben-

thamic View of Rule 63(4)(c) of the Uniform Rules of

Evidence, 75 Harv. L. Rev. 932 iiedtennan nae 24

Handbook of the National Conference of Commissioners

on Uniform State Laws (1969) - - - ---------------- 26

Henkin, “Selective Incorporation” in the Fourteenth

Amendment, 73 Yale L. J. 74 (1963) ---..--------- 30

Jefferson, Declarations Against Interest; An Exception to

The Hearsay Rule, 58 Harv. L. Rev. 1 06 34

Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159

(1964).....----------------------------------- 11, 17

Morgan, Rationale of Vicarious Admissions, 42 Harv.

L. Rev. 461 (1929).---------------------------- 14

Note, Confrontation and the Hearsay Rule, 75 Yale L.J.

eS RE SEES 2 Erne eee 25

Note, Developments in the Law—Criminal Conspiracy,

72 Harv. L. Rev. 990 (1950)..........---------- 11,17

Note, Development in the Law—Federal Habeas Corpus,

83 Harv. L. Rev. 1038 (1970) ------------------- 27

Note, Preserving The Right to Confrontation—A New

Approach to Hearsay Evidence in Criminal Trials,

113 U. of Pa. L. Rev. 741 (1965) - --------------- 26

Preliminary Draft of Proposed Rules of Evidence for

the United States District Courts and Magistrates

promulgated by the Committee on Rules of Practice

and Procedure of the Judicial Conference of the

Siiacl Ghabek CHUN no ans in so ceed c nee 15, 26

Rule 508(b), A. L. I. Model Code of Evidence (1942). 25, 26

Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393

(1922)... ...----------------------------------- 11

S. 30, 9ist Cong., Ist Sess_.....-.------------------ 14

S. Rep. No. 91-617, 91st Cong., Ist eR eee 15, 26

Uniform Rules of Evidence, Rule 63(9)(b) (1953), 94 rap

Uniform Laws Ann. (1965), p. 636. ......---..... 9%

Weinstein, Probative Force of Hearsay, 46 Iowa L. Rey,

—— ee ee Oe HESS RR HR HOH SE Ow mK meen

St eee tt te

ee

6 Wigmore, Evidence, 3d ed. WO0D .56sikd ~<tmeedinsnnn

Working Papers of the National Commission on Re-

form of Federal Criminal Laws, Vol. 1 (July 1970)... 15,2

_—

$n the Supreme Court of the United States

Ocroser TERM, 1970

No. 10

A. L. Dutton, WARDEN, APPELLANT

ALEX 8. EVANS

oN APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH OIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the court of appeals (App. 28-38)

is reported at 400 F. 2d 826. The opinion of the dis-

trict court (App. 21-25) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on September 16, 1968, and the notice of appeal was

filed on September 26, 1968. This Court noted prob-

able jurisdiction on February 24, 1969, 393 U.S. 1076.

This Court’s jurisdiction rests upon 28 U.S.C. 1254

(2), the court of appeals having held the Georgia

statute involved, as applied, invalid under the Sixth

and Fourteenth Amendments to the Constitution.

(1)

2

QUESTIONS PRESENTED

1. To what extent may a State extend the tradition.

al doctrine permitting certain out-of-court statements

of one co-conspirator to be used at the criminal tra]

of another consistently with the confrontation ro

quirements of the Sixth Amendment?

2. What constitutional limitations are applicable

to hearsay rules applied in State criminal trials?

CONSTITUTIONAL PROVISIONS AND STATUTE INVOLVED

The Sixth and Fourteenth Amendments and the

Georgia evidence statute invoved in this case are get

out in the Appellant’s Brief at p. 3.

STATEMENT

The relevant facts are not in dispute and may be

summarily stated. On April 17, 1964, three police

officers were found shot to death in Gwinnett County,

Georgia. On August 23, 1965, appellee and Eugene

Williams were charged with the murder of one of the

officers, Jerry Everett. Appellee’s motion for sever-

ance was granted and he was tried alone on this

charge in October 1965. He was found guilty by a

jury and sentenced to death.

In July 1965, Williams was incarcerated at the At-

lanta penitentiary on unrelated charges. The evidence

at the trial showed that when Williams returned to

the penitentiary after his arraignment on the murder

charge, one Lynwood Shaw, a fellow inmate who had

nothing to do with the murders, asked him how he had

made out. Williams replied that “‘if it hadn’t been for

2A full statement appears in appellant’s Brief, pp. 5-10.

3

that dirty son-of-a-bitch, Alex Evans, we wouldn’t be

in this now” (App. 55). Shaw’s testimony about this

statement was admitted over defense objection that it

was hearsay and also excludable under the Confronta-

tion Clause of the Sixth Amendment. The trial court

found that since there had been a prima facie showing

of conspiracy to commit car theft from which the

murder followed, the statement was admissible under

the Georgia statute as a declaration of a conspirator

“during its continuance, before or concealment after

the erime’’ (App. 54).* The Georgia Supreme Court

affirmed. Relying on earlier state decisions construing

the Georgia statute, it agreed that appellee and Wil-

liams, “at the time this statement was made, were still

concealing their identity, keeping secret the fact that

they had killed the deceased, if they had, and denying

their guilt”; the court concluded that the statement

was therefore admissible as having been made ‘‘while

the conspiracy continued’’. Evans v. State, 222 Ga.

392, 402, 150 S.E. 2d 240, 248. This Court denied

certiorari, 385 U.S. 953.

Appellee thereafter filed a petition for a writ of

habeas corpus in the federal district court, which

denied it (App. 4-12; 21-25). The Court of Appeals

for the Fifth Circuit reversed. Evans v. Dutton, 400

F. 2d 826. It held that, as applied to this case, the

?The applicable Georgia statute (Ga. Code Ann. § 38-306

(1954 Rev.)) provides:

“After the facts of conspiracy shall be proved the declarations

by any one of the conspirators during the pendency of the criminal

project shall be admissible against all.”

The State introduced extensive additional evidence against

appellee (see appellant’s Brief, pp. 5-6). Williams did not testify.

ae,

4

Georgia statute violated the right to confrontatig

secured by the Sixth and Fourteenth Amendments

to the Constitution (App. 28-38). The court foung

that in light of the cireumstances in which the state.

ment attributed to Williams was made, it was “‘ingop.

ceivable” that it was uttered “during the pendency of

the criminal project”? (App. 37) or made in further

ance of the criminal enterprise. (App. 37, note 24)

Finding no rational substitute for the benefits of con:

frontation in these circumstances (App. 34), the court

concluded that application of the Georgia statute had

denied confrontation to appellee, and that the admis-

sibility of the evidence could not be considered harm-

less error. (App. 30, n. 4.)*

ARGUMENT

INTRODUCTION AND SUMMARY

Having earlier restored this case for reargument

this Term (397 U.S. 1060), the Court on June_ 29,

1970, invited the Solicitor General to express the

views of the United States and to participate in the

oral argument (399 U.S. 924). This Brief is submitted

in response to that request.

Traditionally, the United States has not participated

in the numerous cases in this Court involving the

application of the Constitution of the United States

* Williams was convicted at a separate trial, at which the

statement he allegedly made to Shaw was also introduced .

against him. His conviction was affirmed by the Georgia

Supreme Court. Williams v. State, 222 Ga. 208, 149 S.E. 2d

499, certiorari denied, 385 U.S. 887. The Fifth Circuit there .

after reversed his conviction, challenged in habeas proceed-

ings, on grounds not relevant to the issue posed here. Wiliams

v. Dutton, 400 F. 2d 797 (C.A. 5).

5

p criminal trials in State courts. This has been be-

equse ordinarily the outcome of particular State cases

ig not of direct interest to the federal government and

fundamental considerations of federalism militate

executive intrusion into the area of State

erminal law. However, the tendency of this Court’s

decisions in recent years to impose upon the States

constitutional restrictions mirroring those applicable

in federal prosecutions may in some situations estab-

lish a new kind of federal interest in State cases in

this Court, arising out of the fact that constitutional

law applicable in federal cases may be made in cases

coming to this Court from the States. It was such an

interest that induced us to participate in California v.

Green, No. 387, last Term (399 U.S. 149), and we

assume that similar considerations led to the Court’s

request in the instant case.

This case involves the court of appeals’ consider-

ation, on habeas corpus, of the Georgia Supreme

Court’s application of a Georgia statute embodying

a version of the traditional exception to the hearsay

rule permitting one co-conspirator’s declarations to

be admitted against another. The court of appeals

held that the Georgia court’s application of the Geor-

gia statute violated the defendant’s “‘sixth and four-

teenth amendment right to be confronted by the wit-

nesses against him’? (App. 29). The basis for the

decision below thus raises @ question of direct interest

in federal prosecutions for conspiracy and joint-

ventures—an interest in the consideration of the con-

stitutional foundations of the co-conspirator doctrine

404-951—70——-2

——_—xy

in general that this case is likely to involve, following

as it does the Green decision. D0 Quatpis

Accordingly, we begin with a general discussion: of

the co-conspirator doctrine. We shall show in Point]

that this longstanding doctrine is f :

Sound under the Sixth Amendment. Its birth was

roughly contemporaneous with the Bill of Rights and

this Court has repeatedly recognized it. Notwithstand.

ing the difficulty of articulating a rationale, we shall

show that the co-conspirator exception, when properly

applied, assures the requisites of reliability and evi.

dentiary necessity that can serve, under the Sixth

Amendment, as a rational substitute for strict con-

frontation in the courtroom. With that much estab-

lished, we think that the facts of this case would be

an inadequate vehicle for any attempt to formulate—

if that is possible as an abstract matter—comprehen-

sive Sixth Amendment rules for the application of

the co-conspirator doctrine to the multifarious types

of declarations that might be offered in evidence for

different purposes in the complex factual circum-

stances of particular cases. While the factor of neces-

sity (i.e., the unavailability of an important decla-

rant to testify) may not present serious problems in

the normal conspiracy case, the determination of suf-

ficient reliability is likely to be vexatious, as a few

examples show. Close questions may arise as to

whether a particular declaration is sufficiently related

to the establishment, continuance or execution of a

conspiracy to warrant its admission against a co-con-

spirator. It may be even more difficult to determine

the interrelated question of the “trustworthiness” of

7

a particular declaration as tending to prove the propo-

sition for which it is offered; ordinarily a declaration

would be offered for what it implies about the nature,

geope and activities of a conspiracy, but there are

likely also to be cases where a statement of fact is of-

fered to establish the truth of that fact. Neither the

past decisions of this and other Courts nor the schol-

arly literature on this general subject offer ready as-

sistance in the development of comprehensive princi-

ples of application, and the facts of this case provide

very limited general illumination. Accordingly, we

believe that the ramifications can be responsibly ex-

plored only as specific cases arise in the future.

In Point II we address ourselves to an equally

significant question—the appropriate constitutional

approach for determining the validity of State rules

of evidence, such as the co-conspirator exception to

the hearsay rule which is involved here. We start

by noting that if this were a federal case we would

conclude that the conviction should be overturned

under applicable decisions in the exercise of the

Court’s supervisory power. Under governing fed-

eral law as it now stands, the extra-judicial utter-

ance involved here could not be said to have a tend-

ency to further the conspiracy, the object of which

was achieved some fifteen months earlier. See, ¢.9.,

Fiswick v. United States, 329 U.S. 211; Grunewald

y. United States, 353 U.S. 391. But this is not a fed-

eral case and the admissibility issue must be resolved

in terms of the Confrontation Clause of the Sixth

Amendment as applied to the States under the Due

Process Clause of the Fourteenth.

8

Viewing the question in its constitutional

it is our submission that the Confrontation Clauy

should not be read as imposing upon the States a,

unyielding requirement which would solidify the ex.

isting rules, or any particular rules, of hearsay eyj-

dence, requiring immutable adherence to them in al

their scope and detail. Indeed, in California v. Green,

supra, the Court was quite careful to make clear

that the Oonfrontation Clause was not simply a

“codification of the rules of hearsay and their excep-

tions as they existed historically at common lay,”

(399 U.S. at 155). The need to avoid transforming

hearsay rules into constitutional doctrine is particu-

larly revealed by analysis of the co-conspirator excep-

tion. The rationale of the exception and the proper

extent of its application are undergoing reexamina-

tion and may require change and adjustment with

experience; this would be frustrated by freezing the

doctrine—even if there were uniformity in applica-

tion, which there is not—into a constitutional edict

obligatory on the states. In this area of evidence, ex-

perimentation is essential to enhance the search for

truth within the context of the adversary system, and

such experimentation is facilitated if the states are

given room for innovation and adjustment.

There is another compelling consideration here.

The federal courts—already burdened by a heavy

case load of habeas corpus applications seeking to

challenge state convictions—should not be called upon

—

to review the minutiae of State rules of evidence in

collateral proceedings. That is not to suggest that a

State may constitutionally adopt any evidentiary

rule it deems desirable ; it is to suggest only that the

hearsay rules with all their complexity and detail

should not be treated as rules of federal constitutional

jaw. Rather, the Confrontation Clause should be read

ys imposing on the States only certain basic principles

which they are free to apply with some flexibility.

Insofar as the outcome in this case is concerned,

it is apparent that the Georgia statute here involved

can have numerous proper applications. On the other

hand, there are clearly limitations beyond which it

could not be applied without running afoul of con-

stitutional prohibitions. There may well be, however,

proper bases for finding sufficient reliability to con-

stitute a legitimate substitute for literal confronta-

tion in this ease. The declaration had relevance to

the case, it was apparently spontaneous, and it was

aginst Williams’ interest to make it. Since the State

courts did not consider any such alternative grounds

for admissibility we believe that they should be af-

forded that opportunity. We point out that even if

this Court were to hold the declaration admissible,

thus reversing the court of appeals, that court, on

remand, would consider the other unrelated constitu-

tional issues raised by appellee and would be likely

to enter a judgment looking toward further state

proceedings in this case.

10

I, THE OO-CONSPIRATOR HEARSAY EXCEPTION) 1s

MENTALLY VALID UNDER THE CONFRONTATION CLAUSE

OF THE SIXTH AMENDMENT

A. THE PRINCIPLES OF THE DOCTRINE ARE CONSISTENT

WITH THE CONFRONTATION CLAUSE

Although this Court’s decision in Cali/orniany,

Green, 399 U.S. 149, dealt with a problem distinet

from that here—holding that the availability of 4

declarant for cross-examination at trial made his prior

inconsistent statement constitutionally admissible for

substantive purposes—the Court’s general discussion

of the relationship between hearsay and confronta-

tion sets the background for consideration of this

case. In Green, the Court confirmed that the admis-

sion of hearsay—even hearsay that might be inad-

missible as a matter of the law of evidence—‘‘does

not lead to the automatic conclusion that confronta-

tion rights have been denied” (399 U.S. at 156); it

cannot be said that the “Confrontation Clause is

nothing more or less than a codification of the rules

of heersay and their exceptions as they existed his-

torically at common law’’ (id. at 155). The Court

noted, however, that any exception to “the literal

right to ‘confrontation’ and cross-examination”’ re-

quires ‘‘careful scrutiny’’ (399 U.S. at 162).

There is nothing in Green that undermines the con-

tinued existence of the rules admitting statements of

absent declarants that can pass such “careful seru-

tiny.”’ Green recognizes implicitly—as earlier Sixth

Amendment decisions have recognized—that rational

substitutes for literal confrontation may be found

where the situation requires and proper protections

il

are provided.’ We submit that, when applied within

proper limits, the co-conspiritor doctrine embodies

such a rational substitute. See Delaney v. United

States, 263 U.S, 586, 590, rejecting the contention that

the right of confrontation was denied ;by receipt at a

federal trial of extrajudicial statements of a de-

ceased co-conspirator apparently made in furtherance

of the conspiracy.

1. History suggests the doctrine’s compatibility

with the Sixth Amendment confrontation guarantee.

This exception to the hearsay rule was developed in &

series of English treason trials held virtually con-

temporaneously with the passage of the Bill of

Rights,’ was soon adopted by a number of the States,

and was approved in Mr. Justice Story’s 1827 opinion

for the Court in United States v. Gooding, 12 Wheat.

460, 469-470, There is no evidence to suggest that it

was considered in any way incompatible with the right

secured by the Confrontation Clause or that the Fram-

‘Eg. a dying declaration, Mattow v. United States, 146

U.S. 140, 151, or prior testimony where the declarant is un-

available, Mattow v, United States, 156 U.S. 237, 240-244; see

Barber v. Page, 390 U.S. 719, 722-725; see discussion in our

Brief in Green, No. 387, O.T., 1969, pp. 7-8, 14-15, 22-23.

See Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159,

1162-1163 (1954) ; see also Note, Developments in the Law—Crim-

inal conspiracy, T2 Harv. L. Rev. 920, 922-923 (1959).

The crime of conspiracy itself evolved in the late Thirteenth

and early Fourteenth centuries in England and was confined to

offenses against the administration of justice, In the Sixteenth

and Seventeenth centuries the crime was expanded to approxi-

mately its present scope. See Sayre, Criminal Conspiracy, 35

Harv. L. Rev. 398, 804-402 (1922).

:_ a

ers meant to undermine this common law doctring*

Cf. Mr. Justice Harlan’s concurring opinion in Cal.

fornia v. Green, supra, 399 U.S. at 174-179. ue

- This Court has frequently recognized the basic ya-

lidity of this hearsay exception. See, ¢.9., Brown y,

United States, 150 U.S. 93, 98; Clune v. United

‘States, 159 U.S. 590, 598; Delaney v. United States,

263 U.S. 586, 590; Fiswick v. United States, 329 US.

211, 217; Krulewitch v. United States, 336 U.S. 440,

442-443; Lutwak v. United States, 344 U.S. 604, 617-

618; Wong Sun v. United States, 371 U.S. 471, 490.

While the Court has also indicated the inherent dan-

gers of carrying the co-conspirator doctrine to the

limits of its logic (e.g., Grunewald v. United States,

353 U.S. 391, 404; Krulewitch, supra, 336 U.S. at 443-

444), it has not focused on the question whether these

dangers are of constitutional proportions or more

simply subjects for the exercise of its supervisory

power over federal evidentiary rules. And even as a

non-constitutional matter of evidence law, the scope

of the doctrine has not been clearly delineated.

2. Like its boundaries, the constitutional and evi-

dentiary rationales for the co-conspirator doctrine

have not been fully and consistently clarified. To the

extent that a rationale has been articulated, the excep-

tion has usually been justified by a concept of agency

or partnership; this Court has used such terms, see,

® See this Court’s discussion in California v. Green, 399 US.

149, 156-158. We have developed the framework from which

the Confrontation Clause and the hearsay rules developed in

our Brief in Green, pp. 8-15.

—_—

eg., Lutwak Vv. United States, 344 U.S. 604, 617;'

Pinkerton V. United States, 328 U.S. 640, 645-648.

Qn one level this suggests an assumption of risk ra-

tionale—one who knowingly joins an illegal scheme

takes the chance of being charged with statements

made by his criminal partners during the course and

in furtherance of the scheme. Cf. Katz v. United

States, 389 U.S. 347. On another, and perhaps more

significant level, this statement of the rule includes

a concept of reliability—given the unitary goal, what

one conspirator says in furtherance thereof tends to

be a reliable reflection of what a co-conspirator

against whom the statement is sought to be admitted

would have also said in similar circumstances. Putting

the matter in most simple terms: If two or more agree

to rob a bank and one stays in the automobile while

the other enters the bank and declares that “This is

a stickup”, it is not only rational to conclude that

this statement was authorized by the non-declarant

conspirator, or, at least, that he contemplated that it

would be made; it is additionally logical to conclude

that this statement mirrored what the conspirator

assigned to the automobile would have said had it

been his assignment to enter the bank. Implicit in

such an “agency” or “partnership”’ justification is its

inapplicability to any statement not made in planning

TAs put in Lutwak, supra at 617: “Declarations of one con-

spirator may be used against the other conspirator not present

on the theory that the declarant is the agent of the other,

and the admissions of one are admissible against both under a

standard exception to the hearsay rule applicable to the state-

ments of a party.”

13

404-951—70——3

14

or carrying out the activities of the conspiracy, orit)

any statement made after the conspiracy ends, By,

Fiswick v. United States, supra, 329 U.S. at 217,

There can be no reasonable assumption of risk ag to

a partner’s actions outside the scope or term of the

partnership, and similarly there is no rational basis

for believing that the defendant would have done or

said what the other did or said if it was not related

to their joint activities.*

There is some present movement in federal criminal

law to discard agency notions and furtherance con-

cepts on the theory that these formulations do not

adequately take into account confrontation considera-

tions, which have only recently come to the fore in

this context. In the course of its comments on the

proposed Organized Crime Control Act of 1969 (8.

30, 91st Cong., Ist Sess.), the Department of Justice

recommended that a provision be added codifying the

co-conspirator exception with the following requisites:

(1) the declaration was made by the co-conspirator

during participation in the conspiracy; (2) there are

in existence facts and circumstances from which the

®*The combination of res gestae and agency notions relied

upon by Mr. Justice Story in United States v. Gooding, 12

Wheat. 460, 469-470, similarly point to this concept of

reliability.

Professor Wigmore’s theory would similarly emphasize reli-

ability and trustworthiness. See 4 Wigmore, Evidence (8d ed.

1940) §§ 1077, 1079, 1080. Professor Morgan has rationalized

the matter as a vicarious admission. “If B authorizes A to

speak for him, he can take no valid exception to the recep-

tion of A’s statements against him which he could not take

to the reception of his own.” See Morgan, Rationale of Vicari-

ous Admissions, 42 Harv. L. Rev. 461, 463, 464-465 (1929).

a

15

trustworthiness of the statement may be inferred; (3)

the declaration relates to the existence or execution of

the conspiracy ; and (4) the declaration was made at a

time when the defendant against whom the statement

ig used participated in the conspiracy. See S. Rept.

No. 91-617, 91st Cong., 1st Sess., pp. 113-115. Al-

though this proposal is not included in the bill as

by the Senate and pending in the House of

Representatives, its thrust is significant. The purpose of

the proposed substitution of relationship to the con-

spiracy and tiustworthiness for the more traditional

furtherance concept was not to eliminate the restriction

contemplated by the furtherance requirement but rather

to refine it in light of the erratically over-liberal and

over-restrictive aplications it has been given in some

lower courts. Ibid.» Such emphasis on reliability,

—————

*The same notions are embodied in a statute proposed by one

of the consultants to the Commission on the National Commis-

sion on Reform of Federal Criminal Laws. (Volume 1 of

the Working Papers of the National Commission, p. 386.) This

provision, however, was not contained in the Study Draft.

On the other hand, the Preliminary Draft of Proposed

Rules of Evidence for the United States District Courts and

Magistrates promulgated by the Committee on Rules of Prac-

tice and Procedure of the Judicial Conference of the United

States (1969), would retain the “furtherance” concept, but

would reject the agency theory “as a basis for admissibility

beyond that already established.” See Rule 8-01 (c) (3) (v) ; Com-

ments in the Proposed Draft, p. 169. These proposed rules do not

purport to deal with the matter in constitutional terms. See Com-

ments supra, pp. 156-159, 169.

The consultant on conspiracy to the National Commission has

observed (Vol. 1 of the Working Papers, p. 400, Note B) :

“Admissibility may properly rest ultimately on principles

analogous to those of agency, yet more ought to be required.

Something should be explicitly said about trustworthiness.* * *

“It might well be that this formulation would not, in prac-

16

whether in a furtherance framework or not, provides,

we submit, a rational substitute for strict confronty

tion that serves the underlying purpose of the Cop.

frontation Clause—that a conviction be based upon the

best evidence that the prosecution can produce and .

that the defense have the opportunity, through the ad-

versary process, to assure that the jury does not rely

upon untrustworthy evidence—without unduly hinder-

ing the search for truth.

3. There is a further justification for the co-con-

spirator doctrine that is highly pertinent to confron-

tation considerations. That is the element of prose-

cutorial necessity—the unavailability of an essential

declarant for examination and cross-examination at

trial—an element that has figured importantly in the

application of the Confrontation Clause. As we have

pointed out, one of the purposes of the Clause is to

require the government to produce any available wit-

ness, and to discourage it from unnecessary resort to

the short-cut of prior testimony or statements. Barber

v. Page, 390 U.S. 719, 725-726; Motes v. United

States, 178 U.S. 458. The converse has also been rec-

ognized: the unavailablity of a witness may justify

the use of out-of-court statements by him that could

not otherwise be used. California v. Green, supra, 399

U.S. at 165-168, and concurring opinion of Mr. Jus-

Footnote continued from p. 15.

tice, either expand or contract the present rule. But what it

would do is make the search for the just answer surer, since

it would explicitly articulate the end to be sought. One who

joined a conspiracy would then run the risk of liability for

only the circumstantially trustworthy statements of his fellow

conspirators, a not unreasonable risk.”

17

tice: Harlan. at 182-183; Mattox v. United States, 156

U.S. 237. :

Unavailability of the declarant assumes particular

significance in the present context when the familiar

justification for making conspiracy a crime is taken

into account. The generally aecepted proposition is

that group action toward an antisocial end is inher-

ently. more dangerous to society than individual

movement toward that same end. Correspondingly,

group concert is much more difficult to prove by di-

rect evidence. “Secrecy and concealment are essential

features of successful conspiracy.’ Blumenthal v.

United States, 332 U.S. 539, 557. Accordingly, the law

‘ts conviction of those who know the essentials

of the scheme but not all of its details. ‘‘Otherwise

the difficulties, not only of discovery, but of certainty

in proof and of correlating proof with pleading

would become insuperable, and conspirators would

go free by their very ingenuity.” J bid. ‘‘[T ]he choice

may not be between more reliable and less reliable

types of evidence, but between admitting inferior

evidence or no evidence at all’’; *° or again, as another

recent commentator has put it, the true reason for the

exception is the “great probative need for such testi-

mony”.

Of course, the ad hoc “need” of the prosecutor for a

conviction cannot justify the use of untrustworthy

evidence to secure it. But, given the proposition that

1 See Note, Developments-Conspiracy, supra, 72 Harv. L.

Rev. at 989.

uLevie, Hearsay and Conspiracy, supra, 52 Mich. L. Rev.

at 1166. .

18

the Confrontation Clause does permit unavailability t

be taken into account where the government cannot be

blamed for it, and given the legitimate need for

declarations of co-conspirators in proving crimes jp.

volving joint-ventures, a reasonably limited exception

to literal confrontation is essential.

B. THE PROBLEMS OF APPLYING THE DOCTRINE, CONSISTENTLY

WITH THE CONFRONTATION CLAUSE, TO PARTICULAR PACT

SITUATIONS

Although, for the reasons we have given, we believe

that the co-conspirator doctrine is consistent with the

Sixth Amendment, that is not to say that every out-

of-court statement by a defendant’s co-conspirator is

admissible at his trial for all purposes. It is apparent

that the proper application of the doctrine presents

problems more difficult than its basic articulation and

justification. Neither past judicial decisions nor the

scholarly literature, as we have noted, offer a compre-

hensive framework for developing clear rules of ap-

plication at this point. Accordingly, we think that re-

finements must be considered in the light of particular

fact situations.

Ordinarily, it should not be a matter of great

difficulty to determine whether or not there is a ne-

cessity for resort to a co-conspirator’s statement in a

particular trial; we expect, as we have indicated, that

most conspiracy cases would present such a necessity,

and the prosecution should be required to show no

more than that, through no fault of its own, an im-

19

declarant is not available to testify.” The

more troublesome element in particular cases will be

that of reliability, which—as we have suggested (pp.

13, 15-16, supra)—itself involves two basic inquiries:

whether the declaration is sufficiently related to the

conspiracy and whether it is sufficiently “trustworthy”

in the context in which it is offered. We have already

given the example of a bank-robbery conspiracy where

one of the co-conspirators enters a bank and says

“This is a stickup’’. That example presents no serious

problem, since the statement was elearly an element in

the actual execution of the conspiracy and its utter-

ance was a trustworthy indication that the conspiracy

(assuming its existence has been otherwise estab-

lished) was attempting a robbery. Other situations,

however, present more difficult analytical problems.

Whether or not a particular declaration sufficiently

relates to the establishment, continuance or execution

of a conspiracy depends essentially on the factual

context which necessarily varies in each case. If the

co-conspirators say in unison “We hereby establish

a conspiracy to rob the following banks’’ there would,

of course, be no problem, and indeed the statement

may no more be hearsay than the utterance of words

of agreement would be in a contract suit. Nor would

there be a serious question if one co-conspirator gave

another instructions for the robbing of a bank or

inquired of a third party where he could obtain tools

“If the declarant is on the stand, and willingly testifies to

the relevant events (see Douglas v. Alabama, 380 U.S. 415), the

prosecution may constitutionally utilize a prior statement. Cali-

fornia v. Green, supra, 399 U.S. at 168.

to carry out the purpose of the conspiracy or ‘sought

‘to recruit a third party to join the scheme.” But what

of a report by one co-conspirator to another about a

robbery just completed, or an argument or boasting

among co-conspirators. The possible variants are

legion. Equally difficult problems may arise in eonsid-

ering when a statement to a third party, for example

a victim or a co-conspirator’s wife, may be regarded

as reasonably within the scope of a conspiracy.

Even more difficult would be any attempt to lay

down comprehensive rules for determining whether a

particular declaration is ‘‘trustworthy” in a partic-

ular context. By ‘‘trustworthy” we do not necessarily

mean ‘‘truthful’’, because ordinarily a co-conspira-

tor’s declaration would not be offered for the direct

truth of the underlying factual assertion made in it.

More commonly, such a declaration would be used be-

cause of what it implies: #.e., the conspirators would

not be talking among themselves unless they were ac-

tually involved together in the matter under disevs-

sion. Such implications would ordinarily be more re-

liable in a conspiracy situation than would reliance

upon a specific statement of fact; moreover, it would

in general be unrealistic to say that a person entering

a conspiracy thereby vouches for the truth of all

factual statements that his co-conspirators may make

about their joint activities. On the other hand, it might

be shown in appropriate circumstances that a report

by one member to another aout something he in-

18 See, ¢.g., Baker v. California, pending on petition for a

writ of certiorari, No. 5123, this Term, and the opinion of

Supreme Court of California appended to the petition.

21

gividually has done in furtherance of the conspiracy

ig sufficiently likely to be accurate (because aceuracy

serves the common enterprise) to permit its admission

for the truth of the facts reported. Again, the vari-

ables may be extremely complex; whether a partic-

ylar declaration is trustworthy: proof of a particular

fact can be determined only in detailed context.

In short, while this case may well provide a start-

ing point for analysis as to the seope and application

of the co-conspirator exception, it should not be the

yehicle for the announcement of any final principles.

In this area of evidentiary law, as in most others,

gound doctrine can come only, in Mr. Justice Miller’s

phrase, “by the gradual process of judicial inclusion

and exclusion.”’ Davidson Vv. New Orleans, 96 U.S. 97,

104.

IL APPLICATION OF THE SIXTH AMENDMENT CONFRONTA-

TION REQUIREMENT IN STATE CRIMINAL TRIALS

Because this is a case coming here from a State

eourt, it poses more directly than would a federal

ease the issue of the strictly constitutional limits upon

the use of a co-conspirators’ statements. We have no

doubt that Williams’ statement would have been inad-

missible under the presently established federal rules

of evidence had he been tried in a federal court. The

declaration was made fifteen months after the police

officer was killed, and there is apparently no basis

for saying that the basic conspiracy was still in effect.

In Krulewitch v. United States, 336 U.S. 440, Laut-

wak v. United States, 344 U.S. 604, 616, and Grune-

wald v. United States, 353 U.S. 391, 399-402, this

22

Court rejected, as a matter of federal law, theigoy,

ernment’s argument that a continuing subsidiary

agreement to conceal a crime, its perpetrators, and

its fruits, may be implied from a conspiracy to com

mit the crime. And this Court rejected a declaration

made under circumstances similar to those here. in

Fiswick v. United States, 329 U.S. 211, 217, obsery-

ing that a “confession or admission by one co-con-

spirator after he has been apprehended is not in any

sense a furtherance of the criminal enterprise, It is

rather a frustration of it.’’ But the cases establishing

the specific law that would govern this case in a fed-

eral court are not explicitly constitutional decisions,

and may well involve to a substantial extent the ex-

ercise of this Court’s federal supervisory powers

which do not, of course, govern the States. Thus, de

termination of the constitutional limits on the States

in these circumstances is a more difficult task.

A. GENERAL PRINCIPLES

We start, of course, with the general proposition

that the Fourteenth Amendment provides a constitu-

tional right to confrontation in state criminal pro-

ceedings. E.g., Pointer v. Texas, 380 U.S. 400. Last

Term’s majority opinion in California v. Green, supra,

similarly approached that State case as involving a de-

termination of the scope of ‘‘the defendant’s right

of confrontation guaranteed by the Sixth Amend-

ment and made applicable to the States by the Four

teenth Amendment’’ (399 U.S. at 150-151). Green

went on, however, to suggest that the Confrontation

Clause leaves the States a good deal of leeway. The

decision there was that confrontation considerations

go not constitutionally bar a State’s decision to re-

lax the traditional hearsay rules so as to permit sub-

stantive use of a witness’ out-of-court statement. A

major premise of the decision was that the Constitu-

tion should not be read as imposing upon the States

an ironclad doctrine which would freeze the existing

rules, or any particular rules, of hearsay evidence

and require undeviating allegiance to them in all

their sweep and detail. The Court, indeed, was quite

eareful to indicate the contrary: ‘‘While it may

readily be conceded that hearsay rules and the Con-

frontation Clause are generally designed to protect

similar values, it is quite a different thing to suggest

that the overlap is complete and that the Confronta-

tion Clause is nothing more or less than a codifica-

tion of the rules of hearsay and their exceptions as

they existed historically at common law.”’ (399 US.

at 155).

The same theme was emphasized in the con-

curring observation of the Chief Justice that “nei-

ther the Constitution as originally drafted, nor any

amendments, nor indeed any need, dictates that we

must have absolute uniformity in the criminal law in

all the States” (id. at 171-172). Again, Mr. Jus-

tice Harlan in his concurring opinion stressed the

changing fortunes of the evidentiary rules of hear-

say and the undesirability of limiting “the flexibility

of the States and chok[ing] experimentation in this

evolving area of the law” (td. at 184-185). The

thrust of these views, as we understand it, is that

there must be some play in the joints when dealing

with matters of such variety and complexity as state

rules of evidence.

There are two fundamental considerations en

rant some explanation here as reasons why the States

should be as free as the protection of fundamental

rights permits from constitutional limitations upon

the rules of evidence—and especially hearsay eyi-

dence—to be applied in their courts. Both may prop.

erly be called principles of a vital federalism. The

sound development of the law in this difficult area

benefits from relatively unfettered experimentation

in the “‘laboratories’’ of the States. And the policing

burdens that constitutionalization of rules of evidence

would give the federal courts might well jeopardize

sound judicial administration.

1. The rules of hearsay are constantly in the proe-

ess of reform and refinement. Bentham was one

among many who believed that, in their varying ap-

plications, hearsay prohibitions tend to keep relevant

evidence from the jury. ‘‘Hearsay is competent evi-

dence by the law of many enlightened countries.”

Great Northern Railway Co. v. Washington, 300 US.

154, 168, 173 (Cardozo, J., dissenting). Judges have

long pondered—and differed—as to the appropriate

ness of these rules of exclusion.“ See the concurring

™ See, ¢.g., Chadbourn, Bentham and the Hearsay Rule—A

Benthamic View of Rule 63(4)(¢) of the Uniform Rules of

Evidence, 75 Harv. L. Rev. 932 (1962); see also, Weinstein,

Probative Force of Hearsay, 46 Towa L. Rev. 331, particularly

at 344-346 (1961).

18 As Professor Wigmore has stated in this regard:

“The Constitution does not prescribe what kinds of testimonial

statements (dying declarations, or the like) shall be given infra-

judicially,—this depends on the law of Evidence for the time

— «

opinion of Mr. Justice Harlan, in Green, supra, 399

U.S. at 184-185, n. 18. As one recent commentator has

observed, ‘*(iJn this area, rules of law must be Tules

of thumb. All we can ask is that the categories of

admissible hearsay be generally reliable; any partic-

niar example may be suspect and call for the exercise

by a trial judge of his discretion to exclude unrelia-

ble evidence.’’ **

The stultifying effect of any attempt to weave

elaborate evidentiary rules and exceptions into the

fabric of the Sixth Amendment is particularly illus-

trated in the present context of the co-conspirator ex-

ception. To begin with, there are wide differences in

state practice. The American Law Institute’s formu-

lation would abolish the requirement of furtherance ;

it would instead focus on relevancy and the fact that

the statement sought to be admitted was made during

the existence of the plan.’ A somewhat different

formulation, but one also focusing upon relevance, is

being;—but only what mode of procedure shall be followed—

ie., a cross-examining procedure—in the case of such testimony

as is required by the ordinary law of Evidence to be given

infra-judicially.” 5 Wigmore, Evidence, § 1397, p. 131 (3d ed.

1940).

“Note, Confrontation and the Hearsay Rule, 75 Yale LJ.

1435, 1487 (1966).

1t See Rule 508(b), A.L.I. Model Code of Evidence, p. 249

(1942), which provides that evidence of a hearsay declaration

is deemed admissible if the judge determines that “the party

and the declarant were participants in a plan to commit a crime

or civil wrong and the hearsay declaration was relevant to the

plan or its subject-matter and was made while the plan was

in existence and before its execution was complete * * *.” The

comments to this provision suggest that all declarations made

during the pendency of a conspiracy are “likely to be true, and

are usually made with a realization that they are against the

declarant’s interest” (Comment, p. 251). Also statements of

contained in the’ Uniform Rules of Evidence, Ride

63(9) (b) (1953) contained in 9A Uniform Laws Ani

(1965), p. 636. While neither of these Proposals has

met with wide acceptance in the state

recommendations for changes are being presented on

a variety of fronts. See e.g., S. Rep. No. 91-617, 91

Cong., Ist Sess. pp. 113-115, discussed swpra pp. 14-15;

see also, Preliminary Draft of Proposed: Rules of

Evidence for the United States District Courts and

Magistrates (1969) 153-156.

In these circumstances, it would do disservice to the

purposes of a vital federalism to solidify any detailed

rules in this area into constitutional doctrine obligatory

upon the states, and thereby frustrate innovative efforts

“to enhance the search for truth in the criminal trial,”

Williams v. Florida, 399 U.S. 78, 82; that truth, after

all, is the ultimate goal of experimentation and change

in criminal rules of evidence. See People v. Spriggs,

36 Cal. Rptr. 841, 845, 389 P. 2d 377, 381 (Traynor, J.).”

The court in Williams rejected, with similar justifica-

Footnote continued from p. 25.

co-conspirator after his arrest would be admissible if the execu-

tion of the plan had not yet terminated. See /Uustration 2, p.

254.

8 See, Note, Preserving The Right To Confrontation—A New

Approach To Hearsay Evidence in Criminal Trials, 113 U. of

Pa. L. Rev. 741, 742 n. 9 (1965); Note B, Procedural Prob-

lems in Conspiracy, contained in Working Papers of the Na-

tional Commission on Reform of Federal Criminal Laws, p. 400

(1970) ; ; see also, Handbook of the National Conference of Com-

missioners on Uniform State Laws (1969), table opposite p. 192.

It is not inappropriate in this context to recall the words

of Mr. Justice Brandeis that “[i]t is one of the happy inci-

dents of the federal system that a single courageous State

may, if its citizens choose, serve as a laboratory; * * *.” Vew

State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311 (dissenting

opinion).

27

tion, any notion that a requirement that a jury have

twelve members “has been immutably codified into our

Constitution” (399 U.S. at 90); in the absence of any

substantial historic foundation for such a rule the

Court deemed the relevant inquiry to be “the function

that the particular feature performs” and concluded

that it was not “an indispensable component of the

Sixth Amendment.” 399 U.S. at 99-100. Similarly, we

the Confrontation Clause should not be read

as making the traditional rules of evidence ‘‘indispen-

sable.component[s]’’. To elevate a “rule’’ to a constitu-

tional mandate is to assume, at the least, the existence

of a manageable body of readily identifiable “law”

which the “rule” represents. This is at best a fiction

in this area. We suggest that Mr. Justice Holmes’

warning in Guy v. Donald, 203 U.S. 399, 406, is appli-

eable here: “As long as the matter to be considered is

debated in artificial terms there is danger of being

led by a technical definition to apply a certain name,

and then to deduce consequences which have no re-

lation to the grounds of which the name was applied.”’

9. Another consideration must be taken into ac-

count. It is well known that habeas corpus litigation

has increased enormously over the past several years.”

Undeniably, volume of litigation alone should not

be the decisive determinant of whether habeas corpus

relief should be granted or not. Federal courts on

*In 1968, over 6300 petitions for habeas corpus were filed

in the federal courts by state prisoners, an increase of 286

percent in five years. See Annual Report, Director of the Admin-

istrative Office of the United States Courts, 130 (1968) ; see also

Note, Developments in the Law—Federal Habeas Corpus, 83

Harv. L. Rev. 1038, 1041 (1970).

occasion must take an independent look at the:

of state resolution of serious constitutional . claims

E.g., Fay v.'Noia, 372 U.S. 391; Townsend y. Sain,

8372 U.S. 293. At the same time, however, difficult

problems in administration have arisen by virtue of

the sheer bulk of such litigation. To insure that the

writ provides “a prompt and efficacious remedy for

whatever society deems to be intolerable restraints”

(Fay v. Noia, supra, 372 U.S. at 401-402 ; * Harris y,

Nelson, 394 U.S. 286, 291), it should not be permitted

“to founder in a ‘procedural morass.’ ” Harris v. Nel-

son, supra, 394 U.S. at 291-292, quoting from Price

v. Johnston, 334 U.S. 266, 269. But such a morass

may well result if every litigant who is dissatisfied

with state resolution of evidentiary matters may auto-

matically term the alleged violation a “Sixth Amend-

ment Confrontation issue” and obtain collateral re-

lief in the federal courts.” Thus both policy and un-

avoidable practical considerations counsel restraint

in federalizing the rules of evidence.

B. SUGGESTED LINES OF ANALYSIS

The foregoing discussion has sought to pinpoint the

dangers we perceive in the adoption of any doctrine

which woodenly requires a uniform code of hearsay

21“ Habeas corpus cuts through all forms and goes to the

very tissue of the structure. It comes in from the outside not

in subordination to the proceedings, and although every form

may have been preserved opens the inquiry whether they have

been more than an empty shell.” Frank v. Mangum, 287 US.

309, 346 (Holmes J. dissenting).

22 Professor Wigmore devotes over 800 pages of his treatise

explaining and discussing exceptions to the hearsay rule, Se

5 & 6 Wigmore, Evidence (3d ed. 1940).

evidence to be applicable without variation in every

State because the Confrontation Clause applies to the

States. The thrust of our argument is to suggest that

to follow that line of analysis may well undermine

sound concepts of federalism and the proper admin-

istration of criminal justice in the States. This, of

course, is not to say that a state may operate on a

dean slate and adopt any rules of evidence it sees

fit, Undeniably, there are and must be constitutional

limits dictated by the core purpose of the Confronta-

tion Clause to afford an accused a fair trial. We now

consider how the Confrontation Ciause may be ap-

plied so as to preserve these important values.

There are variant ways of articulating the princi-

ples by which reasonable State flexibility can be as-

sured consistent with defendants’ fundamental fed-

eral constitutional rights as this Court has developed

them in recent years. One approach—and we com-

mend it to the Court—is to emphasize the role of the

supervisory power in formulating evidentiary prin-

ciples for the federal courts, reserving the Confron-

tation Clause as a statement of fundamental princi-

ples which both the State courts and federal courts

(the latter under this Court’s special supervision)

may apply in ways which meet its basic purpose.

Compare Ker v. California, 374 U.S. 23, 31-33. Espe-

dally in light of its sparse language,” the Clause need

not and should not be read as the foundation for an

unyielding code of evidence. It should rather be re-

*The Sixth Amendment states: “In all criminal prosecu-

tions, the accused shall enjoy the right * * * to be confronted

with the witnesses against him * * *.”

garded as a limited statement of basic constitutiong

principle that is susceptible of flexible application in

particular cases. Nothing in history (see Green; gy.

pra, 399 U.S. at 156-157) indicates that the “hearsay.

evidence rule, with all its subtleties, anomalies and

ramifications [should] be read into the Fourteenth

Amendment”’, Stein v. New York, 346 U.S. 156, 19,

or, for that matter, into the Sixth. On the contrary,

the subtleties of these rules point in an opposite di-

rection—to fluidity and elasticity of application. “The

exceptions are not * * * static, but may be enlarged

from time to time if there is no material departure

from the reason of the general rule’’ Snyder v. Mas-

sachusetts, 291 U.S. 97, 107 (Cardozo J.). Nor is there

any particular function that the present formulation

of conspiracy rules of admissibility performs which

inexorably requires that it be made an ‘‘indispensable

eomponent” of the Sixth Amendment made applicableto

the states through the Due Process Clause of the

Fourteenth. Compare Williams v. Florida, supra, 399

U.S. at 99-100.

A somewhat different approach has been suggested

in Henkin, “Selective Incorporation’’ in the Four-

teenth Amendment, 73 Yale L.J. 74 (1963). Professor

Henkin suggests that the concept of “ordered liberty”

be emphasized, not to deny the applicability of the

procedural protections of the Bill of Rights to state

prosecutions but rather as a reminder that this can be

done ‘‘without necessarily saddling all the states with

what may be peripheral survivals or accretions in the

Bill of Rights.’’ Id. at 83; see also id. at 86-87. Thus,

while giving reasonably concrete content to the’ Due

31

Process Clause of the Fourteenth Amendment—some-

thing that is desirable, inter alia, to avoid the exces-

sive federalization of state criminal law that might

arise from overzealous use of an amorphous ‘‘fair-

ness” concept under the due process rubric—the ori-

gin of the constitutional limitations upon the States

are emphasized as a reminder that it is not necessary

to make those limitations identical in all respects with

the limitations expressly stated in the Bill of Rights.

In other words, applying the Sixth Amendment to

the States need not bind them to all of the detailed

subsidiary principles of ‘‘eonfrontation”’ in the gen-

eral sense that may develop—or have survived—in the

federal cases. Mr. Justice Fortas acutely observed ina

related context, that the Fourteenth Amendment did

not require the Court “slavishly to follow not only the

Sixth Amendment but all of its bag and baggage, how-

ever securely or insecurely affixed they may be by law

and precedent to federal proceedings. * * * Our Con-

stitution sets up a federal union, not a monolith.”

Bloom v. Illinois, 391 U.S. 194, 213-214 (concurring

opinion).

Whatever the line of analysis, State courts should

be given considerably greater flexibility than the low-

er federal courts in determining whether or not, in a

particular situation, the elements of reliability and

necessity that are rational substitutes for strict con-

frontation are present in sufficient degree. It is one

thing to establish that the Constitution requires these

factors to be present, but quite another to attempt to

establish precise federal measures by which they must

‘be weighed: The Fourteenth Amendment, applying the

Confrontation Clause of the Sixth ‘to the States, re

quires the states to be cautious™ in developing snb-

stitutes for actual confrontation. This does not mean,

however, that this Court—or a lower federal court—

should police state practice in the adoption of rules

of hearsay evidence. The policies which we have al-

ready discussed militate against any excessive federal

intrusion.

C. RESOLUTION OF THE ADMISSIBILITY QUESTION IN THIS STATE CASE

As Amicus our principal interest has been to state

our general views with regard to the nature and ap-

plication of the co-conspirator exception and the con-

stitutional approach we believe to be appropriate in

this State case. Under these views, it is evident that

the generally phrased Georgia statute involved (see

supra, n. 2) ean have numerous constitutional appli-

cations; it is also undeniable that it would be suscepti-

ble of application in circumstances where the Con-

frontation Clause of the Constitution would not be

satisfied. We will now suggest some of the considera-

tions—consistent with our foregoing discussion—that

are appropriate to a constitutional evaluation of the

precise issue presented.

In justifying the admission of Williams’ state-

ment, some 15 months after the crime, implicating

* For example, we would have grave difficulty with a statute

or judicially created rule of evidence which sought to authoriz

the admission into evidence in the trial of one conspirator of 8

confession made to the police by another after the conspiracy

had terminated. See ¢.g., Bruton v. United States, 391 U.S. 123.

33

Evans, the Supreme Court of Georgia stated (1) that

“the conspiracy continued” since the conspirators

were still concealing their identity, keeping secret the

fact that they had killed the deceased, if they had, and

denying their guilt”, 222 Ga. at 402, 150 S.E. 2d at

248, and that (2) Williams’ declaration was accord-

ingly admissible as a co-conspirator’s statement made

“during the pendency of the criminal project,’’ bid.

We do not believe that the Constitution precludes the

initial proposition, which is asserted in a substantial

body of state law (see. Krulewitch v. United States,

936 U.S. 440, 444), that a subeonspiracy to conceal

the main conspiracy may be implied and continue

after the main conspiracy’s functions have been car-

ried out. Although the federal law of evidence is

otherwise, see pp. 21-22, supra, we believe there is no

such constitutional doctrine obligatory on the states, and

we perceive no basis for so limiting State develop-

ment of this aspect of the substantive law of con-

spiracy. But accepting the State’s determination that

the conspiracy continued does not end the inquiry.

There is a further question, not discussed by the

Georgia Supreme Court, of the relationship the par-

This view rests upon the proposition that such a procedure un-

dercuts the very essence of confrontation protected by the Sixth

Amendment. It is illuminating in this regard to note that, in

holding Bruton retroactive, this Court characterized the Bruton

defect as going “to the basis of fair hearing and trial because

the procedural apparatus never assured the [petitioner] a fair

determination of his guilt or innocence.” Roberts v. Russell,

392 U.S. 293, 294, quoting from Linkletter v. Walker, 381 US.

618, 639 note 20.

34

ticular declaration bore to the conspiracy even if

continued. Although we would not foreclose a State

effort to explain the relationship, we find oursélyés

unable to see how there was one. As this Court held

in Fiswick v. United States, 329 U.S. 211, 217, a “‘eon-

fession or admission by one co-conspirator after he

had been apprehended is not in any sense a further-

ance of the criminal enterprise. It is rather a’ frus-

tration of it.’’ Here too, the statement tended to frus-

trate rather than to serve the purposes of any eon-

spiracy to conceal. In these circumstances, we doubt

that the State courts could point to any element of

reliability arising out of the conspiracy sufficient to

constitute a rational substitute for the lack of con-

frontation.

It might be, however, that the State courts—given

the latitude that we believe the Confrontation Clause

should allow in such evidentiary matters—could

articulate a sufficient basis for considering Williams’

statement reliable on grounds other than the co-

conspirator doctrine. Few would dispute that the

declaration had relevance in the criminal case. The

remark was apparently spontaneous and against Wil-

liams’ own interest.” Since the State courts did not

**An analogy may be drawn to the “penal interest” excep-

tion which is usually bottomed upon the proposition that where

one exculpates another by admitting his own guilt, there is

sufficient trustworthiness for allowing that statement in for its

exculpatory impact. See e.g., 5 Wigmore, Evidence (3d ed.

1940) §§ 1476-1477. While this Court long ago held that the

“penal interest” doctrine was not a proper exception to the

federal hearsay rule, Donnelly v. United States, 228 U.S. 243,

272-277 (Holmes, J., dissenting), that case was not decided

35

snsider such alternative grounds for admission, we

think they should be given an opportunity to do so.” In

his regard, we note that even if this Court were to

hold the declaration admissible, thus reversing the

court of appeals’ judgment, the court of appeals on

remand would presumably consider the substantial

unrelated contentions raised by Evans in his habeas

corpus petition (see 400 F.2d at 827 n. 3) and would

likely enter a judgment looking toward further state

proceedings in the case.”

CONCLUSION

For the foregoing reasons, we believe that the court

of appeals was correct in its conclusion that the co-

conspirator doctrine was insufficient constitutionai

justification for the admission of the utterance in

question. However, we believe that the Georgia courts

upon constitutional grounds. Moreover, the Donnelly ruling has

been the subject of much criticism. See ¢.g., Jefferson, Declara-

tions Against Interest; An Exception to The Hearsay Rule, 58

Harv. L.Rev. 1, 39-483 (1944): see also People v. Spriggs, 36

Cal. Rptr. 841, 842-846, 389 P. 2d 377, 378-382 (Traynor, J.).

*We express no views on the “harmless error” argument

in this case, which, we note, was rejected by the court below

(App. 30, n. 4), since it involves no unsettled legal proposition

(see ¢.g., Chapman v. California, 386 U.S. 18; Harrington v.

California, 395 U.S. 250) but merely the application of established

rulesto a particular set of facts.

* In the companion case involving Williams’ separate trial,

the court of appeals held, inter alia, that the State court should

reassess the death penalty in accordance with Witherspoon v.

IMinois, 391 U.S. 510. See 400 F. 2d 797, 800, 805. In the pres-

ent case, the court of appeals did not reach Evans’ Witherspoon

and other constitutional arguments because it disposed of the

case on the confrontation ground. It should be pointed out that

counsel for the state conceded the applicability of Witherspoon

st the previous oral argument of this case.

36 a

ee

Be

should be given the opportunity to consider alterna

tive grounds for admission, and to that end urgise

versal of the judgment below. 291, gis

Respectfully submitted. Blo.

Erwin N, GRIswop,, ©,

Solicitor General,

Wu. Wison,

Assistant Attorney General,

JEROME M. Fert,

Assistant to the Solicitor General.

BEATRICE ROSENBERG,

Roarr A. Pavey,

Attorneys,

SEPTEMBER 1970.

U.S. GOVERNMENT PRINTING OFFICE: te7e