Following a jury trial in Federal District Court, respondent was
convicted of conspiring to manufacture and distribute
methamphetamine, and related offenses. Part of the evidence
consisted of taped conversations between various participants in
the conspiracy. Respondent sought to exclude the recorded
statements of the unindicted coconspirators, including one Lazaro,
on the ground that they did not satisfy the requirements of Federal
Rule of Evidence 801(d)(2)(E), which provides that a statement by a
coconspirator of a party made "during the course and in furtherance
of the conspiracy" is not hearsay when offered against the party.
Respondent also objected to the admission of the statements on
Confrontation Clause grounds, contending that they were
inadmissible absent a showing that the declarants were unavailable.
The District Court held that the statements satisfied Rule
801(d)(2)(E), and admitted the statements, conditioned on the
prosecution's commitment to produce Lazaro. The Government
subpoenaed Lazaro, but he failed to appear, and defense counsel
made no effort to secure his presence. The court then overruled
respondent's renewed Confrontation Clause objections, holding that
Lazaro's statements were admissible because they satisfied the
coconspirator rule. The Court of Appeals reversed, holding, in
reliance on Ohio v. Roberts, 448 U. S.
, that, although Rule 801(d)(2)(E) had been satisfied,
the Confrontation Clause established an independent requirement
that the Government, as a condition to admission of any out-of
court statements, must show the declarant's unavailability.
The Confrontation Clause does not require a
showing of unavailability as a condition to admission of the out-of
court statements of a nontestifying coconspirator. Pp. 475 U. S.
(a) Ohio v. Roberts, supra,
which simply reaffirmed a
longstanding rule that applies unavailability analysis to the prior
testimony of a witness not produced at trial, cannot fairly be read
to stand for the proposition that no out-of court statement can be
introduced by the prosecution without a showing that the declarant
is unavailable. Pp. 475 U. S.
(b) The principles whereby prior testimony may be admitted as a
substitute for live testimony only if the declarant is unavailable
do not apply to coconspirator statements. Co-conspirator statements
derive much of their value from the fact that they are made in a
context very different
Page 475 U. S. 388
from trial, and therefore are usually irreplaceable as
substantive evidence. Their admission into evidence thus actually
furthers the Confrontation Clause's mission of advancing the
"truth-determining process." Pp. 475 U. S.
(c) Little benefit would be accomplished by an unavailability
rule. Under such a rule, if the coconspirator either is unavailable
or is available and produced by the prosecution, his prior
statements could be introduced. Nor is an unavailability rule
likely to produce much testimony that adds anything to the
"truth-determining process" over and above what would be produced
without such a rule, because the relative interests of the parties
will have changed drastically. In contrast to the slight benefits,
the burden imposed by an unavailability rule is significant. A rule
that required each invocation of Rule 801(d)(2)(E) to be
accompanied by a decision on the declarant's availability would
impose a substantial burden on the entire criminal justice system.
Moreover, a significant practical burden would be imposed on the
prosecution, since, in every case involving coconspirators'
statements, the prosecution would be required to identify each
declarant, locate them, and then attempt to ensure their
availability for trial. Pp. 475 U. S.
748 F.2d 812, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN,
J., joined, post,
p. 475 U. S.
JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether the Confrontation Clause
requires the Government to show that a nontestifying coconspirator
is unavailable to testify, as a condition for admission of that
coconspirator's out-of court statements.
Following a jury trial in the Eastern District of Pennsylvania,
respondent Joseph Inadi was convicted of conspiring to
Page 475 U. S. 389
manufacture and distribute methamphetamine, and related
offenses. He was sentenced to three years' imprisonment, to be
followed by a 7-year parole term. The evidence at trial showed
that, in September, 1979, respondent was approached by unindicted
coconspirator Michael McKeon, who was seeking a distribution outlet
for methamphetamine. Respondent's role was to supply cash and
chemicals for the manufacture of methamphetamine and to be
responsible for its distribution. McKeon and another unindicted
coconspirator, William Levan, were to manufacture the
In the course of manufacturing and selling methamphetamine,
McKeon, Levan, and respondent met with another unindicted
coconspirator, John Lazaro, at an empty house in Cape May, New
Jersey. There they extracted additional methamphetamine from the
liquid residue of previous batches. In the early morning hours of
May 23, 1980, two Cape May police officers, pursuant to a warrant,
secretly entered the house and removed a tray covered with drying
methamphetamine. With the permission of the issuing Magistrate, the
officers delayed returning an inventory, leaving the participants
to speculate over what had happened to the missing tray.
On May 25, 1980, two Drug Enforcement Administration agents in
Philadelphia monitored a meeting between respondent and Lazaro
alongside Lazaro's car. At one point, one of the agents saw
respondent lean into the car. After Lazaro drove off, the agents
stopped his car. They searched the car, Lazaro, and a passenger,
Marianne Lazaro, but they found nothing and let the Lazaros leave.
Marianne Lazaro later recounted that, during the search, she threw
away a clear plastic bag containing white powder that her husband
had handed to her after the meeting with respondent. Eight hours
after the search, one of the agents returned to the scene of the
crime and found a clear plastic bag containing a small quantity of
Page 475 U. S. 390
From May 23, to May 27, 1980, the Cape May County Prosecutor's
Office lawfully intercepted and recorded five telephone
conversations between various participants in the conspiracy. These
taped conversations were played for the jury at trial. The
conversations dealt with various aspects of the conspiracy,
including planned meetings and speculation about who had taken the
missing tray from the house and who had set Lazaro up for the May
26 stop and search. Respondent sought to exclude the recorded
statements of Lazaro and the other unindicted coconspirators on the
ground that the statements did not satisfy the requirements of
Federal Rule of Evidence 801(d)(2)(E), governing admission of
coconspirator declarations. [Footnote 1
] After listening to the tapes, the trial court
admitted the statements, finding that they were made by
conspirators during the course of and in furtherance of the
conspiracy, and thereby satisfied Rule 801(d)(2)(E).
Respondent also objected to admission of the statements on
Confrontation Clause grounds, contending that the statements were
inadmissible absent a showing that the declarants were unavailable.
The court suggested that the prosecutor bring Lazaro to court in
order to demonstrate unavailability. The court also asked defense
counsel whether she wanted the prosecution to call Lazaro as a
witness, and defense counsel stated that she would discuss the
matter with her client. The coconspirators' statements were
admitted, conditioned on the prosecution's commitment to produce
Lazaro. The Government subpoenaed Lazaro, but he failed to appear,
claiming car trouble. The record does not indicate that the defense
made any effort on its own part to secure Lazaro's presence in
Respondent renewed his Confrontation Clause objections, arguing
that the Government had not met its burden of showing
Page 475 U. S. 391
that Lazaro was unavailable to testify. The trial court
overruled the objection, ruling that Lazaro's statements were
admissible because they satisfied the coconspirator rule. [Footnote 2
The Court of Appeals for the Third Circuit reversed. 748 F.2d
812 (1984). The court agreed that the Government had satisfied Rule
801(d)(2)(E), but decided that the Confrontation Clause established
an independent requirement that the Government, as a condition to
admission of any out-of court statements, must show the
unavailability of the declarant. 748 F.2d at 818. The court derived
this "unavailability rule" from Ohio v. Roberts,
448 U. S. 56
(1980). The Court of Appeals rejected the Government's contention
did not require a showing of unavailability
as to a nontestifying coconspirator, finding that Roberts
created a "clear constitutional rule" applicable to out-of-court
statements generally. 748 F.2d at 818. The court found no reason to
create a special exception for coconspirator statements, and
therefore ruled Lazaro's statements inadmissible. Id.
We granted certiorari, 471 U.S. 1124 (1986), to resolve the
question whether the Confrontation Clause requires a showing of
unavailability as a condition to admission of the out-of-court
statements of a nontestifying coconspirator, when those statements
otherwise satisfy the requirements of Federal Rule of Evidence
801(d)(2)(E). [Footnote 3
Page 475 U. S. 392
The Court of Appeals derived its rule that the Government must
demonstrate unavailability from our decision in Roberts.
It quoted Roberts
as holding that,
"in conformance with the Framers' preference for face-to-face
accusation, the Sixth Amendment establishes a rule of necessity. In
the usual case, . . . the prosecution must either produce, or
demonstrate the unavailability of, the declarant whose statement it
wishes to use against the defendant."
448 U.S. at 447 U. S. 65
The Court of Appeals viewed this language as setting forth a "clear
constitutional rule" applicable before any hearsay can be admitted.
748 F.2d at 818. Under this interpretation of Roberts,
out-of court statement would be admissible without a showing of
however, does not stand for such a wholesale
revision of the law of evidence, nor does it support such a broad
interpretation of the Confrontation Clause. Roberts
disclaimed any intention of proposing a general answer to the many
difficult questions arising out of the relationship between the
Confrontation Clause and hearsay.
"The Court has not sought to "map out a theory of the
Confrontation Clause that would determine the validity of all . . .
448 U.S. at 448 U. S. 64
quoting California v. Green, 399 U.
, 399 U. S. 162
(1970). The Court in Roberts
remained "[c]onvinced that
no rule will perfectly resolve all possible problems,'" and
rejected the "invitation to overrule a near-century of
jurisprudence" in order to create such a rule. 448 U.S. at
448 U. S. 68, n.
9, quoting Natali, Green, Dutton, and Chambers: Three Cases in
Search of a Theory, 7 Rutgers-Camden L.J. 43, 73 (1975). In
addition, the Court specifically noted that a "demonstration of
unavailability . . . is not always required." 448 U.S. at
448 U. S. 65, n.
7. In light of these limiting statements, Roberts should
not be read as an abstract answer to questions not presented in
that case, but
Page 475 U. S. 393
rather as a resolution of the issue the Court said it was
"the constitutional propriety of the introduction in evidence of
the preliminary hearing testimony of a witness not produced at the
defendant's subsequent state criminal trial."
at 448 U. S. 58
The Confrontation Clause analysis in Roberts
those factors that come into play when the prosecution seeks to
admit testimony from a prior judicial proceeding in place of live
testimony at trial. See
Fed.Rule Evid. 804(b)(1). In
particular, the Roberts
Court examined the requirement,
found in a long line of Confrontation Clause cases involving prior
testimony, that before such statements can be admitted, the
government must demonstrate that the declarant is unavailable.
See Mancusi v. Stubbs, 408 U. S. 204
(1972); California v. Green, supra; Barber v. Page,
390 U. S. 719
(1968); Berger v. California, 393 U.
] All of the cases cited in Roberts
"unavailability rule" concern prior testimony. In particular, the
Court focused on two cases, Barber
that directly "explored the issue of constitutional
unavailability." 448 U.S. at 448 U. S. 76
Both cases specifically limited the unavailability requirement
Page 475 U. S. 394
prior testimony. Barber, supra,
at 390 U. S. 722
at 408 U. S.
must be read consistently with the question it
answered, the authority it cited, and its own facts. All of these
indicate that Roberts
simply reaffirmed a longstanding
rule, foreshadowed in Pointer v. Texas, 380 U.
(1966), established in Barber,
refined in a line of cases up through Roberts,
applies unavailability analysis to prior testimony. [Footnote 6
cannot fairly be
read to stand for the radical proposition that no out-of-court
statement can be introduced by the government without a showing
that the declarant is unavailable.
There are good reasons why the unavailability rule, developed in
cases involving former testimony, is not applicable to
coconspirators' out-of court statements. Unlike some other
exceptions to the hearsay rules, or the exemption from the hearsay
definition involved in this case, former testimony often is only a
weaker substitute for live testimony. It seldom has independent
evidentiary significance of its own, but is intended to replace
live testimony. If the declarant is available and the same
information can be presented to the trier of fact in the form of
live testimony, with full cross-examination and the opportunity to
view the demeanor of the declarant, there is little justification
for relying on the weaker version. When two versions of the same
evidence are available, longstanding principles of the law of
hearsay, applicable as well to Confrontation Clause analysis, favor
the better evidence. See
Graham, The Right of
Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses
Another One, 8 Crim.L.Bull. 99, 143 (1972). But if the declarant is
unavailable, no "better" version of the evidence exists, and
Page 475 U. S. 395
the former testimony may be admitted as a substitute for live
testimony on the same point.
Those same principles do not apply to coconspirator statements.
Because they are made while the conspiracy is in progress, such
statements provide evidence of the conspiracy's context that cannot
be replicated, even if the declarant testifies to the same matters
in court. When the Government -- as here -- offers the statement of
one drug dealer to another in furtherance of an illegal conspiracy,
the statement often will derive its significance from the
circumstances in which it was made. Conspirators are likely to
speak differently when talking to each other in furtherance of
their illegal aims than when testifying on the witness stand. Even
when the declarant takes the stand, his in court testimony seldom
will reproduce a significant portion of the evidentiary value of
his statements during the course of the conspiracy.
In addition, the relative positions of the parties will have
changed substantially between the time of the statements and the
trial. The declarant and the defendant will have changed from
partners in an illegal conspiracy to suspects or defendants in a
criminal trial, each with information potentially damaging to the
other. The declarant himself may be facing indictment or trial, in
which case he has little incentive to aid the prosecution, and yet
will be equally wary of coming to the aid of his former partners in
crime. In that situation, it is extremely unlikely that in court
testimony will recapture the evidentiary significance of statements
made when the conspiracy was operating in full force.
These points distinguish coconspirators' statements from the
statements involved in Roberts
and our other prior
testimony cases. Those cases rested in part on the strong
similarities between the prior judicial proceedings and the trial.
No such strong similarities exist between coconspirator statements
and live testimony at trial. To the contrary, coconspirator
statements derive much of their value from the
Page 475 U. S. 396
fact that they are made in a context very different from trial,
and therefore are usually irreplaceable as substantive evidence.
Under these circumstances, "only clear folly would dictate an
across-the-board policy of doing without" such statements. Advisory
Committee's Introductory Note on the Hearsay Problem, quoted in
Westen, The Future of Confrontation, 77 Mich.L.Rev. 1185, 1193, n.
35 (1979). The admission of coconspirators' declarations into
evidence thus actually furthers the "Confrontation Clause's very
mission," which is to "advance the accuracy of the
truth-determining process in criminal trials.'" Tennessee v.
Street, 471 U. S. 409,
471 U. S. 415
(1985), quoting Dutton v. Evans, 400 U. S.
74, 89 (1970).
There appears to be little, if any, benefit to be accomplished
by the Court of Appeals' unavailability rule. First, if the
declarant either is unavailable or is available and produced by the
prosecution, the statements can be introduced anyway. Thus, the
unavailability rule cannot be defended as a constitutional "better
evidence" rule, because it does not actually serve to exclude
anything, unless the prosecution makes the mistake of not producing
an otherwise available witness. Cf.
Davenport, The Confrontation Clause and the
Co-Conspirator Exception in Criminal Prosecutions: A Functional
Analysis, 85 Harv.L.Rev. 1378, 1403 (1972). In this case, for
example, out-of-court statements by Michael McKeon and Marianne
Lazaro, who testified under immunity, could be introduced based on
their testimony in court. The statements of William Levan were
admissible because he properly asserted his Fifth Amendment
privilege, and thereby was unavailable.
Second, an unavailability rule is not likely to produce much
testimony that adds anything to the "truth-determining process"
over and above what would be produced without such a rule.
400 U. S. 89
. Some of the available declarants already
will have been subpoenaed by the prosecution or
Page 475 U. S. 397
the defense, regardless of any Confrontation Clause
requirements. Presumably only those declarants that neither side
believes will be particularly helpful will not have been subpoenaed
as witnesses. There is much to indicate that Lazaro was in that
position in this case. Neither the Government nor the defense
originally subpoenaed Lazaro as a witness. [Footnote 7
] When he subsequently failed to show,
alleging car trouble, respondent did nothing to secure his
testimony. If respondent independently wanted to secure Lazaro's
testimony, he had several options available, particularly under
Federal Rule of Evidence 806, [Footnote 8
] which provides that, if the party against whom
a coconspirator statement has been admitted calls the declarant as
a witness, "the party is entitled to examine him on the statement
as if under cross-examination." Rule 806 would not require
respondent to make the showing necessary to have Lazaro declared a
hostile witness, although presumably that option also was available
to him. The Compulsory Process Clause would have aided respondent
in obtaining the testimony of any of these declarants. [Footnote 9
] If the
Page 475 U. S. 398
Government has no desire to call a coconspirator declarant as a
witness, and if the defense has not chosen to subpoena such a
declarant, either as a witness favorable to the defense, or as a
hostile witness, or for cross-examination under Federal Rule of
Evidence 806, [Footnote 10
then it is difficult to see what, if anything, is gained by a rule
that requires the prosecution to make that declarant "available."
While the benefits seem slight, the burden imposed by the Court
of Appeals' unavailability rule is significant. A constitutional
rule requiring a determination of availability every time the
prosecution seeks to introduce a coconspirator's declaration
automatically adds another avenue of appellate review in these
complex cases. The coconspirator rule apparently is the most
frequently used exception to the hearsay rule. See
Louisell & C. Mueller,
Page 475 U. S. 399
Federal Evidence § 427, p. 331 (1980). [Footnote 12
] A rule that required each
invocation of Rule 801(d)(2)(E) to be accompanied by a decision on
the declarant's availability would impose a substantial burden on
the entire criminal justice system.
Moreover, an unavailability rule places a significant practical
burden on the prosecution. In every case involving coconspirator
statements, the prosecution would be required to identify with
specificity each declarant, locate those declarants, and then
endeavor to ensure their continuing availability for trial. Where
declarants are incarcerated, there is the burden on prison
officials and marshals of transporting them to and from the
courthouse, as well as the increased risk of escape. For
unincarcerated declarants, the unavailability rule would require
that, during the sometimes lengthy period before trial, the
Government must endeavor to be aware of the whereabouts of the
declarant or run the risk of a court determination that its efforts
to produce the declarant did not satisfy the test of "good faith."
See Ohio v. Roberts,
448 U.S. at 448 U. S. 74
at 448 U. S. 77
(BRENNAN, J., dissenting); see also United States v.
737 F.2d 793, 802 (CA9 1984). [Footnote 13
An unavailability rule would impose all of these burdens even if
neither the prosecution nor the defense wished to examine the
declarant at trial. Any marginal protection to the defendant by
forcing the government to call as witnesses those coconspirator
declarants who are available, willing to testify, hostile to the
defense, and yet not already subpoenaed by the prosecution, when
the defendant himself can call and cross-examine such declarants,
cannot support an unavailability
Page 475 U. S. 400
rule. We hold today that the Confrontation Clause does not
embody such a rule.
To some degree, respondent's arguments in this case require us
to revisit this Court's resolution of this question in Dutton
v. Evans, 400 U. S. 74
(1970). Although Dutton involved a state coconspirator rule,
instead of Federal Rule of Evidence 801, the state rule actually
admitted a broader category of coconspirator statements.
Nevertheless, a plurality of this Court found that the rule did not
violate the Confrontation Clause, and a fifth Member of the Court,
Justice Harlan, reasoned that the Confrontation Clause was not
applicable at all. In Dutton,
the plurality stated that
"we do not question the validity of the coconspirator exception
applied in the federal courts." Id.
at 400 U. S. 80
Upon closer examination today, we continue to affirm the validity
of the use of coconspirator statements, and we decline to require a
showing of the declarant's unavailability as a prerequisite to
We accordingly reverse the judgment of the Court of Appeals for
the Third Circuit.
It is so ordered.
Federal Rule of Evidence 801(d)(2)(E) provides that a statement
is not hearsay if it is offered against a party and is "a statement
by a coconspirator of a party during the course and in furtherance
of the conspiracy."
The trial court also noted that two of the four coconspirator
declarants (Mrs. Lazaro and McKeon) had testified, and that a third
(Levan) was unavailable because he had asserted his Fifth Amendment
privilege outside the presence of the jury.
The reliability of the out-of court statements is not at issue
in this case. The Court of Appeals determined that, whether or not
the statements are reliable, their admission violated the Sixth
Amendment because the Government did not show that the declarant
was unavailable to testify. 748 F.2d at 818-819. The sole issue
before the Court is whether that decision is correct.
involved a state criminal trial on charges of
forging a check in the name of Bernard Isaacs and of possession of
stolen credit cards belonging to Isaacs and his wife. At the
preliminary hearing, defense counsel called the Isaacs' daughter as
a witness. She testified that she had permitted the defendant to
use the Isaacs' apartment for several days, but she refused to
admit that she had given the defendant the checks or credit cards.
Between the preliminary hearing and the trial, through no fault of
the State, she disappeared. At trial, the defendant testified that
the Isaacs' daughter had given him the checks and credit cards to
use. The State sought to offer the transcript of her preliminary
hearing testimony in rebuttal. 448 U.S. at 448 U. S.
Federal Rule of Evidence 804 also imposes an unavailability
requirement before allowing the admission of prior testimony. The
Rule 804 requirement is part of the law of evidence regarding
hearsay. While it "may readily be conceded that hearsay rules and
the Confrontation Clause are generally designed to protect similar
values," California v. Green,
399 U.S. at 399 U. S. 155
the overlap is not complete.
In federal court, the unavailability rule for former trial
testimony was established long before Pointer v. Texas,
380 U. S. 400
(1965), in Mattox v. United States, 156 U.
In fact, the actions of the parties in this case demonstrate
what is no doubt a frequent occurrence in conspiracy cases --
neither side wants a coconspirator as a witness. As explained
at 475 U. S. 395
the interests of the prosecution and the coconspirator seldom win
run together. Nor do the coconspirator's interests coincide with
his former partners, since each is in a position that is
potentially harmful to the others.
Rule 806 states:
"When a hearsay statement, or a statement defined in Rule
801(d)(2), (C), (D), or (E), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may
be supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. . . . If the
party against whom a hearsay statement has been admitted calls the
declarant as a witness, the party is entitled to examine him on the
statement as if under cross-examination."
U.S.Const., Amdt. 6:
"In all criminal prosecutions, the accused shall enjoy the right
. . . to have compulsory process for obtaining witnesses in his
favor. . . ."
Westen, Confrontation and Compulsory Process: A
Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567,
It is not clear from the Court of Appeals' opinion whether, in
order to meet its burden of showing unavailability, the prosecution
would be required to call the declarant as a witness, or only to
ensure that the declarant is available for testimony if needed. The
unavailability rule suffers from many of the same flaws under
either interpretation, and in fact may be even less defensible
under an interpretation requiring the prosecution to call each
declarant as a witness.
In addition to the reasons mentioned in the text why an
unavailability rule would be of little value, many coconspirator
statements are not introduced to prove the truth of the matter
asserted, and thus do not come within the traditional definition of
hearsay, even without the special exemption of Federal Rule of
Evidence 801(d)(2)(E). Thus, some of the out-of-court statements in
this case presumably could be admitted without implicating the
Confrontation Clause. For example, in one of the recorded phone
conversations, Levan and Lazaro discuss the missing tray, with
Lazaro suggesting that "Mike" took it and speculating about who set
Lazaro up for the May 25 stop. 748 F.2d at 815. Certainly these
statements were not introduced in order to prove the truth of the
matters asserted, but as background for the conspiracy, or to
explain the significance of certain events. We explained just last
Term that admission of nonhearsay "raises no Confrontation Clause
concerns." Tennessee v. Street, 471 U.
, 414 (1985). Cross-examination regarding such
statements would contribute nothing to Confrontation Clause
Federal Rule of Evidence 801 characterizes out-of-court
statements by coconspirators as exemptions from, rather than
exceptions to, the hearsay rule. Whether such statements are termed
exemptions or exceptions, the same Confrontation Clause principles
The court in Ordonez
found a Confrontation Clause
violation because the Government, after introducing drug ledgers
containing entries made by unidentified coconspirators, did not
adequately demonstrate that it was totally unable to identify those
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
With respect to the case before us, the majority takes but a
small step. In Ohio v. Roberts, 448 U. S.
(1980), the Court held:
"[W]hen a hearsay declarant is not present for cross-examination
at trial, the Confrontation Clause normally requires a showing that
he is unavailable. Even then, his statement is admissible only if
it bears adequate 'indicia of reliability.'"
at 66 (quoting Dutton v. Evans,
400 U. S. 74
400 U. S. 89
(1970) (plurality opinion)). The majority now assures us that
"[t]he reliability of the out-of-court statements is not at issue
in this case." Ante
at 475 U. S. 391
n. 3. Respondent is thus free to return to the Court of Appeals and
argue that the
Page 475 U. S. 401
coconspirator declarations admitted against him lack the
"indicia of reliability" demanded by the Confrontation Clause.
With respect to its constitutional analysis, however, the
majority makes a giant leap. Even while conceding that the
"very mission'" of the Confrontation Clause is to "`advance
"the accuracy of the truth-determining process in criminal
trials,"'" ante at 475 U. S. 396
(citations omitted), the Court today holds that the Clause is not
offended when the prosecution fails to make even the slightest
effort to produce for cross-examination the authors of the
out-of-court statements with which it hopes to convict a defendant.
Because I cannot share the majority's implicit faith that the
camaraderie of a criminal conspiracy can substitute for in-court
cross-examination to guarantee the reliability of conspiratorial
statements, I can neither accept the majority's analysis nor stand
silent while the values embodied in the Sixth Amendment are so
cavalierly subordinated to prosecutorial efficiency.
In Ohio v. Roberts, supra,
after canvassing the many
previous cases that had examined the relationship between the
Page 475 U. S. 402
Confrontation Clause of the Sixth Amendment and the many
exceptions to the hearsay rule, the Court noted:
"The Confrontation Clause operates in two separate ways to
restrict the range of admissible hearsay. First, in conformance
with the Framers' preference for face-to-face accusation, the Sixth
Amendment establishes a rule of necessity. In the usual case
(including cases where prior cross-examination has occurred), the
prosecution must either produce, or demonstrate the unavailability
of, the declarant whose statement it wishes to use against the
defendant. . . ."
"The second aspect operates once a witness is shown to be
unavailable. Reflecting its underlying purpose to augment accuracy
in the factfinding process by ensuring the defendant an effective
means to test adverse evidence, the Clause countenances only
hearsay marked with such trustworthiness that 'there is no material
departure from the reason of the general rule.'"
at 65 (quoting Snyder v. Massachusetts,
291 U. S. 97
291 U. S. 107
This sweeping language was in no way limited to any particular
variety of out-of-court declarations, and the Third Circuit panel
that the Court reverses today was hardly alone in believing the
rule in Roberts
to be applicable to all such declarations.
See, e.g., United States v. Massa,
740 F.2d 629, 639 (CA8
1984); Haggins v. Warden,
715 F.2d 1050, 1055 (CA6 1983),
464 U.S. 1071 (1984); see also United
States v. Caputo,
758 F.2d 944, 950, n. 2 (CA3 1985)
(collecting cases). The majority, however, now tells us that
"simply reaffirmed a longstanding rule . . . that
applies unavailability analysis to prior testimony." Ante
at 475 U. S. 394
This effort to confine Roberts
misconstrues both the
meaning of that decision and the essential command of the
Contrary to the majority's suggestion, it is clear that the
Court consciously sought to lay down an
Page 475 U. S. 403
framework applicable to all out-of-court declarations introduced
by the prosecution for the truth they contain. JUSTICE BLACKMUN,
writing for the Court, introduced his affirmation of the
Confrontation Clause's twin requirements of unavailability and
reliability by noting:
"The Court has not sought to "map out a theory of the
Confrontation Clause that would determine the validity of all . . .
hearsay exceptions.'" California v.
Green, 399 U.S. [149,] 399 U. S. 162
. But a general approach to the problem is
448 U.S. at 448 U. S. 64
For its general principles, the Roberts
Court of course
turned to a number of cases involving former testimony, e.g.,
Mancusi v. Stubbs, 408 U. S. 204
(1972); Barber v. Page, 390 U. S. 719
(1968); Motes v. United States, 178 U.
(1900); California v. Green,
399 U. S. 149
(1970) (all cited at 448 U.S. at 448 U. S. 65
But it also relied on Dutton v. Evans, 400 U. S.
(1970) (cited at 448 U.S. at 448 U. S. 65
7, and 448 U. S. 66
where the hearsay had been admitted pursuant to the Georgia
coconspirator exception, and Douglas v. Alabama,
380 U. S. 415
(1965) (cited at 448 U.S. at 448 U. S. 63
which involved an accomplice's confession. Indeed, it was on
relied for the proposition
"the Confrontation Clause reflects a preference for face-to-face
confrontation at trial, and that a 'primary interest secured by
[the provision] is the right of cross-examination.'"
448 U.S. at 448 U. S. 63
(footnote omitted) (quoting Douglas, supra,
380 U. S.
The absence of any language in Roberts
analysis to prior testimony is not surprising. The Court simply
recognized that, whenever the prosecution seeks to convict a
defendant by relying on the truth asserted in out-of-court
declarations, confrontation and cross-examination of the declarant
in open court are the most trusted guarantors of the reliability
that is the primary concern of the Confrontation Clause. The need
for these guarantors is as critical in cases involving the
extrajudicial statements of coconspirators as it is in cases
involving the prior testimony of an absent declarant or the
confession of an accomplice.
Page 475 U. S. 404
When the prosecution introduces the statements of a
coconspirator merely to show what the declarant might have been
thinking or what he wished his listeners to believe at the time he
spoke, neither the rule against hearsay nor the Confrontation
Clause is implicated by their admission against a defendant.
See Tennessee v. Street, 471 U. S. 409
(1985). However, when the prosecution invokes the coconspirator
exemption to the hearsay rule, as it does in this case, it is
urging the truth of the matters asserted in the extrajudicial
statements. The question here must be whether we have so much
confidence in the factual accuracy of statements made by
conspirators in furtherance of their conspiracy that we deem the
testing of these statements by cross-examination unnecessary to
guarantee the reliability of a trial's result.
The majority is quite right to suggest that
"[c]onspirators are likely to speak differently when talking to
each other in furtherance of their illegal aims than when
testifying on the witness stand."
at 475 U. S. 395
However, the differences between an accomplice's conspiratorial
utterances and his testimony in court are not merely those of
diction and demeanor. That a statement was truly made "in
furtherance" of a conspiracy cannot possibly be a guarantee, or
even an indicium, of its reliability. See
Confrontation Clause and the Co-Conspirator Exception in Criminal
Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378, 1384-1391
(1972); Note, Federal Rule of Evidence 801(d)(2)(E) and the
Confrontation Clause: Closing the Window of Admissibility for
Coconspirator Hearsay, 53 Ford.L.Rev. 1291, 1311-1312 (1985). As
one commentator has noted:
"Conspirators' declarations are good to prove that some
conspiracy exists, but less trustworthy to show its aims and
membership. The conspirator's interest is likely to lie in
misleading the listener into believing the conspiracy stronger with
more members (and different
Page 475 U. S. 405
members) and other aims than in fact it has. It is no victory
for common sense to make a belief that criminals are notorious for
their veracity the basis for law."
Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159, 1165-1166
The unreliability of coconspirator declarations as trial
evidence is not merely a product of the duplicity with which
criminals often conduct their business. It also stems from the
ambiguities that so often appear in all casual conversations, not
just those of outlaws. See, e.g., Dutton v. Evans, supra,
at 400 U. S. 104
(MARSHALL, J., dissenting). And the difficulties one has in making
sense of slang and dialect can be compounded where conspirators use
private codes, as indeed they did in this case. Because of these
problems, trained case agents are often hard pressed to piece
together the facts of a criminal conspiracy from the confused
tangle of conversations they have intercepted. The appearance of a
coconspirator declarant in court will allow the elimination of
ambiguity that neither side has a right to profit from.
Consideration of the reasons why coconspirator declarations have
been exempted from the rule against hearsay only confirms doubts as
to the reliability of the truth asserted in those statements. In
contrast to other types of statements excepted from the rule, the
coconspirator declarations have not been admitted because of a
belief in their special reliability. See
at 1384-1385; Levie, supra,
Rather, the root of the exemption lies in substantive law. Under
the agency theory that supports conspiracy law,
"once the conspiracy or combination is established, the act of
one conspirator, in the prosecution of the enterprise, is
considered the act of all, and is evidence against all."
United States v.
12 Wheat. 460, 25 U. S. 469
(1827). Every statement of coconspirators in furtherance of
Page 475 U. S. 406
their illegal scheme is thus a verbal act admissible against
each conspirator as if it had been his own.
This agency theory, which even the Advisory Committee on the
proposed Federal Rules of Evidence labeled "at best a fiction,"
Advisory Committee Notes on Fed.Rule Evid. 801(d)(2)(E), 28
U.S.C.App. p. 718, might justify the exemption conferred upon
coconspirator declarations from the traditional rule against
hearsay. But it speaks not at all to the Confrontation Clause's
concern for reliable factfinding.
Without even attempting to argue that coconspirator declarations
have an inherent reliability that might justify their admission at
trial when the declarant is not present in court for
cross-examination, the majority instead supports its holding by
"it is extremely unlikely that in court testimony will recapture
the evidentiary significance of statements made when the conspiracy
was operating in full force."
at 475 U. S. 395
Indeed, the Court asserts,
"coconspirator statements derive much of their value from the
fact that they are made in a context very different from trial, and
therefore are usually irreplaceable as substantive evidence."
at 475 U. S.
I truly cannot understand the majority's fear that a rule
requiring the prosecution to do its best to produce a coconspirator
declarant in court would somehow deprive triers of fact of valuable
evidence. Under this rule, if the prosecution could not in all good
faith produce the declarant, the extrajudicial statements could
come in, so long as they could be shown to have "adequate
indicia of reliability,'" Roberts, 448 U.S. at
448 U. S. 66.
The majority's fear must therefore stem from a notion that, if the
prosecution is able to produce the declarant in court, his presence
will somehow prevent the jury from hearing the truth. This
conclusion overlooks the critical importance of cross-examination
in the truth-seeking process.
Page 475 U. S. 407
If a declarant takes the stand, his out-of-court statements will
still be admitted as evidence, so long as they are sufficiently
reliable and there are no other grounds for their exclusion. And
cross-examination will only enhance their value to the jury. The
defendant will have a chance to inquire into the circumstances
under which the statements were made and the motives that might
have led the declarant to color their truth at the time.
Cross-examination also may force the declarant to clarify ambiguous
phrases and coded references. If anything he says is inconsistent
with his prior statement, the declarant will no doubt advance some
explanation for the inaccuracy of the extrajudicial statement
"an explanation a jury may be expected to understand and take
into account in deciding which, if either, of the statements
represents the truth,"
California v. Green, 399 U. S. 149
399 U. S. 159
(1970). Cf. Nelson v. O'Neil, 402 U.
, 402 U. S.
Whether or not a coconspirator produced in court affirms,
denies, or qualifies the truth of his out-of-court statement, his
presence will contribute to the accuracy of the factfinding
enterprise, the accuracy that is the primary concern of the
Confrontation Clause. Whatever truth is contained in his
extrajudicial declarations cannot be lost. It can only be
supplemented by additional information of no less use to the triers
Recognizing that there may well be cases in which the
cross-examination of a coconspirator declarant is indispensable to
a defendant's case, the Court reminds us that a defendant can
always exercise his rights under the Compulsory Process Clause and
call the declarant as his own witness. As long as this option
remains open to a defendant, the Court reasons, "it is difficult to
see what, if anything, is gained by a rule that requires the
prosecution to make that declarant available.'" Ante
at 475 U. S. 398.
However, even assuming, as the Court seems to do, that the
"good faith standard governing
Page 475 U. S. 408
the state's obligation to produce defense witnesses [pursuant to
the Compulsory Process Clause] is precisely the same one that
governs the state's obligation to confront a defendant with the
witnesses against him [pursuant to the Confrontation Clause],"
Westen, Confrontation and Compulsory Process: A Unified Theory
of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 588 (1978),
this is not a satisfactory response to respondent's Confrontation
The short answer to the majority's argument is that the
Confrontation Clause gives a defendant a right
confronted with the witnesses against him, not merely an
opportunity to seek out witnesses on his own. As one court once
noted of a situation similar to that presented in this case:
"That [a coconspirator declarant] was available to be called as
a witness does not mitigate the prosecution's misconduct here. The
State sought to shift to the defendant the risk of calling [the
declarant] to the stand. To accept the State's argument that the
availability of [the declarant] is the equivalent of putting him on
the stand and subjecting him to cross-examination would severely
alter the presumptions of innocence and the burdens of proof which
protect the accused."
Hoover v. Beto,
439 F.2d 913, 924 (CA5 1971) (Wisdom,
J.), rev'd on rehearing en banc,
467 F.2d 516 (CA5) (over
dissent of seven judges), cert. denied, 409 U.
(1972). See also Dutton v. Evans,
U.S. at 400 U. S. 104
(MARSHALL, J., dissenting).
The disadvantages that the majority would impose upon a
defendant are not merely theoretical. The Court notes the
"significant practical burden" placed on the prosecution by a
requirement that the Government identify coconspirator declarants
with specificity. Ante
at 475 U. S. 399
As an illustration of the difficulties that the prosecution would
be forced to face, the majority refers to United States v.
737 F.2d 793 (CA9 1984), where the court found a
Confrontation Clause violation in the Government's failure to
Page 475 U. S. 409
individuals who had made the entries in the "drug ledgers"
introduced as evidence against the defendant. Ante
475 U. S. 399
n. 13. However, the Court now places this "significant practical
burden" upon the defendant, who may well be in no better a position
to make such identifications. Even were it proper to assume the
defendant's guilt and impute to him knowledge regarding pending
charges, it can hardly be claimed that a defendant who has played
but a minor role in a complex conspiracy necessarily has an
intimate knowledge of the names and activities of his alleged
coconspirators. [Footnote 2/2
"The prosecution therefore [should have] the burden of producing
and calling to the witness stand the persons whose out-of-court
statements it uses against the accused because, as between the two
sides, the prosecution is in a better position to identify them and
to initiate their production at that time."
Even when a defendant is in as good a position as the
prosecution to subpoena available declarants, a rule requiring him
to call those declarants as his own witnesses may deny the
defendant certain tactical advantages vouchsafed him by the
Confrontation Clause. Under the regime established today, the only
cross-examination that will attend the prosecution's introduction
of coconspirator declarations will be of whoever heard or recorded
those statements, and will focus merely on whether or not the
statements were actually made. Any inquiry into the reliability of
the statements must await the defendant's case. But if the
defendant chooses to call the declarant as a defense witness,
defendant risks bolstering in the jury's eyes the very conspiracy
allegations he wishes to rebut. That the witness is viewed as
hostile by the defendant, and has possibly been certified as such
by the trial judge, does not necessarily mean that his relationship
to the defendant will be so perceived by the jury, unless defense
Page 475 U. S. 410
chooses to dramatize the antagonism with hyperbole that might
lose him the sympathy of the jury.
Moreover, even the harshest grilling of a declarant by the
defense can occur only after the prosecution has rested its case.
In a complex conspiracy trial, the time elapsing between the
introduction of the hearsay and the cross-examination of the
declarant may be quite substantial. During this time, the
declarations will be unrebutted in jurors' minds. And their effect
may actually be enhanced should either the defense or prosecution
repeat the statements in the course of examining the declarant. In
"[o]nly a lawyer without trial experience would suggest that the
limited right to impeach one's own witness is the equivalent of
that right to immediate cross-examination which has always been
regarded as the greatest safeguard of American trial
New York Life Ins. Co. v. Taylor,
79 U.S.App.D.C. 66,
74, 147 F.2d 297, 305 (1945); see United States v. Oates,
560 F.2d 45, 82, n. 39 (CA2 1977).
In federal prosecutions, there is an additional drawback. When a
defendant calls a declarant as his own witness, he has no statutory
right to obtain any prior statements of that declarant in the
Government's possession -- a right that attaches only "[a]fter a
witness called by the United States has testified on direct
examination," 18 U.S.C. § 3500.
In view of all the disadvantages that attend a defendant's
decision to call a coconspirator declarant as a witness, the
majority's reliance on the defendant's right to compulsory process
to justify a decision to deprive him of a critical aspect of his
Confrontation Clause right cannot be supported. The two are simply
not equivalent. Moreover, the majority's belief that an
unavailability requirement would contribute nothing but a cast of
unwanted supernumeraries has no basis in the realities of criminal
prosecutions. There might be instances in which an available
declarant is of so little value to either side that calling him as
a witness would truly be an unnecessary exercise. See, e.g.,
417 U. S. United
Page 475 U. S. 411
417 U. S. 211
417 U. S. 220
n. 11 (1974). But a defendant's failure to call a declarant as his
own witness can in no way be taken as proof that such is the
At bottom, today's decision rests upon the Court's judgment that
a defendant's constitutional interest in subjecting the
extrajudicial declarations of coconspirators to the
cross-examination that has traditionally been the primary guarantee
of reliability in trials must be subordinated to considerations of
prosecutorial efficiency. I do not believe the concerns of the
Confrontation Clause should be so easily disregarded. The plight of
Sir Walter Raleigh, condemned on the deposition of an alleged
accomplice who had since recanted, may have loomed large in the
eyes of those who drafted that constitutional guarantee.
F. Heller, The Sixth Amendment 104 (1951); Stephen,
The Trial of Sir Walter Raleigh, in 2 Transactions of the Royal
Historical Society 172 (4th series 1919). But the Framers, had they
the prescience, would surely have been as apprehensive of the
spectacle of a defendant's conviction upon the testimony of a
handful of surveillance technicians and a very large box of tapes
recording the boasts, faulty recollections, and coded or ambiguous
utterances of outlaws. The Court's decision helps clear the way for
this spectacle to become a common occurrence. I dissent.
Today's decision does nothing to resolve the conflict among the
lower courts as to whether declarations of coconspirators who are
not present in court for cross-examination must be shown to have
particularized "indicia of reliability" before they can be admitted
for substantive purposes against a criminal defendant. Compare
United States v. DeLuna,
763 F.2d 897 (CA8 1985)
(particularized inquiry into reliability of coconspirator
statements demanded in addition to unavailability requirement);
United States v. Ordonez,
722 F.2d 530, 535 (CA9 1983)
(particularized assessment of reliability needed for every
statement admitted under coconspirator hearsay exemption);
United States v. Perez,
702 F.2d 33 (CA2) (same),
462 U.S. 1108 (1983), with Boone v.
760 F.2d 117, 119 (CA6 1985) (declaration admitted
under coconspirator exemption "automatically satisfies the Sixth
Amendment requirements"); United States v. Molt,
1198 (CA7 1985) (same); Ottomano v. United States,
F.2d 269, 273 (CA1 1972) (same), cert. denied,
1128 (1973). See
Mueller, The Federal Coconspirator
Exception: Action, Assertion, and Hearsay, 12 Hofstra L.Rev. 323,
361-362, and nn. 131-132 (1984).
I realize that this was not the case here. However, the Court's
holding addresses all cases involving coconspirator declarations,
and thus extends to all the hypotheticals I discuss.