United States v. Inadi , 106 S. Ct. 1121 ( 1986 )

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 co-conspirator is unavailable to testify, as a condition for admission of that co-conspirator’s out-of-court statements.

I — I

Following a jury trial in the Eastern District of Pennsylvania, respondent Joseph Inadi was convicted of conspiring to 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 co-conspirator 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 co-conspirator, William Levan, were to manufacture the substance.

In the course of manufacturing and selling methamphetamine, McKeon, Levan, and respondent met with another unindicted co-conspirator, 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 methamphetamine.

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 25 stop and search. Respondent sought to exclude the recorded statements of Lazaro and the other unindicted co-conspirators on the ground that the statements did not satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E), governing admission of co-conspirator declarations.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 dec-larants 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 co-conspirators’ 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 court.

Respondent renewed his Confrontation Clause objections, arguing that the Government had not met its burden of showing that Lazaro was unavailable to testify. The trial court overruled the objection, ruling that Lazaro’s statements were admissible because they satisfied the co-conspirator rule.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 that Roberts did not require a showing of unavailability as to a nontestifying co-conspirator, 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 co-conspirator statements, and therefore ruled Lazaro’s statements inadmissible. Id., at 818-819.

We granted certiorari, 471 U. S. 1124 (1985), 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 co-conspirator, when those statements otherwise satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E).³ We now reverse.

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A

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 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, no out-of-court statement would be admissible without a showing of unavailability.

Roberts, 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 itself 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 . . . hearsay “exceptions.”’” 448 U. S., at 64-65, quoting California v. Green, 399 U. S. 149, 162 (1970). The Court in Roberts remained “[cjonvinced 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 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 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 rather as a resolution of the issue the Court said it was examining: “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.” Id., at 58.⁴

The Confrontation Clause analysis in Roberts focuses on 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. S. 314 (1968).⁵ All of the cases cited in Roberts for this “unavailability rule” concern prior testimony. In particular, the Court focused on two cases, Barber and Mancusi, that directly “explored the issue of constitutional unavailability.” 448 U. S., at 76. Both cases specifically limited the unavailability requirement to prior testimony. Barber, supra, at 722; Mancusi, supra, at 211.

Roberts 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. S. 400 (1965), established in Barber, and refined in a line of cases up through Roberts, that applies unavailability analysis to prior .testimony.⁶ Roberts 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.

B

There are good reasons why the unavailability rule, developed in cases involving former testimony, is not applicable to co-conspirators’ 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 five 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 the former testimony may be admitted as a substitute for live testimony on the same point.

Those same principles do not apply to co-conspirator 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 evi-dentiary 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 co-conspirators’ 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 co-conspirator statements and live testimony at trial. To the contrary, co-conspirator statements derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence. 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 co-conspirators’ 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, 415 (1985), quoting Dutton v. Evans, 400 U. S. 74, 89 (1970).

C

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. Westen, supra; 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. Dutton, supra, at 89. Some of the available declar-ants already will have been subpoenaed by the prosecution or 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.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 806,⁸ which provides that if the party against whom a co-conspirator 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.⁹ If the Government has no desire to call a co-conspirator 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 Eule of Evidence 806,¹⁰ then it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant “available.”¹¹

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 co-conspirator’s declaration automatically adds another avenue of appellate review in these complex cases. The co-conspirator rule apparently is the most frequently used exception to the hearsay rule. See 4 D. Louisell & C. Mueller, Federal Evidence § 427, p. 331 (1980).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 co-conspirator statements, the prosecution would be required to identify with specificity each declarant, locate those declar-ants, 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 74-77; id., at 77-82 (Brennan, J., dissenting); see also United States v. Ordonez, 737 F. 2d 793, 802 (CA9 1984).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 co-conspirator 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 rule. We hold today that the Confrontation Clause does not embody such a rule.

I — I I — I I — I

To some degree, respondent’s arguments m 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 co-conspirator rule instead of Federal Rule of Evidence 801, the state rule actually admitted a broader category of co-conspirator 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 80. Upon closer examination today, we continue to affirm the validity of the use of co-conspirator statements, and we decline to require a showing of the declarant’s unavailability as a prerequisite to their admission.

We accordingly reverse the judgment of the Court of Appeals for the Third Circuit.

It is so ordered.

1 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 co-conspirator of a party during the course and in furtherance of the conspiracy.”

2 The trial court also noted that two of the four co-conspirator 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.

3 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.

4 Roberts 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 58-60.

5 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 155, the overlap is not complete.

6 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. S. 237 (1895).

7 In fact, the actions of the parties in this ease demonstrate what is no doubt a frequent occurrence in conspiracy cases — neither side wants a co-conspirator as a witness. As explained supra, at 395, the interests of the prosecution and the co-conspirator seldom will run together. Nor do the co-conspirator’s interests coincide with his former partners, since each is in a position that is potentially harmful to the others.

8 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.”

9 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 . . . .” Cf. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 586-601 (1978).

10 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 declar-ant 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.

11 In addition to the reasons mentioned in the text why an unavailability rule would be of little value, many co-conspirator 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 non-hearsay “raises no Confrontation Clause concerns.” Tennessee v. Street, 471 U. S. 409, 414 (1985). Cross-examination regarding such statements would contribute nothing to Confrontation Clause interests.

12 Federal Rule of Evidence 801 characterizes out-of-court statements by co-conspirators as exemptions from, rather than exceptions to, the hearsay rule. Whether such statements are termed exemptions or exceptions, the same Confrontation Clause principles apply.

13 The court in Ordonez found a Confrontation Clause violation because the Government, after introducing drug ledgers containing entries made by unidentified co-conspirators, did not adequately demonstrate that it was totally unable to identify those conspirators.