UNITED STATES OF AMERICA, PETITIONER V. JOSEPH INADI

   No. 84-1580

   In the Supreme Court of the United States

   October Term, 1985

   On Writ Of Certiorari To The United States Court Of Appeals For The
Third Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Constitutional provision and rule involved
   Statement
   Introduction and summary of argument
   Argument:
      I. The admission of statements in conformity with the
          traditional co-conspirator rule does not violate the
          Confrontation Clause
          A. The Confrontation Clause was intended to prohibit
             trial by affidavit and comparable practices, not to
             proscribe or generally regulate the admission of
             hearsay
          B. This Court's Confrontation Clause decisions
             have closely regulated the admission of former
             testimony but have treated most other traditional
             hearsay exceptions as presumptively valid
          C. Reevaluating the co-conspirator rule and other
             traditional hearsay exceptions under the Confrontation
             Clause would be pointlessly duplicative and disruptive
             and would stultify the evolution of federal and state
             rules of evidence
          D. Even if the federal co-conspirator rule is
             reevaluated under the Confrontation Clause, no sound
             constitutional policy justifies striking down the
             settled rule that co-conspirator declarations are
             admissible without regard to the availability of
             declarant
      II. If proof of unavailability is a prerequisite for
          admission of a co-conspirator statement, the court
          of appeals should have ordered a remand hearing to
          determine the question of unavailability rather than
          ordering a new trial
      Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-16a) is reported
at 748 F.2d 812.  The order amending that opinion (Pet. App. 17a-19a)
is not yet reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 13,
1984.  The order denying rehearing was entered on February 8, 1985
(Pet. App. 20a).  The petition for a writ of certiorari was filed on
April 4, 1985, and was granted on May 28, 1985.  The jurisdiction of
this Court rests on 28 U.S.C. 1254(1).

              CONSTITUTIONAL PROVISION AND RULE INVOLVED

   The Sixth Amendment provides in pertinent part:

         In all criminal prosecutions, the accused shall enjoy the
      right * * * to be confronted with the witnesses against him * *
      *.

   Rule 801(d) of the Federal Rules of Evidence provides in pertinent
part:

         A statement is not hearsay if --

                      * * * * *

         (2) * * * The statement is offered against a party and is * *
      * (E) a statement by a co-conspirator of a party during the
      course and in furtherance of the conspiracy.

                          QUESTION PRESENTED

   1. Whether the Confrontation Clause bars the prosecution from
introducing statements falling within the coconspirator exception to
the hearsay rule (Fed. R. Evid. 801 (d)(2)(E)) unless it establishes
that the declarant is unavailable to testify at trial.

   2. Whether, if the court of appeals was correct that proof of
unavailability is required, it should have ordered a remand hearing to
determine the question of unavailability rather than ordering a new
trial.

                               STATEMENT

   After a jury trial in the United States District Court for the
Eastern District of Pennsylvania, respondent was convicted on six
counts arising from a scheme to manufacture and distribute
methamphetamine.  He was sentenced to three years' imprisonment to be
followed by a seven-year special parole term.  The court of appeals
reversed (Pet. App. 1a-16a).

   1. The evidence at trial showed that in September 1979 unindicted
co-conspirator Michael McKeon approached respondent seeking a
distribution "outlet" for methamphetamine.  The two men agreed that
respondent would supply cash and chemicals for the venture and would
also be responsible for distribution, while McKeon and co-conspirator
William Levan would actually manufacture the drug (Tr. 77-83, 93).

   McKeon and Levan made three attempts to manufacture methamphetamine
in Philadelphia between December 1979 and April 1980.  On the first
occasion, McKeon made three pounds of methamphetamine using P-2-P, a
precursor chemical, supplied by respondent.  This methamphetamine was
delivered to respondent.  McKeon, Levan, and respondent shared a
profit of $19,500 on this transaction.  The second "cook" failed to
produce methamphetamine because a necessary ingredient supplied by
respondent turned out to be a substance other than P-2P.  A third
"cook" succeeded in producing three and one-half pounds of
methamphetamine, which Levan delivered to respondent (TR. 83-93).

   Thereafter, McKeon went to Cape May, New Jersey, with the liquid
residue from the third "cook." He met respondent, Levan,
co-conspirator John Lazaro, as well as two others not named as
co-conspirators, at an empty house that McKeon believed had been
rented through Lazaro.  There they attempted to extract additional
methamphetamine from the liquid residue.  This "drying" resulted in
less than an ounce of low quality product, which McKeon promptly sold
for $200 (Tr. 95).

   In the early morning hours of May 23, 1980, two local police
officers, acting pursuant to a search warrant, surreptitiously entered
the Cape May house and removed a tray covered with drying
methamphetamine.  With the permission of the issuing magistrate, the
officers delayed returning an inventory, leaving the participants to
speculate about what had happened to the missing tray (Tr. 257-260,
275, 299-300).

   On May 25, 1980 two DEA agents observed a meeting between
respondent and Lazaro alongside Lazaro's car in the parking lot of a
restaurant in Philadelphia.  At one point, one of the agents observed
respondent lean into the car.  After Lazaro drove off, the agents
overtook and stopped his car.  They searched the car, as well as
Lazaro and his wife Marianne, who was a passenger at the time.
Finding nothing, the agents allowed the Lazaros to leave.  Marianne
Lazaro later recounted that during the search she threw away a clear
plastic bag containing white powder that her husband had handed to her
after the meeting with respondent.  Eight hours after the search, one
of the agents returned to the scene of the stop and found a clear
plastic bag containing a small quantity of methamphetmine (Tr. 361,
432-439, 472-485, 555-556).  /1/

   From May 23 to May 27, 1980, state officers lawfully intercepted
five telephone conversations between various participants in the
conspiracy.  These taped conversations were played for the jury at
trial.  In one conversation, Lazaro asked respondents, in code, for a
quantity of methamphetamine and reported on the residue missing from
Cape May house, suggesting that "Mike" probably took it.  In another
conversation, Lazaro and respondent arranged the meeting in the
parking lot.  In a third conversation, Lazaro reported to respondent
that he kicked a "piece" under his car during the May 25 stop by the
DEA agents, and he wondered how the agents were tipped off. (GX 8-10).

   In a fourth conversation, between McKeon and Marianne Lazaro, the
latter described the May 25 incident and suggested that respondent
might have set them up.  McKeon assured her that respondent was not an
informant.  In the final intercepted conversation, Levan and John
Lazaro discussed the missing residue and speculated about who had set
Lazaro up for the May 25 stop.  (GX 13-14).

   2. At trial, respondent sought to exclude the recorded statements
of John Lazaro and the other co-conspirators on the ground that the
statements did not satisfy the requirements of Fed. R. Evid.
801(d)(2)(E), which regulates admission of co-conspirator
declarations.  The court deferred ruling on this issue until after
hearing the evidence (see J.A. 16);  then admitted the statements,
finding that a preponderance of the evidence established that the
statements were made by conspirators in furtherance of and during the
course of the conspiracy (J.A. 21).

   Respondent also objected to the admission of the statements on
Confrontation Clause grounds, contending that the government had the
burden of showing that the declarants were unavailable (J.A. 17).  In
response, the prosecutor informed the court that Lazaro had advised
her personally that he would refuse to testify even if held in
contempt.  Nevertheless, at the judge's suggestion, the prosecutor
promised to bring Lazaro to court.  The judge also asked defense
counsel whether she wanted the prosecution to call Lazaro, since this
might result in his testifying, and defense counsel stated that she
would discuss this "weighty matter" with her client (J.A. 18).  The
government subpoenaed Lazaro (see Pet. App. 15a), but he failed to
appear, advising the prosecutor that he had "car problems" (J.A. 19).
The defense did not subpoena Lazaro, seek the issuance of a bench
warrant, or (as far as the record indicates) make any other efforts to
secure Lazaro's presence in court.

   The court ultimately rejected all of respondent's Confrontation
Clause objections.  It noted (J.A. 21) that two of the four
co-conspirator declarants (Mrs. Lazaro and McKeon) had testified and
that the third (Levan) had asserted his Fifth Amendment privilege
outside the presence of the jury.  The court then implicitly rejected
respondent's contention that the government was obligated to produce
Mr. Lazaro or prove his unavailability.  Lazaro's statements were
admissible, the court held (J.A. 21), simply because they satisfied
the co-conspirator rule.

   3. On appeal, respondent reiterated his contention that the
admission of John Lazaro's recorded statements violated both the
co-conspirator exception to the hearsay rule and the Confrontation
Clause.  The court of appeals held that Lazaro's statements satisfied
the requirements of the co-conspirator rule (Pet. App. 8a-11a).
However, the court accepted respondent's contention that the
Confrontation Clause requires the government to show the
unavailability of a non-testifying co-conspirator as a precondition to
admitting his out-of-court statements (id. at 11a-13a).

   In imposing an "unavailability" requirement under the Confrontation
Clause, the court relied almost exclusively (Pet. App. 12a) on this
Court's dictum in Ohio v. Roberts, 448 U.S. 56, 65 (1980), that "in
conformance with the Framers' preference for face-to-face accusation,
the Sixth Amendment establishes a rule of necessity.  In the usual
case * * * the prosecution must either produce, or demonstrate the
unavailability of, the declarant whose statement it wishes to use
against the defendant." The court of appeals found no reason for
excepting co-conspirator statements from "the clear constitutional
rule laid down in Roberts" (Pet. App. 12a).  The court added (id. at
13a) that "it does not seem unreasonable to require the government to
demonstrate that its hardship is real before availing itself of this
tremendous evidentiary advantage."

   The court rejected the government's argument that Lazaro's
unavailability had in fact been sufficiently established, suggesting
that the government should have requested a bench warrant to secure
Lazaro's presence after he failed to obey the subpoena (Pet. App.
13a-16a).  The court declined to credit the government's
representation that Lazaro would refuse to testify and insisted that
nothing less than "an actual assertion of privilege and exemption by
ruling of the court" would suffice (id. at 16a).  Respondent's
convictions were reversed, and the case was remanded for a new trial
(ibid.).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

                                  i.

   Under common law, hearsay evidence was generally inadmissible, but
exceptions to this rule for specific categories of hearsay were always
recognized.  Over the years, these exceptions were forged by
litigation, examined by scholars and legislators, and modified in
light of ongoing experience and study.  The provisions of the Federal
Rules of Evidence dealing with hearsay represent a codification and
refinement of the common law approach:  hearsay is generally made
inadmissable (Rule 802), but there are more than 30 exemptions and
exceptions (Rules 801(d), 803, 804).  One of these exemptions, Rule
801(d)(2)(E), codifies the common law rule (which this Court adopted
more than 150 years ago) permitting the admission of statements made
by a co-conspirator during and in furtherance of the conspiracy.

   This ancient and highly developed scheme for regulating the
admission of hearsay has been thrown into confusion in recent years as
a result of claims made by criminal defendants that the introduction
of hearsay admissible under long accepted common law rules
nevertheless violated their Sixth Amendment right "to confront the
witnesses against" them.  Because the co-conspirator rule is
apparently the most frequently used exception to the hearsay rule, /2/
the bulk of the lower court litigation has concerned co-conspirator
declarations, and the courts of appeals are in sharp conflict
regarding the effect of the Confrontation Clause on this rule.  While
some circuits have held that statements falling within the
co-conspirator rule automatically satisfy the Confrontation Clause,
/3/ other circuits, including the Third Circuit, whose decision is now
before the Court, have held that co-conspirator statements are barred
by the Confrontation Clause unless the government (a) produces the
declarant or establishes that he is unavailable and (b) establishes
that the particular statements at issue are reliable.  /4/ In
addition, several courts of appeals have held that the Confrontation
Clause imposes similar requirements as prerequisites for admission of
evidence falling within other traditional hearsay exceptions.  /5/

   We find it hard to understand, nearly two hundred years after the
adoption of the Sixth Amendment, what sudden epiphany could provide a
supportable basis for the conclusion that the Constitution has been
routinely violated under settled past practice.  In our view, this
reevaluation of traditional hearsay exceptions under the Confrontation
Clause is unwarranted by the purposes of the Clause, which was
primarily intended to porhibit trial by affidavit or deposition and
analogous practices and was not meant to furnish a standard for close
regulation of all traditional hearsay exceptions.

   1. The hearsay rule, which has never been without exceptions,
developed during the same general period as the right to
confrontation, but they were doctrinally discrete.  The hearsay rule,
which applies both to criminal and civil trials, provided detailed
regulation of the admission of out-of-court statements, while the
right to confrontation developed in specific response to the hated
17th century practice of trying criminal defendants based on
affidavits and depositions obtained ex parte by examining magistrates.
 Eighteenth century authorities perceived no contradiction between the
recognized hearsay exceptions and the confrontation right.

   In this country, the Confrontation Clause was inserted in the Bill
of Rights with scarcely any discussion or debate.  Had there been any
thought that this provision departed from the settled understanding of
the right of confrontation and affected the established exceptions to
the hearsay rule, there would have surely been some explanation or
controversy.  This interpretation of the Confrontation Clause is
strongly supported by early 19th century case law.

   2. The present confusion regarding the meaning of the Confrontation
Clause is traceable chiefly to a single hearsay exception, that for
prior recorded testimony.  This type of traditionally admissible
hearsay may be aptly analogized to an affidavit or depostion, because
like them it is generally nothing more than an inferior substitute for
live testimony.  Accordingly, this Court has tested former testimony
against Confrontation Clause standards;  and because former testimony
is ordinarily only a next-best substitute for live testimony, former
testimony has been held to be generally inadmissible unless live
testimony cannot be obtained.

   Unlike former testimony, evidence falling within other traditional
hearsay exceptions, including the co-conspirator rule, has probative
value very different from subsequent live testimony, and therefore
under the law of hearsay the availability of the declarant to give
live testimony has not been regarded as having any bearing on the
admissibility of statements falling within most traditional
exceptions.  The court of appeals in this case and some other lower
courts have in recent years lost sight of this critical distinction
and have erred in mechanically subjecting the co-conspirator rule and
other time-honored hearsay exceptions to additional obstacles to use
derived from this Court's cases involving only the problems
specifically associated with former testimony.

   This Court's decisions do not support such an approach.  On the
contrary, this Court's Confrontation Clause cases involving the
admission of hearsay appear to take a very different, three-part
approach.  First, in accordance with the historical origin of the
Confrontation Clause, those forms of potentially admissible hearsay
that resemble affidavits or depositions have been closely regulated --
and it is in this specific context that availability has been
considered important.  Second, the Court has regarded other firmly
rooted hearsay exceptions as presumptively constitutional.  Third, the
Court has held out the possibility that novel hearsay exceptions may
be subjected to more exacting scrutiny.

   3. Close reexamination of all of the traditional hearsay exceptions
under the Confrontation Clause would be a burdensome and pointlessly
duplicative process, especially since those exceptions have been
forged with full consideration of the very same fundamental concern
that underlies the Confrontation Clause:  what kind of evidence is too
likely to mislead the finder of fact to permit its use at trial.  In
the case of the co-conspirator rule, moreover, the Court would be
reevaluating a doctrine that may aptly be characterized as the Court's
own creation.  Constitutionalizing the hearsay rules would also stunt
beneficial evolution and experimentation.

   4. The specific holding of the court of appeals in this case --
that the prosecution may not introduce a co-conspirator statement
unless the declarant is produced or the prosecution carries the burden
of showing the declarant to be unavailable -- would substantially
impair the prosecution of crime without any appreciable benefits.
Indeed, it does not seem an exaggeration to state that the Court has
seldom had before it a proposed constitutional rule that would add
more to the expense and complexity of criminal trials while
contributing less to the reliability of their outcomes than the rule
adopted by the court of appeals in this case.

   The use of co-conspirator declarations as evidence at criminal
trials is one of the great commonplaces of the American legal
landscape, surely occurring tens of thousands of times each year in
state and federal courtrooms throughout the nation.  Up until the last
couple of years, the rules surrounding the admission or exclusion of
such evidence never conditioned the admissibility of co-conspirator
declarations on any showing respecting the availability or
unavailability of the extra-judicial declarant.  Under the court of
appeals' rule, however, each extrajudicial declarant must now be
produced in court (or his absence satisfactorily explained) as a
condition to admission of his or her statement in furtherance of the
conspiracy, whether or not any party actually wishes to call the
declarant as a witness.  Many of these individuals will not be
locatable at the time of trial, in which case a hearing (potentially
lengthy and complex) will have to be held into whether the prosecution
made all reasonable efforts to locate the declarant or was somehow at
fault in losing track of his or her whereabouts.  Others may be
serving prison sentences and will be producible only at considerable
expense.  Most of the declarants, if they are not already to be
witnesses for one side or the other, will refuse to testify, and
hearings will then be required to evaluate their claims of privilege
and/or to determine whether they should be held in contempt before
being found unavailable.  And, of course, rulings of unavailability
will provide fertile new ground for appellate review.

   Moreover, all of this time, effort, and expense that will go into
producing or litigating the unavailability of
co-conspirator/declarants will have little effect on the actual course
of the trial.  It must be done even though the defendant has not
independently elected to call the declarant as a witness and may have
no interest whatever in having him actually testify, as likely was the
case here (see J.A. 18), and even though the admissibility of
statements made in furtherance of the conspiracy is the same whether
the declarant in fact testifies or not.

                                 II.

   Finally, even if unavailability must be shown, the court of appeals
should have remanded this case for a hearing on the
co-conspirator/declarant's availability rather than reflexively
ordering a new trial.  If the declarant was indeed unavailable at the
time of trial, reversal was an inappropriate remedy, and a retrial
would be pointless.

                               ARGUMENT

 I. THE ADMISSION OF STATEMENTS IN CONFORMITY WITH THE TRADITIONAL
CO-CONSPIRATOR RULE DOES NOT VIOLATE THE CONFRONTATION CLAUSE

 A. The Confrontation Clause Was Intended To Prohibit Trial By
Affidavit And Comparable Practices, Not To Proscribe Or Generally
Regulate The Admission Of Hearsay

   In recent years, there has been much confusion regarding the
relationship between the right of confrontation protected by the Sixth
Amendment and the rules regulating the admission or exclusion of
hearsay.  Historically, the right of confrontation and the hearsay
rule were related but doctrinally discrete reforms of pre-18th century
trial procedures.  There was no mixing or confusion of these doctrines
in the minds of jurists, scholars, and statesmen at the time of the
adoption of the Bill of Rights, and no intent to regulate hearsay
generally by means of the Confrontation Clause.

   1. The history of the hearsay rule has been recounted by legal
scholars and need not be detailed here.  See, e.g., 5 Wigmore on
Evidence Sections 1364 (Chadbourn rev. ed. 1974) (hereinafter cited as
Wigmore);  9 W. Holdsworth, History of the English Law 177-187,
214-219, 222-236 (1926);  1 J. Stephen, A History of the Criminal Law
of England 216-233, 324-427 (1883);  Morgan, Hearsay Dangers and the
Application of the Hearsay Concept, 62 Harv. L. Rev. 177, 179-183
(1948);  Morgan, The Hearsay Rule, 12 Wash. L. Rev 1 (1937).  Before
the 16th century, it was accepted practice for jurors to obtain
information by consulting persons not called into court.  5 Wigmore
Sections 1364, at 13-15.  During the 1500s, evidence obtained in this
manner began to be overshadowed by evidence given by witnesses
appearing in court (id. at 15), but hearsay statements were
"constantly received" (id. at 17).  Doubts about the value of such
evidence arose during the 16th century and increased during the 17th,
and by the 1680s there was "a fairly constant enforcement (of the
hearsay rule) both in civil and criminal cases." Id. at 18.  By the
18th century, the general rule was firmly established.  Id. at 19.

   This rule, however, was never devoid of exceptions.  See 5 Wigmore
Sections 1397, at 158;  Morgan, 62 Harv. L. Rev. at 179.  Scholars
have found that the following exceptions had taken shape by the late
18th century:  dying declarations, /6/ regularly kept records, /7/
declarations against interest, /8/ past recollection recorded, /9/
evidence of pedigree and family history, /10/ and various types of
reputation evidence.  /11/ In addition, as we will discuss (see pages
19-21, infra), the co-conspirator rule emerged during this same
period.

   2. The right of confrontation developed during the 17th century in
response to the practice of convicting criminal defendants based upon
affidavits.  Towards the end of the 16th century, "(t)hough the crown
was beginning to call witness, * * * the witnesses were not confronted
with the prisoner." 9 W. Holdsworth, supra, at 224;  see also Gannett
Co. v. DePasquale, 443 U.S. 368, 421 (1979) (Blackmun, J.).

   Particularly relevant for present purposes was the function of the
examining magistrate.  Statutes enacted in 1554 and 1555 (1 & 2 Phil.
& M. ch. 13;  2 & 3 Phil. & M. ch. 10) directed magistrates to
interview and take the depositions of all witnesses to felonies;  /12/
this examination "was intended only for the information of the court.
The prisoner had no right to be, and probably never was present.  * *
* (T)he depositions were to be returned to the court, but there is
evidence to show that the prisoner was not allowed even to see them."
1 J. Stephen, supra, at 221.

   These depositions were often the principal "evidence" at trial.  As
Stephen relates (id. at 325-326):

      The proof was usually given by reading depositions, confessions
      of accomplices, letters, and the like;  and this occasioned
      frequent demands by the prisoner to have his "accusers," i.e.,
      the witnesses against him, brought before him face to face,
      though in many cases the prisoners appear to have been satisfied
      with the depositions.

   The trial of Sir Walter Raleigh for treason in 1603 is illustrative
of this procedure.  A crucial element of the evidence against Raleigh
consisted of the deposition of one Cobham and a letter that Cobham
wrote thereafter, both of which indirectly implicated Raleigh in a
plot to seize the throne.  Raleigh had a written retraction from
Cobham, and believed that Cobham would now testify in his favor.
There was a lengthy dispute over Raleigh's right to have Cobham called
as a witness, but the court refused the request, reasoning that "so
many horsestealers may escape, if they may not be condemned without
witnesses," /13/ and Raleigh was convicted.  1 J. Stephen, supra, at
333-336;  9 W. Holdsworth, supra, at 216-217, 226-228.

   Another celebrated 17th century trial, that of the Quaker preacher
John Lilburne, led to recognition of the right of confrontation.  See
Pollitt, The Right of Confrontation:  Its History and Modern Dress, 8
J. Pub. L. 381, 389-390 (1959).  Charged in 1637 with illegally
importing books attacking the Anglican bishops, Lilburne refused to
answer the prosecution's questions, insisting that "my accusers ought
to be brought face to face, to justify what they accuse me of." /14/
Found in contempt by the Star Chamber, Lilburne was freed in 1640 by
an act of Parliament condemning the action of the Star Chamber.  /15/
"Thereafter," according to a commentator, "there was no dispute in
England about the right to confrontation." Pollitt, supra, 8 J. Put.
L. at 390.

   3. The 18th century understanding of the relation between the right
of confrontation and the hearsay rule is illustrated by the writings
of Hale and Blackstone.  Two points of importance for the present case
are highlighted by their analyses:  first, these two doctrines were
not tied together but were viewed as distinct;  second, no
contradiction was perceived between the right of confrontation and the
existence of exceptions to the hearsay rule.

   Discussing trial by jury, Hale made express reference to the
hearsay exceptions for regularly kept records and ancient deeds.  He
stated that evidence in jury trials was given "upon the OATH of
witnesses, or other evidence by law allowed;  -- as Records and
Ancients Deeds." M. Hale, The History of the Common Law of England 342
(6th ed. 1820).  Several pages later, without any hint of
contradiction, he wrote that "by (the) personal appearance and
testimony of witnesses, there is opportunity of confronting the
adverse witnesses;  * * * and by this means great opportunities are
gained, for the true and clear discovery of the truth." Id. at
345-346.  /16/

   Blackstone's discussion is similar but more detailed.  After
disclaiming any intent "to enter into the numberless niceties and
distinctions of what is, or is not, legal evidence to a jury" (3 W.
Blackstone, Commentaries on the Law of England 367 (1768) (emphasis in
original)), he referred to the hearsay rule and the fact that it has
exceptions (id. at 368):

      (N)o evidence of a discourse with another will be admitted, but
      the man himself must be produced;  yet in some cases (as in
      proof of any general customs, or matters of common tradition or
      repute) the courts admit of hearsay evidence * * * .

Five pages later, Blackstone provided a classic statement of the right
of confrontation, explaining both its meaning and purpose (id. at
373-374) (footnotes omitted;  emphasis added):

      This open examination of witnesses viva voce, in the presence of
      all mankind, is much more conducive to the clearing up of truth,
      than the private and secret examination taken down in writing
      before an officer, or his clerk in the ecclesiastical courts and
      all others that have borrowed their practice from civil law:
      where a witness may frequently depose that in private, which he
      will be ashamed to testify in a public and solemn tribunal.
      There an artful or careless scribe may make a witness speak what
      he never meant, by dressing up his depositions in his own forms
      and language;  but he is here at liberty to correct and explain
      his meaning, if misunderstood, which he can never do after a
      written deposition is once taken.  Besides the occasional
      questions of the judge, the jury, and the counsel, propounded to
      the witnesses on a sudden, will sift out the truth much better
      than a formal set of interrogatories previously penned and
      settled:  and the confronting of adverse witnesses is also
      another opportunity of obtaining a clear discovery, which can
      never be had upon any other method of trial. * * * In short by
      this method of examination, and this only, the persons who are
      to decide upon the evidence have an opportunity of observing the
      quality, age, education, understanding, behavior, and
      inclinations of the witness;  in which points all persons must
      appear alike, when their depositions are reduced to writing, and
      read to the judge, in the absence of those who made them:  and
      yet as much may be frequently collected from the manner in which
      the evidence is delivered, as from the matter of it.  These are
      a few of the advantages attending this, the English way of
      giving testimony, ore tenus.

   In short, Blackstone explained that the right to confrontation was
nothing more than the right to a trial in which the prosecution's case
was established by live witnesses rather than by depositions or
written interrogatories.

   4. In view of this understanding of the nature and extent of the
right of confrontation, the events surrounding the adoption of the
Sixth Amendment take on an unmistakable meaning.

   Most of the state constitutions in effect at the time of federal
constitutional convention of 1787 guaranteed the right to
confrontation.  /17/ When the Constitution was considered by the state
ratifying conventions and a consensus emerged that a Bill of Rights
should be added, amendments proposed in several of the state
conventions contained provisions guaranteeing this right.  /18/
Inclusion of the confrontation right in these proposals occasioned
little discussion and no controversy, but the few remarks made about
this right fully support the view that there was no intention to alter
or expand the common law doctrine.

   In Pennsylvania, where the first convention was held, amendments
unsuccessfully proposed by Antifederalists would have guaranteed
"(t)hat in all capital and criminal prosecutions, a man has a right *
* * to be confronted with the accusers and witnesses." /19/ The
proponents explained that their aim was to preserve "the common law
proceedings for the safety of the accused in criminal prosecutions."
/20/ Although rejected in Pennsylvania, the Antifederalist proposal
became the model for states "which desired to ratify the Constitution
and, at the same time, wanted a Bill of Rights." /21/

   In Virginia, Patrick Henry criticized the Constitution because it
failed to protect individual rights guaranteed at common law and by
the Virginia Declaration of Rights of 1776 /22/ (which protected the
right of confrontation).  /23/ The Virginia Convention appointed a
committee, including Henry and James Madison, to draft proposed
amendments.  /24/ The committee's proposal, which contained a
confrontation provision identical to that in the Virginia Declaration,
was adopted by the Convention.  /25/

   After ratification of the Constitution, James Madison proposed
adoption by the First Congress of 12 constitutional amendments, one of
which protected the confrontation right.  /26/ This right was included
in the Sixth Amendment and adopted without discussion.  /27/

   From this history and the 18th century understanding of the right
of confrontation, three points of importance for present purposes
emerge.  First, the paucity of explanation or discussion about the
meaning of the right to confrontation can signify only that the
meaning of that right was commonly understood and that there was no
thought that the Sixth Amendment departed from this settled meaning.
This is reinforced by the absence of any controversy regarding the
inclusion of the Confrontation Clause in the Bill of Rights.  Second,
as best we can determine, not a word was spoken or written -- by those
who sought the adoption of a bill of rights, by the First Congress, or
by the state legislatures that ratified the Bill of Rights -- to
suggest that the confrontation right had anything to do with the
general regulation of hearsay or the details of the law of evidence.

   It is also telling for present purposes that the rule allowing
admission of co-conspirator declarations had already emerged in
England at the time of the adoption of the Sixth Amendment.  In a
famous trial in 1710, Daniel Dammaree and others were convicted of
treason for leading a mob that pulled down four dissenting meeting
houses.  Trial of Daniel Dammaree, 15 State Tr. 522 (1710);  see 1 J.
Stephen, supra, at 270-271.  The Lord Chief Justice instructed the
jury that in order to convict Dammaree of treason it was necessary to
show that it was his intention not simply to destroy a single meeting
house, "but to pull them down all" (15 State Tr. at 607), and in this
connection the prosecution's witnesses permissibly related numerous
statements made by members of the mob that bore upon their intentions
(id. at 552-562, 595-599).

   In an equally well known case, Lord George Gordon was tried for
treason in 1781 for leading a mob that attempted by force to procure
the repeal of a law mitigating the penalties imposed on Roman
Catholics.  The mob broke open jails, assaulted the Bank of England,
and "tried to burn down London." 2 J. Stephen, A History of the
Criminal Law of England 273 (1883).  Lord Gordon's defense was that he
did not intend to encourage these extreme acts but merely to engage in
petitioning.  Trial of Lord George Gordon, 21 State Tr. 522, 591-592
(1781).  Again, as in the Dammaree case, numerous statements made by
members of the mob were admitted (see 21 State Tr. at 514-515,
526-527, 529-540).

   The contemporary understanding of these precedents was shown in a
string of treason trials in which the defendants were charged with
trying to bring the French Revolution to England.  For example, in the
Trial of Thomas Hardy, 24 State Tr. 200, 453 (1794), Lord Chief
Justice Eyre relied on Dammaree and Gordon for the proposition that
"the correspondence of one man who is a party in a conspiracy, would
undoubtedly be evidence, correspondence in furtherance of the plot."
Justice Buller observed (24 State Tr. at 452) (footnotes omitted):

         In Dammaree and Purchase's cases evidence was received of
      what some of the parties had done when the prisoner was not
      there.  The attorney general says, I call this witness, not to
      speak in particular to the prisoner, but to shew the intention
      of the mob.  * * * In the cases that have happened in our own
      time, in Lord George Gordon's case, evidence of what different
      persons of the mob had said, though he was not there, was
      admitted.

See also Trial of John Horne Tooke, 25 State Tr. 1 (1794);  Trial of
William Stone, 25 State Tr. 1155, 1277-1278 (1794).  In sum, at the
time of the adoption of the Bill of Rights, the co-conspirator rule
was, if not firmly established, at least very clearly foreshadowed in
English law.

   In this country, the co-conspirator rule was adopted by the Supreme
Court of New Jersey in 1791, the very year in which the Bill of Rights
was ratified.  Patton v. Freeman, 1 N.J.L. 113, 115 (1791).  Similar
decisions were soon handed down by the highest courts of Vermont,
Virginia, and Pennsylvania.  Broughton v. Ward, 1 Tyl. 137, 139 (Vt.
1801);  Claytor v. Anthony, 27 Va. (6 Rand.) 285, 300-301 (1828);
Reitenbach v. Reitenbach, 1 Rawle 362, 365 (Pa. 1829).  This Court
first recognized the co-conspirator rule in United States v. Gooding,
25 U.S. (12 Wheat.) 459 (1827).  Justice Story, the author of that
opinion, made clear in his constitutional treatise that he did not
perceive any inconsistency between the Confrontation Clause and
traditional hearsay exceptions.  The Confrontation Clause, he wrote,
"does but follow out the established course of the common law in all
trials for crimes.  The trial is always public;  the witnesses are
sworn, and give their testimony (at least in capital cases) in the
presence of the accused." 3 J. Story, Commentaries on the Constitution
662 (2d ed. 1833).

   In our view, this history weighs very heavily against the view that
the traditional co-conspirator rule -- with criteria for admissibility
that include no requirement of a showing of unavailability or of an
individualized determination of reliability of particular statements
otherwise satisfying the rule -- is inconsistent with the
Confrontation Clause.

   5. The meaning of the Confrontation Clause is also illuminated by
the views of judges of the early and mid-19th century, who evinced no
doubt about the origin and scope of the right to confrontation and
were firmly of the view that this right did not call into question the
validity of traditional hearsay exceptions.

   In Woodsides v. State, 3 Miss. (2 Howard) 655 (1837), the
Mississippi High Court of Errors and Appeals held that the
confrontation clause in the state constitution did not preclude the
admission of a dying declaration.  The court stated (id. at 665) that
the confrontation requirement "was but an affirmation of a long
cherished principle of the common law," i.e., that "the accused is
secured in the right of an oral examination of the opposing witnesses,
and of the advantages of a cross-examination." Admission of a dying
declaration did not abridge the defendant's right "to be confronted
with the witness against him," the court explained (ibid.), because
"the murdered individual is not a witness." "It is the individual who
swears to the statements of the deceased that is the witness" (ibid.).

   During this period, several other state courts heard similar
objections to the admission of dying declarations, to which they
invariably gave the same answer.  The Supreme Court of Tennessee wrote
(Anthony v. State, 19 Tenn. (Meigs) 265, 277-278 (1838)), that the
purpose of the state confrontation clause "was not to introduce a new
principle" but to perpetuate a right won in England "after a long
contest" with the crown.  The Supreme Court of Georgia wrote (Campbell
v. State, 11 Ga. 353, 374 (1852)):

         The right of a party accused of a crime, to meet the
      witnesses against him, face to face, is no new principle.  It is
      coeval with the Common Law. * * * The argument for the exclusion
      of the testimony (respecting the dying declaration), proceeds
      upon the idea that the deceased is the witness, when in fact it
      is the individual who swears to the statements of the deceased,
      who is the witness. * * *

         The admission of dying declarations in evidence, was never
      supposed, in England, to violate the well-established principles
      of the Common Law, that the witnesses against the accused should
      be examined in his presence.

See also, e.g., State v. Tilghman, 33 N.C. (11 Ired.) 513, 554 (1850);
 Commonwealth v. Carey, 16 Mass. (12 Cush.) 246 (1851);  Lambeth v.
State, 23 Miss. 322, 357 (1852);  Walston v. Commonwealth, 55 Ky. (16
B. Mon.) 15, 35 (1855);  State v. Waldron, 16 R.I. 191, 193-195
(1888).

   6. As we have seen, the jurists and scholars of the 18th and early
19th centuries saw no contradiction between the right to confrontation
and the admission of out-of-court statements falling within exceptions
to the hearsay rule.  For them, the difference between trial by
affidavit and the recognition of hearsay exceptions was so obvious
that they apparently saw no need to articulate the reasons for
prohibiting the former while allowing the latter.  But the reasons can
easily be explained.

   An affidavit or deposition, particularly if created ex parte, is
ordinarily nothing but a less desirable substitute for live testimony.
 It can be as detailed and comprehensive as the direct examination of
a live witness.  It can be crafted to make out all of the elements of
a criminal charge.  It is usually created with litigation in mind and
thus is subject to all of the slanting and distortion that the
pressures of litigation may produce.  It is also usually created in
the presence or with the cooperation (and thus under the potential
influence) of one of the parties.

   Most admissible hearsay shares none of these characteristics.  It
often consists of a few utterances (see, e.g., Fed. R. Evid. 803 (1)
(present sense impressions), 803 (2) (excited utterances)).  It is
rarely made during or even in contemplation of litigation (see, e.g.,
Fed. R. Evid. 803(5) (past recollection recorded), 803(6) (business
records)).  And most admissible hearsay is widely thought to have
probative value independent of whatever testimony the declarant might
later give at trial.  To take just one of many possible examples, a
statement made for purposes of medical diagnosis or treatment (see
Fed. R. Evid. 803(4)), when the declarant's health may lie in the
balance, is thought to have a probative significance quite independent
of and possibly greater than testimony that the declarant might later
give in court.  It is for this reason that the common law did not
condition use of most hearsay exceptions upon a showing of
unavailability by the proponent of the evidence and that 23 of 27
specific hearsay exceptions in the Federal Rules of Evidence apply
irrespective of the declarant's availability.  Compare Fed. R. Evid.
803(1)-(23) with Fed. R. Evid. 804(b)(1)-(4).

   There are, however, a few types of potentially admissible hearsay
that can aptly be compared to an affidavit or deposition, and it is
there that the requirements of the Confrontation Clause and the
hearsay rules overlap.  Former testimony (see Fed. R. Evid. 804(b)(1))
is the most striking example.  Absent special circumstances, former
testimony is simply a next-best substitute for live testimony and
therefore is admissible as substantive evidence under the Federal
Rules only if the declarant is unavailable.  Former testimony may be
similar in breadth and detail to live testimony.  It occurs in a court
proceeding -- often a proceeding related to that in which it is later
sought to be introduced.  And even when accompanied by
cross-examination, former testimony is thought to be generally less
reliable than live testimony becuase the trier of fact cannot observe
the witness's demeanor.  Fed. R. Evid. 804(b)(1) advisory committee
note.

   A third party's confession, which may fall within the modern
exception for declarations against penal interest (Fed. R. Evid.
804(b)(3)), is another example of hearsay that may properly be subject
to close regulation under the Confrontation Clause.  Confessions may
have all the breadth and detail of an affidavit or deposition.  And
like the affidavits and depositions obtained by examining magistrates
in the 17th century, confessions are generally obtained ex parte, in
contemplation of litigation, and with the participation of
prosecutorial authorities.

   The court of appeals' erroneous decision in the present case
resulted from a failure to appreciate the difference between those
types of potentially admissible hearsay that are analogous to ex parte
affidavits and depositions and are thus properly subject to close
Confrontation Clause scrutiny and the remaining traditional hearsay
exceptions, which should be regarded as presumptively valid.

 B. This Court's Confrontation Clause Decisions Have Closely Regulated
The Admission Of Former Testimony But Have Treated Most Other
Traditional Hearsay Exceptions As Presumptively Valid

   This Court's Confrontation Clause cases disclose a three-part
approach to the admission of hearsay.  First, this Court has closely
regulated the admission of hearsay, such as former testimony, that is
broadly analogous to an affidavit or deposition.  The vast bulk of
this Court's Confrontation Clause cases have dealt with former
testimony and thus fall into this category.  Second, the Court has not
subjected other traditional hearsay exceptions to the same close
regulation.  Recognizing that the Confrontation Clause and the hearsay
rule both embody the view that live testimony, with an opportunity for
cross-examination, is generally the most reliable form of evidence,
the Court has regarded time-tested hearsay exceptions as presumptively
consonant with the Constitution.  Third, the Court has held out the
possibility of closer examination of any new and radical departures
from traditional hearsay rules.

   1. Most of this Court's Confrontation Clauses cases dealing with
hearsay have concerned the propriety of admitting former testimony.
As previously noted, former testimony is comparable in several
critical respects to an affidavit or deposition, and thus close
regulation of this type of hearsay is consistent with the historical
roots of the confrontation right.

   This close examination has focused first upon the availability of
the declarant to give live testimony.  As earlier discussed, former
testimony usually is simply an inferior substitute for live testimony,
and accordingly there is generally no reason to admit former testimony
if live testimony can reasonably be obtained.  Thus, from the Court's
first Confrontation Clause case, Reynolds v. United States, 98 U.S.
145 (1879), to Ohio v. Roberts, 448 U.S. 56 (1980), the Court has
explored the circumstances in which there is sufficient reason to
permit the prosecution to use a substitute for live testimony.  The
Court has found adequate cause for admitting former testimony where
the absence of the declarant was procured by the defendant (Reynolds,
98 U.S. at 158-161), where the declarant had died (Mattox v. United
States, 156 U.S. 237 (1895)), where the declarant had left the country
and was beyond the reach of the court's process (Mancusi v. Stubbs,
408 U.S. 204 (1972)), and where the declarant was a young person who
had left home, was "traveling," and could not be located by her
parents or by the authorities (Ohio v. Roberts, supra).  By contrast,
the Court has held that resort to former testimony was not justified
where the government negligently allowed the declarant to slip out of
the courthouse before testifying (Motes v. United States, 178 U.S. 458
(1900)), and where the state did not pursue available procedures for
obtaining the presence in court of a declarant incarcerated in a
federal prison in another state (Barber v. Page, 390 U.S. 719 (1968)).

   Roberts summarized this case law as follows (448 U.S. at 65):

      In the usual case (including cases where prior cross-examination
      has occurred), the prosecution must either produce, or
      demonstrate the unavailability of, the declarant whose statement
      it wishes to use against the defendant.  See Mancusi v. Stubbs,
      408 U.S. 204 (1972);  Barber v. Page, 390 U.S. 719 (1968).  See
      also Motes v. United States, 178 U.S. 458 (1900);  California v.
      Green, 399 U.S. at 161-162, 167 n.16.  /7/

   /7/ A demonstration of unavailability, however, is not always
required * * *.

   The court of appeals in this case (Pet. App. 12a) interpreted this
passage to mean that a demonstration of unavailability is generally
required before any hearsay can be admitted, but in our view this
statement must have been intended to describe only the exception for
former testimony.  The four cases cited by the Court all involved
former testimony.  The Court's suggestion that "the usual case" may
feature "prior cross-examination" also indicates that the Court had
former testimony in mind, since no other type of hearsay statement is
likely to have been subjected to prior cross-examination.  Moreover,
since most traditionally admissible hearsay has a probative value
independent of any testimony that the declarant might later give, it
would be strange to bar the admission of such hearsay on the ground
that the declarant was available to testify.  Twenty-three of the 27
specific hearsay exceptions recognized in the Federal Rules of
Evidence do not require the unavailability of the declarant.  Fed. R.
Evid. 803, 804.  If the court of appeals' reading of Roberts were
correct, all of these exceptions (and thus a substantial portion of
the federal hearsay rule) would contravene the Confrontation Clause.
We do not believe that the Roberts Court intended to embrace such a
revolutionary proposition in such an offhand manner.

   In addition to unavailability, the second question in this Court's
former testimony cases has been whether the former testimony was given
under circumstances providing sufficient guarantees of
trustworthiness.  All hearsay exceptions identify circumstances
thought to provide sufficient assurance of reliability that it is
deemed better to let the fact-finder hear and weigh the evidence than
to exclude it entirely.  For example, some types of hearsay are
thought to possess qualities of reliability because uttered in
circumstances that preclude reflection or conscious fabrication /28/
or in circumstances in which the declarant has a strong self-interest
in making a truthful statement.  /29/ With respect to former
testimony, which lacks these reassuring characteristics,
trustworthiness is instead advanced by legal procedures at the
proceeding in which the former testimony is given.  In its former
testimony cases, this Court has considered the adequacy of these
safeguards and has found them satisfactory where the former testimony
was given under oath and was cross-examined, or where there was at
least opportunity and similar motive for cross-examination or its
equivalent.  See Reynolds, 98 U.S. at 161;  Mattox, 156 U.S. at 249;
California v. Green, 399 U.S. 149, 165-168 (1970);  Ohio v. Roberts,
448 U.S. at 67-73.  Not only is this close examination of the
trustworthiness of former testimony consistent with the historical
purpose of the Confrontation Clause, but it is singularly appropriate
in this context because it entails an evaluation of court procedures
rather than the psychological judgments about human behavior outside
the courtroom that underlie most of the other traditional hearsay
exceptions.

   Besides these former testimony cases, the Court has also decided
several Confrontation Clause cases involving the use of third-party
confessions.  As previously noted, such confessions, like former
testimony, bear sufficient resemblance to ex parte affidavits or
depositions to call for close examination under the Confrontation
Clause.  Accordingly, in Douglas v. Alabama, 380 U.S. 415 (1965), the
Court found a Confrontation Clause violation where the prosecuting
attorney, in the guise of refreshing the recollection of an accomplice
who refused to testify on the ground of self-incrimination, read the
accomplice's confession to the jury.  And in Bruton v. Unites States,
391 U.S. 123 (1968), the Court held that the Confrontation Clause was
violated by the admission at a joint trial of a confession made by a
non-testifying defendant and implicating his co-defendant.  /30/

   2. The Court has taken a very different approach to other
traditional hearsay exceptions.  On the few occasions when such
exceptions have been challenged under the Confrontation Clause, the
challenges were firmly rebuffed.  In Delaney v. United States, 263
U.S. 586, 590 (1924), the Court rejected a Confrontation Clause
objection to the admission of co-conspirator statements, tersely
observing that the statements were "within the ruling of the cases" of
this Court recognizing the co-conspirator rule.  Two years later, in
Salinger v. United States, 272 U.S. 542, 547-548 (1926), the Court
considered a Confrontation Clause challenge to documentary evidence
admitted as res gestae.  Noting that the evidence had hearsay and
non-hearsay components (272 U.S. at 547-548), the Court rejected the
Confrontation Clause argument, stating (id. at 548):

         The right of confrontation did not originate with the
      provision in the Sixth Amendment, but was a common-law right
      having recognized exceptions.  The purpose of that provision,
      this Court often has said, it to continue and preserve that
      right, and not to broaden it or disturb the exceptions.  * * * *
      The present contention attributes to the right a much broader
      scope than it had at common law * * *.

   The Court has also repeatedly commented on the presumptive
constitutionality of statements falling within traditional hearsay
exceptions.  In Mattox, 156 U.S. at 237, the Court stated that the
Clause must be interpreted "in the light of the law as it existed at
the time it was adopted," including "exceptions (that were) recognized
long before the adoption of the Constitution * * * (and that) were
obviously intended to be respected" (id. at 243).  Noting the settled
hearsay exception for dying declarations, the Court stated (id. at
243-244) that "no one would have the hardihood at this day to question
their admissibility." See also Pointer v. Texas, 380 U.S. at 407.

   In Dutton v. Evans, 400 U.S. 74 (1970), which involved a state
provision expanding the traditional co-conspirator rule, the plurality
noted and appeared to disapprove (id.at 80) the lower court's
interpretation of the Confrontation Clause, because it would
"require() a reappraisal of every exception to the hearsay rule, no
matter how long established in order to determine whether * * * it is
supported by 'salient and cogent reasons.'" The plurality continued
(400 U.S. at 80) that it did "question the validity of the
co-conspirator exception applied in the federal courts."

   Ohio v. Roberts, supra, capsulized this approach by stating that
"certain hearsay exceptions rest upon such solid foundations that
admission of virtually any evidence within them comports with the
'substance of the constitutional protection'" (448 U.S. at 66, quoting
Mattox, 156 U.S. at 244).

   The reasons for this approach are apparent.  Although doctrinally
discrete, the Confrontation Clause and the hearsay rule are both based
upon the view that live testimony with the opportunity for
cross-examination is generally the best procedure for discovering the
truth.  But more than 400 years of experience have given rise to many
refinements of the general prohibition against hearsay, and a
consensus has been reached, both here and throughout the common-law
world, that certain types of hearsay statements are sufficiently
trustworthy to permit their admission and evaluation by the trier of
fact.  This Court has declined to overrule the collective judgment of
the countless common law judges, scholars, and legislators whose
experiences and thinking are embodied in the traditional hearsay
exceptions.  As the Court succinctly put it in Roberts (448 U.S. at
66):  "Reliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception."

   The concept of "reliability" in hearsay and Confrontation Clause
analysis is both narrower and broader than one might generally
suppose.  It is narrower, in part, because the question raised by an
objection to hearsay on the ground of reliability is not whether the
particular evidence is true or believable (much live testimony, after
all, is neither) but whether the evidence is by its nature so
misleading that the trier of fact should not even be allowed to hear
it.  Moreover, when this Court is called upon to propound a standard
of constitutionally required reliability, the Court's task is not to
evaluate which of many possible rules of admission or exclusion is the
soundest "purely as a matter of the law of evidence" (California v.
Green, 399 U.S. at 155).  Rather, the Court must articulate durable,
national standards that will assure minimum levels of trial fairness
without unduly restricting federal and state evidence law either now
or for the future.

   The concept of "reliability" in the present context is broader than
might otherwise be assumed because the judgment underlying most of the
traditional hearsay exceptions is that statements falling within those
categories "possess circumstantial guarantees of trustworthiness
sufficient to justify nonproduction of the declarant in person at
trial even though he may be available." Fed. R. Evid. 803 advisory
committee note (proposed rules) (emphasis added).  Thus, respect for
the process of incremental legal development that has refined the
traditional hearsay rules leads to the conclusion that evidence
falling within most of the traditional hearsay exceptions is
trustworthy enough for admission whether or not the declarant is
available.  It would be strange to defer to only one-half of this
unitary evolutionary judgment.

   3. While this Court has not questioned the constitutionality of
most traditional hearsay exceptions, it has left open the possibility
that novel exceptions or radical departures may be tested against
stricter standards.  In Dutton v. Evans, supra, as previously noted,
the Court considered the constitutionality of admitting evidence under
just such an exception -- a Georgia variation of the traditional
co-conspirator rule that permitted the admission of statements made
during the concealment phase of the conspiracy.  Without intimating
that it would be appropriate "to require a constitutional reassessment
of every established hearsay exception" (400 U.S. at 80), the Dutton
plurality weighed the constitutionality of admitting the
co-conspirator statement in that case and found no Confrontation
Clause violation.  In support of this conclusion, the plurality noted
that the challenged statement was "of peripheral significance" (400
U.S. at 87), that the co-conspirator's statement bore indicia of
reliability" (id. at 89), and that the value of cross-examining the
co-conspirator declarant was "wholly unreal" (ibid.).

   At most, the Dutton plurality opinion suggests that novel hearsay
exceptions may be subject to closer analysis than those that have
become established through the common law process.  We see little
justification for the drastic view of those courts, including the
Third Circuit, that have read Dutton to restructure the law of
evidence by introducing a general requirement that each piece of
hearsay evidence be separately assessed for reliability even if it
falls within a general class recognized under the law of evidence as
admissible despite its hearsay character.  /31/ Instead, the Dutton
plurality should be taken at its word, i.e., that it was merely
"deciding the case before (it)" (400 U.S. at 86).  Moreover, two of
the four members of the plurality, Justice Blackmun and the Chief
Justice, thought that the case could have been decided on the basis of
harmless error (id. at 90-93), and the fifth member of the majority,
Justice Harlan, would have adopted Wigmore's view that the
Confrontation Clause does not "'prescribe what kinds of testimonial
statements * * * shall be given infra-judicially'" (400 U.S. at 94,
quoting 5 Wigmore on Evidence Section 1397, at 131 (3d ed. 1940)).
/32/

      c. Reevaluating The Co-Conspirator Rule And Other Traditional
      Hearsay Exceptions Under The Confrontation Clause Would Be
      Pointlessly Duplicative And Disruptive And Would Stultify The
      Evolution Of Federal And State Rules Of Evidence

   1. If most traditional hearsay exceptions are not presumptively
constitutional, the Court will be compelled to reevaluate all of these
exceptions and the numerous variations that have grown up in federal
and state evidence law.  This would be, in our view, a pointlessly
duplicative process.  As we have observed, the traditional exceptions
to the hearsay rule embody the thinking and experience of generations
of judges, legislators, scholars, and practitioners about the kinds of
evidence that fact-finders may safely be permitted to consider.
Moreover, these exceptions have been forged with full consideration of
the very concepts -- reliability and availability of the declarant --
that this Court identified in Ohio v. Roberts, 448 U.S. at 65-66, as
material under the Confrontation Clause.  In developing the proposed
Federal Rules of Evidence, for example, the advisory committee
carefully considered whether each of the hearsay exceptions possessed
sufficient "guarantees of trustworthiness." Fed. R. Evid. art. VIII
advisory committee note.  The advisors likewise considered whether
each exception should contain a requirement of unavailability.  See
Fed. R. Evid. 803, 804 & advisory committee notes.  This scheme was
reviewed, revised, and adopted by this Court.  56 F.R.D. 183 (1972).
It was again reviewed, revised, and adopted by Congress.  Pub. L. No.
93-595, Section 1, 88 Stat. 1926.  It is puzzling, therefore, what it
is thought would be gained by repeating this process under the aegis
of the Confrontation Clause.

   The argument that this Court should reexamine the federal
co-conspirator rule under the light of the Confrontation Clause seems
particularly pointless, for that rule in its modern form is in every
sense the creation of this very Court.  This Court adopted the rule
more than a century and a half ago in United States v. Gooding, 25
U.S. (12 Wheat.) 460, 469-470 (1827), and since then has frequently
reaffirmed, applied, and refined it.  See, e.g., United States v.
Nixon, 418 U.S. 683, 701 (1974);  Anderson v. United States, 417 U.S.
211, 218 (1974);  Dutton v. Evans, 400 U.S. 74, 81 (1970);  Wong Sun
v. United States, 371 U.S. 471, 490 (1963);  Lutwak v. United States,
344 U.S. 604, 617-618 (1953);  Krulewitch v. United States, 336 U.S.
440, 442-443 (1949);  Glasser v. United States, 315 U.S. 60, 74-75
(1942);  Wiborg v. United States, 163 U.S. 632, 657-658 (1896);  Clune
v. United States, 159 U.S. 590, 593 (1895);  St. Clair v. United
States, 154 U.S. 134, 149-150 (1894);  Brown v. United States, 150
U.S. 93, 97-98 (1893);  Logan v. United States 144 U.S. 263, 308-309
(1892);  Nudd v. Burrows, 91 U.S. 426, 438 (1875);  Lincoln v.
Claflin, 74 U.S. (7 Wall.) 132, 138-139 (1868);  American Fur Co. v.
United States, 27 U.S. (2 Pet.) 358, 364 (1829).  /33/ It seems to us
virtually inconceivable that the Third Circuit and like-minded courts
could be correct in their recent and astonishing discovery that this
firmly anchored and carefully evolved body of doctrine articulated by
this Court over the past 150 years fails to meet basic constitutional
minima established in the Bill of Rights.

   2. Our point is not that the traditional hearsay rules or the
federal or state variations are perfect and should never be
reexamined.  On the contrary, periodic reexamination and refinement
are essential.  But this task should not be performed by this Court
under the authority of the Confrontation Clause.  Constitutionalizing
the hearsay rules would stunt their development and preclude
beneficial experimentation both at the federal and state levels.  Both
the Court and individual Justices have frequently observed that the
Confrontation Clause should not be interpreted in a way that would
stulify this development.  See, e.g., Ohio v. Roberts, 448 U.S. at
64-65;  Dutton v. Evans, 400 U.S. at 80, 86 n.17;  California v.
Green, 399 U.S. at 156;  id. at 171-172 (Burger, C.J., concurring).

   The review of hearsay exceptions under the Confrontation Clause
would also be enormously disruptive.  To take the Federal Rules of
Evidence as an example, this Court has thus far addressed the
constitutionality of only two of the 27 specific exceptions -- former
testimony and dying declarations.  If each of the remaining 25
exceptions, as well as the exemptions in Rule 801, must now be
reassessed under the Confrontation Clause, the mode of proof in
federal trials will be thrown into doubt pending the outcome of this
reassessment.  And the same will be true of all of the state
variations.  This thought is particularly sobering in view of the many
decisions, from Reynolds in 1879 to Roberts in 1980, that have been
required to hammer out the constitutional constraints affecting the
single hearsay exception for former testimony.

      D. Even If The Federal Co-Conspirator Rule Is Reevaluated Under
      The Confrontation Clause, No Sound Constitutional Policy
      Justifies Striking Down The Settled Rule That Co-Conspirator
      Declarations Are Admissible Without Regard To The Availability
      Of The Declarant

   The court of appeals held in this case that the government may not
introduce a statement falling within the co-conspirator rule unless it
also produces the declarant or shows that he is unavailable to testify
(Pet. App. 12a).  This rule would exact a grave toll on the resources
of the criminal justice system and would create a serious potential
for disruption of prosecutions without benefiting the defendant in any
significant legitimate way and without serving the Confrontation
Clause's "mission (of) advanc(ing) "the accuracy of the
truth-determining process in criminal trials.'" Tennessee v. Street,
No. 83-2143 (May 13, 1985), slip op. 6, quoting Dutton v. Evans, 400
U.S. at 89.

   In assessing the practical wisdom of the court of appeals' rule,
several factors must be kept in mind.  First, not every case in which
the prosecution wishes to introduce co-conspirator declarations will
be as geographically or temporally compact as this one or involve just
a few readily identifiable and locatable declarants.  In the
prosecution of large-scale drug conspiracy or organized crime cases,
there may be literally dozens of conspirators whose statements the
prosecution proposes to introduce.  The task of locating, bringing to
court, and adjudicating the testimonial availability of all of these
individuals (none of whom the parties have independently decided to
call as witnesses) can be massive indeed, and it is required by the
decision below in every case, even though the defendant is under no
obligation to ask a single question of any of these declarants once
the prosecution has produced them.

   l. The unjustifiable costs associated with the court of appeals'
rule take several forms:

   a. The first type of cost arises from the duty to produce the
declarant in the court or satisfactorily demonstrate his physical
unavailability.  Even with respect to those individuals whose identity
and whereabouts are known at the time of trial, this can be a
burdensome and expensive undertaking.  To begin with, because the
co-conspirator/declarants are participants in criminal activity, many
of them will be incarcerated, sometimes in facilities far removed from
the venue of the trial.  The problems associated with the need to
transport such individuals to and from the courtroom under guard are
manifest.

   Among those co-conspirator/declarants who are not in custody and
have not agreed to be prosecution witnesses, many if not most will
have little interest in assisting the government in discharging its
burden of production -- especially if they realize that their failure
to appear in court may delay or disrupt the prosecution's case or even
preclude the admission of statements damaging to the defendants.  Many
of these individuals may still be in league with, or at least
sympathetic to, the defendants who are on trial;  they may be
relatives, close friends, or business associates.  Even if not
personally sympathetic, they may fear that their appearance in court
would lead to retaliation.  Consequently, what will frequently happen
is just what happened here.  The co-conspirator/declarant will not
appear in court as requested, making various excuses such as "car
problems," illness, or lapse of memory.  Until the declarant has
disobeyed a subpoena (and thus disrupted the trial proceedings on at
least one occasion), there will be no cause for issuing a bench
warrant;  and until a warrant is issued, the government has no ability
to compel the attendance of a balky witness.

   The failure of a declarant like Lazaro in this case to appear in
court as requested will cause very serious practical problems.  If he
is apparently only temporarily unreachable -- because he purportedly
"has gone fishing," or is visiting a distant relative or taking a
short vacation, or simply hasn't shown up in court for reasons as yet
undetermined -- he may not be "unavailable" within the meaning of the
court of appeals' rule (indeed, he probably would not be considered
unavailable within the meaning of this Court's precedents if the
purpose of the inquiry were to determine the propriety of using former
testimony).  In such circumstances, the government would have the task
of quickly finding the individual and bringing him in.  Failing that,
the court would be forced to grant a continuance (especially
undesirable where the jury is sequestered), exclude the
co-conspirator's statements, or perhaps even declare a mistrial if the
statements have been previously admitted subject to later production
of the witness by the prosecution.  Once it is commonly understood
that the temporary disappearance of the declarant can have such
consequences, the frequency of such occurrences is likely to increase
dramatically.

   b. Apart from the burdens and expenses of securing the physical
presence in court of known and locatable co-conspirator/declarants,
the court of appeals' rule imposes heavy costs on both prosecutors and
courts arising from the process of establishing that declarants who
have not appeared or who refuse to testify are indeed unavailable.
/34/

   In many instances, the declarant will not be identified by the
prosecution or will not be locatable at the time of trial.  In such
cases, it will presumably be the prosecution's obligation to show the
investigative avenues it pursued to identify or locate the declarant,
and this in turn will lead to litigation about whether other leads or
investigative techniques were reasonably available that might have
brought about production of the declarant in court.  The burden of
showing in such cases that the co-conspirator/declarant cannot be
found will be an onerous one, especially in prosecutions involving
large-scale conspiracies that have operated over a period of years.
Consider for instance the situation in which a conspiratorial
conversation recorded by electronic surveillance includes statements
made by unidentified speakers or speakers identified only by their
first names or by aliases.  How far must the prosecution go in its
efforts to identify and produce such persons?  See United States v.
Ordonez, 737 F.2d at 802 (government failed to make sufficient showing
that unknown maker of entries in drug business's ledger was
unavailable).  Consider also the case of a known declarant who has
disappeared between the time of indictment and trial.  To what extent
does the government's duty of production make it a guarantor of the
individual's availability at trial?

   The existence of these kinds of questions opens virtually unlimited
vistas of trial and appellate litigation whenever the government fails
to produce the co-conspirator/declarant in court.  /35/ But even when
produced, the declarant is likely to refuse to testify, necessitating
the conduct of a hearing to evaluate any claim of privilege or an
adjudication of contempt before a valid finding of unavailability may
be made.  /36/

   c. Finally, even when the prosecution has brought to court a
declarant who is willing to or can be compelled to testify, it is not
clear from the court of appeals' opinion that its obligations are
satisfied.  The court held that the co-conspirator must be "produce(d)
* * * for cross-examination." Pet. App. 12a;  see also United States
v. Caputo, 758 F. 944, 952 (3d Cir. 1985).  Does this mean that the
prosecution must conduct a direct examination of a co-conspirator who
may well be in the defense camp and whose anticipated testimony the
prosecution does not believe is true?  What questions must be asked?
If the court of appeals' decision requires the prosecutor to do
anything more than make the co-conspirator available to be called by
the defense, it constitutes a severe intrusion upon prosecutorial
prerogative.

   2. If the substantial costs associated with locating, producing,
and litigating at trial and on appeal the availability or
unavailability of every co-conspirator/declarant were offset by real
and substantial gains to the fairness and reliability of the criminal
trial, perhaps it would be justified to hold that the broadly accepted
rule of evidence that has evolved over the years to regulate the
admission of co-conspirator declarations is so fundamentally flawed as
to be unconstitutional.  In point of fact, however, the rule announced
by the court of appeals in this case is likely to be almost all cost
and no benefit.

   a. First, the requirement cannot be justified on the ground that it
serves to limit admission of an inferior type of evidence.  Unless the
prosecution makes a blunder in jumping through the necessary hoops,
the evidence will be admitted.  If the declarant is available and is
produced, his out-of-court statements (unlike prior testimony) are
fully admissible under the court of appeals' holding.  And if the
declarant is unavailable and the government shows this in court, his
out-of-court statements are likewise to be admitted.  /37/

   b. Even though the evidence is admissible whether the declarant is
unavailable or is produced, there will of course be some cases in
which, like here, the prosecution fails to produce the declarant but
also fails to demonstrate unavailability to the satisfaction of the
trial court (leading, as discussed above, to continuance, exclusion of
evidence, or mistrial) or to the satisfaction of the court of appeals
(leading to reversal of the conviction).  The possibility of such
results will no doubt provide substantial incentives to prosecutors to
do all in their power (at the cost of considerable drain on available
investigative and prosecutive resources) to assure that
co-conspirator/declarants are produced in court.  But there is little
basis for concluding that these added incentives to the prosecution
will materially increase the number of co-conspirator/declarants who
can actually be made available to testify;  and to the extent some are
made available who otherwise would not be, it is by no means clear
that they would be called upon by the defense to give evidence.  In
other words, the new constitutional requirement created by the court
of appeals cannot be justified on the basis that it will bring needed
additional evidence before the trier of fact.

   To begin with, if a declarant is slated to testify for either the
prosecution or the defense independently of any rule relating to the
admissibility of his out-of-court statements, the court of appeals'
decision will not produce any additional evidence for consideration by
the trier of fact.  Accordingly, we deal here only with those
declarants whom neither side wishes to call to the stand as part of
its case.  Here, for example, the defense did not subpoena the
declarant Lazaro or make any other efforts to secure his presence in
court.  /38/

   Despite the added incentives to produce
non-witenss/co-conspirator/declarants generated by the court of
appeals' rule, we think it quite clear that their actual availability
to give testimony will not be materially increased.  Many of these
individuals will not be locatable despite reasonable efforts to do so,
and most of those produced in court will invoke the Fifth Amendment
privilege (see note 40, supra).

   But even as to those non-witness/declarants who can be produced in
court and are willing to or can be compelled to give testimony, we
seriously doubt whether the defense will actually wish to examine
them.  After all, these are potential witnesses whom the defense has
not independently elected to call as part of its case.  Many of them
will be individuals whose present sympathies are in doubt and whose
likely testimony cannot reliably be ascertained, making it too risky
for either party to examine them.  Others, if forced to testify, would
give evidence favorable to the prosecution.  And even as to those
declarants who would be prepared to disavow the making of the
declaration introduced by the prosecution, testify that it was a lie,
or give it an exculpatory explanation, many of them would be subject
to such devastating cross-examination by the prosecution that their
testimony would be worthless or positively damaging to the defense.
In the instant case, respondent's counsel, while demanding that the
government prove Lazaro's unavailability (J.A. 17), was unwilling to
commit herself to having him testify if available to do so (J.A. 18).

   In general, if the defense would not call such an individual as
part of its case (whether as a regular or a hostile witness), it is
not all clear why the defense would wish to examine the individual if
produced by the government pursuant to a Confrontation Clause
obligation.  In any event, in those few cases in which (1) the witness
is available to testify and (2) the defense actually wants to question
him at trial, it will ordinarily be as easy for the defense to arrange
for the declarant's appearance as for the prosecution to do so (as it
would have been here).  It simply makes no sense to allocate to the
prosecution the burden of producing or proving the unavailability of
every co-conspirator/declarant rather than simply requiring the
defense to call as witnesses those very few who are in fact available
and whose testimony the defense actually desires.  In sum, we
seriously doubt whether the court of appeals' rule, while gravely
burdening the criminal process, will produce anything more than
negligible benefits.

 II. IF PROOF OF UNAVAILABILITY IS A PREREQUISITE FOR ADMISSION OF A
CO-CONSPIRATOR STATEMENT, THE COURT OF APPEALS SHOULD HAVE ORDERED A
REMAND HEARING TO DETERMINE THE QUESTION OF UNAVAILABILITY RATHER THAN
ORDERING A NEW TRIAL

   Even if the court of appeals were correct in holding that the
government may not introduce a co-conspirator statement without
producing the declarant or establishing that he is unavailable, the
court erred in ordering a new trial without giving the government an
opportunity on remand to prove unavailability.  At trial, the district
court admitted Lazaro's taped conversations without demanding proof of
unavailability.  Because of this ruling, proof of unavailability would
have been superfluous;  the government had already won the evidentiary
contest.  Accordingly, the government should not be penalized for
failing to prove a point that, at the time of trial, it had no reason
to prove.

   Even more important, requiring a new trial without a remand hearing
would gratuitously punish society and waste judicial and prosecutorial
resources if, on a remand hearing, the government would be able to
show that Lazaro was indeed unavailable.  In such an event, his
out-of-court statements were properly admitted and there would be no
need for a retrial.  A retrial would be a wasteful and meaningless
gesture because it would simply duplicate the first trial:  the
identical proof would be presented to a new jury.  In the meantime,
this unnecessary replay of the first trial will preclude the judge and
prosecutor from trying another case.  Both society and other
defendants will suffer from the delay of trials that had already been
scheduled.  See United States v. Gibbs, 739 F.2d 838, 857-858 (3d Cir.
1984) (en banc) (Seitz, J., dissenting).

   This Court has repeatedly eschewed remedies that are more harsh
than needed to correct the asserted error.  See, e.g., United States
v. Bagley, No. 84-48 (July 2, 1985);  United States v. Hasting, 461
U.S. 499 (1983);  United States v. morrison, 449 U.S. 361 (1981);
Unites States v. Blue, 384 U.S. 251, 255 (1966).  This Court has shown
particular reluctance to grant relief where the asserted error has not
diminished the reliability of the verdict.  See United States v. Leon,
No. 82-1771 (July 5, 1984), slip op. 7-9.  In the present case, if
Lazaro was in fact unavailable, and there was no Confrontation Clause
violation, allowing the government to prove his unavailability after
rather than before the out-of-court statements were introduced does
not in any way reflect on the proof of respondent's guilt.

   This Court has expressly recognized the advantage of remanding for
a limited hearing that would give the trial court an opportunity to
apply the correct law where the result of doing so might be to obviate
the need for retrial of the entire case.  Thus, in Goldberg v. United
States, 425 U.S. 94 (1976), the Court remanded the case to the
district court for a determination whether, under the correct
standard, the particular writings in question qualified as Jencks Act
material that the government should have produced.  Id. at 111.  In so
doing, the Court stated (id. at 111-112 (footnote omitted))

      (W)e do not think that this Court should vacate (petitioner's)
      conviction and order a new trial, since petitioner's rights can
      be fully protected by a remand to the trial court with direction
      to hold an inquiry consistent with this opinion.  The District
      Court will supplement the record with findings and enter a new
      final judgment of conviction if the court concludes after the
      inquiry to reaffirm its denial of petitioner's (Jencks Act)
      motion.  This procedure will preserve petitioner's opportunity
      to seek further appellate review on the augmented record.  On
      the other hand, if the court concludes that the Government
      should have been required to deliver the material, or part of
      it, to petitioner, and that the error was not harmless, the
      District Court will vacate the judgment of conviction and accord
      petitioner a new trial.

See also, e.g., Walker v. Georgia, No. 83-321 (May 21, 1984), slip op.
9-11;  United States v. Wade, 388 U.S. 218, 242 (1967);  Jackson v.
Denno, 378 U.S. 368, 394 (1964);  Brady v. Maryland, 373 U.S. 83,
88-91 (1963);  Campbell v. United States, 365 U.S. 85, 98-99 (1961).
The court of appeals should have followed the same procedure here.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Acting Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   SAMUEL A. ALITO, JR.

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney

   AUGUST 1985

   /1/ Marianne Lazaro, who was named as an unindicted co-conspirator
and who testified for the government under a grant of use immunity,
denied that the bag found by the agent was the same one that her
husband had given her (Tr. 505-506).

   /2/ See 4 D. Louisell & C. Mueller, Federal Evidence Section 427,
at 331 (1980).

   /3/ E.g., Boone v. Marshall, 760 F.2d 117 (6th Cir. 1985);  United
States v. Molt, 758 F.2d 1198 (7th Cir. 1985);  Ohamano v. United
States, 468, F.2d 269, 273 (1st Cir. 1972), cert. denied, 409 U.S.
1128 (1973).  See United States v. Wolfe, No. 84-9009 (11th Cir. July
29, 1985), slip op. 5544 (co-conspirator statements presumptively
reliable;  issue of declarants' availability not presented).

   /4/ In addition to the instant case, see United States v. Caputo,
758 F.2d 944 (3d Cir. 1985) (availability);  United States v. Ammar,
714 F.2d 238, 254-257 (3d Cir. 1983), cert. denied, 464 U.S. 936
(1983) (reliability);  United States v. DeLuna, 763 F.2d 897 (8th Cir.
1985);  United States v. Ordonez, 737 F.2d 793, 802-804 (9th Cir.
1984);  United States v. Tille, 729 F.2d 615, 620-621 (9th Cir. 1984),
cert. denied, Nos. 83-6907 (Oct. 1, 1984).

   The Second and Tenth Circuits appear to take an intermediate
position, i.e., that whether or not the co-conspirator declarant is
available, the Confrontation Clause demands that the trier of fact
have an adequate basis for judging reliability.  See United States v.
Perez, 702 F.2d 33 (2d Cir. 1983) (adding that co-conspirator
statements are usually reliable because they are against penal
interest), cert. denied, 462 U.S. 1108 (1983);  United States v.
Wright, 588 F.2d 31, 37-38 (2d Cir.), cert. denied, 440 U.S. 917
(1979);  United States v. Alfonso, 738 F.2d 369 (10th Cir. 1984);
United States v. Roberts, 583 F.2d 1173, 1175-1176 (10th Cir. 1978),
cert. denied, 439 U.S. 1080 (1979).

   Fourth and Fifth Circuit precedent on this point are unclear.
Compare United States v. Lisotto, 722 F.2d 85, 88 (4th Cir. 1983),
cert. denied, No. 83-1417 (Mar. 26, 1984), with Unites States v. Lurz,
666 F.2d 69, 80-81 (4th Cir. 1981), cert. denied, 458 U.S. 1005
(1982);  see United States v. Peacock, 654 F.2d 339, 349 (5th Cir.
1981), cert. denied, 464 U.S. 965 (1983).

   /5/ See Haggins v. Warden, 715 F.2d 1050 (6th Cir. 1983) (excited
utterance);  United States v. Washington, 688 F.2d 953, 959 (5th Cir.
1982) (business records);  Lenzar v. Wyrick, 665 F.2d 804, 810-811
(8th Cir. 1981) (state-of-mind exception).

   /6/ 5 Wigmore Section 1430, at 275 ("This exception, as such, dates
back as far as the first half of the 1700s.");  McCormick on Evidence
680 (2d ed. 1972) (hereinafter cited as McCormick) ("as soon as we
find a hearsay rule we also find a recognized exception for dying
declarations").

   /7/ 5 Wigmore Section 1518, at 426-428;  McCormick 717-718;  3 W.
Blackstone, Commentaries on the Law of England 368 (1768).

   /8/ 5 Wigmore Section 1476, at 350.

   /9/ 3 Wigmore Section 735, at 78-84;  McCormick, 712.

   /10/ 5 Wigmore Section 1480, at 363;  McCormick, 745.

   /11/ 5 Wigmore Section 1580, at 544;  McCormick 748-759;  3 W.
Blackstone, supra, at 368.

   /12/ Misdemeanors were under the jurisdiction of the Star Chamber,
which followed essentially similar procedures. 1 Stephen, supra, at
338.

   /13/ Quoted in Pollitt, The Right of Confrontation:  Its History
and Modern Dress, 8 J. Pub. L. 381, 389 (1959).

   /14/ Stephen, Criminal Procedure From the Thirteenth to the
Eighteenth Century, in 2 Select Essays in Anglo-American Legal History
443, 506 (1908).

   /15/ Stephen, Criminal Procedure From the Thirteenth to the
Eighteenth Century in 2 Select Essays in Anglo-American Legal History,
supra, at 507.  See generally, Wolfram, John Lilburne:  Democracy's
Pillar of Fire, 3 Syracuse L. Rev. 213 (1952).

   /16/ See also 2 W. Hawkins, A Treatise of the Pleas of the Crown
429-431 (1721) (treating the admission of depositions taken pursuant
to the above-noted statutes and the admission of hearsay as two
separate questions).

   /17/ See 1 B. Schwartz, The Bill of Rights:  A Documentary History
235 (1971) (Va.);  id. at 265 (Pa.);  id at 277 (Del.);  id. at 282
(Md.);  id. at 287 (N.C.);  id. at 323 (Vt.);  id. at 341, 371
(Mass.);  id. at 377 (N.H.).

   /18/ 2 B. Schwartz, supra, at 665 (Pa.) unsuccessful proposal);
id. at 841 (Va.);  id. at 913 (N.Y).

   /19/ 2 B. Schwartz, supra, at 665.

   /20/ 2 B. Schwartz, supra, at 668.

   /21/ 2 B. Schwartz, supra, at 628.

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

   /23/ 1 B. Schwartz, supra, at 235.

   /24/ 2 B. Schwartz, supra, at 839.

   /25/ 2 B. Schwartz, supra, at 841.

   /26/ 1 Annals of Cong. 1785-1790 (1789).

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

   /28/ See, e.g., Fed. R. Evid. 803(1) (present sense impression),
803(2) (excited utterance), 803(3) (then existing mental, emotional,
or physical condition).

   /29/ See, e.g., Fed. R. Evid. 803(4) (statements for purposes of
medical diagnosis or treatment), 803(6) (records of regularly
conducted activity).

   /30/ See also Tennessee v. Street, No. 83-2143 (May 13, 1985) (no
Bruton violation where confession introduced for non-hearsay
purposes);  Parker v. Randolph, 442 U.S. 62 (1979) (application of
Bruton to interlocking confessions);  Brown v. United States, 411 U.S.
223, 230-232 (1973) (Bruton error harmless);  Schneble v. Florida, 405
U.S. 427 (1972) (Bruton error harmless);  Nelson v. O'Neill, 402 U.S.
622 (1971) (Bruton does not apply where co-defendant testifies in
defendant's favor and denies incriminating statement);  Harrington v.
California, 395 U.S. 250 (1969) (Bruton error harmless);  Roberts v.
Russell, 392 U.S. 293 (1968) (Bruton retroactive and applies to the
states).

   /31/ See, e.g., United States v. Ordonez, 737 F.2d 793, 802-804
(9th Cir. 1983);  United States v. Ammar, 714 F.2d 238, 254-257 (3d
Cir. 1983), cert. denied, 464 U.S. 936 (1983);  United States v.
Wright, 588 F.2d 31, 37-38 (2d Cir. 1978), cert. denied, 440 U.S. 917
(1979);  United States v. Kelley, 526 F.2d 615, 620-621 (8th Cir.
1975), cert. denied, 424 U.S. 971 (1976);  United States v. Snow, 521
F.2d 730, 734-735 (9th Cir. 1975), cert. denied, 423 U.S. 1090 (1976).

   /32/ In addition to the cases surveyed in the text, the Court has
decided Confrontation Clause cases that did not concern the admission
of evidence and are thus not relevant for present purposes.  Some of
these cases involved restrictions on cross-examination.  E.g., Davis
v. Alaska, 415 U.S. 308 (1974);  Chambers v. Mississippi, 410 U.S. 284
(1973);  Smith v. Illinois, 390 U.S. 129 (1968);  Brookhart v. Janis,
384 U.S. 1 (1966).  Others, like Illinois v. Allen, 397 U.S. 337
(1970), concerned the defendant's right to be present at trial.  See
also Snyder v. Massachusetts, 291, U.S. 97 (1934) (due process not
violated by pretrial view of murder scene by jury without defendants'
presence).

   The unusual cases of Kirby v. United States, 174 U.S. 4 (1899), and
Dowdell v. United States, 221 U.S. 325 (1911), also did not concern
the admission of evidence.  In Kirby, the Court struck down a statute
providing that in a prosecution for receipt and possession of stolen
stamps the thieves' judgment of conviction was conclusive proof that
the stamps were stolen.  Invoking the Confrontation Clause, the first
Justice Harlan noted (174 U.S. at 54) that the defendant against whom
the judgments were admitted had not been present at the thieves' trial
and that, as a non-party, he could not have cross-examined them even
if he had been there.  But as the second Justice Harlan suggested
(Dutton v. Evans, 400 U.S. at 98-99), the more fundamental error was a
misapplication of principles of res judicata that amounted to a denial
of due process.  See Sandstrom v. Montana, 442 U.S. 510 (1979);  cf.
Fed. R. Evid. 803(22).

   Dowdell likewise did not involve the admission of hearsay but what
is perhaps best viewed as judicial notice of court records relating to
a claim of procedural error.  The Supreme Court of the Philippine
Islands had directed the trial judge, court reporter, and court clerk
to forward certificates relating whether the defendants had been
arraigned, whether they had entered a plea, and whether they had been
present at their trials (221 U.S. at 327-328).  This Court held that
the right of confrontation allowed this procedure because the trial
judge, reporter, and clerk did not "testify to facts concerning * * *
guilt" (id. at 330-331).

   /33/ Moreover, Fed. R. Evid. 801(d) (2) (E) was promulgated by this
Court in precisely its present form.  56 F.R.D. at 293.  From the
Preliminary Draft of The Proposed Rules of Evidence submitted by the
Advisory Committee of the Judicial Conference in March 1969 (see 46
F.R.D. 161, 331 (1969);  Rule 8-01(c)(3)(v)), through the final
version of the Rules submitted by this Court to Congress and passed by
Congress in 1975, Pub. L. No. 93-595, art. VIII, 88 Stat. 1938, the
co-conspirator exception remained unchanged and engendered no
controversy.  Both the Advisory Committee (see Fed. R. Evid.
801(d)(2)(E) advisory committee note) and the Senate committee (see S.
Rep. 93-1277, 93d Cong., 2d Sess. 26-27 (1974)), viewed this rule as a
codification of federal laws as it had evolved in the courts.

   /34/ Because the co-conspirator rule is used so much more often
than any of the hearsay exceptions contained in Fed. R. Evid. 804, the
burden of showing unavailability would far exceed that for those
situations in which such a showing is required by rule.

   /35/ This point is well illustrated by the disagreement between the
majority and the dissent in Ohio v. Roberts, supra, on whether
unavailability had been satisfactorily demonstrated.

   /36/ The majority of co-conspirator/declarants are likely to have a
Fifth Amendment privilege available to refuse to testify regarding the
conspiracy in which they were involved and the statements made by them
during its course.  (Even if already convicted of an offense or
offenses arising from the conspiracy, there will remain a risk --
theoretical if not real -- of prosecution for related offenses or for
the same offenses by a different sovereign.) Unless they have already
agreed to cooperate with the prosecution or the defense by testifying
at trial (and the present issue does not concern such individuals),
they are likely to invoke their privilege and to be in fact
unavailable.  Even where it is obvious that this is what will
transpire, the court of appeals' decision appears to require bringing
these individuals to court solely for the formality of having them
claim their privilege before the judge.

   The court of appeals though this burden could be alleviated by
allowing the assertion of the privilege by affidavit, as its amended
opinion suggests (Pet. App. 18a).  Many co-conspirator/declarants,
however, will not obligingly sign these affidavits, perhaps requesting
the appointment of counsel to advise them with respect to their
obligation to be available to testify.  In addition, it is far from
clear that defendants can be required to accept such affidavits rather
than having the court assess the claim of privilege in light of
specific questions that the defendant might propound.  See Hoffman v.
United States, 341 U.S. 479 (1951);  United States v. Rodriguez, 706
F.2d 31, 34, 37 (2d Cir. 1983);  United States v. Horton, 629 F.2d
577, 579 (9th Cir. 1980);  United States v. Goodwin, 625 F.2d 693, 701
(5th Cir. 1980);  United States v. Hodgson, 492 F.2d 1175, 1177 (10th
Cir. 1974).

   /37/ If the court of appeals' rule were recast in the mold of Fed.
R. Evid. 804 to prohibit the admission of co-conspirator statements
unless the declarant is unavailable, the rule would be objectionable
on other grounds.  Unlike former testimony, statements made by a
co-conspirator in furtherance of a conspiracy are not an inferior
substitute for live testimony by the declarant, but have discrete and
independent probative value.  Between the time the statements are made
and the time of the trial, the situation of the declarant will have
necessarily undergone such a dramatic transformation that his
testimony will inevitably be seen in a very different light.  This
will be so whether at the time of trial he is cooperating with
government, is allied with the defendants (out of sympathy or fear),
or occupies a less well-defined position.  Thus, the rule requiring
unavailability as a prerequisite for the admission of co-conspirator
statements, unlike the unavailability requirement applicable to former
testimony, cannot be defended as a best evidence rule.  Davenport, The
Confrontation Clause and the Co-Conspirator Exception in Criminal
Prosecutions:  A Functional Analysis, 85 Harv. L. Rev. 1378, 1403
(1972).  Live testimony is different from but not necessarily better
than statements made during the execution of the conspiracy.

   /38/ Moreover, if the defense had subpoenaed Lazaro, the case would
be more properly analyzed under the Compulsory Process rather than the
Confrontation Clause.