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decided: March 10, 1986.



Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Rehnquist, Stevens, and O'connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 400.

Author: Powell

[ 475 U.S. Page 388]

 JUSTICE POWELL delivered the opinion of the Court.

This case presents the question whether the Confrontation Clause requires the Government to show that a non-testifying co-conspirator is unavailable to testify, as a condition for admission of that co-conspirator's out-of-court statements.


Following a jury trial in the Eastern District of Pennsylvania, respondent Joseph Inadi was convicted of conspiring to

[ 475 U.S. Page 389]

     manufacture and distribute methamphetamine, and related offenses. He was sentenced to three years' imprisonment to be followed by a 7-year parole term. The evidence at trial showed that in September 1979, respondent was approached by unindicted co-conspirator Michael McKeon, who was seeking a distribution outlet for methamphetamine. Respondent's role was to supply cash and chemicals for the manufacture of methamphetamine and to be responsible for its distribution. McKeon and another unindicted co-conspirator, William Levan, were to manufacture the substance.

In the course of manufacturing and selling methamphetamine, McKeon, Levan, and respondent met with another unindicted co-conspirator, John Lazaro, at an empty house in Cape May, New Jersey. There they extracted additional methamphetamine from the liquid residue of previous batches. In the early morning hours of May 23, 1980, two Cape May police officers, pursuant to a warrant, secretly entered the house and removed a tray covered with drying methamphetamine. With the permission of the issuing Magistrate, the officers delayed returning an inventory, leaving the participants to speculate over what had happened to the missing tray.

On May 25, 1980, two Drug Enforcement Administration agents in Philadelphia monitored a meeting between respondent and Lazaro alongside Lazaro's car. At one point one of the agents saw respondent lean into the car. After Lazaro drove off, the agents stopped his car. They searched the car, Lazaro, and a passenger, Marianne Lazaro, but they found nothing and let the Lazaros leave. Marianne Lazaro later recounted that during the search she threw away a clear plastic bag containing white powder that her husband had handed to her after the meeting with respondent. Eight hours after the search, one of the agents returned to the scene of the crime and found a clear plastic bag containing a small quantity of methamphetamine.

[ 475 U.S. Page 390]

     From May 23 to May 27, 1980, the Cape May County Prosecutor's Office lawfully intercepted and recorded five telephone conversations between various participants in the conspiracy. These taped conversations were played for the jury at trial. The conversations dealt with various aspects of the conspiracy, including planned meetings and speculation about who had taken the missing tray from the house and who had set Lazaro up for the May 25 stop and search. Respondent sought to exclude the recorded statements of Lazaro and the other unindicted co-conspirators on the ground that the statements did not satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E), governing admission of co-conspirator declarations.*fn1 After listening to the tapes the trial court admitted the statements, finding that they were made by conspirators during the course of and in furtherance of the conspiracy, and thereby satisfied Rule 801(d)(2)(E).

Respondent also objected to admission of the statements on Confrontation Clause grounds, contending that the statements were inadmissible absent a showing that the declarants were unavailable. The court suggested that the prosecutor bring Lazaro to court in order to demonstrate unavailability. The court also asked defense counsel whether she wanted the prosecution to call Lazaro as a witness, and defense counsel stated that she would discuss the matter with her client. The co-conspirators' statements were admitted, conditioned on the prosecution's commitment to produce Lazaro. The Government subpoenaed Lazaro, but he failed to appear, claiming car trouble. The record does not indicate that the defense made any effort on its own part to secure Lazaro's presence in court.

Respondent renewed his Confrontation Clause objections, arguing that the Government had not met its burden of showing

[ 475 U.S. Page 391]

     that Lazaro was unavailable to testify. The trial court overruled the objection, ruling that Lazaro's statements were admissible because they satisfied the co-conspirator rule.*fn2

The Court of Appeals for the Third Circuit reversed. 748 F.2d 812 (1984). The court agreed that the Government had satisfied Rule 801(d)(2)(E), but decided that the Confrontation Clause established an independent requirement that the Government, as a condition to admission of any out-of-court statements, must show the unavailability of the declarant. 748 F.2d, at 818. The court derived this "unavailability rule" from Ohio v. Roberts, 448 U.S. 56 (1980). The Court of Appeals rejected the Government's contention that Roberts did not require a showing of unavailability as to a non-testifying co-conspirator, finding that Roberts created a "clear constitutional rule" applicable to out-of-court statements generally. 748 F.2d, at 818. The court found no reason to create a special exception for co-conspirator statements, and therefore ruled Lazaro's statements inadmissible. Id., at 818-819.

We granted certiorari, 471 U.S. 1124 (1985), to resolve the question whether the Confrontation Clause requires a showing of unavailability as a condition to admission of the out-of-court statements of a non-testifying co-conspirator, when those statements otherwise satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E).*fn3 We now reverse.

[ 475 U.S. Page 392]



The Court of Appeals derived its rule that the Government must demonstrate unavailability from our decision in Roberts. It quoted Roberts as holding that "in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." 448 U.S., at 65. The Court of Appeals viewed this language as setting forth a "clear constitutional rule" applicable before any hearsay can be admitted. 748 F.2d, at 818. Under this interpretation of Roberts, no out-of-court statement would be admissible without a showing of unavailability.

Roberts, however, does not stand for such a wholesale revision of the law of evidence, nor does it support such a broad interpretation of the Confrontation Clause. Roberts itself disclaimed any intention of proposing a general answer to the many difficult questions arising out of the relationship between the Confrontation Clause and hearsay. "The Court has not sought to 'map out a theory of the Confrontation Clause that would determine the validity of all . . . hearsay "exceptions."'" 448 U.S., at 64-65, quoting California v. Green, 399 U.S. 149, 162 (1970). The Court in Roberts remained "[convinced] that 'no rule will perfectly resolve all possible problems'" and rejected the "invitation to overrule a near-century of jurisprudence" in order to create such a rule. 448 U.S., at 68, n. 9, quoting Natali, Green, Dutton, and Chambers : Three Cases in Search of a Theory, 7 Rutgers-Camden L.J. 43, 73 (1975). In addition, the Court specifically noted that a "demonstration of unavailability . . . is not always required." 448 U.S., at 65, n. 7. In light of these limiting statements, Roberts should not be read as an abstract answer to questions not presented in that case, but

[ 475 U.S. Page 393]

     rather as a resolution of the issue the Court said it was examining: "the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant's subsequent state criminal trial." Id., at 58.*fn4

[ 54 U.S.L.W. Page ]

     The Confrontation Clause analysis in Roberts focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. See Fed. Rule Evid. 804(b)(1). In particular, the Roberts Court examined the requirement, found in a long line of Confrontation Clause cases involving prior testimony, that before such statements can be admitted the government must demonstrate that the declarant is unavailable. See Mancusi v. Stubbs, 408 U.S. 204 (1972); California v. Green, supra; Barber v. Page, 390 U.S. 719 (1968); Berger v. California, 393 U.S. 314 (1968).*fn5 All of the cases cited in Roberts for this "unavailability rule" concern prior testimony. In particular, the Court focused on two cases, Barber and Mancusi, that directly "explored the issue of constitutional unavailability." 448 U.S., at 76. Both cases specifically limited the unavailability requirement to

[ 475 U.S. Page 394]

     prior testimony. Barber, supra, at 722; Mancusi, supra, at 211.

Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. All of these indicate that Roberts simply reaffirmed a longstanding rule, foreshadowed in Pointer v. Texas, 380 U.S. 400 (1965), established in Barber, and refined in a line of cases up through Roberts, that applies unavailability analysis to prior testimony.*fn6 Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.


There are good reasons why the unavailability rule, developed in cases involving former testimony, is not applicable to co-conspirators' out-of-court statements. Unlike some other exceptions to the hearsay rules, or the exemption from the hearsay definition involved in this case, former testimony often is only a weaker substitute for live testimony. It seldom has independent evidentiary significance of its own, but is intended to replace live testimony. If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better ...

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