When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence. But if the declarant is unavailable, no "better" version of the evidence exists, and the former testimony may be admitted as a substitute for live testimony on the same point. Those same principles do not apply to co-conspirator statements. Because they are made while the conspiracy is in progress, such statements provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court.
Following a jury trial in federal district court, defendant Inadi was convicted of conspiring to manufacture and distribute methamphetamine, and related offenses. Part of the evidence consisted of taped conversations between various participants in the conspiracy. Defendant sought to exclude the recorded statements of the unindicted co-conspirators, including one Lazaro, on the ground that they did not satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E), which provides that a statement by a co-conspirator of a party made "during the course and in furtherance of the conspiracy" is not hearsay when offered against the party. Inadi also objected to the admission of the statements on Confrontation Clause grounds, contending that they were inadmissible absent a showing that the declarants were unavailable. The district court held that the statements satisfied Rule 801(d)(2)(E), and admitted the statements, conditioned on the prosecution's commitment to produce Lazaro. The Government subpoenaed Lazaro, but he failed to appear, and defense counsel made no effort to secure his presence. The court then overruled Inadi's renewed Confrontation Clause objections, holding that Lazaro's statements were admissible because they satisfied the co-conspirator rule. The Court of Appeals reversed, holding, in reliance on Ohio v. Roberts, 448 U.S. 56, that although Rule 801(d)(2)(E) had been satisfied, the Confrontation Clause established an independent requirement that the Government, as a condition to admission of any out-of-court statements, must show the declarant's unavailability.
Does the Confrontation Clause require a proponent to show that a nontestifying co-conspirator was unavailable to testify, as a condition for admission of the coconspirator's out-of-court statements, when the statements satisfied Rule 801(d)(2)(E) in that that the statements were made in the course and in furtherance of the conspiracy?
On certiorari, the Supreme Court reversed, holding that the Confrontation Clause did not require petitioner to show that a nontestifying co-conspirator was unavailable to testify, as a condition for admission of the coconspirator's out-of-court statements, when the statements satisfied Rule 801(d)(2)(E) in that that they were made in the course and in furtherance of the conspiracy. The unavailability rule cannot be defended as a constitutional "better evidence" rule, because it does not actually serve to exclude anything, unless the prosecution makes the mistake of not producing an otherwise available witness. An unavailability rule is not likely to produce much testimony that adds anything to the "truth-determining process" over and above what would be produced without such a rule. The Compulsory Process Clause would have aided respondent in obtaining the testimony of any of these declarants. If the Government has no desire to call a co-conspirator declarant as a witness, and if the defense has not chosen to subpoena such a declarant, either as a witness favorable to the defense, or as a hostile witness, or for cross-examination under Federal Rule of Evidence 806, then it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant "available."