LOCATION: Dow Chemical
DOCKET NO.: 84-1580
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 475 US 387 (1986)
ARGUED: Dec 03, 1985
DECIDED: Mar 10, 1986
Mr. Andrew L. Frey - on behalf of the petitioner
Holly Macuican - on behalf of the respondent
Holly Maguigan - on behalf of the respondent
Facts of the case
Media for United States v. Inadi
Audio Transcription for Oral Argument - December 03, 1985 in United States v. Inadi
Warren E. Burger:
We will hear arguments next in United States against Inadi.
You may proceed whenever you are ready, Mr. Frey.
Mr. Andrew L. Frey:
Thank you, Mr. Chief Justice, and may it please the Court, the question before the Court today is whether the Federal Rules of Evidence are unconstitutional insofar as they permit the introduction in evidence in a criminal trial of co-conspirator declarations without requiring the prosecution to produce the declare or to demonstrate his unavailability.
Now, in terms of potential impact, this may be the most important critical procedure case that the Court has had to decide in the years that I have been in the Solicitor General's office.
While affirmance of the Third Circuit's decision would probably have little impact on the trial as seen by the jurors, the behind the scenes effect on the allocation of criminal justice system resources would be dramatic.
On this case, which was a drug prosecution, the prosecution sought to use five recorded conversations as evidence against respondent.
Three of those conversations he was a party to, and we're between him and a co-conspirator, John Lazaro.
A fourth conversation was between two individuals who testified as prosecution witnesses at trial, and the fifth conversation was between Lazaro and a co-conspirator named Levin, who invoked the Fifth Amendment privilege and was found unavailable at trial.
Respondent demanded that the prosecution show the unavailability of any co-conspirator declarants, and to accommodate the District Court's practical wishes, the prosecution did subpoena Lazaro to appear for trial, but he failed to appear, allegedly due to car troubles.
Ultimately, the District Court ruled that Lazaro's statements on these intercepted conversations were admissible under the traditional co-conspirator exception now embodied in Rule 801 of the Federal Rules of Evidence.
The Court of Appeals reversed.
It, too, found that Rule 801 was satisfied, but it found that the confrontation clause was violated because the prosecution had not satisfactorily demonstrated that the co-conspirator Lazaro was unavailable to testify at trial.
Now, in reaching this ruling, it relied almost entirely on dicta from this Court's decision in Ohio against Roberts.
We have discussed at some length in our brief both the historical evolution of the confrontation right of common law and its adoption in the Sixth Amendment and the parallel but distinct development of the hearsay rule and exceptions, including the co-conspirator exception, and I have no intention of repeating that here.
Suffice it to say that the co-conspirator exception emerged simultaneously with the adoption of the confrontation right and the Sixth Amendment, and as it was refined during the period from 1780 to 1980, it was, as far as I know, never suggested by any Court or any legislature that a showing of unavailability of the extrajudicial declarant, co-conspirator, was required.
And the same is true, I might add, of the vast majority of other hearsay exceptions and exemptions.
Can it be that the judges, the legislators, the practitioners, and the scholars who have contributed to the evolution of the common law of evidence over this period and who contributed to the Federal Rules of Evidence, and in doing so, who took into account in their consideration of hearsay rules the very same interests that are said to underlie the confrontation clause, can it be that all of these people have so consistently violated fundamental principles of fair play embodied in the somewhat vague and general language of the Sixth Amendment?
Can it be that for decade after decade, thousands of state as well as federal courtrooms across the land have seen the basic right of confrontation repeatedly violated by the admission of co-conspirator declarations without any showing of the unavailability of the declarant?
We think that is not possible.
Far more likely, in our opinion, is the view that the dictum in Ohio against Roberts referred to the class of cases, that is, prior testimony and the like, in which the unavailability requirement in this Court's decisions cited in Roberts parallel a similar development of the hearsay rules.
Sandra Day O'Connor:
I am curious, Mr. Frey.
You talk about the tremendous significance of the issue.
As I understand it, several states have determined as a matter of state constitutional law to require the enforcement of proof of unavailability and reliability to produce evidence such as this in a co-conspirator situation.
Has the experience of those states been such that law enforcement agencies have been hampered in their--
Mr. Andrew L. Frey:
I am not sure that I am aware of what you are referring to.
As far as I know, and as far as I recollect from the respondent's brief, the development of this requirement of production or showing of unavailability is all post-1980, post the dictum in Ohio against Roberts, and it has happened in a number of federal courts, and I believe that when this Court speaks even in dictum, it does have a powerful effect on people.
I can't tell you what the experience has been, but I do hope to address some of the reasons why I think the costs and benefits clearly suggest that it is a bad rule.
Sandra Day O'Connor:
--Would it depend in part on how strictly one has to prove unavailability?
Mr. Andrew L. Frey:
That would be only a small part of the problem.
That would be a part of the problem, and that would be something that would have to be fleshed out over out over probably decades of litigation and numerous cases in this Court, as it has taken decades to flesh out the unavailability requirement in connection with prior testimony.