Restoring the Confrontation Clause to the Sixth Amendment

In contrast to the Supreme Court reaffirmation of Roberts's reliability prong, United States v. Inadi 15 effectively abandoned Roberts's unavailability branch.Inadi held that coconspirator statements of a nontestifying declarant can be admitted without a showing of unavailability.16The logic of this case, if applied to other hearsay areas, indicates that outof-court statements generally can be constitutionally introduced without producing an available declarant.The first step in forsaking the general unavailability requirement was to limit Roberts to its specifics, that is, to former testimony.'7 After deciding that it was not bound by the earlier case, the Inadi Court then wove together three strands of reasoning to reach its conclusion that the out-ofcourt statements of the available coconspirator could be admitted even if he did not testify.The first strand was the Court's explanation of Roberts, as now limited.Inadi concluded that former testimony 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.18 The Court continued that confrontation principles favor admitting the better evidence.19 Thus, if the declarant is available, his former testimony cannot be introduced; if he is unavailable, his prior testimony can be admitted since there is no better version of the evidence.20 15. 106 S. Ct. 1121 (1986).16.Id. at 1129. 17. Roberts should not be read as an abstract answer to questions not presented in that case ....Roberts simply reaffirmed a longstanding rule . . .that applies unavailability analysis to prior testimony.... 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.Id. at 1125-26.18. Id. at 1126.19."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."Id.20.