infringe the constitutional right of confrontation, on the ground that it embraces limitations and exceptions just as does the hearsay rule itself. See, e.g., Douglas v. Alabama, 380 U.S. 415, 418 (1965) (dictum); Pointer v. Texas, 380 U.S. 400, 407 (1965); Kirby v. United States, 174 U.S. 47, 61 (1899); Mattox v. United States, 156 U.S. 237 (1895).

Still more important is the fluidity of the hearsay and confrontation rules' contours and exceptions. Created by the courts through the process of common law adjudication, they have remained subject to judicial expansion, contraction, and restatement as learning and experience have advanced. Congress itself has amended the hearsay rule and exceptions, see, e.g., 28 U.S.C. § 1733 (government records), and the rule-making process, too, has been involved. See, e.g., Fed. R. Crim. P. 27 (government records). Such expansion of admissibility is, in short, not inconsistent with the limitations of the Constitution. As Mr. Justice Cardozo wrote for the Supreme Court in Snyder v. Massachusetts, 291 U.S. 97, 107 (1934), "the exceptions [to the right of confrontation] are not even static, but may be enlarged from time to time if there is no material departure from the reason of the general rule.' I propose one such expansion.

In the area of organized crime, the existence of a conspiratorial relationship is usually shown either by circumstantial evidence, by the testimony of a coconspirator who has turned state's evidence, or by evidence of the out-of-court declarations or acts of a co-conspirator and of the accused himself.

Today, the co-conspirator declaration rule is unsually framed in these terms: Any declaration by one co-conspirator, voiced in furtherance of the conspiracy and during its pendency, is admissible against each co-conspirator, subject to the laying of an independent foundation of the existence of the conspiracy and the accused's participation in it. “Development in the Law-Conspiracy," 72 Harv. L. Rev. 920, 983-84 (1959).

It is my suggestion that this existing hearsay exception be enlarged by substituting for the present requirement that the declaration be in "furtherance" of the conspiracy requirements that there be facts or circumstances from which the "trustworthiness" of the declaration may be inferred and that the declaration relate to the character or the execution of the conspiracy.

The Subcommittee on Criminal Laws and Procedures had such a proposal under consideration as part of S. 30, the "Organized Crime Control Act of 1970," now P.L. 91-452. Hearings were held on the proposal, and it received the endorsement of a number of witnesses. See generally Measures Relating to Organized Crime, Hearings before the Subcommittee on Criminal Laws and Procedures, Committee on the Judiciary, United States Senate, 91st Cong., 1st Sess. (1969). It was not processed by the Subcommittee as part of the final bill largely out of a feeling that piece-meal reform was unwise and that this and related endeavours might well wait your work.

In support of the suggestion, I should like to draw your attention to the testimony in the hearings on the proposal of the Department of Justice and Professor Henry Ruth, then with the University of Pennsylvania Law School, now head of the Criminal Justice Coordinating Council in New York City. The Department fully supported the change and stated the need and justification for it in these terms:

The "co-conspirator's hearsay exception" is a firmly established exception to the general rule against the use of hearsay to establish criminal liability. Krulowitch v. United States, 336 U.S. 440, 443 (1949). The exception has come to rest in American jurisprudence on agency principles as articulated by Mr. Justice Story in United States v. Goodling, 25 U.S. (12 Wheat.) 460, 469 (1827), and the exception remains as yet unquestioned by the Supreme Court. See Bruton v. United States, 391 U.S. 123, 128 n. 3 (1968).

The rationale behind this proposed change apparently is that the "furtherance" requirement of this exception is of somewhat ill-defined meaning, but apparently an out-growth of the agency rationale which is sometimes stated in terms of res gestae landguage, but which many other courts interpret so broadly as to apply to anything that relates to the conspiracy. Since this reduces the requirement to relevancy, and since all evidence must be relevant, it is reasoned that the "furtherance" requirement is thus eliminated in substance if not in form. This being so, it is felt that something more, namely, the element of trustworthiness should be required.

The logic of this argument is quite compelling, and the substitution of the element of trustworthiness of relevant eivdence for the furtherance requirement would appear to be not only more realistic in terms of current judicial interpreta

tion but also more consistent with the policy behind this exception to the general rule of exclusion of hearsay evidence.

Criminal law conspiracy principles have been most effective in organized crime prosecutions, and there can be no doubt that the "co-conspirator's hearsay exception" has been a vital factor in their success. The continued vitality of this coconspirator rule is absolutely essential in conspiracy prosecutions of all types. Since the agency rationale which currently supports this exception is subject to increasing criticism by the courts and by the authorities in the field, it would seem only prudent to move away from this rationale toward a more realistic basis for the exception, that is from agency to trustworthiness.

The movement to eliminate the furtherance requirement began with Professor Morgan's examination of the soundness of the vicarious liability rationale in an article in 42 Harvard Law 461 (1939). As a result of Professor Morgan's article the furtherance requirement was eliminated both in the Uniform Rules of Evidence, 63(9), and in the Model Code of Evidence, Rule 508(b). It has also been approved by Professor McCormick, Evidence, Section 244 (1964).

The ambiguity of the furtherance requirement has caused considerable difficulty in the admission of testimony in conspiracy prosecutions, and more often than not a narrow construction of the term results in the exclusion of the Government's evidence. Few opportunities for appellate review of the principle have been occasioned since the Government has no right to appeal.

On the other hand, a conflict among the Circuit Courts exists in the cases of United States v. Birnbaun, 337 F.2d 490 (C.A. 2, 1964), where Judge Lumbard applies a strict agency construction to the furtherance requirement, and in International Indemnity Company v. Lehman, 28 F.2d 1 (C.A. 7, 1928), cert. denied, 278 U.S. 648, which is classically cited for the virtual abandonment of the furtherance requirement in favor of the test of relevancy.

In view of these authorities, then, and in view of the apparent reality that many courts have discarded the furtherance requirement in favor of relevancy, it would seem that this is an appropriate time to codify this principle. Perhaps an even more cogent reason for discarding the furtherance requirement which is based on agency and shifting the basis of the exception to trustworthiness, however, is the portent in several recent Supreme Court decisions, Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965); Barber v. Page, 390 U.S. 719 (1968); and Bruton v. United States, 391 U.S. 123 (1968), that the Supreme Court may be moving towards re-examination of the present theory sustaining the admissibility of co-conspirator's statements based on agency principles. These cases, while dealing with co-conspirator's statements sought to be admitted after the termination of the conspiracy, indicate that the right to confrontation under the Sixth Amendment still permits some traditional hearsay exceptions, based upon necessity and trustworthiness. In view of these decisions, therefore, it would seem that this would be a prudent time to enact this provision. (Hearings at 374-75)

Professor Ruth stated:

Existing law as to co-conspirator statements is founded upon the common law and in effect is a substantive extension of the agency doctrine that each conspirator is responsible for the acts of other conspirators in furtherance of the conspiracy. The theory rests upon a vicarious admission philosophy that each conspirator is an agent for the others and those others thereby adopt whatever each conspirator does and says in furtherance of one plan. Wigmore supports this theory against strong opposition from Morgan. See Wigmore, secs. 10791080a (3d ed. 1940). The furtherance principle was also retained in the California and New Jersey evidence codes adopted in 1965 and 1967 respectively.

On the other hand, the Model Code of Evidence and the Uniform Rules of Evidence omit the furtherance requirement in their practically identical Rules 508(b) and 63(9) (b) respectively. The Model Code provides:

***

"(b) the party and the declarant were participants in a plan to commit a crime or civil wrong and the hearsay declaration was relevant to the plan or its subject matter and was made while the plan was in existence and before its execution was complete. ***”

Four recent United States Supreme Court cases have re-examined hearsay exceptions insofar as admissibility at trial may conflict with the Sixth Amendment right to confrontation of witnesses at trial, a provision now applicable to the states. See Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965); Barber v. Page, 390 U.S. 719 (1968); and Bruton v. United States, 391 U.S. 123 (1968). In addition, the Court has just granted certiorari in Evans v. Dutton, 400

F.2d 826 (5th Cir. 1968). Each of the cases involve co-consiprator statements, but in each the statement sought to be admitted was made following the termination of the conspiracy. Thus, there is only a portent that the Supreme Court may be moving towards re-examination of admissibility of co-conspirator statements as vicarious admissions. The above cases do reveal applicable principles: (1) the confrontation doctrine is at the heart of a fair trial; (2) confrontation does not mean merely the right to cross-examine at some point of time; it includes a right of confrontation at trial where the jury can see the witness' demeanor; (3) the Sixth Amendment still permits some traditional hearsay exceptions, based upon necessity and trustworthiness; but a witness' unavailability at trial must be based upon cogent reasons and other indicia of strong reliability must be present.

Rejection of the furtherance requirement makes much sense to me. That requirement is necessary if one retains the vicarious admission theory. But that theory is quite strained in that authority to act for another does not necessarily imply authority to speak for another in those circumstances where such speaking is not in effect conduct in furtherance of the conspiracy. Reliability of the declarant seems really to be based upon a finding that a conspirator's statement is against his interest, whether that interest be penal, social or economic. And Title VII, in requiring the declaration to relate to the existence or execution of the conspiracy during the declarant's participation in it, moves towards this reliability. The further requirement of facts and circumstances implying trustworthiness builds upon the need for reliability. (Hearings pp. 337-38)

In addition, I note that the American Bar Association approved the elimination of the furtherance requirement when it approved the Uniform Rules of Evidence in 1953. See 30 A.B.A.J. 1029 (1953). Finally, the statutes of four states codify the rule omitting this requirement. See Ga. Code Ann. § 38-306; Kan. Stat. Ann § 60-460(1); Mont. Rev. Code Ann. § 93-401-27 (6); Ore. Rev. Stat. § 41, 910(6). My suggestion could be implemented by substituting the following language for Rule 801 (d) (2) (v) :

"A statement by a co-conspirator of a party during the course of the conspiracy, relating to the character or the execution of the conspiracy, and there were facts and circumstances from which its trustworthiness may be inferred."

The requirement of "relating," of course, speaks pretty much for itself. What I envision for the element of "trustworthiness" is not terribly different from the criterion now generally applicable in other hearsay exceptions. Corroboration by independent evidence would make it trustworthy. Sce e.g., Smith v. I nited States, 348 U.S. 147, 155 n. 3 (1954). It might have been voiced in circumstances making it especially credible. See, e.g., Holt v. United States, 94 F. 2d 90 (10th Cir. 1937) (deathbed confession excluded as not in furtherance). Normally, however, that the statement was against the penal interest of the declarant himself ought to suffice. See Model Code of Evidence § 508, Comment p. 251. ("These statements are likely to be true [since they] *** are usually made with a realization that they are against the declarant's interest.")

I have framed this suggestion as an amendment to Subdivision 801(d) (2) (v). And it could be rationalized there. However, it would seem far more logical to put it following Subdivision 804(d) where the requirement of “unavailability" would be fully applicable to it as an independent exception to the hearsay rule not founded on the doctrine of vicarious admission. See Testimony of Professor Ruth, Hearings at p. 338.

Statement against interest

In the main, I support the introduction into Federal law of the concept of declarations against not only material, but also penal interests. But I am seriously troubled with the scope of the Rule as it is now written.

Initially, it seems to me that the Rule ought to have some requirement of directness and immediateness. See McCormick § 253 p. 546. The rationale of the Rule is that such statements are trustworthy because people do not normally speak against themselves. This rationale is supportable to the degree that statement is directly and immediately against the declarant's interest, and conversely, unsupportable to the degree that the statement is merely indirectly or only remotely against a declarant's interest. We would be guaranteeing the trustworthiness of the evidence we admit if these thoughts were added to the rule.

Second, there ought to be some requirement that the fact asserted by the declarant be within the scope of his personal knowledge. See McCormick § 253, p. 546. The Supreme Court has been careful to accept hearsay in the context of showing of probable cause for search and seizure only where the declarant can

reasonably be said to have had personal knowledge of that about which he speaks. See, e.g., Spinelli v. United States, 393 U.S. 410 (1969). We should do no less here. Third, I believe that the rule goes too far when it accepts declarations against penal interest at their face value. I suggest that such declarations be admitted only when they are in such a form that they would qualify to convict the declarant himself. As you have phrased the Rule now, it will only apply to admit exculpatory evidence. It will not serve to admit incriminating evidence. (I will treat this aspect of the rule below.) On the assumption that this limitation is to remain, I think it unwise not to look more carefully at what you are proposing.

Homes in his classic dissent in Donnelly v. United States, 228 U.S. 243, 277 (1913) did not argue for the admission of such declaration simpliciter. He suggested that Joe Dick's confession of murder should be admitted to exculpate Donnelly when it was "coupled with circumstances pointing to its truth." He added, too, that there should be "no ground for connecting Donnelly with Dick."

I would apply a rule of corroboration to such declarations as strong as the rule we now apply to confessions where introduced for the purpose of conviction. See Smith v. United States, 348 U.S. 84 (1954). In each case, we are proving by the declarant's statement that he committee a crime. All of the reasons which lead us to demand that confessions be trustworthy when we seek to convict by their use apply when an accused seeks, in effect, to convict another by such a confession in order that he himself may go free.

Next, because of the special danger associated with jail-house testimony used to exculpate, I would provide that the prosecution have the right to obtain from the court an instruction to the jury that where the declarant himself had been involved in the past in criminal offenses that his statement should be received and credited only with the utmost care because of the special danger of perjury and the virtually universal experience of the untrustworthiness of such declarations. Lastly, I would omit entirely the last sentence of Subdivision 804(b)(1). On its face it does not state the law. Nelson v. O'Neill, 9 Crim. L. Reptr. 3184 (6–1–71) held that the use of a confession of a co-conspirator implicating the other defendant did not contravene the Sixth Amendment where the co-conspirator took the stand to testify, but disavowed the confession. When the principle of a declaration against interest is introduced, a witness should be, I suggest, considered "unavailable” if his present testimony is inconsistent with his prior confession, see United States v. DeSisto, 329 F. 2d 929 (2nd Cir. 1964), cert. denied, 377 U.S. 979 (1965), and such a declaration against interest should then be fully admissible against a fellow accused, at least where the declarant himself was available for cross-examination. Consequently, I would suggest that, consistent with your decision not to write the Rules in terms of their constitutional implications, this last clause be omitted and that the question of what use, if any, declarations against interests should have in criminal proceedings as evidence against an accused be left up to the Supreme Court for constitutional resolution.

I regret that the pressure of the hearings now being held by the Permanent Subcommittee on Investigations into organized crime and other committee work prevented me from preparing and forwarding these comments to you earlier. I followed with interest the issuance of March 1969 draft of the rules; it was received in the Subcommittee on Criminal Laws and Procedures on April 15, 1969. My attention was not drawn to the March 1971 draft, however, until the first part of July: apparently no copy of the revised draft was sent to either my office or to the Subcommittee. In this connection, it would be appreciated if you could arrange to forward to me periodically the results of your deliberations as these Rules continue to be considered.

In conclusion, I would be remiss if I did not repeat that although the bulk of these comments are critical, I fully support your effort and feel that the Rules, as a whole, promise to aid the accurate and just resolution of controversy in our Federal judicial system.

ADDENDUM

You may find it useful to know that these comments were prepared without the benefit of the views of the Department of Justice forwarded to you on August 9, 1971, and I submit them to you without revision in light of the Department's comments. I have, however, now examined the Deputy Attorney General's letter and its attachment. While I cannot say that I concur in or support each of the Department's criticisms, I urge you to give them most careful attention. My own feeling of uneasiness when I first reviewed the revised draft of March 1971 has been reenforced and underscored by many of the Department's comments. It

would be most unfortunate if the rules were forwarded to the Congress in a form with which the Department of Justice found itself in such substantial disagree

DEAR SENATOR MCCLELLAN: My attention has been called to your remarks in the Senate on August 5th in connection with the introduction of S. 2432. I was interested in your speech because I am, and have been for more than seven years, a member of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, to which you made reference on that occasion.

I was hospitalized for a considerable time last fall after a knee operation. As a result, I did not attend either of the meetings of the Standing Committee at which the proposed Rules of Evidence were considered. I took no part, as is reflected in the report of the Standing Committee to the Judicial Conference, in any of the actions of the Standing Committee with regard to the Evidence Rules.

Though I took no part in all of this, I am concerned by your suggestion that in Rule 609, embodying a form of the Luck rule, the Standing Committee took a position that "Congress had recently specifically disapproved." In all of the years that I have been associated with federal rulemaking, there has been the utmost deference by the various committees to the will of Congress and I do not know of any instance in which a rule has been proposed that would be contrary to a recent expression of the view of Congress.

I do not understand Rule 609 to be an exception to this. The Conference Report accompanying S. 2601, the bill that became the District of Columbia Court Reform and Criminal Procedure Act of 1970, said:

The language of the House amendment and the conference substitute is similar to the rule on impeachment recommended by the Advisory Committee on Rules of Evidence to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Should the Supreme Court of the United States subsequently promulgate as part of prescribed rules of evidence for all Federal courts a different rule of impeachment, the conferees suggest the appropriateness of Congress reconsidering the rule adopted in the conference substitute.

If I had been able to participate in the deliberations of the Standing Committee on the Evidence Rules, I would have read this language from the Conference Report as meaning that Congress was incorporating what the rulemakers were then proposing but that it recognized that the end result of the rulemaking process might be something quite different. On this reading, I would have thought that the Standing Committee, the Judicial Conference, and the Supreme Court were free to devise what they considered to be the best possible rule and were not limited by the provision adopted for the District of Columbia.

As you quite properly say in your remarks, "reasonable men can differ over the merits of the Luck rule." I know of no difference, however, on the proposition that the rulemakers should carefully heed the expressed will of Congress. I write you only to emphasize that my colleagues who made these changes in proposed Rule 609 could reasonably believe that they were not disregarding Congress in doing so. Sincerely yours,

PROF. CHARLES ALAN WRIGHT,

CHARLES ALAN WRIGHT,
McCormick Professor of Law.

SEPTEMBER 2, 1971.

The University of Texas at Austin School of Law, Austin, Tex.

DEAR PROFESSOR WRIGHT: I did not see your kind note of August 13th until my return from Arkansas after the summer recess. It is for this reason that my reply to you has been so long delayed.

The language from H. R. No. 91-1303, 91st Cong., 2d Sess. 231 (1970), quoted in your letter, was not understood by the Congress to have the meaning you suggest, and, it is my understanding, your reading of it does not, in fact, reflect the intent of the conferees.