Federal Rule of Evidence 801(d)(2)(E) provides: "A statement is not hearsay if. . . [t]he statement is offered against a party and is. . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." We granted certiorari to answer three questions regarding the admission of statements under Rule 801(d)(2)(E): (1) whether the court must determine by independent evidence that the conspiracy existed and that the defendant and the declarant were members of this conspi racy; (2) the quantum of proof on which such determinations must be based; and (3) whether a court must in each case examine the circumstances of such a statement to determine its reliability.

In May 1984, Clarence Greathouse, an informant working for the Federal Bureau of Investigation, arranged to sell a kilogram of cocaine to Angelo Lonardo. Lonardo agreed that he would find individuals to distribute the drug. When the sale became imminent, Lonardo stated in a tape-recorded telephone conversation that he had a "gentleman friend" who had some questions to ask about the cocaine. In a subsequent telephone call, Greathouse spoke to the "friend" about the quality of the drug and the price. Greathouse then spoke again with Lonardo, and the two arranged the details of the purchase. They agreed that the sale would take place in a designated hotel parking lot, and Lonardo would transfer the drug from Greathouse's car to the "friend," who woul d be waiting in the parking lot in his own car. Greathouse proceeded with the transaction as planned, and FBI agents arrested Lonardo and petitioner immediately after Lonardo placed a kilogram of cocaine into petitioner's car in the hotel parking lot. I n petitioner's car, the agents found over $20,000 in cash.

Petitioner was charged with conspiring to distribute cocaine, in violation of 21 U.S.C. 846, and possession of cocaine with intent to distribute, a violation of 21 U.S.C. 841(a)(1). The Government introduced, over petitioner's objection, Angelo Lonardo's telephone statements regarding the participation of the "friend" in the transaction. The District Court found that, considering the events in the parking lot and Lonardo's statements over the telephone, the Government had established by a preponderance of the evidence that a conspiracy involving Lonardo and petitioner existed, and that Lonardo's statements over the telephone had been made in the course of and in furtherance of the conspiracy. Accordingly, the trial court held that Lonardo's out- of-court statements satisfied Rule 801(d)(2)(E) and were not hearsay. Petitioner was convicted on both counts and sentenced to 15 years. The United States Court of Appeals for the Sixth Circuit affirmed. The Court of Appeals agreed with the District Co urt's analysis and conclusion that Lonardo's out-of-court statements were admissible under the Federal Rules of Evidence. The court also rejected petitioner's contention that because he could not cross-examine Lonardo, the admission of these statements v iolated his constitutional right to confront the witnesses against him. We affirm.

Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy." Federal Rule of Evidence 104(a) provides: "Preliminary questions concerning. . . the admissibility of evi dence shall be determined by the court." Petitioner and the Government agree that the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court. The Federal Rules, however, nowhere define the standard of proof the court must observe in resolving these questions.

We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof. Evidence is placed before the jury when it satisfies the technical requirements of the evidentiary Rules, which embody certain legal and policy determinations. The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case or a civil case. The preponderance standard ensures that befo re admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration. As in Lego v. Twomey, 404 U.S. 477, 488, we find "nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard." We think that our previous decisions in this area resolve the matter. Therefore, we hold that when the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the

offering party must prove them by a preponderance of the evidence.

Even though petitioner agrees that the courts below applied the proper standard of proof with regard to the preliminary facts relevant to Rule 801(d)(2)(E), he nevertheless challenges the admission of Lonardo's statements. Petitioner argues that in determining whether a conspiracy exists and whether the defendant was a member of it, the court must look only to independent

evidence-- that is, evidence other than the statements sought to be admitted. Petitioner relies on Glasser v. United States, 315 U.S. 60, in which this Court first mentioned the so-called "bootstrapping rule." The relevant issue in Glasser was whethe r Glasser's counsel, who also represented another defendant, faced such a conflict of interest that Glasser received ineffective assistance. Glasser contended that conflicting loyalties led his lawyer not to object to statements

made by one of Glasser's co-conspirators. The Government argued that any objection would have been fruitless because the statements were admissible. The Court rejected this proposition: "[S]uch declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy. . . . Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence."

The Court revisited the bootstrapping rule in United States v. Nixon, 418 U.S. 683, where

again, in passing, the Court stated: "Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy." Read in the light most favorable to petitioner, Glasser could mean that a court should not consider hearsay statements at all in determining preliminary facts under Rule 801(d)(2)(E). Petitioner, of course, adopts this view of the bootstrapping rule. Glasser, however, could also mean that a court must have some proof aliunde, but may look at the hearsay statements themselves in light of this independent evidence to determine whether a conspiracy has been shown by a preponderance of the evidence. The Courts of Appeals have widely adopted the former view and held that in determining the preliminary facts relevant to co-conspirators' out-of-court statements, a court may not look at the hearsay sta tements themselves for their evidentiary value.

Both Glasser and Nixon, however, were decided before Congress enacted the Federal Rules of Evidence in 1975. These Rules now govern the treatment of evidentiary questions in federal courts. Rule 104(a) provides: "Preliminary questions concerning. . . the admissibility of evidence shall be determined by the court. . . . In making its determination it is not bound by the rules of

evidence except those with respect to privileges." Similarly, Rule 1101(d)(1) states that the Rules of Evidence (other than with respect to privileges) shall not apply to "[t]he determination of questions of fact preliminary to admissibility of evidenc e when the issue is to be determined by the court under rule 104." The question thus presented is whether any aspect of Glasser's bootstrapping rule remains viable after the enactment of the Federal Rules of Evidence.

Petitioner concedes that Rule 104, on its face, appears to allow the court to make the preliminary factual determinations relevant to Rule 801(d)(2)(E) by considering any evidence it wishes, unhindered by considerations of admissibility. That would se em to many to be the end of the matter. Congress has decided that courts may consider hearsay in making these factual determinations. Out-of-court statements made by anyone, including putative co-conspirators, are often hearsay. Even if they are, they may be considered, Glasser and the bootstrapping rule notwithstanding. But petitioner nevertheless argues that the bootstrapping rule, as most Courts of Appeals have construed it, survived this apparently unequivocal change in the law unscathed and that Rule 104, as applied to the admission of co-conspirator's statements, does not mean what it says. We disagree.

Petitioner claims that Congress evidenced no intent to disturb the bootstrapping rule, which was embedded in the previous approach, and we should not find that Congress altered the rule without affirmative evidence so indicating. It would be extraordi nary to require legislative history to confirm the plain meaning of Rule 104. The Rule on its face allows the trial judge to consider any evidence whatsoever, bound only by the rules of privilege. We think that the Rule is sufficiently clear that to the extent that it is inconsistent with petitioner's interpretation of Glasser and Nixon, the Rule prevails.

Nor do we agree with petitioner that this construction of Rule 104(a) will allow courts to admit hearsay statements without any credible proof of the conspiracy, thus fundamentally changing the nature of the co-conspirator exception. Petitioner starts with the proposition that co-conspirators' out-of-court statements are deemed unreliable and are inadmissible, at least until a

conspiracy is shown. Since these statements are unreliable, petitioner contends that they should not form any part of the basis for establishing a conspiracy, the very antecedent that renders them admissible.

Petitioner's theory ignores two simple facts of evidentiary life. First, out-of-court statements are only presumed unreliable. The presumption may be rebutted by appropriate proof. Second, individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts. Taken together, these two propositions demonstrate that a piece of evidence, unreliable in isolation, may become quite pro bative when corroborated by other evidence. A per se rule barring consideration of these hearsay statements during preliminary factfinding is not therefore required. Even if out-of-court declarations by co-conspirators are presumptively unreliable, trial courts must be permitted to evaluate these statements for their evidentiary worth as revealed by the particular circumstances of the case. Courts often act as factfinders, and there is no reason to believe that courts are any less able to properly recognize the probative value of evidence in this particular area. The party opposing admission has an adequate incentive to point out the shortcomings in such evidence before the trial court finds the preliminary facts. If the opposing party is unsuccessful in keeping the evidence from the factfinder, he still has the opportunity to attack the probative value of the evidence as it relates to the substantive issue in the case.

We think that there is little doubt that a co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy. Petitioner's case presents a paradigm . The out-of-court statements of Lonardo indicated that Lonardo was involved in a conspiracy with a "friend." The statements

indicated that the friend had agreed with Lonardo to buy a kilogram of cocaine and to distribute it. The statements also revealed that the friend would be at the hotel parking lot, in his car, and would accept the cocaine from Greathouse's car after G reathouse gave Lonardo the keys. Each one of Lonardo's statements may itself be unreliable, but taken as a whole, the entire conversation between Lonardo and Greathouse was corroborated by independent evidence. The friend, who turned out to be petitioner, showed up at the prearranged spot at the prearranged time. He picked up the cocaine, and a significant sum of money was found in his car. On these facts, the trial court concluded, in our view correctly, that the Government had established the existence of a conspiracy and petitioner's participation in it.

We need not decide in this case whether the courts below could have relied solely upon Lonardo's hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence. To the extent that Glasser meant that courts co uld not look to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a). It is

sufficient for today to hold that a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted. As we have held in other cases concerning admissibility determinations, "the judge should receive the evidence and give it such weight as his judgment and experience counsel." United States v. Matlock, 415 U.S., at 175. The courts below properly considered the statements of Lonardo and the subsequent events in finding that the Government had established by a preponderance of the evidence that Lonardo was involved in a conspiracy with petitioner. We have no reason to believe that the District Court's factfinding of this point was clearly erroneous. We hold that Lonardo's out-of-co urt statements were properly admitted against petitioner.

We also reject any suggestion that admission of these statements against petitioner violated his rights under the Confrontation Clause of the Sixth Amendment. That Clause provides: "In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him." At petitioner's trial, Lonardo exercised his right not to testify. Petitioner argued that Lonardo's unavailability rendered the admission of his out-of-court statements unconstitutional since petitioner had no opportunity to confront Lonardo as to these statements. The Court of Appeals held that the requirements for admission under Rule 801(d)(2)(E) are identical to the requirements of the Confrontation Clause, and since the statements were admissible u nder the

Rule, there was no constitutional problem. We agree.

While a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as "unintended and too extreme." Ohio v. Roberts, 448 U.S. 56, 63. Rather , we have attempted to harmonize the goal of the Clause-- placing limits on the kind of evidence that may be received against a defendant-- with a societal interest in accurate factfinding, which may require consideration of out-of-court statements. To accommodate these competing interests, the Court has, as a general matter only, required the prosecution to demonstrate both the unavailability of the declarant and the "indicia of reliability" surrounding the out-of-court declaration. Last Term in United States v. Inadi, 475 U.S. 387, we held that the first of these two generalized inquiries, unavailability, was not required when the hearsay statement is the out-of-court declaration of a co-conspirator. Today, we conclude that the second inquiry, independent indicia of reliability, is also not mandated by the Constitution.

The Court's decision in Ohio v. Roberts laid down only "a general approach to the problem" of reconciling hearsay exceptions with the Confrontation Clause. In fact, Roberts itself limits the requirement that a court make a separate inquiry into the reliability of an out-of-court statement. Because "'hearsay rules and the Confrontation Clause are generally designed to protect similar values,' California v. Green, 399 U.S. [149, 155], and 'stem from the same roots,' Dutton v. Evans, 400 U.S. 74, 86," we concluded in Roberts that no independent inquiry into reliability is required when the evidence "falls within a firmly rooted hearsay exception." We think that the co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudenc e that, under this Court's holding in Roberts, a court need not independently inquire into the reliability of such statements. The admissibility of co-conspirators' statements was first established in this Court over a century and a half ago in United St ates v. Gooding, 12 Wheat. 460 (interpreting statements of co-conspirator as res gestae and thus admissible against defendant), and the Court has repeatedly reaffirmed the exception as accepted practice. In fact, two of the most prominent approvals of th e rule came in cases that petitioner maintains are still vital today, Glasser v.United States, 315 U.S. 60, and United States v. Nixon, 418 U.S. 683. . . . In Delaney v. United States, 263 U.S. 586, 590, the Court rejected the very challenge petitioner b rings today, holding that there can be no separate Confrontation Clause challenge to the admission of a co-conspirator's out-of-court statement. In so ruling, the Court relied on established precedent holding such statements competent evidence. We think that these cases demonstrate that co-conspirators' statements, when made in the course and in furtherance of the conspiracy, have a long tradition of being outside the compass of the general hearsay exclusion. Accordingly, we hold that the Confrontation Clause does not require a court to

embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).

The judgment of the Court of Appeals is affirmed.

I disagree with the Court in three respects: First, I do not believe that the Federal Rules of Evidence changed the long and well-settled law to the effect that the preliminary questions of fact, relating to admissibility of a nontestifying co-conspirator's statement, must be established by evidence independent of that statement itself. Second, I disagree with the Court's conclusion that allowing the co-conspirator's statement to be considered in the resolution of these factual questions will remedy problems of the statement's unreliability. In my view, the abandonment of the independent-evidence requirement will lead, instead, to the opposite result. This is because the abandonment will eliminate one of the few safeguards of reliability that this exemption from the hearsay definition possesses. Third, because the Court alters the traditional hearsay exemption--especially an aspect of it that contributes to the reliability of an admitted statement-- I do not believe that the Court can rely on the " firmly rooted hearsay exception" rationale, to avoid a determination whether any "indicia of reliability" support the co-conspirator's statement, as the Confrontation Clause surely demands.

The Court recognizes that, according to the common-law view of the exemption of a co-conspirator's statement from the hearsay definition, an offering party was required to establish, as preliminary factual matters, the existence of a conspiracy and a defendant's participation therein by evidence apart from the co-conspirator's statement. In the Court's view, this settled law was changed in 1975 by the adoption of the Federal Rules of Evidence, particularly Rules 104(a) and 1101(d)(1). As the Court ex plains, the plain language of Rule 104(a) allows a trial court to consider any information, including hearsay, in making preliminary factual determinations relating to Rule 801(d)(2)(E). Thus, reasons the Court, under the Rule a trial court should be able to examine the co-conspirator's statement itself in resolving the threshold factual question-- whether a conspiracy, to which the defendant belonged, existed. According to the Court, in light of Rule 104(a)'s "plain meaning" there is no need to take the "extraordinary" step of looking to legislative history for confirmation of this meaning.

[I]f the language of a rule plainly appears to address a specific problem, one naturally would expect legislative history (if it exists) to confirm this plain meaning. In this case, Rule 104(a) cannot be read apart from Rule 801(d)(2)(E), which was a codification of the common-law exemption of co-conspirator statements from the hearsay definition, an exemption that included the independent-evidence requirement. An examination of the legislative history of Rule 801(d)(2)(E) reveals that neither the dr afters nor Congress intended to transform this requirement in any way. In sum, the Court espouses an overly rigid interpretive approach; a more complete analysis casts significant and substantial doubt on the Court's "plain meaning" easy solution.

In order to understand why the Federal Rules of Evidence adopted without change the common-law co-conspirator exemption from hearsay, and why this adoption signified the Advisory Committee's intent to retain the exemption's independent-evidence require ment, it is useful to review briefly the contours of this exemption as it stood before enactment of the Rules. By all accounts, the exemption was based upon agency principles, the underlying concept being that a conspiracy is a common undertaking where the conspirators are all agents of each other and where the acts and statements of one can be attributed to all. As Judge Learned Hand explained this in a frequently quoted remark: "When men enter into an agreement for an unlawful end, they become ad hoc a gents for one another, and have made a 'partnership in crime.' What one does pursuant to their common purpose, all do, and, as declarations may be such acts, they are competent against all." Van Riper v. United States, 13 F.2d 961, 967 (CA2).

"[E]vidence of a statement by an agent concerning the existence or extent of his authority is not admissible against the principal to prove its existence or extent, unless it appears by other evidence that the making of such statement was within the authority of the agent or, as to persons dealing with the agent, within the apparent authority or other power of the agent." Restatement (Second) of Agency  285 (1958).

The reason behind this concept is that the agent's authority must be traced back to some act

or statement by the alleged principal.

Thus, unlike many common-law hearsay exceptions, the co-conspirator exemption from hearsay with its agency rationale was not based primarily upon any particular guarantees of reliability or trustworthiness that were intended to ensure the truthfulness of the admitted statement and to compensate for the fact that a party would not have the opportunity to test its veracity by cross-examining the declarant. As such, this exemption was considered to be a "vicarious

admission."³ Although not an admission by a defendant himself, the vicarious admission was a statement imputed to the defendant from the co-conspirator on the basis of their agency relationship. As with all admissions, an "adversary system, " rather than a reliability, rationale was used to account for the exemption to the ban on hearsay: it was thought that a party could not

complain of the deprivation of the right to cross-examine himself (or another authorized to speak for him) or to advocate his own, or his agent's, untrustworthiness. The co-conspirator "admission"

exception was also justified on the ground that the need for this evidence, which was particularly valuable in prosecuting a conspiracy, permitted a somewhat reduced concern for the reliability of the statement.

Although, under common law, the reliability of the co-conspirator's statement was never the primary ground justifying its admissibility, there was some recognition that this exemption from the hearsay rule had certain guarantees of trustworthiness, alb eit limited ones. This justification for the exemption has been explained: "Active conspirators are likely to know who the members of the conspiracy are and what they have done. When speaking to advance the conspiracy, they are unlikely to describe non- members as conspirators, and they usually will have no incentive to misdescribe the actions of their fellow members." Lempert & Saltzburg 395. And the components of the exemption were understood to contribute to this reliability. When making a stat ement "during the course of" and "in furtherance of" a conspiracy, a conspirator could be viewed as speaking from the perspective of all the conspirators in order to achieve the common goals of the conspiracy, not from self-serving motives. In particular , the requirement that a conspiracy be established by independent evidence also is seen to contribute to the reliability issue. Yet that requirement goes not so much to the reliability of the statement itself, as to the reliability of the process of admitting it: a statement cannot be introduced until independent evidence shows the defendant to be a member of an existing conspiracy.

The Federal Rules of Evidence did not alter in any way this common-law exemption to hearsay. The Rules essentially codify the components of this exemption: Rule 801(d)(2)(E) provides that the co-conspirator's statement, to be admissible against a part y, must be "by a coconspirator of a party during the course and in furtherance of the conspiracy." Moreover, the exemption was placed within the category of "not hearsay," as an admission, in contrast to the hearsay exceptions of Rules 803 and 804. The Advisory Committee explained that the exclusion of admissions from the hearsay category is justified by the traditional "adversary system" rationale, not by any specific "guarantee of trustworthiness" used to justify hearsay exceptions. See Advisory Committee's Notes on Fed.Rule Evid. 801, 28 U.S.C.App., p. 717.

[T]he Advisory Committee thus decided to retain the agency justification, in general, and the "in furtherance of" language, in particular, as a compromise position. . . . The Advisory Committee, however, expressed its doubts about the agency rationale and, on the basis of these doubts, plainly stated that the exemption should not be changed or extended: "[T]he agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established." Advisory Committee's Notes on Fed.Rule Evid. 801, 28 U.S.C.App., p. 718. In light of this intention not to alter the common-law exemption, the Advisory Committee's Notes thus make very clear that Rule 801(d)(2)(E) was to include all the components of this exempt ion, including the independent-evidence requirement.

Accordingly, when Rule 801(d)(2)(E) and Rule 104(a) are considered together-- an examination that the Court neglects to undertake-- there appears to be a conflict between the fact that no change in the co-conspirator hearsay exemption was intended by R ule 801(d)(2)(E) and the freedom that Rule 104(a) gives a trial court to rely on hearsay in resolving preliminary factual

questions. . . . The purposes of both Rules can be achieved by considering the relevant preliminary factual question for Rule 104(a) analysis to be the following: "whether a conspiracy that included the declarant and the defendant against whom a statement is offered has been demonstrated to exist on the basis of evidence independent of the declarant's hearsay statements." S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 735 (4th ed. 1986). This resolution sufficiently answers Rule 104(a)'s concern with allowing a trial court to consider hearsay in determining preliminary factual questions, because the only hearsay not available for its consideration is the statement at issue. The exclusion of the statement from the preliminary ana lysis maintains the common-law exemption unchanged.

[T]he Court cavalierly disregards these years of interpretative experience, as well as the rich history of this exemption, and arrives at its conclusion solely on the basis of its "plain meaning" approach.

The Court's second argument in favor of abandonment of the independent-evidence rule might best be characterized as an attempt at pragmatic or "real world" analysis. The Court suggests that, while a co-conspirator's statement might be presumed unreliable when considered in isolation, it loses this unreliability when examined together with other evidence of the conspiracy and the

defendant's participation in it. In the Court's view, such a consideration of the statement will reveal its probative value, as the facts of this case demonstrate. Proceeding in this "real world" vein, the Court believes that the trial court is capab le of detecting any remaining unreliability in the co-conspirator's statement and that the defendant is afforded the opportunity to point out any shortcomings of the out-of-court statement.

I, too, prefer an approach that includes a realistic view of problems that come before the Court. I am inclined, however, to remain with the traditional exemption that has been shaped by years of "real world" experience with the use of co-conspirator statements in trials and by a frank recognition of the possible unreliability of these statements.

As explained above, despite the recognized need by prosecutors for co-conspirator statements, these statements often have been considered to be somewhat unreliable. It has long been understood that such statements in some cases may constitute, at best , nothing more than the "idle chatter" of a declarant or, at worst, malicious gossip. Moreover, when confronted with such a statement, an innocent defendant would have a difficult time defending himself against it, for, if he were not in the conspiracy, he would have no idea why the conspirator made the statement. Even an experienced trial judge might credit an incriminatory statement that a defendant could not explain, precisely because the defendant had no ready explanation for it. Because of this ac tual "real world" experience with the possible unreliability of these statements, the Advisory Committee retained the agency rationale for this exemption in Rule 801(d)(2)(E), as well as the safeguards, albeit limited, against unreliability that this rationale provided the defendant. The independent-evidence requirement was one such safeguard.

[ T]hus [without this requirement], the Court removes one reliability safeguard from an exemption, even though the situation in which a co-conspirator's statement will be used to resolve the preliminary factual questions is that in which the court will rely most on the statement.

It is at least heartening, however, to see that the Court reserves the question whether a co-conspirator's statement alone, without any independent evidence, could establish the existence of a conspiracy and a defendant's participation in it. . . . If the statement alone could establish its own foundation for admissibility, a defendant could be convicted of conspiracy on the basis of an unsupported remark by an alleged conspirator-- a result that surely the Court could not countenance and that completely cuts the exception adrift from its agency mooring.

[T]oday, the Court concludes that the Constitution does not require any independent "indicia of reliability" for [a nontestifying co-conspirator's statement admitted under Rule 801(d)(2) (E)]. Relying upon Ohio v. Roberts, the Court reasons that no s uch "indicia" are needed to satisfy Confrontation Clause concerns, because the admissibility of these statements "'falls within a firmly rooted hearsay exception.'" In a footnote, the Court dismisses any suggestion that it is altering the co-conspirator h earsay exemption: in its view, the exemption essentially remains the same, and what has changed is merely a "method of proof."

In Roberts the Court did observe that, for Confrontation Clause purposes, "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." 448 U.S., at 66. . . [T]o answer the Confrontation Clause's concern for reliability with respect to a particular hearsay exception, one must examine what, if any, "indicia of reliability" it possesses. In addition, one must also see how "firmly rooted" the exception is, which suggests that, through experienc e in its use, the exception has proved to promote the "accuracy of the factfinding process."

The weakness of the Court's assertion-- that the Confrontation Clause concern about reliability vanishes because Rule 801(d)(2)(E)'s exemption of a co-conspirator's statement from the hearsay definition is a "firmly rooted hearsay exception"-- thus becomes immediately apparent. First, as has been explained and as its inclusion under the admissions rubric would indicate, this exemption has never been justified primarily upon reliability or trustworthiness grounds and its reliability safeguards are not extensive. Thus, it is surprising that, without any hesitation, the Court in this case turns to the "firmly rooted hearsay exception" rationale, which is based upon a confidence in adequate "indicia of reliability."

Second, and more astounding, is the Court's reliance upon the "firmly rooted hearsay exception" rationale as it simultaneously removes from the exemption one of the few safeguards against unreliability that it possesses. The Court cannot at all escape from this contradiction by dismissing its alteration of the exception as simply a change in "method of proof." Because the "firmly rooted hearsay exception" is defined in terms of its "indicia of reliability" for Confrontation Clause purposes, a removal of one of these "indicia" significantly transforms the co-conspirator exemption in a relevant respect. In addition, this change takes away from the exemption any weight that experience with its use by courts may have given it, thus undermining its "firmly rooted" status. In sum, the Court cannot have it both ways: it cannot transform the exemption, as it admittedly does, and then avoid Confrontation Clause concerns by conjuring up the "firmly rooted hearsay exception" as some benign genie who will extricate the Court from its inconsistent analysis.

With such a transformation in the co-conspirator hearsay exemption having been made, the Court's reliance upon Roberts' language concerning the "firmly rooted hearsay exception" is utterly misplaced. Rather, the pertinent language from Roberts becomes the sentence following the one quoted by the Court: "In other cases [where there is no "firmly rooted hearsay exception"], the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthi-ness." This showing, I believe , would involve an examination of the statement in terms of the factors outlined in Dutton v. Evans, 400 U.S. 74, 88-89. Intellectual honesty thus demands, at the very least, that, having changed this hearsay exemption, the Court remand the case to allow the lower courts to explore any "particularized guarantees of trustworthiness" the statement might have.

I respectfully dissent.