Page:United States Reports 502 OCT. TERM 1991.pdf/511

 502us2$25H 01-22-99 08:28:07 PAGES OPINPGT

Cite as: 502 U. S. 346 (1992)

353

Opinion of the Court

68, n. 9, that recognizes that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U. S. 149, 155 (1970), and “stem from the same roots,” Dutton v. Evans, 400 U. S. 74, 86 (1970). In Mattox itself, upon which the Government relies, the Court allowed the recorded testimony of a witness at a prior trial to be admitted. But, in the Court’s view, the result was justified not because the hearsay testimony was unlike an ex parte affidavit, but because it came within an established exception to the hearsay rule. We think that the argument presented by the Government comes too late in the day to warrant reexamination of this approach.5 We therefore now turn to petitioner’s principal contention that our prior decision in Roberts requires that his conviction be vacated. In Roberts we considered a Confrontation Clause challenge to the introduction at trial of a transcript containing testimony from a probable-cause hearing, where the transcript included testimony from a witness not produced at trial but who had been subject to examination by defendant’s counsel at the probable-cause hearing. In the course of rejecting the Confrontation Clause claim in that case, we used language that might suggest that the Confrontation Clause generally requires that a declarant either be produced at trial or be found unavailable before his out-ofcourt statement may be admitted into evidence. However, we think such an expansive reading of the Clause is negated by our subsequent decision in Inadi, supra. In Inadi we considered the admission of out-of-court statements made by a co-conspirator in the course of the conspiracy. As an initial matter, we rejected the proposition that Roberts established a rule that “no out-of-court statement would be admissible without a showing of unavailability.” 5 We note also that the position now advanced by the United States has been previously considered by this Court but gained the support of only a single Justice. See Dutton v. Evans, 400 U. S. 74, 93–100 (1970) (Harlan, J., concurring in result).