Page:United States Reports 502 OCT. TERM 1991.pdf/512

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WHITE v. ILLINOIS Opinion of the Court

475 U. S., at 392. To the contrary, rather than establishing “a wholesale revision of the law of evidence” under the guise of the Confrontation Clause, ibid., we concluded that “Roberts must be read consistently with the question it answered, the authority it cited, and its own facts,” id., at 394. So understood, Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding. Ibid. Having clarified the scope of Roberts, the Court in Inadi then went on to reject the Confrontation Clause challenge presented there. In particular, we refused to extend the unavailability requirement established in Roberts to all outof-court statements. Our decision rested on two factors. First, unlike former in-court testimony, co-conspirator statements “provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court,” Inadi, 475 U. S., at 395. Also, given a declarant’s likely change in status by the time the trial occurs, simply calling the declarant in the hope of having him repeat his prior out-of-court statements is a poor substitute for the full evidentiary significance that flows from statements made when the conspiracy is operating in full force. Ibid. Second, we observed that there is little benefit, if any, to be accomplished by imposing an “unavailability rule.” 6 Such a rule will not work to bar absolutely the introduction of the out-of-court statements; if the declarant either is unavailable, or is available and produced for trial, the statements can be introduced. Id., at 396. Nor is an unavailability rule likely to produce much testimony that adds meaningfully to the trial’s truth-determining process. Ibid. 6

By “unavailability rule,” we mean a rule which would require as a predicate for introducing hearsay testimony either a showing of the declarant’s unavailability or production at trial of the declarant.