610
Opinion of Ginsburg, J.
For these reasons, I would hold that none of Harris' hearsay statements were admissible under Rule 804(b)(3).* The trial judge characterized Agent Walton's testimony as "very damning." App. 50. The prosecutor considered it so prejudicial that she offered to join defense counsel's motion for a mistrial should the trial court determine that the hearsay statements had been erroneously admitted. Id., at 51 ("If the [trial] Court determines that it has been improper for [Agent Walton] to say those statements, then the Court must of necessity declare a mistrial, because there is no way they can remove what . . . they have heard that Reginald Harris said about Fredel Williamson, and the Government will join in the [defense counsel's] motion [for a mistrial], because I think that would be a burden no one could overcome in the 11th Circuit."). I concur in the Court's decision to vacate the Court of Appeals' judgment, however, because I have not examined the entire trial court record; I therefore cannot say the Government should be denied an opportunity to argue that the erroneous admission of the hearsay statements, in light of the other evidence introduced at trial, constituted harmless error. See Fed. Rule Crim. Proc. 52(a); Kotteakos v. United States, 328 U. S. 750, 776 (1946) (error requires reversal of criminal conviction if it is "highly probable that the error had substantial
*Nor could any of Harris' hearsay statements be admitted under Rule 801(d)(2)(E), which provides that statements made "by a coconspirator of a party during the course and in furtherance of the conspiracy" are not hearsay. The trial judge initially appeared to base his ruling admitting the statements on the co-conspirator rule. See App. 34-36; id., at 47 ("I let it in as a co-conspirator statement."). The prosecutor, however, "agree[d] with [defense counsel] totally" that "[they are] not . . . statement[s] in furtherance of the conspiracy"; Agent Walton's testimony, she explained, was "not offered under [the co-conspirator] exception," but under Rule 804(b)(3). App. 47. I do not read the Court's opinion, ante, at 604, n., to suggest that the hearsay statements in this case could have been admitted under Rule 801(d)(2)(E).
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