*1 DUTTON, WARDEN EVANS 15, 15, Reargued 1970— Argued 10. October October No. 1969— December Decided *2 an delivered and judgment the Court’s J., announced Stewart, JJ., BlackmuN, and J., and Burger, C. White which in opinion, Burger, which in opinion, concurring J., filed a Blackmun, joined. in concurring opinion an J., filed Harlan, p. 90. post, J., joined, C. in dissenting.opinon, J., a filed Marshall, p. 93. post, result, the 100. p. post, JJ., joined, Brennan, and Douglas, Black, which Attorney General Jr., Assistant Evans, L. Alfred on him With appellant. for cause the reargued Georgia, and General, Attorney Bolton, K. Arthur were brief the Attor- Robins, Assistant Mathew and Gordon O. Marion neys General. filed cause reargued Thompson B.
Robert appellee. for brief Court, invitation Griswold, by General Solicitor curiae amicus States United cause
argued Assist- were brief him on With reargument. Beatrice Feit, M. Wilson, Jerome General Attorney ant Pauley. A. Roger Rosenberg, announced the judgment .of Mr. Justice Stewabt opinion Court and an which Chief Me. Justice, join. Justice Mr. White, Justice Blackmun Early April on an morning police three officers brutally were murdered in County, Georgia. Gwinnett Their bodies were a few later, found hours handcuffed together pine in a thicket, multiple each with gunshot wounds back head. After months many of investigation, Georgia authorities charged appel- lee, Evans, and two other men, Wade Truett and Yenson Williams, with the officers’murders. Evans and Williams were indicted grand im- jury; granted Truett was munity prosecution from in return for his testimony. pleaded
Evans not guilty and exercised his under Georgia to be law: tried separately. trial, After a jury *3 he was convicted murder and sentenced to death.1 The judgment of by conviction Supreme was affirmed Court of Georgia,2 and this Court denied certiorari.3 Evans then brought present corpus proceed- habeas ing in a federal district court, alleging, among other things, that he had been denied the right of confrontation at his trial. The District Court denied the writ,4 but the Court of Appeals for the Fifth Circuit reversed, holding that Georgia had, indeed, denied Evans the right, guaranteed' by the Sixth and Fourteenth Amendments, “to be confronted by the witnesses 5 him.” From judgment appeal an was brought to this Court, and we noted probable jurisdiction.6 The parties agree
1The
this death sentence cannot be carried
20,
.out.
n.
See
infra.
2
State,
392,
Evans v.
222
150
Ga.
S. E. 2d 240.
3
5 Dutton, Evans v. 400 F. 2d 827. 6 Since, 393 appear,- U. S. 1076. as will Appeals the Court of held Georgia that a upon statute relied the State at the trial was unconstitutional applied, there can be no doubt appeal (2). to this Court. U. S. C. § fór but was set Term, last argued originally 397 U. S. reargument. 1000. of the constitu- the context
In order. to understand pro- review a brief us, tional before question pros- necessary. principal ceedings at Evans’ trial is accom- alleged Truett, ecution the trial was witness at Truett plice immunity. who had been described granted surrounding length At the circumstances detail he, He testified that police the murder of the officers. Williams, engaged with had been along Evans and parked stolen car on switching plates the license County they were accosted back road in Gwinnett when As police youngest the three officers. inspect ignition leaned in front of Evans to officers from gun officer’s switch on the car, grabbed Evans then disarmed the its Evans and Williams holster. three of other gunpoint, officers at and handcuffed officers into the them took the together. They then several bullets into by firing woods and killed them addition range. In extremely, their bodies at close prosecution.7 for the Truett, 19 other witnesses testified opportunity full cross- given Defense counsel was opportunity examine he exercised that witness, each respect with to most them. prosecution
One of the witnesses was a man named had been He that he. Williams Shaw. testified penitentiary Atlanta, in the federal prisoners fellow brought Williams was to Gwinnett Georgia, at the time *4 charges murdering on the County to be arraigned when police officers. Shaw said that Williams was penitentiary returned to the from the he arraignment, you “How did had asked Williams: make out in court?” “If responded, and that Williams had hadn’t been dirty son-of-a-bitch Alex Evans, that we wouldn’t be objected this now.” Defense counsel to the introduction 7 Three of these were rebuttal witnesses. defense There were four witnesses, lengthy Evans made himself statement. unsworn
of this testimony upon the ground it was and thus violative of Evans’ of confrontation. After the objection overruled, counsel cross-exam- ined Shaw length.
The testimony of Shaw relating what he said Williams had him told was admitted by the Georgia court, and its upheld admission by the Georgia Court, Supreme upon the basis of a Georgia statute provides: “After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of project criminal shall be- admissible against all.” As the appellate put court it:
“ ‘The rule is that so long as the conspiracy to
conceal the fact that a crime has been committed
or the identity of the perpetrators of the offense
continues,
parties
to such conspiracy are to be
considered so much a unit
the declarations of
either are admissible against
the other.’ The de-
fendant, and his co-conspirator, Williams, at
n timethis statement was made, were still concealing
their identity, keeping secret the fact
they
had
killed the deceased, if they -had, and denying their
guilt. There was evidence sufficient to establish a
prima
facie
of conspiracy to steal the automo-
deceased,
bile and the
killing
conspira-
tors while carrying out
the conspiracy, and the
statement
Williams made after the actual com-
mission of the crime, but while the conspiracy con-
tinued was admissible.”
(Citations omitted.)
This' holding
in accord with a consistent
line of
Georgia decisions construing the state statute.
See, g.,
e.
Chatterton v. State,
8 Ga. Code Ann. (1954). §38-306 9 Evans State, 392, Ga. 402, 150 S. 2d E. 248.
79 60, State, 191 Ga. Burns v. 1015; U. S. denied, 384 cert. 350, 358. 2dE. 11 S. 73, the- witness of of this the admission
It in claim appellee’s for basis the the formed that Shaw had he been that proceeding corpus habeas present the in the of confrontation right constitutional the denied Court claim, the that upholding In court. Georgia to duty its regarded Circuit Fifth the for Appeals concept original framers’ the interpret only to “not be to translate also but developments, of historical light boundaries constitutional the terms due-process into 10 court The omitted.) (Footnotes hearsay rule.” the because claim appellee’s the upheld excep- reasons” cogent no “salient .find could present in the applied Georgia hearsay rule to tion broader out was pointed court that exception case, an federal trials conspiracy applicable than that courts.11 cir whether is then, us, before question correct Appeals Court of this
cumstances set be had conviction murder Evans’ holding n In testimony. of Shaw’s admission because aside recognizing we start question, this considering Amend “the Sixth held squarely has Court witnesses confront accused an right ment’s oblig . made . . fundamental is . . him . Amendment.” Fourteenth the States atory Douglas also See 403. Texas, S. 380 U. v. Pointer Janis, U. S. 384 Brookhart 415; U. Alabama, 380 S. v. v. Russell, 392 v. Roberts 719; U. S. Page, 390 v. Barber 1; 337; Allen, U. 397 S. California Illinois 293; U. S. than more no But 149. Green, U. S. inquiry. our beginning 2d, at F. 829. 830, 831. 2d, F.
11 400
I *6 It is nor argued, be, not could it that constitutional requires hearsay to confrontation that no evidence the Pointer In itself, can introduced. we ever.be ap- referred to the decisions of this Court that have proved of hearsay: the admission recognized admissibility
“This Court against has Mattox United an accused of dying declarations, v. States, 146 and of a 140, 151, U. S. a trial, deceased witness who has testified at former States, v. United Mattox 237, 156 U. 240-244. S. States, supra, Dowdell United S., See also U. States, 330; Kirby supra, v. United S., at U. . . . There other analogous 61. are situations which might scope not fall within the of the constitutional rule requiring confrontation of witnesses.”12 The argument be, any seems to in rather, given case the Constitution a requires reappraisal every exception hearsay to the no rule, long matter how estab- in lished, order to determine in whether, the words of Appeals, Court it is supported by “salient and cogent reasons.” The logic position would seem require estab- every reassessment hearsay lished exception, state, federal or in the but present only case it is argued hearsay that the exception applied by Georgia constitutionally invalid because identically does not hearsay conform to the exception applicable conspiracy in Ap- trials the federal courts. pellee does not challenge and we do not question validity of the coconspirator exception applied federal courts. Texas, S., Salinger Pointer v. 380 U. at 407. See also v. United
States, 272 U. S. 548. must are identical rules evidentiary That the two con in federal It is settled conceded. readily be evidence exception that allows hearsay spiracy trials the he conspirator of one out-of-court statement of an if only applies conspirators fellow his admitted in further course of and was made the statement subsequent during and not conspiracy, ance of the nothing conspirators engaged were when the period enterprise. criminal concealment more than Krulewitch States, 604; 344 U. S. v. United Lutwak exception States, 440. 336 U. S. United case, on the other present applied Georgia of such an of evidence the introduction hand,-.permits during the though made even statement out-of-court conspiracy. phase conceálment *7 federal courts follow that because does not But it the. include hearsay exception to extend the declined to have the concealment during made out-of-court statements - automatically extension such an conspiracy, of a phase in Cali Last Term Clause. the Confrontation violates Green, 149, we said: 399 U. S. fornia which of -is not to decide in this case task “Our of the law of purely as a matter positions, these us The issue before is the sounder. evidence, is of whether a defendant’s considerably one narrower confronted with the wit- ‘to be necessarily inconsistent with him’ is nesses hearsay rules .... change decision its a State’s hearsay rules conceded that may readily be itWhile generally designed Clause are the Confrontation different values, quite is similar protect , overlap complete is suggest thing is more or nothing Clause the Confrontation rules, hearsay codification less than a they historically existed at com- exceptions their have never established decisions law. Our mon such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. The equally converse true: merely is because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights Id., have been denied.” (citations 155-156 and footnote omitted). These particular observations have force in present case. For this Court has never indicated that the limited contours of the exception in federal conspiracy are trials required by the Sixth Amendment’s Confronta tion Clause. To the contrary, the limits of this hearsay exception have been simply defined Court exercise of its rule-making power in the area of the fed eral law of evidence.13 It is clear that the limited scope of the hearsay exception in federal conspiracy trials product, not of the Sixth Amendment, but Court’s of “attempts “disfavor” to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions.” States, Grunewald v. United 353 U. S. 391, 404. As Grunewald, Krulewitch, and'other cases this Court make clear, evidentiary rule is intertwined, not only with the federal substantive law of conspiracy, but also related, with such issues as the impact the statute of upon limitations conspiracy prosecutions. *8 13See 18 U. S. C. 3771. Fed. Rule 26 provides: Grim. Proc. § “In all trials the of orally shall be witnesses taken in open court, provided unless otherwise by Congress an act of by or
these rules. The, admissibility of evidence
competency
and the
and
n
privileges of witnesses
governed,
shall be
except when an act' of
Congress or these rules
provide, by
otherwise
the principles of the
common
they' may
law as
interpreted
be
the courts of the
United States
light
in the
of reason and experience.”
See Hawkins v.
States,
United
83 not are questions policy such us before the In conspiracy for prosecuted not Evans present. mur- of offense substantive the for but court, Georgia the introduction the permitted State the trial hisAt der.14 well-recognized and long-established a under evidence of evidentiary the say that cannot We law.15 state of rule merely Constitution the violates Georgia applied rule hearsay the with coincide exactly not does because context decidedly different in the applicable exception offense substantive for prosecution federal aof conspiracy.
II
Evans’
any event
alternatively,
argued,
It
is
our
impact
under
aside
set
be
must-
conviction
convic-
court
state
reversed
have
decisions
recent
of the
denial
of the
because
tions
appellee
which
upon
The cases
confrontation.
Doug-
Texas, supra;
v.
Pointer
are
relies
primarily
Evans
Georgia did
Evans’
the time
at
advised
are
14We
offense.
criminal
substantive
separate,
a
conspiracy as
recognize
not
People,
g.,
See, e.
Reed
unique.
15
hardly
is
Georgia rule
The
384,
So.
171
State,
Ala.
Dailey v.
68;
P. 2d
450, 402
Colo.
2 F.
also
See
P. 828.
Roberts,
Kan.
729; State
1955):
(12th ed.
Evidence
Wharton,
§430
Criminal
admissible
are
copspirator
aof
declarations
acts
“The
of the
pendency
during
made
they are
when
co-conspirator
a
perpetration
only the
includes
act,
wrongful
. .
.
subsequent concealment.
its
also
but
offense
who
persons
evidence
such
admission
theory
“The
much
crime, are as
a
do commit
who
crime, and
a
conspire
commit
apprehension,
from
freedom
crime,
their
with
concerned, after
its
crime,
commission:
with
concerned, before
they were
thereof
commission
after
devolves
the crime
commit
conspiracy
implication.”
arrest
avoid
conspiracy
into
law
evidence
exception
of such
existence
S.,
444.
U.
supra. 336
Krulewitch,
recognized
many
States
*9
Alabama,
las v.
supra;
Janis,
Brookhart v.
supra; Barber
Page,
supra; and
Russell,
Roberts v.
supra.
In the Pointer case
appeared
that man named
Phillips had been the victim of a robbery in Texas.
aAt
preliminary hearing, Phillips “as chief witness for
the State gave his version of the alleged robbery in
detail, identifying petitioner as the man who
fobbed
had
him
Pointer,had
at gunpoint.”
Evans was not actually state- made the of whether Williams the issue con- hearsay nor a by Neither a’ ment related Shaw. testimony arise had question frontation would Shaw’s been had merely that the statement prove been used to prevent rule does not a witness made. is rather heard; he has testifying from as what extrajudicial proof through restriction on the fact viewpoint of the statements. From the Confrontation subject oath, under to cross-examina- Clause, a witness by the trier can be observed tion, and whose demeanor he only to what a reliable informant not as of-fact, what he has heard.19 has seen but also as to was jury because the The confrontation issue arises iden- implicitly infer that Williams had being invited to he murder when perpetrator tified Evans as conclude predicament. for his But we blamed Evans there no denial of the of confrontation right that con- identity. the statement question First, to this and conse- express past fact, tained no assertion about jury against warning it carried on its face a to the quently weight. Second, undue Williams’ giving the statement identity other knowledge of the and role of personal abundantly estab- triple murder is participants con- prior Truett’s and Williams’ lished could It is inconceivable cross-examination viction.- not in to know position have shown Williams subpoena including witnesses, Evans had Of course testimony might the statement had not Williams, show that whose argument Evans informed us at oral made. Counsel been but had concluded subpoenaed Williams have he could of his client. in the best- interests not be course would *13 murder. or not was involved whether Evans that Williams’ statement Third, the possibility extreme. is remote faulty founded on recollection made under Williams Fourth, the circumstances which suppose reason to as to give statement were such involvement misrepresent that did not Evans’ Williams showing beyond a go circumstances crime. These in. to Shaw. apparent reason that Williams had no lie his and it was spontaneous, His statement was reliability are indicia of penal.interest it. These make determinative widely which have been viewed jury may placed be before whether a statement the declarant. though there is no confrontation of it clear that of this Court make decisions prac- mission of the Confrontation Clause is advance truth-determining accuracy concern for of the tical “the trier process by assuring criminal trials the truth evaluating satisfactory fact basis for [has] Green, S., 399 U. prior statement.” California effectively, right his exercised exercised, 161. Evans and. whether Shaw question to confrontation on the factual statement Shaw actually make the had Williams .heard cross-examination possibility related. And the jury that conceivably have shown the could Williams have been unreliable made, might statement, though wholly unreal. Massachusetts, Snyder years ago, Almost 40 opinion wrote an for this U. Mr. Justice Cardozo S. criminal conviction a state Court to set aside refusing denial confronta- because of the claimed opinion words of are worth closing tion. The here: repeating the criminal law will be danger
“There is contempt discredit will into even brought —that immunities assured the Four- great touch possibilities gossamer prej- Amendment —if teenth *14 nullify pro- a sentence to a defendant are to udice in competent jurisdiction by nounced court free.” law, guilty obedience to local and set the S., 291 U. at 122. Appeals reversed, the judgment
The Court the case is remanded to that court for consideration corpus presented in this habeas the other issues proceeding.20
It is so ordered. Blackmun, whom The Chief Justice Mr. Justice joins, concurring. join opinion. me,
I Mr. For how- Justice Stewart’s reason for the ever, there is an additional result. in testimony sentence attributed Shaw single Evans, which has prolonged to Williams about in in was, my view and the of the entire litigation, light record, harmless error if it was error at all. Further- more, the claimed circumstances of its utterance are so hurt, incredible that must have rather helped, prosecution’s than ground case. On this I alone, persuaded could be to reverse and remand. Shaw testified Williams made the remark issue that hospital” when Shaw “went to his room in the asked he Williams how made out at a court hearing day. preceding On cross-examination, Shaw stated custody he was penitentiary that then at the federal he Atlanta; prison that worked as a clerk in the hospital; that Williams- was on the bed in lying his" argument penalty conceded at oral It was that the death im out, jury quali posed in this case cannot be carried because the Witherspoon Illinois, standards violative of fied under S.U. Appeals already the Fifth 510. The Court of Circuit has set Witherspoon, aside, imposed upon death under sentence Venson Dutton, See Williams Williams, alleged accomplice. Evans’ 2d 804-805. F. in the hall wall; he, Shaw,
room and facing spoke Williams; and not the room when he with spoke the door to the closed”; through room “was that he an opening square; opening about 10 inches ordinary- piece plate just “has a window glass, glass, window and a this does glass, piece mesh”; steel impede talks talking through door; and that one in a normal voice when he talks that door. through conceded he Shaw that when had testified at Williams’ earlier he made reference in the trial, glass no opening door. Mabry, State,
Carmen David called testified that he was with the United Public Health States Serv- *15 Penitentiary. ice and stationed at the He de- Atlanta scribed the in the door to Williams’ room opening and said that it contained a “and over that is a wire glass mesh, heavy mesh”; steel that he has “never tried talk door”; that, to his he has never through knowledge, heard “other people talking through door”; that, 11 years his at the during hospital, has not glass been out of the and that dis- door; hospital records closed that it had not been out.
I any am at a loss to understand jury, how normal as we must assume this one be led been, to have could believe, let alone be by-, astonishing influenced account Shaw his conversation with Williams I hospital normal voice a closed room door. through note, also,' description the Fifth Circuit’s testi- Shaw’s mony as “somewhat incredible” and possessing “basic incredibility.” 2d, 400 F. at 828 n. 4. fully I saying this,
In all am aware that the Fifth panel observe, just Circuit went on to the footnote “ that it cited, e are convinced cannot be called harm- [W] Quillian, in less.” And Justice sole dissent on the direct Supreme Court of appeal Georgia, stated, to the “[I]t obviously prejudicial to the defendant.” 222 Ga. neither the 240, However, E. 251. 408; 150 S. 2d
-392, who tried the case nor the Superior judge Court Georgia on Evans’ hearing who held the Judge District Federal prejudicial concluded that petition for federal habeas do not know the atti present. Also, error was we they Supreme majority, Georgia of the Court tude strictly upon pronounced limits decided issue hearsay rule, Ga., long-established Georgia 2d, had no presumably E. at 150 S. 402; upon any alternative such as ground occasion to touch upon usually passing I would refrain from harmlessness. adversely this kind to a federal court of an issue of I rule, would appeals, judges but when the trial do upon free to draw the cold record suppose we are as appellate court. as is the Marion
I add an observation" about corroboration. prisoner one who Perry, another federal Calvin past convictions, “larceny numerous including admitted objection automobiles,” testified without that he had years, and Evans for about 10 known Williams years; spoke for about two that he with Williams Truett days prior some or 30 to the and Evans murders him police "officers; three that Williams owed by telephone that he and talked money; Williams cars for stealing him”; me some that Williams “[a]bout told him that “Alex would know what kind of [Evans] *16 want”; days car he would that a few [Williams] later “me and Alex talked about cars I told him I didn’t and. ”; want to mess with Venson that Evans said, [Williams] any, “if I he I could got get said them for him”; days seven or before the eight murders Williams asked by him telephone he, whether “still Perry, had the Olds- the week switch”; mobile murders he argued of.the Evans about how much he with should receive for each days car; stolen that six after the murders he saw Evans they station; talked filling at a about the murders; “I if I said wanted to know who I did it, would see your mine and mad as hell” friend”; “got and that Evans I I thought and “told me if knowed about it anything my to keep damn mouth shut.” witness,
Another Lawrence Hartman, H. testified that his red hardtop Oldsmobile was stolen from his home in night April 16, (the Atlanta murders early took place April on morning 17). He went testify that the 1963 Oldsmobile found near burning the tragedy scene of was his automobile. There is testimony .in the by record as to the earlier acquisition Evans and Williams another wrecked Oldsmobile of like model and as to color; towing that damaged by car a wrecker manned Evans; Williams and and replacement as to the of good tires on a Chevrolet oc- cupied by Williams, and Evans, Truett, recapped with purchased by tires then them. testimony,
This record it seems me, directly bears on the positively Williams-Evans-Truett car-stealing conspiracy accomplishments provides indisput- able confirmation Evans’ The requirements role. the Georgia corroboration rule fully were satisfied and Shaw’s incredible remark practical fades into and legal insignificance.
The error
if
here,
one exists,
beyond
is harmless
Chapman
California,
reasonable doubt.
U. S.
Harrington
21-25;
California,
Mr. Justice concurring result. Not surprisingly the difficult pre- issue sented this produced case has multiple opinions. Mr. Justice testimony Stewart finds Shaw’s admissible be- “wholly cause it is unreal” to suggest that cross-examina- tion would have weakened the effect of Williams’ state- jury’s ment on the mind. Mr. Justice Blackmun, while concurring view, finds admission of the state- harmless, ment to be seemingly because he deems Shaw’s obviously so fabricated that no jury normal *17 credence. given would have Marshall Mr.. Justice my both to but he then suggestions satisfaction, answers I position He adopts accept. appar- cannot prevent ently prosecution introducing would from any out-of-court unless there accomplice statement of an opportunity is an for cross-examination, regard- and this less of the circumstances in which the statement was hearsay. and regardless made of whether it is even difficulty The assumption of this case arises from the purpose the core of the Confrontation Clause of prevent overly excep- Sixth Amendment is to broad tions I assumption to rule. believe this to Contrary be wrong. they appeared me things Green, I last Term when wrote in 399 U. S. California I 149, (1970), have since become convinced that says: states the when he Wigmore correct view prescribe “The Constitution does not what kinds of testimonial statements (dying declarations, or the like) given infra-judicially, depends shall be —this the law of Evidence for the time being, only —but procedure what mode of shall be followed—i. e. a cross-examining procedure the case of such testi- —in mony required ordinary as is law of Evidence infra-judicially.” be given 5 J. Wigmore, Evi- dence (3d at .131 ed. 1940) (footnote § omitted). conversion a clause intended to regulate trial
procedure into a threat to much of the existing law of evidence and to future developments in that field is not an shift, unnatural for the paradigmatic evil the Confron- tation Clause was aimed at —trial affidavit1 —can be Green, supra, See (concurring opinion): his 179. California torically, “the Confrontation Clause was meant to' constitutionalize flagrant abuses, a barrier by anonymous accusers, absentee witnesses.”
viewed equally gross almost well as a violation of the- hearsay rule giving and as the of evidence the' presence subject affiant out of the of the accused and not to cross-examination him. But however natural may shift once be, great made it carries the seeds w of development- mischief for in the 1 enlightened evidence.
If one into were to translate the Confrontation Clause in “In language today, more common use it would read: enjoy all criminal the accused shall prosecutions, to be present and to cross-examine the witnesses against him.” in this or in 18th- Nothing language its ' century equivalent purpose would connote a to control the scope of the rules of evidence. The is language particularly if pro- ill-chosen what was intended was a hibition on the any hearsay use of position toward —the my which Brother Marshall is being driven, although he yet does not quite embrace it.
Nor I am now content with the I position took con- currence in Green, supra, the Con- California frontation designed Clause was establish preferential to rule, requiring prosecutor to avoid the use of (cid:127) where it is reasonably possible for him to do so—in other words, produce to available witnesses. Further consideration light squarely presenting facts as Green issue, did has me not, led to conclude happy this is not a intent to be attributed to the Framers absent compelling linguistic or historical evi- pointing dence that direction. It is common ground the historical understanding clause furnishes no guide adjudication.2 solid
A rulé requiring production of available witnesses significantly development would curtail of the law of id., 175-179, especially 2See 176 n. 8 (concurring opinion).
96 necessity production eliminate
evidence
unduly incon-
would be
production
where
declarants
Examples
utility
a defendant.
of small
venient
Act, 28
the Business Records
mind are
which come to
hear-
to the
exceptions
1732-1733, and
§§
U. S. C.
treatises,
statements,
learned
say rule for official
See,
Evidence
g.,
e.
Rules of
Uniform
reports.
trade
States,
Gilstrap v. United
(31);
(15),
(30),
Kay (business records);
(CA5 1968)
Regardless simply is not Clause, the clause the Confrontation numerous into account the fac- taking well-designed appro- on the weighed passing be tors that must The failure of Mr. Jus- rules of evidence. priateness of explain the standard which opinion to tice Stewart’s statement, or how this standard can be it tests Shaw’s absolute command of the seemingly with the squared witness the fact that the clause is clause, being bears to which it is not suited. The task is far more set a task for under performed aegis of the Fifth and appropriately necessary my Although conclusion, the fact is not I note that argüment at oral counsel for Evans conceded he could have testify, presence but secured decided it. Tr. of Williams’ Arg. Oral 55.
Fourteenth Amendments’ commands that federal and state trials, must be respectively, conducted in accord- process ance with due of law. It byis this standard that I would test federal and state rules evidence.4
It must be recognized that not everything which has been said this Court’s cases is consistent with this position. However, this approach necessarily not in- results, consistent with the that have been reached. Of the major “confrontation” decisions of Court, seven involved the use prior-recorded testimony.5 In the absence of countervailing circumstances, introduction of such evidence would be an affront to the core meaning of the Confrontation Clause. The question in each'case, therefore, was whether there had been adequate “con- frontation” to satisfy requirement of the clause. Re- gardless of the correctness of the results, the holding that the clause was applicable in those situations is consistent with' the view of the I clause have taken.
Passing on
other principal cases, Dowdell v.
United States,
4 Reliance on the Due Process Clauses would also have the virtue
of subjecting rules of evidence to
scrutiny
in civil and
*20
criminal
trials
exceedingly
alike.
It
is
rare for the
law
common
make .admissibility of evidence turn on
the proceeding
whether
is
civil or criminal
in nature.
1 Wigmore,
supra, §4,
See
16-17.
at
This feature
jurisprudence
of our
is a further
indication that
Confrontation Clause, which applies only to
prosecutions,,
criminal
was never' intended as a constitutional
standard for testing rules of
evidence.
5
United,
Reynolds v.
States, 98 U. S.
(1879);
Mattox v.
145
States,
United
156 U. S.
(1895);
237
Motes v.
States,
United
178
U. S.
(1900);
458
Louisiana,
West v.
98
law,”
under
the common
While this
admissible
exception
than
clause,
as an
to the
rather
characterized
speak,
the clause did not
the result
which
problem
Janis,
1
correct. Brookhart v.
384 U. S.
would seem
Illinois,
(1968),
129
and Smith v.
390 U. S.
(1966),
on the
restrictions
to cross-examination
right
involved
Douglas
right.
wholesale denial
or the
easily
Alabama,
most
(1965),
perhaps
Judging
be sus-
I conclude that it must
process,
standards of due
con-
object
the main
of a
Accomplishment
tained.
community of interest
will
terminate the
spiracy
seldom
interest
conspirators.
Declarations
The jury,
likelihood of trustworthiness.
evince some
counsel,
defense
should be alert to
guidance
with the
testimony. As
crediting
the obvious
such
a
dangers
matter, unless the out-of-court declaration can be
practical
proved by hearsay evidence,
likely
facts it
are
reveals
jury by
to remain hidden from the
the declarant’s invoca-
privilege against
tion of the
self-incrimination.6
In light
person
of such
considerations,
necessity
weighing
type
evidence of the
here involved against
jury
will
danger
give
it undue credit might
reasonably conclude that admission of the evidence would
just
increase the likelihood of
determinations of truth.
Appellee has not
suggested
Shaw’s
pos-
any
sessed
peculiar characteristic' that would lessen the
force of these general considerations and require, as á
matter,
judge
exercise resid-
discretion to
ual
exclude the
unduly
evidence as
in-
Malloy
Hogan,
apart
from
(1964),
flammatory. I me, cannot but to itself courts, commends federal the Due Process trial. fair ato is essential say that more. no requires Clause concur I opinion, in this discussed premises
theOn below. judgment reversal the Black, Justice Mr. whom Marshall, Mr. Justice join, Brennan Justice Mr. Douglas, and Mr. Justice dissenting. murder first-degree was convicted Evans
Appellee allowed was named Shaw a witness in which a trial after a about objection, strenuous counsel’s testify, over to Williams, an himto made was claimed he statement in a already convicted been had who accomplice alleged statement, which the Shaw, to According trial.1 separate was crime, Evans and both Williams implicated Wil immediately after conversation prison a made he nor testify was did not Williams arraignment. liams’ today con Court .Nevertheless, a witness. called statement, at extrajudicial admission cludes deny Evans not did crime partner alleged an tributed against witnesses with be confronted “to right Amend Fourteenth by the Sixth guaranteed him” majority doing,. so' In Constitution. ments recent with inconsistent completely result reaches Alabama, Douglas especially Court, this opinions States, v. United Bruton (1965), 415 S.U. 380 fully those cases In my view, (1968). S. 391 U. con Evans’ violation a clear establish here and apply rights. stitutional testimony was trial; his Williams’ at witness had been a Shaw its and after objected both before
fully anticipated to. admission. Court (1965), Texas, 380 U. S. Pointer v.
In an right Amendment’s “the Sixth held that first him is . . . against witnesses confront accused on the States made obligatory and is fundamental That Id., at 403. Fourteenth by the Amendment.” a statement constitutionally inadmissible held decision where aat state a defendant offered hearing a preliminary made originally statement an ade defendant affording the under circumstances we Indeed, for cross-examination. opportunity quate prior aat cross-examination that even since held have requirement, confrontation satisfy does not hearing *23 statement the made who the witness where at least Page, U. S. Barber v. at trial. tnbe called available basically a to confrontation right “The (1968). cross- to opportunity the It includes both right. de the weigh to jury the for occasion the examine and Id., 725. at of the witness.” meanor the applied Court this Alabama, supra, Douglas v. In to similar strikingly to a case Pointer principles defendants two charged the here, State There, as one. There, separate trials. them tried a crime and with (Loyd) defendant one prosecuted first the here, State in the trial by him statement used a then the called Although State (Douglas). defendant (cid:127)second his was from conviction appeal an witness, a Loyd as testify ground the refused he pending privilege Fifth Amendment his violate would doing so self-incrimination. privilege whether reaching question Without prosecu- Court held that invoked,2 the properly was conflict question presents fundamental same This —which Fifth rights and a witness’ Sixth Amendment a defendant’s between the State present been here had have privilege might Amendment — Loyd’s purported.attempt tor’s statement reading memory denied to confronta Douglas’ right to refresh his “Loyd tion. could not be cross-examined on a statement imputed S., to but not admitted him.” 380 U. at 419. course, Douglas provided opportunity Of to cross- Loyd’s examine the who testified state officers regarding only ment. since their evidence tended to “But show Loyd confession, made thé cross-examination of them . . ..could not substitute cross-examination 3 Id., Loyd to test the truth of the statement itself.” n 420. Surely, compels the same the exclusion of reasoning Indeed, only here. dif significant Shaw’s Douglas ference between and this case, insofar as the opportunity denial of the to cross-examine is concerned, is that here the attempt State did not even to call testify Williams Evans’ trial. He plainly avail able to State, and for all we know he would have willingly testified, at least with regard to his alleged conversation with Shaw.4
Finally, applied we. have Douglas reasoning that, “despite hold jury instructions to the to disregard testify. called Williams to Under a view would make avail ability only of a confrontation, declarant concern of see Cali Green, (1970) (Harlan, J., 399 U. S. 172-189 con fornia curring), duty compel State’s or a codefendant’s to. *24 testimony, by timing immunity, of trials and use of testimonial seemingly wou11 Comment, have to be decided. See Exercise of the Privilege Against by Self-Incrimination Witnesses and Codefendants: The Upon Accused, Effect 151, (1965). the 33 U. Chi. L. Rev. 165 3 Janis, Brookhart v. Cf. (1966). 1, 384 U. S. 4 4 My Brother might Stewart brought comments that Evans have Williams to the subpoena. courthouse Defense counsel did not ’ so, believing .do that Williams would right stand on his himself. Arg. Tr. of Oral may, incriminate 55. Be that as it it re- duty mains the to confront- a criminal defendant with the wit- against nesses State, upon him falls and here the State was allowed to damaging introduce evidence without running the risks 2, supra. trial confrontation. Cf. n. determining in the codefend- statements implicating of a joint trial innocence, or admission at a guilt ant’s code- a extrajudicial implicating confession defendant’s of cross-exam- fendant the codefendant’s violated Clause of the Sixth by the Confrontation ination secured Russell, Roberts (1968), 392 U. S. Amendment.” state and federal trials retroactive effect both giving States, Thus Bruton (1968). United 391 U. S. extrajudicial admission statement, an alleged Williams’ in- been could not even prisoner, fellow have made a joint if he had been tried troduced Williams trial with Evans. clear: Absent line of cases seems
The of this teaching testimony about cross-examination, for opportunity allegedly statement implicating incriminating constitutionally inadmissible by Williams made the trial of Evans. char- for reversal opinion Justice Stewart’s
Mr. that cross- “wholly possibility unreal” acterizes as change himself would Williams examination of lawyer A account. presented Shaw’s picture faith skeptical article of the as an might doubt, well about prophecy profession, categorical such Indeed, cross-examination. likely results careful necessity clearly demonstrate the facts of this case development which the corrective for fuller factual possible.' plurality makes test of cross-examination the out-of-court statement pigeonholes for reversal “spontaneous” utterance, in evidence as a was admitted con- Appeals hence tó be believed. As the Court of there is doubt that Williams cluded, however, great made statement attributed to him.5 More- even considering and other evidence sub After Shaw’s trial, Appeals the Court of concluded that mitted at the Shaw’s with notable “its account of his conversation Williams was incredibility.” basic 400 F. 2d 828 n. 4.
over, any- the further if question what, there remains by the remark thing, might have meant Williams opinion con- Shaw recounted. Me. Justice Stewart’s Plainly cedes that ambiguous. the remark stands as an accusation of some sort: “If it . hadn’t been for . . Evans,” Williams, according Shaw, said “we wouldn’t in this At his be now.” trial Evans himself unsworn gave testimony to the prosecution effect the murder might have from arisen enmities that Evans’ own law up enforcement activities had stirred locality. Did Williams’ accusation relate to Evans as powerful with and unscrupulous or enemies, man. Evans as a murderer? Mr. opinion Justice Stewart’s opts for the latter interpretation, for it' concludes that Williams’ remark “against penal his interest” and hence to be believed. But at great distance from events, no one’can be certain. point is that absent of Williams himself, the jury was left cross-examination only with the unelucidated, apparently damning, and patently damaging accusation told as Shaw.
Thus we a case have with all the unanswered ques- tions that the confrontation of witnesses through cross- examination is meant to aid in answering: What did the declarant say, and what did he mean, and was it the truth? If Williams had testified and been cross-exam- ined, Evans’ counsel could have fully explored these and other matters. The jury then could have evaluated the statement the light of Williams’ testimony and de- meanor. was, As it however, the State was able to use Shaw present the damaging evidence and thus to avoid confronting Evans with the person who allegedly gave witness against him. I had thought this was precisely what the Confrontation Clause applied the States in Pointer and our prevented. other cases
Although Mr. opinion for reversal Justice Stewart’s concludes that there was no violation of Evans’ right of *26 absence complete in so it does confrontation, exam- For that result. explain reasoning authority or statement alleged that Williams’ facts as ple,-such in not interrogation, official during made not joint in a introduced was not and form, transcript the cases— some they differentiate though trial — each presented cases have irrelevant. Other surely are n why right reason is offered .no factors,6 and of these limited. be so could of confrontation admitted was' the statement enough be it Nor can well-recognized and a long-established “under in evidence opinion law.” state Stewart’s rule of Mr. Justice that- a defendant’s surely does mean evidenti- way to a state give must of confrontation decision by our much is established ary rule. That Page, supra, which held unconstitutional v. Barber similarly rule testimony in accordance with admission However, plu established. long recognized well distinguishing succeeds rality for reversal neither inevitably are there generally' case nor considers evidentiary rules. Pointer and state between conflicts merely by its conclusion attempts to buttress Rather, evidentiary hearsay to equate. announcing a r'eluctance Clause.7 the Confrontation rules .and only second, and that one example, Pointer involved For Bruton or Roberts. present either was not hearsay “all rules common-law Constitutionalization (concurring Green, S., v. 399 U. at exceptions,” their California frightening than real. prospect be a more opinion), would seem to cpmes defi hearsay from the complexity afflicting rules Much for the presented as an out-of-court statement nition. adopted this definition nowhere truth of the matter stated —a decisions, Rather, while look purposes. for confrontation Court Page, recognize declarant, availability supra, Barber ing of a in a right of an accused is included in the that “cross-examination him,” Pointer the witnesses case- to confront criminal that, cross- in the absence of S., admission Texas, 380 U. The Court of Appeals, however, was not of the view the Confrontation Clause implies unrelenting hos- tility to whatever evidence be may hearsay. classified as Nor did that court hold that States must conform their evidentiary rules to the hearsay exceptions applicable in federal conspiracy trials. While it did note that reality does not in even involve the traditional hear- say rule and its coconspirators so-called exception,8 that was not the basis for its decision. Rather, the Court of Appeals found in the admission of incriminatory an and inculpating statement attributed to an accom- alleged plice who was not made available for cross-examination *27 what it termed an obvious abridgment of Evans’ right of confrontation. presented Since the State no satis- factory justification for the denial of confrontation, cf. Texas, Pointer v. S., 380 U. 407, at the Appeals Court of examination of types certain suspect highly and damaging state- ments is one of the "threats to a against fair trial” which “the Confrontation directed,” Clause was Bruton v. States, United 391 S.,U. at 136. 8 Evans charged not was with conspiracy nor could he have been under Georgia law. “conspiracy” The element part came in as evidentiary the State’s law, part of goes beyond which far the hearsay traditional exception even as regard it exists with to the phase” jurisdictions. in “concealment some Indeed, alleged Williams’ statement negates itself the notion that Evans had authorized speak Williams to or had assumed the. risk in to order an achieve unlawful through aim concert of effort. It is difficult to conceive how Williams could be part conspiracy of a to conceal the crime when all alleged the participants in custody were and he himself already had been arraigned. As this Court in Fiswick stated v. United States, 211, 329 U. S. an (1946), “admission one co-conspirator after he apprehended has been any in not sense a furtherance of the enterprise. criminal It is a rather frustration of it.” One lower court in Georgia adopted has essentially this reason ing in reversing a conviction testimony where objected similar to that to in this case was admitted. State, See Green App. 685, 115 Ga. 155 S. E. 2d (1967). But see n. infra. Court’s this Alabama Douglas under that held rights. his denied Evans cases other much that least requires Constitution the Surely confront to right the defendant denies State when a crim in him witnesses cross-examine Shaw’s case, that any In trial. inal of state rule an established with in accordance admitted conclusion. their reaching in Brethren my aid cannot law denial aof end, justification logical to its Carried provide would basis confrontation decisions Court’s avoidance wholesale for which Justice Bruton,9 decisions Mr. Douglas opin Indeed, if reaffirms. itself opinion Stewart’s estab to very close come would says, it what ion meant avoid—an it seeks equation very reverse lishing a state any exception give would equation Constitution” niche “permanent rule Clause Confrontation exception an form well. distin- apparently reversal plurality
Finally, it “does ground on the present guishes ” ‘devastating.’ or ‘crucial’ sense in any evidence involve admis makes apparently here, which involved Georgia rule *28 accomplice alleged of an and admissions statements pre-trial sible all decisions Court’s this with inevitably conflicts coconspirator, or State, 172 Ga. v. Darden See Clause. the Confrontation regarding 292, State, App. 86 Ga. Mitchell v. (1931), 414 590, E. 158 S. not on codefendants of (1952), where confessions 2d 756 71 S. E. Supreme Court Georgia Indeed, admissible. were held trial rule the state in favor conflict have resolved to seems on the based are decisions this Court’s erroneously concluding that the co- 'by one of confession concérning "a hearsay rule federal State, Pinion v. apprehended.” been has he after conspirators Park (1969). See also 708, 2d 709-710 37, E. 36, 165 S. Ga. 225 cert. (1969), petition for 2d 618, E. 687 State, 225 170 S. v. Ga. (renumbered). 57, T. 4, 1969, No. O. 1970 filed, November
Despite testimony characterization of Shaw’s as “of . peripheral significance most,” however, possibility prejudice very of its to Evans was real. The outcome of rested, jury Evans’ trial on whether the essence, would testimony regard believe Truett with to Evans’ spoke role the murder. Truett as an admitted accom plice Rely prosecution. who had been immunized from law, ing Georgia law, federal constitutional jury “you lawfully trial instructed the judge cannot upon testimony accomplice convict of an alone. . . . testimony accomplice of an must be corrobo [T]he rated .... . . corroboration . must be such as [T]he to connect the defendant the criminal act.” The with presented testimony State of a number of other , witnesses, accomplice addition to that of the alleged tended to corroborate Evans’ But guilt. Shaw’s him was supposedly account what Williams said to undoubtedly part evidence.10 corroborating of that judge’s no doubt that the statement instructions left necessary provide the corroboration. attributed' could Williams Indeed, prejudicial impact Trial 412-413. See Record Shaw’s quo graphically simply juxtaposing revealed two First, in Mr. tations. there is Justice Stewart’s characterization testimony, opinion of Shaw’s characterization that I find fair albeit studiedly jury being mild: invited infer that Wil “[T]he 'perpetrator implicitly liams had Evans as the identified added.) Second, (Emphasis judge’s murder. .” . . there is the trial charge testimony: “Slight accomplice on corroboration of evidence identifying participator from an extraneous source the accused as a accomplice act will be sufficient corroboration anof criminal added.) support (Emphasis light a verdict.” In the trial, charge and on consideration of the whole record of Evans’ “beyond impossible it is for me to believe a reasonable doubt” that complained- did the error not contribute to the verdict obtained. Chapman Harrington California, (1967); 386 U. S. (1969). California, 395 U. S. 250, *29 itself not does opinion Stewart’s Indeed, Mr. Justice of admission the that finding Appeals’ of Court upset the considered be not erroneous, could if testimony, Shaw’s harm- of question the from apart and Beyond harmless. inquiry, an undertakes Stewart error, Mr. Justice less whether understand, into I do not which of purpose the The “devastating.” or “crucial” is admitted evidence the evi- of exclusion the require to that apparently, is, view prejudice standard high of that short falling dence Bill of the against clamor a moment bring would the confine and worries such eschew I would Rights. defendant theWas questions: traditional the to inquiry him? witnesses the confront right to afforded of his denial not, if And,, doubt? reasonable beyond a harmless convicted been have may well Evans is that fact The statement implicating incriminatory by an part testify not did who accomplice alleged an attributed regarding questioned be could consequently who Court statement. meaning or truth Confrontation recognized correctly Appeals is statement whether result, a such prohibits Clause recol- witness’ refreshing guise under introduced a codefendant Alabama, against Douglas v. inas lection States, United Bruton inas instruction limiting awith rule evidentiary other some with or in accordance here. for re- plurality by the fact troubled
amI
be-
place
is said
all
when
versal, unable
shifts
decisions,
prior
of our
reach
principled
yond
“indicia
for whatever
hunt
begins
ground
its
as told
remark,
Williams’
may cling reliability”
state-
“spontaneous”
made a
Williams
Whether
Shaw.
very question
interest”
penal
his
“against
ment
of Williams
by cross-examination
tested
have been
should
*30
If
reliability”
himself.
“indicia of
easy
are so
to come
prove
by, so
then
much,
only
it is
to
reasonable
ask
whether
any
independent
Confrontation Clause has
vitality at all
protecting
a criminal
against
defendant
of extrajudicial
subject
use
statements not
to cross-
exposed
jury
examination and not
to a
assessment of
the declarant’s demeanor at trial.11 I believe the Con-
frontation
any
has been sunk if
Clause
out-of-court
statement
an indicium
bearing
probative
of a
likelihood
can come in, no matter how damaging the statement
may be or
great
how
the need for the truth-discovering
test of
Green,
cross-examination. Cf.
California
U. S.
161-162 (1970). Our decisions from Pointer
Douglas
to Bruton and Roberts require more than
this meager inquiry. Nor is
lame
“indicia” ap-
proach necessary to avoid a rampaging Confrontation
tramples
flexibility
Clause
all
and innovation in
a state’s law of evidence.
specter
That
only
need,
specter.12 To decide this
I
case
not go beyond
hitherto settled Sixth and Fourteenth Amendment
law
to consider generally what
if
effect,
any, the Confronta-
tion Clause
has
hearsay
common-law
rule and
its exceptions, since no issue of such global dimension is
presented.
Bruton
Cf.
States,
United
In Evans guarantee his constitutional fully he is accorded the witnesses cross-examine all confront and of the Court judgment I him. would affirm.the courts go Georgia back to the and let this Appeals the use of this out-of-court statement without to be tried to Williams. attributed Shaw