United States v. Clifford E. Payne, United States of America v. Roland Payne, United States of America v. Hubert Payne

Judge, HAYNSWORTH, Chief Before WIDENER, Circuit and WINTER Judges. Judge:

WINTER, Circuit Payne Hu- Payne, Roland Clifford guilty conspir- Payne found bert acy ob- to violate 18 U.S.C.A. § passing taining, possessing counter- Each Federal Reserve Notes. feit $10 Three imprisonment. was sentenced to including their co-defendants, other guilty Burrell, pleaded brother Clifford, Roland and indictment. same validity their attack Hubert ground Special Agent, Jr., victions on the district Donald, that Peter M. erroneously unconstitutionally Service, court and of the Secret was then called as written, Agent into a un- admitted signed evidence a witness. Donald said that he implicating agents of Burrell and two statement other Secret Service admit- them. Before the statement was ted, talked Burrell at Burrell’s home in produced Wytheville, Virginia, January was as a Burrell on began and that he neither remem- testified 1972. The interview in an auto- the events in the state- bered described mobile front and residence making adjourned ment nor the fact of the state- then inside to the kitchen for taking convic- purpose ment. Hubert also his attacks a written state- ground on that a Agent the additional There, ment from Burrell. Don- money order, Payne” interrogated on which “Hubert ald Burrell and his wrote designated handwriting as the Agent was answers. In the words Donald sender, improperly admitted providing into ev- was “[h]e was the facts [Burrell] proof writing idence because there was no piece and was them down aon handwriting paper.” Agent was his. Donald testified that as the pro- interview in the kitchen contention, no in either see merit We gressed, dizziness, complained Burrell and we affirm. memory, headache and loss of and agreement taking mutual I. Agent statement terminated. was Don- that, ald was of the view Clifford, until Burrell At the trial of Roland and memory interview, terminated the Payne, Payne, his Hubert Burrell who had then appeared was previously far better than it pleaded guilty, a called as court; appeared “perfectly Burrell government. nor- witness for in- When mal” and related instances he terrogated, recog- said he remembered and had occurred two three ear- months nized his brothers. He claimed no recol- sign lier. Burrell having did not pleaded state- guilty, lection of he but Agent ment; but Donald dispute testified that did not that fact. He claimed no transcription his of Burrell’s having any recollection of talked to “fed- point was accurate to the that Burrell Wytheville, eral men” at home in his interview, Agent terminated the Virginia, July 11, 1972, on and he denied challenged Donald’s verification is not having passed any recollection of appeal. on money. however, Again, counterfeit he dispute fact, did not either but said sim- objection, Over defendant’s the dis- ply that he had no recollection. A writ- trict court statement, admitted ing, unsigned par- later identified an jury. it was exhibited to the It record- tial statement taken a member of the ed that Burrell had been advised of his Service, him, Secret was exhibited constitutional ment, a to make state- failed refresh his anything recollection either he said could be statement, events set forth in the him, used and that he concluded or of the fact interview had to make a statement of own free will place. taken Burrell made reference to promise and accord without of immuni- patient ty. fact that he had been a aat set forth that sometime No- hospital state mental vember, was still an he obtained from his out-patient and thirty-five on medication. He also brother Hubert counterfeit mentioned an bills, accident he when fell down apparently gift, $10 as a and he steps holding some passed while them, help with the of Richard eighty power pound Stanley, tool and suffered co-defendant, at various temporary paralysis some places Virginia and loss of in western and southern memory Virginia. thereafter.1 West Nine of the notes were Chester, appealed, His brother who memory defendant testified that Burrell has not had problems since the accident. impeach credibility purchase money passed Stanley structions to changed story Piggly-Wiggly in the witness has store who order at trial,” Virginia, money 90 S.Ct. at Grundy, 399 U.S. at and the order survey analysis given Burrell obtained Hubert. authorities dis contained Green bills from Hu- additional $10 counterfeit minority adopted occasion, view time closes “the this bert paid a second jurisdictions supported by in some for each counter- him $100 $20 legal most and commentators recent also forth that feits. set The proposals codify Roland, to of evidence my law Clifton “I believe brothers permit would the substantive use of had some counterfeits.” and Chester e prior in- inconsistent th with the statements The statement concluded scription theory dangers incomplete that the usual of un- that it was and largely signed “subject complains are where wit nonexistent because 155, dizzy lapses memory spells,” ness 399 testifies at trial.” U.S. and and Agent Special 90 S.Ct. Donald’s followed there signature. panel, Some the members of concerning money The evidence necessity choosing faced with be subject of order, is the Hubert’s majority minority tween views ground appeal, second was that it was case, prefer the instant would cast in the amount of was sold $84.63 minority lot their with the view and Grundy, Piggly-Wiggly store Vir- hold that Burrell’s statement admis ginia, and an to Burrell unidentified sible, past recollection, as recorded bills, and man for nine counterfeit $10 prove They the truth of contents. printed that the name of block strongly po would be influenced Payne” sender, the name of “Hubert fostering perjury, tential case handwriting. had inserted been accuracy like the instant one where There evidence who was no wrote prior of the recollection recorded name, was evidence that but there impressively by the demonstrated testi money cashed in order had been Colum- mony agent, by adoption of a bus, Payne Ohio, where Hubert encourage rule which would Burrell to shown to lived. feign recollection, a failure of on his or at own the instance of his brothers. II. unnecessary But it is make the choice majority minority between rules in the issue of the ad we see As because, this case. This is so even in missibility statement, it involves jurisdictions following majori those aspects of two consideration (See ty g., view v. e. States United Cun general law—the law of evidence and ningham, (2 1971); 446 F.2d 194 Cir. guar effect of the Confrontation Clause Pacelli, (2 v. United States 470 F.2d 67 proceed antee. to these considera We 1972), 1501, Cir. cert. den. 93 U.S. 93 S. tions seriatim: 1501, (March 19, Ct. 36 L.Ed.2d 178 evidence, A. a rule of there are As 1973)), prior inconsistent statements of opposing whether recorded views a witness available for cross-examina past may be admitted into recollection may be received as affirmative permissible exception to as a evidence‘ proof when made at former excluding hearsay the rule evidence. grand trial, jury. or before a United The are collected in authorities Califor Mingoia, 710, (2 v. States F.2d 424 713 Green, v. nia U.S. 399 1970); Insana, Cir. United States it 26 L.Ed.2d 489 where (2 Cir.), F.2d cert. den. majority said hold that a courts 27 L.Ed.2d past recorded recollection that such excep rationale these not be “to the truth of the offered show majority tions to therein, rule that but can in matters asserted be limiting appropriate possible troduced in- fact of an under oath or cross-exami- agent’s provide part, assurances nation sufficient whole or in he ought reliability to was the statement asked if he had been advised of his rights evidence of admitted as constitutional substantive if he had signed ques- contains. a waiver the facts it before he was replied affirmatively. tioned and Following of the instant submission arraign- course, appeals, required Of we Burrell’s Burrell’s statement was not arraignment, to admitted at his ment to be transcribed submitted nor the as- pect persuades implicating study Roland, us. us Our Clifford and sufficiently agent as Chester tested described. his statement was did testi- fy it, reliability ought too, however implicated Burrell had prove Hubert ly Stanley. truth of its held Richard admissible Admitted- technically also, contents, though Burrell specifically even was not to, asked if he or he not been cross-examined. controverted sworn the results of interview, ques- there can be no 12, 1972, June about six months On tion in our minds that Burrell’s atten- Clifford, prior the retrial of Roland to tion was directed statement, to his testified,2 and Hubert at which Burrell ample opportunity he had to disavow the arraignment. Ini- on for Burrell came fact of the interview and what was dis- guilty; tially, plea a not he entered of cussed, or to assert his lack of recollec- that of his motion his case from to sever any part it, tion of all or of and that his granted; case his was and his brothers silence, presence court, of the July on After'the set for trial was amounted to tacit admissions that the recess, commu- court's luncheon Burrell place, interview took that he remembered change his nicated to the court desire to acknowledged he and that the correct- guilty. compli- plea to of In full his one ness of Mr. testimony Donald’s of an- his 11, F.R.Cr.P., with Rule Burrell ance swers. Our conclusion is fortified his interrogated the vol- was to demonstrate response questioned affirmative when plea untary of a of nature of his tender being about his advised of his constitu- understanding guilty the na- of and his rights, tional a fact recorded in the state- charge possible of the ture the and ment. sequences plea, accepted. He if short, that, In think spe- we under the difficulty understanding evidenced no cial case, reliability facts of this the of responding interroga- the or to court’s past the record of Burrell’s recollection Additionally him. his counsel of sufficiently was established that admis- that Burrell understood what affirmed sion of the record into evidence doing was entering guilty plea he a to application barred mechanical proceed- the indictment. Then the court rule hearsay testimony. requirement ed the he of Rule 11 that to if there a determine factual basis B. We see no constitutional im plea. for the pediment in the sixth amendment Donald, Jr., Peter M. who had taken confrontation to the admission of the statement was then Burrell’s sworn and statement. In Green, California v. describing testified. After U.S. how he 26 L.Ed.2d 489 learned of upheld the and crime a statement the Court validity given by Chester, a provided‘that testified how he California statute which agents and other interviewed Burrell rule would not render inad essentially what Burrell had told missible a statement made a witness testimony him. if The substance of his statement was inconsistent with inwas accord the testimony with the statement’s con- of the witness at the trial Although specifi- tents. given Burrell was opportu witness was cally nity explain asked if he controverted the deny prior state- original September 2. Their trial inability in a 7 resulted mistrial because jury agree. subject transcript under circumstances case, made a both In the ment. protections. But none of these hearing unsworn and an preliminary a testifying present declarant at admit- police were officer ato statement trial, out-of-court all statement for as- the matters prove the truth ted to regains practical purposes most of the trial therein, at when serted protections lost the ina- .... of those recollection a failure claimed bility witness, at cross-examine the witness Specifically, matters. prior the time he made his statement previously identified drug who user easily cannot significance be shown to at crucial supplier, testified as his the accused long as the defendant of who uncertain he was the trial that of full assured and effective cross- un- supplier he had been because examination at the time of drugs. trial.” conten- influence der the such,., use of advanced that tion was 158-159,3 S.Ct. at the Confrontation violated statement Notwithstanding apparent breadth argu- rejected Clause, Court quoted, of some the statements respect ment question ad- reserved Court hearing held that preliminary missibility of the unsworn statement preclude did not amendment the sixth police officer, saying, “we find little when of such a admission distinguish among prior incon- reason subject cross- sworn witness was sistent statements on basis of preliminary both examination at prior circumstances under hearing did not The Court given,” but “Porter statements validity of the the constitutional decide he at trial that claimed [the witness] state- unsworn of the witness’ admission not remember the that oc- could curred,” events officer, police because ment to a appar- Porter’s “[w]hether ripe was not the issue cluded that memory lapse of ent so affected Green’s adjudication. right as make a crit- cross-examine to to Admittedly, does Green California application ical difference us; precise decide the issue before not here, . an is- Confrontation Clause . . is an unsworn we concerned with are ripe is at this sue which for decision police and a to a officer statement 168-169, juncture.” U.S. at S.Ct. at recollection total failure of claimed Harlan, con- at Mr. Justice 1940-1941. It that did comment answer, curring, supplied have would historically . . . there iewed [v] firm because he stated his conclusion good to conclude that reason Confrontation Clause that “the not violated Clause is Confrontation Amendment no reaches farther Sixth admitting by a declarant’s out-of-court pro- require prosecution than to statements, long the declarant is as as duce available witness whose decla- subject testifying as a witness to use in a criminal rations seeks full and effective cross-examination. 174, 90 trial.” 399 S.Ct. at opinion, And, Mr. In the course of Justice 90 S.Ct. at 1935. 399 U.S. stating Harlan added: after that the Confrontation tes- Clause insures that the witness will witness, though The fact that tify oath, witness will be under that the physically available, ei- cannot recall subjected to cross-examination and that underlying are events that ther jury opportunity as- will have the subject extra-judicial of an state- credibility, the Court added: sess previous recol- ment or course, is, lect the circumstances under which true that the out- [i]t given, may does not of-court statement statement was been noted, than, here, however, It rather should that this statement the trial implied claimed, complete statement was made on of recollection. factual absence basis that the declarant made an inconsistent why consequence. he Amendment about failed to have Sixth recollect what he prosecution previously pressures, no less fulfilled had said and what The has obligation any, simply upon because a wit- been exerted him memory. lapse encourage wit- ness has a brothers his failure of my view, is, incriminating recollection available. To the ness events prac- is, jury in a them. The extent witness would thus have had a sense, for cross-exam- substantial tical unavailable basis on determine previous ination on the relevant facts . truthfulness of Burrell’s opportunity nonetheless I think confrontation is and full ob- serve satisfied. Burrell’s demeanor and manner testifying so that it could make a deter- 188-189, 90 S.Ct. at 399 U.S. at genu- mination of whether there was a separate Harlan’s See also Mr. Justice signifi- ine failure of recollection and its Evans, opinion in Dutton v. 400 U.S. persuasiveness cance on the of his ear- 27 L.Ed.2d lier statement. It is true that where majority Supreme While complete failure recollection yet itself to has not committed Court claimed, the truth of the earlier state- think, Harlan, we thesis of Mr. Justice oath, ment is not verified but as nevertheless, principles under the Judge Learned Hand stated DiCarlo Green, was no there denial California v. States, (2 v. United 6 F.2d Cir. in- confrontation 1925): produced stant case. Burrell possibility jury and he was available cross- accept examination. is true that reason as the truth the earlier state- complete preference of Burrell’s claim failure of ments to those made recollection, scope upon real, of effective cross- the stand is indeed but we inquiry difficulty If, examination excluded re- find no in it. from all gard guilt jury substantive evidence of witness, see part says on the of Burrell’s brothers. But conclude that what he now is not different, except degree, truth, this was no before, what said they from deciding a case a which declarant are none has the less from made a detailed person earlier statement and at what and hear of that see trial, despite the mythical and in efforts refresh court. There is no necessity recollection, only some, remembers that but the case must be decid- all, case, not of only the details. In a ed such we accordance with the truth any court, do understand that of before words uttered under oath in court. or the after decision in California v. complete is also true that where fail- Green, has held that the Confrontation ure of recollection is claimed the truth Clause has been violated admission of earlier statement is not tested the entirety, yet, statement its if regard cross-examination with to its accepted, defendant’s contention is to be content, substantive but California v. logic require would exclusion, on Green, grounds, constitutional of earlier only indicates that we should if reverse statement only where there was a claim “apparent lapse we conclude that of partial of failure of recollection to the memory so affected . . . [the] extent of the claimed failure of recollec- to cross-examine toas make a crit- tion. application ical difference of ” Confrontation Clause . . . For Burrell was available for cross-exami- stated, the reasons we cannot reach that nation about contemporane- other events conclusion here. ous period with alleged spiracy ; he could have been cross-exam- III. possible ined about prejudice or bias to- brothers; ward his and he bearing could money The order Hubert interrogated been government Payne’s name was admitted connee- Judy Agent, he also could not remember testimony Lank- with tion ford, agent talking Piggly- with at all. Under in a cashier who was pres- circumstances, physical Virgin- Grundy, such grocery Wiggly store in nullity so far was includ- ence the witness duties her that testified ia. She pos- it or as concerning touched direct cross-examination money and she orders ed itively sale extrajudicial statement. money order identified The no better off than defendants were sold. She which she question one physically had unavail- the witness been permanent record also identified able hearsay admission of indicating money or- store, substantive evi- statement as remem- She there. sold der had been is not money dence under the facts of this case only order she sold bered hearsay rule, it a violation of the gave bills her $10 men who two deprives the defendants of their coun- subsequently advised she right Sixth Amendment be confronted as one Burrell identified and she terfeit against with the them. witnesses purchase. On made who of the men it money showed face, order its Hearsay Problem Ohio, Columbus, there was cashed city that this by way dicta, majority, While the residence. Hubert’s position takes the state- that Burrell’s Payne „ agree Hubert the name We ment under should be admissible alone, standing order, money on the past exception recorded recollection weight implicate evidentiary little Hubert, hearsay rule, does not hold the proper that a think but we admissible, statement so bases money admission foundation for admissibility conclusion as to on the and its admission had been laid order supposed reliability inherent error, even with- evidence was into agreement I statement. am not in n supplied proof who out direct proposition. either I do not think the writing. past is the recorded within exception recollection and further be- Affirmed. any, few, that it has attributes lieve (concur- Judge WIDENER, Circuit reliability. dissenting): ring and past it, I understand recorded rec- As majority I with the concur ollection, jurisdictions which in those admissibility money order exception, supposed to follow this Payne, to the admissibili- Hubert ty but as reliability have earmarks of writing since of Bur- of the out of court statement recording when the made Payne, respectfully rell dissent. recorded fresh in the witness’ facts were here are faced with a We memory witness can testi- and which the question reserved fy accurately Because recorded. question in Green: is the confrontation past reliability, recollec- such recorded being witness, clause satisfied when the present, tion has admitted as substan- often been he cannot remember claims cannot tive evidence when question, events and the court then trial, al- remember the facts at prior a as admits out of court statement though of the witness cross-examination substantive evidence? made the time the was was at statement exception, even not had. this Under not The witness here testified that though may only read the statement he was unable to remember the jury, admitted as an ex- allegedly prior it should not be events discussed his happened here.1 hibit as conversation with the Service Secret supporting Evidence, Proposed good both cases 1. discussion of the See Federal Rules of non-admissibility admissibility 801(d)(1), Witness, Prior Statement proposed. supporting 803(5), as each rule Recorded Recollection. The Advi rationale particularly sory cognizance note I Committee’s Notes to each rule are a take Wigmore’s fraught treatise is with ex- admitted in neither evidence nor re- amples past arraignment; (3) recorded when recollec- ferred to at his Bur- may admitted, subject rell and all would re- not under oath or was quire arraignment; as a minimum that the witness cross-examination at his (4) verify accuracy practical purposes, of the record either all for Burrell subject at or To was trial at time was made.2 to cross-examination at say contrary regarding question would the here in a result here trial his by prior statement; (5) potentially perjury foster witnesses the substance of ig- feigning his implicated is failure of recollection statement that the other plausible possibilities equally adopt- nore the defendants was never admitted or prior false, any judicial proceeding; or ed that his statement was Burrell at (6) person that the to whom the statement the ancient rule that the confession misquote declarant, accomplice may was made would not be received in against mistakenly another, transcribe what the de- evidence at least old Tong’s Furthermore, Case, Kelyng 18, Eng. clarant said.3 the trial Rep. 1061, (K.B.1663), court concluded that Burrell was not is violated. feigning inability Phillips Commonwealth, his to remember. 202 Va. rule, 116 S.E.2d 282 exception majority that the relies time, least until this has “univer- been upon existing outside law sally accepted.” Dutton, infra, 400 U.S. prior evidence.4 It recites that incon- 74, 213; 91 S.Ct. 27 L.Ed.2d sistent statements available of witness (7) admitting the statement makes a may for cross-examination be received shambles rule of Bruton v. United prior as substantive evidence where States, 391 U.S. given at a trial or statement former L.Ed.2d 476 to the effect that grand ignoring then, jury,5 before together may co-defendants not be tried stated, guilty the rule as holds Burrell’s implicating if confession of one arraignment plea at his silence introduced, other is to be for insur- testimony agent in the face of Don- prejudice mountable Sixth Amendment arraignment ald at the as sufficient confessing. will result to those not Of satisfy requirements. I consider what avail would it be here for Burrell’s this result unsound and incorrect co-defendants to ask severance or- following (1) least the Bur- reasons: der avoid his confession the confes- previous plea only guilty rell’s concerned sion be used them (2) action, guilt; his own own stretching logic event? far prior too actual substance of Burrell’s state- (which say here) ment was admitted of witness who re- including 803(5), jury possibility Rule the statement without of cross-exami- past exception the recorded recollection nation. 801(d)(1) included under Rule because A.L.I., (1942), p. 4. Model Code of Evidence category requires the declarant to be “ ‘subject to cross-examination’ as to which impaired aspect Mingoia memory excep- pre- submit did this not admit tion raises vious as affirmative doubts.” evidence as majority, cited rather it held the Wigmore (3d 1940) III on Evidence Ed. prior grand jury testimony admissible as a (hereinafter, Wigmore) § 746-748 751. § previous statement, inconsistent 424 F.2d at 140, See also 125 A.L.R. 165 and 82 A.L.R. Insana did 713. although the same. recited that 2d §§ 29-46 for notes and a collection of cas might such be admissible under the Bridges Wixon, 135, es. See v. 326 U.S. 65 proposed rules, “present under rules” it 1443, (1945) S.Ct. 89 L.Ed. 2103 where inconsistent,” “can be considered and had making witness denied the statement. pass upon sug- “no occasion to the broader course, proponent 3. Of gestion,” is evidence 423 F.2d at 1169. United States v. nearly always profit DeSisto, (2nd one who 1964) stands 329 F.2d 929 Cir. being from hold, the statement admitted whether did so there the but witness admitted forgetfulness feigned good faith, prior is inor he made statements. gets for in either event the statement to the

457 noted, in set them, is, as before un- making it is inadmissible members by Green reserved situation the factual a wit- Bruton, statement der ques- making a narrow described as and there remember does not who ness lurking in case. majority deci- under is admissible is here; (8) itself the statement in opinion court sion Were unsigned, in not Burrell’s to, majority opinion, or were the unsworn handwriting, Green subsequent with concluded Dutton, perhaps opinion in incomplete and spec- inscription alacrity it was with less undertake would complained of unsigned Burrell upon because the ultimate answer ulation spells.” dizzy memory “lapses question comment in Green reserved itself, additional background these The statement reasons, upon the historical face;6 (9) we suspect on its especially clause, and this confrontation forget prosecution is for this penetrating not exhaus- must view of the in conspiracy at the ended conspiracy. The concurring opinions in those cases. tive 30, Burrell’s concurring opinion November latest of the Chief January 11, p. made on however, Green, Justice, in 399 U.S. officer, and 1972, may law enforcement 1930, to a sub 171-172, seem S.Ct. 90 pur- nothing either to do with v. that the rule of West silentio to infer conspiracy. 650, or furtherance suit Louisiana, 258, 24 48 194 U.S. S.Ct. of one declaration out of court (1904), Such are 965 States L.Ed. pursuit conspirator, not made necessarily bound Sixth objectives of the in furtherance of Amendment, subject to the limit against the conspiracy, is not admissible procedure a denial must-not work “such conspirators. no feder- I know of 258, rights,” other fundamental 194 U.S. contrary. v. Krulewitch 652, apparently al cases to 263, not as 24 S.Ct. 440, States, 69 S.Ct. 336 U.S. might supposed by United the lan- dead guage be as (1949); 716, Lutwak v. 400, Texas, L.Ed. 790 in Pointer 380 U.S. v. 604, States, 73 S.Ct. 344 U.S. United 406, 1065, L.Ed.2d 923 (1953).6A 481, L.Ed. (1965), Amendment where Sixth against the was declared to be “enforced Problem. according Confrontation the same States . . . against significance especially federal here, standard . . [as] . more Of Indeed, Chief Jus- encroachment.” tice, philosophical, Amendment is the Sixth reason, construes problem Green not the defend- of whether or “rigid imposing limits” on the States. deprived to be of their ants against holding the witnesses confronted with in Dutton7 lends And the later Proposed if the I also note that doubtful in the federal Rules of Evi as dence, 801(d)(2)(E)? Lutwak, have been admissible statement would Rule Cf. Burrell, p. 617, 481, agent evidence in a trial of “the substantive 344 U.S. 73 S.Ct. comply objections philosophical its face does not the statement other.” For Illinois, conspiracy indictments, practical v. either with Escobedo 378 U.S. as well as (1964), 1758, problems, 12 L.Ed.2d 977 84 S.Ct. evidence see the concurrence Arizona, Krulewitch, or Miranda 384 U.S. 86 S. Mr. Justice Jackson Dav (1966). enport, The testi 16 L.Ed.2d 694 Ct. The Confrontation and Co- Clause mony concerning taking may conspirator Exception its be less than Prosecu Criminal tions, conclusive. 85 Harv.L.Rev. 1378 Supreme apparently Evans, 6A. The has not Court Dutton v. admissibility Georgia considered the context of 27 L.Ed.2d 213 held valid in a evidence federal court whether or not statute which allowed a statement a co- co-conspirator, conspirator the statement of a uttered admitted evidence pursuant conspirator although to and furtherance of the con- another spiracy, during is in with the conflict confrontation made the concealment statement was Dutton, So, phase conspiracy during clause. ex- Cf. infra. to some rather than tent, purpose. pendency we write with a clean slate. In Quere: to further its attorneys us, have taken courts case the statement made well before was view, expressing it, conspiracy. without that such state- after hearsay, admissions, ments are not but are 458 position. just required

credence to this The concur- utes referred to in literal plain English rences of Mr. Justice Harlan in Green that the witness not only brought only and Dutton make it clear that not person, into court in scope case, alive in the of the effect of the confron- one and if alive yet other, en- within the tation clause on the States realm the in but tirely fixed, person party there “in decisions leave before ac- subject scope (arraigned,)” entire the con- cused “avow and maintain they say” frontation (5 clause less than clear: have to Edw. my VI), have, “say openly hearing . . . decisions “[The] what ambiguous they view, (1 left whether and to . . . can him” 2& M). P & what extent Amendment the Sixth hearsay rule. ‘constitutionalizes’ ” hearsay Development 173, Green, rule be- . at . . 399 gan “glimmer Eng- 1943; the middle only 1500’s when the 90 at S.Ct. system evolving lish court light” by history on is shed its ex- point juries where Green, 177, for the tent, first time at 90 at S.Ct. depend were forced to ground on 1945; testimonies of- is common “[i]t court, fered to them in understanding did not be- historical clause part come a settled guide adjudica- the law until the furnishes no solid late 1600’s.8 The most often tion,” Dutton, stated U.S., 95, at at safeguard hearsay rule, de- 223. veloped and as it today, is that state- majority Supreme A has Court testimonially ments offered must be sub- opinion been of right the confrontation jected to the test cross-examination.9 and the rule are not coex- excluding The rule extra-judicial tensive, Green, 155, 174, 90 399 U.S. statement of a if the witness S.Ct. correctly And Mr. Justice Harlan has 1930. apparently gained general were available 172, Green, noted in at acceptance following Raleigh’s trial.10 1930, tendency S.Ct. to indiscrimi- case, damning In that evidence intro- equate nately cross-examination against Raleigh duced was the confes- Although may confrontation. he sion of implicated Lord Cobham which modified, reasoning Dutton, this where Raleigh, although and, im- Cobham was equates he the cross-examination prisoned very building where Ral- my opinion procedure, a mode eigh being tried, he was never 94, states, p. there 400 U.S. called aas witness.11 theAt time of 210 the conclusion that the con- correct Raleigh’s trial, general rule was that regu- frontation was “intended to clause depositions of absent witnesses procedure.” late trial This construction court, read in and oral examination of confrontation is consistent clause rare;12 nevertheless, witnesses Ral- background both with the historical eigh’s pleas did, to confront his accuser most American decisions until re- court extent, to some English reality become a years, cent chipping away when the courts commenced shortly defendants who followed rule, at the even as him, after so the difficulties of his VI, 12, did to the statutes c. Edw. § plight totally not have fallen 22, M, 11, and 1 P & c. & 10 & in Raleigh. deaf ears.13 time of Sir Walter These stat- Jardine, Wigmore, 11. Facts taken from 8. Criminal § 1364. Trials I, reported Wigmore, 1364 and § Bow- Wigmore, en, 1362, 9. §§ 1365. Also see discus- Lion the Throne Ch. page sion on an oath 15-36. was not re- quired merely at common law but was an in- Wigmore, 1364, 12. note § 45. cidental feature to cross-examination. Wigmore, § note Also Wigmore, Green, supra, § note 47. see note where the points (F. court out that at least one author right conventions, by revolutionary of de- The Amendment Of the Sixth important far and the fendant to be confronted the wit- the most one with history against apparently more him was not influence on our was the nesses Virginia expressed of American coloni- convention held in the of 1776 Wil liamsburg, The fifth closest which was the and last al charters or enactments. Virginia have come to of the colonial conventions colonial charter seems guaranteeing originally govern Amendment trial convened fill the Sixth Pennsylvania rights gap of Charter mental caused Lord Dunmore’s 1701, Burgesses.18 Privileges, provided which, “all of the dissolution House of privilege have the same The convention named a committee to criminals shall prepare Rights of and council their witnesses a Declaration of and a reflection, Upon prosecutors.”14 Among such of Constitution. members since, unusual, George Mason, not until omission was committee were Virginia of author of the the Act Settlement of William Declaration of Mary put rest, Rights, Madison, the colonies the matter and James author personal Rights. generally had been considered of the federal Bill of The Vir ginia property Rights rather than of the monarch Declaration of Indeed, property Rights de- the realm. first of of true Bill in the modern sense, period pro of the Crown bates between American since it is first rights frequently centered and the colonies tection for the of individual adopted of the colonies around the insistence that, contained in a Constitution n they prop- acting personal people through since were the a elected erty wholly Crown, to be It is convention.19 almost in subjected discriminatory Mason,20 impor acts dividual work tance Rights Parliament.15 the source of the federal Bill of overemphasized. may not be The many rights later While includ- failure of the federal Constitution to Rights ed in granted federal Bill had been Rights a, contain a Bill of if not to the charter or en- colonies the, principal Virginia at the contention prior actment to the end of colonial ratifying convention 1788. Patrick period, rights the trial embodied in the among Henry, example, others, spoke Sixth Amendment had not.16 against passionately ratification for this revolutionary remained for time, reason.21 At that membered, it must be re rights the trial conventions articulate Virginia only people expressed constitutions, colony, oldest she was richest spurred by, people, on all Lord Coke populous, territory, run most and her by his decision Bonham’s Case: ning Mississip from the Atlantic when an “[F]or against Act of Parliament half, pi, country in so that a cut the common and reason or re- Virginia ratify the federal failure of pugnant impossible performed, to be although Constitution, nine States the common law will judge ad- eontroul so, would have almost certain- such act to be then done void.”17 Heller, (1951) ) pp. Schwartz, Sixth Amendment 18. 231-234. traces the confrontation clause to the com- Schwartz, 19. 231. at mon reaction law the abuses Randolph, Essay Schwartz, 231; Raleigh 20. at E. Ibid., History Virginia, Revolutionary Schwartz, Rights, 14. The Bill A Documen- Dabney, Virginia: seq.; New at et tary History, 1971, pp. 170, 179, 180, 231-234. interesting An at 136. Dominion Hereinafter cited as Schwartz. history Mason wrote is that footnote to Virginia Goebel, History the Ral- Schwartz, pp. 40-44, in his room at Declaration 15. 52. Schwartz, Supreme Court, eigh I, at 232. Tavern. Vol. Ch. esp. pp. 66, 84. Hereinafter Goebel. Virginia Debates, Chronicle Elliot’s seq., Convention; Schwartz, pp. et Schwartz, 232-234. speeches. many from abstracts tains 182; Goebel, I, Schwartz, esp. Ch. seq. et govern- ly developed among failure of the new meant the census had Americans finally Virginia rights ratified ment. the new on the fundamental which the law by way compromise, protect,26 Constitution should and it is consistent ratify say, is with the re- she did with Mrs. Bowen’s statement as to the right public Raleigh’s served withdraw and recom- reaction to Sir Walter mended at time a Bill of same defense of himself: “LAW antedated Rights adopted every to be amendments the laws and would exist man- drafting expunged. new Constitution.22 made statute were It was a proposed conception, part federal Bill committee of native of the common Rights only Mason presented included not inheritance. Sir Walter had Henry, plain and Madison but Patrick law as citizens in knew it their George Wythe.23 John Marshall and Ev- hearts, minds held it in their no Virginia ery specific guarantee in put matter what construction had been upon proposal, one, legalists place by Queen found it save later Rights in now or in Mary the federal Bill of in- Tudor’s time.” Congress by in troduced the first Madi- noteworthy It is research on Virginia by proposed son as herself. subject of confrontation clause inevita- Among those was the “to con- bly Raleigh’s leads to trial.27A The trial fronted with the accusers and witness- many opinions is mentioned in es,” phrase a lineal in descendant the writers.28 As noted in Virginia Declaration.24 Green, at least one author traces the Although Schwartz notes the omission confrontation clause to the reaction English of references to law and colonial Raleigh’s in abuses Virginia Declaration, in charters Although is this notion characterized taking at face value assertion of the essentially Mr. Justice Harlan as an law of nature as the source of the enu- assertion,29 space devoted to the trial rights, merated I it is think far more by Wigmore leaves no doubt as the" likely that articulation Mason’s of trial weighty thinking. part played in his it rights, really guaran- which is the basic noteworthy The trial all the more be- is Amendment, tee of the has its Sixth cause Sir Edward was the Attor- Coke in the roots abuses Crown is ney Raleigh. prosecuted General who attempt an might to determine that the abuses enough my IWhile am not certain place never take under the new ground flatly posi- advocate Heller’s government being which was estab- Raleigh’s tion that trial direct was the lished. As Mason in a said letter to clause, antecedent the confrontation going Henry Richard Lee: are now “We do not think his conclusion be re- upon important subjects— most of all jected out of hand. ‘government!’.”25 Indeed, this state- aligned Raleigh’s accomplishments30 ment of in Mason’s is rather more With mind, the conclusion of wonder that trial Schwartz that I, Virgin- 16, 18; 418-20; 22. St. Tr. See abstracts from minutes of the Tr. Jardine’s Or. Churchill, reported Schwartz, esp. ia The New at 160. Convention at World 828-846. g. Green, supra; Wigmore; Campbell, 28. E. Popham, Schwartz, 23. Life Life of at 765. of Lord Chief Justice Sir Edward Coke. Schwartz, 765; Virginia proposed 24. Rights Schwartz, Green, pp. 177-178, federal Bill of is found at 1930. 29. seq. et youngest Raleigh, son a Devonshire 30. oppor- Schwartz, p. age equal squire, 25. not noted for Quoted 232. an high- employment, tunity had risen to the Schwartz, at 233. responsibility England. positions est Parliament; member He had been Bowen, Throne, The Lion and the fought Spanish them he found wherever part important noteworthy the defeat of and had an 27A. here the fact Also Hawkins, Howard, Armada; conspiracy. Raleigh sailed with was tried for How. judge by impression upon on the demeanor the stand made execution English gives Indeed, in which has been and testimony manner people? years worthy of whether he is be- passed for almost down to us example. lief.” Can there horrible as a

slightest fresh this trial was doubt purposes expressed as are in Mat- Such Madison, and minds Mason tox are bound to have been the minds Henry? Wythe And and Marshall they of Mason and Madison drafted particular unlikely trial in the event the Virginia the Declaration and the Bill of say ex- not, that the abuses can we was Rights. among by emplified trial were not the Bill of of the which the authors Raleigh’s those Rights complaints? What were sought not. I think correct? were What the abuses the time ? of What demanded correction ? kept there in mind that It should be in many other state trials had been First, there two witnesses had commit- abuses been which similar prove charge, and, second, the the wit- Supreme by Crown,31 and the ted the ness did not maintain the accusation to States, Court, in Mattox United his face.32 337, 339, 237, 242, 39 L.Ed. pur- expressed accurately argued: has He “I be told that the in lan- pose clause repealed, the confrontation I of statutes before named be for guage startlingly us- of that diversity religion reminiscent I know the of Raleigh by days many own ed in defense: Princes of his those caused yet changes, equity of and reason object primary of the constitu- “The They kept those laws remains. to il- are provision question tional in was how common then lustrate law was

prevent depositions parte affida- ex ought expounded.”33 taken and to be vits, admitted sometimes such as were Raleigh argued had that the statutes being cases, in civil used required Edw. VI two to con- witnesses personal prisoner exami- in lieu aof argued him, demn and that the of the nation and cross-examination presence required the of the statutes witness, an in has accused argument person. The only testing opportunity, unavailing. quote Wigmore, “From To sifting conscience recollection and very year latter enactment compelling him witness, of the but of succeeding (1554) until the end jury in to stand to face with the face by judicial century, eon- him, they remained may look and order that Wigmore campaigned Essex; Frobisher; The 31. Some mentioned are: and with (1571) ; Trial The Earl Carolina; Cadiz; Duke of Norfolk’s settled North stormed Archbishop (1640) ; captain palace pa- guard. Trial Stafford’s A of the Spenser, Laud’s Trial tron of the and friend arts scholarly would, prison, while write by then, by law, civil 32. “If the statute History of the World. True to the custom required word be law God’s time, forced defend himself he was least, bear there be two witnesses upon his indictment treason without guilty me me if I one. Prove desire attorney, great- prosecutor and his things by only, I will these one witness lawyers. Although est of the common If I done these confess indictment. executed, history victed and has never later live, things deserve not whether Ral- waivered a moment its verdict of Why then, I be- no. treasons the law or eigh not, of, greatest as one Lords, you, my sent let seech Cobham Englishmen. Elizabethan describes Churchill soul, upon charged upon Let him be his for. re- his execution as a deed of shame and King. allegiance then And if he upon unjust Churchill, marks The my face, I will maintain his accusation World, 1956, esp. Irwin, 160; New That Bowen, myself guilty.” Quoted confess (1960) ; Durant, Great A. Lucifer W. and Throne, at 202-203. The Lion and the Age Bowen, Begins; of Reason Bowen, and the The Lion Quoted and the Lion Throne. p. Throne, right guarantees struction a dead letter.” The courts the trial receive protection had construed the of 1 & 2 P. & statute less because in a Bill of together M., Rights body with the statute of 5 Edw. rather than in the VI, to reach a result that for trea trials Constitution? John Dickenson, of Delaware, son would exactly be conducted as at common demanded what court, In the words of the requir law. stat was meant in the old statute ing utes of Edw. “were found VI to be in witnesses, two repealed by convenient and are Randolph therefore this was achieved.38 in his Essay 1st objects and 2nd of P. & M.” stated as one of the Virginia Declaration, “that in all the How were the abuses corrected? time, opinion, revolutions of of human The two witness rule was corrected in government, perpetual standard itself, the Constitution and in the de- should be erected.” an im Was this particularly bates on treason it is noted plausible repeal reference to that both part. Madison and Mason took reenactment of the old statutes from including treason, The definition of according politics time to time of necessity act, of an overt based on by Parliament, by judicial moment or Ill, old statute of 25 Edw. was frozen con struction? 4 I think not. The Constitution,36 into the as was the two ought Rights, then, represent Bill of rule, witness a source of which is ob- political judgment, princi a that certain viously English of statutes Edw. VI ples timeless, standing ark, shall be “a M., and &P. as well as the statute of I principles brought to which first can be Elizabeth, c.l., 37.37 § on to a test.” While article has Is say it too farfetched to that the re- been described as of modes defense for maining abuse was corrected in the Bill persons accused similar to those under Rights of Again, ? I think not. English law,42 given, no can reason be shifting English politics sands of and would unlikely, seem that the col vagaries of the time and the of the reli- rights onists meant to abandon the gion Princes, as Protestants and which had existed from to time un time struggled Roman through Catholics der the old statutes commit them years ascendency England, in selves to the harsher doctrines of the prosecutions too often made of matters common law. policy state punishment rather than principles mind, With in these I turn disloyalty acts of to the Crown. to the conclusions in the two latest cases The federal Constitution had corrected subject Wigmore.42A on the and to A abuses, few of the and others re- plurality of the court Green and Dut- mained, Rights. thus the Bill of And apparently ton feels that confronta- how should it be construed? Should may many tion clause be satisfied in in- Wigmore, 34. Vol. at 19. Bowen, Philadelphia 38. Miracle at Wigmore, 19; 35. Vol. § 1364 n. 42. 221. quotation See also from n. 42 the from the Essay reprinted p. part, Schwartz, 39. 249. prosecuting Serjeant in the Duke of Nor- later, Institute, 40. Coke his Third revised folk’s Trial: “. . . the law was so for opinion time, his that the statute of 5 Edw. VI treason, in some cases of but since repealed by Philip had been the statutes of the law hath been found too hard and dan- Mary. (1901). gerous 15 Harv.L.Rev. Princes, for the and it hath since been repealed.” Randolph’s Essay, Schwartz, at 248. Const., III, 3; 36. U.S. Art. § Madison’s Schwartz, Randolph’s Essay, at 248. Notes of Debates in the Federal Convention (Ohio statutory Wigmore’s depth 1966), of 42A. case Univ. Press et of seq.; Charge Jury (C.C.S.D. writing to Grand research all other I have dwarfs N.Y. 1861) subject. 30 Fed.Cas. 1034. found on the Wigmore, Required Witnesses, Number of 15 Harv.L.Rev. 12 concerning hearsay are of including rules evidence ex- (not historical stances ceptions) in criminal and civil cas- appearance same both by an than other framers that the I cannot conceive fact es. of the trier before of the witness dreamed Amendment ever testimony. of the Sixth It is giving his and there noteworthy, be attained. could related, result such before as admissibility yet seem favoring opinions Supreme eases Court In none although extent, right the accused to be based some I find do of fundamental articulated, testify denial on accuser although theory rights’ West, secondary is a in the courtroom stand cling this rights increasingly subsidiary right. Rather, difficult language the court are view cross-examination confrontation right conjunc- will confrontation spoken Pointer that in all the eases against right the States of cross-examina- tive, be enforced or as the federal being terms it is same included in Wigmore’s government. confrontation,44 conclusion tome which seems to aspect, is, main entirely in its Sixth confrontation with the consistent merely application only test term for crimi- another Amendment’s rejected trials, leaving development has been cross-examination nal has, submit, hearsay conclusion ordinary to the courts court rules prescribe legislature. does Constitution But neither the and to the legislature statements kinds of testimonial be al- what nor the should courts infra-judieially, de- given change this shall be so lowed the rules the pending deprive law evidence for on the basic as to right an accused of his being, the Constitution and him time to have the witnesses only procedure to be mode of appear the limits on the witness stand and there followed, say, party to a cross-examina- person is “in before the accused” pre- only procedure, they is and that and maintain that “avow ordinary by evidence.43 say.” law of scribed the have to Wig- Taking the statements of two English exceptions old the stat then, they together, must be more taken, course, utes, of for witness who made adopted in have been was dead at the time of the trial or one large part by majority here the might beyond realm, who was the con relating admissibility the of the state- sistently read Mat into the clause. solely ment to rules of evidence rather gave exception tox effect for 'the giving prescribed pro- than effect witness who was dead and who had tes nothing cedure, little left previous tified at a trial. In United clause, very confrontation Angell, (CC, and we have v. States 1881), 11 DNH F. 34 nearly point although arrived at the where it held the wit- Page, 719, testify ground might 43. Barber v. 390 88 S.Ct. U.S. on the it incriminate 1318, (1968), right 20 L.Ed.2d 255 held him. inadmissi The court said the of cross-ex preliminary hearing primary ble amination “a interest” but did present equate which accused was had no attor to confrontation. Greene v. ney McElroy, 474, 1400, and did not cross-examine. Witness 3 360 U.S. 79 S.Ct. L. prison (1959), in a federal in another state at time Ed.2d 1377 traced a confrontation p. added, right :16, 725, long But the court 88 S. 25 Acts before common law 1318, hearsay of, Ct. it would reach the same result was dreamed a de reversed attorney security defendant had and cross-ex nial of extension of a clearance be preliminary amined the witness hear cause of lack of “confrontation and cross-ex ing. Texas, 400, They Pointer v. 380 85 U.S. S. amination. have ancient roots.” 1065, (1965), Ct. 13 L.Ed .2d 923 reached the [Italics added]. slightly same result on different facts on the ground Snyder “has confrontation clause See cases n. 42. see Also Mas right sachusetts, 106, 330, [to held include be] to cross-ex 291 U.S. 54 S.Ct. Douglas (1934) ; [Italics amine.” added]. In v. Al 78 L.Ed. 674 Bruton v. United abama, States, 380 85 L.Ed. U.S. L.Ed 2d held 2d court inadmissible . the statement of a co-defendant who refused States, though ness was out the United testi- the statements in issue ad- mony hearing preliminary arguably recognized at a was not mitted under an although, admissible, Raleigh’s hearsay exception.” even at This is also consist- trial, he had conceded that such evidence concurring opinion ent with the of Mr. might have been admitted there. The except Justice Harlan in Dutton where right might very he, of cross-examination Wigmore, with Professor defin- while well, probably should, ing be construed right the confrontation as a “mode of excep- to determine when the historic procedure,” pro- then limits the mode ap- tions to the confrontation clause are cross-examining procedure.” cedure to “a plicable. This, relegates I ap- would not do. pearance person of the witness in before me, reading Wigmore’s To exten jury making accusatory and there thorough sive, painstaking history secondary statements to a role. Such hearsay rule and the cases45 secondary personal appear- role of the right makes it clear that the ance testify- of the witness while he is accusing appear person came ing, it, background as I see has no ei- witness, then, first. Because the al history ther in inor the cases.46 As to ready court, right to cross-exam result, then, in both Dutton and right then, ine followed. And since the Green, history, I believe that both to cross-examine the witness was estab precedent, Mattox, support until after lished, next came the to have an the dissents in their construction attorney to witness. cross-examine the nothing I Sixth can find Amendment. Assuming steps in this are order support any justifiable after Mattox correct, they are, en believe change. that, It is true in Dutton and history place tire of matter falls into Green, as in all the cases which have alongside development Supreme been decided Court hearsay rule, but not coextensive through which have come the State necessarily subject excep and not to its justified courts, decisions Thus, development tions. of the rules application of the West standard of de- admissibility for the takes its rights nial of fundamental rather than place in the things, scheme of unless the by application of the Sixth Amend- development admits in conflict precise But, ment to the situation. aft- with the Sixth In Amendment. such case, course, justification Pointer, 1965, er such Amendment must theory, control. Under this increasingly evidence has become difficult. We of the witness here is not admissible be process are not concerned here with due cause the did not state on the with the of denial of funda- standard accusatory witness stand his statements. rights, rather mental with a subject fact that he was not to straightforward application of the con- cross-examination is an additional rea in trial in the federal frontation clause son to analy exclude the evidence. This engraft given No reason courts. opinion sis consistent with the hearsay exceptions onto the confronta- part opinion court in that in Dut the de- and thus confuse tion clause ton, 82, 216, 400 U.S. at 91 S.Ct. veloping of evidence what started law quoted say where it Green to “. many years a rule for indeed, and remained out we more than once found procedure. violation of confrontation values even Wigmore, to mean face” witness face to “to meet Ch. XLV. substantially confrontation the same 719, Page, Snyder, 43, supra: “Thus, privilege In v. 390 U.S. Barber n. clause. 1318, 1322, 255 20 L.Ed.2d 88 S.Ct. confront one’s accusers cross-examine (1968), of con- the court said of them is assured to a defendant face face ” opportuni- by both the “It includes . frontation: . 291 Sixth Amendment. . ty for the and the occasion to cross-examine In v. Dowdell United jury weigh States, of the witness.” the demeanor 55 221 U.S. L.Ed. S.Ct. phrase [Italics added]. the court construed summary, the de- I believe partial In on evi- convicted here were

fendants oath, taken under not which was dence witness, signed, not written witness, not sub- remembered given cross-examination, ject and not presence of the courtroom court, jury This since the accused. might dispose entirely case

reversing the non-constitutional basis on Krulewitch, Tong’s Case, Lutwak,

Bridges, reach the constitu- should never problem of

tional confrontation Company Alma v. See Motor

clause. 129, 136, Company, Timken 329 U.S. L.Ed. events,

In all whether the constitu- although ground, I consider

tional reached,

question prematurely or on grounds, evidentiary

non-constitutional follows would reverse and re-

mand for a new trial the United

States be so advised. Olson, Atty., John O. U. S. James M. America, UNITED STATES Atty., Bablitch, Madison, Asst. U. S. Plaintiff-Appellant, Wis., plaintiff-appellant. v. Percy Julian, Madison, Wis., Jr., L. NEVE, Defendant-Appellee.

Ronald A. defendants-appellees. America, UNITED STATES KILEY, Sen Before HASTINGS and Plaintiff-Appellant, Judges, CAMPBELL, ior Circuit Judge.* Senior District JOHNSON, Elizabeth D. Defendant- Appellee. 73-1532, PER CURIAM. Nos. 73-1533. Appeals,

United States Court 73-1532, appeal In it was shown No. Seventh Circuit. A. Neve was defendant Ronald charged September 29, by in- Argued Dec. formation district court filed Decided Feb. possessing marijuana, of Ti- in violation 844(a).

tle U.S.C. § appeal 73-1533, In No. it was shown defendant Elizabeth Johnson D. charged by information filed same court identical terms. * Judge Campbell Senior District J of the Northern District of Illinois United States William sitting by designation.

Case Details

Case Name: United States v. Clifford E. Payne, United States of America v. Roland Payne, United States of America v. Hubert Payne

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 8, 1974

Citation: 492 F.2d 449

Docket Number: 73-1199, 73-1200 and 73-1201

Court Abbreviation: 4th Cir.