492 F.2d 449 | 4th Cir. | 1974
Lead Opinion
Clifford Payne, Roland Payne and Hubert Payne were found guilty of conspiracy to violate 18 U.S.C.A. § 472 by obtaining, possessing and passing counterfeit $10 Federal Reserve Notes. Each was sentenced to imprisonment. Three other co-defendants, including their brother Burrell, pleaded guilty to the same indictment. Clifford, Roland and Hubert attack the validity of their con
We see no merit in either contention, and we affirm.
I.
At the trial of Clifford, Roland and Hubert Payne, Burrell Payne, who had previously pleaded guilty, was called as a witness for the government. When interrogated, he remembered and recognized his brothers. He claimed no recollection of having pleaded guilty, but he did not dispute that fact. He claimed no recollection of having talked to any “federal men” at his home in Wytheville, Virginia, on July 11, 1972, and he denied any recollection of having passed any counterfeit money. Again, however, he did not dispute either fact, but said simply that he had no recollection. A writing, later identified as an unsigned partial statement taken by a member of the Secret Service, was exhibited to him, but it failed to refresh his recollection either of the events set forth in the statement, or of the fact that the interview had taken place. Burrell made reference to the fact that he had been a patient at a state mental hospital and was still an out-patient and on medication. He also mentioned an accident when he fell down some steps while he was holding an eighty pound power tool and suffered some temporary paralysis and loss of memory thereafter.
Special Agent, Peter M. Donald, Jr., of the Secret Service, was then called as a witness. Agent Donald said that he and two other Secret Service agents talked to Burrell at Burrell’s home in Wytheville, Virginia, on January 11, 1972. The interview began in an automobile in front of the residence and then adjourned inside to the kitchen for the purpose of taking a written statement from Burrell. There, Agent Donald interrogated Burrell and wrote his answers. In the words of Agent Donald “[h]e [Burrell] was providing the facts and I was writing them down on a piece of paper.” Agent Donald testified that as the interview in the kitchen progressed, Burrell complained of dizziness, headache and loss of memory, and by mutual agreement the taking of the statement was terminated. Agent Donald was of the view that, until Burrell terminated the interview, his memory then was far better than it appeared in court; Burrell appeared “perfectly normal” and related instances which he said had occurred two or three months earlier. Burrell did not sign the statement; but Agent Donald testified that his transcription of Burrell’s statement was accurate to the point that Burrell terminated the interview, and Agent Donald’s verification is not challenged on appeal.
Over defendant’s objection, the district court admitted the statement, and it was exhibited to the jury. It recorded that Burrell had been advised of his constitutional right not to make a statement, that anything he said could be used against him, and that he concluded to make a statement of his own free will and accord without promise of immunity. It set forth that sometime in November, 1971, he obtained from his brother Hubert thirty-five counterfeit $10 bills, apparently as a gift, and he passed them, with the help of Richard Stanley, a co-defendant, at various places in western Virginia and southern West Virginia. Nine of the notes were
The evidence concerning the money order, which is the subject of Hubert’s second ground of appeal, was that it was in the amount of $84.63 and was sold at a Piggly-Wiggly store in Grundy, Virginia, to Burrell and an unidentified man for nine counterfeit $10 bills, and that in the printed block for the name of the sender, the name of “Hubert Payne” had been inserted in handwriting. There was no evidence who wrote in the name, but there was evidence that the money order had been cashed in Columbus, Ohio, where Hubert Payne was shown to have lived.
II.
As we see the issue of the admissibility of the statement, it involves the consideration of two aspects of the law — the general law of evidence and the effect of the Confrontation Clause guarantee. We proceed to these considerations seriatim:
A. As a rule of evidence, there are opposing views as to whether recorded past recollection may be admitted into evidence as a permissible exception to the ‘ rule excluding hearsay evidence. The authorities are collected in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), where it is said that a majority of the courts hold that such recorded past recollection may not be offered “to show the truth of the matters asserted therein, but can be introduced under appropriate limiting instructions to impeach the credibility of the witness who has changed his story at trial,” 399 U.S. at 154, 90 S.Ct. at 1933. The survey and analysis of the authorities contained in Green also discloses that “the minority view adopted in some jurisdictions and supported by most legal commentators and by recent proposals to codify the law of evidence would permit the substantive use of prior inconsistent statements on the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial.” 399 U.S. at 155, 90 S.Ct. at 1933.
Some of the members of the panel, if faced with the necessity of choosing between majority and minority views in the instant case, would prefer to cast their lot with the minority view and hold that Burrell’s statement was admissible, as recorded past recollection, to prove the truth of its contents. They would be strongly influenced by the potential fostering of perjury, in a case like the instant one where the accuracy of the prior recorded recollection was impressively demonstrated by the testimony of the agent, by the adoption of a rule which would encourage Burrell to feign a failure of recollection, on his own or at the instance of his brothers. But it is unnecessary to make the choice between majority and minority rules in this case. This is so because, even in those jurisdictions following the majority view (See e. g., United States v. Cunningham, 446 F.2d 194 (2 Cir. 1971); United States v. Pacelli, 470 F.2d 67 (2 Cir. 1972), cert. den. 93 U.S. 1501, 93 S.Ct. 1501, 36 L.Ed.2d 178 (March 19, 1973)), prior inconsistent statements of a witness available for cross-examination may be received as affirmative proof when they were made at a former trial, or before a grand jury. United States v. Mingoia, 424 F.2d 710, 713 (2 Cir. 1970); United States v. Insana, 423 F.2d 1165, 1170 (2 Cir.), cert. den. 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970). The rationale of these exceptions to the majority rule is that the fact of an oath or possible cross-exami
Following submission of the instant appeals, we required Burrell’s arraignment to be transcribed and submitted to us. Our study of it persuades us that his statement was sufficiently tested as to reliability that it, too, ought to be held admissible to prove the truth of its contents, even though technically it had not been sworn to, or he cross-examined.
On June 12, 1972, about six months prior to the retrial of Clifford, Roland and Hubert at which Burrell testified,
Peter M. Donald, Jr., who had taken Burrell’s statement was then sworn and testified. After describing how he learned of the crime and a statement given by Chester, he testified how he and other agents interviewed Burrell and essentially what Burrell had told him. The substance of his testimony was in accord with the statement’s contents. Although Burrell was not specifically asked if he controverted the agent’s testimony in whole or in part, he was asked if he had been advised of his constitutional rights and if he had signed a waiver before he was questioned and he replied affirmatively.
Of course, Burrell’s statement was not admitted at his arraignment, nor the aspect implicating Roland, Clifford and Chester described. The agent did testify however that Burrell had implicated Hubert and Richard Stanley. Admittedly also, Burrell was not specifically asked if he controverted the results of his interview, but there can be no question in our minds that Burrell’s attention was directed to his statement, that he had ample opportunity to disavow the fact of the interview and what was discussed, or to assert his lack of recollection of all or any part of it, and that his silence, in the presence of the court, amounted to tacit admissions that the interview took place, that he remembered it and that he acknowledged the correctness of Mr. Donald’s testimony of his answers. Our conclusion is fortified by his affirmative response when questioned about his being advised of his constitutional rights, a fact recorded in the statement.
In short, we think that, under the special facts of this case, the reliability of the record of Burrell’s past recollection was sufficiently established that admission of the record into evidence was not barred by mechanical application of the rule against hearsay testimony.
B. We see no constitutional impediment in the sixth amendment right of confrontation to the admission of the statement. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Court upheld the validity of a California statute which provided‘that the hearsay rule would not render inadmissible a statement made by a witness if the statement was inconsistent with the testimony of the witness at the trial and the witness was given the opportunity to explain or deny his prior state
Admittedly, California v. Green does not decide the precise issue before us; here, we are concerned with an unsworn statement to a police officer and a claimed total failure of recollection at trial. It did comment that
[v] iewed historically . . . there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.
399 U.S. at 158, 90 S.Ct. at 1935. And, after stating that the Confrontation Clause insures that the witness will testify under oath, that the witness will be subjected to cross-examination and that the jury will have the opportunity to assess credibility, the Court added:
[i]t is, of course, true that the out-of-court statement may have been made under circumstances subject to none of these protections. But if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections .... the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial.”
399 U.S. at 158-159,
Notwithstanding the apparent breadth of some of the statements quoted, the Court reserved the question of the admissibility of the unsworn statement to the police officer, saying, “we find little reason to distinguish among prior inconsistent statements on the basis of the circumstances under which the prior statements were given,” but “Porter [the witness] claimed at trial that he could not remember the events that occurred,” and “[w]hether Porter’s apparent lapse of memory so affected Green’s right to cross-examine as to make a critical difference in the application of the Confrontation Clause . . . is an issue which is not ripe for decision at this juncture.” 339 U.S. at 168-169, 90 S.Ct. at 1940-1941. Mr. Justice Harlan, concurring, would have supplied the answer, because he stated his firm conclusion that “the Confrontation Clause of the Sixth Amendment reaches no farther than to require the prosecution to produce any available witness whose declarations it seeks to use in a criminal trial.” 399 U.S. at 174, 90 S.Ct. at 1943. In the course of his opinion, Mr. Justice Harlan added:
The fact that the witness, though physically available, cannot recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not*454 have Sixth Amendment consequence. The prosecution has no less fulfilled its obligation simply because a witness has a lapse of memory. The witness is, in my view, available. To the extent that the witness is, in a practical sense, unavailable for cross-examination on the relevant facts . I think confrontation is nonetheless satisfied.
399 U.S. at 188-189, 90 S.Ct. at 1951. See also Mr. Justice Harlan’s separate opinion in Dutton v. Evans, 400 U.S. 74, 93, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).
While the majority of the Supreme Court has not yet committed itself to the thesis of Mr. Justice Harlan, we think, nevertheless, that under the principles of California v. Green, there was no denial of the right of confrontation in the instant case. Burrell was produced as a witness and he was available for cross-examination. It is true that by reason of Burrell’s claim of complete failure of recollection, the scope of effective cross-examination excluded inquiry with regard to the substantive evidence of guilt on the part of Burrell’s brothers. But this was no different, except in degree, from a case in which a declarant has made a detailed earlier statement and at the trial, despite efforts to refresh his recollection, remembers only some, but not all, of the details. In such a case, we do not understand that any court, before or after the decision in California v. Green, has held that the Confrontation Clause has been violated by admission of the statement in its entirety, and yet, if defendant’s contention is to be accepted, logic would require the exclusion, on constitutional grounds, of any earlier statement where there was only a claim of partial failure of recollection to the extent of the claimed failure of recollection.
Burrell was available for cross-examination about other events contemporaneous with the period of the alleged conspiracy ; he could have been cross-examined about possible bias or prejudice toward his brothers; and he could have been interrogated by the government about why he failed to recollect what he had previously said and what pressures, if any, had been exerted upon him by his brothers to encourage his failure of recollection of events incriminating them. The jury would thus have had a substantial basis on which to determine the truthfulness of Burrell’s previous statement and full opportunity to observe Burrell’s demeanor and manner of testifying so that it could make a determination of whether there was a genuine failure of recollection and its significance on the persuasiveness of his earlier statement. It is true that where complete failure of recollection is claimed, the truth of the earlier statement is not verified by an oath, but as Judge Learned Hand stated in DiCarlo v. United States, 6 F.2d 364, 368 (2 Cir. 1925):
The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.
It is also true that where complete failure of recollection is claimed the truth of the earlier statement is not tested by cross-examination with regard to its substantive content, but California v. Green, 399 U.S. at 168, 90 S.Ct. at 1940, indicates that we should reverse only if we conclude that “apparent lapse of memory so affected . . . [the] right to cross-examine as to make a critical difference in the application of the Confrontation Clause . . . ” For the reasons stated, we cannot reach that conclusion here.
III.
The money order bearing Hubert Payne’s name was admitted in connee
„ We agree that the name Hubert Payne on the money order, standing alone, had little evidentiary weight to implicate Hubert, but we think that a proper foundation for admission of the money order had been laid and its admission into evidence was not error, even with- ■ out direct proof of who supplied the writing.
Affirmed.
. His brother Chester, a defendant who appealed, testified that Burrell has not had memory problems since the accident.
. Their original trial on September 7 resulted in a mistrial because of the inability of the jury to agree.
. It should be noted, however, that this statement was made on the implied factual basis that the declarant made an inconsistent statement at the trial rather than, as here, claimed, a complete absence of recollection.
Concurrence in Part
(concurring and dissenting):
I concur with the majority as to the admissibility of the money order against Hubert Payne, but as to the admissibility of the out of court statement of Bur-rell Payne, I respectfully dissent.
We are faced here with a hearsay question and also with the reserved question in Green: is the confrontation clause satisfied when the witness, being present, claims he cannot remember the events in question, and the court then admits a prior out of court statement as substantive evidence?
The witness here testified that not only was he unable to remember the events he allegedly discussed in his prior conversation with the Secret Service Agent, but he also could not remember talking with the agent at all. Under such circumstances, the physical presence of the witness was a nullity so far as it touched direct or cross-examination concerning his extrajudicial statement. The defendants were no better off than had the witness been physically unavailable for trial. The admission of the hearsay statement as substantive evidence under the facts of this case is not only a violation of the hearsay rule, it also deprives the defendants of their Sixth Amendment right to be confronted with the witnesses against them.
The Hearsay Problem
While the majority, by way of dicta, takes the position that Burrell’s statement should be admissible under the recorded past recollection exception to the hearsay rule, it does not hold the statement so admissible, and bases its conclusion as to admissibility on the supposed inherent reliability of the statement. I am not in agreement with either proposition. I do not think the statement is within the recorded past recollection exception and further believe that it has few, if any, attributes of reliability.
As I understand it, recorded past recollection, in those jurisdictions which follow this exception, is supposed to have earmarks of reliability since it is a writing or recording made when the facts recorded were fresh in the witness’ memory and which the witness can testify were accurately recorded. Because of such reliability, recorded past recollection has often been admitted as substantive evidence when the witness cannot remember the facts at the trial, although cross-examination of the witness at the time the statement was made was not had. Under this exception, even though the statement may be read to the jury, it should not be admitted as an exhibit as happened here.
The exception that the majority relies upon is outside the existing law of evidence.
The Confrontation Problem.
Of more significance here, especially philosophical, is the Sixth Amendment problem of whether or not the defendants were deprived of their right to be confronted with the witnesses against them, which is, as before noted, set in the factual situation reserved by Green and there described as a narrow question lurking in the case.
Were the opinion of the court in Green a majority opinion, or were the subsequent opinion in Dutton, perhaps I would undertake with less alacrity speculation upon the ultimate answer to the reserved question in Green and comment upon the historical background of the confrontation clause, and this especially in view of the penetrating and exhaustive concurring opinions in those cases. The concurring opinion of the Chief Justice, however, in Green, 399 U.S. p. 171-172, 90 S.Ct. 1930, may seem sub silentio to infer that the rule of West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904), that the States are not necessarily bound by the Sixth Amendment, subject to the limit that “such procedure must-not work a denial of fundamental rights,” 194 U.S. 258, 263, 24 S.Ct. at 652, is apparently not as dead as might be supposed by the language in Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), where the Sixth Amendment was declared to be “enforced against the States . . . according to the same standard . . . [as] against federal encroachment.” Indeed, the Chief Justice, with reason, construes Green as not imposing “rigid limits” on the States. And the later holding in Dutton
A majority of the Supreme Court has been of opinion that the confrontation right and the hearsay rule are not coextensive, Green, 399 U.S. 155, 174, 90 S.Ct. 1930. And Mr. Justice Harlan has correctly noted in Green, at 172, 90 S.Ct. 1930, the tendency to indiscriminately equate cross-examination with confrontation. Although he may have modified, this reasoning in Dutton, where he equates the cross-examination right to a mode of procedure, in my opinion he there states, 400 U.S. at p. 94, 91 S.Ct. 210 the correct conclusion that the confrontation clause was “intended to regulate trial procedure.” This construction of the confrontation clause is consistent both with the historical background and most American court decisions until recent years, when the courts commenced chipping away at the rule, even as they did to the statutes of 5 Edw. VI, c. 12, § 22, and 1 & 2 P & M, c. 10 & 11, in the time of Sir Walter Raleigh. These statutes just referred to required in literal and plain English that the witness not only be brought into court in person, if alive in the one case, and if alive and within the realm in the other, but also there “in person before the party accused (arraigned,)” “avow and maintain that which they have to say” (5 Edw. VI), or “say openly in his hearing what they . . . can against him” (1 & 2 P & M).
Development of the hearsay rule began in the middle 1500’s when the English court system was evolving to the point where juries for the first time were forced to depend on testimonies offered to them in court, and did not become a settled part of the law until the late 1600’s.
While many of the rights later included in the federal Bill of Rights had been granted to the colonies by charter or enactment prior to the end of the colonial period, the trial rights embodied in the Sixth Amendment had not.
It remained for the revolutionary conventions to articulate the trial rights of the people expressed in constitutions, spurred on by, of all people, Lord Coke by his decision in Bonham’s Case: “[F]or when an Act of Parliament is against common right and reason or repugnant or impossible to be performed, the common law will eontroul it and adjudge such act to be void.”
Of the revolutionary conventions, by far the most important and the one with more influence on our history was the Virginia convention of 1776 held in Williamsburg, which was the fifth and last of the Virginia colonial conventions originally convened to fill the governmental gap caused by Lord Dunmore’s dissolution of the House of Burgesses.
Although Schwartz notes the omission of references to English law and colonial charters in the Virginia Declaration, taking at face value its assertion of the law of nature as the source of the enumerated rights, I think it is far more likely that Mason’s articulation of trial rights, which is really the basic guarantee of the Sixth Amendment, has its roots in the abuses by the Crown and is an attempt to determine that the abuses might never take place under the new government which was being established. As Mason said in a letter to Richard Henry Lee: “We are now going upon most important of all subjects— ‘government!’.”
It is noteworthy that research on the subject of confrontation clause inevitably leads to Raleigh’s trial.
With Raleigh’s accomplishments
It should be kept in mind that there had been many other state trials in which similar abuses had been committed by the Crown,
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
Such purposes as are expressed in Mat-tox are bound to have been in the minds of Mason and Madison as they drafted the Virginia Declaration and the Bill of Rights.
What were Raleigh’s complaints? What were the abuses of the time ? What demanded correction ?
First, there were not two witnesses to prove the charge, and, second, the witness did not maintain the accusation to his face.
He argued: “I may be told that the statutes I before named be repealed, for I know the diversity of religion in the Princes of those days caused many changes, yet the equity and reason of those laws remains. They are kept to illustrate how the common law was then taken and ought to be expounded.”
How were the abuses corrected? The two witness rule was corrected in the Constitution itself, and in the debates on treason it is particularly noted that both Madison and Mason took part. The definition of treason, including the necessity of an overt act, based on an old statute of 25 Edw. Ill, was frozen into the Constitution,
Is it too farfetched to say that the remaining abuse was corrected in the Bill of Rights ? Again, I think not.
The shifting sands of English politics of the time and the vagaries of the religion of the Princes, as Protestants and Roman Catholics struggled through the years for ascendency in England, had too often made prosecutions matters of state policy rather than punishment for acts of disloyalty to the Crown.
The federal Constitution had corrected a few of the abuses, and others remained, thus the Bill of Rights. And how should it be construed? Should
the trial right guarantees receive any less protection because in a Bill of Rights rather than in the body of the Constitution? John Dickenson, of Delaware, demanded exactly what was meant in the old statute by requiring the testimony of two witnesses, and this was achieved.
With these principles in mind, I turn to the conclusions in the two latest cases on the subject and to Wigmore.
In none of the Supreme Court eases do I find that the right of the accused to have his accuser testify on the witness stand in the courtroom is a secondary or subsidiary right. Rather, the rights of confrontation and cross-examination are spoken of in all the eases in the conjunctive, or as the right of cross-examination being included in the right of confrontation,
The exceptions in the old English statutes, of course, made for a witness who was dead at the time of the trial or one who was beyond the realm, might consistently be read into the clause. Mattox gave effect to the exception for 'the witness who was dead and who had testified at a previous trial. In United States v. Angell, 11 F. 34 (CC, DNH 1881), it was held that although the wit
To me, a reading of Wigmore’s extensive, thorough and painstaking history of the hearsay rule and the cases
In all events, whether on the constitutional ground, although I consider the question prematurely reached, or on non-constitutional evidentiary grounds, it follows that I would reverse and remand for a new trial if the United States be so advised.
. See Proposed Federal Rules of Evidence, 801(d)(1), Prior Statement of Witness, and 803(5), Recorded Recollection. The Advisory Committee’s Notes to each rule are a good discussion of the cases supporting both admissibility and non-admissibility and the rationale supporting each rule as proposed. I take cognizance particularly of the note to
. III Wigmore on Evidence (3d Ed. 1940) (hereinafter, Wigmore) § 746-748 § 751. See also 125 A.L.R. 140, 165 and 82 A.L.R.2d §§ 29-46 for notes and a collection of cases. See Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) where the witness denied making the statement.
. Of course, the proponent of the evidence is the one who nearly always stands to profit from the statement being admitted whether the forgetfulness is feigned or in good faith, for in either event the statement gets to the jury without the possibility of cross-examination.
. A.L.I., Model Code of Evidence (1942), p. 234.
. I submit Mingoia did not admit the previous testimony as affirmative evidence as cited by the majority, rather it held the prior grand jury testimony admissible as a previous inconsistent statement, 424 F.2d at 713. Insana did the same. It recited that although such might be admissible under the proposed rules, under “present rules” it “can be considered inconsistent,” and had “no occasion to pass upon the broader suggestion,” 423 F.2d at 1169. United States v. DeSisto, 329 F.2d 929 (2nd Cir. 1964) did so hold, but there the witness admitted he made the prior statements.
. I also note that it may be doubtful if the statement would have been admissible as substantive evidence in a trial of Burrell, for the statement on its face does not comply either with Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The testimony concerning its taking may be less than conclusive.
. The Supreme Court apparently has not considered in the context of admissibility of evidence in a federal court whether or not the statement of a co-conspirator, uttered pursuant to and in furtherance of the conspiracy, is in conflict with the confrontation clause. Cf. Dutton, infra. So, to some extent, we write with a clean slate. Quere: have the courts and attorneys taken the view, without expressing it, that such statements are not hearsay, but are admissions, as in the federal Proposed Rules of Evidence, Rule 801(d)(2)(E)? Cf. Lutwak, 344 U.S. p. 617, 73 S.Ct. 481, “the agent of the other.” For philosophical objections to conspiracy indictments, as well as practical evidence problems, see the concurrence of Mr. Justice Jackson in Krulewitch, and Davenport, The Confrontation Clause and Co-conspirator Exception in Criminal Prosecutions, 85 Harv.L.Rev. 1378 (1972).
. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), held valid a Georgia statute which allowed a statement by a co-conspirator to be admitted in evidence against another conspirator although the statement was made during the concealment phase of the conspiracy rather than during its pendency to further its purpose. In the case before us, the statement was made well after the conspiracy.
. Wigmore, § 1364.
. Wigmore, §§ 1362, 1365. Also see discussion on page 7 that an oath was not required at common law but was merely an incidental feature to cross-examination.
. Wigmore, § 1364, note 47.
. Facts taken from Jardine, Criminal Trials I, as reported in Wigmore, § 1364 and Bowen, The Lion and the Throne (1956), Ch. 15-36.
. Wigmore, § 1364, note 45.
. Wigmore, § 1364, at 21, note 47. Also see Green, supra, at 157, note 10, where the court points out that at least one author (F.
. Schwartz, The Bill of Rights, A Documentary History, 1971, pp. 170, 179, 180, 231-234. Hereinafter cited as Schwartz.
. Schwartz, pp. 40-44, 52. Goebel, History of the Supreme Court, 1971, Vol. 1, Ch. I, esp. pp. 66, 84. Hereinafter Goebel.
. Schwartz, pp. 232-234.
. Schwartz, at 182; Goebel, Ch. I, esp. at 92, et seq.
. Schwartz, pp. 231-234.
. Schwartz, at 231.
. Schwartz, at 231; E. Randolph, Essay on the Revolutionary History of Virginia, Ibid., at 246, et seq.; Dabney, Virginia: The New Dominion (1971), at 136. An interesting footnote to history is that Mason wrote the Virginia Declaration in his room at the Raleigh Tavern. Schwartz, at 232.
. Elliot’s Debates, Chronicle of the Virginia Convention; Schwartz, at 762, et seq., contains abstracts from many of the speeches.
. See abstracts from minutes of the Virginia Convention reported in Schwartz, esp. at 828-846.
. Schwartz, at 765.
. Schwartz, at 765; the Virginia proposed federal Bill of Rights is found at Schwartz, at 840, et seq.
. Quoted in Schwartz, p. 232.
. Schwartz, at 233.
. Bowen, The Lion and the Throne, at 202.
. Also noteworthy here is the fact that Raleigh was tried for conspiracy. 2 How. St. Tr. 16, 18; Jardine’s Or. Tr. I, 418-20; Churchill, The New World (1956), at 160.
. E. g. Green, supra; Wigmore; Campbell, Life of Lord Chief Justice Popham, Life of Sir Edward Coke.
. Green, 399 U.S. pp. 177-178, 90 S.Ct. 1930.
. Raleigh, the youngest son of a Devonshire squire, in an age not noted for equal opportunity of employment, had risen to the highest positions of responsibility in England. He had been a member of Parliament; fought the Spanish wherever he found them and had an important part in the defeat of the Armada; sailed with Howard, Hawkins,
. Some mentioned in Wigmore are: The Duke of Norfolk’s Trial (1571) ; The Earl of Stafford’s Trial (1640) ; Archbishop Laud’s Trial (1644).
. “If then, by the statute law, by the civil law and by God’s word it be required that there be two witnesses at the least, bear with me if I desire one. Prove me guilty of these things by one witness only, and I will confess the indictment. If I have done these things I deserve not to live, whether they be treasons by the law or no. Why then, I beseech you, my Lords, let Cobham be sent for. Let him be charged upon his soul, upon his allegiance to the King. And if he then maintain his accusation to my face, I will confess myself guilty.” Quoted in Bowen, The Lion and the Throne, at 202-203.
. Quoted in Bowen, The Lion and the Throne, p. 202.
. Wigmore, Vol. 5, at 19.
. Wigmore, Vol. 5, at 19; § 1364 n. 42. See also from n. 42 the quotation from the prosecuting Serjeant in the Duke of Norfolk’s Trial: “. . . the law was so for a time, in some cases of treason, but since the law hath been found too hard and dangerous for the Princes, and it hath since been repealed.”
. U.S. Const., Art. III, § 3; Madison’s Notes of Debates in the Federal Convention of 1787 (Ohio Univ. Press 1966), at 489, et seq.; Charge to Grand Jury (C.C.S.D. N.Y. 1861) 30 Fed.Cas. 1034.
. Wigmore, Required Number of Witnesses, 15 Harv.L.Rev. 12 (1901).
. Bowen, Miracle at Philadelphia (1966), at 221.
. Essay reprinted in part, Schwartz, p. 249.
. Coke later, in his Third Institute, revised his opinion that the statute of 5 Edw. VI had been repealed by the statutes of Philip and Mary. 15 Harv.L.Rev. 12, 103 (1901).
. Randolph’s Essay, Schwartz, at 248.
. Randolph’s Essay, Schwartz, at 248.
. Wigmore’s depth of case and statutory research dwarfs all other writing I have found on the subject.
. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), held inadmissible testimony at a preliminary hearing at which accused was present but had no attorney and did not cross-examine. Witness was in a federal prison in another state at time of trial. But the court added, p. 725, 88 S.Ct. 1318, it would reach the same result if defendant had had an attorney and cross-examined the witness at the preliminary hearing. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed .2d 923 (1965), reached the same result on slightly different facts on the ground that the confrontation clause “has [to be] held to include the right to cross-examine.” [Italics added]. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 3 L.Ed.2d 934 (1965), the court held inadmissible the statement of a co-defendant who refused to testify on the ground it might incriminate him. The court said the right of cross-examination is “a primary interest” but did not equate it to confrontation. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), traced a confrontation right to Acts 25 :16, long before common law hearsay was dreamed of, and reversed a denial of extension of a security clearance because of lack of “confrontation and cross-examination. They have ancient roots.” [Italics added].
. See cases n. 42. Also see Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
. Wigmore, Ch. XLV.
. Snyder, n. 43, supra: “Thus, the privilege to confront one’s accusers and cross-examine them face to face is assured to a defendant by the Sixth Amendment. . . . ” 291 U.S. at 106, 54 S.Ct. 332. In Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911), the court construed the phrase “to meet the witness face to face” to mean substantially the same as the confrontation clause. In Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968), the court said of the right of confrontation: “It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” [Italics added].