*1 DUTTON, WARDEN EVANS 15, 15, Reargued 1970— Argued 10. October October No. 1969— December Decided *2 an delivered and judgment the Court’s J., announced Stewart, JJ., BlackmuN, and J., and Burger, C. White which in opinion, Burger, which in opinion, concurring J., filed a Blackmun, joined. in concurring opinion an J., filed Harlan, p. 90. post, J., joined, C. in dissenting.opinon, J., a filed Marshall, p. 93. post, result, the 100. p. post, JJ., joined, Brennan, and Douglas, Black, which Attorney General Jr., Assistant Evans, L. Alfred on him With appellant. for cause the reargued Georgia, and General, Attorney Bolton, K. Arthur were brief the Attor- Robins, Assistant Mathew and Gordon O. Marion neys General. filed cause reargued Thompson B.

Robert appellee. for brief Court, invitation Griswold, by General Solicitor curiae amicus States United cause

argued Assist- were brief him on With reargument. Beatrice Feit, M. Wilson, Jerome General Attorney ant Pauley. A. Roger Rosenberg, announced the judgment .of Mr. Justice Stewabt opinion Court and an which Chief Me. Justice, join. Justice Mr. White, Justice Blackmun Early April on an morning police three officers brutally were murdered in County, Georgia. Gwinnett Their bodies were a few later, found hours handcuffed together pine in a thicket, multiple each with gunshot wounds back head. After months many of investigation, Georgia authorities charged appel- lee, Evans, and two other men, Wade Truett and Yenson Williams, with the officers’murders. Evans and Williams were indicted grand im- jury; granted Truett was munity prosecution from in return for his testimony. pleaded

Evans not guilty and exercised his under Georgia to be law: tried separately. trial, After a jury *3 he was convicted murder and sentenced to death.1 The judgment of by conviction Supreme was affirmed Court of Georgia,2 and this Court denied certiorari.3 Evans then brought present corpus proceed- habeas ing in a federal district court, alleging, among other things, that he had been denied the right of confrontation at his trial. The District Court denied the writ,4 but the Court of Appeals for the Fifth Circuit reversed, holding that Georgia had, indeed, denied Evans the right, guaranteed' by the Sixth and Fourteenth Amendments, “to be confronted by the witnesses 5 him.” From judgment appeal an was brought to this Court, and we noted probable jurisdiction.6 The parties agree

1The this death sentence cannot be carried 20, .out. n. See infra. 2 State, 392, Evans v. 222 150 Ga. S. E. 2d 240. 3 385 U. S. 953. 4 opinion The of the unreported. District Court

5 Dutton, Evans v. 400 F. 2d 827. 6 Since, 393 appear,- U. S. 1076. as will Appeals the Court of held Georgia that a upon statute relied the State at the trial was unconstitutional applied, there can be no doubt appeal (2). to this Court. U. S. C. § fór but was set Term, last argued originally 397 U. S. reargument. 1000. of the constitu- the context

In order. to understand pro- review a brief us, tional before question pros- necessary. principal ceedings at Evans’ trial is accom- alleged Truett, ecution the trial was witness at Truett plice immunity. who had been described granted surrounding length At the circumstances detail he, He testified that police the murder of the officers. Williams, engaged with had been along Evans and parked stolen car on switching plates the license County they were accosted back road in Gwinnett when As police youngest the three officers. inspect ignition leaned in front of Evans to officers from gun officer’s switch on the car, grabbed Evans then disarmed the its Evans and Williams holster. three of other gunpoint, officers at and handcuffed officers into the them took the together. They then several bullets into by firing woods and killed them addition range. In extremely, their bodies at close prosecution.7 for the Truett, 19 other witnesses testified opportunity full cross- given Defense counsel was opportunity examine he exercised that witness, each respect with to most them. prosecution

One of the witnesses was a man named had been He that he. Williams Shaw. testified penitentiary Atlanta, in the federal prisoners fellow brought Williams was to Gwinnett Georgia, at the time *4 charges murdering on the County to be arraigned when police officers. Shaw said that Williams was penitentiary returned to the from the he arraignment, you “How did had asked Williams: make out in court?” “If responded, and that Williams had hadn’t been dirty son-of-a-bitch Alex Evans, that we wouldn’t be objected this now.” Defense counsel to the introduction 7 Three of these were rebuttal witnesses. defense There were four witnesses, lengthy Evans made himself statement. unsworn

of this testimony upon the ground it was and thus violative of Evans’ of confrontation. After the objection overruled, counsel cross-exam- ined Shaw length.

The testimony of Shaw relating what he said Williams had him told was admitted by the Georgia court, and its upheld admission by the Georgia Court, Supreme upon the basis of a Georgia statute provides: “After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of project criminal shall be- admissible against all.” As the appellate put court it:

“ ‘The rule is that so long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues, parties to such conspiracy are to be considered so much a unit the declarations of either are admissible against the other.’ The de- fendant, and his co-conspirator, Williams, at n timethis statement was made, were still concealing their identity, keeping secret the fact they had killed the deceased, if they -had, and denying their guilt. There was evidence sufficient to establish a prima facie of conspiracy to steal the automo- deceased, bile and the killing conspira- tors while carrying out the conspiracy, and the statement Williams made after the actual com- mission of the crime, but while the conspiracy con- tinued was admissible.” (Citations omitted.) This' holding in accord with a consistent line of Georgia decisions construing the state statute. See, g., e. Chatterton v. State, 221 Ga. 424, 144 S. E. 2d 726,

8 Ga. Code Ann. (1954). §38-306 9 Evans State, 392, Ga. 402, 150 S. 2d E. 248.

79 60, State, 191 Ga. Burns v. 1015; U. S. denied, 384 cert. 350, 358. 2dE. 11 S. 73, the- witness of of this the admission

It in claim appellee’s for basis the the formed that Shaw had he been that proceeding corpus habeas present the in the of confrontation right constitutional the denied Court claim, the that upholding In court. Georgia to duty its regarded Circuit Fifth the for Appeals concept original framers’ the interpret only to “not be to translate also but developments, of historical light boundaries constitutional the terms due-process into 10 court The omitted.) (Footnotes hearsay rule.” the because claim appellee’s the upheld excep- reasons” cogent no “salient .find could present in the applied Georgia hearsay rule to tion broader out was pointed court that exception case, an federal trials conspiracy applicable than that courts.11 cir whether is then, us, before question correct Appeals Court of this

cumstances set be had conviction murder Evans’ holding n In testimony. of Shaw’s admission because aside recognizing we start question, this considering Amend “the Sixth held squarely has Court witnesses confront accused an right ment’s oblig . made . . fundamental is . . him . Amendment.” Fourteenth the States atory Douglas also See 403. Texas, S. 380 U. v. Pointer Janis, U. S. 384 Brookhart 415; U. Alabama, 380 S. v. v. Russell, 392 v. Roberts 719; U. S. Page, 390 v. Barber 1; 337; Allen, U. 397 S. California Illinois 293; U. S. than more no But 149. Green, U. S. inquiry. our beginning 2d, at F. 829. 830, 831. 2d, F.

11 400

I *6 It is nor argued, be, not could it that constitutional requires hearsay to confrontation that no evidence the Pointer In itself, can introduced. we ever.be ap- referred to the decisions of this Court that have proved of hearsay: the admission recognized admissibility

“This Court against has Mattox United an accused of dying declarations, v. States, 146 and of a 140, 151, U. S. a trial, deceased witness who has testified at former States, v. United Mattox 237, 156 U. 240-244. S. States, supra, Dowdell United S., See also U. States, 330; Kirby supra, v. United S., at U. . . . There other analogous 61. are situations which might scope not fall within the of the constitutional rule requiring confrontation of witnesses.”12 The argument be, any seems to in rather, given case the Constitution a requires reappraisal every exception hearsay to the no rule, long matter how estab- in lished, order to determine in whether, the words of Appeals, Court it is supported by “salient and cogent reasons.” The logic position would seem require estab- every reassessment hearsay lished exception, state, federal or in the but present only case it is argued hearsay that the exception applied by Georgia constitutionally invalid because identically does not hearsay conform to the exception applicable conspiracy in Ap- trials the federal courts. pellee does not challenge and we do not question validity of the coconspirator exception applied federal courts. Texas, S., Salinger Pointer v. 380 U. at 407. See also v. United

States, 272 U. S. 548. must are identical rules evidentiary That the two con in federal It is settled conceded. readily be evidence exception that allows hearsay spiracy trials the he conspirator of one out-of-court statement of an if only applies conspirators fellow his admitted in further course of and was made the statement subsequent during and not conspiracy, ance of the nothing conspirators engaged were when the period enterprise. criminal concealment more than Krulewitch States, 604; 344 U. S. v. United Lutwak exception States, 440. 336 U. S. United case, on the other present applied Georgia of such an of evidence the introduction hand,-.permits during the though made even statement out-of-court conspiracy. phase conceálment *7 federal courts follow that because does not But it the. include hearsay exception to extend the declined to have the concealment during made out-of-court statements - automatically extension such an conspiracy, of a phase in Cali Last Term Clause. the Confrontation violates Green, 149, we said: 399 U. S. fornia which of -is not to decide in this case task “Our of the law of purely as a matter positions, these us The issue before is the sounder. evidence, is of whether a defendant’s considerably one narrower confronted with the wit- ‘to be necessarily inconsistent with him’ is nesses hearsay rules .... change decision its a State’s hearsay rules conceded that may readily be itWhile generally designed Clause are the Confrontation different values, quite is similar protect , overlap complete is suggest thing is more or nothing Clause the Confrontation rules, hearsay codification less than a they historically existed at com- exceptions their have never established decisions law. Our mon such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. The equally converse true: merely is because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights Id., have been denied.” (citations 155-156 and footnote omitted). These particular observations have force in present case. For this Court has never indicated that the limited contours of the exception in federal conspiracy are trials required by the Sixth Amendment’s Confronta tion Clause. To the contrary, the limits of this hearsay exception have been simply defined Court exercise of its rule-making power in the area of the fed eral law of evidence.13 It is clear that the limited scope of the hearsay exception in federal conspiracy trials product, not of the Sixth Amendment, but Court’s of “attempts “disfavor” to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions.” States, Grunewald v. United 353 U. S. 391, 404. As Grunewald, Krulewitch, and'other cases this Court make clear, evidentiary rule is intertwined, not only with the federal substantive law of conspiracy, but also related, with such issues as the impact the statute of upon limitations conspiracy prosecutions. *8 13See 18 U. S. C. 3771. Fed. Rule 26 provides: Grim. Proc. § “In all trials the of orally shall be witnesses taken in open court, provided unless otherwise by Congress an act of by or

these rules. The, admissibility of evidence competency and the and n privileges of witnesses governed, shall be except when an act' of Congress or these rules provide, by otherwise the principles of the common they' may law as interpreted be the courts of the United States light in the of reason and experience.” See Hawkins v. States, United 358 U. S. 74.

83 not are questions policy such us before the In conspiracy for prosecuted not Evans present. mur- of offense substantive the for but court, Georgia the introduction the permitted State the trial hisAt der.14 well-recognized and long-established a under evidence of evidentiary the say that cannot We law.15 state of rule merely Constitution the violates Georgia applied rule hearsay the with coincide exactly not does because context decidedly different in the applicable exception offense substantive for prosecution federal aof conspiracy.

II Evans’ any event alternatively, argued, It is our impact under aside set be must- conviction convic- court state reversed have decisions recent of the denial of the because tions appellee which upon The cases confrontation. Doug- Texas, supra; v. Pointer are relies primarily Evans Georgia did Evans’ the time at advised are 14We offense. criminal substantive separate, a conspiracy as recognize not People, g., See, e. Reed unique. 15 hardly is Georgia rule The 384, So. 171 State, Ala. Dailey v. 68; P. 2d 450, 402 Colo. 2 F. also See P. 828. Roberts, Kan. 729; State 1955): (12th ed. Evidence Wharton, §430 Criminal admissible are copspirator aof declarations acts “The of the pendency during made they are when co-conspirator a perpetration only the includes act, wrongful . . . subsequent concealment. its also but offense who persons evidence such admission theory “The much crime, are as a do commit who crime, and a conspire commit apprehension, from freedom crime, their with concerned, after its crime, commission: with concerned, before they were thereof commission after devolves the crime commit conspiracy implication.” arrest avoid conspiracy into law evidence exception of such existence S., 444. U. supra. 336 Krulewitch, recognized many States *9 Alabama, las v. supra; Janis, Brookhart v. supra; Barber Page, supra; and Russell, Roberts v. supra. In the Pointer case appeared that man named Phillips had been the victim of a robbery in Texas. aAt preliminary hearing, Phillips “as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who fobbed had him Pointer,had at gunpoint.” 380 U. S., at 401. no lawyer at this hearing and did not try to cross-examine Phillips. At Pointer’s subsequent prosecution trial permitted to introduce the transcript of Phillips’ testimony given at the preliminary hearing. Thus, as this Court held, the State’s “use of the transcript statement at the trial petitioner denied any opportunity to have the benefit of counsel’s cross-examination of the principal witness against him.” 380 S., tr. at 403. The Douglas casé, decided the same day Pointer, as involved an even more flagrant violation of the defendant’s right of confrontation. For Douglas’ the prosecutor himself permitted to read an “entire pur document” porting to be an accomplice’s written confession after the accomplice had refused to testify in reliance upon his privilege against compulsory self-incrimination. “The statements from the document as read Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial they importance, named the petitioner the person who fired shotgun blast which wounded the victim.” 380 S.,U. at 417. In reversing Douglas’ conviction, Court pointed out that the accomplice’s upon reliance the privilege compulsory self-incrimination “created situation which the jury might improperly infer both that the statement had been made and that it was true.” 380 S.,U. at 419. Yet, since prosecu tor was “not a witness, the inference from his reading accomplice] [the made the statement could not be accom- Similarly, [the cross-examination. tested *10 im- a statement cross-examined be not could plice] Ibid. him.” by not admitted but to puted further even Page are Barber and Janis Brookhart had petitioner that the appeared In Brookhart afield. wit any all at cross-examine to the “denied been additionally, that, him,” and against testified who nesses alleged him an against evidence as introduced was “there his co-defend of one by court out of made confession, S., at U. 384 in court.” testify not did . who . . ants since waiver, one was case issue only The 4. wholesale a such that conceded properly State the without cross-examination “denial complete and first the error be . would . . waiver the In Barber 3. S., at U. 384 . .” . . magnitude a tran was petitioner the against evidence” “principal the admitted hearing preliminary script that, rule hearsay to the exception an under judge trial was witness if the only applicable was terms, its ex been “has exception This “unavailable.” at S.,U. .” . . necessity . from arising plained invoke not could Oklahoma only that decided we 722, and transcript hearing preliminary the use to concept effort” good-faith “a showing without case in that Id., at 725. trial. the presence witness’ the obtain doctrine held we v. Russell Roberts In applicable States, U. S. v. United Bruton But effect. retroactive given be towas the States now before one from the different far a case Bruton petitioner of the trial joint awas there In that us. upon Evans, coincidentally named codefendant, testi- inspector postal A robbery. postal of armed charge Evans himto confessed had Evans fied evidence This robbery. committed had petitioner peti- inadmissible wholly concededly, was, judge Although testify. did Evans tioner. instructed the jury disregard the evidence of Evans’ confession in considering question petitioner’s guilt, we reversed petitioner’s conviction. pri mary opinion focus Court’s' in Bruton was upon the issue-of whether the jury pre the circumstances sented could reasonably expected be to have followed the trial judge’s, instructions. The Court found that prejudice risk'of petitioner’s “[t]he case was even more Douglas,” serious than in because “the in powerfully criminating extrajudicial statements of a codefendant, who stands accused side-by-side with defendant, are deliberately spread before the jury joint in a trial.” S., IT. at 127, 135-136. Accordingly, held we “in .that the context of a joint trial we cannot accept in limiting *11 structions as an adequate substitute for petitioner’s con stitutional right of cross-examination.” S.,U. at 137. There was not before us in Bruton “any recognized ex ception to the hearsay rule,” the Court was careful and to emphasize that “we intimate no view whatever that such exceptions necessarily questions raise under the 391., Confrontation Clause.” S.,U. at 128 n. 3. It apparent seems Ijhat the Sixth Amendment’s Con- frontation Clause and the evidentiary.hearsay rule stem from the roots.16 this Court never equated same has B^t the two,17 and we do-, decline ten so now. We confine ourselves, instead, to déciding the case before us. suggested It has been the provision constitutional is based on a principle common-law origin had its in a reaction to abuses at the trial of Sir Raleigh. Walter Heller, F. The Sixth Amend (1951). ment 104 Note, See Confrontation and Hearsay Rule, the 75 Yale L. J. 1434: “Despite superficial similarity between evidentiary rule and clause, the Court should not eager equate be them. hearsay Present law does not permanent merit a niche the Constitution; indeed, ripeness its for reform is unifying theme of evidence literature. From Bentham to the authors of the Uniform any sense evidence involve not does This case just dis- the cases all as did “devastating,” or “crucial” con- of a misuse, use, or involve It does not cussed. inter- of official atmosphere coercive made fession Bruton, Roberts. Brookhart, and Douglas, did as rogation, mis- prosecutorial any suggestion not involve It does Pointer, Douglas, and did as or even negligence, conduct prosecution by the the use involve does It not Barber. Brookhart, Pointer, did transcript, paper of a Bruton did trial, as joint involve a Barber. It does involve certainly. does not Roberts. And Brookhart. cross-examination, aá did denial wholesale ap- witnesses than 20 no less of this In Evans’ counsel prosecution. testified peared and every one to cross-examine opportunity full given was by far, was witness, important most The them.. triple details all the described who eyewitness length. great at cross-examined and who was murder single but witnesses, the 19 other Of the to a brief witness testified That one here. issue one at a fellow had with he had Evans about conversation was witness Penitentiary. Atlanta prisoner by defense effectively cross-examined vigorously sig- of peripheral testimony, which His counsel.18 co- under a in evidence admitted most, nificance established long rule exception to the conspirator *12 can Georgia statute statutory law. The under state hearsay law present agreed that Evidence, have authorities Rules If Pointer has read the courtroom. from evidence keeps reliable proportions, re- hearsay of unknown rule a into Constitution a but with only'with of inertia centuries grapple formers must (Footnotes Id., at 1436. as well.” prohibition omitted.) doubt on east serious as to was such This cross-examination the conversa on whether credibility and, particularly, more Shaw’s place. ever took related tion which Shaw with the obviously many applications have consistent applica- its Clause, and we conclude that Confrontation did not violate of this case tion the circumstances the Constitution. confrontation any deprived right

Evans was not actually state- made the of whether Williams the issue con- hearsay nor a by Neither a’ ment related Shaw. testimony arise had question frontation would Shaw’s been had merely that the statement prove been used to prevent rule does not a witness made. is rather heard; he has testifying from as what extrajudicial proof through restriction on the fact viewpoint of the statements. From the Confrontation subject oath, under to cross-examina- Clause, a witness by the trier can be observed tion, and whose demeanor he only to what a reliable informant not as of-fact, what he has heard.19 has seen but also as to was jury because the The confrontation issue arises iden- implicitly infer that Williams had being invited to he murder when perpetrator tified Evans as conclude predicament. for his But we blamed Evans there no denial of the of confrontation right that con- identity. the statement question First, to this and conse- express past fact, tained no assertion about jury against warning it carried on its face a to the quently weight. Second, undue Williams’ giving the statement identity other knowledge of the and role of personal abundantly estab- triple murder is participants con- prior Truett’s and Williams’ lished could It is inconceivable cross-examination viction.- not in to know position have shown Williams subpoena including witnesses, Evans had Of course testimony might the statement had not Williams, show that whose argument Evans informed us at oral made. Counsel been but had concluded subpoenaed Williams have he could of his client. in the best- interests not be course would *13 murder. or not was involved whether Evans that Williams’ statement Third, the possibility extreme. is remote faulty founded on recollection made under Williams Fourth, the circumstances which suppose reason to as to give statement were such involvement misrepresent that did not Evans’ Williams showing beyond a go circumstances crime. These in. to Shaw. apparent reason that Williams had no lie his and it was spontaneous, His statement was reliability are indicia of penal.interest it. These make determinative widely which have been viewed jury may placed be before whether a statement the declarant. though there is no confrontation of it clear that of this Court make decisions prac- mission of the Confrontation Clause is advance truth-determining accuracy concern for of the tical “the trier process by assuring criminal trials the truth evaluating satisfactory fact basis for [has] Green, S., 399 U. prior statement.” California effectively, right his exercised exercised, 161. Evans and. whether Shaw question to confrontation on the factual statement Shaw actually make the had Williams .heard cross-examination possibility related. And the jury that conceivably have shown the could Williams have been unreliable made, might statement, though wholly unreal. Massachusetts, Snyder years ago, Almost 40 opinion wrote an for this U. Mr. Justice Cardozo S. criminal conviction a state Court to set aside refusing denial confronta- because of the claimed opinion words of are worth closing tion. The here: repeating the criminal law will be danger

“There is contempt discredit will into even brought —that immunities assured the Four- great touch possibilities gossamer prej- Amendment —if teenth *14 nullify pro- a sentence to a defendant are to udice in competent jurisdiction by nounced court free.” law, guilty obedience to local and set the S., 291 U. at 122. Appeals reversed, the judgment

The Court the case is remanded to that court for consideration corpus presented in this habeas the other issues proceeding.20

It is so ordered. Blackmun, whom The Chief Justice Mr. Justice joins, concurring. join opinion. me,

I Mr. For how- Justice Stewart’s reason for the ever, there is an additional result. in testimony sentence attributed Shaw single Evans, which has prolonged to Williams about in in was, my view and the of the entire litigation, light record, harmless error if it was error at all. Further- more, the claimed circumstances of its utterance are so hurt, incredible that must have rather helped, prosecution’s than ground case. On this I alone, persuaded could be to reverse and remand. Shaw testified Williams made the remark issue that hospital” when Shaw “went to his room in the asked he Williams how made out at a court hearing day. preceding On cross-examination, Shaw stated custody he was penitentiary that then at the federal he Atlanta; prison that worked as a clerk in the hospital; that Williams- was on the bed in lying his" argument penalty conceded at oral It was that the death im out, jury quali posed in this case cannot be carried because the Witherspoon Illinois, standards violative of fied under S.U. Appeals already the Fifth 510. The Court of Circuit has set Witherspoon, aside, imposed upon death under sentence Venson Dutton, See Williams Williams, alleged accomplice. Evans’ 2d 804-805. F. in the hall wall; he, Shaw,

room and facing spoke Williams; and not the room when he with spoke the door to the closed”; through room “was that he an opening square; opening about 10 inches ordinary- piece plate just “has a window glass, glass, window and a this does glass, piece mesh”; steel impede talks talking through door; and that one in a normal voice when he talks that door. through conceded he Shaw that when had testified at Williams’ earlier he made reference in the trial, glass no opening door. Mabry, State,

Carmen David called testified that he was with the United Public Health States Serv- *15 Penitentiary. ice and stationed at the He de- Atlanta scribed the in the door to Williams’ room opening and said that it contained a “and over that is a wire glass mesh, heavy mesh”; steel that he has “never tried talk door”; that, to his he has never through knowledge, heard “other people talking through door”; that, 11 years his at the during hospital, has not glass been out of the and that dis- door; hospital records closed that it had not been out.

I any am at a loss to understand jury, how normal as we must assume this one be led been, to have could believe, let alone be by-, astonishing influenced account Shaw his conversation with Williams I hospital normal voice a closed room door. through note, also,' description the Fifth Circuit’s testi- Shaw’s mony as “somewhat incredible” and possessing “basic incredibility.” 2d, 400 F. at 828 n. 4. fully I saying this,

In all am aware that the Fifth panel observe, just Circuit went on to the footnote “ that it cited, e are convinced cannot be called harm- [W] Quillian, in less.” And Justice sole dissent on the direct Supreme Court of appeal Georgia, stated, to the “[I]t obviously prejudicial to the defendant.” 222 Ga. neither the 240, However, E. 251. 408; 150 S. 2d

-392, who tried the case nor the Superior judge Court Georgia on Evans’ hearing who held the Judge District Federal prejudicial concluded that petition for federal habeas do not know the atti present. Also, error was we they Supreme majority, Georgia of the Court tude strictly upon pronounced limits decided issue hearsay rule, Ga., long-established Georgia 2d, had no presumably E. at 150 S. 402; upon any alternative such as ground occasion to touch upon usually passing I would refrain from harmlessness. adversely this kind to a federal court of an issue of I rule, would appeals, judges but when the trial do upon free to draw the cold record suppose we are as appellate court. as is the Marion

I add an observation" about corroboration. prisoner one who Perry, another federal Calvin past convictions, “larceny numerous including admitted objection automobiles,” testified without that he had years, and Evans for about 10 known Williams years; spoke for about two that he with Williams Truett days prior some or 30 to the and Evans murders him police "officers; three that Williams owed by telephone that he and talked money; Williams cars for stealing him”; me some that Williams “[a]bout told him that “Alex would know what kind of [Evans] *16 want”; days car he would that a few [Williams] later “me and Alex talked about cars I told him I didn’t and. ”; want to mess with Venson that Evans said, [Williams] any, “if I he I could got get said them for him”; days seven or before the eight murders Williams asked by him telephone he, whether “still Perry, had the Olds- the week switch”; mobile murders he argued of.the Evans about how much he with should receive for each days car; stolen that six after the murders he saw Evans they station; talked filling at a about the murders; “I if I said wanted to know who I did it, would see your mine and mad as hell” friend”; “got and that Evans I I thought and “told me if knowed about it anything my to keep damn mouth shut.” witness,

Another Lawrence Hartman, H. testified that his red hardtop Oldsmobile was stolen from his home in night April 16, (the Atlanta murders early took place April on morning 17). He went testify that the 1963 Oldsmobile found near burning the tragedy scene of was his automobile. There is testimony .in the by record as to the earlier acquisition Evans and Williams another wrecked Oldsmobile of like model and as to color; towing that damaged by car a wrecker manned Evans; Williams and and replacement as to the of good tires on a Chevrolet oc- cupied by Williams, and Evans, Truett, recapped with purchased by tires then them. testimony,

This record it seems me, directly bears on the positively Williams-Evans-Truett car-stealing conspiracy accomplishments provides indisput- able confirmation Evans’ The requirements role. the Georgia corroboration rule fully were satisfied and Shaw’s incredible remark practical fades into and legal insignificance.

The error if here, one exists, beyond is harmless Chapman California, reasonable doubt. U. S. Harrington 21-25; California, 395 U. S. 250. Harlan,

Mr. Justice concurring result. Not surprisingly the difficult pre- issue sented this produced case has multiple opinions. Mr. Justice testimony Stewart finds Shaw’s admissible be- “wholly cause it is unreal” to suggest that cross-examina- tion would have weakened the effect of Williams’ state- jury’s ment on the mind. Mr. Justice Blackmun, while concurring view, finds admission of the state- harmless, ment to be seemingly because he deems Shaw’s obviously so fabricated that no jury normal *17 credence. given would have Marshall Mr.. Justice my both to but he then suggestions satisfaction, answers I position He adopts accept. appar- cannot prevent ently prosecution introducing would from any out-of-court unless there accomplice statement of an opportunity is an for cross-examination, regard- and this less of the circumstances in which the statement was hearsay. and regardless made of whether it is even difficulty The assumption of this case arises from the purpose the core of the Confrontation Clause of prevent overly excep- Sixth Amendment is to broad tions I assumption to rule. believe this to Contrary be wrong. they appeared me things Green, I last Term when wrote in 399 U. S. California I 149, (1970), have since become convinced that says: states the when he Wigmore correct view prescribe “The Constitution does not what kinds of testimonial statements (dying declarations, or the like) given infra-judicially, depends shall be —this the law of Evidence for the time being, only —but procedure what mode of shall be followed—i. e. a cross-examining procedure the case of such testi- —in mony required ordinary as is law of Evidence infra-judicially.” be given 5 J. Wigmore, Evi- dence (3d at .131 ed. 1940) (footnote § omitted). conversion a clause intended to regulate trial

procedure into a threat to much of the existing law of evidence and to future developments in that field is not an shift, unnatural for the paradigmatic evil the Confron- tation Clause was aimed at —trial affidavit1 —can be Green, supra, See (concurring opinion): his 179. California torically, “the Confrontation Clause was meant to' constitutionalize flagrant abuses, a barrier by anonymous accusers, absentee witnesses.”

viewed equally gross almost well as a violation of the- hearsay rule giving and as the of evidence the' presence subject affiant out of the of the accused and not to cross-examination him. But however natural may shift once be, great made it carries the seeds w of development- mischief for in the 1 enlightened evidence.

If one into were to translate the Confrontation Clause in “In language today, more common use it would read: enjoy all criminal the accused shall prosecutions, to be present and to cross-examine the witnesses against him.” in this or in 18th- Nothing language its ' century equivalent purpose would connote a to control the scope of the rules of evidence. The is language particularly if pro- ill-chosen what was intended was a hibition on the any hearsay use of position toward —the my which Brother Marshall is being driven, although he yet does not quite embrace it.

Nor I am now content with the I position took con- currence in Green, supra, the Con- California frontation designed Clause was establish preferential to rule, requiring prosecutor to avoid the use of (cid:127) where it is reasonably possible for him to do so—in other words, produce to available witnesses. Further consideration light squarely presenting facts as Green issue, did has me not, led to conclude happy this is not a intent to be attributed to the Framers absent compelling linguistic or historical evi- pointing dence that direction. It is common ground the historical understanding clause furnishes no guide adjudication.2 solid

A rulé requiring production of available witnesses significantly development would curtail of the law of id., 175-179, especially 2See 176 n. 8 (concurring opinion).

96 necessity production eliminate

evidence unduly incon- would be production where declarants Examples utility a defendant. of small venient Act, 28 the Business Records mind are which come to hear- to the exceptions 1732-1733, and §§ U. S. C. treatises, statements, learned say rule for official See, Evidence g., e. Rules of Uniform reports. trade States, Gilstrap v. United (31); (15), (30), Kay (business records); (CA5 1968) 389 F. 2d 6 States, (laboratory (CA4 1958) United F. 2d 476 given in a the.hearsay exception involved If analysis). men, to reasonable itself as to commend case is such difficult, .likely to be declarant production of the *19 cases, of which the In unusual pointless. or unavailing, Amendment example, the may an Sixth at hand be compulsory federal defendants guarantees witnesses, and Wash- presence process to obtain Texas, this Court held ington (1967), 388 U. S. protection extends the same Amendment the Fourteenth defendants.3 to state puts one the words interpretation

Regardless simply is not Clause, the clause the Confrontation numerous into account the fac- taking well-designed appro- on the weighed passing be tors that must The failure of Mr. Jus- rules of evidence. priateness of explain the standard which opinion to tice Stewart’s statement, or how this standard can be it tests Shaw’s absolute command of the seemingly with the squared witness the fact that the clause is clause, being bears to which it is not suited. The task is far more set a task for under performed aegis of the Fifth and appropriately necessary my Although conclusion, the fact is not I note that argüment at oral counsel for Evans conceded he could have testify, presence but secured decided it. Tr. of Williams’ Arg. Oral 55.

Fourteenth Amendments’ commands that federal and state trials, must be respectively, conducted in accord- process ance with due of law. It byis this standard that I would test federal and state rules evidence.4

It must be recognized that not everything which has been said this Court’s cases is consistent with this position. However, this approach necessarily not in- results, consistent with the that have been reached. Of the major “confrontation” decisions of Court, seven involved the use prior-recorded testimony.5 In the absence of countervailing circumstances, introduction of such evidence would be an affront to the core meaning of the Confrontation Clause. The question in each'case, therefore, was whether there had been adequate “con- frontation” to satisfy requirement of the clause. Re- gardless of the correctness of the results, the holding that the clause was applicable in those situations is consistent with' the view of the I clause have taken.

Passing on other principal cases, Dowdell v. United States, 221 U. S. 325, 330 (1911), held that Confrontation Clause did prohibit the introduction of “[documentary evidence to establish facts, collateral

4 Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to scrutiny in civil and *20 criminal trials exceedingly alike. It is rare for the law common make .admissibility of evidence turn on the proceeding whether is civil or criminal in nature. 1 Wigmore, supra, §4, See 16-17. at This feature jurisprudence of our is a further indication that Confrontation Clause, which applies only to prosecutions,, criminal was never' intended as a constitutional standard for testing rules of evidence. 5 United, Reynolds v. States, 98 U. S. (1879); Mattox v. 145 States, United 156 U. S. (1895); 237 Motes v. States, United 178 U. S. (1900); 458 Louisiana, West v. 194 U. S. 258 (1904); Pointer Texas, v. 380 U. 400 (1965); S. Page, Barber v. 390 U. S. 719 (1968); Green, (1970). 399 S. 149 California U.

98 law,” under the common While this admissible exception than clause, as an to the rather characterized speak, the clause did not the result which problem Janis, 1 correct. Brookhart v. 384 U. S. would seem Illinois, (1968), 129 and Smith v. 390 U. S. (1966), on the restrictions to cross-examination right involved Douglas right. wholesale denial or the easily Alabama, most (1965), perhaps 380 U. S. 415 is prosecutorial it as a case of viewing with dealt I to hold Alternatively, prepared would be misconduct. process due a confession of an ac as a matter can police interrogation from formal complice resulting accused, of the of an guilt introduced as evidence be authorization or indicating some circumstance absent evidence dates at least adoption. The exclusion such Case, Tong’s 17, 18-19, Rep. 1061, 84 Kelyng Eng. from This' universally accepted. is (K. 1663), 1062 B. account for the results of theory adequate would be (cid:127) States, Doug las Bruton v. United 391 U. S. both (1968). case of remaining significance confrontation States, In (1899). United that- Kirby v. U. S. three men for theft was a record of conviction of case Kirby’s trial. The instructed the judge introduced at judgment prima facie evidence that jury Kirby receiving which was accused of from goods men in fact stolen. reversed, three were This Court judgment that since the wa« the sole holding evidence Kirby theft, the' fact of had been denied his my In view this is not confrontation. a confrontation all, but a matter substantive law of judg- supra, Accord, Wigmore, ments. at 133. In- § Kirby indicated deed, the Court lack confronta- .of objection not at the heart its when tion was it said *21 evidence competent that the record would have been result conviction. The correctness of the fact of think, Iwas, Kirby hardly doubted, be but can wrong theory. on the legal based by the challenged here Georgia statute

Judging be sus- I conclude that it must process, standards of due con- object the main of a Accomplishment tained. community of interest will terminate the spiracy seldom interest conspirators. Declarations The jury, likelihood of trustworthiness. evince some counsel, defense should be alert to guidance with the testimony. As crediting the obvious such a dangers matter, unless the out-of-court declaration can be practical proved by hearsay evidence, likely facts it are reveals jury by to remain hidden from the the declarant’s invoca- privilege against tion of the self-incrimination.6 In light person of such considerations, necessity weighing type evidence of the here involved against jury will danger give it undue credit might reasonably conclude that admission of the evidence would just increase the likelihood of determinations of truth. Appellee has not suggested Shaw’s pos- any sessed peculiar characteristic' that would lessen the force of these general considerations and require, as á matter, judge exercise resid- discretion to ual exclude the unduly evidence as in- Malloy Hogan, apart from (1964), 378 U. S. 1 Georgia 6 Quite recognized long privilege. has the’ Georgia Constitution 1877, I, 1, VI, provided Art. person that: “No ¶ shall be compelled § give testimony tending any .himself,” manner to criminate language appears present the same state constitution. Ga. Const, I, 1, previously Art. VI. The had ¶ been § recognized law, as a matter of See, common even in civil.trials. g., Riley, e. Marshall (1849). Ga. 367 *22 in statements, as is done of such Exclusion

flammatory. I me, cannot but to itself courts, commends federal the Due Process trial. fair ato is essential say that more. no requires Clause concur I opinion, in this discussed premises

theOn below. judgment reversal the Black, Justice Mr. whom Marshall, Mr. Justice join, Brennan Justice Mr. Douglas, and Mr. Justice dissenting. murder first-degree was convicted Evans

Appellee allowed was named Shaw a witness in which a trial after a about objection, strenuous counsel’s testify, over to Williams, an himto made was claimed he statement in a already convicted been had who accomplice alleged statement, which the Shaw, to According trial.1 separate was crime, Evans and both Williams implicated Wil immediately after conversation prison a made he nor testify was did not Williams arraignment. liams’ today con Court .Nevertheless, a witness. called statement, at extrajudicial admission cludes deny Evans not did crime partner alleged an tributed against witnesses with be confronted “to right Amend Fourteenth by the Sixth guaranteed him” majority doing,. so' In Constitution. ments recent with inconsistent completely result reaches Alabama, Douglas especially Court, this opinions States, v. United Bruton (1965), 415 S.U. 380 fully those cases In my view, (1968). S. 391 U. con Evans’ violation a clear establish here and apply rights. stitutional testimony was trial; his Williams’ at witness had been a Shaw its and after objected both before

fully anticipated to. admission. Court (1965), Texas, 380 U. S. Pointer v.

In an right Amendment’s “the Sixth held that first him is . . . against witnesses confront accused on the States made obligatory and is fundamental That Id., at 403. Fourteenth by the Amendment.” a statement constitutionally inadmissible held decision where aat state a defendant offered hearing a preliminary made originally statement an ade defendant affording the under circumstances we Indeed, for cross-examination. opportunity quate prior aat cross-examination that even since held have requirement, confrontation satisfy does not hearing *23 statement the made who the witness where at least Page, U. S. Barber v. at trial. tnbe called available basically a to confrontation right “The (1968). cross- to opportunity the It includes both right. de the weigh to jury the for occasion the examine and Id., 725. at of the witness.” meanor the applied Court this Alabama, supra, Douglas v. In to similar strikingly to a case Pointer principles defendants two charged the here, State There, as one. There, separate trials. them tried a crime and with (Loyd) defendant one prosecuted first the here, State in the trial by him statement used a then the called Although State (Douglas). defendant (cid:127)second his was from conviction appeal an witness, a Loyd as testify ground the refused he pending privilege Fifth Amendment his violate would doing so self-incrimination. privilege whether reaching question Without prosecu- Court held that invoked,2 the properly was conflict question presents fundamental same This —which Fifth rights and a witness’ Sixth Amendment a defendant’s between the State present been here had have privilege might Amendment — Loyd’s purported.attempt tor’s statement reading memory denied to confronta Douglas’ right to refresh his “Loyd tion. could not be cross-examined on a statement imputed S., to but not admitted him.” 380 U. at 419. course, Douglas provided opportunity Of to cross- Loyd’s examine the who testified state officers regarding only ment. since their evidence tended to “But show Loyd confession, made thé cross-examination of them . . ..could not substitute cross-examination 3 Id., Loyd to test the truth of the statement itself.” n 420. Surely, compels the same the exclusion of reasoning Indeed, only here. dif significant Shaw’s Douglas ference between and this case, insofar as the opportunity denial of the to cross-examine is concerned, is that here the attempt State did not even to call testify Williams Evans’ trial. He plainly avail able to State, and for all we know he would have willingly testified, at least with regard to his alleged conversation with Shaw.4

Finally, applied we. have Douglas reasoning that, “despite hold jury instructions to the to disregard testify. called Williams to Under a view would make avail ability only of a confrontation, declarant concern of see Cali Green, (1970) (Harlan, J., 399 U. S. 172-189 con fornia curring), duty compel State’s or a codefendant’s to. *24 testimony, by timing immunity, of trials and use of testimonial seemingly wou11 Comment, have to be decided. See Exercise of the Privilege Against by Self-Incrimination Witnesses and Codefendants: The Upon Accused, Effect 151, (1965). the 33 U. Chi. L. Rev. 165 3 Janis, Brookhart v. Cf. (1966). 1, 384 U. S. 4 4 My Brother might Stewart brought comments that Evans have Williams to the subpoena. courthouse Defense counsel did not ’ so, believing .do that Williams would right stand on his himself. Arg. Tr. of Oral may, incriminate 55. Be that as it it re- duty mains the to confront- a criminal defendant with the wit- against nesses State, upon him falls and here the State was allowed to damaging introduce evidence without running the risks 2, supra. trial confrontation. Cf. n. determining in the codefend- statements implicating of a joint trial innocence, or admission at a guilt ant’s code- a extrajudicial implicating confession defendant’s of cross-exam- fendant the codefendant’s violated Clause of the Sixth by the Confrontation ination secured Russell, Roberts (1968), 392 U. S. Amendment.” state and federal trials retroactive effect both giving States, Thus Bruton (1968). United 391 U. S. extrajudicial admission statement, an alleged Williams’ in- been could not even prisoner, fellow have made a joint if he had been tried troduced Williams trial with Evans. clear: Absent line of cases seems

The of this teaching testimony about cross-examination, for opportunity allegedly statement implicating incriminating constitutionally inadmissible by Williams made the trial of Evans. char- for reversal opinion Justice Stewart’s

Mr. that cross- “wholly possibility unreal” acterizes as change himself would Williams examination of lawyer A account. presented Shaw’s picture faith skeptical article of the as an might doubt, well about prophecy profession, categorical such Indeed, cross-examination. likely results careful necessity clearly demonstrate the facts of this case development which the corrective for fuller factual possible.' plurality makes test of cross-examination the out-of-court statement pigeonholes for reversal “spontaneous” utterance, in evidence as a was admitted con- Appeals hence tó be believed. As the Court of there is doubt that Williams cluded, however, great made statement attributed to him.5 More- even considering and other evidence sub After Shaw’s trial, Appeals the Court of concluded that mitted at the Shaw’s with notable “its account of his conversation Williams was incredibility.” basic 400 F. 2d 828 n. 4.

over, any- the further if question what, there remains by the remark thing, might have meant Williams opinion con- Shaw recounted. Me. Justice Stewart’s Plainly cedes that ambiguous. the remark stands as an accusation of some sort: “If it . hadn’t been for . . Evans,” Williams, according Shaw, said “we wouldn’t in this At his be now.” trial Evans himself unsworn gave testimony to the prosecution effect the murder might have from arisen enmities that Evans’ own law up enforcement activities had stirred locality. Did Williams’ accusation relate to Evans as powerful with and unscrupulous or enemies, man. Evans as a murderer? Mr. opinion Justice Stewart’s opts for the latter interpretation, for it' concludes that Williams’ remark “against penal his interest” and hence to be believed. But at great distance from events, no one’can be certain. point is that absent of Williams himself, the jury was left cross-examination only with the unelucidated, apparently damning, and patently damaging accusation told as Shaw.

Thus we a case have with all the unanswered ques- tions that the confrontation of witnesses through cross- examination is meant to aid in answering: What did the declarant say, and what did he mean, and was it the truth? If Williams had testified and been cross-exam- ined, Evans’ counsel could have fully explored these and other matters. The jury then could have evaluated the statement the light of Williams’ testimony and de- meanor. was, As it however, the State was able to use Shaw present the damaging evidence and thus to avoid confronting Evans with the person who allegedly gave witness against him. I had thought this was precisely what the Confrontation Clause applied the States in Pointer and our prevented. other cases

Although Mr. opinion for reversal Justice Stewart’s concludes that there was no violation of Evans’ right of *26 absence complete in so it does confrontation, exam- For that result. explain reasoning authority or statement alleged that Williams’ facts as ple,-such in not interrogation, official during made not joint in a introduced was not and form, transcript the cases— some they differentiate though trial — each presented cases have irrelevant. Other surely are n why right reason is offered .no factors,6 and of these limited. be so could of confrontation admitted was' the statement enough be it Nor can well-recognized and a long-established “under in evidence opinion law.” state Stewart’s rule of Mr. Justice that- a defendant’s surely does mean evidenti- way to a state give must of confrontation decision by our much is established ary rule. That Page, supra, which held unconstitutional v. Barber similarly rule testimony in accordance with admission However, plu established. long recognized well distinguishing succeeds rality for reversal neither inevitably are there generally' case nor considers evidentiary rules. Pointer and state between conflicts merely by its conclusion attempts to buttress Rather, evidentiary hearsay to equate. announcing a r'eluctance Clause.7 the Confrontation rules .and only second, and that one example, Pointer involved For Bruton or Roberts. present either was not hearsay “all rules common-law Constitutionalization (concurring Green, S., v. 399 U. at exceptions,” their California frightening than real. prospect be a more opinion), would seem to cpmes defi hearsay from the complexity afflicting rules Much for the presented as an out-of-court statement nition. adopted this definition nowhere truth of the matter stated —a decisions, Rather, while look purposes. for confrontation Court Page, recognize declarant, availability supra, Barber ing of a in a right of an accused is included in the that “cross-examination him,” Pointer the witnesses case- to confront criminal that, cross- in the absence of S., admission Texas, 380 U. The Court of Appeals, however, was not of the view the Confrontation Clause implies unrelenting hos- tility to whatever evidence be may hearsay. classified as Nor did that court hold that States must conform their evidentiary rules to the hearsay exceptions applicable in federal conspiracy trials. While it did note that reality does not in even involve the traditional hear- say rule and its coconspirators so-called exception,8 that was not the basis for its decision. Rather, the Court of Appeals found in the admission of incriminatory an and inculpating statement attributed to an accom- alleged plice who was not made available for cross-examination *27 what it termed an obvious abridgment of Evans’ right of confrontation. presented Since the State no satis- factory justification for the denial of confrontation, cf. Texas, Pointer v. S., 380 U. 407, at the Appeals Court of examination of types certain suspect highly and damaging state- ments is one of the "threats to a against fair trial” which “the Confrontation directed,” Clause was Bruton v. States, United 391 S.,U. at 136. 8 Evans charged not was with conspiracy nor could he have been under Georgia law. “conspiracy” The element part came in as evidentiary the State’s law, part of goes beyond which far the hearsay traditional exception even as regard it exists with to the phase” jurisdictions. in “concealment some Indeed, alleged Williams’ statement negates itself the notion that Evans had authorized speak Williams to or had assumed the. risk in to order an achieve unlawful through aim concert of effort. It is difficult to conceive how Williams could be part conspiracy of a to conceal the crime when all alleged the participants in custody were and he himself already had been arraigned. As this Court in Fiswick stated v. United States, 211, 329 U. S. an (1946), “admission one co-conspirator after he apprehended has been any in not sense a furtherance of the enterprise. criminal It is a rather frustration of it.” One lower court in Georgia adopted has essentially this reason ing in reversing a conviction testimony where objected similar to that to in this case was admitted. State, See Green App. 685, 115 Ga. 155 S. E. 2d (1967). But see n. infra. Court’s this Alabama Douglas under that held rights. his denied Evans cases other much that least requires Constitution the Surely confront to right the defendant denies State when a crim in him witnesses cross-examine Shaw’s case, that any In trial. inal of state rule an established with in accordance admitted conclusion. their reaching in Brethren my aid cannot law denial aof end, justification logical to its Carried provide would basis confrontation decisions Court’s avoidance wholesale for which Justice Bruton,9 decisions Mr. Douglas opin Indeed, if reaffirms. itself opinion Stewart’s estab to very close come would says, it what ion meant avoid—an it seeks equation very reverse lishing a state any exception give would equation Constitution” niche “permanent rule Clause Confrontation exception an form well. distin- apparently reversal plurality

Finally, it “does ground on the present guishes ” ‘devastating.’ or ‘crucial’ sense in any evidence involve admis makes apparently here, which involved Georgia rule *28 accomplice alleged of an and admissions statements pre-trial sible all decisions Court’s this with inevitably conflicts coconspirator, or State, 172 Ga. v. Darden See Clause. the Confrontation regarding 292, State, App. 86 Ga. Mitchell v. (1931), 414 590, E. 158 S. not on codefendants of (1952), where confessions 2d 756 71 S. E. Supreme Court Georgia Indeed, admissible. were held trial rule the state in favor conflict have resolved to seems on the based are decisions this Court’s erroneously concluding that the co- 'by one of confession concérning "a hearsay rule federal State, Pinion v. apprehended.” been has he after conspirators Park (1969). See also 708, 2d 709-710 37, E. 36, 165 S. Ga. 225 cert. (1969), petition for 2d 618, E. 687 State, 225 170 S. v. Ga. (renumbered). 57, T. 4, 1969, No. O. 1970 filed, November

Despite testimony characterization of Shaw’s as “of . peripheral significance most,” however, possibility prejudice very of its to Evans was real. The outcome of rested, jury Evans’ trial on whether the essence, would testimony regard believe Truett with to Evans’ spoke role the murder. Truett as an admitted accom plice Rely prosecution. who had been immunized from law, ing Georgia law, federal constitutional jury “you lawfully trial instructed the judge cannot upon testimony accomplice convict of an alone. . . . testimony accomplice of an must be corrobo [T]he rated .... . . corroboration . must be such as [T]he to connect the defendant the criminal act.” The with presented testimony State of a number of other , witnesses, accomplice addition to that of the alleged tended to corroborate Evans’ But guilt. Shaw’s him was supposedly account what Williams said to undoubtedly part evidence.10 corroborating of that judge’s no doubt that the statement instructions left necessary provide the corroboration. attributed' could Williams Indeed, prejudicial impact Trial 412-413. See Record Shaw’s quo graphically simply juxtaposing revealed two First, in Mr. tations. there is Justice Stewart’s characterization testimony, opinion of Shaw’s characterization that I find fair albeit studiedly jury being mild: invited infer that Wil “[T]he 'perpetrator implicitly liams had Evans as the identified added.) Second, (Emphasis judge’s murder. .” . . there is the trial charge testimony: “Slight accomplice on corroboration of evidence identifying participator from an extraneous source the accused as a accomplice act will be sufficient corroboration anof criminal added.) support (Emphasis light a verdict.” In the trial, charge and on consideration of the whole record of Evans’ “beyond impossible it is for me to believe a reasonable doubt” that complained- did the error not contribute to the verdict obtained. Chapman Harrington California, (1967); 386 U. S. (1969). California, 395 U. S. 250, *29 itself not does opinion Stewart’s Indeed, Mr. Justice of admission the that finding Appeals’ of Court upset the considered be not erroneous, could if testimony, Shaw’s harm- of question the from apart and Beyond harmless. inquiry, an undertakes Stewart error, Mr. Justice less whether understand, into I do not which of purpose the The “devastating.” or “crucial” is admitted evidence the evi- of exclusion the require to that apparently, is, view prejudice standard high of that short falling dence Bill of the against clamor a moment bring would the confine and worries such eschew I would Rights. defendant theWas questions: traditional the to inquiry him? witnesses the confront right to afforded of his denial not, if And,, doubt? reasonable beyond a harmless convicted been have may well Evans is that fact The statement implicating incriminatory by an part testify not did who accomplice alleged an attributed regarding questioned be could consequently who Court statement. meaning or truth Confrontation recognized correctly Appeals is statement whether result, a such prohibits Clause recol- witness’ refreshing guise under introduced a codefendant Alabama, against Douglas v. inas lection States, United Bruton inas instruction limiting awith rule evidentiary other some with or in accordance here. for re- plurality by the fact troubled

amI be- place is said all when versal, unable shifts decisions, prior of our reach principled yond “indicia for whatever hunt begins ground its as told remark, Williams’ may cling reliability” state- “spontaneous” made a Williams Whether Shaw. very question interest” penal his “against ment of Williams by cross-examination tested have been should *30 If reliability” himself. “indicia of easy are so to come prove by, so then much, only it is to reasonable ask whether any independent Confrontation Clause has vitality at all protecting a criminal against defendant of extrajudicial subject use statements not to cross- exposed jury examination and not to a assessment of the declarant’s demeanor at trial.11 I believe the Con- frontation any has been sunk if Clause out-of-court statement an indicium bearing probative of a likelihood can come in, no matter how damaging the statement may be or great how the need for the truth-discovering test of Green, cross-examination. Cf. California U. S. 161-162 (1970). Our decisions from Pointer Douglas to Bruton and Roberts require more than this meager inquiry. Nor is lame “indicia” ap- proach necessary to avoid a rampaging Confrontation tramples flexibility Clause all and innovation in a state’s law of evidence. specter That only need, specter.12 To decide this I case not go beyond hitherto settled Sixth and Fourteenth Amendment law to consider generally what if effect, any, the Confronta- tion Clause has hearsay common-law rule and its exceptions, since no issue of such global dimension is presented. Bruton Cf. States, United 391 U. S., at 128 n. 3. incriminatory extrajudicial statement of an alleged accomplice is so inherently prejudicial that it cannot be introduced unless there is an opportunity to cross-examine the declarant, whether or not his state- 11Mr. Justice Harlan question answers this by with directness adopting, case, decide this his process view of due appar which ently, makes no distinction between civil and trials, criminal and. which prohibit would only irrational or evidentiary unreasonable rulings. say, Needless to I cannot accept view Evans’ rights should be measured a standard concededly having nothing to do. with the Confrontation Clause. 7, supra. See n. to the exception, genuine within a ment falls rule. in which is entitled my view,

In Evans guarantee his constitutional fully he is accorded the witnesses cross-examine all confront and of the Court judgment I him. would affirm.the courts go Georgia back to the and let this Appeals the use of this out-of-court statement without to be tried to Williams. attributed Shaw