California v. Green/Concurrence Burger

by Warren E. Burger

United States Supreme Court

399 U.S. 149

State of CALIFORNIA, Petitioner,  v.  John Anthony GREEN.

 Argued: April 20, 1970. --- Decided: June 23, 1970

Mr. Chief Justice BURGER, concurring.

I join fully in Mr. Justice WHITE'S opinion for the Court. I add this comment only to emphasize the importance of allowing the States to experiment and innovate, especially in the area of criminal justice. If new standards and procedures are tried in one State their success or failure will be a guide to others and to the Congress.

Here, California, by statute, recently adopted a rule of evidence ^[1] that, as Mr. Justice WHITE observes, has long been advocated by leading commentators. Two other States, Kentucky ^[2] and Wisconsin, ^[3] have within the past year embraced similar doctrines by judicial decisions. None of these States has yet had sufficient experience with their innovations to determine whether or not the modification is sound, wise, and workable. The California Supreme Court, in striking down the California statute, seems to have done so in the mistaken belief that this Court, through the Confrontation Clause, has imposed rigid limits on the States in this area. As the Court's opinion indicates, that conclusion is erroneous. The California statute meets the tests of the Sixth and Fourteenth Amendments, and accordingly, the wisdom of the statute is properly left to the State of California; other jurisdictions will undoubtedly watch the experiment with interest. The circumstances of this case demonstrate again that neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the criminal law in all the States. Federal authority was never intended to be a 'ramrod' to compel conformity to nonconstitutional standards.

Notes

1. Cal.Evid.Code, § 1235 (1966).
2. Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969).
3. Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d 609 (1969), petition for certiorari pending, No. 389, Misc., O.T.1969.