California v. Green/Concurrence Harlan

by John Marshall Harlan II

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. Justice HARLAN, concurring.

The precise holding of the Court today is that the Confrontation Clause of the Sixth Amendment does not preclude the introduction of an out-of-court declaration, taken under oath and subject to cross-examination, to prove the truth of the matters asserted therein, when the declarant is available as a witness at trial. With this I agree. ^[1]

The California decision that we today reverse demonstrates, however, the need to approach this case more broadly than the Court has seen fit to do, and to confront squarely the Confrontation Clause because the holding of the California Supreme Court is the result of an understandable misconception, as I see things, of numerous decisions of this Court, old and recent, that have indiscriminately equated 'confrontation' with 'cross-examination.' ^[2] See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926) (dictum); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899); and Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911). ^[3]

These decisions have, in my view, left ambiguous whether and to what extent the Sixth Amendment 'constitutionalizes' the hearsay rule of the common law.

If 'confrontation' is to be equated with the right to cross-examine, it would transplant the ganglia of hearsay rules and their exceptions into the body of constitutional protections. The stultifying effect of such a course upon this aspect of the law of evidence in both state and federal systems need hardly be labored, and it is good that the Court today, as I read its opinion, firmly eschews that course.

Since, in my opinion, this state decision imperatively demonstrates the need for taking a fresh look at the constitutional concept of'confrontation,' I do not think that state decisis should be allowed to stand in the way, albeit the presently controlling cases are of recent vintage. ^[4] As the Court's opinion suggests, the Confrontation Clause comes to us on faded parchment. History seems to give us very little insight into the intended scope of the Sixth Amendment Confrontation Clause. Commentators have been prone to slide too easily from confrontation to cross-examination.

Against this amorphous backdrop I reach two conclusions. First, the Confrontation Clause of the Sixth Amendment reaches no farther than to require the prosecution to produce and available witness whose declarations it seeks to use in a criminal trial. Second, even were this conclusion deemed untenable as a matter of Sixth Amendment law, it is surely agreeable to Fourteenth Amendment 'due process,' which, in my view, is the constitutional framework in which state cases of this kind should be judged. For it could scarcely be suggested that the Fourteenth Amendment takes under its umbrella all common-law hearsay rules and their exceptions.

I begin with the Sixth Amendment, and defer until Parts III and IV the application of these principles to the instant case.

* The Confrontation Clause of the Sixth Amendment is not one that we may assume the Framers understood as the embodiment of settled usage at common law. Cf. my dissenting opinion in Baldwin v. New York, 399 U.S. 117, 90 S.Ct. 1914 (1970). Such scant evidence as can be culled from the usual sources suggests that the Framers understood 'confrontation' to be something less than a right to exclude hearsay, and the common-law significance of the term is so ambiguous as not to warrant the assumption that the Framers were announcing a principle whose meaning was so well understood that this Court should be constrained to accept those dicta in the common law that equated confrontation with cross-examination.

* The text of the Sixth Amendment reads: 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.' Simply as a matter of English the clause may be read to confer nothing more than a right to meet face to face all those who appear and give evidence at trial. ^[5] Since, however, an extrajudicial declarant is no less a 'witness,' the clause is equally susceptible of being interpreted as a blanket prohibition on the use of any hearsay testimony.

Neither of these polar readings is wholly satisfactory, still less compelling. Similar guarantees to those of the Sixth Amendment are found in a number of the colonial constitutions ^[6] and it appears to have been assumed that a confrontation provision would be included in the Bill of Rights that was to be added to the Constitution after ratification. ^[7] The Congressmen who drafted the Bill of Rights amendments were primarily concerned with the political consequences of the new clauses and paid scant attention to the definition and meaning of particular guarantees. Thus, the Confrontation Clause was apparently included without debate along with the rest of the Sixth Amendment package of rights-to notice, counsel, and compulsory process-all incidents of the adversarial proceeding before a jury as evolved during the 17th and 18th centuries. ^[8] If anything, the confrontation guarantee may be thought, along with the right to compulsory process, merely to constitutionalize the right to a defense as we know it, a right not always enjoyed by the accused, whose only defense prior to the late 17th century was to argue that the prosecution had not completely proved its case. ^[9] See H. Stephen, 'The Trial of Sir Walter Raleigh,' Transactions of the Royal Historical Society 172, 184 (4th ser. Vol. 2, 1919); F. Heller, The Sixth Amendment 106-107 (1951). Such glimmer of light as history may be thought to shed comes from the brief congressional colloquy on the reach of the companion guarantee of compulsory process. The debate suggests that this also broad and sweeping right was understood to be qualified by an availability requirement. After what is now the Sixth Amendment was put on the floor, the annals report the follows:

'Mr. Burke moved to amend this proposition in such a manner as to leave it in the power of the accused to put off the trial to the next session, provided he made it appear to the court that the evidence of the witnesses, for whom process was granted but not served, was material to his defence.

'Mr. Hartley said, that in securing him the right of compulsory process, the Government did all it could; the remainder must lie in the discretion of the court.

'Mr. Smith, of South Carolina, thought the regulation would come properly in, as part of the Judicial system.' 1 Annals of Cong. 756. (Emphasis added.)

In the face of this colloquy I cannot accept Professor Heller's assertion in his book on the Sixth Amendment attributing to the Framers a sweeping intent to prevent 'introduction of evidence given by witnesses whom the accused has not had an opportunity to cross-examine,' supra, at 105. So far as I have been able to ascertain, this thesis finds support only in the assumption, traceable to Professor Hadley, ^[10] that: 'The right of the accused in a criminal prosecution to be confronted with the witnesses against him did not originate with the provision of the Sixth Amendment, but was a common law right which had gained recognition as a result of the abuses in the trial of Sir Walter Raleigh.' Id., at 104. Heller's approach, resting as it does essentially on assertion, ^[11] is neither persuasive as a historical reading, nor tenable in view of decisions by this Court that have held that the confrontation right is not abridged by the use of hearsay that would not have satisfied the dying-declaration exception, which was, according to Heller, the only apparent extant exception to the hearsay exclusionary rule at the time the Sixth Amendment was ratified. ^[12]

Wigmore's more ambulatory view-that the Confrontation Clause was intended to constitutionalize the hearsay rule and all its exceptions as evolved by the courts-rests also on assertion without citation, and attempts to settle on ground that would appear to be equally infirm as a matter of logic. ^[13] Wigmore's reading would have the practical consequence of rendering meaningless what was assuredly in some sense meant to be an enduring guarantee. It is inconceivable that if the Framers intended to constitutionalize a rule of hearsay they would have licensed the judiciary to read it out of existence by creating new and unlimited exceptions.

From the scant information available it may tentatively by concluded that the Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses. That the Clause was intended to ordain common law rules of evidence with constitutional sanction is doubtful, notwithstanding English decisions that equate confrontation and hearsay. Rather, having established a broad principle, it is far more likely that the Framers anticipated it would be supplemented, as a matter of judge-made common law, by prevailing rules of evidence.

Judicial Precedent.-The history tending to suggest that availability underlies the confrontation right, as discussed above, is, in my view, confirmed by a circumspect analysis of the early decisions of this Court. ^[14]

The early decisions that consider the confrontation right at any length all involved ex parte testimony submitted by deposition and affidavit. See Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899). ^[15] It was in this context that Mr. Justice Brown in an oft-quoted passage from Mattox v. United States set forth as the primary objective of the constitutional guarantee, the prevention of '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 also 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.' 156 U.S., at 242-243, 15 S.Ct., at 339. See also Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911); Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 332 (1934).

This restricted reading of the clause cannot be defended taking, as it does, a metaphysical approach, one that attempts to differentiate between affidavits, as a substitute for first-hand testimony, and extra-judicial testimonial utterances. Indeed, the problems with the latter are somewhat greater, and the difficulty in establishing accurately what an extra-judicial declarant said has sometimes been considered an infirmity of hearsay evidence. See C. McCormick, Evidence § 224, at 458 (1954). Conceptual difficulties aside, it would seem that the early recognition of the dying declaration as an exception to the Confrontation Clause, Mattox v. United States, supra; Kirby v. United States, supra; Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715 (1897), proceeded on the assumption that extra-judicial testimonial declarations were also a concern of the Sixth Amendment. ^[16]

Notwithstanding language that appears to equate the Confrontation Clause with a right to cross-examine, and, by implication, exclude hearsay, the early holdings and dicta can, I think, only be harmonized by viewing the confrontation guarantee as being confined to an availability rule, one that requires the production of a witness when he is available to testify. This view explains the recognition of the dying declaration exception, which dispenses with any requirement of cross-examination, and the refusal to make an exception for prior recorded statements, taken subject to cross-examination by the accused, when the witness is still available to testify. Compare Mattox v. United States, supra, with Motes v. United States, supra.

This rationalization of the early decisions is not only justified by logic but also anchored in precedent. In West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904), this Court in reviewing its early confrontation decisions emphasized availability as the thread that tied them together. West involved the admission into evidence at trial of deposition testimony, taken subject to cross-examination and under oath, where the deponent was 'permanently absent from the State and was a non-resident thereof, and * * * his attendance could not be procured.' Ibid. Referring, inter alia, to Motes, Mattox, Kirby, and Reynolds, the Court concluded that 'in not one of those cases was it held that, under facts such as (were before the Court), there would have been a violation of the Constitution in admitting the deposition in evidence.' 194 U.S., at 266, 24 S.Ct., at 654. That the uppermost consideration was the availability of the witness is further underscored by the West discussion of the common-law rule that admitted deposition testimony 'upon proof being made to the satisfaction of the court that the witness was, at the time of the trial, dead, insane, too ill ever to be expected to attend the trial, or kept away by the connivance of the defendant.' 194 U.S., at 262, 24 S.Ct., at 652. ^[17]

Recent decisions have, in my view, fallen into error on two scores. As a matter of jurisprudence I think it unsound, for reasons I have often elaborated, see, e.g., my dissenting opinions in Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 20 L.Ed.2d 491 (1968), and Baldwin v. New York, 399 U.S. 117, 90 S.Ct. 1914, 26 L.Ed.2d 463, to incorporate as such the guarantees of the Bill of Rights into the Due Process Clause. While, in this particular instance, this would be of little practical consequence if the Court had confined the Sixth Amendment guarantee to an 'availability' requirement, some decisions have, unfortunately, failed to separate, even as a federal matter, restrictions on the abuse of hearsay testimony, part of the due process right of a reliable and trustworthy conviction, and the right to confront an available witness. See n. 20, infra.

By incorporating into the Fourteenth Amendment its misinterpretation of the Sixth Amendment these decisions have in one blow created the present dilemma, that of bringing about a potential for a constitutional rule of hearsay for both state and federal courts. However illadvised would be the constitutionalization of hearsay rules in federal courts, the undesirability of imposing those brittle rules on the States is manifest. Given the ambulatory fortunes of the hearsay doctrine, evidenced by the disagreement among scholars over the value of excluding hearsay and the trend toward liberalization of the exceptions, ^[18] it would be most unfortunate for this Court to limit the flexibility of the States and choke experimentation in this evolving area of the law. Cf. Baldwin v. New York, supra. ^[19] I adhere to what I consider to be the sound view expressed in Stein v. New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522 (1953): 'The hearsay-evidence rule, with all its subtleties, anomalies and ramifications, (should) not be read into the Fourteenth Amendment.'

What I would hold binding on the States as a matter of due process is what I also deem the correct meaning of the Sixth Amendment's Confrontation Clause-that a State may not in a criminal case use hearsay when the declarant is available. See West v. Louisiana, supra. ^[20] There is no reason in fairness why a State should not, as long as it retains a traditional adversarial trial, produce a witness and afford the accused an opportunity to cross-examine him when he can be made available. That this principle is an essential element of fairness is attested to not only by precedent, Motes v. United States, supra; Barber v. Page, supra; Smith v. Illinois, supra, but also by the traditional and present exceptions to the hearsay rule which recognize greater flexibility for receiving evidence when the witness is not available. Furthermore it accommodates the interest of the State in making a case, yet recognizes the obligation to accord the accused the fullest opportunity to present his best defense. ^[21] For those rare cases where a conviction occurs after a trial where no credible evidence could be said to justify the result, there remains the broader due process requirement that a conviction cannot be founded on no evidence. See n. 20, supra.

Putting aside for the moment the 'due process' aspect of this case, see n. 20, supra, it follows, in my view, that there is no 'confrontation' reason why the prosecution should not use a witness' prior inconsistent statement for the truth of the matters therein asserted. Here the prosecution has produced its witness, Porter, and made him available for trial confrontation. That, in my judgment, perforce satisfies the Sixth Amendment. Indeed, notwithstanding the conventional characterization of an available witness' prior out-of-court statements as hearsay when offered affirmatively for the truth of the matters asserted, see Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 336, 38 L.Ed. 170 (1894); Southern R. Co. v. Gray, 241 U.S. 333, 337, 36 S.Ct. 558, 560, 60 L.Ed. 1030 (1916); Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), this is hearsay only in a technical sense since the witness may be examined at the trial as to the circumstances of memory, opportunity to observe, meaning, and veracity. See Comment, Model Code of Evidence, supra, n. 18. I think it fair to say that the fact that the jury has no opportunity to reconstruct a witness' demeanor at the time of his declaration, and the absence of oath are minor considerations.

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 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, for reasons stated in Part II, I think confrontation is nonetheless satisfied. ^[22]

I turn finally to the question of whether this conviction stands on such unreliable evidence that reversal is required. Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). I cannot conclude that the preliminary hearing testimony was obtained under circumstances, as such, so unreliable that its admission requires reversal as a matter of due process, even though it was crucial to the central issue in the case. Compare Stovall v. Denno, supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The statement given to Officer Wade does, however, raise such a possibility. I accordingly would remand the case to the California Supreme Court for consideration of that question and, whether or not it deems the second statement too unreliable to have been admitted, to decide whether this conviction should be reversed under California law for want of sufficient evidence to sustain a conviction beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Mr. Justice BRENNAN, dissenting.

Notes

1. The Court declines to consider the admissibility of Porter's out-of-court declaration to Officer Wade and remands for a determination as to whether it was properly admissible under California law. I consider this in Part IV, infra.
2. While this broad problem that lies beneath the surface of today's case would, in my view, have been more appropriately considered in a more conventional hearsay setting, where the maker of extrajudicial statement is not present at trial, it has been briefed and argued by both sides, and I reach it now, notwithstanding the pendency of No. 21, Dutton v. Evans, on our docket. Dutton was argued before us on reargument Oct. 15, 1969, and on Apr. 27, 1970, was set for reargument. 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682. The case will be heard at the next Term.
3. The easy assumption that confrontation is the right to exclude hearsay also appears in cases involving state criminal prosecutions where this Court, as a matter of due process, declined to hold applicable to the States the Sixth Amendment's right to confrontation. See, e.g., Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953); but see West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904).
4. This is not merely a case of prior decisions that may have been incorrectly decided or rationalized. The unworkability of constitutionalizing any aspect of the conventional hearsay rule means what is at stake is the future of sound constitutional development in this area. Cf. Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965), where we noted the mischief of 'perpetuation of an unworkable rule.' Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Boys Markets v. Retail Clerk's Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); my dissenting opinion in Baldwin v. New York, 399 U.S. 117, 90 S.Ct. 1914, 26 L.Ed.2d 463 (1970), and my separate opinion in Welsh v. United States, 398 U.S. 333, 344 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970), and my dissenting opinion in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969).
5. The Georgia Constitution of 1877 lends some support for this restricted reading of confrontation. See Art. I, § 1, 5, which provided that the accused 'shall be confronted with the witnesses testifying against him * * *.' (Emphasis added.) The natural reading of the provision, phrased as it is, would be to restrict the guarantee to individuals who are appearing in court.
6. Massachusetts, New Hampshire, North Carolina, Maryland, and Virginia all included in their early constitutions a confrontation provision. See F. Heller, The Sixth Amendment 22-24 (1951). The documents are reprinted in F. Thorpe, The Federal and State Constitutions passim (1909). Wigmore has collected the state provisions. 5 J. Wigmore, Evidence § 1397, at 127-130 (3d ed. 1940).
7. See 1 J. Elliot's Debates 328, 334 (1876).
8. See 1 Annals of Cong. (1789-1790). Thus, my own research satisfies me that the prevailing view-that the usual primary sources and digests of the early debates contain no informative material on the confrontation right-is correct. Note, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434, 1436 n. 10 (1966); Note, Preserving the Right to Confrontation-A New Approach to Hearsay Evidence in Criminal Trials, 113 U.Pa.L.Rev. 741, 742 (1965); Note, Confrontation, Cross-Examination, And the Right to Prepare a Defense, 56 Geo.L.J. 939, 953 (1968). For a review of the history of confrontation at English common law see Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J.Pub.L. 381 (1959).
9. See H. Stephen, 'The Trial of Sir Walter Raleigh,' Transactions of the Royal Historical Society 172, 184 (4th ser. Vol. 2, 1919). In discussing Raleigh's trial Stephen notes, 'The modern reader of Raleigh's trial is struck by the fact that he had no assistance from counsel. He likewise would not have been allowed to call witnesses had he wished to do so. * * * (The accused was) defended by the argument that the case against (him) had to be completely proved. If this was done no witnesses or counsel on the other side need be attended to; if it was not done none were needed.' See also Heller, supra, n. 6, at 106-107, and the remarks of Governor Randolph at the Virginia ratification convention reported at 3 J. Elliot's Debates 467 (1876).
10. Hadley, The Reform of Criminal Procedure, 10 Proceedings of the Academy of Political Science 396, 400-401 (1923). Hadley's brief remarks would seem to indicate that the abuse that provoked concern was the use of affidavit and deposition testimony.
11. The only support offered for this reading is the assertion that the Framers were concerned to prevent the abuses that occurred at the infamous treason trial of Sir Walter Raleigh. The abuses there, however, went far beyond a conviction based on hearsay. As one commentator has noted, the reams of deposition testimony given by Raleigh's alleged accomplice, who turned State's evidence, contained only innuendo and no credible assertion of substance sufficient to support a verdict. See Stephen, 'The Trial of Sir Walter Raleigh,' supra, n. 9. In this light, the Sixth Amendment guarantee might well be read as establishing a basic presumption of producing witnesses without dignifying every hearsay ruling with constitutional significance.
12. Heller, supra, n. 6, at 105, citing H. Rottschaefer, Handbook of American Constitutional Law 796 (1939). This view is open to question. Wigmore, for one, takes the position that several exceptions to the hearsay rule existed as of the time the Sixth Amendment was adopted. 5 Wigmore, Evidence § 1397, at 130.
13. The basis of Wigmore's assertion is that the only right to confrontation known at common law was that enshrined in the hearsay rule. He concludes that in view of the seemingly absolute prohibition on the use of hearsay declarations, it is impossible to apply literally to the Confrontation Clause and that the Framers intended confrontation to mean common-law hearsay principles. See 5 Wigmore, Evidence § 1397, at 130-131.
14. The early decisions and recent cases are replete with dicta to the effect that confrontation is equivalent to cross-examination. Instead of treating cases like Brookhart v. Janis, supra; Pointer v. Texas, supra; and Douglas v. Alabama, supra; as denials of 'due process,' see infra, the Court has employed sweeping language, and said, for example, 'a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.' Pointer v. Texas, 380 U.S., at 406-407, 85 S.Ct., at 1069. This kind of broad language, tending to equate confrontation and cross-examination, and the holding in Bruton have conjured the spectre of the constitutionalization of the hearsay rule that the dissent is apparently willing to treat with.
15. Only Kirby did not, strictly speaking, involve the use of deposition testimony. In Kirby's case the Government sought to introduce a judgment of conviction obtained against three perpetrators of a theft in order to prove that property found in Kirby's possession was, in fact, stolen. In Reynolds the Court held that an accused cannot complain about the introduction of prior recorded testimony when the witness' absence is procured by the defense. In Mattox the Court, analogizing to the exception to the hearsay rule for dying declarations, held admissible prior recorded testimony taken under oath and subjected to cross-examination where the witness had died since the first trial. In Motes the Court declined to countenance testimony taken subject to cross-examination where it appeared the Government might have produced the witness.
16. Interestingly in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), the Court, speaking through the same Justice who wrote Kirby, in holding that it was error to permit a surgeon to testify that he had examined the body of the alleged victim of the charged homicide when the surgeon's knowledge as to the identity of the deceased came from a third party, relied only on hearsay principles and made no allusion to the Confrontation Clause.
17. That the critical element is availability cannot be doubted. The West opinion does not emphasize the opportunity to cross-examine at the time of taking the depositions, and, as already remarked, that would appear to be of secondary concern given the recognition in Mattox of the dying declaration exception. West, moreover, perforce stands for the proposition that confrontation is indifferent to any limitations on the nature of cross-examination at a preliminary hearing that underlie the dissent in this case.
18. While the importance of the right to cross-examine is not to be minimized, see 5 Wigmore, supra, § 1367, the desirability of excluding otherwise relevant evidence simply because it has not been tested by cross-examination has been frequently questioned. See generally C. McCormick, Evidence §§ 224, 302-305, at 459, 628 634 (1954); ALI Model Code of Evidence Rules 502, 503, and Comment, at 231-232 (1942); Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, Rule 8-03, at 173 (1969); Uniform Rules of Evidence, Rule 63 (liberalized exceptions). See also James, The Role of Hearsay in a Rational Scheme of Evidence, 34 Ill.L.Rev. 788 (1940); Chadbourn, Bentham and The Hearsay Rule-A Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence, 75 Harv.L.Rev. 932, 942-951 (1962) (Uniform Rules too restricted); McCormick, Hearsay, 10 Rutgers L.Rev. 620, 630 (1956) (commenting on Uniform Rules); cf. Quick, Evidence, 6 Wayne L.Rev. 163, 168 (1959) (apparently critical of the trend toward admissibility). Judges, too, have disagreed on the desirability of excluding hearsay, compare Chief Justice Marshall's view set forth in Queen v. Hepburn, 7 Cranch 290, 3 L.Ed. 348 (1813), and that of Justice Story in Ellicott v. Pearl, 10 Pet. 412, 436, 9 L.Ed. 475 (1836), with that of Judge Learned Hand set forth in his lecture to the Association of the Bar of the City of New York, The Deficiencies of Trials to Reach the Heart of the Matter, 3 Lectures on Legal Topics, 1921-1922, p. 89 (1926).
19. See Report of the New Jersey Supreme Court Committee on Evidence (1963). The potential for suffocating creative thinking is suggested by the commentary on the Uniform Rules of Evidence by the California Law Revision Commission. Prior to Pointer in 1962 the commission noted that despite the federal rule, it was free, consistent with due process, to consider and adopt Uniform Rule 63(3) (b)(ii), providing for use of testimony from a former trial when there was an identity of issues and reason to believe there would have been adequate cross-examination and the declarant is unavailable. The commission recommended adoption of Rule 63(3)(b)(ii). See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (1962), in 4 California Law Revision Commission: Reports, Recommendations and Studies 454-457 (1963). The provision was omitted from the new evidence code with a comment that a defendant in a criminal prosecution should not be made to rely on another individual's cross-examination. Evidence Code with Official Comments 1250 (California Law Revision Commission 1965). While this Court's decision in Pointer was apparently not responsible for the decision to omit this provision, since the final commission report was submitted in January 1965, prior to Pointer, it is clear that were hearsay constitutionalized, California could not even have considered this innovation.
20. This is not to say that the right to cross-examination is not an element of due process. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Due process does not permit a conviction based on no evidence, Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927), or on evidence so unreliable and untrustworthy that it may be said that the accused had been tried by a kangaroo court. Cf. In re Oliver, supra; Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).
21. Cf. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).
22. The lengths to which the prosecution must go to produce a witness before it may offer evidence of an extra-judicial declaration is a question of reasonableness. Barber v. Page, supra; cf. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). A good-faith effort is, of course, necessary, and added expense or inconvenience is no excuse. It should also be open to the accused to request a continuance if the unavailability is only temporary. Cf. Peterson v. United States, 344 F.2d 419, 425 (C.A.5th Cir. 1965).