Dutton v. Evans/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

400 U.S. 74

Dutton  v.  Evans

 Argued: Oct. 15, 1969. --- Decided: Oct 15, 1970

Mr. Justice HARLAN, concurring in the result.

Not surprisingly the difficult constitutional issue presented by this case has produced multiple opinions. Mr. Justice STEWART finds Shaw's testimony admissible because it is 'wholly unreal' to suggest that cross-examination would have weakened the effect of Williams' statement on the jury's mind. Mr. Justice BLACKMUN, while concurring in this view, finds admission of the statement to be harmless, seemingly because he deems Shaw's testimony so obviously fabricated that no normal jury would have given it credence. Mr. Justice MARSHALL answers both suggestions to my satisfaction, but he then adopts a position that I cannot accept. He apparently would prevent the prosecution from introducing any out-of-court statement of an accomplice unless there is an opportunity for cross-examination, and this regardless of the circumstances in which the statement was made and regardless of whether it is even hearsay.

The difficulty of this case arises from the assumption that the core purpose of the Confrontation Clause of the Sixth Amendment is to prevent overly broad exceptions to the hearsay rule. I believe this assumption to be wrong. Contrary to things as they appeared to me last Term when I wrote in California v. Green, 399 U.S. 149, 172, 90 S.Ct. 1930, 1942, 26 L.Ed.2d 489 (1970), I have since become convinced that Wigmore states the correct view when he says:

'The Constitution does not prescribe what kinds of testimonial statements (dying declarations, or the like) shall be given infra-judicially,-this depends on the law of Evidence for the time being,-but only what mode of procedure shall be followed-i.e. a cross-examining procedure-in the case of such testimony as is required by the ordinary law of Evidence to be given infra-judicially.' 5 J.Wigmore, Evidence § 1397, at 131 (3d ed. 1940) (footnote omitted).

The conversion of 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 unnatural shift, for the paradigmatic evil the Confrontation Clause was aimed at-trial by affidavit ^[1]-can be viewed almost equally well as a gross violation of the rule against hearsay and as the giving of evidence by the affiant out of the presence of the accused and not subject to cross-examination by him. But however natural the shift may be, once made it carries the seeds of great mischief for enlightened development in the law of evidence.

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

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

A rule requiring production of available witnesses would significantly curtail development of the law of evidence to eliminate the necessity for production of declarants where production would be unduly inconvenient and of small utility to a defendant. Examples which come to mind are the Business Records Act, 28 U.S.C. §§ 1732-1733, and the exceptions to the hearsay rule for official statements, learned treatises, and trade reports. See, e.g., Uniform Rules of Evidence 63(15), 63(30), 63(31); Gilstrap v. United States, 389 F.2d 6 (CA5 1968) (business records); Kay v. United States, 255 F.2d 476 (CA4 1958) (laboratory analysis). If the hearsay exception involved in a given case is such as to commend itself to reasonable men, production of the declarant is likely to be difficult, unavailing, or pointless. In unusual cases, of which the case at hand may be an example, the Sixth Amendment guarantees federal defendants the right of compulsory process to obtain the presence of witnesses, and in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), this Court held that the Fourteenth Amendment extends the same protection to state defendants. ^[3]

Regardless of the interpretation one puts on the words of the Confrontation Clause, the clause is simply not well designed for taking into account the numerous factors that must be weighed in passing on the appropriateness of rules of evidence. The failure of Mr. Justice STEWART's opinion to explain the standard by which it tests Shaw's statement, or how this standard can be squared with the seemingly absolute command of the clause, bears witness to the fact that the clause is being set a task for which it is not suited. The task is far more appropriately performed under the aegis of the Fifth and Fourteenth Amendments' commands that federal and state trials, respectively, must be conducted in accordance with due process of law. It is by this standard that I would test federal and state rules of evidence. ^[4]

It must be recognized that not everything which has been said in this Court's cases is consistent with this position. However, this approach is not necessarily inconsistent with the results that have been reached. Of the major 'confrontation' decisions of this Court, seven involved the use of 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 'confrontation' to satisfy the requirement of the clause. Regardless of the correctness of the results, the holding that the clause was applicable in those situations is consistent with the view of the clause I have taken.

Passing on to the other principal cases, Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911), held that the Confrontation Clause did not prohibit the introduction of '(d)ocumentary evidence to establish collateral facts, admissible under the common law.' While this was characterized as an exception to the clause, rather than a problem to which the clause did not speak, the result would seem correct. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), and Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), involved restrictions on the right to cross-examination or the wholesale denial of that right. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), is perhaps most easily dealt with by viewing it as a case of prosecutorial misconduct. Alternatively, I would be prepared to hold as a matter of due process that a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of the guilt of an accused, absent some circumstance indicating authorization or adoption. The exclusion of such evidence dates at least from Tong's Case, Kelying 17, 18-19, 84 Eng.Rep. 1061, 1062 (K.B.1663), and is universally accepted. This theory would be adequate to account for the results of both Douglas and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The remaining confrontation case of significance is Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899). In that case a record of conviction of three men for theft was introduced at Kirby's trial. The judge instructed the jury that this judgment was prima facie evidence that the goods which Kirby was accused of receiving from the three men were in fact stolen. This Court reversed, holding that since the judgment was the sole evidence of the fact of theft, Kirby had been denied his right of confrontation. In my view this is not a confrontation case at all, but a matter of the substantive law of judgments. Accord, 4 Wigmore, supra, § 1079, at 133. Indeed, the Kirby Court indicated that lack of confrontation was not at the heart of its objection when it said that the record would have been competent evidence of the fact of conviction. The correctness of the result in Kirby can hardly be doubted, but it was, I think, based on the wrong legal theory.

Judging the Georgia statute here challenged by the standards of due process, I conclude that it must be sustained. Accomplishment of the main object of a conspiracy will seldom terminate the community of interest of the conspirators. Declarations against that interest evince some likelihood of trustworthiness. The jury, with the guidance of defense counsel, should be alert to the obvious dangers of crediting such testimony. As a practical matter, unless the out-of-court declaration can be proved by hearsay evidence, the facts it reveals are likely to remain hidden from the jury by the declarant's invocation of the privilege against self-incrimination. ^[6] In light of such considerations, a person weighing the necessity for hearsay evidence of the type here involved against the danger that a jury will give it undue credit might reasonably conclude that admission of the evidence would increase the likelihood of just determinations of truth. Appellee has not suggested that Shaw's testimony possessed any peculiar characteristic that would lessen the force of these general considerations and require, as a constitutional matter, that the trial judge exercise residual discretion to exclude the evidence as unduly inflammatory. Exclusion of such statements, as is done in the federal courts, commends itself to me, but I cannot say that it is essential to a fair trial. The Due Process Clause requires no more.

On the premises discussed in this opinion, I concur in the reversal of the judgment below.

Mr. Justice MARSHALL, whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join, dissenting.

Appellee Evans was convicted of first-degree murder after a trial in which a witness named Shaw was allowed to testify, over counsel's strenuous objection, about a statement he claimed was made to him by Williams, an alleged accomplice who had already been convicted in a separate trial. ^[7] According to Shaw, the statement, which implicated both Williams and Evans in the crime, was made in a prison conversation immediately after Williams' arraignment. Williams did not testify nor was he called as a witness. Nevertheless, the Court today concludes that admission of the extrajudicial statement attributed to an alleged partner in crime did not deny Evans the right 'to be confronted with the witnesses against him' guaranteed by the Sixth and Fourteenth Amendments to the Constitution. In so doing, the majority reaches a result completely inconsistent with recent opinions of this Court, especially Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In my view, those cases fully apply here and establish a clear violation of Evans' constitutional rights.

In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), this Court first held that 'the Sixth Amendment's right of an accused to confront the witnesses against him is * * * a fundamental right and is made obligatory on the States by the Fourteenth Amendment.' Id., at 403, 85 S.Ct., at 1067. That decision held constitutionally inadmissible a statement offered against a defendant at a state trial where the statement was originally made at a preliminary hearing under circumstances not affording the defendant an adequate opportunity for cross-examination. Indeed, we have since held that even cross-examination at a prior hearing does not satisfy the confrontation requirement, at least where the witness who made the statement is available to be called at trial. Barder v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). 'The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.' Id., at 725, 88 S.Ct., at 1322.

In Douglas v. Alabama, supra, this Court applied the principles of Pointer to a case strikingly similar to this one. There, as here, the State charged two defendants with a crime and tried them in separate trials. There, as here, the State first prosecuted one defendant (Loyd) and then used a statement by him in the trial of the second defendant (Douglas). Although the State called Loyd as a witness, an appeal from his conviction was pending and he refused to testify on the ground that doing so would violate his Fifth Amendment privilege against self-incrimination.

Without reaching the question whether the privilege was properly invoked, ^[8] the Court held that the prosecutor's reading of Loyd's statement in a purported attempt to refresh his memory denied Douglas' right to confrontation. 'Loyd could not be cross-examined on a statement imputed to but not admitted by him.' 380 U.S., at 419, 85 S.Ct., at 1077. Of course, Douglas was provided the opportunity to cross-examine the officers who testified regarding Loyd's statement. 'But since their evidence tended to show only that Loyd made the confession, cross-examination of them * * * could not substitute for cross-examination of Loyd to test the truth of the statement itself.' ^[9] Id., at 420, 85 S.Ct., at 1077. Surely, the same reasoning compels the exclusion of Shaw's testimony here. Indeed, the only significant difference between Douglas and this case, insofar as the denial of the opportunity to cross-examine is concerned, is that here the State did not even attempt to call Williams to testify in Evans' trial. He was plainly available to the State, and for all we know he would have willingly testified, at least with regard to his alleged conversation with Shaw. ^[10]

Finally, we have applied the reasoning of Douglas to hold that 'despite instructions to the jury to disregard the implicating statements in determining the codefendant's guilt or innocence, admission at a joint trial of a defendant's extrajudicial confession implicating a codefendant violated the codefendant's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.' Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), giving retroactive effect in both state and federal trials to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Thus Williams' alleged statement, an extrajudicial admission made to a fellow prisoner, could not even have been introduced against Williams if he had been tried in a joint trial with Evans.

The teaching of this line of cases seems clear: Absent the opportunity for cross-examination, testimony about the incriminating and implicating statement allegedly made by Williams was constitutionally inadmissible in the trial of Evans.

Mr. Justice STEWART's opinion for reversal characterizes as 'wholly unreal' the possibility that cross-examination of Williams himself would change the picture presented by Shaw's account. A trial lawyer might well doubt, as an article of the skeptical faith of that profession, such a categorical prophecy about the likely results of careful cross-examination. Indeed, the facts of this case clearly demonstrate the necessity for fuller factual development which the corrective test of cross-examination makes possible. The plurality for reversal pigeonholes the out-of-court statement that was admitted in evidence as a 'spontaneous' utterance, hence to be believed. As the Court of Appeals concluded, however, there is great doubt that Williams even made the statement attributed to him. ^[11] Moreover, there remains the further question what if anything, Williams might have meant by the remark that Shaw recounted. Mr. Justice STEWART's opinion concedes that the remark is ambiguous. Plainly it stands as an accusation of some sort: 'If it hadn't been for * * * Evans,' said Williams, according to Shaw, 'we wouldn't be in this now.' At his trial Evans himself gave unsworn testimony to the effect that the murder prosecution might have arisen from enmities that Evans' own law enforcement activities had stirred up in the locality. Did Williams' accusation relate to Evans as a man with powerful and unscrupulous enemies, or Evans as a murderer? Mr. Justice STEWART's opinion opts for the latter interpretation, for it concludes that Williams' remark was 'against his penal interest' and hence to be believed. But at this great distance from events, no one can be certain. The point is that absent cross-examination of Williams himself, the jury was left with only the unelucidated, apparently damning, and patently damaging accusation as told by Shaw.

Thus we have a case with all the unanswered questions 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-examined, Evans' counsel could have fully explored these and other matters. The jury then could have evaluated the statement in the light of Williams' testimony and demeanor. As it was, however, the State was able to use Shaw to present the damaging evidence and thus to avoid confronting Evans with the person who allegedly gave witness against him. I had thought that this was precisely what the Confrontation Clause as applied to the States in Pointer and our other cases prevented.

Although Mr. Justice STEWART's opinion for reversal concludes that there was no violation of Evans' right of confrontation, it does so in the complete absence of authority of reasoning to explain that result. For example, such facts as that Williams' alleged statement was not made during official interrogation, was not in transcript form, and was not introduced in a joint trial-though they differentiate some of the cases-are surely irrelevant. Other cases have presented each of these factors, ^[12] and no reason is offered why the right of confrontation could be so limited.

Nor can it be enough that the statement was admitted in evidence 'under a long-established and well-recognized rule of state law.' Mr. Justice STEWART's opinion surely does not mean that a defendant's constitutional right of confrontation must give way to a state evidentiary rule. That much is established by our decision in Barber v. Page, supra, which held unconstitutional the admission of testimony in accordance with a rule similarly well recognized and long established. However, the plurality for reversal neither succeeds in distinguishing that case nor considers generally that there are inevitably conflicts between Pointer and state evidentiary rules. Rather, it attempts to buttress its conclusion merely by announcing a reluctance to equate evidentiary hearsay rules and the Confrontation Clause. ^[13]

The Court of Appeals, however, was not of the view that the Confrontation Clause implies unrelenting hostility to whatever evidence may be classified as hearsay. 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 this case does not in reality even involve the traditional hearsay rule and its so-called coconspirators exception, ^[14] that was not the basis for its decision. Rather, the Court of Appeals found in the admission of an incriminatory and inculpating statement attributed to an alleged accomplice who was not made available for cross-examination what it termed an obvious abridgment of Evans' right of confrontation. Since the State presented no satisfactory justification for the denial of confrontation, cf. Pointer v. Texas, 380 U.S., at 407, 85 S.Ct., at 1069, the Court of Appeals held that under Douglas v. Alabama and this Court's other cases Evans was denied his constitutional rights.

Surely the Constitution requires at least that much when the State denies a defendant the right to confront and cross-examine the witnesses against him in a criminal trial. In any case, that Shaw's testimony was admitted in accordance with an established rule of state law cannot aid my Brethren in reaching their conclusion. Carried to its logical end, justification of a denial of the right of confrontation on that basis would provide for the wholesale avoidance of this Court's decisions in Douglas and Bruton, ^[15] decisions which Mr. Justice STEWART's opinion itself reaffirms. Indeed, if that opinion meant what it says, it would come very close to establishing in reverse the very equation it seeks to avoid-an equation that would give any exception to a state hearsay rule a 'permanent niche in the Constitution' in the form of an exception to the Confrontation Clause as well.

Finally, the plurality for reversal apparently distinguishes the present case on the gound that it 'does not involve evidence in any sense 'crucial' or 'devastating." Despite the characterization of Shaw's testimony as 'of peripheral significance at most,' however, the possibility of its prejudice to Evans was very real. The outcome of Evans' trial rested, in essence, on whether the jury would believe the testimony of Truett with regard to Evans' role in the murder. Truett spoke as an admitted accomplice who had been immunized from prosecution. Relying on Georgia law, not federal constitutional law, the trial judge instructed the jury that 'you cannot lawfully convict upon the testimony of an accomplice alone. * * * (T)he testimony of an accomplice must be corroborated. * * * (T)he corroboration * * * must be such as to connect the defendant with the criminal act.' The State presented the testimony of a number of other witnesses, in addition to that of the alleged accomplice that tended to corroborate Evans' guilt. But Shaw's account of what Williams supposedly said to him was undoubtedly a part of that corroborating evidence. ^[16]

Indeed, Mr. Justice STEWART's opinion does not itself upset the Court of Appeals' finding that the admission of Shaw's testimony, if erroneous, could not be considered harmless. Beyond and apart from the question of harmless error, Mr. Justice STEWART undertakes an inquiry, the purpose of which I do not understand, into whether the evidence admitted is 'crucial' or 'devastating.' The view is, apparently, that to require the exclusion of evidence falling short of that high standard of prejudice would bring a moment of clamor against the Bill of Rights. I would eschew such worries and confine the inquiry to the traditional questions: Was the defendant afforded the right to confront the witnesses against him? And, if not, was the denial of his constitutional right harmless beyond a reasonable doubt?

The fact is that Evans may well have been convicted in part by an incriminatory and implicating statement attributed to an alleged accomplice who did not testify and who consequently could not be questioned regarding the truth or meaning of that statement. The Court of Appeals correctly recognized that the Confrontation Clause prohibits such a result, whether the statement is introduced under the guise of refreshing a witness' recollection as in Douglas v. Alabama, against a codefendant with a limiting instruction as in Bruton v. United States, or in accordance with some other evidentiary rule as here.

I am troubled by the fact that the plurality for reversal, unable when all is said to place this case beyond the principled reach of our prior decisions, shifts its ground and begins a hunt for whatever 'indicia of reliability' may cling to Williams' remark, as told by Shaw. Whether Williams made a 'spontaneous' statement 'against his penal interest' is the very question that should have been tested by cross-examination of Williams himself. If 'indicia of reliability' are so easy to come by, and prove so much, then it is only reasonable to ask whether the Confrontation Clause has any independent vitality at all in protecting a criminal defendant against the use of extrajudicial statements not subject to cross-examination and not exposed to a jury assessment of the declarant's demeanor at trial. ^[17] I believe the Confrontation Clause has been sunk if any out-of-court statement bearing an indicium of a probative likelihood can come in, no matter how damaging the statement may be or how great the need for the truth-discovering test of cross-examination. Cf. California v. Green, 399 U.S. 149, 161-162, 90 S.Ct. 1930, 1936 1937, 26 L.Ed.2d 489 (1970). Our decisions from Pointer and Douglas to Bruton and Roberts require more that this meager inquiry. Nor is the lame 'indicia' approach necessary to avoid a rampaging Confrontation Clause that tramples all flexibility and innovation in a state's law of evidence. That specter is only a specter. ^[18] To decide this case I need not go beyond hitherto settled Sixth and Fourteenth Amendment law to consider generally what effect, if any, the Confrontation Clause has on the common-law hearsay rule and its exceptions, since no issue of such global dimension is presented. Cf. Bruton v. United States, 391 U.S., at 128 n. 3, 88 S.Ct., at 1623. The 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 statement falls within a genuine exception to the hearsay rule.

In my view, Evans is entitled to a trial in which he is fully accorded his constitutional guarantee of the right to confront and cross-examine all the witnesses against him. I would affirm the judgment of the Court of Appeals and let this case go back to the Georgia courts to be tried without the use of this out-of-court statement attributed by Shaw to Williams.

Notes

1. See California v. Green, supra, at 179, 90 S.Ct. at 1946 (concurring opinion): historically, 'the Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trial by anonymous accusers, and absentee witnesses.'
2. See id., 399 U.S. at 175-179, especially 176 n. 8, 90 S.Ct. at 1943-1946, especially 1944 n. 8 (concurring opinion).
3. Although the fact is not necessary to my conclusion, I note that counsel for Evans conceded at oral argument that he could have secured Williams' presence to testify, but decided against it. Tr. of Oral Arg. 51, 55.
4. Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to constitutional scrutiny in civil and criminal trials alike. It is exceedingly rare for the common law to make admissibility of evidence turn on whether the proceeding is civil or criminal in nature. See 1 Wigmore, supra, § 4, at 16-17. This feature of our jurisprudence is a further indication that the Confrontation Clause, which applies only to criminal prosecutions, was never intended as a constitutional standard for testing rules of evidence.
5. 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); West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
6. Quite apart from Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), Georgia has long recognized the privilege. The Georgia Constitution of 1877, Art. I, § 1, VI, provided that: 'No person shall be compelled to give testimony tending in any manner to criminate himself,' and the same language appears in the present state constitution. Ga.Const. of 1945, Art. I, § 1, VI. The right had previously been recognized as a matter of common law, even in civil trials. See, e.g., Marshall v. Riley, 7 Ga. 367 (1849).
7. Shaw had been a witness at Williams' trial; his testimony was fully anticipated and was objected to both before and after its admission.
8. This same question-which presents a fundamental conflict between a defendant's Sixth Amendment rights and a witness' Fifth Amendment privilege-might have been present here had the State called Williams to testify. Under a view that would make availability of a declarant the only concern of confrontation, see California v. Green, 399 U.S. 149, 172-189, 90 S.Ct. 1930, 1942 1951, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring), the State's right or duty to compel a codefendant's testimony, by timing of trials and use of testimonial immunity, would seemingly have to be decided. See Comment, Exercise of the Privilege Against Self-Incrimination by Witnesses and Codefendants: The Effect Upon the Accused, 33 U.Chi.L.Rev. 151, 165 (1965).
9. Cf. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966).
10. My Brother STEWART comments that Evans might have brought Williams to the courthouse by subpoena. Defense counsel did not do so, believing that Williams would stand on his right not to incriminate himself. Tr. of Oral Arg. 55. Be that as it may, it remains that the duty to confront a criminal defendant with the witnesses against him falls upon the State, and here the State was allowed to introduce damaging evidence without running the risks of trial confrontation. Cf. n. 2, supra.
11. After considering Shaw's testimony and other evidence submitted at the trial, the Court of Appeals concluded that Shaw's account of his conversation with Williams was notable for 'its basic incredibility.' 400 F.2d 826, 828 n. 4.
12. For example, Pointer involved only the second, and that one was not present in either Bruton or Roberts.
13. Constitutionalization of 'all common-law hearsay rules and their exceptions,' California v. Green, 399 U.S., at 174, 90 S.Ct., at 1943 (concurring opinion), would seem to be a prospect more frightening than real. Much of the complexity afflicting hearsay rules comes from the definition of hearsay as an out-of-court statement presented for the truth of the matter stated-a definition nowhere adopted by this Court for confrontation purposes. Rather, the decisions, while looking to availability of a declarant, Barber v. Page, supra, recognize that 'cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him,' Pointer v. Texas. 380 U.S., at 404, 85 S.Ct., at 1068, and that admission in the absence of cross-examination of certain types of suspect and highly damaging statements is one of the 'threats to a fair trial' against which 'the Confrontation Clause was directed,' Bruton v. United States, 391 U.S., at 136, 88 S.Ct., at 1628.
14. Evans was not charged with conspiracy nor could he have been under Georgia law. The 'conspiracy' element came in as part of the State's evidentiary law, part of which goes far beyond the traditional hearsay exception even as it exists with regard to the 'concealment phase' in some jurisdictions. Indeed, Williams' alleged statement itself negates the notion that Evans had authorized Williams to speak or had assumed the risk in order to achieve an unlawful aim through concert of effort. It is difficult to conceive how Williams could be part of a conspiracy to conceal the crime when all the alleged participants were in custody and he himself had already been arraigned. As this Court stated in Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946), an 'admission by one coconspirator after he has been apprehended is not in any sence a furtherance of the criminal enterprise. It is rather a frustration of it.' One lower court in Georgia has adopted essentially this reasoning in reversing a conviction where testimony similar to that objected to in this case was admitted. See Green v. State, 115 Ga.App. 685, 155 S.E.2d 655 (1967). But see n. 9, infra.
15. The Georgia rule involved here, which apparently makes admissible all pre-trial statements and admissions of an alleged accomplice or coconspirator, inevitably conflicts with this Court's decisions regarding the Confrontation Clause. See Darden v. State, 172 Ga. 590, 158 S.E. 414 (1931), and Mitchell v. State, 86 Ga.App. 292, 71 S.E.2d 756 (1952), where confessions of codefendants not on trial were held admissible. Indeed, the Georgia Supreme Court seems to have resolved this conflict in favor of the state rule by erroneously concluding that this Court's decisions are based on the federal hearsay rule concerning 'a confession by one of the co-conspirators after he has been apprehended.' Pinion v. State, 225 Ga. 36, 37, 165 S.E.2d 708, 709 710 (1969). See also Park v. State, 225 Ga. 618, 170 S.E.2d 687 (1969), petition for cert. filed, November 4, 1969, No. 57, O.T. 1970 (renumbered).
16. The trial judge's instructions left no doubt that the statement attributed to Williams could provide the necessary corroboration. See Trial Record 412-413. Indeed, the prejudicial impact of Shaw's testimony is graphically revealed simply by juxtaposing two quotations. First, there is characterization in Mr. Justice STEWART's opinion of Shaw's testimony, a characterization that I find fair albeit studiedly mild: '(T)he jury was being invited to infer that Williams had implicitly identified Evans as the perpetrator of the murder. * * *' (Emphasis added.) Second, there is the trial judge's charge on corroboration of accomplice testimony: 'Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of an accomplice to support a verdict.' (Emphasis added.) In the light of the charge and on consideration of the whole record of Evans' trial, it is impossible for me to believe 'beyond a reasonable doubt' that the error complained of did not contribute to the verdict obtained. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 251, 89 S.Ct. 1726, 1727, 23 L.Ed.2d 284 (1969).
17. Mr. Justice HARLAN answers this question with directness by adopting, to decide this case, his view of due process which apparently makes no distinction between civil and criminal trials, and which would prohibit only irrational or unreasonable evidentiary rulings. Needless to say, I cannot accept the view that Evans' constitutional rights should be measured by a standard concededly having nothing to do with the Confrontation Clause.
18. See n. 7, supra.