Dutton v. Evans

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 *94 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 (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 *95 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 1 w 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 rulé requiring production of available witnesses would significantly curtail development of the law of *96 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 (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 *97 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 (1911), held that the Confrontation Clause did not prohibit the introduction of “[documentary evidence to establish collateral facts, *98 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 (1966), and Smith v. Illinois, 390 U. S. 129 (1968), involved restrictions on the right to cross-examination or the wholesale denial of that right. Douglas v. Alabama, 380 U. S. 415 (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, Kelyng 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 (1968).

The remaining confrontation case of significance is Kirby v. United States, 174 U. S. 47 (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 wa« 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 *99 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 á constitutional matter, that the trial judge exercise residual discretion to exclude the evidence as unduly in *100 flammatory. 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.

See California v. Green, supra, at 179 . (concurring opinion): historically, “the Confrontation Clause was meant to' constitutionalize a barrier against flagrant abuses, trial by anonymous accusers, and absentee witnesses.”

See id., at 175-179 , especially 176 n. 8 (concurring opinion).

Although the fact is not necessary to my conclusion, I note that counsel for Evans conceded at oral argüment that he could have secured Williams’ presence to testify, but decided against it. Tr. of Oral Arg. 51, 55.

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.

Reynolds v. United, States, 98 U. S. 145 (1879); Mattox v. United States, 156 U. S. 237 (1895); Motes v. United States, 178 U. S. 458 (1900); West v. Louisiana, 194 U. S. 258 (1904); Pointer v. Texas, 380 U. S. 400 (1965); Barber v. Page, 390 U. S. 719 (1968); California v. Green, 399 U. S. 149 (1970).

Quite apart from Malloy v. Hogan, 378 U. S. 1 (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).