United States v. Irie E. Leonard, United States of America v. James L. Sarvis

BAZELON, Chief Judge

(concurring in part and dissenting in part):

Defendants Leonard and Sarvis were charged with having participated in a particularly brutal crime — the robbery, torture and murder of Benjamin Rudd. At the conclusion of their joint trial, the jury found both defendants guilty of armed robbery and second-degree burglary. Sarvis was acquitted of the murder counts; Leonard was convicted of first-degree murder. A third defendant, one Francis Salters, tried together with Leonard and Sarvis on all counts except that charging first-degree murder, was acquitted.

I join the Court’s decision to reverse the defendants’ convictions. I agree that the trial court erred in failing to instruct the jury to receive with caution the testimony of witnesses-to whom the Government had granted immunity, and in refusing to allow defense counsel to cross-examine an important Government witness concerning felony charges then pending against him. In addition, I concur , in the Court’s conclusion that, in the circumstances here, the trial court did not err in its several rulings on narcotics addiction impeachment. 1

On two points, however, I part company with the majority. First, I cannot agree with what I see as a misapplication of plain error and harmless error standards in the Court’s treatment of the accomplice instruction issue. I assume that, on retrial, the defense will request and the trial court will give the hybrid accomplice — immunity instruction suggested by the majority. 2 I deal, therefore, with the accomplice instruction issue, not because it promises to affect the retrial of these defendants, but because of the import of the plain error-harmless error dichotomy both to the proper exercise of our appellate function and to the definition of the trial court’s duty to further the fairness and accuracy of the guilt-determining process.

My second concern here is the complex of problems raised by the trial court’s repeated denial of defendant Sarvis’ motions to sever his trial from that of defendant Leonard, and of motions by both Leonard and Sarvis for the separate trial of their co-defendant Salters. The denial of these motions implicates not only the scope of the trial court’s discretion under Rule 14, 3 but also both the rules governing admission of hearsay evidence and constitutional rights of confrontation and, arguably, compulsory process. I have grave doubt that the majority has correctly applied to the situation here the body of doctrine re *974 vealed, however obscurely, in the Supreme Court’s Confrontation Clause cases. But even if I am wrong on this point, I think the majority mistaken in supposing, as it seems to do, that its Confrontation Clause discussion concludes the issues raised by these appellants under the rubric of severance. I had not conceived that a trial court’s actions under Rule 14, and in admitting evidence must rise to the dimension of constitutional errors before they may require reversal.

'Moreover, the majority’s analysis of the severance issues seems to rest in major part on the standard notion that joinder advances the efficiency of the criminal process. Whatever one may think of the proposition that procedural fairness in criminal trials may or should be sacrificed, even at the margin, to judicial efficiency, the notion that joinder does in fact promote efficiency is, I am convinced, at least questionable in the general run of cases and demonstrably wrong in the cases before us. As explained in Section II, infra, I would hold that the trial court here abused its discretion in refusing either to grant the defendants’ motions for severance or, in the alternative, to exclude from evidence the hearsay statements of co-defendants Leonard and Salters.

I.

A. In Section II-A of its opinion, the majority states that “it is better practice for a district court sua sponte to caution the jury concerning an accomplice’s testimony . . . .” 4 The majority further states that Hughes and Jones, critical witnesses against the appellants, “were obviously accomplices . .” 5 Nonetheless, it goes on to hold that the trial court’s failure to give, sua sponte, an accomplice instruction with respect to these witnesses’ testimony — testimony that the majority terms “highly incriminating” — was, as to both Leonard and Sarvis, not plainly erroneous. 6 In Section II-B, however, the majority holds that the trial court’s refusal to give a cautionary instruction concerning the testimony of these same witnesses, based on the fact that each had been granted immunity to elicit his testimony, is reversible error requiring a new trial.

The divergence between the majority’s reaction to the accomplice instruction issue and its reaction to the use-immunity instruction issue is not, of course, the product of the substance of the issues themselves. On the contrary, the two issues are, in many cases, two sides of the same coin, since use immunity will most often be granted, as it was here, to accomplices or co-conspirators. In such cases, both instructions are aimed at substantially the same problem: the “serious questions of credibility” raised by testimony of “informers, accessories, accomplices, false friends.” 7 Accomplices, whether testifying under a grant of use immunity or not, may have every reason to sanitize their own roles in the events at issue and to exaggerate the culpability of the persons being tried, in part perhaps to depict themselves as penitent and small fish, unworthy of the prosecutor’s attention, in part to win the prosecutor’s favor and, perhaps, to secure his tacit or overt agreement to forego their prosecution. 8 Moreover, since his version of events is consistent with the Government’s view of the case and often only the defendant can give it the lie, the testifying accomplice may reasonably suppose that he need little fear the consequences of perjury.

These grave dangers inherent in the testimony of accomplices do not render them incompetent as witnesses. Any such rule would, as a practical matter, *975 make many prosecutions impossible. Instead, in an effort to prevent these dangers from affecting the accuracy of the jury’s verdict, we rely on instructions to the jury segregating accomplices’ testimony from that of witnesses of “good character . . . whose testimony is generally and prima facie supposed to be correct;” 9 accomplices’ testimony, in contrast, “ought to be received with suspicion, and with the very greatest care and caution . . . .” 10

The majority recognizes the substantial identity between the accomplice and immunity instruction issues in this case in its statement that, on retrial, the two instructions should be merged into one. Its divergent treatment of the two issues rests, therefore, not on substance but on the fact that an immunity instruction was requested by defense counsel; an accomplice instruction was not. The Court’s analysis is premised on the harmless error-plain error distinction set forth in F.R.Crim.P. 52. If an objection has been made and erroneously overruled, then the error is reversible and requires a new trial, unless, under the harmless error rule, the reviewing court can say with some certainty that the error cannot have prejudiced the defendant. 11 If a rule of evidence or some other rule was violated but no objection was made, there was error; but the error does not require reversal unless it was “plain error” — unless, as the usual formulation runs, the error was so prejudicial that reversal is required to avoid “a manifest miscarriage of justice.” 12 Adhering to these principles in this case, the majority concludes that the testimony of Hughes and Jones was not so lacking in weight as to make failure to give an immunity instruction harmless; but at the same time, it does not deem this testimony so significant that failure to give an accomplice instruction was plain error.

I do not contend that the majority miscomprehends the standard principles of harmless and plain error, nor that these principles are inconsistent with the language of Rule 52. I do contend, however, that as usually construed and applied, Rule 52’s dichotomous standards blink the realities of the contemporary criminal justice system and tolerate an excessively great margin of error in criminal convictions.

The purpose of the dual standards of review is, as has often been said, to enforce the general requirement that defense counsel timely object to errors, thus affording the trial court an opportunity to avoid or correct them and preventing the costs, monetary and otherwise, occasioned by reversal. 13 The problem, of course, is that the prejudice caused a defendant by error does not somehow evaporate or diminish simply because his counsel has failed to object. If, for example, the premises of the accomplice instruction rule are correct— if it is true that without the instruction, the chances are significantly greater that the jury will give undue credence to accomplice testimony and therefore return what may be an erroneous verdict — then these dangers must exist in precisely equal measure whether defendant’s counsel has requested the instruction or not. In short, the defendant’s guilt may be decided, not alone by the facts and law of his case, but, in significant measure, by the errors and omissions of his counsel.

There may once have been some justification, although I think it was never strong, for compelling defendants to *976 bear the consequences of their counsel’s mistakes. But in a system in which the great majority of defendants are represented by counsel selected and funded, not by the defendants themselves, but through the courts, 14 this justification no longer exists. On the contrary, I think the harmless error-plain error distinction, as normally applied, is a classic example of a misdirected deterrent.

To a considerable extent perhaps, the unfairness of holding the defendant responsible for the omissions and inad-vertences of his counsel can be remedied by establishing standards of adequate assistance and enforcing the standards by reversal. 15 But such standards alone are not enough. There are too many cases, like this case, in which omissions of counsel are not so great as to justify a finding of incompetency under any meaningful standard, and yet are sufficiently significant to have affected the jury’s verdict. Nor can the problem be met by a greater willingness to find plain error when defendants have been represented by appointed counsel, rather than counsel of their own choice. 16 Given the “inescapable remoteness of appellate review,” 17 it is, in my view, impossible to estimate with any precision the quantum of prejudice suffered by a defendant, at least so long as this quantum is above the harmless error floor; in any event, our estimate cannot logically depend on whether, or how much, the defendant has paid for his counsel.

I do not mean to denigrate in any way the vital importance of the adversary system to the guilt-determining process. I am convinced, however, that the time has come formally to abandon the game theory of the criminal process — the notion, in Mr. Justice Brennan’s terms, that criminal trials are “sporting events” matching the wits of prosecution and defense, rather than quests for truth concerning the guilt of the accused. 18 Responsibility for the fairness of the process, for the reasonable accuracy of jury verdicts, rests, and should rest, not on the defense alone, but also on the trial court and, indeed, the Government. 19 I think the plain error rule should be invoked, not merely to avoid gross miscarriages of justice (assuming that we can recognize such occasions when we see them), but as a means of defining and, if need be, enforcing the district court’s independent duty to take steps necessary to advance the fairness and accuracy of the trials that take place before it.

In some measure, of course, this is already the rule’s province. It has almost universally been held that the trial court’s failure to instruct the jury as to all necessary elements of the charged offense is reversible error, despite failure of counsel to object. 20 So also this Court has held that “whenever evidence is admitted only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautioning instruction.” 21 Most recently, in United States v. Kinnard, I expressed my view that it is plain error for the trial court to fail to instruct the jury “to weigh *977 with extreme caution the testimony of an addict-informer . . . because of the possibility of the addict’s special interest and motive to fabricate.” 22

In this case, I would hold that it was plain error — error “affecting substantial rights” — for the trial court to fail to instruct the jury concerning the dangers of accomplice testimony. The factors that lead me to include the accomplice instruction within the independent duty of the trial court are the same as those present in McClain and Kinnard. First, it must remain the responsibility of defense counsel to establish the factual predicate making such an instruction appropriate. But once that factual predicate becomes'dear, whether through defense efforts or otherwise, “the judge is put on notice that an instruction on credibility should be submitted to counsel as part of the routine set of instructions which the trial court offers.” 23 Second, the appropriateness of an accomplice instruction, like that of the addict-informer instruction of Kinnard and the limited-purpose evidence instruction of McClain, does not generally relate to a defendant’s particular theory of a case, nor does it depend on any novel proposition of law. When accomplice testimony is presented, “the trial court should be aware,' without prompting of counsel, of the special dangers posed to the fairness of the trial,” 24 dangers that, as noted above, have long been recognized. If, because of the peculiarities of the case, defense counsel discerns prejudice from the instruction, he can, of course, request that it not be given.

It may be objected that acceptance of the analysis suggested above would not only undermine Rule 30’s requirement that instructions be requested, but also would give positive encouragement to counsel to court errors, since errors, although not objected to, may well lead to reversal. But I doubt that this would be the case. On the contrary, I think that this use of the plain error rule would lead to fewer rather than more errors noted on appeal. Rather than rely on the defense interest alone, it gives the trial court and, perhaps more importantly, the Government a distinct interest in abiding rules designed to advance the accuracy of the criminal process. And to the extent that this is true, it forwards not only the accuracy of the process, but its efficiency as well.

This does not mean, however, that I think failure to give an accomplice instruction, even when fully warranted by the facts of the case, must inevitably lead to reversal. There remains room for application of the harmless error rule, if the error goes only to evidence relevant to a point peripheral to the central determination of guilt or evidence that is corroborated in every material respect. 25 This rule, however, is itself open to misuse 26 and must be cautiously applied in criminal cases. 27 In any event, the rule has no proper application here. Whatever else can be said of the testimony of Hughes and Jones, I agree with the majority that errors affecting the credence given it by the jury cannot be deemed harmless.

*978 B. I admit that my analysis of the plain error rule does not comport with its standard interpretation; indeed, in advancing it, I may be in a minority of one, and that, as Judge L. Hand once remarked, “is .rather too slim a party to carry a banner.” 28 But even under the standards the majority has applied, I disagree with the result it has reached on the accomplice instruction issue insofar as that issue applies to defendant Sarvis.

In Tillery v. United States, the Fifth Circuit held that failure to give an accomplice instruction may be plain error when accomplice testimony is “so critical that the traditional caveat as to its evaluation and use was an indispensable part of the court’s charge.” 29 The majority distinguishes this case from Tillery on the ground,, inter alia, that there, “virtually all of the government’s case rested upon the accomplice’s testimony,” while here “nonaccomplice testimony corroborated the. accomplice testimony to a significant extent against Leonard, and to a lesser extent against Sarvis.” 30 I think this conclusion correct as to defendant Leonard. Four witnesses other than the accomplices Hughes and Jones placed Leonard at the scene on the night of the murder. Two of these witnesses, King and Mauldin, testified that they saw Leonard accompany Rudd to his apartment building. 31 Witness Virginia Gaskins testified that Leonard was waiting in the hallway of the building when Rudd left her apartment. 32 Witness King stated- that, upon looking through the window of the front door of the building, he observed Leonard “holding Mr. Rudd up,” 33 an occurrence corroborated by the testimony of witness Mauldin, 34 and then enter Mr. Rudd’s apartment. 35 Witnesses King and Maul-din further testified that, subsequently, Leonard emerged from the apartment, 36 at which time, according to King, he in effect announced to the assemblage his intent to kill Mr. Rudd in order to prevent him from identifying Leonard and the others to the police. 37 Given this evidence, I agree with the majority that the Hughes and Jones testimony was not so critical to a finding of Leonard’s guilt as to justify a holding of plain error under the Tillery standard.

But I do not see how this conclusion can rightly be extended to defendant Sarvis. The only admissible evidence, other than the testimony of Hughes and Jones, that even arguably implicated Sarvis in any aspect of the crime was the testimony of witness King. Sarvis appears, however, only in three fleeting references in the course of King’s direct testimony: King identified Sarvis as having been among the group of young men standing across the street from the apartment building when Rudd first arrived; 38 King stated that he saw Sar-vis come out of the apartment; 39 finally King observed Sarvis standing at the bottom of the steps in the hallway of the building and subsequently re-enter Rudd’s apartment. 40 On redirect, however, King said that “some of my thoughts were getting mixed up,” and that Sarvis, not Salters, was in the hallway when Leonard came to the apartment door. 41 These wisps of evidence can be taken as indicating, at most, Sar- *979 vis’ presence in the building and, perhaps, in the victim’s apartment on the night of the crime. Had the Government’s case against Sarvis rested on this evidence alone, I have grave doubt that it could properly have survived a motion for judgment of acquittal, either on the armed robbery count or on the counts charging murder.

In contrast, the testimony of Hughes and Jones directly implicated Sarvis in the crimes against Mr. Rudd. Jones testified that he saw Sarvis, together with Leonard, rob Rudd in the hallway of the apartment house. 42 Both Hughes and Jones stated that they later saw Sarvis “standing over Rudd” in the bedroom of Rudd’s apartment; 43 Hughes observed Sarvis “cutting” Rudd with a knife. 44

I cannot agree that this highly incriminating testimony was, in any meaningful sense of the term, “substantially corroborated” by the testimony of witness King. On the contrary, I am convinced by the record that the jury’s verdict against Sarvis on the armed robbery count rested — and, in law, can only have rested 45 — on the testimony of the accomplices, with only marginal support, if any, from that of King. The remainder of the witnesses in the case were either uncertain that any second man participated directly with Leonard or were entirely unable to say who that second man might have been. Moreover, Sarvis presented an alibi and mistaken identity defense, supported by three witnesses, that, although impeached to some extent, was not inherently unbelievable. Therefore, contrary to the majority, I conclude that as to Sarvis the Tillery eondi-tions for finding plain error are clearly present.

n.

A. I have no doubt that defendant Sarvis was prejudiced by joinder — prejudiced to a degree sufficient to compel the District Court to exercise its power and responsibility under Rule 14 46 to sever Sarvis’ trial from that of Leonard. This prejudice did not derive simply from the disparity in the quality and quantity of evidence adduced against Leonard, on the one hand, and Sarvis, on the other. As the majority acknowledges and as I have attempted to demonstrate above, such a disparity certainly existed in this ease. But I agree with the majority that, by itself, the disparity would not have been so great as to warrant a conclusion that the jury may have confounded the evidence and therefore may have drawn support for its verdict against Sarvis from evidence relevant to Leonard alone. 47

The problem here is of a different but no less serious variety. It has long been recognized that, to a greater or lesser degree, there inheres in every joint trial a danger that the jury will disregard the bounds of admissibility, however thoroughly and emphatically those bounds are explained, and will transfer the effect of evidence admissible and admitted only as to one codefendant into the case against another. 48 Here I think the conclusion inescapable that the Government, whether intentionally or not, invited the jury to engage in exactly this sort of impermissible transference, encouraging it to conclude that if Leonard was guilty, then Sarvis must be guilty as- well.

*980 When Leonard testified in his own behalf, the Government posed a series of questions on cross-examination to establish that, at the time of his arrest, Sar-vis lived across the street from Leonard. Following these questions, which were unrelated to anything to which Leonard had testified on direct, the Government asked whether, when he was arrested, Leonard had said to the police: “Aren’t you going to get the other man . the man across the street?” Leonard replied that he had not. The Government repeated the question, to the same response. 49 In rebuttal, the Government called one of the arresting officers, who testified that Leonard had indeed made the statement attributed to him on cross-examination. The officer went on to testify, in response to questions beyond the permissible scope of rebuttal, that following Leonard’s arrest, the police had crossed the street to arrest “the other man” — Sarvis. 50 All of this occurred over the strenuous and repeated objections of Sarvis’ counsel.

To the extent that this evidence was admissible at all — and some of it clearly was not — it was admissible only for the purpose of impeaching, by means of a prior inconsistent statement, Leonard’s testimony in his own behalf. It was, as the majority grants, entirely inadmissible in the case against Sarvis and, had he been tried separately, could not properly have come before the jury.

The rules governing admissibility of evidence have, of course, some purpose. Premised as they are on a general calculus of probative value, on the one hand, and undue prejudice to the defendant, on the other, they are directed to the pragmatic concern that the jury’s verdict rest, in major part at least, on reasonably reliable evidence. Here the probative value of Leonard’s highly ambiguous out-of-court statement was, as to Sarvis, negligible. At the same time, its possible prejudice to Sarvis’ case is manifest. As I have noted above, Sarvis’ defense rested on mistaken identity and alibi; and although the Government presented substantial, competent evidence identifying Sarvis as having participated with Leonard in the crime, the evidence consisted almost exclusively of the somewhat confused testimony of admitted accomplices and was by no means unassailable. In these circumstances, I cannot but conclude that Leonard’s extra-judicial statement lent possibly critical support to the Government’s case, since it may well have been taken as confirmation by Leonard, against whom the case was far stronger, that Sarvis was indeed his partner in crime. I think there is no question that, had Sar-vis been tried alone, admission of this highly prejudicial evidence would have required reversal.

The question thus becomes whether a different result is appropriate here, since the evidence, although inadmissible as to Sarvis, could properly have been considered by the jury in determining the credibility of Leonard. The majority concludes that the evidence was, for this reason, properly admitted, and in reversing holds only that the trial court erred in failing to give an immediate instruction limiting the permissible use of the evidence. 51

I cannot agree with the supposition, apparently underlying the majority’s conclusion, that, had an immediate instruction been given, the prejudice worked to Sarvis would somehow have been reduced to a tolerable level. The efficacy of an immediate instruction to meet the kind of problem presented here has long been discounted. As the Supreme Court recognized in Bruton v. United States, 52 evidence admitted as to one codefendant is effectively before the jury, and quite likely will be used by the jury, as to all; and at least when the evidence is significant, limiting instructions, however immediate and emphatic, *981 cannot be supposed capable of preventing this misuse. 53

Nor do I agree with the majority that the Supreme Court’s decision in Nelson v. O’Neil 54 compels either the defendant or this Court to rely on such a gossamer barrier to prejudice from inadmissible evidence, at least in the circumstances of this case. In O’Neil, the Court held that “where a eodefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.” 55 There are, however, critical differences between the O’Neil case and this. Unlike O’Neil’s codefendant, Leonard did not “proceed to testify favorably” to Sarvis. The two presented entirely separate alibi defenses, rather than a common defense as in O’Neil, and the credibility of Sarvis’ alibi could in no way have been supported by the strength and, veracity of Leonard’s testimony. In O’Neil, the Court said that the codefend-ant’s denial and subsequent testimony concerning the matters contained in his alleged out-of-court statement were, as a practical matter, “more favorable to the respondent than any that cross-examination by counsel could possibly have produced, had [the codefendant] ‘affirmed the statement as his.’ ” 56 But that is not the case here. Given the evidence of Leonard’s guilt, the jury may well have disbelieved his denial. Yet because of his denial, Leonard was, in effect, unavailable to explain the meaning of his out-of-court statement. The ambiguity of the statement, and the consequent prejudice to Sarvis, remained. In these circumstances, I am not at all clear that O’Neil forecloses Sarvis’ Confrontation Clause claim. 57

But even if O’Neil mandated rejection of that claim, I think the majority wrong in supposing that that ends the matter. In O’Neil, the Court had before it a state criminal conviction, and explicitly dealt only with a Confrontation Clause challenge. The Court has, however, repeatedly stated that the Clause cannot be equated with the hearsay rule and its exceptions. 58 Thus, in Dut-ton v. Evans, 59 the Court refused to find that the Clause requires the states to comply with the federal rule excluding co-conspirator statements made during the “concealment phase” of the eonspir *982 acy; but this holding, as Justice Harlan’s concurring opinion makes clear, does not call into question the sense and vitality of the federal rule, nor does it affect the continuing necessity of its application in federal trials. 60 By the same token, even if O’Neil removes the constitutional premise of Sarvis’ claim, there remains the question whether, under rules of evidence that have been or that we think ought to be established, the District Court here failed in its duty to insure that the jury’s verdict against Sarvis would rest on reasonably reliable, and hence admissible, evidence. Furthermore, there remains the question whether the District Court met its responsibility under Rule 14 to “grant a severance of defendants or provide whatever other relief justice requires” when prejudice results from joinder. While the Supreme Court’s opinion in O’Neil can and should inform our response to these questions of federal law, its holding in that case does not control our decision.

I could understand, although I could not agree, with a conclusion here that the calculus of prejudice and probative value I have set out above is incorrect —that because Leonard was present and denied making the extra-judicial statement, its prejudicial effect on Sarvis was sufficiently relieved to render it admissible against him. Such a conclusion would at least deal forthrightly with the evidentiary problem, and would, of course, mean that the statement would be equally admissible were Sarvis tried alone. But once it has been determined that because of its ambiguity — an ambiguity unrelieved by Leonard’s denial— the statement was inadmissible as to Sarvis, I see no justification for allowing the statement to come before the jury in Sarvis’ case. I can see no justification for erecting what amounts, in practical effect, to one rule of evidence for defendants tried singly and quite another for defendants joined for trial under Rule 8. 61 Just as the purpose of admissibility rules is the same in both classes of cases, so also the rules and their enforcement must, in my view be the same as well.

I would hold that, as a matter of the law of evidence in this Circuit, the district court erred in failing to exclude evidence of Leonard’s alleged out-of-court statement from this trial. I do not mean by this that the Government should necessarily have been forced to forego use of this evidence against Leonard. If the Government believed the statement indispensable to its case against Leonard, an alternative course was open to it: Sarvis’ severance and separate trial. In short, I agree with the position advanced in the American Bar Association’s Project on Standards for Criminal Justice, Joinder and Severance. When, in a joint trial, the Government proposes to introduce the out-of-court statement of one codefendant that implicates but is not admissible as to another, I would hold that, under Rule 14, the Government must be put to a choice: either (1) the statement must be excluded, (2) all references implicating co-defendants must, if practicable, be entirely deleted, or (3) the defendants must be tried separately. 62 Moreover, to prevent unnecessary waste of judicial resources, this choice should be put to the Government in advance of trial.

I am convinced that, as a general matter, only a prophylactic rule of this sort can meet Rule 14’s mandate to prevent undue prejudice from joinder, and fore *983 stall the kind of abuse of joinder that occurred here. The fact is that Leonard’s out-of-court statement, standing alone, would have had, perhaps, only a slight prejudicial effect on Sarvis’ case. But it did not stand alone. The Government’s assiduous questioning concerning Sarvis’ residence and the circumstances of his arrest were entirely irrelevant to the impeachment of Leonard. Their necessary and probable consequence, however, was to point to Sarvis as “the other man” to whom Leonard’s statement referred. Indeed, the strong emphasis that the Government placed on this evidence and on Leonard’s alleged statement in its closing remarks to the jury strongly suggest that it intended the evidence to have precisely this effect, 63 and that it employed joinder to produce to the jury evidence of Sarvis’ guilt that it could not have introduced were Sarvis tried alone. Although I think the better rule would be to exclude Leonard’s statement and all subsidiary evidence altogether, at the least the trial court should have limited the evidence strictly to that necessary for purposes of impeachment. In my view, its failure to do so here was itself reversible error, error that the majority apparently disregards and that, I presume, its opinion would allow to recur at Sarvis’ retrial.

B. In Part V-D of its opinion, the majority holds that the trial court’s admission of testimony, by witnesses Hughes and Mauldin, repeating statements purportedly made by codefendant Salters 64 did not require, at the instance of Leonard and Sarvis, Salters’ severance and separate trial. The problem presented by the admission of Salters’ statements is not, of course, primarily one of severance. Unlike Leonard’s out-of-court statement, Salters’ statements, made, as they allegedly were, immediately after he had witnessed the events they describe, fall within a recognized exception to the hearsay rule, that for “present sense impressions,” or contemporaneous declarations. 65 As such, under the law of hearsay the statements were admissible as to all three codefend-ants, and would have been equally admissible as to Leonard and Sarvis had Salters been tried separately. Because of this, I think the majority correct in concluding that neither the Bruton rule, 66 nor any analogue to that rule premised on Rule 14 and even handed application of the federal law of evidence, 67 compelled Salters’ severance or, in the alternative, exclusion of his extra-judicial statements from this joint trial.

As the majority recognizes, however, the inapplicability of Bruton does not end the matter. The Supreme Court has said that a violation of Confrontation Clause values may exist “even though the statements in issue were admitted under an arguably recognized hearsay exception.” 68 The central question before us is, therefore, whether Salters’ statements were such that the Confrontation Clause would allow their admission in the case against Leonard and Sarvis only if the declarant Salters was available for cross-examination as to the content of the statements and, perhaps equally important here, as to whether the statements had in fact been made.

In its response to this Confrontation Clause problem, the majority relies on a framework of analysis derived from the plurality opinion of the Supreme Court in Dutton v. Evans. 69 That opinion rested in major part on a determination that the alleged out-of-court statement of the defendant’s co-conspirator could have contributed only in the most marginal *984 way, if at all, to the prosecution’s case. 70 Given this, the plurality opinion concluded that the statement presented indicia of reliability sufficient to overcome any supposition that cross-examination of the declarant might in any way have affected the jury’s verdict, and held, therefore, that the values protected by the Confrontation Clause were satisfied. At the same time, however, the plurality in Dutton carefully distinguished cases in which the evidence contained in out-of-court statements can be deemed “crucial or devastating,” 71 implying that in such cases, the courts’ estimates of reliability cannot, consistently with the Clause, be considered an adequate substitute for cross-examination as a means of testing the value of evidence and thus making it more likely that the jury’s verdict will be correct. 72

Applying the Dutton analysis to the facts of this case, the majority concludes that the information contained in Sal-ters’ alleged statements, although significant, was not critical to the jury’s verdict against Leonard and Sarvis, and that, therefore,' no confrontation values were transgressed despite lack of opportunity to cross-examine the declarant. In reaching this conclusion, however, the majority has, I think, neglected a factor that has played a central role in the Supreme Court’s Confrontation Clause decisions. In Barber v. Page, the Court held that the Clause prohibits use against a defendant of testimony given at a prior judicial proceeding by a witness absent from the jurisdiction, unless the prosecution has made a good faith effort to secure the witness’s presence at trial; and this was so even though the witness had been subject to cross-examination by the same defendant at the prior proceeding. 73 In California v. Green, the Court, citing Barber, said that if the out-of-court declarant “had died or was otherwise unavailable, the Confrontation Clause would not have been violated by admitting his testimony given at the preliminary hearing — the right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement, as long as the declarant’s inability to give live testimony is in no way the fault of the State,” 74 In short, the Supreme Court’s evaluation of Confrontation Clause claims has depended, not alone on the probable significance of extra-judicial statements to the jury’s verdict and analysis of their reliability, but also on the necessity of their use— the reasons why the out-of-court declar-ant was unavailable for testimony and cross-examination at trial.

It is true that in Dutton v. Evans, the out-of-court declarant was available for call by the State, since, under Georgia law, he was separately tried for his part in the alleged conspiracy. Dutton thus seems to indicate that when the effect of an out-of-court statement is apparently de minimis and when its content and the circumstances of its utterance evidence its reliability, the defendant has the burden of establishing that the declar-ant’s live testimony at trial would in any way have benefitted his case. Indeed, as the plurality opinion in Dutton notes, the defendant could himself have called the declarant; his failure to make any effort to do so militated against his claim that cross-examination might have nullified whatever force the declarant’s out-of-court statement may have had. 75 This does not mean, however, that the same rule can appropriately be applied *985 when the effect of an extra-judicial statement cannot be deemed harmless. On the contrary, following Barber and Green, I think, as a general matter, the Confrontation Clause compels exclusion of extra-judicial statements that contribute in any substantial way to the prosecution’s case unless the Government can affirmatively demonstrate that the de-clarant is unavailable and, hence, cannot be produced for cross-examination at trial; and the required strength of this showing should depend, in turn, on the extent to which the circumstances and content of the statements indicate their reliability. 76 In other words, the Clause’s presumption in favor of cross-examination should be overcome, and reliability analysis substituted, only upon a showing that it is necessary and fair to do so.

No such showing was made, nor could have been made, by the Government in the circumstances of this case. Here Salters was subject to call as an involuntary witness neither by the Government nor by Leonard and Sarvis, 77 and this was so precisely because, at the instance of the Government, he had been joined with Leonard and Sarvis for trial. The fact is that Salters could have been made available to testify at Leonard’s and Sarvis’ trial had his own trial been severed and had he, like the other accomplices in the case, been granted use immunity for his testimony. 78

If Salters’ statements could be supposed to have had no substantial effect on the jury’s verdict, I would hold, following Dutton, that his severance and separate trial were required only if Leonard and Sarvis had demonstrated that his testimony might have afforded substantial benefit to their case. 79 If Salters’ statements could be deemed the central, “crucial” support of the prosecution’s case against Leonard and Sarvis, I would hold, following the implication in *986 Dutton, and because of Salters availability through severance, that his version of the events at issue could properly be presented to the jury only through his own live testimony, and that his out-of-court statements should have been excluded, except for impeachment purposes if Salters had taken the stand.

I agree with the majority, however, that neither of these two polar rules meets the case before us. While admission of Salters’ statements cannot be deemed harmless, neither can the information they put before the jury be thought “crucial” or “devastating.” The majority grants, however, that the statements may well have been significant to the jury’s verdict, since they provided substantiation both of Sarvis’ participation in the crime and of Leonard’s intent to murder the victim. At the same time, as the majority admits, the statements by no means presented compelling indicia of reliability. Even though the statements, on their face, are relatively unambiguous, they were repeated at trial by persons who may well have had good reason to obscure their own roles in the matters with which the statements dealt. Yet the defendants were afforded no opportunity to question the alleged declarant as to the accuracy of his statements, nor to elicit his affirmance or denial that the statements were indeed his.

In these circumstances I cannot agree with the majority that Confrontation Clause values should be sacrificed to the purported efficiency of joinder. I do not think the Clause necessarily requires that Salters’ statements should have been excluded from the prosecution’s case. Nonetheless, because of their potential significance to the jury’s verdict, I think these hearsay statements should have been admitted into the prosecution’s case-in-chief only if the Government had agreed to Salters’ severance and had itself called Salters to the stand.

C. I suspect that my disagreement with the majority on the two severance issues discussed above is the consequence, in major part, of a divergence in our views concerning the efficiency of joinder of defendants for trial and the extent to which that supposed efficiency should be preferred when it conflicts with other values that rules of criminal procedure and evidence are in general designed to protect. At one point in its opinion, the majority cites what has become the standard view, that because joinder of defendants effects savings in time and money, not only for the judicial system, but for witnesses and jurors as well, “[t]he balance has been struck in favor of joint trials . . . . ” 80 Even if judicial efficiency can properly be defined in these terms alone, I am convinced that the efficiency of joinder has been greatly exaggerated. As Justice Marshall said in dissent in Nelson v. O’Neil and as this case fully demonstrates, much of the savings in time and money through joinder is often lost “through protracted litigation that results from the impingement or near impingement on” codefendants’ rights. 81 Literally hundreds of pages of the long transcript in this case are devoted to repeated bench conferences concerning problems resulting from joinder, problems that have come to this Court on appeal. Indeed, the multiple errors that infected the trial of Leonard and Sarvis lend strong support to a hypothesis that, as the number of defendants joined for trial increases, the possibilities of prejudice, and of reversible error, increase geometrically.

It is, of course, possible to avoid loss of these savings, in some part at least, by *987 retrenching on the rights of criminal defendants joined with others for trial, by stretching the rules of evidence and diluting constitutional guarantees to meet the exigencies of the joint trial. Indeed, I am afraid that we have too often done exactly this. I cannot, however, accept the proposition that judicial efficiency can be defined in terms of time and money alone. Elaboration and application of the rules of evidence and the Confrontation guarantee are themselves directed to a fully pragmatic concern; they are designed to provide some reasonable assurance that defendants found guilty are guilty. So long as this assurance can be maintained, I am as enthusiastic as any about devices that reduce judicial costs. But if this assurance is diminished, I think the price too high. And when, at the margin, the choice is between savings in time and money on the one side and reasonable assurance of guilt on the other, I think that efficiency in the true sense and, what is more important, the integrity of the criminal justice system demand that any doubts be resolved in favor of the latter.

On these points I respectfully dissent from the opinion of the Court.

. In Part VII of its opinion, the majority recognizes that the trial court erroneously purported to grant transactional immunity to Government witnesses Hughes and Jones, rather than the “use-restriction immunity” authorized by the statute. 18 U.S.O. § 6002 (Supp.1973). Since the defendants must, on other grounds, be afforded a new trial and we can, as the majority observes, assume that at retrial this error will not recur, I would not reach the question whether the error would independently require reversal.

. See Part II-B of the majority opinion, at p. 961 supra.

. F.R.Orim.P. 14.

. P. 960 supra.

. P. 958 supra.

. P. 960 supra.

. On Lee v. United States, 343 U.S. 747, 757 , 72 S.Ct. 967 , 96 L.Ed. 1270 (1952).

. See, e. g., McMillen v. United States, 386 F.2d 29, 36 (1st Cir. 1967) ; Phelps v. United States, 252 F.2d 49, 52 (5th Cir. 1958) and eases cited therein.

. Crawford v. United States, 212 U.S. 183, 204 , 29 S.Ct. 260, 268 , 53 L.Ed. 465 (1909).

. Id.

. F.R.Crim.P. 52(a).

. United States v. Grasso, 437 F.2d 317, 319 (3d Cir.), cert, denied, 403 U.S. 920 , 91 S.Ct. 2236 , 29 L.Ed.2d 698 (1971) ; see United States v. Reed, 446 F.2d 1226 (8th Cir. 1971).

. See, e. g., with respect to F.R.Crim.P. 30’s general requirement that no error may be assigned as to an instruction not objected to below. United States v. Currens, 290 F.2d 751 (3d Cir. 1961) ; 2 Wright, Federal Practice and Procedure (Criminal) 284 (1969).

. See District of Columbia Public Defender Service, Quarterly Report on the Program for Furnishing Legal Representation to Indigents in the District of Columbia, for the Quarter April 1, 1973-June 30, 1973 (Oct. 31, 1973).

. See United States v. De Coster, 159 U.S. App.D.C. 326, 487 F.2d 1197 (1973) ; Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert, denied, 393 U.S. 849 , 89 S.Ct. 80 , 21 L.Ed.2d 120 (1968) ; American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Defense Function (App. Draft 1971).

. See United States v. Smith, 353 F.2d 166 (4th Cir. 1965).

. Luck v. United States, 121 U.S.App.D.C. 151 , 348 F.2d 763, 769 (1965).

. Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Washington U.L.Q. 279.

. See American Bar Association Project on Standards for Criminal Justice, Providing Defense Services (App. Draft 1971).

. See, e. g., Jackson v. United States, 121 U.S.App.D.C. 160 , 348 F.2d 772 (1965).

. McClain v. United States, 142 U.S.App.D. C. 213, 440 F.2d 241, 246 (1971) ; see United States v. Gilliam, 157 U.S.App.D.C. 375 , 484 F.2d 1093 (1973). Indeed, the majority *977 itself invokes this rule in reversing on the ground that the trial court failed to give an immediate instruction limiting the admissibility of Leonard’s prior inconsistent statement —reversing not only as to Sarvis, who requested the instruction, but also as to Leonard, who did not. See majority opinion, supra, text and note at note 17.

. United States v. Kinnard, 150 U.S.App.D. C. 386, 465 F.2d 566, 572 (1972) (Opinion of Bazelon, Chief Judge).

. Id. 465 F.2d at 573 .

. United States v. Henson, 159 U.S.App.D. C. 32, 486 F.2d 1292 , at p. 1310 (1973) (Bazelon, Chief Judge, concurring in part and dissenting in part).

. See United States v. Kinnard, supra note 22 , 465 F.2d at 575 .

. See generally R. Traynor, The Riddle of Harmless Error (1970).

. See, e. g., DeLuna v. United States, 308 F.2d 140, 155 (5th Cir. 1962), rehearing denied, 324 F.2d 375 (1963) ; see also Saltzburg, The Harm of Harmless Error, 59 U. Va.L.Rev. 988 (1973) ; Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 U.Minn.L.Rev. 519, 519-20 (1969).

. Letter from Judge L. Hand to Ernst Freund, dated May 7, 1919, quoted in Ernst Freund and the First Amendment Tradition, 40 U.Chi.L.Rev. 235, 244 (1973).

. 411 F.2d 644 , 647 (5th Cir. 1969) ; see McMillen v. United States, 386 F.2d 29, 35-36 (1st Cir. 1967), cert, denied, 390 U.S. 1031 , 88 S.Ct. 1424 , 20 L.Ed.2d 288 (1968).

. Majority opinion, supra, at 7.

. Trial Transcript at'439, 631.

. Id. at 335.

. Id. at 442.

. Id. at 638.

. Id. at 445.

. Id. at 408, 448.

. Id. at 448.

. Id. at 428.

. Id. at 445.

. Id. at 449, 605.

. Id. at 601-02.

. Id. at 697-702.

. Id. at 722, 809.

. Id. at 817f.

. The verdict may also, however, have been the product, at least in part, of hearsay evidence of Leonard’s statements that, as to Sarvis, were clearly inadmissible. See Part II-A infra.

. F.R.Crim.P. 14 provides:

If it appears that a defendant or the government is prejudiced by a joinder of defendants . . . for trial together, the court may . . . grant a severance of defendants or provide whatever other relief justice requires. * * *

. Compare, e. g., United States v. Gambrill, 146 U.S.App.D.C. 72 , 449 F.2d 1148, 1161-1163 (1971) ; United States v. Kelly, 349 F. 2d 720 (2d Cir. 1965).

. See Blumenthal v. United States, 332 U.S. 539, 559-560 , 68 S.Ct. 248 , 92 L.Ed. 154 (1947) ; McHale v. United States, 130 U.S. App.D.C. 163, 398 F.2d 757, 758 (1968).

. Trial Transcript at 1439-41.

. Id. at 16781

. Majority opinion, supra, Part IV.

. 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968).

. See Sims v. United States, 132 U.S.App.D.C. 111 , 405 F.2d 1381 -1383 (1968). As Judge Friendly said in United States v. Bozza, “there is a point where credulity as to the efficacy of such instructions is overstrained . . . . ” 365 F.2d 206, 217 (2d Cir. 1966). This Court’s recent decision in United States v. Enten, 158 U.S. App.D.C. 162, 485 F.2d 941 (1973), is not to the contrary. There the Court concluded that, because the challenged extra-judicial statements’ references to the defendant were not inconsistent with his innocence, because they were “of comparatively less credibility” than those in Bruton, and because there was important independent evidence of the defendant’s guilt, a limiting instruction was likely sufficient to cure any slight prejudice the defendant may have suffered and, therefore, any “technical violation of the Bruton rule” was harmless beyond a reasonable doubt. Id. 485 F.2d at 951 . See also Schneble v. Florida, 405 U.S. 427 , 92 S.Ct. 1056 , 31 L.Ed.2d 340 (1972). Here, in contrast, I think that admission of Leonard’s statement, at least in the context of the prosecutor’s questions, would have been reversible error had Sarvis been tried alone, even with an immediate instruction; and if this is so, I do not see how a contrary result follows simply from Sarvis’ joinder with Leonard. A limiting instruction is, if anything, less efficacious when the defendant and the declarant are joined. In short, there is no harmless error of the Enten variety here, nor does the majority urge that there is.

. 402 U.S. 622 , 91 S.Ct. 1723 , 29 L.Ed.2d 222 (1971).

. Id. at 629-630 , 91 S.Ct. at 1727 .

. Id. at 629 , 91 S.Ct. at 1727 .

. Compare Douglas v. Alabama, 380 U.S. 415, 420 , 85 S.Ct. 71 , 7 L.Ed.2d 23 (1965).

. E. g., California v. Green, 399 U.S. 149, 155-156 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970).

. 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970).

. Id. at 93, 99-100 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (Harlan, J., concurring in the result).

. F.R.Crim.P. 8(b).

. Section 2.3(a) (App.1968). Indeed, the second of these three alternatives may have been applicable here. As I point out below, Leonard’s statement was not itself highly prejudicial, since it did not refer directly to Sarvis. Had the Government been required to present the statement in advance of trial, since it arguably implicated Sarvis, the Court could have warned the Government that its admission against Leonard would be subject to the condition that the Government make no attempt whatever to link Sarvis to the statement’s “other man.”

. Trial Transcript at 1749f.

. These statements are quoted in the majority opinion, supra, at note 19.

. See Rule 803(1), Proposed Rules of Evidence for United States Courts and Magistrates, 56 E.R.D. 183 (1973), and cases cited therein.

. Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968).

. See text at notes 61-62 supra.

. California v. Green, 399 U.S. 149, 155-156 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970).

. 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970).

. The statement was, according to the plurality, “of peripheral significance at most. ...” 400 U.S. at 87 , 91 S.Ct. 210 . See 400 U.S. at 90-93 , 91 S.Ct. 210 (Blackmun, J., concurring).

. Id. at 87 , 91 S.Ct. 210 , 27 L.Ed.2d 213 .

. See Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Ilarv.L.Rev. 1378, 1380 n. 11, 1402 (1972).

. 390 U.S. 719, 724-725 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968).

. 399 U.S. 149, 166 , 90 S.Ct. 1930, 1939 , 26 L.Ed.2d 489 (1970) (emphasis added).

. 400 U.S. 74 , 88 n. 19, 91 S.Ct. 210 , 27 L. Ed.2d 213 (1970).

. See Davenport, supra note 72, at 1403-04. Compare United States v. Lemonakis, 158 U.S. App.D.C. 162, at 168-170, 485 F.2d 941, at 947-949 (1978), in which, under my analysis as well as that of the Court, the death of the out-of-court declarant, coupled with the substantial reliability of the out-of-court statements — their implicit adoption in the defendant’s own statements — would favor rejection of the defendant’s confrontation claim, despite the relative prominence of the statements in the Government’s case.

. See, e. g., Coleman v. United States, 137 U.S.App.D.C. 48 , 420 F.2d 616 , 625 (1969) ; United States v. Echeles, 352 F.2d 892, 898 (7th Cir. 1965).

. See 18 U.S.C. § 6002 (Supp.1973).

. As I explain infra, I think no such showing was necessary here. If such a showing were required, however, I cannot agree with the implication in the majority opinion, at p. 969 supra, that such a showing would have been impossible unless the defendants could have demonstrated that, had Salters been severed and had they called him to testify, he would not have invoked his Fifth Amendment privilege. On the contrary, I am not at all clear that the trial court is precluded from conditioning admission of an out-of-court statement on the Government’s agreeing to grant use-restriction immunity to the alleged declarant, so long as the defendant has made a substantial showing that the de-clarant’s testimony is necessary to rebut the effect of his alleged statement and would thus provide the jury with the best possible basis for evaluating it. The “use-restriction” immunity statute is not, by terms, limited to witnesses who testify on behalf of the Government; it is, instead, to be employed when “testimony . . . from such individual may be necessary to the public interest. . . .”18 U.S.C. § 6003 (b)(1) (Supp.1973). And certainly the public interest in the reliability of jury verdicts can be forwarded quite as much by testimony favorable to the defendant as by testimony favorable to the Government.

Moreover, a strong case can be made that this employment of the statute is compelled by the Sixth Amendment’s guarantee to defendants of compulsory process for obtaining witnesses in their favor, c. f. Washington v. Texas, 388 U.S. 14, 23 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967) ; Roviaro v. United States, 353 U.S. 53, 60-61 , 77 S.Ct. 623 , 1 L.Ed.2d 639 (1957) ; United States v. Powell, 156 F.Supp. 526 (N.D.Cal.1957), as well as by due process considerations of fairness and “the general principle that a prosecutor is not free to decline to make evidence available to defendant.” Earl v. United States, 124 U.S.App.D.C. 77 , 364 F.2d 666 (1966) (Statement of Judge Leventhal as to why he would grant rehearing en bano), citing Brady v. Maryland, 373 U.S. 83, 87-88 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). These questions have not, so far as I know, been authoritatively decided by the Supreme Court or any court of appeals; and they are *986 not controlled by this Court’s decision in Em-1, 124 U.S.App.D.C. 77 , 361 F.2d 531 (1966), since that case concerned, not “use-restriction” immunity, but transactional immunity, employment of which involves, of course, a substantial sacrifice of the public interest in the prosecution of possible witnesses who are themselves implicated in the crimes.

. United States v. Hines, 147 U.S.App.D.C. 249 , 455 F.2d 1317, 1334 , cert, denied, 406 U.S. 975 , 92 S.Ct. 2427 , 32 L.Ed.2d 675 (1972), quoting United States v. Krechevsky, 291 F.Supp. 290, 294 (D.D.C.1967).

. 402 U.S. 622, 635 , 91 S.Ct. 1723, 1730 , 29 L.Ed.2d 222 (1971).