Opinion — Dutton v. Evans

DUTTON, WARDEN v. EVANS

APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10. Argued October 15, 1969—Reargued October 15, 1970—

Decided December 15, 1970

Appellee was convicted of first-degree murder following a trial in

which one Shaw testified, over: objection, concerning a statement

Williams (an alleged accomplice) had made in the prison where

both were incarcerated, after Williams’ return there from his

arraignment, that had it not been for appellee “we wouldn’t be

in this now.” There were 19 other prosecution witnesses, one of

whom (another alleged accomplice) gave detailed eyewitness testi-

mony of the crime and the participation of the appellee and

Williams therein. Shaw’s testimony was admitted under a Georgia

statute which, as construed by the Georgia Supreme Court, allows

into evidence a coconspirator’s out-of-court statement made during

the concealment phase of the conspiracy. Following affirmance of

the conviction by the Georgia Supreme Court, appellee brought

this habeas corpus proceeding in federal court. The District Court

denied the writ but the Court of Appeals reversed, holding that

the Georgia statute violated appellee’s right to confrontation

secured by the Sixth and Fourteenth Amendments. Appellee

contends that the Georgia hearsay exception is unconstitutional

since it differs from the hearsay exception applicable to conspiracy

trials in the federal courts, which applies only if the out-of-court

statement of a coconspirator was made in the course of and in

furtherance of the conspiracy. Held: The judgment is reversed.

Mr. Justice Srewart, joined by THe Curr Justice, Mr. Jus-

mice Wuire, and Mr. Justice BLackMvUN, concluded that:

1. The coconspirator hearsay exception applied by Georgia is

not invalid under the Confrontation Clause of the Sixth Amend-

I

DUTTON v. EVANS

-—\ Syllabus:

ment, a2 epplied to the Staten by the Fourteenth, wands Sai

it does hot coincide with the narrower exception applitable in

federal conspiracy trials which results, not from the Sixth Amend-

ment, but from the exercise of this Court’s rule-making power

respecting the federal law of evidence. Pp. 5-8.

2. In the circumstances of this case the admission into evidence

of Williams’ statement did not result in any denial of appellee's

confrontation right since the out-of-court statement bore indicia

of reliability that fully warranted its being placed before the

jury. Pp. 9-15.

Mr. Justice Hartan concluded that exceptions to the rule

against hearsay must be evaluated, not by the Confrontation

Clause. (which is not designed to cope with the many factor

invelved in passing on evidentiary rules), but by the due process

standards of the Fifth and Fourteenth Amendments. Thus evalu-

ated, the Georgia statute is constitutional as applied in this case

since the out-of-court declaration against interest invoived here

evinces some likelihood of trustworthiness and its exclusion from

evidence is therefore not essential to a fair trial. Pp. 1-7... .

Srewart, J., delivered the prevailing opinion, in which Burazr,

C. J., and Wurre and Biacxmoun, JJ., joined. Briacxmun, J., filed

& concurring opinion, in which Burcer, C. J., joined. Harzay, J,

filed an opinion concurring in the result. MarsnHatu, J., filed a

dissenting opinion, in which Biacx, Dove.as, and Brennan, JJ.,

ponents ne ae pan Ses Jab

te nctity the Reporter of Decisions, Supreme Court ofthe

mal error, tm order that corrections may be ade before the Dre

SUPREME COURT OF THE UNITED STATES

No. 10.—Ocroser Term, 1970

A. L. Dutton, Warden,

Appellant,

v.

Alex S. Evans.

[December 15, 1970]

Mr. Justice STEwartT announced the judgment of the

Court and an opinion in which THe Cur Justice, Mr.

Justice Wuire, and Mr. Justice BLAcKMUN join.

Early on an April morning in 1964, three police officers

were brutally murdered in Gwinnett County, Georgia.

Their bodies were found a few hours later, handcuffed

together in a pine thicket, each with multiple gunshot

wounds in the back of the head. After many months

of investigation, Georgia authorities charged the appel-

lee Evans and two other men, Wade Truett and Venson

Williams, with the officers’ murder. Evans and Williams

were indicted by a grand jury; Truett was granted im-

munity from prosecution in return for his testimony.

Evans pleaded not guilty and exercised his right under

Georgia law to be tried separately. After a jury trial,

he was convicted of murder and sentenced to death.’

The judgment of conviction was affirmed by the Supreme

Court of Georgia,? and this Court denied certiorari.’

Evans then brought the present habeas corpus proceed-

ing in a federal district court, alleging, among other

things, that he had been denied the constitutional right

of confrontation at his trial. The District Court denied

1The parties agree that this death sentence cannot be carried

out. See n. 20, infra.

* Evans v. State, 222 Ga. 392, 150 S. E. 2d 240.

* Evans v. Georgia, 385 U.S. 953.

On Appeal From the United

States Court of Appeals for

the Fifth Circuit.

2 DUTTON v. EVANS

the writ,‘ but the Court of Appeals for the Fifth Cireuit

reversed, holding that Georgia had, indeed, denied Evang

the right, guaranteed by the Sixth and Fourteenth:

Amendments, “to be confronted by the witnesses against

him.”* From that judgment an appeal was brought

to this Court, and we noted probable jurisdiction. The

case was originally argued last Term, but was set for

reargument. 397 U.S. 1060.

In order to understand the context of the constity-

tional question before us, a brief review of the pro-

ceedings at Evans’ trial is necessary. The principal

prosecution witness at the trial was Truett, the accom-

plice who had been granted immunity. Truett described

at length and in detail the circumstances surrounding

the murder of the police officers. He testified that he,

along with Evans and Williams, had been engaged in

switching the license plates on a stolen car parked on a

back road in Gwinnett County when they were accosted

by the three police officers. As the youngest of the

officers leaned in front of Evans to inspect the ignition

switch on the car, Evans grabbed the officer’s gun from

its holster. Evans and Williams then disarmed the

other officers at gunpoint, and handcuffed the three of

them together. They then took the officers into the

woods and killed them by firing several bullets into

their bodies at extremely close range. In addition to

Truett, 19 other witnesses testified for the prosecution.’

Defense counsel was given full opportunity to cross

*The opinion of the District Court is unreported.

5 Evans v. Dutton, 400 F. 2d 826.

* 393 U.S. 1076. Since, as will appear, the Court of Appeals held

that a Georgia statute relied upon by the State at the trial was

unconstitutional as applied, there can be no doubt of the right of

appeal to this Court. 28 U. S. C. § 1254 (2).

7 Three of these were rebuttal witnesses. There were four defense

witnesses, and Evans himself made a lengthy unsworn statement.

DUTTON v. EVANS 3

examine each witness, and he exercised that opportunity

with respect to most of them.

One of the 20 prosecution witnesses was a man named

Shaw. He testified that he and Williams had been

fellow prisoners in the federal penitentiary in Atlanta,

Georgia, at the time Williams was brought to Gwinnett

County to be arraigned on the charges of murdering

the police officers. Shaw said that when Williams was

returned to the penitentiary from the arraignment, he

had asked Williams “how did you make out in Court,”

and that Williams had responded, “If it hadn’t been for

that dirty son-of-a-bitch Alex Evans, we wouldn’t be in

this now.” Defense counsel objected to the introduction

of this testimony upon the ground that it was hearsay

and thus violative of Evans’ right of confrontation.

After the objection was overruled, counsel cross-exam-

ined Shaw at length.

The testimony of Shaw relating what he said Williams

had told him was admitted by the Georgia trial court,

and its admission upheld by the Georgia Supreme Court,

upon the basis of a Georgia statute that provides: “After

the fact of conspiracy shall be proved, the declarations

by any one of the conspirators during the pendency of

the criminal project shall be admissible against all.”

As the appellate court put it:

“<The rule is that so long as the conspiracy to

conceal the fact that a crime has been committed

or the identity of the perpetrators of the offense

continues, the parties to such conspiracy are to be

considered so much a unit that the declarations of

either are admissible against the other.’ The de-

fendant, and his co-conspirator, Williams, at the

time this statement was made, were still concealing

their identity, keeping secret the fact that they had

® Ga. Code Ann. § 38-306 (1954 rev.).

DUTTON v. EVANS

killed the deceased, if they had, and denying their

guilt. There was evidence sufficient to establish a

prima facie case of conspiracy to steal the automo.

bile and the killing of the deceased by the conspira,.

tors while carrying out the conspiracy, and the

statement by Williams made after the actual com:

mission of the crime, but while the conspiracy ¢on-

tinued was admissible.” (Citations omitted.).° » .

This holding was in accord with a consistent line’ of

Georgia decisions construing the state statute. ‘See, ey,

Chatterton v. State, 221 Ga. 424, 144 8S. E. 2d 726,

cert. denied, 384 U. S. 1015; Burns v. State, 191 Ga. 60,

73, 11 S. E. 2d 350, 358.

It was the admission of this testimony of the witness

Shaw that formed the basis for the appellee’s claim in

the present habeas corpus proceeding that he had been

denied the constitutional right of confrontation in the

Georgia trial court. In upholding that claim, the Court

of Appeals for the Fifth Circuit regarded its duty to

be “not only to interpret the framers’ original concept

in light of historical developments, but also to translate

into due-process terms the constitutional boundaries of

the hearsay rule.” (Footnotes omitted.) *® The court

upheld the appellee’s constitutional claim because it

could find no “salient and cogent reasons” for the excep-

tion to the hearsay rule Georgia applied in the present

case, an exception that the court pointed out was broader

than that applicable to conspiracy trials in the federal

courts.”

The question before us, then, is whether in the cir-

cumstances of this case the Court of Appeals was correct

in hoiding that Evans’ murder conviction must be set

aside because of the admission of Shaw’s testimony. In

® Evans v. State, 222 Ga. 392-400, 150 S. E. 2d 240, 248.

10 400 F. 2d, at 829.

11 400 F. 2d, at 830, 831.

DUTTON v. EVANS 5

considering this question, we start by recognizing that

this Court has squarely held that “the. Sixth Amend-

ment’s right of an accused to confront the witnesses

‘net himis .. . fundamental right... . made oblig-

story on the States by the Fourteenth Amendment.”

Pointer v. Texas, 380 U. S. 400, 403. See also Douglas

y, Alabama, 380 U. 8. 415; Brookhart v. Janis, 384 U. 8.

1; Barber v. Page, 390 U. 8. 719; Roberts v. Russell, 392

U.S. 293; Illinois v. Allen, 897.U. 8. 337; California v.

Green, 399 U. S. 149. But that is no more than the

beginning of our inq)iry.

I

It is not argued, nor could it be, that the constitutional

right to confrontation requires that no hearsay evidence

can ever be introduced. In the Pointer case itself, we

referred to the decisions of this Court that have ap-

proved the admission of hearsay :

“This Court has recognized the admissibility against

an accused of dying declarations, Mattoz v. United

States, 146 U. 8. 140, 151, and of testimony of a

deceased witness who has testified at a former trial,

Mattox v. United States, 156 U. 8S. 237, 240-244.

See also Dowdell v. United States, supra, 221 U. 8.,

at 330; Kirby v. United States, supra, 174 U. &., at

61.... There are other analogous situations which

might not fall within the seope of the constitutional

rule requiring confrontation of witnesses,” **

The argument seems to be, rather, that in any given

case the Constitution requires'a reappraisal of every

exception to the hearsay rule, nc matter how long estab-

lished, in order to determine whether, in the words of

the Court of Appeals, it is supported by “salient and

12 Pointer v. Texas, 380 U. 8., at 407. See also Salinger v. United

States, 272 U. S. 542, 548.

6 DUTTON v. EVANS

cogent reasons.” The logic of that position would seem

to require # constitutional reassessment of every estab.

lished hearsay exception, federal or state, but in. the

present case it is argued only that the hearsay exeeption

applied by Georgia is constitutionally invalid because:it

does not identically conform to the hearsay exception

applicable to conspiracy trials in the federal courts, Ap

pellee does not challenge and we do not question the

validity of the coconspirator exception applied in the

federal courts.

That the two evidentiary rules are not identical must

be readily conceded. It is settled that in federal con-

spiracy trials the hearsay exception that allows evidence

of an out-of-court statement of one conspirator to be

admitted against his fellow conspirators applies only if

the statement was made in the course of and in further

ance of the conspiracy, and not during a subsequent

period when the conspirators were engaged in nothing

more than concealment of the criminal enterprise,

Lutwak vy. United States, 344 U. S. 604; Krulewitch y.

United States, 336 U. S. 440. The hearsay exception

that Georgia applied in the present case, on the other

hand, permits the introduction of evidence of such an

out-of-court statement even though made during the

concealment phase of the conspiracy.

But it does not follow that because the federal courts

have declined to extend the hearsay exception to include

out-of-court statements made during the concealment

phase of a conspiracy, such an extension automatically

violates the Confrontation Clause. Last Term in Cali-

fornia v. Green, 399 U. S. 149, we said:

“Our task in this case is not to decide which of

these positions, purely as a matter of the law of

evidence, is the sounder. The issue before us is the

considerably narrower one of whether a defendant’s

constitutional right ‘to be confronted with the wit-

DUTTON v. EVANS 7

nesses against him’ is necessarily inconsistent with

a State’s decision to change its hearsay rules... .

While it may readily be conceded that hearsay rules

and the Confrontation Clause are generally designed

to protect similar values, it is quite a different

thing to suggest that the overlap is complete and

that the Confrontation Clause is nothing more or

less than a codification of the rules of hearsay and

their exceptions as they existed historically at com-

mon law. Our decisions have never established

such a congruence; indeed, we have more than once

found a violation of confrontation values even

though the statements in issue were admitted under

an arguably recognized hearsay exception. The

converse is equally true: merely because evidence is

admitted in violation of a long-established hearsay

rule does not lead to the automatic conclusion that

confrontation rights have been denied.” J/d., at

155-156 (citations and footnote omitted).

These observations have particular force in the present

case. For this Court has never indicated that the limited

contours of the hearsay exception in federal sonspiracy

trials are required by the Sixth Amendment’s Confronta-

tion Clause. To the contrary, the limits of this hearsay

exception have simply been defined by the Court in the

exercise of its rule-making power in the area of the fed-

eral law of evidence.” It is clear that the limited scope

of the hearsay exception in federal conspiracy trials is a

18 See 18 U. 8. C. $3771. Fed. Rule Crim. Pruc. 26 provides:

“In all trials the testimony of witnesses shall be taken orally in

open court, unless otherwise provided by an act of Congress or by

these rules. The admissibility of evidence and the competency and

privileges of witnesses shall be governed, except when an act of

Congress or these rules otherwise provide, by the principles of the

common law as they may be interpreted by the courts of the

United States in the light of reason and experience.” See Hawkins

v. United States, 358 U.S. 74.

8 DUTTON v. EVANS

product, not of the Sixth Amendment, but of the Court's

“disfavor” of “attempts to broaden the already pervasive

and wide-sweeping nets of conspiracy prosecutions”

Grunewald v. United States, 353 U. 8. 391, 404; As

Grunewald, Krulewitch, and other cases in this Court

make clear, the evidentiary rule is intertwined not only

with the federal substantive law of conspiracy, but also

with such related issues as the impact of the statute of

limitations upon conspiracy prosecutions.

In the case before us such policy questions are not

present. Evans was not prosecuted for conspiracy in

the Georgia court, but for the substantive offense of mur-

der.* At his trial the State permitted the introduction

of evidence under a long-established and well recognized

rule of state law.’* We cannot say that the evidentiary

rule applied by Georgia violates the Constitution merely

because it does not exactly coincide with the hearsay

exception applicable in the decidedly different. context

of a federal prosecution for the substantive offense of

conspiracy.

14 We are advised that at the time of Evans’ trial Georgia did

not recognize conspiracy as a separate, substantative criminal offense.

18 The Georgia rule is hardly unique. See, e. g., Reed v. People,

156 Col. 450, 402 P. 2d 68; Dailey v. State, 233 Ala. 384, 171 So.

720; State v. Roberts, 95 Kan. 280, 147 P. 828. See also 2 Wharton,

Criminal Evidence § 430 (12th ed. 1955):

“The acts and declarations of a conspirator are admissible against

& co-conspirator when they are made during the pendency of the

wrongful act, and this includes not only the perpetration of the

offense but also its subsequent concealment... . The theory for

the admission of such evidence is that'persons who conspire to tom-

mit a crime, and who do commit a crime, are as much concerned,

after the crime, with their freedom from apprehension, as they were

concerned, before the crime, with its commission: the conspiracy to

commit the crime devolves after the commission thereof into a con-

spiracy to avoid arrest and implication.”

The existence of such o hearsay exception in the evidence law of

many States was recognized in Krulewitch, supra. 336 U. 8., at 444.

DUTTON v. EVANS 9

II

It is argued, alternatively, that in any event Evans’

conviction must be set aside under the impact of our

recent decisions that have reversed state court convic-

tions because of the denial of the constitutional right

of confrontation, The cases upon which the appellee

Evans primarily relies are Pointer v. Texas, supra; Doug-

las v. Alabama, supra; Brookhart v. Janis, supra; Barber

y. Page, supra; and Roberts v. Russell, supra.

In the Pointer case it appeared that a man named

Phillips had been the victim of a robbery in Texas.

At a preliminary hearing, Phillips “as chief witness for

the State gave his version of the. alleged robbery in

detail, identifying petitioner as the man who had robbed

him at gunpoint.” 380 U. S., at 401. Pointer had no

lawyer at this hearing and did not try to cross-examine

Phillips. At Pointer’s subsequent trial the prosecution

was permitted to introduce the transcript of Phillips’

testimony given at the preliminary hearing. Thus, as

this Court held, the State’s “use of the transcript of that

statement at the trial denied petitioner any opportunity

to have the benefit of counsel’s cross-examination of the

principal witness against him.” 380 U, S., at 403. The

Douglas case, decided the same day as Pointer, involved

an even more flagrant violation of the defendant's right

of confrontation. For at Douglas’ trial the prosecutor

himself was permitted to read an “entire document” pur-

porting to be an accomplice’s written confession after

the accomplice had refused to testify in reliance upon

his privilege against compulsory self-incrimination.

“The statements from the document as read by the

Solicitor recited in considerable detail the circumstances

leading to and surrounding the alleged crime; of crucial

importance, they named the petitioner as the person who

fired the shotgun blast which wounded the victim.” 380

AW

a

10 DUTTON v. EVANS

U. S., at 417. In reversing Douglas’ conviction, this

Court pointed out that the accomplice’s reliance upon

the privilege against compulsory self-incrimination

“created a situation in which the jury might improperly

infer both that the statement had been made and that

it was true.” 380 U.S., at 419. Yet, since the proseeu-

tor was “not a witness, the inference from his reading

that [the accomplice] made the statement could not be

tested by cross-examination. Similarly, [the accom-

plice] could not be cross-examined on a statement im-

puted to but not admitted by him.” bid.

Brookhart v. Janis and Barber v. Page are even further

afield. In Brookhart it appeared that the petitioner had

been “denied the right to cross-examine at all any wit-

nesses who testified against him,” and that, additionally,

“there was introduced as evidence against him an alleged

confession, made out of court by one of his codefen-

dants . . . who did not testify in court.” 384 U.S., at

4. The only issue in the case was one of waiver, since

the State properly conceded that such a wholesale

and complete “denial of cross-examination without

waiver .. . would be constitutional error of the first

magiitede us? 384 U. S., at 3. In Barber the

“principal evidence” against the petitioner was a tran-

seript of preliminary hearing testimony admitted by the

trial judge under an exception to the hearsay rule that,

by its terms, was applicable only if the witness was

“unavailable.” This hearsay exception “has been ex-

plained as arising from necessity ....” 390 U. S., at

722, and we decided only that Oklahoma could not invoke

that concept to use the preliminary hearing transcript

in that case without showing “a good-faith effort” to

obtain the witness’ presence at the trial. Jd., at 725.

In Roberts v. Russell we held that the doctrine of

Bruton v. United States, 391 U. S. 123, was applicable to

the States and was to be given retroactive effect. But

DUTTON v. EVANS ll

Bruton was a case far different from the one now before

us. In that case there was a joint trial of the petitioner

fed that Evans had confessed to him that Evans and the

‘sioner had committed the robbery. This evidence

was, concededly, wholly inadmissible against the peti-

tioner. Evans did not testify. Although the trial judge

instructed the jury to disregard the evidence of Evans’

confession in considering the question of the petitioner's

guilt, we reversed the petitioner’s conviction. The pri-

mary focus of the Court's opinion in Bruton was upon

the issue of whether the jury in the circumstances pre-

sented could reasonably be expected to have followed

the trial judge’s instructions. The Court found that

“(t]he risk of prejudice in petitioner’s case was even more

serious than in Douglas,” because “the powerfully in-

criminating extrajudicial statements of a codefendant,

who stands accused side-by-side with the defendant, are

deliberately spread before the jury in a joint trial.”

391 U.S., at 127, 135-136. Accordingly, we held that “in

the context of a joint trial we cannot accept limiting in-

structions as an adequate substitute for petitioner’s con-

stitutional right of cross-examination.” 391 U.S., at 137.

There was not before us in Bruton “any recognized ex-

ception to the hearsay rule,” and the Court was careful

to emphasize that “we intimate no view whatever that

such exceptions necessarily raise questions under the

Confrontation Clause.” 391 U. S., at 128, n. 3.

It seems apparent that the Sixth Amendment’s Con-

frontation Clause and the evidentiary hearsay rule stem

from the same roots.** But this Court has never equated

16 Jt has been suggested that the constitutional provision is based

on 8 common law principle that had its origin in a reaction to

abuses at the trial of Sir Walter Raleigh. Heller, The Sixth Amend-

ment 104 (1951).

12 DUTTON v. EVANS

the two, and we decline to do so now." We confine

ourselves, instead, to deciding the case before us. © »

This case does not involve evidence in any sense

“crucial” or “devastating,” as did all the cases just dis-

cussed. It does not involve the use, or misuse, of a con

fession made in the coercive atmosphere of official inter.

rogation, as did Douglas, Brookhart, Bruton, and Roberts,

It does not involve any suggestion of prosecutorial mis:

conduct or even negligence, as did Pointer, Douglas, and

Barber. It does not involve the use by: the prosecution

of a paper transcript, as did Pointer, Brookhart, and

Barber. It does not involve a joint trial, as did Bruton

and Roberts. And it certainly does not involve the

wholesale denial of cross-examination, as did Brookhart.

In the trial of this case no less than 20 witnesses ap-

peared and testified for the prosecution. Evans’ counsel

was given full opportunity to cross-examine every one of

them. The most important witness, by far, was the

eye witness who described all the details of the triple

murder and who was cross-examined at greath length.

Of the 19 other witnesses, the testimony of but a single

one is at issue here. That one witness testified to a brief

conversation about Evans he had had with a fellow

prisoner in the Atlanta Penitentiary. The witness was

17 See Confrontation and the Hearsay Rule, 75 Yale L. J. 1434:

“Despite the superficial similarity between the evidentiary rule and

the constitutional clause, the Court should not be eager to equate

them. Present hearsay law does not merit a permanent niche in

the Constitution; indeed, its ripeness for reform is a unifying theme

of evidence literature. From Bentham to the authors of the Uniform

Rules of Evidence, authorities have agreed that present hearsay law

keeps reliable evidence from the courtroom. If Pointer has read

into the Constitution a hearsay rule of unknown proportions, re-

formers must grapple not only with centuries of inertia but with a

constitutional prohibition as well.” Jd, at 1436. (Footnotes

omitted.)

DUTTON v. EVANS 13

vigorously and effectively cross-examined by defense

eounsel.”* His testimony, which was of peripheral sig-

Confrontation Clause, and we conclude that its applica

on in the cireumstances of this case did not violate

Evans was not deprived of any right of confrontation

on the issue of whether Williams actually made the state-

ment related by Shaw. Neither a hearsay nor @ con-

frontation question would arise had Shaw’s testimony

been used to prove merely that the statement had been

made. The hearsay rule does not: prevent @ witness

from testifying as to what he has heard; it is rather a

restriction on the proof of fact through extrajudicial

statements. From the viewpoint of the Confrontation

Clause, a witness under oath, subject to cross-examina-

tion, and whose demeanor can be observed by the trier

of fact, is a reliable informant not only as to what he

has seen but also as to what he has heard.”

The confrontation issue arises because the jury was

being invited to infer that Williams had implicitly iden-

tified Evans as the perpetrator of the murder when he

blamed Evans. for his predicament. But we conclude

that there was no denial of the right to confrontation as

14 DUTTON v. EVANS

to this question of identity. First, the statement: con

tained no express assertion about past fact, and conge.

quently it carried on its face a warning to the jury againgt

giving the statement undue weight. Second, Williams’

personal knowledge of the identity and role of the other

participants in the triple murder is abundantly estab.

lished by Truett’s testimony and by Williams’ prior con.

viction. It is inconceivable that cross-examination could

have shown that Williams was not in a position to know

whether or not Evans was involved in the murder.

Third, the possibility that Williams’ statement was

founded on faulty recollection is remote in the extreme.

Fourth, the circumstances under which Williams made

the statement were such as to give reason to suppose

that Williams did not misrepresent Evans’ involvement

in the crime. These circumstances go beyond a showing

that Williams had no apparent reason to lie to Shaw.

His statement was spontaneous, and it was against his

penal interest to make it. These are indicia of reliability

which have been widely viewed as determinative of

whether a statement may be placed before the jury

though there is no confrontation of the declarant.

The decisions of this Court make it clear that the

mission of the Confrontation Clause is to advance a prac-

tical concern for the accuracy of the truth determining

process in criminal trials by assuring that “the trier of

fact [has] a satisfactory basis for evaluating the truth of

the prior statement.” California v. Green, 399 U. S., at

161. Evans exercised, and exercised effectively, his right

to confrontation on the factual question whether Shaw

had actually heard Williams make the statement Shaw

related. And the possibility that cross-examination of

Williams could conceivably have shown the jury that

the statement, though made, might have been unreliable

was wholly unreal.

DUTTON v. EVANS 15

Almost 40 years ago, in Snyder v. Massachusetts, 291

U. §. 97, Mr. Justice Cardozo wrote an opinion for this

Court refusing to set aside a state criminal conviction

because of the claimed denial of the right of confronta-

The closing words of that opinion are worth

repeating here:

“There is danger that the criminal law will be

brought into contempt—that discredit will even

touch the great immunities assured by the Four-

teenth Amendment—if gossamer possibilities of prej-

udice to a defendant are to nullify a sentence pro-

nounced by a court of competent jurisdiction in

obedience to local law, and set the guilty free.”

291 U. S. 122.

The judgment of the Court of Appeals is reversed, and

the case is remanded to that court for consideration of

the other issues presented in this habeas corpus

proceeding.”

It is so ordered.

20 Jt was conceded at oral argument that the death penalty im-

posed in this case cannot be carried out, because the jury was quali-

fied under standards violative of Witherspoon v. Illinois, 391 U. Ss.

510. The Court of Appeals for the Fifth Circuit has already set

aside, under Witherspoon, the death sentence imposed upon Venson

Williams, Evan’s alleged accomplice. See Williams v. Dutton, 400

F. 2d 797, 804-805.

SUPREME COURT OF THE UNITED STATES

-

No. 10.—Octoper Term, 1970

Warden,

A. L. reer ; arden atid

rt) States Court of Appeals for

Alex S. Evans. the Fifth Circuit.

[December 15, 1970]

Mr. Justice BLACKMUN, whom THE CHIEF JUSTICE

joins, concurring.

I join Mr. JUSTICE Srewart’s opinion. For me, how-

ever, there is an additional reason for the result.

The single sentence attributed in testimony by Shaw

to Williams about Evans, and which has prolonged this

litigation, was, in my view and in the light of the entire

record, harmless error if it was error at all. Further-

more, the claimed circumstances of its utterance are so

incredible that the testimony must have hurt, rather

than helped, the prosecution’s case. On this ground

alone, I could be persuaded to reverse and remand.

Shaw testified that Williams made the remark at issue

when Shaw “went te his room in the hospital” and

asked Williams how he made out at s court hearing on

the preceding day. On cross-examination, Shaw stated

that he was then in custody at the federal penitentiary

in Atlanta; that he worked as a clerk in the prison

hospital; that Williams was lying on the bed in his

room and facing the wall; that he, Shaw, was in the hall

and not in the room when he spoke with Williams; that

the door to the room “was closed”; that he spoke through

an opening about 10 inches square; that the opening

“has a piece of plate glass, window glass, just ordinary

window glass, and a piece of steel mesh”; that this does

not impede talking through the door; and that one talks

in a normal voice when he talks through that door.

2 DUTTON v. EVANS Dar

Shaw conceded that when he had testified at Williams’

earlier trial, he made no reference to the glass in the

opening in the door. )

Carmen David Mabry, called by the State, testified

that he was with the United States Public Health Sery.

ice and stationed at the Atlanta penitentiary. He de.

scribed the opening in the door to Williams’ room and

said that it contained a glass “and over that is a wire

mesh, heavy steel mesh”; that he has “never tried to talk

through the door”; that, to his knowledge, he has never

heard “other people talking through the door”; that,

during his 11 years at the hospital, the glass has not

been out of the door; and that the hospital records dis-

closed that it had not been out.

I am at a loss to understand how any normal jury,

as we must assume this one to have been, could be led

to believe, let alone be influenced by, this astonishing

account by Shaw of his conversation with Williams in a

normal voice through a closed hospital room door. I

note, also, the Fifth Circuit’s description of Shaw’s testi-

mony as “somewhat incredible” and as possessing “basic

incredibility.” 400 F. 2d, at 828 n. 4.

In saying all this, I am fully aware that the Fifth

Circuit panel went on to observe, in the footnote just

cited, “[W]Je are convinced that it cannot be called harm-

less.” And Justice Quillian, in sole dissent on the direct

appeal to the Supreme Court of Georgia, stated, “[I]t

obviously was prejudicial to the defendant.” 222 Ga.,

at 408; 150 S. E. 2d, at 251. However, neither the

Georgia Superior Court judge who tried the case nor the

federal district judge who held the hearing on Evans’

petition for federal habeas concluded that prejudicial

error was present. Also, we do not know the aitti-

tude of the Georgia Supreme Court majority, for they

decided the issue strictly upon the pronounced limits

DUTTON v. EVANS 3

of the long established Georgia hearsay rule, 222 Ga.,

at 402; 150 S. E. 2d, at 248, and presumably had no

occasion to touch upon any alternative ground such as

ess. I usually would refrain from passing upon

an issue of this kind adversely to a federal court of

appeals, but when the trial judges do not rule, I would

suppose that we are as free to draw upon the cold record

as is the appellate court.

I add an observation about corroboration. Marion

Calvin Perry, another federal prisoner and one who

admitted numerous past convictions, including “larceny

of automobiles,” testified without objection that he had

known Williams and Evans for about 10 years, and

Truett for about two years; that he spoke with Williams

and Evans some 25 or 30 days prior to the murders

of the three police officers; that Williams owed him

money; that he and Williams talked by telephone

“la]bout me stealing some cars for him”; that Williams

told him that “Alex [Evans] would know what kind of

car he [Williams] would want”; that a few days later

“me and Alex talked about cars and I told him I didn’t

want to mess with Venson [Williams]”; that Evans said,

“if I got any, he said I could get them for him”; that

seven or eight days before the murders Williams asked

him by telephone whether he, Perry, “still had the Olds-

mobile switch”; that the week of the murders he argued

with Evans about how much he should receive for each

stolen car; that six days after the murders he saw Evans

at a filling station; that they talked about the murders;

that “I said if I wanted to know who did it, I would see

mine and your friend”; and that Evans “got mad as hell”

and “told me if I thought I knowed anything about it

to keep my damn mouth shut.”

Another witness, Lawrence H. Hartman, testified that

his 1963 red Oldsmobile hardtop was stolen from his

home in Atlanta the night of April 16, 1964 (the murders

took place on the early morning of April 17), He went

on to testify that the 1963 Oldsmobile found burning near

the scene of the tragedy was his automobile. There jg

testimony in the record as to the earlier acquisition by

Evans and Williams of another wrecked Oldsmobile of

like model and color; as to the towing of that damaged

car by a wrecker manned by Williams and Evans; and

as to the replacement of good tires on a Chevrolet oo

eupied by Williams, Evans, and Truett, with —

tires then purchased by them.

This record testimony, it seems to me, bears di

and positively on the Williams-Evans-Truett car

conspiracy and accomplishments and provides indisput-

able confirmation of Evans’ role. The requirements of

the Georgia corroboration rule were fully satisfied and

Shaw’s incredible remark fades into practical and legal

insignificance.

The error here, if one exists, is harmless beyond a

reasonable doubt. Chapman v. California, 386 U. 8: 18,

21-25; Harrington v. California, 395 U. 8. 250.

SUPREME COURT OF THE UNITED STATES

“Ne 10.—Ocropsr TerM, 1970

Stings en arene

A. L. Dutton, Warde n Appeal From the United

— , States Court of Appeals for

’ theXifth Circuit.

Alex 8. Evans. < ‘eit or

[December 15, 1970),

Mr. Justice Haran, concurring in the Psult.

Not surprisingly the difficult constitutional issue pre-

sented by this case has produced multiple opinions. \ Mr.

Justice Stewart finds Shaw’s testimony admissible be-

cause it is “wholly unreal” to suggest that cross-examina- “-.

tion would have weakened the effect of Williams’ state-

ment on the jury’s mind. Mr. Justice BLackMvN, while

concurring in this view, finds admission of the state-

ment 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 which I cainot accept. He appar-

ently would prevent the prosecution from introducing

any out-of-court statement of an accomplice unless there

is an opportunity for cross-examination, and this regard-

less 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 excep-

tions 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.

2 DUTTON v. EVANS

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. ¢. a

cross-examining procedure—in the case of such testi-

mony as is required by the ordinary law of Evidence

to be given infra-judicially.” 5 J. Wigmore, Evi-

dence §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 paradigm evil the Confronta-

tion Clause was aimed at—trial by affidavit —can be

viewed almost equally well as a gross viclation 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, if 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

1 See California v. Green, supra, at 179 (concurring opinion): his-

torically, “the Confrontation Clause was meant to constitutionalize

a barrier against flagrant abuses, trial by anonymous accusers, and

absentee witnesses.”

DUTTON v. EVANS 3

particularly ill-chosen if what was intended was a pro-

hibition 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 con-

currence in California v. Green, supra, that the Con-

frontation 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 evi-

dence pointing in that direction. It is common ground

that the historical understanding of the clause furnishes

no solid guide to adjudication.*

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 incon-

venient and of small utility to a defendant. Examples

which come to mind are the Business Records Act, 28

U. S. C. §§ 1732-1733 (1964), and the exceptions to the

hearsay rule for official statements, learned treatises, and

trade revorts. See, e. g., Uniform Rules of Evidence

Rules 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 invoived

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

2See California v. Green, supra, at 175—179, especially 176 n. 8

(concurring opinion).

4 DUTTON v. EVANS

case at hand may be an example, the Sixth Ame

guerantees federal defendants the right of compulsory

process to obtain the presence of witnesses, and in Wash

ington v. Texas, 388 U.S. 14 (1967), this Court held that

the Fourteenth Amendment extends the same protection

to state defendants.*

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 fae-

tors which must be weighed in passing on the appro-

priateness of rules of evidence. The failure of the plural-

ity 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 put to work for

which it is not suited. The task is far more appropriately

performed under the aegis of the Fifth and Four

teenth 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 federai and state rules of evidence.‘

It must be recognized that not everything which has

been said in this Court’s cases is consistent with this

8 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. Trans-

cript of Argument 51, 55.

* Reliance on the Due Process Clauses wouid 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.

DUTTON v. EVANS 5

position. However this approach is not necessarily in-

consistent with the results which have been reached. Of

the major “eonfrontation” decisions of this Court, seven

involved the use of prior recorded testimony.’ 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 “con-

frontation” to satisfy the requirement of the clause. Re-

gardless 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 “[djocumentary 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

(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 ac-

complice resulting from formal police interrogation can-

not be introduced as evidence of the guilt of an accused,

absent some circumstance indicating authorization or

5 Reynolds v. United States, 98 U. S. 145 (1879); Mattoz v.

United States, 156 U. S. 237 (1895); Motes v. United States, 178

U.S. 458 (1900); West v. Louisiana, 194 U. S. 288 (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).

6 DUTTON v. EVANS

adoption. The exclusion of such evidence dates at least

from Tong’s Case, Kelyng 17, 18-19, 84 Eng. Rep. 1063,

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. §,

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 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 judg-

ments. Accord, 4 Wigmore, supra, § 1079, at 133. In-

deed, the Kirby Court indicated that lack of confronta-

tion 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 sus-

tained. Accomplishment of the main object of a con-

spiracy 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 car be

proved by hearsay evidence, the facts it reveals are likely

to remain hidden from the jury by the declarant’s invoca-

—

DUTTON v. EVANS 7

tion of the privilege against self-incrimination.° 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 pos-

sessed any peculiar characteristic that would lessen the

force of these general considerations and require, as @

constitutional matter, that the trial judge exercise resid-

ual discretion to exclude the evidence as unduly in-

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.

¢ 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).

SUPREME COURT OF THE UNITED STATES

No. 10.—Ocroser Term, 1970

A. L. Dutton, Warden,| 4 5eal From the United

Appellant, States Court of Appeals for

on the Fifth Circuit.

Alex S. Evans.

[December 15, 1970]

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. According to Shaw, the statement, which

implicated both Williams and Evans in the crime, was

made in a prison conversation immediately after Wil-

liams’ arraignment. Williams neither testified nor was

called as a witness. Nevertheless, the Court today holds

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

(1965), and Bruton v. United States, 391 U. S. 123

(1968). In my view, those cases fully apply here and

establish a clear violation of Evans’ constitutional rights.

1Shaw had been a witness at Williams’ trial; his testimony was

fully anticipated and was objected to both before and after its

admission.

2 DUTTON v. EVANS

In Pointer v. Texas, 380 U. S. 400 (1965), this Court

first held that “the Sixth Amendment’s right of ap

accused to confront the witnesses against him is. . .

a fundamental right and is made obligatory on the States

by the Fourteenth Amendment.” 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 circum.

stances not affording the defendant an adequate oppor-

tunity 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. Barber v. Page, 390 U. S. 719 (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.” IJd., at 725.

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,’? the Court held that the prosecu-

2This 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 avail-

ability of a declarant the only concern of confrontation, see Cal-

DUTTON v. EVANS 3

tor’s reading of Loyd’s statement in 8 purported attempt

to refresh his memory denied Douglas’ right to confronta-

tion. “Loyd could not be cross-examined on 8 statement

imputed to but not admitted by him.” 380 U.S., at 419.

Of course, Dougles was provided the opportunity to cross-

examine the officers who testified regarding Loyd’s state-

ment. “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.”* Id., at

490. Surely, the same reasoning compels the exclusion of

Shaw’s testimony here. Indeed, the only significant dif-

ference 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 avail-

able to the State, and for all we know he would have

willingly testified, at least with regard to his alleged

conversation with Shaw.*

Finally, we have applied the reasoning of Douglas to

hold that, “despite instructions to the jury to disregard

the implicating statements in determining the codefend-

ant’s guilt or innocence, admission at a joint trial of a

testimony, by timing of trials and use of testimonial immunity,

would seemingly have to be decided. See Note, Exercise of the

Privilege Against Self-Incrimination by Witnesses and Codefendants:

The Effect Upon the Accused, 33 U. Chi. L. Rev. 151, 165 (1965).

3 Cf. Brookhart v. Janis, 384 U. S. 1, 4 (1966).

‘The majority 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. Trans. Oral Arg., O. T. 1970, at 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.

4 DUTTON v. EVANS

defendant’s extrajudicial confession implicating « ¢ode.

fendant violated the codefendant’s right of cross-exam.

ination secured by the Confrontation Clause of the Sixth

Amendment.” Roberts v. Russell, 392 U. 8. 293 (1968),

giving retroactive effect in both state and federal trials to

Bruton v. United States, 391 U. S. 123 (1968). Thus

Williams’ alleged statement, an extrajudicial admission

made to a fellow prisoner, could not even have been in-

troduced 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. ae

Mr. Justice Stewart's opinion for the plurality 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 pigeonholes the out-of-court statement

that was admitted in evidence as a “spontaneous” utter-

ance, hence to be believed. As the Court of Appeals

concluded, however, there is great doubt that Williams

even made the statement attributed to him.’ More-

over, there remains the further question what, if any-

thing, Williams might have meant by the remark that

5 After considering Shaw’s testimony and other evidence sub-

mitted 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.

DUTTON v. EVANS 5

Shaw recounted. The plurality concedes that the re-

mark is ambiguous. Plainly it stands as an accusation

of some sort: “Tf 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 testi-

mony to the effect that the murder prosecution

might have arisen from enmities which 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, OF

Evans as & murderer? The plurality opts for the latter

interpretation, for it concludes that Williams’ remark

was “against his penal interest” and hence to be be-

lieved. But at this great distance from events, no one

can be certain. The point is that absent cross-exam-

ination 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 ques-

tions which 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

statement in the light of Williams’ testimony and de-

meanor. 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 the opinion of the plurality for reversal con-

cludes that there was no violation of Evans’ right to

confrontation, it does so in the complete absence: of

authority or reasoning to explain that result. For exam-

6 DUTTON v. EVANS

ple, 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,* and no reason is offered why the right

to 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.” The prevailing plurality surely does

not mean that a defendant’s constitutional right to con-

frontation must give way to a state evidentiary rule.

That much is established by our decision in Barber y,

Page, supra, which held unconstitutional the admission

of testimony in accordance with a rule similarly well rec-

ognized and long established. However, the plurality

neither succeads 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 re-

luctance to equate evidentiary hearsay rules and the

Confrontation Clause."

*For example, Pointer involved only the second, and that one

was not present in either Bruton or Roberts.

* Constitutionalization of “all common-law hearsay rules and

their exceptions,” California v. Green, 399 U. S., at 174 (concurring

opinion), would seem to be a prospect more frightening than real.

Much of the complexity afflicting hearsay rules comes from the defi-

nition 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 look-

ing 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, and that admission in the absence of cross-

examination of certain types of suspect and highly damaging state-

ments 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.

DUTTON v. EVANS 7

The Court of Appeals, however, was not of the view

that the Confrontation Clause implies unrelenting hos-

tility to whatever e i ce 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 hear-

say rule and its so-called co-conspirators exception,* 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 accom-

plice who was not made available for cross-examination

what it termed an obvious abridgment of Evans’ right

to confrontation. Since the State presented no satis-

factory justification for the denial of confrontation, ef.

Pointer v. Texas, 380 U. S., at 407, 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 & crim-

® Evans was not charged with conspiracy nor could he have been

“eonspiracy” element came in as part of

which goes far beyond the

to the

had already been arraigned

United States, 329 U. S. 211, 217

furtherance of the criminal enterprise.

it.” One lower court in Georgia has adopted essentially this reason-

ing 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. Q, infra.

—_—<—~=y

8 .VTTON v. EVANS

inal trial. In any case, that Shaw's testimony was

admitted in accordance with an established rule of state

law cannot aid the prevailing plurality in reaching its

conclusion. Carried to its logical end, justification of 9

denial of the right to confrontation on that basis would

provide for the wholesale avoidance of this Court’s deci-

sions in Douglas and Bruton, decisions which the plu-

rality itself reaffirms. Indeed, if the prevailing opinion

meant what it says, it would come very close to estab-

lishing 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 prevailing opinion apparently distinguishes

the present case on the ground that it “does not involve

evidence in any sense ‘crucial’ or ‘devastating.’” De-

spite 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. Trueti spoke as an admitted accom-

plice who had been immunized from prosecution. Rely-

* The Georgia rule involved here, which apparently makes admis-

sible all pre-trial statements and admissions of an alleged accomplice

or co-conspirator, 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).

DUTTON v. EVANS

(T]he testimony of an accomplice must be corrobo-

_..« [The 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.”*

Indeed, the prevailing opinion does not itself upset the

Court of Appeals’ finding that the admission of Shaw’s

testimony, if erroneous, could not be considered harm-

jess. 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 evi-

dence falling short of that high standard of prejudice

would bring a moment of clamor against the Bill of

1 The trial judge’s instructions left no doubt that the statement

attributed to Williams could provide the necessary corroboration.

See Trial Record, at 412-413. Indeed, the prejudicial impact of

Shaw's testimony is graphically revealed simply by juxtaposing two

quotations. First, there is the prevailing opinion’s characterization

of Shaw's testimony, & characterization which I find fair albeit

studiedly mild: “. .. the 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 dou! ” that

the error complained of did not contribute to the verdict obtained.

Chapman vy. California, 386 U. &. 18, 24 (1967); Harrington v.

California, 395 U. 8S. 250, 251 (1969).

10 DUTTON v. EVANS

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 i

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’ recol-

lection 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 re-

versal, 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 relia-

bility” may cling to Williams’ remark, as told by Shaw.

Whether Williams made a “spontaneous” statement

“against his penal interest” is the very question which

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." I believe the Con-

12 Mr. Justice HaRLAN answers this question with directness by

adopting, to decide this case, his view of due process which appar-

ently makes no distinction between civil and criminal trials, and

which would prohibit only irrational or unreasonable evidentiary

—_—

DUTTON v. EVANS 1l

frontation Clause has been sunk if any out-of-court

statement bearing an indicium of a probative likelihood

ean come in, no matter how damaging the statement

may be or how great the need for the truth-discovering

test of .xamination. Cf. Calijornia v. Green, 399

U.S. 149, 161-162 (1970). Our decisions from Pointer

and Douglas to Bruton and Roberts reauire more than

this meager inquiry. Nor is the lame “indicia” ap-

necessary to avoid a rampaging Confrontation

Clause which tramples all flexibility and innovation in

a state’s law of evidence. That spectre is only a

tre? To decide this case I need not go beyond

hitherto settled Sixth and Fourteenth Amendment law

to consider generally what effect, if any, the Confronta-

tion 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. The incriminator, 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 state-

ment 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.

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.

12 See n. 7, supra.