# Opinion — Dutton v. Evans

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0215%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1970
- **Citation:** 400 U.S. 74

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0215%3A7. Public record. Not legal advice.