# Dutton v. Evans

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.

## Concurring Opinion

    Harlan
United States Supreme Court
400 U.S. 74
Dutton, Warden v. Evans
Appeal from the United States Court of Appeals for the Fifth Circuit
No. 10. Argued: October 15, 1969, and 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 testimony 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. Pp. 80-90; 93-100.
MR. JUSTICE STEWART, joined by THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE BLACKMUN, concluded that:
    1. The coconspirator hearsay exception applied by Georgia is not invalid under the Confrontation Clause of the Sixth Amendment, as applied to the States by the Fourteenth, merely because it does not coincide with the narrower exception applicable in federal conspiracy trials which results, not from the Sixth Amendment, but from the exercise of this Court's rule-making power respecting the federal law of evidence. Pp. 80-83.
    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. 83-90.
MR. JUSTICE HARLAN 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 factors involved in passing on evidentiary rules), but by the due process standards of the Fifth and Fourteenth Amendments. Thus evaluated, the Georgia statute is constitutional as applied in this case since the out-of-court declaration against interest involved here evinces some likelihood of trustworthiness and its exclusion from evidence is therefore not essential to a fair trial. Pp. 93-100.
STEWART, J., announced the Court's judgment and delivered an opinion, in which BURGER, C.J., and WHITE and BLACKMUN, JJ., joined. BLACKMUN, J, filed a concurring opinion, in which BURGER, C.J., joined; post, p. 90. HARLAN, J., filed an opinion concurring in the result, post, p. 93. MARSHALL, J., filed a dissenting opinion, in which BLACK, DOUGLAS, and BRENNAN, JJ., joined, post, p. 100.
Alfred L. Evans, Jr., Assistant Attorney General of Georgia, reargued the cause for appellant. With him on the brief were Arthur K. Bolton, Attorney General, and Marion O. Gordon and Mathew Robins, Assistant Attorneys General.
Robert B. Thompson reargued the cause and filed a brief for appellee.
Solicitor General Griswold, by invitation of the Court, argued the cause for the United States as amicus curiae on the reargument. With him on the brief were Assistant Attorney General Wilson, Jerome M. Feit, Beatrice Rosenberg, and Roger A. Pauley.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse