# Nelson v. O'Neil

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## Concurring Opinion

    Harlan

## Dissenting Opinions

    Brennan
    Marshall
United States Supreme Court
402 U.S. 622
Nelson, Warden v. O'Neil
Certiorari to the United States Court of Appeals for the Ninth Circuit
No. 336. Argued: March 24, 1971 --- Decided: June 1, 1971
Respondent and one Runnels were charged with committing various crimes and at their joint trial offered an alibi defense. A police officer testified that Runnels had orally admitted the crimes and implicated respondent. Runnels, who took the stand, denied making the statement. The trial judge ruled that Runnels' alleged statement was inadmissible hearsay as to respondent and could not be considered by the jury in deciding whether respondent was guilty. Respondent also took the stand on his own behalf and gave the same version of their activities as Runnels. Both defendants were found guilty, and, after unsuccessful efforts to have his conviction set aside, respondent applied for habeas corpus relief. The District Court ruled that respondent's conviction was improper under Bruton v. United States, 391 U.S. 123, and Roberts v. Russell, 392 U.S. 293, which held that the Confrontation Clause of the Sixth Amendment as made applicable to the States by the Fourteenth is violated where a codefendant's out-of-court hearsay statement is admitted into evidence without the declarant's being available at trial for "full and effective" cross-examination by the defendant, and that a cautionary instruction to the jury does not adequately protect the defendant where the codefendant does not testify. The Court of Appeals affirmed, stressing that effective confrontation of a witness who has allegedly made an out-of-court statement implicating the defendant was possible only if the witness affirmed the statement as his.
Held: Where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and testifies in the defendant's favor, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments and in the circumstances of this case respondent, who would have encountered greater difficulty had Runnels affirmed the statement as his, was denied neither the opportunity nor the benefit of fully and effectively cross-examining Runnels. Bruton, supra, distinguished. Pp. 626-630.
422 F. 2d 319, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACK, HARLAN, WHITE, and BLACKMUN, JJ., joined. HARLAN, J., filed a concurring opinion, post, p. 630. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 632. MARSHALL, J., filed a dissenting opinion, post, p. 635.
Charles R.B. Kirk, Deputy Attorney General of California, argued the cause for petitioner. With him on the brief were Evelle J. Younger, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and John T. Murphy, Deputy Attorney General.
James S. Campbell, by appointment of the Court, 400 U.S. 955, argued the cause and filed a brief for respondent.

## 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).
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