Warren E. Burger: Today's calendar for argument is Number 387, California against John Anthony Green. Mr. James, you may proceed whenever you're ready.
William E. James: Mr. Chief Justice -- thank you. Mr. Chief Justice, may it please the Court. This matter is before this Court on the petition of the state of California containing that the Supreme Court of the state of California improperly and incorrectly interpreted the rulings of this Court on the question of the confrontation clause of the Sixth Amendment and that pursuant to that misinterpretation of the confrontation clause that the Supreme Court of California held unconstitutional a state statute that would have permitted the admission for the truth of the matters asserted prior inconsistent statements of a witness who was present at trial and subject to cross examination. It was only a few weeks back I believe that this Court had occasion to view another aspect of the confrontation clause and in Illinois versus Allen held there that a defendant could deprive himself of the right by his conduct to be present in Court. The Court emphasized that one of the rights included in the confrontation clause of the Sixth Amendment was the right to be present in Court. How else could you confront your accusers and this Court has been consistent in holding that the Sixth Amendment right is a right at trial, a right to conduct cross examination of the accusers, of the witnesses against the particular defendant. In the early case -- I should say in the first case where this Court held that the confrontation clause was obligatory on that states Pointer versus Texas, this Court said as has been pointed out a major reason underlying the constitutional right of confrontation is to give a defendant charged with crime an opportunity to cross examine the witnesses against him. This Court followed that with the case of Barber versus Page emphasizing that 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. In a companion case to Pointer, Douglas versus Alabama, this Court used these terms. Our cases construing the clause referring to the confrontation clause hold that a primary interest secured by it is a right of cross examination. An adequate opportunity for cross examination may satisfy the clause even in the absence of physical confrontation. In that particular case, a defendant Douglas had a co-defendant who was separately tried, Loyd. Loyd was convicted and took an appeal and at the trial of Douglas, the prosecution called Loyd and Loyd since he had an appeal pending decided to exercise his privilege against self incrimination and refused to answer questions so the prosecutor commenced to read his confession which implicated Douglas to him and the prosecutor asked the witness Loyd at each sentence if he had made this statement and he refused to answer on the ground of self incrimination and this Court held that the defendant Douglas had been denied the effective right of confrontation because he had no opportunity to cross examine the witness who was exercising the privilege against self-incrimination and in Bruton, a more recent case discussing the aspects of confrontation, this Court said in reference to the Douglas case, we held that Douglas' inability to cross examine Loyd denied Douglas the right of cross examination secured by the confrontation clause. We noted that effective confrontation of Loyd was possible only if Loyd affirmed the statement as his, however, Loyd did not do so but relied on his privilege to refuse to answer. Now, the California legislature in 1965 adopted the evidence code of California, incorporating in that code, the other provisions contained relating to evidence in the code of civil procedures and other codes and abandoned by the adoption of that code, the so-called orthodox view as to impeachment, the use of impeaching prior inconsistent statements and adopted what has been referred to as the academic view, that is that prior inconsistent statements of a witness, present in Court and subject to cross examination would be admissible as substance of evidence and they enacted evidence code Section 1235 which is the statute involved in this case and made it effective in California on January 1, 1967 and the factual basis upon which this case arises involved --
Potter Stewart: Before you proceed to the facts to this case General James, is there any available evidence showing the legislative history of this amendment in the California code relating to evidence, any -- is there anything --
William E. James: Yes --
Potter Stewart: That you know off that shows why the state legislature did this?
William E. James: Yes Your Honor. The code commissioners when the evidence code was being considered by the legislature made comments and the comments of the code commissioners are contained in the code. I believe they were coded in our petition for certiorari and also in our petition for -- in our brief filed for the petitioner herein, the code commissioner's notes were also referred to in the notes of the committee for the adoption of the rules of evidence for the federal courts and magistrates and there contained in --
Potter Stewart: These notes indicate what? That this was in response to some sort of a felt need or was just as the academic rule and these commissioners were academic people and they thought they got to put on that rule, what was it?
William E. James: Well, it was a conclusion of the commissioners that this was the federal rule of evidence and that there was no reason why these statements shouldn't be used as had been suggested by Wigmore in his latest work has been expressed by McCormick in his work on evidence. I think in our petitioner's opening brief at pages 36 and 37 where we are discussing the reasons by the advisory committee for the proposed rules of evidence for the federal courts and magistrates, they adopted a portion of the code commissioner's notes and has contained there, it generally states that Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely non-existent and it goes in continuance and it concludes by citing McCormick in his code and evidence and then the advisory committee of the federal rules, a committee for the adoption of the federal rules states that advisory committee finds this view more convincing than those expressed in People versus Johnson which was a predecessor of the Green case. Moreover, the requirement that the statement be inconsistent with the testimony given assures a thorough explanation of both versions of the witnesses on the stand and bars, any general and indiscriminate use of previously prepared statements. The commissioner's notes are contained in a number of volumes which preceded the action by the state legislature in adopting the evidence code.
Warren E. Burger: Is the availability of the primary speaker in the courtroom one of the conditions of the California statute?
William E. James: Yes Your Honor.
Warren E. Burger: As it is under the proposed federal rule?
William E. James: Yes, yes. The Section provides in evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770 of the evidence code and so they -- it contemplates the presence of a witness in Court who is subject to cross examination and who's demeanor maybe viewed by the trier of fact.
Warren E. Burger: And you do not see this as conflict with any prior decision of this Court?
William E. James: I don't know of any prior decision of this Court that it conflicts with. The cases to which I've been referring all relate to situations where the defendant was effectively denied. Confrontation by lack of thorough cross examination of the trial, either the --
Warren E. Burger: That was this?
William E. James: -- declarance wasn't there or he made himself unavailable by an exercise of a privilege or as in Smith versus Illinois, the defendant was precluded from some effective interrogation.
Warren E. Burger: In the Douglas case, this Court equated the assertion of the Fifth Amendment right as being the same as not being present, not being available?
William E. James: It effectively denied cross examination to the defendant and he wasn't able to examine the witness over the declarant in Court and this Court pointed out that it would have been different had he been able -- had he been able in Douglas to cross examine Loyd which he was not. We submit that this is a basic and fundamental factor. I think that the confrontation clause and the rules of evidence, the hearsay rules of evidence are sometimes deemed to be coexistent but I think a commentator has noted that there are fundamental differences. The right of confrontation secures to the defendant the right to be present in Court, to confront his accusers, to cross examine those accusers, to probe into their story and to have the privilege of having the accusers in Court subject to the view, scrutiny of the triar of fact and that is what the confrontation clause gives. The rules of evidence concern themselves with the reliability of out of Court statements of declarance of may or may not be in Court and do not concern directly the confrontation right which was granted to the accused in the Green case and would be granted under the state statute and we submit, I'm sure the solicitor will submit under the proposed rules for the federal courts and magistrates.
Byron R. White: (Inaudible)
William E. James: In this case it was approved by the first, the reading of a preliminary hearing transcript and also by the statement made to an officer of the juvenile court by the officer himself who testified concerning these statement of the defendant.
Potter Stewart: Have here two types of a prior statement. One, statement under oath under preliminary hearing of which a transcript was made in a magistrate proceeding?
William E. James: Correct.
Potter Stewart: On one end and additionally an unsworn statement made in no judicial proceeding but made to an officer, to made to an officer while at the -- of the juvenile court?
William E. James: That's correct Your Honor.
Potter Stewart: unsworn?
William E. James: Yes.
Potter Stewart: And there may or may not be a difference with respect to the two, I know you --
William E. James: We submit that the reason involvements --
Potter Stewart: -- shouldn't have involved in this --
William E. James: Under the rule of confrontation at least --
Potter Stewart: Right.
William E. James: And that perhaps judicial policy of policy of legislature in adapting one rule or another are -- where the various conflicts arise. Judge Stone in the Minnesota case gave very eloquent reasons why the orthodox rules should be adopted.
Potter Stewart: But you did and the Supreme Court of California confesses error with respect to the later?
William E. James: Only as it pertained to the in to the state court ruling which we bound by at that time.
Potter Stewart: That's why -- right, because by previous state court decision?
William E. James: That's right. At that time we had pending a petition for certiorari in Johnson in this Court which was not denied until January 20, 1969.
Potter Stewart: Right. So the fact is you did confess error but submitted it that the error was harmless error, wasn't that it?
William E. James: Yes.
Potter Stewart: Right.
William E. James: But we made no intention of conceding the issue, we were bound at that time by final state court decision which we were contesting unsuccessfully or heads were bloody but on bout at that time. The factual context where this case arises is the fact that a minor in early part of January of 1967 came into possession of a quantity of narcotics and marihuana and ultimately and on January 10th sold it to an undercover officer. Further investigation including an arrangement for a meeting between the officer and the defendant Green resulted in Green's arrest and a preliminary hearing which was held on February 8, 1967, he was held to answer and information was filed and he was charged with violation of California Health and Safety Code Section 11532 furnishing to a minor a narcotic and he came trial on this charge on April 5th and April 6 of 1967. At this trial, the people introduced the first witness, the minor himself, one Melvin Porter and he was placed on the stand and he was asked some questions and he related that in the early part of January, some time between the first and the 10th of January 1967, he'd received a telephone call from the defendant, the defendant told him that he had some stuff for him to sell but the witness, the minor witness testified that he couldn't remember what happened because he was under the influence of LSD and at that point, the people introduced pursuant to evidence code Section 1235, the portion of the direct examination of this particular witness in which he related that the conversation over the telephone with the defendant Green related to a sale, the selling by Porter of a kilo of marihuana and the testimony was -- preliminary testimony was that the marihuana came in 29 baggies in a large shopping bag and the witness at the trial, the minor witness who was asked if this was his recollection of what occurred and if that was the way he testified and if he believe he was telling the truth when he testified at the preliminary and he said yes, I believe it to be at that time, yes. He was then asked how he came into possession of this marihuana which portion of which he'd ultimately sold to this undercover police officer and he said that he couldn't recall who he got it from or where he found it. And so again, the people pursuant to evidence code Section 1235 referred to this time, the cross examination of the minor witness at the preliminary hearing and when she acknowledged that the marihuana was pointed out to him by the defending Green who was apparently at the defendant Green's father's home and that after the defendant had pointed out to him the boy went and got it and thereafter consumed part of it, sold six or seven baggies including one sale to the undercover officer and the rest was supposedly was stolen from his closet. Now, he was asked at the trial concerning this statement that he had made, the testimony that he had given at the preliminary examination and he was asked this particular question, “alright, now with your recollection refreshed, would you tell us of your own knowledge where did you get that bag of marihuana?” And he said, “Well, I guess I got it from his backyard”. It was inquired who's backyard, he said “John”, referring to the defendant and the question by the prosecutor at the trial, “did you get any money for selling this marihuana, the bags that you managed to sell?” Answer, “Yes”. Question, “What did you do with the money?” Answer, “I gave it to John I think”. Question, “to the defendant?” Answer, “yes I guess”. This is page 23 of the appendix.
Potter Stewart: Now, is this testimony that he was giving at the trial or is this --
William E. James: This is testimony he was giving at the trial following the reading of his cross examination at the preliminary hearing. The trial was on April 5th ands 6th. The preliminary hearing had been on February 8. Thereafter, the people also put on the witness stand, the narcotic juvenile officer, juvenile narcotic's officer, officer Wade and they asked him he had had a conversation with the minor Porter and he related that he had and he testified that this conversation took place on January 31 and that at this conversation, Porter had told him that he had obtained this marihuana grass or stuff as he referred to it from the defendant Green and that Green had brought it over to his house and it consisted of 29 wax paper bags in a shopping bag, a large shopping bag and the witness, this witness was cross examined by counsel for the defendant and subsequently, when the minor witness Porter was recalled as part of the defendant's case in chief for further cross examination, counsel questioned the minor regarding his statement to the police officer and he was asked if he had made this statement and then, “do you recall what you told him at that time?” Answer, “umm let's see”. “Will it had to do with buying it from John?” “Yes sir, I mean, I couldn't say exactly what went on or not”. Question, “well, do you remember telling the officer that Mr. Green phoned you up and told you that he Mr. Green had some marihuana and wanted to bring it over and leave it at your house?” Answer, “I might have said that, yes”. Question, “Do you remember telling him that Mr. John Green had brought the marihuana over to your house that day, the day that you had the conversation with Mr. Green?” Answer, “I think, let's see, yes I think so”. And then he was questioned and this is pages 59 and 60. He was questioned whether he believed he was telling the truth when he made the statement to the police officer on January 31 and he said yes sir. He was also asked if he believed he was telling the truth when he testified at the preliminary hearing on February 8 and answered yes, and he was also asked if he was testifying truthfully in Court and he also replied in the affirmative. We submit that in the context of this particular case with particular reference to these facts, it is clearly demonstrated that this defendant was not denied confrontation as been explained in this Court's opinions, the numerous opinions that have proceeded since Pointer versus Texas have all pointed out that there as in the particular case, a lack of adequate cross examination at the trial and he was on -- not within one of the exceptions or there had been no diligent effort made to secure the presence of the defendant in Court to subject him to cross -- to get the witness in Court, the declarant present in Court to subject him to cross examination and to permit the trier of fact to view him when he testified and to determine whether his testimony was worth anything.
Potter Stewart: Was the -- excuse me a bit. Was the defendant represented by a lawyer in the preliminary hearing?
William E. James: Yes Your Honor. He was represented by the same attorney who represented him at the trial.
Potter Stewart: You think that makes any difference?
William E. James: No I don't but I think in this particular case, it clearly demonstrates that this man had the opportunity to confront the declarant at the time the earlier statement was made and further cross examination, the important aspect of confrontation, the presence before the ultimate trier of fact and he had that he had the attorney and the attorney did a good job in both questioning the witnesses at the preliminary hearing and then following it up with an examination of the minor witness, the officers and the other witnesses at the trial.
Byron R. White: It means counsel -- excuse me, excuse me.
William E. James: Well, go ahead.
Hugo L. Black: What's the object of a preliminary trial in California?
William E. James: Primarily to determine whether there is probable cause to hold the defendant to answer.
Hugo L. Black: And if it's found, what is done?
William E. James: An information is filed within a period of 15 days in the superior court and the defendant is thereafter arraigned in the superior court and a date is set for trial.
Hugo L. Black: Held for the purpose of determining on whether or not there will be a warrant?
William E. James: An information filed.
Hugo L. Black: Information, what information?
William E. James: An accusation filed against him.
Hugo L. Black: You don't have any grand jury investigation?
William E. James: Yes, we have both the grand jury and the preliminary hearing in California.
Hugo L. Black: Well, this one was not a grand jury investigation?
William E. James: This was not a grand jury, this proceeded by information. The Johnson case that had been decided earlier and has been referred to was a grand jury proceeding at which the witnesses testified under oath but not subject to cross examination.
Hugo L. Black: Suppose the Court had decided on preliminary trial there would be -- there was no probable cause?
William E. James: The man would not be held to answer at the preliminary.
Hugo L. Black: Hew would be released?
William E. James: He would be released and the complaint would be dismissed.
Hugo L. Black: What's the difference in the procedures when you try him for preliminary trial here and back to the trial of the case?
William E. James: Well, actually, the grand jury --
Hugo L. Black: Put on witnesses?
William E. James: At the grand jury proceeding?
Hugo L. Black: At the proceeding, at the preliminary?
William E. James: At the preliminary? Oh yes. Its --
Hugo L. Black: And then the defendant put on witnesses?
William E. James: Ordinarily not, he would be there to merely cross examine --
Hugo L. Black: He cannot put on witnesses?
William E. James: He may put on witnesses.
Hugo L. Black: But he may?
William E. James: He may put on witnesses, he ordinarily does not because the question there is, is there probable cause to hold the defendant to answer? If there is, that question will be determined in the superior court and it's a felony.
Hugo L. Black: If he wants to have a lawyer and put on witnesses he has a right to do both?
William E. James: Oh yes, he has a right to a lawyer at the preliminary and in California would be furnish a lawyer at the preliminary hearing if he was unable to afford one.
Hugo L. Black: Well, what is the reason suggested by that is not the kind of a trial or proceeding or you could use the evidence from here, if you could use it from any other place, that it had been a cross examination or counseling?
William E. James: I would submit that there -- this, that there should be a right to use this preliminary examination evidence at a later time.
Potter Stewart: But the reason suggested why you shouldn't is the confrontation clause of the Sixth Amendment in answer to Justice Black's question?
William E. James: That's right.
Warren E. Burger: Can California proceed --
William E. James: pardon me.
Warren E. Burger: Were you finished Justice -- can California proceed by way of information or indictment by a grand jury without any preliminary hearing at all if they want to?
William E. James: You can proceed by a grand jury indictment without a preliminary hearing.
Warren E. Burger: But not by information?
William E. James: Not by information unless the defendant waives a preliminary hearing.
Warren E. Burger: Just to have that clear, the preliminary hearing is an absolute right if they proceed by charge by information but not so by grand jury indictment?
William E. James: That's right Your Honor. If I may, I'll defer right now to the Solicitor and reserve a few minutes to close.
Warren E. Burger: Very well.
William E. James: Thank you Your Honor.
Warren E. Burger: Thank you General. Mr. Solicitor General.
Erwin N. Griswold: May it please the Court. As Mr. James has said, there are two pieces of evidence involved here both prior inconsistent statements. First, the testimony at the preliminary examination where I may point out, there was confrontation in the physical sense, that is the defendant was himself present and sought and saw the witness who testified and then the second piece of evidence is the statement made to officer Wade. Both Porter, the witness who testified at the preliminary examination and Wade, the officer to whom the statement was made were present at the trial and subject to cross examination. The testimony at the preliminary investigation was of course an official record. I think I may point out too that in this particular case, the trial was before the court without a jury because the defendant had waived the jury but we do not believe that this should lead to any difference in the result. There is a note by professor Kenneth Davis in the current April issue of the Harvard Law Review making a contention that the rule should be different in trials without a jury and in trials with a jury but I find hard to make that applicable in a criminal case because it seems to me odd that the defendant's counsel should be put to the choice of trying to decide whether we shall waive a jury or not depending upon what evidence can or cannot come in. It seems to me that in a criminal case, the rules of evidence should be the same in either way. Now, our submission here is against the decision below by the California Supreme Court which deals in effect only with the evidence taken at the preliminary examination and it is also against the decision of the California Supreme Court in California against Johnson decided a couple of years ago in which this Court denied the state's petition for certiorari which deals with a prior statement like that made to officer Wade here, unsworn and not subject to a cross examination. We think that both decisions are wrong and that they are not required either by the constitution or by decisions of this Court. If we are wrong as to Johnson however, we would urge that the decision below with respect to the evidence at the preliminary examination is nevertheless wrong and should be reversed.
Speaker: Like here a first premise, Mr. Solicitor General doesn't make any difference where there is counsel preliminary hearing or not?
Erwin N. Griswold: No Mr. Justice, it -- our position is that --
Speaker: The confrontation is satisfied by the presence of the witness at trial?
Erwin N. Griswold: At the trial itself and --
Potter Stewart: Doesn't make any difference if there is counsel there, it doesn't make any difference if the defendant was there?
Erwin N. Griswold: That is -- all of those things go to the weight of the evidence --
Potter Stewart: Right.
Erwin N. Griswold: -- but not to its admissibility and this leaves directly to the first point of my argument which is that this case is not a Sixth Amendment case. This case does not deal with the right of confrontation because the right of confrontation was fully vindicated here. The witness Porter was present and sworn and subjected to cross examination. The trier of the facts had full opportunity to see and hear him, to observe his demeanor and to form a conclusion about his honesty and trustworthiness. That conclusion might well have been that he was a devious person who probably spoke the truth shortly after the event but for one reason or another found it convenient to be forgetful and evasive at the trial. And similarly with respect to the other item, the witness Wade was present, sworn and subject to cross examination. He testified fully and his personality and demeanor could be evaluated by the trier of the facts. Thus, every objective and requirement of confrontation was met. This is not a case like Pointer against Texas or Douglas against Alabama or more recently Barber against Page, where the person whose out of court's statement was sought to be used was not present or available and particularly where the prosecutor was at fault in not having the declarant available. Here, the key fact is that the witnesses were present at the trial, were sworn and were subject to cross examination, so that the defendant had full opportunity to show what he could to the trier of the facts by way of impeachment, explanation, a contradiction or otherwise. Some 40 years ago, Judge Hand dealt with this problem in a case which is cited in our brief although this quotation is not there. This is Decarlo against the United State in six federal second and I quote from Judge Hand, “he is present before the jury and they may gather the truth from his whole conduct and bearing, even if it be in respect of contradictory answers he may have made at other times. If from all that the juries see of the witness, they conclude that what he says now is not the truth but what he said before, they are none the less deciding from what they see in here of that person and in Court”. Indeed, this Court of course has held that prior statements maybe introduced even though the declarant is not present at the trial in cases of necessity. Now, the leading case is Maddox against the United States in its two separate appearances in this Court where both dying declarations and testimony taken at a previous trial where the witness was now deceased were held admissible and the Maddox case was specifically referred to in the recent decisions of this Court as a decision which was not affected by those decisions. There are other illustrations as in the case of book entries, ancient documents which might be used to prove title to land and a charge of trespass in a criminal case and other established exceptions to the hearsay rule. In this situation where the witnesses were present and were cross examined in Court, it seems to me that the only case that is troublesome is Bridges against Wixon in 326 US. Whatever maybe said about that case, it was a deportation case rather than a criminal case but I don't think that's of any particular importance, it is clearly distinguishable. There, the declarant took the stand as here. He admitted that he made a statement as here, but at that point, the two situations diverge. In the Bridges' case, the witness denied at the trial that he had said anything in his statement about Bridges' communist activity. Here, the witness admitted that he had made the statement and testified that he apparently thought that it was the truth when he made it, I don't want to overstate but he testified at the trial because he was very devious but he specifically admitted that he had made both of the statements and one of them of course was a public record.
Hugo L. Black: What case do you say about Richards?
Erwin N. Griswold: Bridges?
Hugo L. Black: Yeah, the one you first mentioned, Richards? Richards' case on pending is that?
Potter Stewart: Bridges, you're talking about Bridges?
Erwin N. Griswold: I'm talking about Bridges, Bridges against Wixon, W I X O N in 326 --
Hugo L. Black: Yeah.
Erwin N. Griswold: -- US. But as we see it, the Court need not reexamine Bridges now, it need say only that it is inapplicable in a case where as here, the declarant witness testifies under oath and subject to cross examination that he made the statement and that he believed it was true when he made it. There are of course a number of decisions of the Court that which support the conclusion that such evidence is admissible. There is the well known Bruton case involving the use of a co-defendant's confession in a joint trial implicating another defendant where the Court quoted from the leading Maddox case these words, hence, effective confrontation of Loyd, the witness who had made the statement was possible only if Loyd affirmed the statement as his and here the witness did affirm the statement as his. And on the basis of this passage, this quotation of Maddox in the Bruton opinion, a number of lower courts have held that in the Bruton situation the confession of the co-defendant is admissible when he does in fact appear at the trial, is sworn and is subject to cross examination there and this Court has several times denied certiorari from such decisions and there's another case of this Court which seems relevant and interesting, its Stovall and Denno in 388 U.S and it is not cited in our brief. That was the case which was decided on the same day as the Wade case involving minor, and in the Stovall Denno case, the only witness to the crime or a witness to the crime was the wife of the deceased who was seriously injured and was in the hospital and the defendant was taken to the bedside and the wife identified him then as the perpetrator of the crime. It so developed that the wife recovered and she was a witness at the trial and was sworn and subject to cross examination and this Court held that the evidence of her prior identification was admissible, not merely her testimony at the trial but her inclusion in the trial of her prior identification without violation of the due process clause. Now I point that out because the Court held that since Wade was not retroactive, the confrontation clause was not before it but as I think this case is really a due process case and not a confrontation case, it does seem to me that Stovall and Denno is directly in point. There, the prior statement, the prior evidence was consistent, not inconsistent but the same question would seem to me to be applicable in determining its admissibility and of course in that case as in the sequel to the Bruton case, the prior statement is not sworn and was not subject to a cross examination. And now I turn to my second approach to this case, --
Byron R. White: Mr. Solicitor General, could I ask you if you're -- are you suggesting the rule would be different if the witness denies having made the prior statement but you put on witnesses to show that he did?
Erwin N. Griswold: I'm suggesting Mr. Justice White that if we had that case then we would have to deal with Bridges against Wixon head on which I would prefer not to do and think I don't have to here or that that would be a harder case. My own view would be that it ought to make no difference that Bridges and Wixon was -- that its application to this case at least wrong, that that ought to be a matter for the evaluation of the trier of the fact that the trial since the witnesses performed and is under oath at the trial and it is not --
Byron R. White: And you put on testimony that showed that he did make his prior statement?
Erwin N. Griswold: That he did make the prior statement, that is correct, but I feel a little happier or quite a bit happier that I can distinguish Bridges against Wixon rather than having to meet it head on. Now, if in accordance with our submission, this is not a Sixth Amendment case, then our contention is that there is nothing in the due process clause which should prevent the admission of the evidence below. Let me say before going further that in my opinion this is a poor case. I'm not representing the State of California here and Mr. James will speak up for the state. There are no sense bound by but what I say -- but this Court has recently found that proof beyond a reasonable doubt is a requirement of the due process clause in criminal cases and I can only say that I can't find proof beyond a reasonable doubt in this record. This is not a case where it is enough to find some evidence or sufficient evidence to support a verdict based on a preponderance of the evidence. It's a criminal case where proof beyond a reasonable doubt is required. Needless to say, I don't think that this Court should review records in state criminal cases to determine whether there is sufficient evidence to support a verdict of guilty beyond a reasonable doubt, but it does seem to me that the Court can correct the error of the California Supreme Court an error into which I think it maybe said that the California Court fell because of the chilling effect of certain decisions of this Court in rejecting the admissibility of the evidence here and then remand the case to the California Court for further proceedings, after all, the Court below concluded its opinion by saying on page 118 of the appendix, we need not reach the defendant's additional contentions of insufficiency of the evidence, suppression of the evidence and prejudicial misconduct.
Potter Stewart: You're suggesting that even if all of this evidence was properly admitted as you say it should have that as you say it was, that there would remain a question of whether or not even with this prosecution evidence there was proof beyond a reasonable doubt of the defendant's guilt --
Erwin N. Griswold: Yes.
Potter Stewart: -- but that that's the matter we should leave to the California Court?
Erwin N. Griswold: That it seems to me is a matter for the California Court.
Speaker: You are suggesting this a Thompson Louisville?
Erwin N. Griswold: I'm sorry Mr. Justice?
Speaker: You're not suggesting this is a Thompson Louisville case?
Erwin N. Griswold: No, no, I think this is -- there is more evidence here than there was in Thompson against Louisville but I don't think an my view is of no importance but I have read the record and I couldn't find that there was evidence of guilt beyond a reasonable doubt here. I don't think that the Court need be concerned that justice will not be done if it corrects the Court below on the constitutional law of evidence. What I am concerned with is that hard cases make bad law, we all know that and I agree that this is a hard case but I don't think that it should be resolved by a holy novel and I should think unfortunate discovery that the Fourteenth Amendment and thus presumably the Fifth as well requires that hearsay evidence is inadmissible even where the witnesses involved are in Court sworn and available for cross examination.
Speaker: Could I clarify something about a matter, you're saying that even if you prevail confrontation and the state prevails confrontation, you're still allowed the due process question as to the “insufficiency of the evidence”?
Erwin N. Griswold: No Mr. Justice, what I am trying to say is a little bit like what was in Stovall and Denno. The first portion of my argument is this is not a Sixth Amendment case.
Byron R. White: Right.
Erwin N. Griswold: The Sixth Amendment is fully satisfied here, there was every confrontation that you can want and therefore, perhaps that's enough to dispose of the case if it is, what I have more to say is irrelevant.
Speaker: That's the question I want to put to you. If you prevail, the state prevails under Sixth Amendment case, do you think there's a due process question there?
Erwin N. Griswold: I think conceivably there is Mr. Justice.
Speaker: Well, I heard you to say first of all and you started out in this due process business, that was prefaced on the theory that you might not to the state, might not prevail on the --
Erwin N. Griswold: I think perhaps I would prefer to put it this way Mr. Justice. If there is any question, it is only a question under the Fourteenth Amendment. I don't regard that question as serious but I thought it of enough concern that it was appropriate to devote a part of my argument to it.
Potter Stewart: Now, I'm getting a little confused. Are we talking about the proof beyond a reasonable doubt, that part of the Fourteenth Amendment?
Erwin N. Griswold: No Mr. Justice, were talking about the admission of prior inconsistent statements as affirmative evidence.
Potter Stewart: Well, lets -- may ask you --
Erwin N. Griswold: And what I am seeking --
Potter Stewart: May I ask you this question. Let's assume you prevail and that the Court decides that neither the Fourteenth Amendment insofar as it incorporates a Sixth Amendment, no other Fourteenth Amendment, simplicitaire plano requires the exclusion of this evidence and that the California Supreme Court was wrong in holding that the United States constitution requires the exclusion of the evidence, do you still say that with the inclusion of this evidence there might remain a question of whether or not there was proof beyond a reasonable doubt of the defendant's guilt but that that's a matter for the state of California?
Erwin N. Griswold: Yes Mr. Justice, that's my personal view --
Potter Stewart: Yeah, that's what I thought.
Erwin N. Griswold: -- My concern here is that when the Court reads this record and finds that it is a pretty thin case that we may end up with a constitutionally prescribed rule with respect to the rules of evidence as a means of disposing of it. When I think it opt to be disposed off simply on the narrow ground of whether there is sufficient evidence to support a verdict of guilty as beyond a reasonable doubt and that gets close to the area of Thompson and Louisville although this is -- this is different from that case in many ways.
Potter Stewart: Well, Bridges was a -- without a due process of attempt mostly, didn't it rather than confrontation?
Erwin N. Griswold: There is confrontation overtones in the language in Bridges. This is quoted in our -- the passage is quoted in our brief.
Potter Stewart: But it was a federal case and they didn't mention, they really seem to talk due process, didn't they?
Erwin N. Griswold: The passage is on page 22 of our brief. To admit this prior statement in Bridges said the Court so to hold would allow men to be convicted on unsworn testimony of witnesses, a practice which runs counter to the notions to fairness on which our legal system is founded. Now, that --
Byron R. White: Is that confrontation talk?
Erwin N. Griswold: That's due process talk I suppose but perhaps that's the reason why I thought it was relevant to make a due process argument here.
Warren E. Burger: Mr. Solicitor General, I was just looking at Mr. Prettyman's brief for Green, I don't see that he raises any question unless I've missed it on the sufficiency of the evidence?
Erwin N. Griswold: No Mr. Justice, I have interjected this as a means of hoping to divert you from deciding this case against the government on constitutional grounds.
Speaker: It's a diversionary argument?
Erwin N. Griswold: It is a diversionary argument, a confession in avoidance. What I am concerned with is that we should not end up with this case by finding that for the first time in a 180 years, it has been discovered that the hearsay rules are embodied in the constitution on one ground or another and are beyond the powers of state legislatures to change, to innovate, to experiment and indeed beyond the powers of people who formulate federal rules of evidence which of course --
Speaker: (Inaudible) in to a program of examining state of records to see whether the evidence is beyond a reasonable doubt?
Erwin N. Griswold: I'm not suggesting Mr. Justice that you should. I am suggesting you should remand to the Supreme Court of California to do that was such intimation as you care to include in it.
Warren E. Burger: But how does -- how does that process avoid our getting into the evaluation?
Erwin N. Griswold: It does not. It means that you decide that the Supreme Court of California was wrong in its decision below and in the Johnson case that this is not a constitutional requirement but that you can feel satisfied that nevertheless justice will be done in this particular case.
Warren E. Burger: But what you're saying is that it's none of our business really but that we should take a quick look at it and do something about it, the sufficiency of the evidence point?
Erwin N. Griswold: Well, Mr. Justice, I can't quite say it's none of your business since the Court put it into the constitution about three weeks ago. The question of whether of beyond a reasonable doubt being a constitutional requirement and I don't know that the Court can completely escape that though it can delegate it quite widely and expect that the delegation will be peacefully honored.
Potter Stewart: Well, Mr. Solicitor General, I thought that ordinarily when we get certain circumstances like that in the state case, we remand for proceedings not inconsistent because we don't think we ought to get to be on the issues raised by the petitioner in the state case, don't you?
Erwin N. Griswold: Well, I assume --
Byron R. White: When do we go reaching it the things like this? I don't we did?
Erwin N. Griswold: I don't want Mr. Justice, my whole objective is that when you read this record, I don't think you'll think the state's case is very strong and I don't want that to result in an affirmance of the state's decision which puts this rule of evidence into the constitution and there are -- there is another way which is to reverse these decisions below on the constitutional questions and remand it for further proceedings consistent with the --
Byron R. White: Not inconsistent with -- in state cases we don't send them back for proceedings consistently, we send them back if the proceedings not inconsistent.
Erwin N. Griswold: Not inconsistent.
Potter Stewart: Well, it's rather an important distinction we make --
Erwin N. Griswold: Alright.
Potter Stewart: --between state and federal cases.
Speaker: Well, I thought your proposition was that hough your diversionary argument was that California and you're uneasy about the record and the California Court said since we find that this was not admissible under confrontation we don't have to reach anything, and therefore you're simply suggesting that if we agree on the confrontation thing, we leave it off before the California Court rule it at once?
Erwin N. Griswold: Exactly Mr. Justice, that's my point. Now, this question of the admissibility of prior inconsistent statements as evidence is one which has been discussed over a period of two generations. It is sometimes -- it seems to me denigrate a little bit by talking it about the orthodox rule and the academic view. The academic view for which we speak here has been supported by some very great figures. We ignore who is one of our authentic greats and Morgan and Judge Weinstein can hardly be called impractical persons. This change in the California statute Section 1235 was recommended by a state commission in California which had a staff of which professor James A. Chadman was the chief reporter. He is now at the Harvard Law School and is the editor carrying out the current revisions with more on evidence. This rule is supported by distinguished members of the bench not impractical men such as Judge Learned Hand whom I've already quoted and Judge Henry Friendly who is cited in our brief. From bantam to the present time, authorities have agreed that present hearsay law keeps reliable evidence from the courtroom. We should be continued to be free to experiment in this area by legislation, by delegated rule making and by judicial decision. The area should not be frozen into a constitutional rule by application of a constitutional provision which says nothing about it and obviously has no application to the problem either in terms or in light of its history. I speak of course of the Fourteenth Amendment because I earlier contented that the Sixth Amendment whether incorporated by the Fourteenth Amendment of not has nothing to do with the case since the defendant here did confront both of the human witnesses involved. There's no case in this Court which requires affirmance of the Court below either here or in its decision in the Johnson case. On the contrary, affirmance here is nothing less than reading into the Fourteenth Amendment, a conclusion that hearsay evidence is always inadmissible for this evidence cannot come in, it is hard to see how any extra judicial statements can be received. That would be a revolution not only in the law of evidence but in constitutional law and if the Court thinks I am overstating, I can only say that's what the California Court has decided in both of these cases. And moreover since we're talking about the Fourteenth Amendment and not the Sixth Mr. Chief Justice, I will borrow a little time form Mr. James with his permission. I don't see how it could be limited to criminal cases. It would apparently apply to civil cases as well for they are surely subject to the Fourteenth and the Fifth Amendment. Apparently, such a rule would apply to the administrative process too where we widely had statute saying that the rules of evidence shall not apply. Such a conclusion would go beyond anything that is needed or useful or warranted. It would go far beyond any conception of due process which is part of our tradition or a concept of ordered liberty. Our law has always accepted hearsay evidence and evidence of extra-judicial statements and actions often without authorized cross examination under one or another of a great many exceptions to the hearsay rule and I would point out of course that other systems of law widely admits hearsay evidence subject only to the weight to be attributed to it and the scholars in those systems often find themselves quite unable to understand our concern about hearsay. Often, in one situation or another and particularly in administrative proceedings of one kind or another, our law has specifically provided that no hearsay rule shall apply and that the only test of the admissibility of evidence shall be its relevance with its weight under all of the circumstances to be a matter for the trier of the facts. It can hardly be said that such rules are irrational, it ought not to be said that they are forbidden by the constitution. If states wants to expand the admissibility of evidence within sound reason, they should be free to do so. As I've indicated, justice should be done in this case but not by distorting our rules of evidence and putting it beyond development and change. This is not a case for a constitutional decision and the California Court was wrong in thinking that this Court's decisions required it to dispose off the case on federal constitutional grounds. Now, that error should be corrected and the case should then be remanded to the California Court for further proceedings are not inconsistent with this Court's decision.
Warren E. Burger: Thank you Mr. Solicitor General. Mr. Prettyman. Before you get underway Mr. Prettyman, may I ask if you know because I'm not sure I could see it in the record whether in the California Supreme Court the insufficiency of the evidence to support the verdict was urged by the petitioner there?
E. Barrett Prettyman, Jr.: It was urged before the California Supreme Court and they reserved judgment. I might say that I view the record in this case as the Solicitor General does but perhaps with moral arm and I have not raised the issue in my brief for this simple reason that I was appointed after the petition was filed and granted and consequently I found myself bound by the issues there presented. But, if for some reason, I do not prevail here, I would certainly intend to urge before the California Supreme Court on remand that this conviction cannot stand on such poultry evidence as we find in this case.
Potter Stewart: Even assuming all the evidence was properly.
E. Barrett Prettyman, Jr.: Even assume that it all came in. As a matter of fact, I would urge the rule which as I understand it has not been decided by this Court as to whether a conviction can stand on the basis of hearsay law.
Thurgood Marshall: Well, the last sentence of the opinion says just that. We need not reach defendant's additional contentions of insufficiency.
E. Barrett Prettyman, Jr.: That's correct.
Thurgood Marshall: So it's wide open.
E. Barrett Prettyman, Jr.: Pardon me?
Thurgood Marshall: It's wide open if you will get that --
E. Barrett Prettyman, Jr.: That's correct. Well I would be happy to present the issue of insufficiency and obtain a reversal on any ground that I can. I'm --
Speaker: Would you lead the Court or seriously urge the Court to review this record and make that initial determination that this record is insufficient as that is by the standards of reasonable doubt?
E. Barrett Prettyman, Jr.: Your Honor I think the confrontation issue is so square and is so surely in my favor that I don't think I have to urge that the Court do that. I think that the California Court should there be a remand is fully able to take care of that situation.
Speaker: I am just putting the direct question to you as to whether you are seriously urging the second proposition on this Court.
E. Barrett Prettyman, Jr.: You mean the hearsay?
Speaker: Yes.
E. Barrett Prettyman, Jr.: Not at this time.
Speaker: Alright.
E. Barrett Prettyman, Jr.: I hope if there's a remand and I'll be back up at you when that is decided by the -- if it's decided adversely by the California Court.
Warren E. Burger: It would appear on what you have just confirmed about the situation in the California Supreme Court that they reached out of their way for a constitutional issue when they could have disposed to this case on what you and Solicitor General suggest is a relatively routine non constitutional ground.
E. Barrett Prettyman, Jr.: Of course I can't speak for the Court but I would guess that since they said that this evidence shouldn't have been in the case in the first place that they didn't find it necessary to reach the question of what would have happened if it had gotten there.
Warren E. Burger: That's the reverse of what was once thought the orthodox approach to the problem, isn't it?
E. Barrett Prettyman, Jr.: I concede it. Mr. Chief Justice, may it please the Court. I think I'm fortunate in having the case in which the facts so dramatically illustrate the dangers of adopting the position that are searched by the state by Solicitor General. I would like to review those facts briefly even though they have been touched on before because of some very important facts have not been mentioned to you. The key witness in this case and in fact, the only witness to the alleged crime was a 16-year old, name Melvin Porter. In footnote 2 of my brief, I have listed a series of comments about this witness from the judge and the prosecutor. And I think that the most kindly and restrained way of summarizing their attitude toward him is to say that they considered him a worthless liar. And yet it was he and he alone who convicted Mr. Green. Mr. Green at that time was 24 years old. And according to the state, he gave or sold some marihuana to Porter. Now how did the state prove this case?
Warren E. Burger: Does that go to -- if I may interrupt you there Mr. Prettyman, does that go you think primarily to admissibility or to weight?
E. Barrett Prettyman, Jr.: I think what I'm going to demonstrate to you Your Honor is how it was impossible for the defendant to have true and effective confrontation in this case. And I think I can develop it for you through the facts and the situation that he was confronted with, how he was denied confrontation in the same senses if the witness had not even been on the stand or if he had been pleading self incrimination. Before, during and after the trial in this case, this 16-year old made four separate and self conflicting statements in regard to this crime. The first one was after Mr. Porter himself had been arrested and in an effect that was separate from the one we have here. He was arrested after selling marihuana to an undercover agent and he had been incarcerated for four days at the time he made this first statement. The police officer, Officer Wade interrogated him at the juvenile headquarters. Now only the two of them were present. There was no lawyer either for the defendant Green or for the defendant Porter. No witness, no stenographer, just the two of them after this young boy had been in jail for four days. According to Wade, Porter told him that some weeks before, Mr. Green had called him and then he'd come by his house and brought with him a bag of marihuana. The second statement was made at the preliminary hearing of Mr. Green after he had been arrested as a result of the first statement. Mr. Porter was still in custody of the police, still in jail. His case had not yet been disposed off. That hearing was held only eight days after Mr. Green's arrest. And at the hearing, Porter testified this time, not that Green had brought a bag of marihuana to this house but rather that he had come and taken Mr. Porter over to the house of Mr. Green's father and it showed him some marihuana behind a bush and Mr. Porter had comeback on his own that night or the next day and picked it up. Now I might say that there are number of inconsistencies between these first two statements and the state has never yet attempted to reconcile those inconsistencies.
Potter Stewart: Did state use both of those statements?
E. Barrett Prettyman, Jr.: Correct.
Warren E. Burger: I suppose you would agree that if it is not unusual in criminal or civil case to have inconsistencies and disparities as wide as what appear in this record E. Barrett Prettyman,
E. Barrett Prettyman, Jr.: Yes sir.
Warren E. Burger: From two different witness or from the same witness with internal inconsistencies on direct and cross examination.
E. Barrett Prettyman, Jr.: I do think however though when you consider that these are the only two statements that convicted this man, he was not convicted upon any testimony or trial. He was convicted on the basis of these two statements. I think that there is some burden on somebody's part to reconcile the conflicts. We don't even know from the trial judge whether he relied on the first statement, the second statement or both statements, we have no idea.
Warren E. Burger: But what if we didn't have the out of court statement at all, the preliminary hearing statement, it had one version on direct examination and the other version precisely as they now stand in the record on cross examination, that this should be purely a weight of the evidence question then.
E. Barrett Prettyman, Jr.: You would not have the conflict you have here but I'm trying to demonstrate that to go back as the state would do and say, well these prior statements are more likely to be true because they are earlier in time doesn't face up to the issue that the two statements themselves don't coincide one with the other. I think it goes to the point about what kind of witness is this and the necessity for having him give his convicting statement in front of the trier of fact and not back before some police officer or at some previous hearing. I want to emphasize that at the preliminary hearing, Officer Wade to whom the first statement had been given did not testify and no mention was made of that first statement and therefore Porter's attorney had apparently had no view of it, had no idea that he'd given a previous inconsistent statement. Another thing about the preliminary hearing was that Porter's attorney apparently knew nothing about the LSD that was going to develop later because not a single solitary mention of LSD was made at that preliminary hearing. Now we go on to the third statement.
Speaker: What you are really saying as if I did, the argument is that the relevant point of the confrontation is not confrontation at the trial, but absence of confrontation at the time of these --
E. Barrett Prettyman, Jr.: I'm saying the point of confront --
Speaker: Is that it?
E. Barrett Prettyman, Jr.: I'm saying, if I may state it just a little differently Mr. Justice Harlan that the point of confrontation is to look the witness in the eye, have the trier of fact looking in the eye, not as he's talking about some other statement that he made at some other time but when he's talking about the crime. When he's saying the words that convict this whole cross examination, the trial was not about the crime and a cross examination was -- well now, did you say something to somebody else back there and he is saying, I really don't -- I'm really not sure, I can't remember. The third statement now was given a trial. And at this point, it's important to note that this young man was no longer in custody. His own case had been disposed off. This is the first time now that he is out of the hands of the police and what is he testified to now? He says “well, if you want to know the truth of it, I took LSD about 20 minutes before Mr. Green called me and I'm not sure what happened thereafter.” He didn't know whether Mr. Green had come by his house, he didn't know whether if he came by the house, he left anything, he didn't know where he got the marihuana because he'd been under the influence of LSD. It was less apparent to the state that they could not convict Mr. Green on the testimony in Court. This was the only testimony of this crime. So what do they do? They turn around and have the officer come in and say, well, he told me down in juvenile headquarters, such and such and then they read to the witness from portions about 1/4th of the testimony at the preliminary hearing including I might say about 1/4th of the cross examination. They read this testimony to the witness and they say, didn't you say that at the preliminary hearing? If you look on page 7 of my brief, you will see in the footnote his various replies to these questions about what he had said before if there was ever a young man who was confused. Who seemed to be saying six different things at once, it was this young man. But the best we can make out of all this testimony was, well, if I said it before, perhaps it was true but the fact of the matter is that because of my condition, I don't know anything about the crime. Now because of these two sections of the California code, these prior two statements, the one to the officer and the one at the preliminary hearing where the young man, both arms was under police control, those were the statements that convicted Mr. Green. Nothing that was said at trial could have convicted him because the only direct evidence at trial was that he didn't know what had happened. The fourth statement from this young man was made after trial. And it was in a sworn statement which he said he was making at the suggestion of his probation officer. And here he said, he'd not gotten the marihuana from Mr. Green, he'd gotten it from the gentleman named plughead 7315 that Mr. Green was entirely innocent at the offense and that he, Mr. Porter had made these statements because of police threats when it was in their hands and because he was unable to distinguish between reality and fantasy. Now both the intermediate appellate court and the California Supreme Court unanimously held that Mr. Green was denied his right of confrontation. Now, --
Potter Stewart: This final statement that he made after trial in a extra judicial sworn statement is really -- really doesn't go very much to the issue before us, doesn't it?
E. Barrett Prettyman, Jr.: Well except that --
Potter Stewart: Not in the California Courts.
E. Barrett Prettyman, Jr.: Except to this extent Mr. Justice that it was made part of the record as the part of the motion for a new trial and I think that if you review the four statements and see the incredible inconsistencies, I think to view any statement made by this man as evidence even if you look back to the prior too simply won't wash. This fourth statement is part of the pattern of four totally inconsistencies.
Potter Stewart: It does however rather go from more to the question of whether admitting all this evidence at the trial, was a proof beyond the reasonable doubt, might be with the witness such as this.
E. Barrett Prettyman, Jr.: I agree.
Speaker: Now that leads me to ask you another question. Supposing you would have this 7445 testimony, and just a straight forward contradictory statement, with out any LSD or any qualification that have been offered, would you still say that a confrontation rule that you are arguing before it now should be --
E. Barrett Prettyman, Jr.: Let me see if I understand you. He gets on the stand and he gives one statement.
Speaker: That's right.
E. Barrett Prettyman, Jr.: And then they attempt --
Speaker: And they come up and they give a -- give a proof of black-footed statement the other way.
E. Barrett Prettyman, Jr.: Well I think, conceivably that might be used solely to impeach and incidentally I have some question even on that because in order at least in the federal courts to impeach, you have to have both the price and affirmative damaging evidence given for the other side which you don't have in the case of this LSD testimony. But assuming that you could use it only to impeach, I certainly don't agree that you could use the prior statement for the truth of the facts therein.
Speaker: No matter how --
E. Barrett Prettyman, Jr.: No sir, I certainly don't and I'll show you why shortly. Now the state has a quite simple argument, I think deceptively so. And in some ways it seems to have a certain appeal. They say quite simply that so long as the witness is available at trial so that the trier of fact can look him in the eye what possible harm can be done in putting in these prior statements. Well, the answer is a great deal of harm could be done. The right to confrontation in order to have any substance, in order to have any meaning if its not going to become an empty right, must mean that there's going to be something more than having a witness, a body available --
Warren E. Burger: We'll suspend for lunch now Mr. Prettyman. Mr. Prettyman you may proceed whenever you're ready.
E. Barrett Prettyman, Jr.: Mr. Chief Justice, may it please the Court. There are three basic ingredients of the right of cross confrontation which I would like to discuss. All three of which were missing in this case. The first one is perhaps the least important of the three but nevertheless I think it's a factor. It's the requirement that the witness make the incriminating statement at the crucial hearing itself so that the subjective moral impact of the courtroom is brought to bear on it. So that he fully realizes the importance, a seriousness, the gravity of the proceeding and the necessity for telling the truth. I'm not going to elaborate this except to say that it's a very far crime from giving the statement to a police officer and juvenile headquarters than it is from giving it under oath before a judge or a jury facing the defendant in the courtroom itself where the issue of innocence or guilt is going to be decided. The second basic ingredient is viewing the contemporaneous demeanor of that witness. The concept that the witness will make his incriminating statements in front of the trier of fact so that the trier of fact then and there as the words are said can determine whether this man is telling the truth. Now the state says that you can judge his demeanor at trial as he's asked about his statement. But is the demeanor at trial in any way comparable to the demeanor on the prior occasion, of course not. Porter in the hands of the police implicates Green. Porter out of the hands of the police fails to implicate green. We can see his non-implicating demeanor at trial but his implicating demeanor is lost to as forever. There's no way we can go back and pick that up. The state's position assumes that you can judge at trial whether or not the witness is lying at trial and therefore you can make an assumption about prior truth but that's just as himself. In this case, if the judge at trial found that porter was telling the truth about taking LSD, it follows of course that Green's conviction cannot stand because Porter said that the effect of the LSD was such that he simply did not know the facts about the crime. But what if the judge at the trial didn't believe the story about LSD? What can that possibly prove about the two prior statements? Porter could have lied in his first statement, he could have lied in his second statement, he could or he could have lied a trial or all three occasions. It's not enough to see the man's demeanor now, weeks or months after those statements were made. You got to be able to compare demeanors to see the demeanor now and the demeanor then. As a matter of fact, there's a very great danger here. Because I think that there is a tendency to feel when a man is lying at trial. If he has made a prior statement that is different to feel automatically that the other statement must be true. But that again just isn't so, in this case --
Speaker: What would you do Mr. Prettyman on that thesis where the traditional hearsay exception dying-declaration, were the same arguments that you are making now, would you say that those are unconstitutional?
E. Barrett Prettyman, Jr.: No Your Honor. In the case of the dying-declaration, you have two elements that are lacking here. One is, there is an assumption that if the witness were available. If he was here at trial, he would tell the same story that he told before. You assume that. Here, that's completely refuted and rebutted because when the man gets on the stand at the trial and you're looking him in the eye, he has a different story to tell. The other thing about the dying-declaration is that it has a very high degree of probability of truthfulness. The Courts have always assumed perhaps rightly or wrongly, that a man on his death bed is going to tend to tell the truth. What element --
Speaker: On his own or legal presumptions that have the force of prediction behind it, it seems to me that would suggest it has. The earlier question I put to you is to whether or not your argument doesn't turn on the particular facts of this case rather than the general rule as to the scope of the confrontation.
E. Barrett Prettyman, Jr.: Your Honor, I think the facts of this case point out rather dramatically the dangers here.
Speaker: Yes.
E. Barrett Prettyman, Jr.: But, there are other cases which pointed out just as well. And now that you've asked me about that, let me turn to the case that the state is asking you to overrule today although you denied certiorari when it came up to you before. In California versus Johnson, you had a mother and a young daughter testifying before the grand jury that the father had incest with the daughter. Now, this is before the grand jury where the defendant cannot be present. His counsel is not allowed to be present. When the mother and the daughter got on the stand to trial, what do they say? The mother said, I'll tell you why, who told that story because he beat me up and I was mad at him. And the daughter said, I told the story because he found out I was a member of a sex club in high school and he turned my name over to the US attorney. They said the stories just are not true and they convicted that man on the basis of the grand jury testimony. That's the rule that the state is asking you to adopt. They say --
Byron R. White: Would you make any or draw any distinction Mr. Prettyman in terms of what kind of a statement the witness made at the previous time? What if the witness had made a statement that was against his interest?
E. Barrett Prettyman, Jr.: No, Your Honor, I think that -- and I incidentally I make the distinction between a civil and criminal proceeding although the Solicitor General doesn't. In a criminal proceeding, I think the against interest rule goes out the window. I think that in a criminal proceeding where you have not had the opportunity for discovery of the facts as you do in several proceeding, you, the prosecution has to rest on the evidence that it develops at trial at least for the truth.
Byron R. White: But just generally, if there were -- the prior statements by the witness if there was some other substitute for reliability, I take it like from the dying-declarations, you would permit those.
E. Barrett Prettyman, Jr.: No, because as I pointed out in the case of the dying-declaration, it's not just a question of a probability of truth. It is more basic assumption that if the man were here, he'd say the same thing.
Byron R. White: So you wouldn't -- so in terms, except to the dying-declaration, you wouldn't permit any of the exceptions to be heard.
E. Barrett Prettyman, Jr.: Only for impeachment purposes but not for the truth of what they say. I say that a man could be convicted in a criminal trial, has to have the evidence against him introduced at the trial where the person as he says the words can be looked in the eye by the trier of fact and he can --
Byron R. White: Let's assume that co-defendants tried, one of the co-defendants has confessed. And he implicates the other defendant. And in Bruton, the Court held that at least where the co-defendant didn't testify, you could introduce the confession.
E. Barrett Prettyman, Jr.: That's correct.
Byron R. White: Or use it against the other defendant.
E. Barrett Prettyman, Jr.: That's correct.
Byron R. White: What if the co-defendant does testify?
E. Barrett Prettyman, Jr.: Alright, suppose he testifies and he says in truth and fact, what I said in this alleged confession is simply untrue. It was extracted out of me by force.
Byron R. White: And you would say then that they could not introduce this prior confession against him?
E. Barrett Prettyman, Jr.: Well, except possibly for impeachment purposes and possibly I think the danger --
Byron R. White: Well if it is introduced against him?
E. Barrett Prettyman, Jr.: Yes but not against the -- not against the defendant absolutely.
Byron R. White: You would say the prior statement of the defendant himself is an admission and admissible for the truth of the matter.
E. Barrett Prettyman, Jr.: Yes. Of course you have a double problem in Bruton because you have as you recalled a instruction to the jury, it's not to be considered against --
Byron R. White: Put that aside.
E. Barrett Prettyman, Jr.: Putting that aside, I say absolutely that the prosecution has to contend itself with the evidence that they can produce before the trier of fact. They cannot as in this case rely solely upon evidence that was developed out of the sight in the trier of fact. That is written, spoken words that the trier of fact has not seen and which the defendant cannot even find out about. How can this defendant in this case, when we talk about the right of cross examination, how was he supposed to cross examine a man who says he has -- knows nothing about the offense because the taken LSD, how are they -- how is he supposed to cross examine him about a statement made to a police officer at juvenile headquarters when the kid had been incarcerated for four days, nothing had happened at his trial, only the two of them were present. He later says in his fourth statement, he gave it partially because of police threats.
Byron R. White: But you wouldn't make the same statement as whether you would make --you would have the same position, whether or not the man -- the prior statement was made under the influence of LSD, if you'd been perfectly competent and --
E. Barrett Prettyman, Jr.: Oh yes!
Byron R. White: -- knew exactly you would take to have the same position.
E. Barrett Prettyman, Jr.: Absolutely because the right to confrontation in any meaningful sense is missing. I think that they view the right of confrontation the same way in a comparable fashion to the right to counsel, they would say so long as you have counsel, that's all that's necessary. That isn't what this Court has said. It says you have to have the effective assistance of counsel. If the counsel sells the man down the river, you have not had counsel. And here, it isn't enough to have a body on the stand that you can throw questions at, you said this in Douglas versus Alabama where you had the witness present, available, he could be asked questions but he wasn't answering them because of self incrimination. He was denied effective confrontation. And that's what's missing here and that's what I want to turn to.
Warren E. Burger: But as Justice Harlan suggested to you, all of these arguments could be made on the dying-declaration exception -- couldn't they really? And nothing but I think Justice Harlan called it tradition. And presumably behind that tradition a long human experience supports the exception.
E. Barrett Prettyman, Jr.: Your Honor, I can only say to you that the dying-declaration -- that the two basic underpinnings of the dying-declaration are totally absent here. And the only way the dying-declaration ever gets in, and it gets in only in the case of the absolute necessity of the witness not being here. The only way is that you assume that he would testify the same and it has a very great degree of probability of truth. And because of those two factors, the Courts have leaded in the past, both of those are missing now, the witness is present and he's giving a different story. And therefore you don't assume that he gives the same, you have to assume the opposite. And the degree of probability of truth is missing. It can't be said to be present in this case.
Thurgood Marshall: Was the testimony under oath?
E. Barrett Prettyman, Jr.: Pardon me sir.
Thurgood Marshall: Testimony was under oath?
E. Barrett Prettyman, Jr.: Not the first statement, no sir.
Thurgood Marshall: The one at the preliminary hearing.
E. Barrett Prettyman, Jr.: The wanted preliminary hearing was under oath.
Thurgood Marshall: And let's presume to be truthful.
E. Barrett Prettyman, Jr.: Well sir, I'm going to address myself very shortly to the proposition that testimony at a preliminary hearing is a very far try, as this Court has said from testimony at trial. And the right of cross examination is quite different at the preliminary hearing than it is here.
Hugo L. Black: Why?
E. Barrett Prettyman, Jr.: Well, I'll address myself to it now.
Hugo L. Black: Never heard that before.
E. Barrett Prettyman, Jr.: For this reason. In the first place, that preliminary hearing is held as soon as possible after arrest and sometimes contemporaneously with the appointment of counsel. Quite often in the state courts and even in the federal courts, the first times that they appointed attorney sees his man as when he walks in there to the preliminary hearing because he was just appointed. Secondly, the issue at the preliminary hearing is a very narrow one. It's not guilt beyond the reasonable doubt, it's whether there is simply enough evidence to say that there is probable cause to hold the man.
Hugo L. Black: What effect does that have on the examination?
E. Barrett Prettyman, Jr.: Because sir, in the first place, the cross examiner has not able to find the facts. In this case, this trial attorney was retained no more than six days and perhaps less.
Hugo L. Black: I can't understand reason for you argument, the examination is somehow different.
E. Barrett Prettyman, Jr.: I was saying cross examination.
Hugo L. Black: On both sides.
E. Barrett Prettyman, Jr.: I was saying cross examination Mr. Justice Black. I think that --
Hugo L. Black: I don't understand why it would be different, it's not in my state -- I don't know why --
E. Barrett Prettyman, Jr.: Well, in the first place the -- as I say the attorney who is going to do the cross examination simply has not had time to gather the facts to prepare for effective cross examination. In this case for example, the attorney knew nothing about Officer Wade statement and he knew nothing about LSD just by way of examining. In the second place, the Courts are constantly striving to keep the issue at the preliminary hearing narrow. Here in the district, defendants have attempted a broad games cross examination attempting to use it for discovery purposes to all of the whole range of facts surrounding the case and they have been denied that right. The trial courts have said, no, so long as the issue is the very narrow one of probable cause, that really is all that you can cross examine on.
Hugo L. Black: It's the probable cause of guilt. Guilt in each case.
E. Barrett Prettyman, Jr.: No sir.
Hugo L. Black: Either in the preliminary or the other. One of the probable cause of guilt and now that it's just guilt.
E. Barrett Prettyman, Jr.: Well one is whether this probable cause to hold him and the other is whether there is guilt beyond a reasonable doubt.
Hugo L. Black: That's right.
E. Barrett Prettyman, Jr.: And those standards are quite --
Hugo L. Black: But the issue is not worded precisely the same but I just don't understand this idea that it's some different.
E. Barrett Prettyman, Jr.: Well, I'm sorry I can't --
Harry A. Blackmun: As I see, I can describe them all time on both sides for the state and the defendant.
E. Barrett Prettyman, Jr.: The --
Hugo L. Black: Maybe that Alabama's rule is different to the most states, I'm not saying it's not, but as far as asking you this question about why they're different.
E. Barrett Prettyman, Jr.: Well --
Hugo L. Black: Sometimes, preliminary is not tried for months, two months, three months.
E. Barrett Prettyman, Jr.: Well, on the other hand, the whole purpose of the preliminary is to hold it as at earliest time as possible so that if you have a --
Hugo L. Black: Well, that's not the whole coverage, not as earliest time as possible. They are not always held that early.
E. Barrett Prettyman, Jr.: Well here in the district, there is a statute which requires you to do it within ten days unless you waive it.
Hugo L. Black: Well that maybe true.
E. Barrett Prettyman, Jr.: Because the point if it is --
Hugo L. Black: I'm asking you about the difference, it might be different in those things.
E. Barrett Prettyman, Jr.: Well, they're asking you for a rule though that's going to apply to all preliminary hearings regardless of when they are held and what I am saying to you is that that -- to have a man available for cross examination at preliminary hearing is simply not an effective right. It's simply not as a practical matter, you don't really -- you won't able to cross examine at the preliminary hearing.
Hugo L. Black: That maybe true but I just can't understand it because that was tried, meaning, we examined just like you are on the regular trial, no difference in it and sometimes it's a week, two months, something but always we really had a trial.
E. Barrett Prettyman, Jr.: Well, I can only assure you Mr. Justice Black that it's quite different in many jurisdictions and that in many cases, the lawyer at the preliminary hearing isn't even the same as the one at trial.
Hugo L. Black: Suppose it's a jurisdiction, that's what sometimes, is it not? But suppose if a jurisdiction it does have regular, not bound, drag out trial and cross examination.
E. Barrett Prettyman, Jr.: Well I would still say that if you have a man who gives one story at the preliminary hearing whether he's been cross examined for eight days or not, and he gets on to stand at trial where the issue is entirely different and gives the different story that the prosecution is stopped with the story that the man tells on the stand because the trier of fact as to ultimate guilt is going to look him in the eye. In California, they can't even be the same judge. It's a different judge that judge down at the preliminary hearing is a magistrate or a justice of the peace and not the same man who is going to appear when the ultimate issue of guilt is decided.
Hugo L. Black: Which would be a different judge --
E. Barrett Prettyman, Jr.: Now I think that this is --
Hugo L. Black: Or different lawyer.
E. Barrett Prettyman, Jr.: I think this case illustrates the fact that there may well have been enough evidence at the preliminary hearing for holding the man but even the Solicitor General recognizes, when you start talking about ultimate proof of guilt at the trial, you get into some serious difficulty, it's an entirely different matter --
Hugo L. Black: Are you not going any distinction between the legal relevancy of the statement made at a preliminary trial where there is a cross examination and one made to an (Inaudible).
E. Barrett Prettyman, Jr.: I could think quite obviously that the statement made to Officer Wade has all kinds of problems to it. Some of which are less serious in the preliminary hearing but what I'm saying is to equate the preliminary hearing and the cross examination allowed at the preliminary hearing with the trial is simply not realistic and as a matter of fact goes entirely against the grain of what this Court has said when itself has said that the preliminary hearing issues are entirely different.
Hugo L. Black: No doubt about the issues being different. The issue is filed on whether he is guilty or probably cause for guilt.
E. Barrett Prettyman, Jr.: Well --
Hugo L. Black: I might understand from you that the person should be against, on the issue with reference to the preliminary trial. That he can't be against you on the others -- for you on the others. Are you putting him on the same level?
E. Barrett Prettyman, Jr.: Putting which person? I'm sorry I didn't understand the --
Hugo L. Black: The one where they have a chance of cross examination at a preliminary --
E. Barrett Prettyman, Jr.: Yes.
Hugo L. Black: -- and the one to whom state -- just where a statement is made to an officer.
E. Barrett Prettyman, Jr.: I've said to you sir that I do believe that there is a difference. And that I think the difficulty with the statement to Officer Wade is a far more serious one. But on the other hand, it's -- I still think that the -- that it is not enough to have a man at a preliminary hearing simply cross examined. You just -- what if you hold this way, if you hold this way, look what's going to happen to the effective assistance of counsel. Do you realize the fantastic pressure that this is going to be put on counsel to prepare themselves for a full effective cross examination at that preliminary hearing? You have said that counsel has to be in a line up because it is a critical confrontation because not to have in present might derogate from the man's right at trial. What are you going to do about these preliminary hearings? The man has to prepare himself fully just as he would for trial because otherwise, he may miss his only opportunity to tear this man's story down. Many of the statements of course are taken before there even is a defendant such as in the Johnson case and such as the statement to officer Wade here.
Thurgood Marshall: Mr. Prettyman, my problem is simple. The man testifies at the preliminary hearing one way, and that the hearing on the merits, he says I didn't know what happened because I was on LSD, he keep emphasizing the point of lack of effective cross examination. Well ones he make that statement, both the statements read to him and the statement he made, the defense counsel has unlimited cross examination, right or wrong?
E. Barrett Prettyman, Jr.: At the preliminary hearing or at the trial?
Thurgood Marshall: At the trial.
E. Barrett Prettyman, Jr.: Well, I think this case is the perfect example why, that cross examination at trial in regard to any previous statement is not sufficient. It simply is not. And the reason is that when you have this man at this trial who says, look, I don't know anything about the facts because I was under the influence of LSD, you can talk to him, tell you are blue in the face about some prior statement, what are you going to get him to say just what you did here. Read page 7 of my brief and you see these comments. He says “Well I don't know, I guess I said it but really I don't -- just don't know too much about it.”
Thurgood Marshall: Well you don't deny that you're getting towards the truth.
E. Barrett Prettyman, Jr.: Not in this case, I don't think we're getting towards the truth Mr. Justice.
Thurgood Marshall: Why not?
E. Barrett Prettyman, Jr.: If you mean getting further toward the proof from the statement from Officer Wade, I would agree that you have a little better chance.
Thurgood Marshall: Alright, at this point, I'm not interested in Officer Wade. At this point, you can discredit him to the better hand, defense counsel.
E. Barrett Prettyman, Jr.: Well what -- the point I'm making is what could --
Thurgood Marshall: Well defense counsel just established that this man is a non-truth telling person. I got a better word.
E. Barrett Prettyman, Jr.: Now have you --
Thurgood Marshall: Don't just -- should discredit him, should it not?
E. Barrett Prettyman, Jr.: Alright, if you show --
Thurgood Marshall: Should it not?
E. Barrett Prettyman, Jr.: If you show that he is lying now, what have you proved about whether he was lying before?
Thurgood Marshall: firstly, he never told the truth since he was born.
E. Barrett Prettyman, Jr.: Well, I would like to think that's precisely what was shown here but the man was convicted on the basis to his prior statements.
Thurgood Marshall: That's my point, so the judge sitting at the trier of fact does not agree that he just never tells the truth.
E. Barrett Prettyman, Jr.: The judge at trial Mr. Justice, how is he going to know the circumstances under what -- under which this man testified at the preliminary hearing? How is he going to see the fickr of buying on his face --
Thurgood Marshall: He wouldn't know as much about it as competent counsel brings out on cross examination at the trial on the merits. It's just how much you know?
E. Barrett Prettyman, Jr.: Well, my -- I submit to you that it isn't very much. I submit to you that he has no opportunity to recreate the scene as the man gave his testimony that you are allowing a man to testify on one occasion and use it under other circumstances, something that is never been done. This so far as I know has never been done before. This rule that they're asking for is broadly than the common law rule. That the very first right under confrontation even before the right to cross examine was the right to have the witness come and appear at the trial while he gave his testimony. That was the most basic of all rights. And I say it's not enough to have him crossing -- cross examine now about his prior statement, he should be cross examined about what he knows about the crime and the facts of the crime. And here, that right was simply denied. This case was -- this man was denied, the effect cross examination just as much as he'd have a wooden body on the stand because this boy simply could imagine the questions he didn't know.
Warren E. Burger: Well of course, there's another factor there Mr. Prettyman that he may have been dissembling at the second trial. We -- no one has any way of knowing subjectively what was the motivation behind this?
E. Barrett Prettyman, Jr.: If I were to guess and I confess it's only a guess, I would say that this boy at trial really knew that Green did not give him this doubt that he got it from 10221 and that he finally decide it he better get him off. That is perfectly in conformity with his four statement which in term is supported by evidence actually at the trial and it's just as logical to assume that he decided the trial to get him off as it is to assume that one of these prior statements which conflicted one with the other was in fact true. But at -- that is a guess Mr. Justice but I don't think we should be guessing about this kind of thing. I think that -- I think the man has to get on the stand and give his story and lets you judge him by the way he is giving it now. So that when he gives the incriminating testimony, you're looking right in the eye and you tell as best you can, is it true or false. Now, I would like to pass in a moment some remaining to me to something which I think is extremely important and that is I've touched on it. But I'd like to expand on it a little bit. I'm concerned if you approve this rule about what's going to happen to this problem of effective assistance of counsel. It's inconceivable to me that if these statements are going to come in that they can come in without counsel being present when they were first made. And look what's going to happen now to all of these pretrial proceedings. Motions to suppress evidence, hearings on sanity and ability to stand trial, line ups, preliminary hearings and all the rest of these pre trial proceedings, every one of these proceedings is going to be turned in to a forum for the prosecution to get its statements down now to get its case put in and they couldn't careless about the trial later. They couldn't careless whether the man gets up and even says I never made this statement before because under the California statute, it's not even required that he admit he made them. So that they could -- that you realize the pressure that this is going to put on the police for example. They got a fellow in tow here down to headquarters for four days. They could be the confession out of him and he gets on the stand and he says “I never met a word of it, they beat me up,” and that first statement can be used to convict. It's incredible.
Potter Stewart: Well subject to all the rule -- constitutional rules developed over the years with respect to involuntary confessions.
E. Barrett Prettyman, Jr.: Of course, of course Your Honor that we are hopeful.
Potter Stewart: Right apart from Miranda.
E. Barrett Prettyman, Jr.: We are hopeful that the facts would come out and that he could show that he was beaten up. But the point I'm making is that even to allow as a possibility that a statement out of the defendant's presence under the tow -- the police could be used as the sole evidence at trial to convict the man despite what he says at the trial, I think that's inconceivable and I think it goes directly against every concept of the confrontation. You're going to have statements --
Thurgood Marshall: Suppose the man comes in to the police precinct and says I just murdered my brother and I shot him with a 38 revolver which I am now handing to you and I'm ready, willing to sign anything that you will give me but as a matter of fact, I've written it up myself. And he doesn't have a lawyer or anything else -- could they use it?
E. Barrett Prettyman, Jr.: I say that if goes on to stand at trial and says in truth, what happened was this, that the guy didn't do it at all, it was somebody else who did it. That I was drunk at the time and this felt like playing the game and came in the police headquarters and confessed, I say the prosecution is stuck with that testimony.
Thurgood Marshall: Then can't use the oath.
E. Barrett Prettyman, Jr.: No sir.
Thurgood Marshall: In his own hand writing.
E. Barrett Prettyman, Jr.: In his own -- well, certainly whether if it is his hand writing or not.
Thurgood Marshall: If you keep pushing me, I want to have 6 witness, would it?
E. Barrett Prettyman, Jr.: Your Honor --
Thurgood Marshall: Who will testify to it?
E. Barrett Prettyman, Jr.: Your Honor, I had a man who once told me that he committed such a crime and it turned out that legally he haven't. He didn't know whether he had done it or not.
Thurgood Marshall: Well you're not a good lawyer.
E. Barrett Prettyman, Jr.: Thank you sir.
Thurgood Marshall: Well, I was talking about the one that he didn't have the good lawyer. Well, suppose he goes on television and confesses, could he use that?
E. Barrett Prettyman, Jr.: No, I wouldn't because we don't know why he is on television. We don't know whether he is confessed under pressure. We don't know whether he may have realized.
Thurgood Marshall: Well, he didn't explain that he was under pressure or not, but I mean you say, is no way it can be admitted.
E. Barrett Prettyman, Jr.: As evidence of the truth of the fact asserted.
Thurgood Marshall: Right.
E. Barrett Prettyman, Jr.: That is the traditional rule as the Eighth Circuit has said, that rule has stood the test of time and the academic --
Thurgood Marshall: That a voluntary confession is never admissible?
E. Barrett Prettyman, Jr.: Not against the man himself now, this is against another defendant you are talking about. We're not talking about the confession of the man who shot the woman, we are talking about a confession of one man that implicates the other fellow who is on trial.
Thurgood Marshall: Well, what do we do with the man that testifies and he also has a taped recordings?
E. Barrett Prettyman, Jr.: To as a what?
Thurgood Marshall: Tape recording.
E. Barrett Prettyman, Jr.: And again, this is a statement about somebody else. Not about himself?
Thurgood Marshall: No, about somebody else, he wouldn't come in.
E. Barrett Prettyman, Jr.: Not as affirmative proof of guilt against the other party if that's not the story he gives to trial.
Thurgood Marshall: And it's your position that there is nothing in this record other than those that will stand up as proof that Green did sell the marihuana.
E. Barrett Prettyman, Jr.: But -- no, what I'm saying is that there is a total lack of evidence of guilt itself other than these two statements. There were circumstances which could be said to, if believed corroborates some aspects of it but I think everyone would agree that we took these two statements probably there would not be enough evidence involved.
Thurgood Marshall: Alright, what you want us to say is that where there is no evidence other than these statements, then the conviction cannot stand.
E. Barrett Prettyman, Jr.: No sir, I do not base it on whether there is enough evidence or not. What I am saying is that you look at each statement itself whether or not it is enough to convict, whether or not. And you judge it as to whether the statement was made in Court where the defendant in the trier of fact can judge it or whether it was made on some other occasion.
Thurgood Marshall: And that ones the witness says, I don't have the slightest idea of what happened that day because I was under LSD and never contradicts that statement. You cannot use anything that was similar to these two statements to the contrary because there is nothing.
E. Barrett Prettyman, Jr.: Well you could use extrinsic proof of some kind but you cannot use the man's own prior inconsistent statements, that's what you can't -- that's the great innovation in this California code. This type of evidence has traditionally been used to impeach a witness.
Thurgood Marshall: Oh, it's true.
E. Barrett Prettyman, Jr.: But not obviously for the truth of what's in it and for all of these various obvious reasons, the dangers are just too great.
Speaker: You would still stand for impeachment purposes --
E. Barrett Prettyman, Jr.: I would where it meant the test. That is the test both of surprise and --
Speaker: You tend to end to rely on the jury instruction that they can't use with the truth of the fact even though it's a practical law or you probably got into it and intended that --
E. Barrett Prettyman, Jr.: Well I don't think we can decide the constitutional question on the basis that the jury will disregard the instructions.
Speaker: Well that runs in the Bruton.
E. Barrett Prettyman, Jr.: Yes sir.
Speaker: Then you would a fortiori --(Inaudible)
E. Barrett Prettyman, Jr.: The co-conspirator exception only allows the statement in to impeach the particular defendant against to whom it comes and it is not allowed as affirmative evidence of guilt as to the other party. And they -- and the jury is so instructed but this Court as you know has difficulty in cases where they felt that it could be considered and you have reverse cases where a statement has come in that implicated the second defendant and you felt that the jury instruction was not sufficient.
William O. Douglas: You said that a co-conspirator statement may not be used from the question of guilt or innocence?
E. Barrett Prettyman, Jr.: I'm saying that --
William O. Douglas: Of the co-conspirator? A and B or indicted as co-conspirators, A makes the statement in pursuance of the conspiracy and implicating B.
E. Barrett Prettyman, Jr.: As I understand --
William O. Douglas: Do you use that for proof?
E. Barrett Prettyman, Jr.: No, as I understand it if the first co-conspirator has made a pretrial statement, and it then comes in as to him but that if it implicates the other co-defendant, the jury must be instructed that it -- unless he is testifying the same thing at trial, in other words if it's an out of trial statement that can't be used against him.
Potter Stewart: I think that's perhaps not quite accurate with respect to the federal rule that with respect to co-conspirators but that's generally understood to be a recognized exception hearing in the federal court --
E. Barrett Prettyman, Jr.: I'm sorry --
Potter Stewart: But you don't have a conspiracy case?
E. Barrett Prettyman, Jr.: No I fortunately do not have. The last point that I'd like to make is simply that we are going to have all kinds of conflicts developed between the various goals that we seek in our criminal justice system if we allow this kind of thing to happen. As I've indicated, the entire point of the preliminary hearing for example is to get it as soon as possible so that you can free man who are not guilty and who shouldn't be held whereas I'm afraid that retained counsel and appointed counsel or to the great impetus with them, if this rule is approved it's going to delay that preliminary hearing just as long as possible because it means that they are going to have to prepare for it the same way they prepare for trial. They know they got to strike while the anvil is hot at that preliminary hearing, every single experienced trial lawyers against this academic approach because they tell you, it's not enough just to have somebody available for cross examination days or weeks later. And as a matter of fact, it is even error in Court to delay cross examination too long after direct examination because the trial lawyers know if you don't get that man to change or track his testimony as he makes it. It's going to become solidified in his mind, it's going to become solidified in the juries mind, it's going to gain a statute merely by the passage of time and it is going to be too late to cross examine that man at some later day about what he might have said long ago. So trial --
Warren E. Burger: Mr. Prettyman, when you say that this is the universal view of trial lawyers, how would you reconcile that with the recommendation with the American College of Trial Lawyers?
E. Barrett Prettyman, Jr.: Well --
Warren E. Burger: Which certainly contains some of the most eminent trial lawyers in this country and a great many of them with approval of exactly what Solicitor General and the Attorney General of California are arguing here today?
E. Barrett Prettyman, Jr.: Well, I have perhaps misstated but I was quoting --
Warren E. Burger: Well I was suggesting the misstated or overstated.
E. Barrett Prettyman, Jr.: I was quoting the -- I was citing actually the Eighth Circuit statement to the effect the trial lawyers did not think that this was inadequate substitute and my own experience in talking to trail lawyers is that they regard late cross examination. Cross examination long after the fact as something that is totally unacceptable substitute for cross examination while the man is testified. Moreover some of these codes and propositions that have been put forward you know were not all like this one. McGuire for example would -- although he cited this in support of this, actually would restrict it to written statements and the British code would not only restrict to written statements but would restrict it to civil proceedings which is far different because there, as you know, you have such a right of discovery before trial that you can discover all these facts that you'd need to know for your trial on a cross examination. But it's not true in criminal cases in most instances. I think the -- that the impetus to put off the preliminary hearing as long as possible so that you can prepare for it, I think is going to be a very serious result of all this. The California statute is worried about the turn code witness. The answer to the turn code witness is a speedy trial. It's not -- right now prosecutors want a speedy trial because they want to get that evidence and while it's still fresh in the memories in the minds of the witnesses. Under the California statute, they couldn't care less about a speedy trial. They've got their case, they've got the statement before Officer Wade at the preliminary hearing and they know they can go in and convict on that. And I say that the answer to the turn code witness is not to take away the most valuable single right the defendant has in a criminal trial and that is to confront and cross examine the witnesses against him as the crucial incriminating testimony comes in. If you have no questions, thank you very much.
Warren E. Burger: Thank you Mr. Prettyman.
William E. James: Mr. Chief Justice --
E. Barrett Prettyman, Jr.: Mr. James.
William E. James: And may it please the Court. In the few moments that I have left, I think I just wanted to touch on a few points. I think there is no fact clearer from the decisions of this Court than that the right of confrontation is a trial right. And if there is anything in our adversary system, it is the right of cross examination by competent counsel. I believe Mr. Justice Marshall pointed out that if there are discrepancies in the story of a witness, a prior statement, a statement in the Court, competent counsel can probe out that statement and determine and the -- what the truth is and the trier of fact is an opportunity to view the witness as he is testifying on the stand. Now this argument that we've heard about contemporaneous utterances, it comes I think from the Supreme Court of California where they use the term contemporaneous confrontation which isn't found in the Sixth Amendment as far as I know and it sort of a do it yourself constitutional attitude if there is to be any confrontation. The personal confrontation if at trial should be sufficient where the competent counsel has an opportunity to examine the witness to find out why he made a statement at one time. Why he's is making this thing. The trier of fact can view him and determine wherein lies the truth. And we submit that that is all that the constitution requires --
Speaker: All of the states have got this California statute.
William E. James: Well I believe we cited a recent case out of Kentucky whereby judicial decision they adopted this rule and this is also true of the State of Wisconsin as far as I know. California has it, I believe the Second Circuit follows it, and following the Bruton decision and remand by this Court of the number of cases, I think the Ninth Circuit follows it. That the -- if the co-defendant who confesses when you have a Bruton type situation is present in Court and takes the stand and is subject to cross examination by the particular defendant. That defendant has not been denied confrontation. And I think this was evident from the case that this Court had relating to confrontation just last term following Bruton and that was Harrington versus California. There, there was four defendants tried together. Harrington was up on the appeal, his petition to this Court contending that he had been denied confrontation. There were three confessing co-defendants whose confessions relating to the crime and those who participated in the crime were introduced into evidence. Two of those confessing co-defendants, Bozvy and Cooper did not mention this defendant Harrington by name. They did not relate his participation. They talked about a white boy and he was the only Caucasian. Harrington was the only Caucasian who participated in this abortive robbery and murder. And they did -- specifically said, he did not have a gun. This Court held that applying the harmless error test of Chapman, there was Bruton error as to those two co-defendants confessions but that it was harmless. The third confessing co-defendant Rowan named Harrington, placed them in the store where the robbery took place with a gun in possession of a gun. But the significant thing in that case was that Rowan took the stand and was subject to cross examination by Harrington's Counsel and we submit --
Byron R. White: Can that holding stand if your opponents are --
William E. James: I don't think so. If they would say that as to Rowan, likewise, his statement made out of Court although he was present in Court subject to cross examination would not be admissible and it would be error of a Bruton type.
Byron R. White: Rowan's testimony was different but it was an out of court statement.
William E. James: But it was an out of court statement that was introduced.
Byron R. White: But he testified, that certainly was substance evidence against Harrington, he testified it to trial against Harrington.
William E. James: Yes, and he was subject to cross examination by Harrington's counsel.
Byron R. White: What we were dealing with here is a testimony at the trial which doesn't support the prosecution. And you're relying on statements given to the police officer for the substantive evidence upon which to convict Green, aren't you?
William E. James: And the preliminary hearing. My time is up. I thank this Court for its indulgence.
Warren E. Burger: Thank you. Mr. Prettyman, you acted at the appointment of the Court at our request, we thank you for your assistance to the defendant and to the Court as well. Mr. Solicitor General, we thank you, Mr. James. The case is submitted.
William E. James: Thank you.