Warren E. Burger: Dutton against Evans. Good morning, Gentlemen. You may proceed whenever you’re ready, Mr. Evans.
Alfred L. Evans, Jr.: Mr. Chief Justice Burger and may it please the Court. This case presents the question of whether the hearsay rule is to be read into and equated with this Confrontation Clause of the Sixth Amendment. The factual setting in which the setting arose was petitioner Evans’ trial for murder in connection with the slaying of three police officers in Gwinnett County, Georgia. The principal witness for the state was Wade Truett, an accomplice who turns state evidence. Truett has testified as an eyewitness to all material details of the triple slaying. Truett’s testimony is not here in question and I will not go into it in great detail. However, I do think it may be appropriate to touch upon the highlights of his testimony. After relating the essential elements of a car theft conspiracy, Truett testified how long with the petitioner Evans and one Venson Eugene Williams, they stole a car in Atlanta, Georgia. The stolen car was driven to a rural location in nearby Gwinnett County where they decided they would change the license place-- plates and the ignition switch. While in the process of changing the plates and the switch, they were apprehended by the three soon-to-die police officers. Unfortunately, the youngest officer, while bending over the front seat of the car to examine the ignition switch, put himself in such a position as to enable Evans to remove his revolver. Evans ordered all three officers to raise their hands. They were then disarmed and manacled with their own handcuffs. At this point, Truett took the police car and drove it off into the woods for concealment. As he was returning to the spot where Evans and Williams were with the three police officers, he heard what sounded to him to be-- he described it as a nickel pack of firecrackers going off. Upon his arrival, he saw the police officers on the ground still handcuffed together. One police officer was making a peculiar sound. He then saw Williams bend over and fire two or three more times into the police officer while Evans held the flashlight. Truett’s testimony was corroborated by physical evidence as well as the evidence of other witnesses. It is a testimony of one of the corroborating witnesses which gives rise to the questions which are presented to the Court today. The witness in question is Linwood Shaw. Shaw was a fellow inmate of Venson Eugene Williams in the Federal Penitentiary at the time Williams was arraigned for the murder. On the day following his arraignment, Shaw asked Williams how he made out. The rather spontaneous exclamation reply was “if it hadn’t been for that dirty SOB Alex Evans, we wouldn’t be in this now.” The testimony was admitted over objection. The Trial Court based its ruling upon the fact that the state, in the opinion of the Trial Court, had made out a prima facie case of an auto theft conspiracy and the statement was therefore admissible under the exception to the hearsay rule for co-conspirators, an exception which is provided by statute in Georgia.
William J. Brennan, Jr.: Evans was tried separately--
Alfred L. Evans, Jr.: Yes.
William J. Brennan, Jr.: This is not a joint trial?
Alfred L. Evans, Jr.: In Georgia, when you have a situation like this, it is a matter of right that the accused can have a separate trial.
William J. Brennan, Jr.: That is, it’s the right of the accused if he wanted it.
Alfred L. Evans, Jr.: Yes, sir.
William J. Brennan, Jr.: And so, Evans was tried separately.
Alfred L. Evans, Jr.: They were tried separately.
William J. Brennan, Jr.: And Williams was tried separately?
Alfred L. Evans, Jr.: Yes, sir.
William J. Brennan, Jr.: And Truett was not tried at all?
Alfred L. Evans, Jr.: Truett was not tried.
William J. Brennan, Jr.: He turned state evidence.
Alfred L. Evans, Jr.: He turned state evidence and there was a grant of immunity. There was full disclosure of that fact to the jury.
Speaker: Would you mind stating again what the exception to the hearsay rule was?
Alfred L. Evans, Jr.: The exception was that the state had shown a prima facie conspiracy to steal automobiles. The rule in Georgia, as I think in virtually all other states and in the Federal system, is that the statement of a co-conspirator is admissible as an exception to the hearsay rule. It was admitted on this basis, that it was an exception to the hearsay rule.
Potter Stewart: The statute to which you refer appears at the bottom of page 3 of your brief.
Alfred L. Evans, Jr.: Yes, sir. There is one printed error in that. It should read “upon the showing of the fact.” I think in the printing of it, it came out “facts.” It should be singular of course.
Potter Stewart: After the fact that conspiracy shall be proven.
Alfred L. Evans, Jr.: Yes.
William J. Brennan, Jr.: How about the equivalence of that rule that this conspiracy exception continues after the crime has been committed?
Alfred L. Evans, Jr.: Yes, sir. This is, of course-- I-- this is a distinction between what I believe is a majority rule in the states and the rule in the Federal Courts. This Court, in cases such as Krulewitch, decided that the pendency of the conspiracy is at an end upon the last overt act. In Krulewitch, this Court expressly noted that the view was to the contrary in many states, including Georgia. The Court noted that Georgia’s rule was different. There was no criticism of the Georgia rule and the Court clearly, as I see it, indicated that it was ruling on a rule of evidence to be applied in Federal Courts and not a constitution standard.
William J. Brennan, Jr.: You know what the new code of evidence promulgated by Judicial Conference Committee says about it?
Alfred L. Evans, Jr.: Well, no, sir. I’m not sure what the new code on-- of the Federal Committee has to say. I know the trend in most of the model codes has been to either terminate, abrogate, or greatly restrict the present hearsay rule. The trend has been against the exclusion of hearsay. That has been the trend in most model codes. In any event, this evidence was admitted. Petitioner Evans was convicted. He raised the issue, among others, in his appeal to the Supreme Court of Georgia. His conviction was affirmed by the Supreme Court of Georgia, and this Court denied certiorari. Having exhausted his direct appeals, petitioner Evans turned to the United States District Court where he petitioned for a writ of habeas corpus. The District Court denied the writ, citing Wigmore to the effect that the evidentiary rule and the constitutional standard are not the same, and that the Confrontation Clause does not describe what kinds of testimonial statements may be given by a witness who is on the stand and is available for cross-examination. Upon appeal, however, the Court of Appeals took an entirely different view of the matter. Unlike Wigmore, unlike the District Court, and I think unlike the prior decisions of this Court, the Court of Appeals viewed the constitutional standard as one which incorporates the exclusionary rule of evidence known as hearsay, nor did the Court of Appeals stop where the generally recognized exceptions to the rule begin. To the contrary, it said that, in the future, all stated--
William J. Brennan, Jr.: What did Bruton hold?
Alfred L. Evans, Jr.: There’s a very interesting footnote in Bruton.
William J. Brennan, Jr.: Well, yes, but what Bruton--
Alfred L. Evans, Jr.: The Bruton, of course the--
William J. Brennan, Jr.: Gave the Confrontation Clause to statements of a co-defendant, didn’t it?
Alfred L. Evans, Jr.: Yes, sir. It was a statement of a co-defendant and it was a confession, if you will, of a co-defendant in a trial which we think is a situation quite different from this. And, Bruton expressly pointed out in a footnote to the decision, I think a very important footnote, it stated that the evidence there in question was not admissible under any recognized exception to the hearsay rule and, in Bruton, the Court went on to say that it did not mean to imply in any manner whatsoever that exceptions to the hearsay rule necessarily raise problems under the Confrontation Clause. In so doing, it cited Wigmore, the particular section on which we rely in Wigmore, and it also cited the prior decision of this Court in Mattox in which we also rely.
William J. Brennan, Jr.: Well, Bruton at least said that, in some situations, the Confrontation Clause is not satisfied simply by confronting a witness on the stand, right?
Alfred L. Evans, Jr.: Yes, sir. I think there is probably some overlap. In this Court, it is a difficult task, but I think the task for this Court is to delineate the scope of the Confrontation Clause. Of course, this was somewhat an academic matter prior to Pointer when the Sixth Amendment was first applied to the states. Until that time, it really didn’t matter too much to the federal criminal defendant whether his reversal was based upon a procedural rule of hearsay or the Confrontation Clause. In any event, the Court of Appeals stated that, hence, for all state exceptions would have to continually scrutinized and re-evaluated and that the state exceptions would be permitted only where supported by salient and cogent reasons. Being of the opinion that the reasons in the case at bar were not sufficiently salient or cogent, the Court of Appeals reversed saying that the Georgia statutory exception, as construed by the Supreme Court of Georgia and as applied under the facts and circumstances of the case at bar, violated Evans’ confrontation rights. Now, in our brief, we set forth four reasons why we think the Court of Appeals was wrong and ought to be reversed. First and foremost, we think the Court of Appeals erred when it elevated that ancient and much maligned exclusionary rule, known as the hearsay rule, to the level of a constitutional mandate. The view stated by Wigmore, which we think to be the correct view under prior decisions of this Court is that the constitution, does not deal with the questions of what kinds of testimonial statements must be given infra-judicially, this being dependent upon the law of evidence for the time being, but only upon what procedure shall be followed, which is of course a cross-examining procedure by the old-- which, as to that testimony which is required by the ordinary rules of evidence to be given infra-judicially. This appears to be the view which this Court followed in Mattox versus United States where it pointed out that the Confrontation Clause was designed primarily to exclude ex parte affidavits and depositions, but not to go to the competency of testimony of a witness who does appear in Court and is available for cross-examination. I’ve already pointed out that, in Bruton, the Court pointed out that the evidence there in question was not recognized by any exception to the rule and that it-- the Court intimated no view whatever that hearsay exceptions necessarily raise questions under the Confrontation Clause, and it cited a particular provision of Wigmore to which I refer and also to the Mattox decision which we cited in our brief. We urge the Court not to read the hearsay rule with or without exceptions into the Confrontation Clause. We think it is a rule singularly undeserving of the honor. It is unknown-- as far as I am aware, in any system of jurisprudence other than the annual Jackson system, to the best of my knowledge it has been roundly criticized by every scholar of our system.
William J. Brennan, Jr.: Well, do you think that these two men have been tried together by Williams and Evans that if Williams’ statement had been admissible at the trial, he’d be happy to testify? I mean, an exception, would you say?
Alfred L. Evans, Jr.: Yes, sir, because I think that-- as I re--
William J. Brennan, Jr.: Bruton just wouldn’t cover this one.
Alfred L. Evans, Jr.: No, sir. I think Bruton applies. In the first place, Wigmore and the other authorities usually distinguish between a confession which is an admission as to every material element of the crime and other admissions and, particularly, of course you have the situation in Bruton where the confession was to police authorities. I think it was a postal authority in Bruton, as I recall it. Now, we think that the situation respecting the confession, particularly a confession to public authorities is quite different from an admission-- actually, I don’t know how much an admission this statement was. To me, it’s a rather cryptic statement but, presumably, an admission against penal interest at best. We think the situation is quite different.
William J. Brennan, Jr.: Well, is this an argument, Mr. Evans, if Williams had taken the stand-- if they had been tried jointly and Williams had taken the stand and had testified as he did here and said-- put these words in Evans’ mouth that Bruton would not have applied?
Alfred L. Evans, Jr.: No, sir, I don’t think Bruton would have applied because, as I read Bruton, it applies to confessions and particularly confessions to police officers.
William J. Brennan, Jr.: Let’s put it this way then. Williams did not take the stand but they introduced a confession of Williams against Williams which contain this statement of Williams about evidence. Would Bruton there apply?
Alfred L. Evans, Jr.: I think it would possibly apply if the confession had been made to police officers. I think the distinction is this, Mr. Justice Brennan. A confession made to police officers obviously cannot be consistent with the conspiracy. It is a negation of a conspiracy. It ends the conspiracy. I don’t think this is necessarily the same as a confession to a fellow inmate in a prison, who, one might assume, would not, as it were, spill the beans. I think there is a distinction between the two situations plus the fact that, here, this statement, by no stretch of the imagination, could be considered full confession.
William J. Brennan, Jr.: So Williams had told Shaw “Yes, we did it. I was party to it.” And then had said what he did about evidence. Because this was not said to a police officer but to Shaw, Bruton would not apply.
Alfred L. Evans, Jr.: Of course, this issue has never been decided. I personally would urge that rule. Yes, sir, because I would urge that comes in the co-conspirator exception if it’s made to a prisoner during the concealment period when the conspiracy is still in effect. In other words, that is the distinction.
William J. Brennan, Jr.: Bruton didn’t address itself to the situation.
Alfred L. Evans, Jr.: No, sir. Bruton--
William J. Brennan, Jr.: It saved it.
Alfred L. Evans, Jr.: Bruton-- as I read Bruton, it addressed itself--
William J. Brennan, Jr.: If the co-defendant-- if there had been a conspiracy shown in Bruton, then that would be a different matter.
Alfred L. Evans, Jr.: If the confession were made, I would say, during the pendency of the conspiracy and if it were made to a person other than a public authority, such as-- I think you’d have to-- you’d have to get into the facts of the particular situation, but I think it would be possible that it would be admissible under Bruton.
William J. Brennan, Jr.: But what’s the basis of the distinction, Mr. Evans, whether the confession is made through a public officer or to someone else, what’s the basis for that distinction?
Alfred L. Evans, Jr.: The basis of the distinction would be that, in a conspiracy situation, it is consistent with continuation of the conspiracy to have a statement made to another individual. It is consistent with the continuance of the conspiracy. However, if it’s made-- if there is a confession to a police officer, I think that is obviously inconsistent with the continuance of a conspiracy.
Warren E. Burger: Is there not also another factor that the police officer in that circumstance has a or is thought to have sometimes by some to have a special interest in helping to convict the man, whereas the co-conspirator would not be in that character?
Alfred L. Evans, Jr.: Ordinarily, I would think it would be the other way.
William J. Brennan, Jr.: What do you think the basis for the co-conspirator exception to hearsay rule is?
Alfred L. Evans, Jr.: Well, the traditional view has been along an agency theory that when people are acting together to accomplish an illegal purpose that the acts and statements of one party are admissible in evidence against all other parties because they’re working together as agents, and of course the law has always taken a view that there is something more inherently evil about a combination to commit crime than the perpetration by a single individual.
William J. Brennan, Jr.: All that means is that you can describe the co-conspirator statement to the defendant himself.
Alfred L. Evans, Jr.: Yes, sir. It’s a rule of evidence.
William J. Brennan, Jr.: And you don’t think there’s anything in the fact that there’s some substitute for cross-examination in this exception maybe that there’s some indicia of reliability so that you don’t need cross-examination?
Alfred L. Evans, Jr.: Well, yes, sir.
William J. Brennan, Jr.: Such as in a state it is made.
Alfred L. Evans, Jr.: In this particular state and I think--
William J. Brennan, Jr.: It’s an admission against--
Alfred L. Evans, Jr.: I think in this particular statement, to go into the question of trustworthiness which, of course, is one of the usual justifications for an exception to the hearsay rule. I think that this statement is probably trustworthy for several reasons. In the first place, it is not a long narrative in which the danger of error in the retelling would be very great. It’s a specific response to a very specific question. Now, if the witness had testified as to a physical impression such as anger, flushed face, I think no one would question that that would be admissible. Is there any good reason for discriminating against auditory perceptions in favor of a visual perception when the statement is so brief, so short? I think not. Secondly, it is a statement which is against the penal interest of the declarant. This is a statement which ordinarily would not be made, I think, unless true. Finally, when you compare it to the other recognized exceptions--
William J. Brennan, Jr.: So this is another exception entirely, isn’t it, to the co-- in addition to the co-conspirator exception?
Alfred L. Evans, Jr.: Yes, sir, but I’m saying that-- I’m saying why this particular statement in the case at hand I think is trustworthy, for what it’s worth.
William J. Brennan, Jr.: Do you think Williams’ testimony would’ve been admissible? Say, the rule in Georgia were the rule in Federal Court as far as the co-conspirator is concerned. Would this statement by Williams to Shaw have been admissible anyway on the basis that it was a declaration against penal interest?
Alfred L. Evans, Jr.: I really cannot answer that. That was not the grounds urged by counsel and, therefore, I can’t answer what the rule--
William J. Brennan, Jr.: Well, your argument goes in that direction.
Alfred L. Evans, Jr.: My argument goes in that direction for purposes of demonstrating, I hope, to the Court that the statement was trustworthy, only for a demonstration. I might point out that this Court has consistently recognized exceptions such as dying declaration. I would think the statement like this is at least trustworthy as a dying declaration.
William J. Brennan, Jr.: But, Mr. Evans, hasn’t this really boiled around an argument that any hearsay statement of which it can be said they’re indicia of trustworthiness is admissible without regard to whether it’s within any of the exceptions.
Alfred L. Evans, Jr.: Well, sir, if there is an error in hearsay, I do-- I agree. I do not think it necessarily reaches a problem with constitutional dimensions if there’s an error in the admission of hearsay. Of course, it is always true in hearsay that hearsay per se relates to the declara-- to an out-of-court declaration. So, to that extent, anytime there’s any hearsay.
William J. Brennan, Jr.: Well, the trend you mentioned earlier, to admit hearsay.
Alfred L. Evans, Jr.: Yes, sir, that is--
William J. Brennan, Jr.: I gather, it rests in part, doesn’t it, on questions of the trustworthiness?
Alfred L. Evans, Jr.: The trustworthiness--
William J. Brennan, Jr.: For liability of it.
Alfred L. Evans, Jr.: Trustworthiness and also the general feeling that, after all, the purpose of evidence is to shed light and many judges have written that they feel that the suppression of hearsay, more often than not, keeps light off the matter under investigation and that it causes more damages than good. In any event, the test has been roundly criticized by all legal scholars and we feel that it would be a pity if the reformers have to fight the constitutional standard as well as what we think is far too many hearings of inertia. Now, while we think the primary legal error of the Court of Appeals was its equating of the evidentiary rule and constitutional standard, we feel that the far greater mischief potential in its decision was the test it set forth for review by federal judges of the application state exceptions. According to the Court of Appeals, no matter how settled a state exception might be, its application by a state judge in a state criminal proceeding is subject to reversal by a reviewing federal judge if the federal judge is of the opinion that the reasons in the particular case for the adherence to state law were not sufficiently salient or cogent. In reality, this is just a pure second guessing test. The entirely subjective nature of this test, we think, contribute only further to the lamentable trend for state criminal proceedings to be conducted as ping pong matches between state and federal tribunals. We hope, first and foremost, that this Court will decline to elevate the hearsay rule to a constitutional standard. But, should the Court disagree, we hope at the very minimum that the Court will provide some intelligible object of standards so that trial judges-- state trial judges may have some idea as to how to conduct criminal trials when the question of hearsay arises. We think this much is necessary to the orderly disposition of state criminal trials. Now, I’ve already dealt very briefly with the distinction between--
William J. Brennan, Jr.: How would you take the situation that was involved in Pointer against Texas would meet with your-- how would that get into what you’re suggesting?
Alfred L. Evans, Jr.: Of course, Pointer-- the decision of Pointer versus Texas is perfectly consistent with the Wigmore rule. The Wigmore rule is that confrontation relates to the procedure, by which evidence is placed before a jury. Pointer involved a transcript. This Court has always said that the fundamental purpose of the hearsay-- excuse me, of the confrontation standard is to prevent trials upon depositions and ex parte affidavits. I recognize that even to this rule, the confrontation rule, there are exceptions, but that is the purpose of the rule.
William J. Brennan, Jr.: To ensure that there’ll be a live witness--
Alfred L. Evans, Jr.: Yes.
William J. Brennan, Jr.: Subject to confront--
Alfred L. Evans, Jr.: Yes.
William J. Brennan, Jr.: Who would be confronted and cross-examined.
Alfred L. Evans, Jr.: Yes, sir, but not going to the question of the competency of this testimony. That is the traditional, what I call, the Wigmore rule which I think is a traditional rule which this Court has followed in past decisions. In Stine versus New York and said it would not read the hearsay rule into the Fourteenth Amendment. There is of course the problem if we are wrong, if this Court decides that the hearsay rule and the confrontation clause are to be equated, you then reach, I think, the exceedingly difficult problem of how to treat long standing state exceptions to the rule, particularly this problem is acute where the state and the federal rule vary. This is a situation with respect to the co-conspirator exception to the Hearsay Clause. I’ve already mentioned that in Krulewitch. This Court took the view that the conspiracy ends upon completion of the last overt act of the conspiracy.
William J. Brennan, Jr.: Well, also, I-- perhaps I’m mistaken, but my impression is that the rule doesn’t come into play at all in the federal system unless the charge is a conspiracy charge and, in here, there was no charge of conspiracy.
Alfred L. Evans, Jr.: No, sir. Until one year ago, there was no general crime of conspiracy in Georgia.
William J. Brennan, Jr.: Right.
Alfred L. Evans, Jr.: It is an evidentiary rule, no question about that. Finally, I would say that even if there has been constitutional error we think, in this case it is, beyond all reasonable doubt, harmless error. This man was convicted upon the testimony of Wade Truett, an eyewitness. The record shows ample corroboration both by physical evidence and the testimony of other witnesses. We think that even under Chapman, the ruling of Chapman that the error here, if error existed, was harmless error beyond all reasonable doubt. I would like to save what remaining time I have for rebuttal. Thank you.
Warren E. Burger: Mr. Thompson.
Robert B. Thompson: If it please the Court, I would like to, for purposes of placing this issue and where I can say it to be the context of the matter, describe what the Georgia statute is held by the Supreme Court and by the Appellate Courts of Georgia to mean. This statute, as applied by the Supreme Court of Georgia and the Appellate Courts of Georgia, and if it’s from the federal rule substantial and if as we submit from the rules of all of the states that we plainted with, the statute provides that once the fact of conspiracy has been established, the acts and declaration of all conspirators are admissible into evidence against each of them. One of the flagrant things that’s missing from that statute, as construed by the Supreme Court of Georgia, that is present in all of the other interpretations of similar exceptions is that the statement or declaration must have been made in furtherance of the conspiracy. That is to say that where two, for instance, might conspire to burglarize a grocery store, if one of the conspirators were setting in the automobile outside the grocery store and the other one in it, I’m satisfied that evidence as to the acts of each can be admitted against the other to prove the conspiracy itself and to prove the concert of action. Likewise, if some declaration was made in furtherance of the conspiracy once it had been established, that is, using a similar example, if one of the conspirators had been designated the function of going to purchase a gun and maybe the two of them went together to purchase it and one of them did all of the talking, the testimony with regard to what this man stated to the gun merchant would be admissible against both of them if the two were otherwise connected because these acts or these declarations would have been or could be construed to have been in furtherance of the conspiracy. Now, the Supreme Court of Georgia-- I refer to the Supreme Court after I refer to the Court of Appeals. We have a Court of Appeals and a Supreme Court in Georgia. These two Appellate Courts have, in the past, recognized the rule to be, as we have stated it, similar to the founder of federal rule. That is, if the act or if the declaration were in furtherance of the conspiracy which have been proved, it would be admissible against any co-conspirator who was shown to be a member of the conspiracy. In the older Georgia cases, we have cited some in our brief, have gone along with this rule but, somewhere along the line without ever overruling that rule, the Appellate Courts of Georgia have dropped the furtherance requirement and recognize only that if a statement is made during the course of a conspiracy during its pendency then it’s admissible against all of the co-conspirators whether or not it was in furtherance of the conspiracy.
Potter Stewart: How long has this statute been on the books?
Robert B. Thompson: If it please the Court, the statute has been on the books since the Parks Annotated Code which is our oldest code, I believe, in Georgia. It came from decisional law. Our code in Georgia, our Criminal Code, is based upon decisional law basically and it has grown from that, and this is one of the basic statutes that we had in the state.
Potter Stewart: But this is an enactment by the Georgia legislature, I assume.
Robert B. Thompson: Yes, it’s enacted by the Georgia legislature in this sense, if it please the Court. A Code Committee was appointed and I can’t tell you when it was. It formulated a code for the State of Georgia.
Potter Stewart: It codifies the decisional law in this area and then submits it to the legislature.
Robert B. Thompson: And the legislature enacted it, more or less, in both as a code.
Potter Stewart: Well, the statute is written. It is the conventional co-conspirator rule, is it not? It is written and it’s the palimony of the gloss, the judicial gloss is put down during the period of the conspiracy. It runs to the point where the concealment period as well as the operational period of the conspiracy. Isn’t that correct?
Robert B. Thompson: Yes, sir. I cannot state-- I understand the Court’s question. I cannot state whether it is the typical co-conspirator rule. I don’t know of one actually. The Georgia statute and the federal--
Potter Stewart: I think the federal rule--
Robert B. Thompson: Rules of the Court.
Potter Stewart: In accordance with the federal rule, statements of one co-conspirator made during the course of a conspiracy against the other.
Robert B. Thompson: I believe that the federal rule includes and is made during the course of and in furtherance of conspiracy.
Potter Stewart: That’s hearsay during the course of it but, during the course of it it’s, by judicial gloss, extended to the period of concealments of thought as well as the active operations. Isn’t it true?
Robert B. Thompson: Yes, sir. The question of concealment is a second vice that we have not urged this boldly as we have the question of furtherance in this case. The Court of Appeals recognized both of these problems in its opinion. We were, at that point, dwelling on the question of furtherance. Under the Georgia rule, of course the Courts have construed a conspiracy to continue so long as the co-conspirators are in any way attempting to conceal the fact of the crime. And, as we understand the decisions of the Georgia Court, actually up until the time the co-conspirators are electrocuted, so long as one or more of them deny the crime, we have taken the leap that the point have in our brief and in our argument not attacking so much that facet of the law, although we do attack it but attacking the facet that makes the declaration admissible although it not be in furtherance of the conspiracy. We think that this is much more important for these reasons. We think that a statement made during the course of a conspiracy which is not in furtherance of the conspiracy could be much more harmful than a statement made during a period of time when the conspiracy is being concealed if it were in some way in furtherance of the conspiracy. We depict the situation there where, during the concealment period, the-- one of the defendants or one of the co-conspirators continues laying the groundwork for future evidentiary matters which would attempt further to conceal it or, for that matter, there’s some act they would attempt to conceal it.
Warren E. Burger: What if this statement of Mr. Williams had developed in this way? Suppose in a fit of remorse after this offense he had slashed his throat or cut his arteries somewhere and lay dying on the floor of the cell and uttered these same words to either one of the co-conspirators or to someone else.
Robert B. Thompson: I think--
Warren E. Burger: Would it be admissible?
Robert B. Thompson: No, sir, I think not. We have there, as I see Chief Justice’s question, the question of whether or not a dying declaration would be admissible, however, a dying declaration would not be admissible under even the dying declaration exception unless it’s permanent to the facts or otherwise admissible. Here, what if he had said, for instance, that Evans and I had robbed every bank in the country? This would not be relative to the murder issue and it would not be in furtherance of the conspiracy, and we submit that even as a dying declaration under the facts that the Chief Justice stated, that it would not be admissible because it would not have been in furtherance of the conspiracy.
Potter Stewart: Well, but that’s-- well, the Chief Justice’s example is quite a different and distinct exception to the hearsay rule.
Robert B. Thompson: Yes, sir.
Potter Stewart: i.e., the dying declaration exception. It doesn’t purport to come with under the conspiracy exception.
Robert B. Thompson: Yes--
Potter Stewart: And your answer was that would be inadmissible because of the Sixth Amendment?
Robert B. Thompson: No, sir. It would be inadmissible too for the reason that it would not be relevant. It would not have been in furtherance of the alleged conspiracy.
Potter Stewart: Well, in the hypothetical, he-- Williams dying on the floor where he said exactly the same words as he said here, and if these words are irrelevant then the same words would be equally relevant, wouldn’t they?
Robert B. Thompson: Well, I think that’s the very point that I’m making. It would not have been in furtherance of the conspiracy. We submit that these were not in furtherance of the conspiracy and that would not have been.
Warren E. Burger: But the dying dec--
Robert B. Thompson: We are not--
Warren E. Burger: But the dying declaration exception is a different exception, as Mr. Justice Stewart has pointed out.
Robert B. Thompson: Yes, sir. We would submit that if--
Warren E. Burger: But is it any-- do you regard it as any more or less reliable than the statement made here?
Robert B. Thompson: Under the concept of the law, as I understand it, it has some reliability and trustworthiness because a man under the dying declaration statute does not make a statement until such time that he is in extremes that he knows that he is and that he is told he’s about to meet his maker and he would not lie. This is a theory of it. I think though we go that far-a-field from what we’re talking about here, they-- we--
Potter Stewart: You must necessarily be talking about here is not that-- you got to argue more than that the Georgia exception to the hearsay rule as a matter of policy and perhaps too broad. You have to argue necessarily, since you’re in a federal Court here, you’ve got to argue that it violates some provision of the constitution.
Robert B. Thompson: That is correct and we contend that it violates, of course, the Sixth Amendment right to confrontation and--
Potter Stewart: Would you, in answer to the Chief Justice’s hypothetical question, would you also think that the dying declaration exception, under circumstances that he described, would-- that the Sixth Amendment would prevent the admission of a statement made under the conditions he described?
Robert B. Thompson: If it please the Court, I think that the exception as to the dying declaration is so well-established in our law, both in a federal and in a state law, that I would have a difficulty attacking that. I noticed in his argument the Solicitor General, of course, would do away with the hearsay rule. We are familiar with the textual authorities that would. Of course, we would disagree with it but, in this situation, the dying declaration situation, since we do not have that case here, I’m not prone to argue and I’m not prepared to argue. I would say that I would not be on it as firm ground since the exception is so ancient and well-recognized. The Court and, again, point to the decisions of this Court which we think are relevant, although all of them are not directly in point with the issue we have here. Pointer has been mentioned and I would, just as not by way of refreshment as much as anything else, say that in Pointer, testimony of a witness given at a preliminary examination at a time when the defendant did not have an attorney present was admitted against Pointer on the trial, at the primary trial of his case. This was admitted on the theory that the witness since left the state and did not intend to return to the state. Now, the Court held that this was a denial of confrontation. The question was asked during the course of this argument of the Solicitor General-- the Attorney General with regard to the distinction between the transcript and the-- the transcript that was admitted and oral testimony. Actually, we think it is none. The Court did not point out in its decision in the Pointer case. As a matter of fact, we would think that the transcript would be much more reliable than the oral testimony of one who heard the testimony of one who put the transcript in the form it was in, the Court reporter for instance. Now, in most states, I think in the federal Courts, that where a witness has since died and has previously testified and been subject to cross-examination, his testimony might be related during a subsequent trial to the jury from the memory of one who heard it. This is a further exception. What I am pointing out here is that, in Pointer, we were talking about confrontation as we’re talking about confrontation here, and it was not significant, we submit, in Pointer that this was a transcript as oppose to oral testimony. We think the fact that something has reduced the writing, as in some distinction has been attempted by the Attorney General, has no significance whether it be oral or in writing. It is a question on confrontation nevertheless. In any event, that was the situation in pointer. In Douglas, the Court will recall as Douglas versus Alabama cited in our brief, the Court will recall that the co-defendant was placed on the witness stand. He was asked to-- some questions and refused to testify on the grounds that his testimony might incriminate him. And, significantly or interestingly, this situation was somewhat like the situation we have here. The co-defendant had previously been tried and convicted in a separate trial from the time he was on trial. In any event, the District Attorney was permitted to read to the co-defendant a confession that the co-defendant had given which involve the defendant on trial. And, as he read it from line to line or phrase to phrase, he would ask the co-defendant who was physically on the witness stand whether or not he had made such a statement, and on each occasion the co-defendant would state “I refuse to testify on the grounds that it might incriminate me.” After having this placed before the jury, actually not in the form of evidence, the confession of the co-defendant, the Solicitor or the District Attorney put a witness on the stand to prove that the co-defendant who had refused to testify have given a confession had it identified, but the confession was never introduced into evidence and indeed, under the law of Alabama, apparently it was not admissible. So here, again, we have a situation where we have oral testimony. We’re not dealing with something necessarily physical: a writing or a transcript or a written confession. The Court, of course, in that case held that the co-defendant, the one on trial, although the witness against him was physically on the witness stand, was denied the right of confrontation. In Bruton versus United States, this was a Court-- a case that arose in the federal Courts and it’s so recent, I’m satisfied, that the justices remember the facts of the case but, in subsequence, a confession of one co-conspirator or co-defendant was admitted in the course of the trial under the then approved instructions that it would be considered only as to him and not as to the co-defendant that was mentioned in it but who did not get it.
William J. Brennan, Jr.: But wasn’t it a co-conspirator, was it or not?
Robert B. Thompson: Sir?
William J. Brennan, Jr.: Was it a co-conspirator?
Robert B. Thompson: Co-defendant, as I understand. I don’t recall whether it was a conspiracy issue or not. As I recall Bruton, it was a confession of a co-defendant.
Speaker: As I understand your Georgia rule, the one at issue here, it really applies whenever there are co-defendants. There doesn’t need to be a conspiracy charge.
Robert B. Thompson: This is correct, sir, and I would get to that in just a moment. I wanted to get that into context of the decisions of this Court and there are only two others that I wanted to discuss briefly and one of them-- and Bruton is the one. I would state that, under Bruton, the-- under the Georgia rule, under the statute that we have here involved in Georgia, that the confession in the Bruton case in a Georgia Court would have been admitted without error. It is admissible under the rule that we have here in question and we have, again, cited a case to that in our brief where a confession of a co-conspirator, co-defendant not on trial was admitted against the defendant on trial. Under this particular rule, it said that the Court said in the Evans case and the one we have here under review, the Courts said under this rule it was a statement made during the pendency of a conspiracy. The conspiracy contended until the men are finally brought to justice. As long as one of them went on denying their guilt, there is a conspiracy. Therefore, this is admissible. Even though under Bruton and, actually, under the decisions prior to Bruton, it would not have been admitted in federal Court and we contend, under the Confrontation Clause, we have decided--
Potter Stewart: Had the Bruton case been decided here at the time that this present case was considered by the Georgia Supreme Court?
Robert B. Thompson: Yes, sir, it had.
Potter Stewart: And it’s--
Robert B. Thompson: Excuse me, sir. I think that it had.
Potter Stewart: Do you remember if it’s discussed and is distinguished in the Georgia Supreme Court?
Robert B. Thompson: If it please the Court, I will apologize. It had not been because I recall actually writing a letter to the Clerk of the Court calling the Bruton case to the Court’s attention while this case was pending in the Fifth Circuit Court of Appeals. So, it would not have been decided at the time the Georgia Supreme Court made its decision. As a matter of fact, I might mention that this point, so fixed in Georgia law, is the concept of this statute as it is applied in this case and would have been applied in Bruton that I cannot get the Supreme Court of Georgia to even comment on the argument that I’m making here before the Court today. I attack the constitutionality of this statute in the District Court and I attacked the constitutionality on the same grounds we urge here in the Supreme Court of Georgia while this case was on appeal. The Supreme Court decided this Code Section and said the conspiracy was pending therefore, this was admissible and let it ride. On a motion for rehearing before the Supreme Court, I-- in order to get down to the real issues involved, eliminating argument on many of the other issues, hoping that the Court would comment at least on this issue, the Court denied the motion for rehearing without comment on the constitutional issue. In any event, we submit that under Darden v. State which is cited in our brief, a Georgia Supreme Court defendant, the confession in Bruton would have been admissible in Georgia under the Georgia rule. Brookhart v. Janis, I believe, perhaps was the first of these decisions that I am in-- chronologically, that I have recited in the Court but, whether or not it was, in that case, the defendant had waived counsel and waived certain of the rights at the preliminary hearing and on the trial of the case in an effort-- well, not an effort that was made. The testimony that was given at the preliminary hearing was introduced into evidence against Janis. The Court, there, held that this was a denial of confrontation. Janis did not have an attorney or Brookhart, whichever one was the complaining party, did not have an attorney at the preliminary hearing and had not intelligently waived his right to cross-examination, as we recall that case. Roberts against Russell, which is also cited in our brief, merely holds that the Bruton rule is applicable to State Courts. Now, with regard to the Georgia statute in answering Mr. Justice Stewart’s question, at the time this case was tried there was no conspiracy laws that was stated by the Attorney General, there was no conspiracy statute, general conspiracy statute in Georgia. One might be indicted in a-- in this case, he was-- they were, in an indictment charging the offense of murder without the mention of any conspiracy. However, as the law have developed, the decisional law, again, that Georgia had developed, conspiracy, as we know it, was a rule of evidence and the fact of the commission of the crime could be proved by what the Court would call or what we might refer to as conspiracy evidence. In the particular indictments in this case, no conspiracy was mentioned but the case was tried on a theory of conspiracy. I have already alluded to the federal rule. I had-- with regard to the federal rule of evidence in conspiracy cases, this is a-- the rule that requires that the statement must have been made during the course of the conspiracy and in furtherance of the conspiracy to be admissible. The Attorney General, in his brief, gives some recognition to the fact that the rule is this. It gives lip services. We understand it to the proposition that drew list that the-- in order to be admissible and to meet constitutional standards and to actually be an exception to the hearsay rule. Constitutionally exception, I might say, not a constitutionally provided exception but an exception which would meet constitutional standards that the evidence must be in furtherance of a conspiracy. Of course, we have submitted that in this case-- none of the facts of this case is no concept under which the statement under which the statement attributed to Williams could have been made in furtherance of the conspiracy or could have furthered it in any way.
Potter Stewart: What is the purport of the statement as you understand it?
Robert B. Thompson: It is-- as I understand the statement, it is an accusatory statement in the nature of an accusation and perhaps a confession as far as Williams is concerned. It’s a rather cryptic statement to admit.
Potter Stewart: It is. Do you understand it as implying that Evans was the ringleader?
Robert B. Thompson: He was either the ringleader or the murderer.
Potter Stewart: I mean the statement itself. Is that the-- is that its impact? “If it hadn’t been for that SOB Alex Evans, we wouldn’t be in this now.”
Robert B. Thompson: The impact is that he was the instigator of a moving party. I might-- I don’t--
Potter Stewart: The other-- the evidence-- the other evidence was, as I so read it, while Evans was certainly a participant, I’m talking now about the eyewitness testimony of the participant who turn states evidence, that while Evans was a participant, it was actually Williams who was the triggerman, isn’t that right?
Robert B. Thompson: According to the evidence disposed on the record. We might state that this is one of the-- it points out why we needed to cross-examine the offer of the utterer of that statement.
Potter Stewart: Could you--
Robert B. Thompson: Just what he did mean.
Potter Stewart: Could you have called Shaw? Or, no-- Shaw testified, didn’t he?
Robert B. Thompson: Yes, sir.
Potter Stewart: Yes. Could you call Williams?
Robert B. Thompson: We could have called Williams to the witness stand as a witness, yes, sir.
Potter Stewart: You had that right under Georgia.
Robert B. Thompson: We had the right to call him.
Potter Stewart: And you can call him on cross-examination, for the purposes of the cross-examination?
Robert B. Thompson: I might state in that connection, if it please the Court, of course he had been tried one week earlier.
Potter Stewart: And convicted.
Robert B. Thompson: And convicted, and whether or not he would have testified, I do not know.
Potter Stewart: But you had the, at least the power, the right to call him as a witness?
Robert B. Thompson: Yes, sir.
Potter Stewart: And subpoena.
Robert B. Thompson: We had subpoena right. Actually, we would never--
Potter Stewart: And did not exercise it.
Robert B. Thompson: Do this by habeas corpus as a test as we can, but we wouldn’t have that right. I’m certain that it would’ve been a void test.
Potter Stewart: And did not try to exercise it.
Robert B. Thompson: No, sir, we did not.
Speaker: Why not?
Robert B. Thompson: There are a number of reasons. As a criminal practitioner, I followed the practice not to use co-conspirators as witnesses in a case generally because I feel that a jury will not accept that testimony. Certainly, if they will not accept the testimony of the defendant himself, they’ll not accept the testimony of Williams. Secondly, I was aware of the fact this was a well-publicized transaction in Gwinnett County, Georgia. I recognize the fact that I had an uphill struggle in selecting the jury to try my case and I was aware of the fact that 12 men had, only a week earlier, summons him today. I thought from a strategy from the standpoint that it would not be well to call Williams. I might add also that Williams has a rather wrong chi, if that’s a good term to use, criminal record. He could be very successfully impeached by use of his criminal record. We felt that it would not be availing to use in both from a strategy standpoint and a practical standpoint.
Potter Stewart: Could you have called him on cross-examination?
Robert B. Thompson: No, sir.
Potter Stewart: i.e., as an adverse witness.
Robert B. Thompson: I would not have had that power.
Potter Stewart: Would not.
Thurgood Marshall: Mr. Thompson, what do you say of the state’s argument about the Chaplin case?
Robert B. Thompson: About the--
Thurgood Marshall: On this area.
Robert B. Thompson: I wanted to get to that and I was saving that for last, and I’m about to approach that unless the Court would like for me to approach it at this time.
Warren E. Burger: Let me remind you, counsel, you have about only two minutes.
Robert B. Thompson: Alright, sir. I will make it in two minutes then. I would point out that what actually the state is attempting to do in this case is to get the Court to reverse Pointer or overrule Pointer, Douglas, Brookhart, Bruton, and Roberts. We think that in order to rule as the state would have the Court rule. In this case, it would be necessary for the Court to overrule those decisions to certainly diminish their effects from substantially. Under the harmless error rule, as decided by this Court in Chaplin versus California, the Court would have to declare that it was a harmless error beyond reasonable doubt before that would be applicable here. This Court is incidentally, as we understood Brookhart v. Janis, as we understood the code in that case, it said this error is so fundamental that it isn’t-- the denial of confrontation is isn’t so fundamental that prejudice need not be shown, that it will be presumed. That since that time the Court has decided that, very recently, the case of Harrington versus California in which it held that the denial of confrontation to be harmless error, but I will hastily run over reasons why I think this is not harmless error. First of all, under Georgia law, in order for a conspiracy to be proved by the testimony of a single witness, the testimony by a-- an accomplice, I should say, the testimony must be corroborated. This was a corroboration of the testimony. We think that this tended to corroborate the testimony of Truett and, therefore, could not have been harmless. Truett was the only real evidenced in the case, what he testified to. Under the evidence in the case, he had been given immunity from prosecution for triple murder also have been promised assistance in securing parole from a federal summons that he was serving and perhaps other inducements. We think that this was a post case from that standpoint, and that shows testimony as to a statement made by a co-defendant might well have turned the tide. The statement, as we stated, is an accusatory statement. We are satisfied of that. The state thought so at the time it brought Mr. Shaw from federal penitentiary in Atlanta to Gwinnett County to testify solely to this.
Potter Stewart: Is that all Shaw testified to?
Robert B. Thompson: Yes, sir. This was the only testimony that Mr. Shaw testified to. He lied on his own and I assume, under the rules, I’d have to--
Potter Stewart: I have one other question.
Robert B. Thompson: Yes.
Potter Stewart: Is your client now under sentence of death?
Robert B. Thompson: Yes, sir, he is.
Warren E. Burger: Mr. Evans.
Alfred L. Evans, Jr.: May it please the Court. I would comment only on two matters. First, dealing with the last question, I think there’s no doubt that if the case should be remanded, Witherspoon would be applied and, therefore, it would not be a death penalty. Secondly, I would like to comment briefly--
Speaker: You’re conceding that there were violations of the Witherspoon Doctrine in the qualification of the trial jury?
Alfred L. Evans, Jr.: Yes, sir. It was held in the case, this has already been held in the Williams case and we would concede that there would have to be a commutation of the penalty to life in prison, yes, sir. Secondly, I would just like to touch briefly on the furtherance--
Thurgood Marshall: Well, has it been commuted?
Alfred L. Evans, Jr.: No, sir.
Thurgood Marshall: Why not?
Alfred L. Evans, Jr.: Because the-- in the Williams case, the Court of Appeals remanded for the application of Witherspoon. In this case, they held a new trial was required because of a denial of confrontation and said, therefore, they did not reach Witherspoon. However, they suggested upon retrial that the Court consider these problems.
Thurgood Marshall: No, I mean it’s my understanding that the Attorney General of Georgia agrees that the Witherspoon case requires that the sentence be commuted. Am I right?
Alfred L. Evans, Jr.: Yes, sir. This will be required.
Thurgood Marshall: And my answer is-- my question, why hasn’t it been?
Alfred L. Evans, Jr.: Well, I suppose--
Potter Stewart: Because if you’re opponent wins, it will be much more than a commutation. It will be a new trial or--
Alfred L. Evans, Jr.: Right, it will be a new trial.
Potter Stewart: Maybe a verdict of acquittal.
Alfred L. Evans, Jr.: Yes, but it will be commuted. There’s no question. It will be commuted. The other-- my only other comment has to do with the furtherance rule. There are many variants of furtherance in the various states. The Georgia view is-- they interpret it. They don’t use the word “furtherance.” They say “relevancy.” In our brief, we cite a federal Court which interpreted “furtherance” exactly the same way. I think that it is not the rule anywhere that I know of that the actual statement itself must further conspiracy. I think it is sufficient that it relates to acts taking place during a conspiracy.
Hugo L. Black: May I ask you one question? Why would the Witherspoon case compel a commutation of sentence?
Alfred L. Evans, Jr.: Well, of course, Mr. Justice Black, there were many errors alleged in the--
Hugo L. Black: What if it should be tried again for a jury and the Witherspoon question didn’t come in?
Alfred L. Evans, Jr.: Of course if the new trial is granted, yes, this is so. If the new trial is granted then, of course, you would have a new jury and, in that case, the Wither-- there might-- could be a death penalty if the new trial is granted.
Hugo L. Black: There’d be no commutation required, you mean?
Alfred L. Evans, Jr.: Yes, sir. I’m assuming that, on remand, if the case is remanded to the Fifth Circuit under this trial, the trial which we have had, Witherspoon is applicable. Of course, if there is a new trial, presumably, the District Attorney would examine the witness in such a way as to comport to Witherspoon.
Robert B. Thompson: If it please the Court, I know I’m out of order to ask you one moment, one summons to come answer what had just been said, but I would like to state that under the Georgia Supreme Court in cases such as this, has now held that a case otherwise subject to Witherspoon would be remanded to the Trial Court for a trial on the issue of penalty only.
Hugo L. Black: On the what?
Robert B. Thompson: On the issue of penalty only.
Warren E. Burger: Mr. Thompson and Mr. Evans, we thank you for your submission, and the case is submitted.
Robert B. Thompson: Thank you very much.