U.S. Supreme Court Bruton v. United States, 391
U.S. 123 (1968) Bruton v. United
States No. 705 Argued March 11, 1968 Decided May 20, 1968 391
U.S. 123 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus A joint trial of petitioner and one Evans resulted in the
convictions of both for armed postal robbery. Evans did not take
the stand, but a postal inspector testified that Evans confessed
orally that he and petitioner committed the robbery. The trial
judge instructed the jury that, although Evans' confession was
competent evidence against him it was inadmissible hearsay against
petitioner and had to be disregarded in determining petitioner's
guilt or innocence. Evans and petitioner both appealed to the Court
of Appeals. That court set aside Evans' conviction on the ground
that the oral confession should not have been received against him,
but affirmed petitioner's conviction in view of the trial judge's
instructions, relying on Delli Paoli v. United States, 352 U. S. 232 . Held: Because of the substantial risk that the jury,
despite instructions to the contrary, looked to the incriminating
extrajudicial statements in determining petitioner's guilt,
admission of Evans' confession in the joint trial violated
petitioner's right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment. Delli Paoli v.
United States, supra, overruled. Pp. 391 U. S.
126 -137.

															375 F.2d 355, reversed.

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															This case presents the question, last considered in Delli
Paoli v. United States, 352 U. S. 232 ,
whether the conviction of a defendant at a joint trial should be
set aside Page 391 U. S. 124 although the jury was instructed that a codefendant's confession
inculpating the defendant had to be disregarded in determining his
guilt or innocence.

															A joint trial of petitioner and one Evans in the District Court
for the Eastern District of Missouri resulted in the conviction of
both by a jury on a federal charge of armed postal robbery, 18
U.S.C. § 2114. A postal inspector testified that Evans orally
confessed to him that Evans and petitioner committed the armed
robbery. The postal inspector obtained the oral confession, and
another in which Evans admitted he had an accomplice whom he would
not name, in the course of two interrogations of Evans at the city
jail in St. Louis, Missouri, where Evans was held in custody on
state criminal charges. Both petitioner and Evans appealed their
convictions to the Court of Appeals for the Eighth Circuit. That
court set aside Evans' conviction on the ground that his oral
confessions to the postal inspector should not have been received
in evidence against him. 375 F.2d 355, 361. [ Footnote 1 ] However, the court, relying upon Delli Page 391 U. S. 125 Paoli, affirmed petitioner's conviction because the
trial judge instructed the jury that, although Evans' confession
was competent evidence against Evans, it was inadmissible hearsay
against petitioner, and therefore had to be disregarded in
determining petitioner's guilt or innocence. 375 F.2d at 361-363.
[ Footnote 2 ] We granted
certiorari to reconsider Delli Paoli. 389 U.S. 818. The
Solicitor General has since submitted a memorandum stating
that,

															"in the light of the record in this particular case and in the
interests of justice, the judgment below should be reversed and the
cause remanded for a new trial."

															The Solicitor General states that this disposition is urged in
part because

															"[h]ere it has been determined that the confession was wrongly
admitted against [Evans] and his conviction has been reversed,
leading to a new trial at which he was Page 391 U. S. 126 acquitted. To argue, in this situation, that [petitioner's]
conviction should nevertheless stand may be to place too great a
strain upon the [ Delli Paoli ] rule at least, where, as
here, the other evidence against [petitioner] is not strong."

															We have concluded, however, that Delli Paoli should be
overruled. We hold that, because of the substantial risk that the
jury, despite instructions to the contrary, looked to the
incriminating extrajudicial statements in determining petitioner's
guilt, admission of Evans' confession in this joint trial violated
petitioner's right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.

															The basic premise of Delli Paoli was that it is
"reasonably possible for the jury to follow" sufficiently clear
instructions to disregard the confessor's extrajudicial statement
that his codefendant participated with him in committing the crime.
352 U.S. at 352 U. S. 239 .
If it were true that the jury disregarded the reference to the
codefendant, no question would arise under the Confrontation
Clause, because by hypothesis, the case is treated as if the
confessor made no statement inculpating the nonconfessor. But since Delli Paoli was decided, this Court has effectively
repudiated its basic premise. Before discussing this, we pause to
observe that, in Pointer v. Texas, 380 U.
S. 400 , we confirmed "that the right of
cross-examination is included in the right of an accused in a
criminal case to confront the witnesses against him" secured by the
Sixth Amendment, id. at 380 U. S.
404 ;

															"a major reason underlying the constitutional confrontation rule
is to give a defendant charged with crime an opportunity to
cross-examine the witnesses against him." Id. at 380 U. S.
406 -407.

															We applied Pointer in Douglas v. Alabama, 380 U.
S. 415 , in circumstances analogous to those in the
present case. There two persons, Loyd and Douglas, accused Page 391 U. S. 127 of assault with intent to murder, were tried separately. Loyd
was tried first and found guilty. At Douglas' trial the State
called Loyd as a witness against him. An appeal was pending from
Loyd's conviction and Loyd invoked the privilege against
self-incrimination and refused to answer any questions. The
prosecution was permitted to treat Loyd as a hostile witness. Under
the guise of refreshing Loyd's recollection, the prosecutor
questioned Loyd by asking him to confirm or deny statements read by
the prosecutor from a document purported to be Loyd's confession.
These statements inculpated Douglas in the crime. We held that
Douglas' inability to cross-examine Loyd denied Douglas "the right
of cross-examination secured by the Confrontation Clause." 380 U.S.
at 380 U. S. 419 .
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." Id. at 380 U. S. 420 .
The risk of prejudice in petitioner's case was even more serious
than in Douglas. In Douglas we said,

															"Although the Solicitor's reading of Loyd's alleged statement,
and Loyd's refusals to answer, were not technically testimony, the
Solicitor's reading may well have been the equivalent in the jury's
mind of testimony that Loyd, in fact, made the statement, and
Loyd's reliance upon the privilege created a situation in which the
jury might improperly infer both that the statement had been made
and that it was true." Id. at 380 U. S. 419 .
Here Evans' oral confessions were, in fact, testified to, and were
therefore actually in evidence. That testimony was legitimate
evidence against Evans and to that extent was properly before the
jury during its deliberations. Even greater then, was the
likelihood that the jury would believe Evans made the statements
and that they were true -- not just the self-incriminating portions
but those implicating petitioner as well. Plainly, the introduction
of Page 391 U. S. 128 Evans' confession added substantial, perhaps even critical,
weight to the Government's case in a form not subject to
cross-examination, since Evans did not take the stand. Petitioner
thus was denied his constitutional right of confrontation. Delli Paoli assumed that this encroachment on the right
to confrontation could be avoided by the instruction to the jury to
disregard the inadmissible hearsay evidence. [ Footnote 3 ] But, as we have said, that assumption
has since been effectively repudiated. True, the repudiation was
not in the context of the admission of a confession inculpating a
codefendant but in the context of a New York rule which submitted
to the jury the question of the voluntariness of the confession
itself. Jackson v. Denno, 378 U.
S. 368 . Nonetheless the message of Jackson for Delli Paoli was clear. We there held hat a defendant is
constitutionally entitled at least to have the trial judge first
determine whether a confession was made voluntarily Page 391 U. S. 129 before submitting it to the jury for an assessment of its
credibility. More specifically, we expressly rejected the
proposition that a jury, when determining the confessor's guilt,
could be relied on to ignore his confession of guilt should it find
the confession involuntary. Id. at 378 U. S.
388 -389. Significantly, we supported that conclusion in
part by reliance upon the dissenting opinion of Mr. Justice
Frankfurter for the four Justices who dissented in Delli
Paoli. Id. at 378 U. S. 388 ,
n. 15.

															That dissent challenged the basic premise of Delli
Paoli that a properly instructed jury would ignore the
confessor's inculpation of the nonconfessor in determining the
latter's guilt.

															"The fact of the matter is that, too often, such admonition
against misuse is intrinsically ineffective, in that the effect of
such a nonadmissible declaration cannot be wiped from the brains of
the jurors. The admonition therefore becomes a futile collocation
of words, and fails of its purpose as a legal protection to
defendants against whom such a declaration should not tell."

															352 U.S. at 352 U. S. 247 .
The dissent went on to say, as quoted in the cited note in Jackson, "The government should not have the windfall of having the jury
be influenced by evidence against a defendant which, as a matter of
law, they should not consider, but which they cannot put out of
their minds." Id. at 352 U. S. 248 .
To the same effect, and also cited in the Jackson note, is
the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U.
S. 440 , 336 U. S.
453 :

															"The naive assumption that prejudicial effects can be overcome
by instructions to the jury . . . all practicing lawyers know to be
unmitigated fiction. . . . [ Footnote 4 ] " Page 391 U. S. 130 The significance of Jackson for Dell Paoli was
suggested by Chief Justice Traynor in People v.
Arand, 63 Cal. 2d
518 , 528-529, 407 P.2d 265 271-27:

															"Although Jackson was directly concerned with obviating
any risk that a jury might rely on an unconstitutionally obtained
confession in determining the defendant's guilt, its logic extends
to obviating the risks that the jury may rely on any inadmissible
statements. If it is a denial of due process to rely on a jury's
presumed ability to disregard an involuntary confession, it may
also be a denial of due process to rely on a jury's presumed
ability to disregard a codefendant's confession implicating another
defendant when it is determining that defendant's guilt or
innocence."

															"Indeed, the latter task may be an even more difficult one for
the jury to perform than the former. Under the New York procedure,
which Jackson held violated due process, the jury was only
required to Page 391 U. S. 131 disregard a confession it found to be involuntary. If it made
such a finding, then the confession was presumably out of the case.
In joint trials, however, when the admissible confession of one
defendant inculpates another defendant, the confession is never
deleted from the case and the jury is expected to perform the
overwhelming task of considering it in determining the guilt or
innocence of the declarant and then of ignoring it in determining
the guilt or innocence of any codefendants of the declarant. A jury
cannot 'segregate evidence into separate intellectual boxes.' . . .
It cannot determine that a confession is true insofar as it admits
that A has committed criminal acts with B and at the same time
effectively ignore the inevitable conclusion that B has committed
those same criminal acts with A. [ Footnote 5 ]"

															In addition to Jackson, our action in 1966 in amending
Rule 14 of the Federal Rules of Criminal Procedure also evidences
our repudiation of Delli Paoli's basic premise. Rule 14
authorizes a severance where it appears that a defendant might be
prejudiced by a joint trial. [ Footnote 6 ] The Rule was amended in 1966 to provide
expressly that,

															"[i]n ruling on a motion by a defendant for severance the Page 391 U. S. 132 court may order the attorney for the government to deliver to
the court for inspection in camera any statements or
confessions made by the defendants which the government intends to
introduce in evidence at the trial."

															The Advisory Committee on Rules said in explanation of the
amendment:

															"A defendant may be prejudiced by the admission in evidence
against a codefendant of a statement or confession made by that
codefendant. This prejudice cannot be dispelled by
cross-examination if the codefendant does not take the stand.
Limiting instructions to the jury may not, in fact, erase the
prejudice. . . ."

															"The purpose of the amendment is to provide a procedure whereby
the issue of possible prejudice can be resolved on the motion for
severance. . . . [ Footnote
7 ]"

															Those who have defended reliance on the limiting instruction in
this area have cited several reasons in support. Judge Learned
Hand, a particularly severe critic of the proposition that juries
could be counted on to disregard inadmissible hearsay, [ Footnote 8 ] wrote the opinion for
the Page 391 U. S. 133 Second Circuit which affirmed Delli Paoli's conviction. 229 F.2d
319. In Judge Hand's view, the limiting instruction, although not
really capable of preventing the jury from considering the
prejudicial evidence, does as a matter of form provide a way around
the exclusionary rules of evidence that is defensible because it
"probably furthers, rather than impedes, the search for truth. . .
." Nash v. United States, 54 F.2d 1006, 1007. Insofar as
this implies the prosecution ought not to be denied the benefit of
the confession to prove the confessor's guilt, [ Footnote 9 ] however, it overlooks alternative ways
of achieving that benefit without at the same time infringing the
nonconfessor's Page 391 U. S. 134 right of confrontation. [ Footnote 10 ] Where viable alternatives do exist, it is
deceptive to rely on the pursuit of truth to defend a clearly
harmful practice.

															Another reason cited in defense of Delli Paoli is the
justification for joint trials in general, the argument being that
the benefits of joint proceedings should not have to be sacrificed
by requiring separate trials in order to use the confession against
the declarant. Joint trials do conserve state funds, diminish
inconvenience to witnesses and public authorities, and avoid delays
in bringing those accused of crime to trial. But the answer to this
argument was cogently stated by Judge Lehman of the New York Court
of Appeals, dissenting in People v. Fisher, 249 N.Y. 419,
432, 164 N.E. 336, 341:

															"We still adhere to the rule that an accused is entitled to
confrontation of the witnesses against him and the right to
cross-examine them. . . . We destroy the age-old rule which in the
past has been regarded as a fundamental principle of our
jurisprudence Page 391 U. S. 135 by a legalistic formula, required of the judge, that the jury
may not consider any admissions against any party who did not join
in them. We secure greater speed, economy and convenience in the
administration of the law at the price of fundamental principles of
constitutional liberty. That price is too high."

															Finally, the reason advanced by the majority in Delli
Paoli was to tie the result to maintenance of the jury
system.

															"Unless we proceed on the basis that the jury will follow the
court's instructions where those instructions are clear and the
circumstances are such that the jury can reasonably be expected to
follow them, the jury system makes little sense."

															352 U.S. at 352 U. S. 242 .
We agree that there are many circumstances in which this reliance
is justified. Not every admission of inadmissible hearsay or other
evidence can be considered to be reversible error unavoidable
through limiting instructions; instances occur in almost every
trial where inadmissible evidence creeps in, usually inadvertently.
"A defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U. S. 604 , 344 U. S. 619 ; see Hopt v. Utah, 120 U. S. 430 , 120 U. S. 438 ; cf. Fed.Rule Crim.Proc. 52(a). It is not unreasonable to
conclude that, in many such cases the jury can and will follow the
trial judge's instructions to disregard such information.
Nevertheless, as was recognized in Jackson v. Lenno,
supra, there are some contexts in which the risk that the jury
will not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored. Compare Hopt v. Utah, supra; Throckmorton v.
Holt, 180 U. S. 552 , 180 U. S. 567 ; Mora v. United States, 190 F.2d 749; Holt v. United
States, 94 F.2d 90. Such a context is presented here, where
the powerfully incriminating extrajudicial statements of a
codefendant, Page 391 U. S. 136 who stands accused side-by-side with the defendant, are
deliberately spread before the jury in a joint trial. Not only are
the incriminations devastating to the defendant, but their
credibility is inevitably suspect, a fact recognized when
accomplices do take the stand and the jury is instructed to weigh
their testimony carefully given the recognized motivation to shift
blame onto others. [ Footnote
11 ] The unreliability of such evidence is intolerably
compounded when the alleged accomplice, as here, does not testify
and cannot be tested by cross-examination. It was against such
threats to a fair trial that the Confrontation Clause was directed.
[ Footnote 12 ] Pointer v.
Texas, supra. We, of course, acknowledge the impossibility of
determining whether, in fact, the jury did or did not ignore Evans'
statement inculpating petitioner in determining petitioner's guilt.
But that was also true in the analogous situation in Jackson v.
Denno, and was not regarded as militating against striking
down the New York procedure Page 391 U. S. 137 there involved. It was enough that that procedure posed

															"substantial threats to a defendant's constitutional rights to
have an involuntary confession entirely disregarded and to have the
coercion issue fairly and reliably determined. These hazards we
cannot ignore."

															378 U.S. at 378 U. S. 389 .
Here, the introduction of Evans' confession posed a substantial
threat to petitioner's right to confront the witnesses against him,
and this is a hazard we cannot ignore. Despite the concededly clear
instructions to the jury to disregard Evans' inadmissible hearsay
evidence inculpating petitioner, in the context of a joint trial we
cannot accept limiting instructions as an adequate substitute for
petitioner's constitutional right of cross-examination. The effect
is the same as if there had been no instruction at all. See
Anderson v. United States, 318 U. S. 350 , 318 U. S.
356 -357; cf. Burgett v. Texas, 389 U.
S. 109 , 389 U. S.
115 . Reversed. MR. JUSTICE BLACK concurs in the result for the reasons stated
in the dissent in Delli Paoli v. United States, 352 U. S. 232 , 352 U. S.
46 .

															MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.

															[ Footnote 1 ]

															The trial began June 20, 1966, one week after the decision in Miranda v. Arizona, 384 U. S. 436 . T
he Court of Appeals held, 375 F.2d at 357, that Miranda and its companion cases were therefore applicable and controlling
on the question of the admissibility in evidence of the postal
inspector's testimony as to Evans' admissions. Johnson v. New
Jersey, 384 U. S. 719 . On
April 8, 1966, St. Louis police officers, without giving Evans
preliminary warnings of any kind and in the absence of counsel,
obtained an oral confession during an interrogation at the city
jail. The police informed the postal inspector, who interrogated
Evans at the jail on April 11 and May 4, 1966; he obtained the oral
confession expressly implicating petitioner on the latter date. On
the merits, the Court of Appeals held, 375 F.2d at 361, that Evans'
admissions to the postal inspector "were tainted and infected by
the poison of the prior, concededly unconstitutional confession
obtained by the local officer," and were therefore inadmissible
under Westover v. United States, decided with Miranda, 384 U.S. at 384 U. S.
494 -497. On the retrial, Evans was acquitted.

															[ Footnote 2 ]

															At the close of the Government's direct case, the trial judge
cautioned the jury that Evans' admission implicating
petitioner,

															"if used, can only be used against the defendant Evans. It is
hearsay insofar as the defendant George William Bruton is
concerned, and you are not to consider it in any respect to the
defendant Bruton, because, insofar as he is concerned, it is
hearsay."

															The instructions to the jury included the following:

															"A confession made outside of court by one defendant may not be
considered as evidence against the other defendant, who was not
present and in no way a party to the confession. Therefore, if you
find that a confession was, in fact, voluntarily and intentionally
made by the defendant Evans, you should consider it as evidence in
the case against Evans, but you must not consider it, and should
disregard it, in considering the evidence in the case against the
defendant Bruton."

															" * * * *" "It is your duty to give separate, personal consideration to the
cause of each individual defendant. When you do so, you should
analyze what the evidence shows with respect to that individual,
leaving out of consideration entirely any evidence admitted solely
against some other defendant. Each defendant is entitled to have
his case determined from his own acts and statements and the other
evidence in the case which may be applicable to him."

															[ Footnote 3 ]

															We emphasize that the hearsay statement inculpating petitioner
was clearly inadmissible against him under traditional rules of
evidence, see Krulewitch v. United States, 336 U.
S. 440 ; Fiswick v. United States, 329 U.
S. 211 , the problem arising only because the statement
was (but for the violation of Westover, supra, n 1) admissible against the declarant
Evans. See C. McCormick, Evidence § 239 (1954); 4 J.
Wigmore, Evidence §§ 1048-1049 (3d ed.1940); Morgan, Admissions as
an Exception to the Hearsay Rule, 30 Yale L.J. 355 (1921). See
generally Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159
(1954); Comment, Post-Conspiracy Admissions in Joint Prosecutions,
24 U.Chi.L.Rev. 710 (1957); Note, Criminal Conspiracy, 72
Harv.L.Rev. 920, 984-990 (1959). There is not before us, therefore,
any recognized exception to the hearsay rule insofar as petitioner
is concerned and we intimate no view whatever that such exceptions
necessarily raise questions under the Confrontation Clause. See
Pointer v. Texas, 380 U. S. 400 ; Barber v. Page, 390 U. S. 719 ; Mattox v. United States, 156 U. S. 237 . See generally McCormick, supra, § 224; 5 Wigmore, supra, §§ 1362-1365, 1397; Morgan, Hearsay Dangers and the
Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948).

															[ Footnote 4 ]

															Several cases since Delli Paoli have refused to
consider an instruction as inevitably sufficient to avoid the
setting aside of convictions. See, e.g., United States ex rel.
Floyd v. Wilkins, 367 F.2d 990; United States v.
Bozza, 365 F.2d 206; Greenwell v. United States, 119
U.S.App.D.C. 43, 336 F.2d 962; Jones v. United States, 119
U.S.App.D.C. 284, 342 F.2d 863; Barton v. United States, 263 F.2d 894; United States ex rel. Hill v.
Deegan, 268 F.
Supp. 580 . In Bozza the Court of Appeals for the
Second Circuit stated:

															"It is impossible realistically to suppose that, when the twelve
good men and women had Jones' confession in the privacy of the jury
room, not one yielded to the nigh irresistible temptation to fill
in the blanks with the keys Kuhle had provided and ask himself the
intelligent question to what extent Jones' statement supported
Kuhle's testimony, or that, if anyone did yield, his colleagues
effectively persuaded him to dismiss the answers from his
mind."

															365 F.2d at 215.

															State decisions which have rejected Delli Paoli include People v. Aranda, 63 Cal. 2d
518 , 407 P.2d 265; State v. Young, 46 N.J. 152, 215
A.2d 352. See also People v. Barbaro, 395 Ill. 264, 69
N.E.2d 692; State v. Rosen, 151 Ohio St. 339, 86 N.E.2d
24.

															It has been suggested that the limiting instruction actually
compounds the jury's difficulty in disregarding the inadmissible
hearsay. See Broeder, The University of Chicago Jury
Project, 38 Neb.L.Rev. 744, 753-755 (1959).

															[ Footnote 5 ] See Pointer v. Texas, supra, at 380 U. S.
405 :

															"Indeed, we have expressly declared that to deprive an accused
of the right to cross-examine the witnesses against him is a denial
of the Fourteenth Amendment's guarantee of due process of law."

															[ Footnote 6 ]

															Joinder of defendants is governed by Rules 8(b) and 14 of the
Federal Rules of Criminal Procedure.

															"The rules are designed to promote economy and efficiency and to
avoid a multiplicity of trials, where these objectives can be
achieved without substantial prejudice to the right of the
defendants to a fair trial." Dale v. United States, 231 F.2d 123, 125. An important
element of a fair trial is that a jury consider only relevant and
competent evidence bearing on the issue of guilt or innocence. See, e.g., Blumenthal v. United States, 332 U.
S. 539 , 332 U. S.
559 -560.

															[ Footnote 7 ]

															34 F.R.D. 419. See generally Note, Joint and Single
Trials Under Rules 8 and 14 of the Federal Rules of Criminal
Procedure, 74 Yale L.J. 553 (1965).

															[ Footnote 8 ]

															Judge Hand addressed the subject several times. The limiting
instruction, he said, is a "recommendation to the jury of a mental
gymnastic which is beyond, not only their powers, but anybody's
else," Nash v. United States, 54 F.2d 1006, 1007; "Nobody
can indeed fail to doubt whether the caution is effective, or
whether usually the practical result is not to let in hearsay," United States v. Gottfried, 165 F.2d 360, 367; "it is
indeed very hard to believe that a jury will, or for that matter
can, in practice observe the admonition," Delli Paoli v. United
States, 229 F.2d 319, 321. Judge Hand referred to the
instruction as a "placebo," medically defined as "a medicinal lie."
Judge Jerome Frank suggested that its legal equivalent

															"is a kind of 'judicial lie': it undermines a moral relationship
between the courts, the jurors, and the public; like any other
judicial deception, it damages the decent judicial administration
of justice." United States v. Grunewald, 233 F.2d 556, 574. See
also 8 Wigmore, supra, n 3, § 2272, at 416. Compare E. Morgan, Some Problems of Proof Under the
Anglo-American System of Litigation 105 (1956), who suggests that
the use of limiting instructions fosters an inconsistent attitude
toward juries by

															"treating them at times as a group of low-grade morons, and at
other times as men endowed with a superhuman ability to control
their emotions and intellects." See also Shepard v. United States, 290 U. S.
96 , 290 U. S. 104 ;
Meltzer, Involuntary Confessions: The Allocation of Responsibility
Between Judge and Jury, 21 U.Chi.L.Rev. 317, 326 (1954).

															[ Footnote 9 ]

															In this case, however, Evans' conviction was reversed on the
ground that his confessions were inadmissible in evidence even
against him, and, on his retrial, he was acquitted. In People
v. Aranda, supra, 63 Cal. 2d at 526, 407 P.2d at 270, it was
said:

															"When, however, the confession implicating both defendants is
not admissible at all, there is no longer room for compromise. The
risk of prejudicing the nonconfessing defendant can no longer be
justified by the need for introducing the confession against the
one who made it. Accordingly, we have held that the erroneous
admission into evidence of a confession implicating both defendants
is not necessarily cured by an instruction that it is to be
considered only against the declarant." See also Jones v. United States and Greenwell v.
United States, both supra, n 4.

															[ Footnote 10 ]

															Some courts have required deletion of references to codefendants
where practicable. See, e.g., Oliver v. United States, 335
F.2d 724; People v. Vitagliano, 15 N.Y.2d 360, 206 N.E.2d
864; People v. La Belle, 18 N.Y.2d 405, 222 N.E.2d 727.
For criticisms suggesting that deletions (redaction) from the
confession are ineffective, see, e.g., Note, 72
Harv.L.Rev. 920, 990 (1959); Comment, 24 U.Chi.L.Rev. 710, 713
(1957); Note, 74 Yale L.J. 553, 564 (1965).

															In this case, Evans' confessions were offered in evidence
through the oral testimony of the postal inspector. It has been
said:

															"Where the confession is offered in evidence by means of oral
testimony, redaction is patently impractical. To expect a witness
to relate X's confession without including any of its references to
Y is to ignore human frailty. Again, it is unlikely that an
intentional or accidental slip by the witness could be remedied by
instructions to disregard."

															Note, 3 Col.J. of Law & Soc.Prob. 80, 88 (1967).

															Some courts have promulgated rules governing the use of the
confessions. See n 4, supra. See also rules suggested by Judge Frank,
dissenting in Delli Paoli v. United States, 229 F.2d 319,
324.

															[ Footnote 11 ] See Crawford v. United States, 212 U.
S. 183 , 212 U. S. 24 ; Caminetti v. United States, 242 U.
S. 470 , 242 U. S. 495 ; Stoneking v. United States, 232 F.2d 385.

															[ Footnote 12 ]

															It is suggested that, because the evidence is so unreliable the
need for cross-examination is obviated. This would certainly seem
contrary to the acceptance of the rule of evidence which would
require exclusion of the confession as to Bruton as

															"inadmissible hearsay, a presumptively unreliable out-of-court
statement of a nonparty who was not a witness subject to
cross-examination." Post at 391 U. S.
138 .

															"The theory of the Hearsay rule is that the many possible
deficiencies, suppressions, sources of error and untrustworthiness,
which lie underneath the bare untested assertion of a witness, may
he best brought to light and exposed by the test of
Cross-examination."

															5 Wigmore, Evidence § 1362, at 3. The reason for excluding this
evidence as an evidentiary matter also requires its exclusion as a
constitutional matter. Surely the suggestion is not that Pointer v. Texas, for example, be repudiated and that all
hearsay evidence be admissible so long as the jury is properly
instructed to weigh it in light of "all the dangers of inaccuracy
which characterize hearsay generally." Post at 391 U. S.
141 . MR. JUSTICE STEWART, concurring. I join the opinion and judgment of the Court. Although I did not
agree with the decision in Jackson v. Denno, 378 U.
S. 368 ( see id. at 378 U. S.
427 ), I accept its holding and share the Court's
conclusion that it compels the overruling of Delli Paoli v.
United States, 352 U. S. 232 .

															Quite apart from Jackson v. Denno, however, I think it
clear that the underlying rationale of the Sixth Amendment's
Confrontation Clause precludes reliance upon cautionary
instructions when the highly damaging out-of-court Page 391 U. S. 138 statement of a codefendant, who is not subject to
cross-examination, is deliberately placed before the jury at a
joint trial. A basic premise of the Confrontation Clause, it seems
to me, is that certain kinds of hearsay ( see, e.g., Pointer v.
Texas, 380 U. S. 400 ; Douglas v. Alabama, 380 U. S. 415 ) are
at once so damaging, so suspect, and yet so difficult to discount,
that jurors cannot be trusted to give such evidence the minimal
weight it logically deserves, whatever instructions the trial judge
might give. See the Court's opinion, ante at 391 U. S. 136 ,
n. 12. It is for this very reason that an out-of-court accusation
is universally conceded to be constitutionally inadmissible against
the accused, rather than admissible for the little it may be worth.
Even if I did not consider Jackson v. Denno controlling,
therefore, I would still agree that Delli Paoli must be
overruled.

															MR. JUSTICE WHITE, dissenting.

															Whether or not Evans' confession was inadmissible against him,
nothing in that confession which was relevant and material to
Bruton's case was admissible against Bruton. As to him, it was
inadmissible hearsay, a presumptively unreliable out-of-court
statement of a nonparty who was not a witness subject to
cross-examination. Admitting Evans' confession against Bruton would
require a new trial unless the error was harmless.

															The trial judge in this case had no different view. He admitted
Evans' confession only against Evans, not against Bruton, and
carefully instructed the jury to disregard it in determining
Bruton's guilt or innocence. * Page 391 U. S. 139 Contrary to its ruling just a decade ago in Delli Paoli v.
United States, 352 U. S. 232 (1957), the Court now holds this instruction insufficient, and
reverses Bruton's conviction. It would apparently also reverse
every other case where a court admits a codefendant's confession
implicating a defendant, regardless of cautionary instructions and
regardless of the circumstances. I dissent from this excessively
rigid rule. There is nothing in this record to suggest that the
jury did not follow the trial judge's instructions. There has been
no new learning since Delli Paoli indicating that juries
are less reliable than they were considered in that case to be.
There is nothing in the prior decisions of this Court which
supports this new constitutional rule.

															The Court concedes that there are many instances in which
reliance on limiting instructions is justified --

															"Not every admission of inadmissible hearsay or other evidence
can be considered to be reversible error unavoidable through
limiting instructions; instances occur in almost every trial where
inadmissible evidence creeps in, usually inadvertently." Ante at 391 U. S. 135 .
The Court asserts, however, that the hazards to the defendant of
permitting the jury to hear a codefendant's confession implicating
him are so severe that we must assume the jury's inability to heed
a limiting instruction. This was the holding of the Court with
respect to a confession of the defendant himself in Jackson v.
Denno, 378 U. S. 368 (1964). There are good reasons, however, for distinguishing the
codefendant's confession from that of the defendant himself, and
for trusting in the jury's ability to disregard the former when
instructed to do so.

															First, the defendant's own confession is probably the most
probative and damaging evidence that can be admitted against him.
Though itself an out-of-court statement, it is admitted as reliable
evidence because it is an admission of guilt by the defendant, and
constitutes Page 391 U. S. 140 direct evidence of the facts to which it relates. Even the
testimony of an eyewitness may be less reliable than the
defendant's own confession. An observer may not correctly perceive,
understand, or remember the acts of another, but the admissions of
a defendant come from the actor himself, the most knowledgeable and
unimpeachable source of information about his past conduct.
Certainly, confessions have profound impact on the jury, so much so
that we may justifiably doubt its ability to put them out of mind
even if told to do so. This was the conclusion of the Court in Jackson, and I continue to believe that case to be sound
law.

															Second, it must be remembered that a coerced confession is not
excluded because it is thought to be unreliable. Regardless of how
true it may be, it is excluded because specific provisions of the
Constitution demand it, whatever the consequences for the criminal
trial. In Jackson itself, it was stated that

															"[i]t is now axiomatic that a defendant in a criminal case is
deprived of due process of law if his conviction is founded, in
whole or in part, upon an involuntary confession, without regard
for the truth or falsity of the confession. . . ."

															378 U.S. at 378 U. S. 376 . See id. at 378 U. S.
385 -386. In giving prospective effect only to its rules
in Miranda v. Arizona, 384 U. S. 436 (1966), the Court specifically reaffirmed the principle that
coerced confessions are inadmissible regardless of their truth or
falsity, Johnson v. New Jersey, 384 U.
S. 719 , 384 U. S. 729 ,
n. 9 (1966). The Court acknowledged that the rules of Miranda apply to situations "in which the danger [of
unreliable statements] is not necessarily as great as when the
accused is subjected to overt and obvious coercion." Id. at 384 U. S. 730 .
And, in Tehan v. United States ex rel. Shott, 382 U.
S. 406 , 382 U. S. 416 (1966), holding the rule of Griffin v. California, 380 U. S. 609 (1965), not retroactive, the Court quite explicitly stated that

															"the Fifth Amendment's privilege against self-incrimination is
not Page 391 U. S. 141 an adjunct to the ascertainment of truth. That privilege, like
the guarantees of the Fourth Amendment, stands as a protection of
quite different constitutional values. . . ."

															The exclusion of probative evidence in order to serve other ends
is sound jurisprudence but, as the Court concluded in Jackson
v. Denno, 378 U.S. at 378 U. S. 382 , juries would have great difficulty in
understanding that policy, in putting the confession aside, and in
finding the confession involuntary if the consequence was that it
could not be used in considering a defendant's guilt or
innocence.

															The situation in this case is very different. Here we deal with
a codefendant's confession which is admitted only against the
codefendant and with a firm instruction to the jury to disregard it
in determining the defendant's guilt or innocence. That confession
cannot compare with the defendant's own confession in evidentiary
value. As to the defendant, the confession of the codefendant is
wholly inadmissible. It is hearsay, subject to all the dangers of
inaccuracy which characterize hearsay generally. Furthermore, the
codefendant is no more than an eyewitness, the accuracy of whose
testimony about the defendant's conduct is open to more doubt than
would be the defendant's own account of his actions. More than
this, however, the statements of a codefendant have traditionally
been viewed with special suspicion. Crawford v. United
States, 212 U. S. 183 , 212 U. S. 204 (1909); Holmgren v. United States, 217 U.
S. 509 , 217 U. S.
523 -524 (1910). See also Caminetti v. United
States, 242 U. S. 470 , 242 U. S. 495 (1917); Mathes, Jury Instruction and Forms for Federal Criminal
Cases, 27 F.R.D. 39, 68-69 (1961). Due to his strong motivation to
implicate the defendant and to exonerate himself, a codefendant's
statements about what the defendant said or did are less credible
than ordinary hearsay evidence. Whereas the defendant's own
confession possesses greater reliability and evidentiary Page 391 U. S. 142 value than ordinary hearsay, the codefendant's confession
implicating the defendant is intrinsically much less reliable.

															The defendant's own confession may not be used against him if
coerced, not because it is untrue, but to protect other
constitutional values. The jury may have great difficulty
understanding such a rule and following an instruction to disregard
the confession. In contrast, the codefendant's admissions cannot
enter into the determination of the defendant's guilt or innocence
because they are unreliable. This the jury can be told and can
understand. Just as the Court believes that juries can reasonably
be expected to disregard ordinary hearsay or other inadmissible
evidence when instructed to do so, I believe juries will disregard
the portions of a codefendant's confession implicating the
defendant when so instructed. Indeed, if we must pick and choose
between hearsay as to which limiting instructions will be deemed
effective and hearsay the admission of which cannot be cured by
instructions, codefendants' admissions belong in the former
category, rather than the latter, for they are not only hearsay,
but hearsay which is doubly suspect. If the Court is right in
believing that a jury can be counted on to ignore a wide range of
hearsay statements which it is told to ignore, it seems very odd to
me to question its ability to put aside the codefendant's hearsay
statements about what the defendant did.

															It is a common experience of all men to be informed of "facts"
relevant to an issue requiring their judgment, and yet to disregard
those "facts" because of sufficient grounds for discrediting their
veracity or the reliability of their source. Responsible judgment
would be impossible but for the ability of men to focus their
attention wholly on reliable and credible evidence, and jurymen are
no less capable of exercising this capacity than other Page 391 U. S. 143 men. Because I have no doubt that serious-minded and responsible
men are able to shut their minds to unreliable information when
exercising their judgment, I reject the assumption of the majority
that giving instructions to a jury to disregard a codefendant's
confession is an empty gesture.

															The rule which the Court announces today will severely limit the
circumstances in which defendants may be tried together for a crime
which they are both charged with committing. Unquestionably, joint
trials are more economical and minimize the burden on witnesses,
prosecutors, and courts. They also avoid delays in bringing those
accused of crime to trial. This much the Court concedes. It is also
worth saying that separate trials are apt to have varying
consequences for legally indistinguishable defendants. The
unfairness of this is confirmed by the common prosecutorial
experience of seeing codefendants who are tried separately
strenuously jockeying for position with regard to who should be the
first to be tried.

															In view of the practical difficulties of separate trials and
their potential unfairness, I am disappointed that the Court has
not spelled out how the federal courts might conduct their business
consistent with today's opinion. I would suppose that it will be
necessary to exclude all extrajudicial confessions unless all
portions of them which implicate defendants other than the
declarant are effectively deleted. Effective deletion will probably
require not only omission of all direct and indirect inculpations
of codefendants, but also of any statement that could be employed
against those defendants once their identity is otherwise
established. Of course, the deletion must not be such that it will
distort the statements to the substantial prejudice of either the
declarant or the Government. If deletion is not feasible, then the
Government will have to choose either not to Page 391 U. S. 144 use the confession at all or to try the defendants separately.
To save time, money, and effort, the Government might best seek a
ruling at the earliest possible stage of the trial proceedings as
to whether the confession is admissible once offending portions are
deleted. The failure of the Government to adopt and follow proper
procedures for insuring that the inadmissible portions of
confessions are excluded will be relevant to the question of
whether it was harmless error for them to have gotten before the
jury. Oral statements, such as that involved in the present case,
will present special problems, for there is a risk that the witness
in testifying will inadvertently exceed permissible limits. Except
for recommending that caution be used with regard to such oral
statements, it is difficult to anticipate the issues which will
arise in concrete factual situations.

															I would hope, but am not sure, that, by using these procedures,
the federal courts would escape reversal under today's ruling. Even
so, I persist in believing that the reversal of Delli
Paoli unnecessarily burdens the already difficult task of
conducting criminal trials, and therefore I dissent in this
case.

															MR. JUSTICE HARLAN joins this opinion without abandoning his
original disagreement with Jackson v. Denno, 378 U.
S. 368 , 378 U. S. 427 ,
expressed in his dissenting opinion in that case.

															* As the Court observes, "[i]f . . . the jury disregarded the
reference to the codefendant, no question would arise under the
Confrontation Clause. . . ." Ante at 391 U. S. 126 .
Because, in my view, juries can reasonably be relied upon to
disregard the codefendant's references to the defendant, there is
no need to explore the special considerations involved in the
Confrontation Clause.


U.S. Supreme Court Pointer v. Texas, 380
U.S. 400 (1965) Pointer v. Texas No. 577 Argued March 15, 1965 Decided April 5, 1965 380
U.S. 400 CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF TEXAS Syllabus Petitioner was arrested and brought before a state judge for
preliminary hearing on a robbery charge. The complaining witness
testified but petitioner, who had no counsel, did not
cross-examine. Petitioner was later indicted and tried. The witness
had moved to another State, and the transcript of his testimony at
the hearing was introduced over petitioner's objections that he was
denied the right of confrontation. He was convicted and the highest
state court affirmed. Held: 1. The right granted to an accused by the Sixth Amendment to
confront the witnesses against him, which includes the right of
cross-examination, is a fundamental right essential to a fair trial
and is made obligatory on the States by the Fourteenth Amendment.
Pp. 380 U. S.
403 -406.

															2. The introduction of the transcript in a federal criminal case
would have been a clear denial of the right of confrontation, since
the statement was made without an adequate opportunity for
cross-examination, and the right must be determined by the same
standards in a state proceeding. Pp. 380 U. S.
406 -408. 375
S.W.2d 293 , reversed and remanded.

															MR. JUSTICE BLACK delivered the opinion of the Court.

															The Sixth Amendment provides in part that:

															"In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses Page 380 U. S. 401 against him . . . and to have the Assistance of Counsel for his
defence."

															Two years ago, in Gideon v. Wainwright, 372 U.
S. 335 , we held that the Fourteenth Amendment makes the
Sixth Amendment's guarantee of right to counsel obligatory upon the
States. The question we find necessary to decide in this case is
whether the Amendment's guarantee of a defendant's right "to be
confronted with the witnesses against him," which has been held to
include the right to cross-examine those witnesses, is also made
applicable to the States by the Fourteenth Amendment.

															The petitioner Pointer and one Dillard were arrested in Texas
and taken before a state judge for a preliminary hearing (in Texas,
called the "examining trial") on a charge of having robbed Kenneth
W. Phillips of $375 "by assault, or violence, or by putting in fear
of life or bodily injury," in violation of Texas Penal Code Art.
1408. At this hearing, an Assistant District Attorney conducted the
prosecution and examined witnesses, but neither of the defendants,
both of whom were laymen, had a lawyer. Phillips, as chief witness
for the State, gave his version of the alleged robbery in detail,
identifying petitioner as the man who had robbed him at gunpoint.
Apparently Dillard tried to cross-examine Phillips, but Pointer did
not, although Pointer was said to have tried to cross-examine some
other witnesses at the hearing. Petitioner was subsequently
indicted on a charge of having committed the robbery. Some time
before the trial was held, Phillips moved to California. After
putting in evidence to show that Phillips had moved and did not
intend to return to Texas, the State at the trial offered the
transcript of Phillips' testimony given at the preliminary hearing
as evidence against petitioner. Petitioner's counsel immediately
objected to introduction of the transcript, stating, "Your Honor,
we will object to that, as it is a denial of the confrontment of
the witnesses against the Defendant." Page 380 U. S. 402 Similar objections were repeatedly made by petitioner's counsel,
but were overruled by the trial judge, apparently in part because,
as the judge viewed it, petitioner had been present at the
preliminary hearing, and therefore had been "accorded the
opportunity of cross-examining the witnesses there against him."
The Texas Court of Criminal Appeals, the highest state court to
which the case could be taken, affirmed petitioner's conviction,
rejecting his contention that use of the transcript to convict him
denied him rights guaranteed by the Sixth and Fourteenth
Amendments. 375
S.W.2d 293 . We granted certiorari to consider the important
constitutional question the case involves. 379 U.S. 815.

															In this Court, we do not find it necessary to decide one aspect
of the question petitioner raises, that is, whether failure to
appoint counsel to represent him at the preliminary hearing
unconstitutionally denied him the assistance of counsel within the
meaning of Gideon v. Wainwright, supra. In making that
argument, petitioner relies mainly on White v. Maryland, 373 U. S. 59 , in
which this Court reversed a conviction based in part upon evidence
that the defendant had pleaded guilty to the crime at a preliminary
hearing, where he was without counsel. Since the preliminary
hearing there, as in Hamilton v. Alabama, 368 U. S.
52 , was one in which pleas to the charge could be made,
we held in White, as in Hamilton, that a
preliminary proceeding of that nature was so critical a stage in
the prosecution that a defendant at that point was entitled to
counsel. But the State informs us that, at a Texas preliminary
hearing, such as is involved here, pleas of guilty or not guilty
are not accepted, and that the judge decides only whether the
accused should be bound over to the grand jury, and, if so, whether
he should be admitted to bail. Because of these significant
differences in the procedures of the respective States, we cannot
say that the White case is necessarily controlling Page 380 U. S. 403 as to the right to counsel. Whether there might be other
circumstances making this Texas preliminary hearing so critical to
the defendant as to call for appointment of counsel at that stage
we need not decide on this record, and that question we reserve. In
this case, the objections and arguments in the trial court, as well
as the arguments in the Court of Criminal Appeals and before us,
make it clear that petitioner's objection is based not so much on
the fact that he had no lawyer when Phillips made his statement at
the preliminary hearing as on the fact that use of the transcript
of that statement at the trial denied petitioner any opportunity to
have the benefit of counsel's cross-examination of the principal
witness against him. It is that latter question which we decide
here. I The Sixth Amendment is a part of what is called our Bill of
Rights. In Gideon v. Wainwright, supra, in which this
Court held that the Sixth Amendment's right to the assistance of
counsel is obligatory upon the States, we did so on the ground
that

															"a provision of the Bill of Rights which is 'fundamental and
essential to a fair trial' is made obligatory upon the States by
the Fourteenth Amendment."

															372 U.S. at 372 U. S. 342 .
And last Term, in Malloy v. Hogan, 378 U. S.
1 , in holding that the Fifth Amendment's guarantee
against self-incrimination was made applicable to the States by the
Fourteenth, we reiterated the holding of Gideon that the
Sixth Amendment's right to counsel guarantee is " a fundamental
right, essential to a fair trial,'" and "thus was made obligatory
on the States by the Fourteenth Amendment." 378 U.S. at 378 U. S. 6 . See also Murphy v. Waterfront Comm'n, 378 U. S.
52 . We hold today that the Sixth Amendment's right of an
accused to confront the witnesses against him is likewise a
fundamental right, and is made obligatory on the States by the
Fourteenth Amendment Page 380 U. S. 404 It cannot seriously be doubted at this late date that the right
of cross-examination is included in the right of an accused in a
criminal case to confront the witnesses against him. And probably
no one, certainly no one experienced in the trial of lawsuits,
would deny the value of cross-examination in exposing falsehood and
bringing out the truth in the trial of a criminal case. See,
e.g., 5 Wigmore, Evidence § 1367 (3d ed.1940). The fact that
this right appears in the Sixth Amendment of our Bill of Rights
reflects the belief of the Framers of those liberties and
safeguards that confrontation was a fundamental right essential to
a fair trial in a criminal prosecution. Moreover, the decisions of
this Court and other courts * throughout the
years have constantly emphasized the necessity for
cross-examination as a protection for defendants in criminal cases.
This Court, in Kirby v. United States, 174 U. S.
47 , 174 U. S. 55 , 174 U. S. 56 ,
referred to the right of confrontation as "[o]ne of the fundamental
guarantees of life and liberty," and

															"a right long deemed so essential for the due protection of life
and liberty that it is guarded against legislative and judicial
action by provisions in the Constitution of the United States and
in the constitutions of most if not of all the States composing the
Union."

															Mr. Justice Stone, writing for the Court in Alford v. United
States, 282 U. S. 687 , 282 U. S. 692 ,
declared that the right of cross-examination is "one of the
safeguards essential to a fair trial." And, in speaking of
confrontation and cross-examination, this Court said in Greene
v. McElroy, 360 U. S. 474 :

															"They have ancient roots. They find expression in the Sixth
Amendment which provides that, in all Page 380 U. S. 405 criminal cases the accused shall enjoy the right 'to be
confronted with the witnesses against him.' This Court has been
zealous to protect these rights from erosion."

															360 U.S. at 360 U. S.
496 -497 (footnote omitted). There are few subjects,
perhaps, upon which this Court and other courts have been more
nearly unanimous than in their expressions of belief that the right
of confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial which is this
country's constitutional goal. Indeed, we have expressly declared
that to deprive an accused of the right to cross-examine the
witnesses against him is a denial of the Fourteenth Amendment's
guarantee of due process of law. In In re Oliver, 333 U. S. 257 ,
this Court said:

															"A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense -- a right to his day
in court -- are basic in our system of jurisprudence, and these
rights include, as a minimum, a right to examine the witnesses
against him, to offer testimony, and to be represented by
counsel."

															333 U.S. at 333 U. S. 273 (footnote omitted). And earlier this Term, in Turner v.
Louisiana, 379 U. S. 466 , 379 U. S.
472 -473, we held:

															"In the constitutional sense, trial by jury in a criminal case
necessarily implies at the very least that the 'evidence developed'
against a defendant shall come from the witness stand in a public
courtroom where there is full judicial protection of the
defendant's right of confrontation, of cross-examination, and of
counsel." Compare Willner v. Committee on Character &
Fitness, 373 U. S. 96 , 373 U. S.
103 -104. Page 380 U. S. 406 We are aware that some cases, particularly West v.
Louisiana, 194 U. S. 258 , 194 U. S. 264 ,
have stated that the Sixth Amendment's right of confrontation does
not apply to trials in state courts, on the ground that the entire
Sixth Amendment does not so apply. See also Stein v. New
York, 346 U. S. 156 , 346 U. S.
195 -196. But, of course, since Gideon v. Wainwright,
supra, it no longer can broadly be said that the Sixth
Amendment does not apply to state courts. And, as this Court said
in Malloy v. Hogan, supra, "The Court has not hesitated to reexamine past decisions
according the Fourteenth Amendment a less central role in the
preservation of basic liberties than that which was contemplated by
its Framers when they added the Amendment to our constitutional
scheme."

															378 U.S. at 378 U. S. 5 . In
the light of Gideon, Malloy, and other cases cited in
those opinions holding various provisions of the Bill of Rights
applicable to the States by virtue of the Fourteenth Amendment, the
statements made in West and similar cases generally
declaring that the Sixth Amendment does not apply to the States can
no longer be regarded as the law. We hold that petitioner was
entitled to be tried in accordance with the protection of the
confrontation guarantee of the Sixth Amendment, and that that
guarantee, like the right against compelled self-incrimination,
is

															"to be enforced against the States under the Fourteenth
Amendment according to the same standards that protect those
personal rights against federal encroachment." Malloy v. Hogan, supra, 378 U.S. at 378 U. S. 10 . II Under this Court's prior decisions, the Sixth Amendment's
guarantee of confrontation and cross-examination was unquestionably
denied petitioner in this case. As has been pointed out, a major
reason underlying the Page 380 U. S. 407 constitutional confrontation rule is to give a defendant charged
with crime an opportunity to cross-examine the witnesses against
him. See, e.g., Dowdell v. United States, 221 U.
S. 325 , 221 U. S. 330 ; Motes v. United States, 178 U. S. 458 , 178 U. S. 474 ; Kirby v. United States, 174 U. S. 47 , 174 U. S. 55 -56; Mattox v. United States, 156 U. S. 237 , 156 U. S.
242 -243. Cf. Hopt v. Utah, 110 U.
S. 574 , 110 U. S. 581 ; Queen v.
Hepburn , 7 Cranch 290, 11 U. S. 295 .
This Court has recognized the admissibility against an accused of
dying declarations, Mattox v. United States, 146 U.
S. 140 , 146 U. S. 151 ,
and of testimony of a deceased witness who has testified at a
former trial, Mattox v. United States, 156 U.
S. 237 , 156 U. S.
240 -244. See also Dowdell v. United States,
supra, 221 U.S. at 221 U. S. 330 ; Kirby v. United States, supra, 174 U.S. at 174 U. S. 61 .
Nothing we hold here is to the contrary. The case before us would
be quite a different one had Phillips' statement been taken at a
full-fledged hearing at which petitioner had been represented by
counsel who had been given a complete and adequate opportunity to
cross-examine. Compare Motes v. United States, supra, 178
U.S. at 178 U. S. 474 .
There are other analogous situations which might not fall within
the scope of the constitutional rule requiring confrontation of
witnesses. The case before us, however, does not present any
situation like those mentioned above or others analogous to them.
Because the transcript of Phillips' statement offered against
petitioner at his trial had not been taken at a time and under
circumstances affording petitioner through counsel an adequate
opportunity to cross-examine Phillips, its introduction in a
federal court in a criminal case against Pointer would have
amounted to denial of the privilege of confrontation guaranteed by
the Sixth Amendment. Since we hold that the right of an accused to
be confronted with the witnesses against him must be determined by
the same standards whether the right is denied in a federal or
state proceeding, Page 380 U. S. 408 it follows that use of the transcript to convict petitioner
denied him a constitutional right, and that his conviction must be
reversed. Reversed and remanded. MR. JUSTICE HARLAN, concurring in the result.

															I agree that, in the circumstances the admission of the
statement in question deprived the petitioner of a right of
"confrontation" assured by the Fourteenth Amendment. I cannot
subscribe, however, to the constitutional reasoning of the
Court.

															The Court holds that the right of confrontation guaranteed by
the Sixth Amendment in federal criminal trials is carried into
state criminal cases by the Fourteenth Amendment. This is another
step in the onward march of the long-since discredited
"incorporation" doctrine ( see, e.g., Fairman, Does the
Fourteenth Amendment Incorporate the Bill of Rights? The Original
Understanding, 2 Stan.L.Rev. 5 (1949); Frankfurter, Memorandum on
"Incorporation" of the Bill of Rights Into the Due Process Clause
of the Fourteenth Amendment, 78 Harv.L.Rev. 746 (1965)), which for
some reason that I have not yet been able to fathom has come into
the sunlight in recent years. See, e.g., Mapp v. Ohio, 367 U. S. 643 ; Ker v. California, 374 U. S. 23 ; Malloy v. Hogan, 378 U. S. 1 .

															For me, this state judgment must be reversed because a right of
confrontation is "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 ,
reflected in the Due Process Clause of the Fourteenth Amendment
independently of the Sixth.

															While either of these constitutional approaches brings one to
the same end result in this particular case, there is a basic
difference between the two in the kind of future constitutional
development they portend. The concept of Fourteenth Amendment due
process embodied in Palko Page 380 U. S. 409 and a host of other thoughtful past decisions now rapidly
falling into discard, recognizes that our Constitution tolerates,
indeed encourages, differences between the methods used to
effectuate legitimate federal and state concerns, subject to the
requirements of fundamental fairness "implicit in the concept of
ordered liberty." The philosophy of "incorporation," on the other
hand, subordinates all such state differences to the particular
requirements of the Federal Bill of Rights ( but see Ker v.
California, supra, at 374 U. S. 34 ) and increasingly subjects state legal
processes to enveloping federal judicial authority. "Selective"
incorporation or "absorption" amounts to little more than a diluted
form of the full incorporation theory. Whereas it rejects full
incorporation because of recognition that not all of the guarantees
of the Bill of Rights should be deemed "fundamental," it at the
same time ignores the possibility that not all phases of any given
guaranty described in the Bill of Rights are necessarily
fundamental.

															It is too often forgotten in these times that the American
federal system is itself constitutionally ordained, that it
embodies values profoundly making for lasting liberties in this
country, and that its legitimate requirements demand continuing
solid recognition in all phases of the work of this Court. The
"incorporation" doctrines, whether full blown or selective, are
both historically and constitutionally unsound and incompatible
with the maintenance of our federal system on even course.

															* See state and English cases collected in 5 Wigmore,
Evidence §§ 1367, 1395 (3d ed.1940). State constitutional and
statutory provisions similar to the Sixth Amendment are collected
in 5 Wigmore, supra, § 1397, n. 1.

															MR. JUSTICE STEWART, concurring in the result.

															I join in the judgment reversing this conviction, for the reason
that the petitioner was denied the opportunity to cross-examine,
through counsel, the chief witness for the prosecution. But I do
not join in the Court's pronouncement which makes "the Sixth
Amendment's right of an accused to confront the witnesses against
him . . . obligatory Page 380 U. S. 410 on the States." That questionable tour de force seems
to me entirely unnecessary to the decision of this case, which I
think is directly controlled by the Fourteenth Amendment's
guarantee that no State shall "deprive any person of life, liberty,
or property, without due process of law."

															The right of defense counsel in a criminal case to cross-examine
the prosecutor's living witnesses is "[o]ne of the fundamental
guarantees of life and liberty," [ Footnote 1 ] and "one of the safeguards essential to a fair
trial." [ Footnote 2 ] It is, I
think, as indispensable an ingredient as the "right to be tried in
a courtroom presided over by a judge." [ Footnote 3 ] Indeed, this Court has said so this very Term. Turner v. Louisiana, 379 U. S. 466 , 379 U. S.
472 -473. [ Footnote
4 ]

															Here, that right was completely denied. Therefore, as the Court
correctly points out, we need not consider the case which could be
presented if Phillips' statement had been taken at a hearing at
which the petitioner's counsel was given a full opportunity to
cross-examine. See West v. Louisiana, 194 U.
S. 258 .

															[ Footnote 1 ] Kirby v. United States, 174 U. S.
47 , 174 U. S.
55 .

															[ Footnote 2 ] Alford v. United States, 282 U.
S. 687 , 282 U. S.
692 .

															[ Footnote 3 ] Rideau v. Louisiana, 373 U. S. 723 , 373 U. S.
727 .

															[ Footnote 4 ] See also In re Murchison, 349 U.
S. 133 , where the Court said that

															"due process requires as a minimum that an accused be given a
public trial after reasonable notice of the charges, have a right
to examine witnesses against him, call witnesses on his own behalf,
and be represented by counsel."

															349 U.S. at 349 U. S.
134 .

															MR. JUSTICE GOLDBERG, concurring.

															I agree with the holding of the Court that

															"the Sixth Amendment's right of an accused to confront the
witnesses against him is . . . a fundamental right and is made
obligatory on the States by the Fourteenth Amendment." Ante at 380 U. S. 403 .
I therefore join in the opinion and judgment of the Court. My
Brother HARLAN, while agreeing with the result reached by the
Court, deplores the Court's Page 380 U. S. 411 reasoning as "another step in the onward march of the long-since
discredited incorporation' doctrine," ante at 380 U. S. 408 .
Since I was not on the Court when the incorporation issue was
joined, see Adamson v. California, 332 U. S.
46 , I deem it appropriate to set forth briefly my view
on this subject. I need not recapitulate the arguments for or against
incorporation, whether "total" or "selective." They have been set
forth adequately elsewhere. [ Footnote
2/1 ] My Brother BLACK's view of incorporation has never
commanded a majority of the Court, though, in Adamson, it
was assented to by four Justices. The Court, in its decisions, has
followed a course whereby certain guarantees "have been taken over
from the earlier articles of the federal bill of rights and brought
within the Fourteenth Amendment," Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 326 ,
by a process which might aptly be described as "a process of
absorption." Ibid. See Cohen v. Hurley, 366 U. S. 117 , 366 U. S. 154 (dissenting opinion of MR. JUSTICE BRENNAN); Brennan, The Bill of
Rights and the States, 36 N.Y.U.L.Rev. 761 (1961). Thus, the Court
has held that the Fourteenth Page 380 U. S. 412 Amendment guarantees against infringement by the States the
liberties of the First Amendment, [ Footnote 2/2 ] the Fourth Amendment, [ Footnote 2/3 ] the Just Compensation Clause of the
Fifth Amendment, [ Footnote 2/4 ] the
Fifth Amendment's privilege against self-incrimination, [ Footnote 2/5 ] the Eighth Amendment's
prohibition of cruel and unusual punishments, [ Footnote 2/6 ] and the Sixth Amendment's guarantee
of the assistance of counsel for an accused in a criminal
prosecution. [ Footnote 2/7 ]

															With all deference to my Brother HARLAN, I cannot agree that
this process has "come into the sunlight in recent years." Ante at 380 U. S. 408 .
Rather, I believe that it has its origins at least as far back as Twining v. New Jersey, 211 U. S. 78 , 211 U. S. 99 ,
where the Court stated that

															"it is possible that some of the personal rights safeguarded by
the first eight Amendments against National action may also be
safeguarded against state action, because a denial of them would be
a denial of due process of law. Chicago, Burlington &
Quincy Railroad v. Chicago, 166 U. S. 226 ."

															This passage and the authority cited make clear that what is
protected by the Fourteenth Amendment are "rights," which apply in
every case, not solely in those cases where it seems "fair" to a
majority of the Court to afford the protection. Later cases
reaffirm that the process of "absorption" is one of extending
"rights." See Ker v. California, 374 U. S.
23 ; Malloy v. Hogan, 378 U. S.
1 , and cases cited by MR. JUSTICE BRENNAN in his
dissenting opinion in Cohen v. Hurley, supra, at 366 U. S. 156 .
I agree with these decisions, as is apparent from my votes in Page 380 U. S. 413 Gideon v. Wainwright, 372 U. S. 335 ; Malloy v. Hogan, supra, and Murphy v. Waterfront
Comm'n, 378 U. S. 52 , and
my concurring opinion in New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 297 ,
and I subscribe to the process by which fundamental guarantees of
the Bill of Rights are absorbed by the Fourteenth Amendment, and
thereby applied to the States.

															Furthermore, I do not agree with my Brother HARLAN that, once a
provision of the Bill of Rights has been held applicable to the
States by the Fourteenth Amendment, it does not apply to the States
in full strength. Such a view would have the Fourteenth Amendment
apply to the States "only a watered-down, subjective version of
the individual guarantees of the Bill of Rights.'" Malloy v.
Hogan, supra, at 378 U. S. 10 -11.
It would allow the States greater latitude than the Federal
Government to abridge concededly fundamental liberties protected by
the Constitution. While I quite agree with Mr. Justice Brandeis
that "[i]t is one of the happy incidents of the federal system that a
. . . State may . . . serve as a laboratory, and try novel social
and economic experiments," New State Ice Co. v. Liebmann, 285 U.
S. 262 , 285 U. S. 280 , 285 U. S. 311 (dissenting opinion), I do not believe that this includes the power
to experiment with the fundamental liberties of citizens
safeguarded by the Bill of Rights. My Brother HARLAN's view would
also require this Court to make the extremely subjective and
excessively discretionary determination as to whether a practice,
forbidden the Federal Government by a fundamental constitutional
guarantee, is, as viewed in the factual circumstances surrounding
each individual case, sufficiently repugnant to the notion of due
process as to be forbidden the States.

															Finally, I do not see that my Brother HARLAN's view would
further any legitimate interests of federalism. It would require
this Court to intervene in the state judicial process with
considerable lack of predictability and with Page 380 U. S. 414 a consequent likelihood of considerable friction. This is well
illustrated by the difficulties which were faced and were
articulated by the state courts attempting to apply this Court's
now discarded rule of Betts v. Brady, 316 U.
S. 455 . See Green, The Bill of Rights, the
Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869,
897-898. These difficulties led the Attorneys General of 22 States
to urge that this Court overrule Betts v. Brady and apply
fully the Sixth Amendment's guarantee of right to counsel to the
States through the Fourteenth Amendment. See Gideon v.
Wainwright, supra, at 372 U. S. 336 . And to deny to the States the power to
impair a fundamental constitutional right is not to increase
federal power, but, rather, to limit the power of both federal and
state governments in favor of safeguarding the fundamental rights
and liberties of the individual. In my view, this promotes, rather
than undermines, the basic policy of avoiding excess concentration
of power in government, federal or state, which underlies our
concepts of federalism.

															I adhere to and support the process of absorption by means of
which the Court holds that certain fundamental guarantees of the
Bill of Rights are made obligatory on the States through the
Fourteenth Amendment. Although, as this case illustrates, there are
differences among members of the Court as to the theory by which
the Fourteenth Amendment protects the fundamental liberties of
individual citizens, it is noteworthy that there is a large area of
agreement, both here and in other cases, that certain basic rights
are fundamental -- not to be denied the individual by either the
state or federal governments under the Constitution. See, e.g.,
Cantwell v. Connecticut, 310 U. S. 296 ; NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449 ; Gideon v. Wainwright, supra; New York Times
Co. v. Sullivan, supra; Turner v. Louisiana, 379 U.
S. 466 .

															[ Footnote 2/1 ] See Adamson v. California, supra, at 332 U. S. 59 (concurring opinion of Mr. Justice Frankfurter); id. at 332 U. S. 68 (dissenting opinion of MR. JUSTICE BLACK); Malloy v.
Hogan, 378 U. S. 1 ; id. at 378 U. S. 14 (dissenting opinion of MR. JUSTICE HARLAN); Gideon v.
Wainwright, 372 U. S. 335 , 372 U. S. 345 (concurring opinion of MR. JUSTICE Douglas); id. at 372 U. S. 349 (concurring opinion of MR. JUSTICE HARLAN); Poe v. Ullman, 367 U. S. 497 , 367 U. S. 509 (dissenting opinion of MR. JUSTICE DOUGLAS); Frankfurter,
Memorandum on "Incorporation" of the Bill of Rights Into the Due
Process Clause of the Fourteenth Amendment, 78 Harv.L.Rev. 746;
Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865 (1960); Brennan, The
Bill of Rights and the States, 36 N.Y.U.L.Rev. 761 (1961); Fairman,
Does the Fourteenth Amendment Incorporate the Bill of Rights? The
Original Understanding, 2 Stan.L.Rev. 5 (1949); Green, The Bill of
Rights, the Fourteenth Amendment and the Supreme Court, 46
Mich.L.Rev. 869 (1948); Henkin, "Selective Incorporation" in the
Fourteenth Amendment, 73 Yale L.J. 74 (1963).

															[ Footnote 2/2 ] See, e.g., Gitlow v. New York, 268 U.
S. 652 , 268 U. S. 666 ; De Jones v. Oregon, 299 U. S. 353 , 299 U. S. 364 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 ; Louisiana ex rel. Gremillion v. NAACP, 366 U.
S. 293 , 366 U. S. 296 ; New York Times Co. v. Sullivan, 376 U.
S. 254 .

															[ Footnote 2/3 ] See Wolf v. Colorado, 338 U. S. 25 ; Mapp v. Ohio, 367 U. S. 643 .

															[ Footnote 2/4 ] Chicago, B. & Q. R. Co. v. Chicago, 166 U.
S. 226 .

															[ Footnote 2/5 ] Malloy v. Hogan, 378 U. S. 1 .

															[ Footnote 2/6 ] Robinson v. California, 370 U.
S. 660 .

															[ Footnote 2/7 ] Gideon v. Wainwright, 372 U. S. 335 .