U.S. Supreme Court California v. Green, 399
U.S. 149 (1970) California v. Green No. 387 Argued April 20, 1970 Decided June 23, 1970 399
U.S. 149 CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA Syllabus Respondent was convicted of furnishing marihuana to a minor in
violation of California law, chiefly on the basis of evidence
consisting of prior inconsistent statements made by the minor
(Porter) (1) at respondent's preliminary hearing and (2) to a
police officer. These statements were admitted under California
Evidence Code § 1235 to prove the truth of the matters asserted
therein. The District Court of Appeal reversed. The California
Supreme Court affirmed, and held § 1235 unconstitutional insofar as
it permitted the substantive use of a witness' prior inconsistent
Statements even though such statements were subject to
cross-examination at a prior hearing. Held: 1. The Confrontation Clause of the Sixth Amendment, as made
applicable to the States by the Fourteenth Amendment, is not
violated by admitting a declarant's out-of-court statements as long
as he is testifying as a witness at trial and is subject to full
cross-examination. The purposes of the Amendment are satisfied at
the time of trial, even if not before, since the witness is under
oath, is subject to cross-examination, and his demeanor can be
observed by the trier of fact. Pp. 399 U. S.
153 -164.

															2. Even in the absence of an opportunity for full
cross-examination at trial, the admission into evidence of the
preliminary hearing testimony would not violate the Constitution.
For the preliminary hearing in this case (where Porter was under
oath, and where respondent was represented by counsel and had full
opportunity for cross-examination) was not significantly different
from an actual trial as far as the purposes of the Confrontation
Clause are concerned, and it has long been held that admitting the
prior trial testimony of an unavailable witness does not violate
that clause. A different result should not follow where, as in this
case, the witness was actually produced. Pp. 399 U. S.
165 -168.

															3. The question whether Porter's claimed lapse of memory at the
trial about important events described in his earlier statement to
the officer so affected respondent's right to cross-examine as Page 399 U. S. 150 to make a critical difference in the application of the
Confrontation Clause is an issue that should first be resolved by
the state court. Pp. 399 U. S.
168 -170. 70 Cal. 2d
654 , 451 P.2d 422, vacated and remanded.

															MR. JUSTICE WHITE delivered the opinion of the Court.

															Section 1235 of the California Evidence Code, effective as of
January 1, 1967, provides that

															"[e]vidence of a statement made by a witness is not made
inadmissible by the hearsay rule if the statement is inconsistent
with his testimony at the hearing and is offered in compliance with
Section 770. [ Footnote 1 ]"

															In People v. Johnson, 68 Cal. 2d
646 , 441 P.2d 111 (1968), cert. denied, 393 U.S. 1051
(1969), the California Supreme Court held that, prior statements of
a witness that were not subject to cross-examination when
originally made, could not be introduced under this section to
prove the charges against a defendant without violating the
defendant's right of confrontation guaranteed by the Sixth
Amendment and made applicable to Page 399 U. S. 151 the States by the Fourteenth Amendment. In the case now before
us, the California Supreme Court applied the same ban to a prior
statement of a witness made at a preliminary hearing, under oath
and subject to full cross-examination by an adequately counseled
defendant. We cannot agree with the California court for two
reasons, one of which involves rejection of the holding in People v. Johnson. I In January, 1967, one Melvin Porter, a 16-year-old minor, was
arrested for selling marihuana to an undercover police officer.
Four days after his arrest, while in the custody of juvenile
authorities, Porter named respondent Green as his supplier. As
recounted later by one Officer Wade, Porter claimed that Green had
called him earlier that month, had asked him to sell some "stuff"
or "grass," and had that same afternoon personally delivered a
shopping bag containing 29 "baggies" of marihuana. It was from this
supply that Porter had made his sale to the undercover officer. A
week later, Porter testified at respondent's preliminary hearing.
He again named respondent as his supplier, although he now claimed
that, instead of personally delivering the marihuana, Green had
showed him where to pick up the shopping bag, hidden in the bushes
at Green's parents' house. Porter's story at the preliminary
hearing was subjected to extensive cross-examination by
respondent's counsel -- the same counsel who represented respondent
at his subsequent trial. At the conclusion of the hearing,
respondent was charged with furnishing marihuana to a minor in
violation of California law.

															Respondent's trial took place some two months later before a
court sitting without a jury. The State's chief witness was again
young Porter. But this time, Porter, in the words of the California
Supreme Court, proved to be "markedly evasive and uncooperative on
the Page 399 U. S. 152 stand." People v. Green, 70 Cal. 2d
654 , 657, 451 P.2d 422, 423 (1969). He testified that
respondent had called him in January, 1967, and asked him to sell
some unidentified "stuff." He admitted obtaining shortly thereafter
29 plastic "baggies" of marihuana, some of which he sold. But, when
pressed as to whether respondent had been his supplier, Porter
claimed that he was uncertain how he obtained the marihuana,
primarily because he was at the time on "acid" (LSD), which he had
taken 20 minutes before respondent phoned. Porter claimed that he
was unable to remember the events that followed the phone call, and
that the drugs he had taken prevented his distinguishing fact from
fantasy. See, e.g., App. 7-11, 24-25.

															At various points during Porter's direct examination, the
prosecutor read excerpts from Porter's preliminary hearing
testimony. This evidence was admitted under § 1235 for the truth of
the matter contained therein. With his memory "refreshed" by his
preliminary hearing testimony, Porter "guessed" that he had indeed
obtained the marihuana from the backyard of respondent's parents'
home, and had given the money from its sale to respondent. On
cross-examination, however, Porter indicated that it was his memory
of the preliminary testimony which was "mostly" refreshed, rather
than his memory of the events themselves, and he was still unsure
of the actual episode. See App. 25. Later in the trial,
Officer Wade testified, relating Porter's earlier statement that
respondent had personally delivered the marihuana. This statement
was also admitted as substantive evidence. Porter admitted making
the statement, App. 59, and insisted that he had been telling the
truth as he then believed it both to Officer Wade and at the
preliminary hearing; but he insisted that he was also telling the
truth now in claiming inability to remember the actual events. Page 399 U. S. 153 Respondent was convicted. The District Court of Appeal reversed,
holding that the use of Porter's prior statements for the truth of
the matter asserted therein denied respondent his right of
confrontation under the California Supreme Court's recent decision
in People v. Johnson, supra. The California Supreme Court
affirmed, finding itself "impelled" by recent decisions of this
Court to hold § 1235 unconstitutional insofar as it permitted the
substantive use of prior inconsistent statements of a witness even
though the statements were subject to cross-examination at a prior
hearing. We granted the State's petition for certiorari, 396 U.S.
1001 (1970). II The California Supreme Court construed the Confrontation Clause
of the Sixth Amendment to require the exclusion of Porter's prior
testimony offered in evidence to prove the State's case against
Green because, in the court's view, neither the right to
cross-examine Porter at the trial concerning his current and prior
testimony nor the opportunity to cross-examine Porter at the
preliminary hearing satisfied the commands of the Confrontation
Clause. We think the California court was wrong on both counts.

															Positing that this case posed an instance of a witness who gave
trial testimony inconsistent with his prior, out-of-court
statements, [ Footnote 2 ] the
California court, on the authority of its decision in People v.
Johnson, supra, held that belated cross-examination before the
trial court

															"is not an adequate substitute for the right to
cross-examination contemporaneous with the original testimony
before a different tribunal." People v. Green, supra, at 659, 451 P.2d at 425. We
disagree. Page 399 U. S. 154 Section 1235 of the California Evidence Code represents a
considered choice by the California Legislature [ Footnote 3 ] between two opposing positions
concerning the extent to which a witness' prior statements may be
introduced at trial without violating hearsay rules of evidence.
The orthodox view, adopted in most jurisdictions, [ Footnote 4 ] has been that the out-of-court
statements are inadmissible for the usual reasons that have led to
the exclusion of hearsay statements: the statement may not have
been made under oath; the declarant may not have been subjected to
cross-examination when he made the statement; and the jury cannot
observe the declarant's demeanor at the time he made the statement.
Accordingly, under this view, the statement may not be offered to
show the truth of the matters asserted therein, but can be
introduced under appropriate limiting instructions to impeach the
credibility of the witness who has changed his story at trial. In
contrast, the minority view, adopted in some jurisdictions
[ Footnote 5 ] and supported by
most legal commentators and by recent proposals to codify the law
of evidence, [ Footnote 6 ]
would Page 399 U. S. 155 permit the substantive use of prior inconsistent statements on
the theory that the usual dangers of hearsay are largely
nonexistent where the witness testifies at trial.

															"The whole purpose of the Hearsay rule has been already
satisfied, [because] the witness is present and subject to
cross-examination [and] [t]here is ample opportunity to test him as
to the basis for his former statement. [ Footnote 7 ]"

															Our task in this case is not to decide which of these positions,
purely as a matter of the law of evidence, is the sounder. The
issue before us is the considerably narrower one of whether a
defendant's constitutional right "to be confronted with the
witnesses against him" is necessarily inconsistent with a State's
decision to change its hearsay rules to reflect the minority view
described above. While it may readily be conceded that hearsay
rules and the Confrontation Clause are generally designed to
protect similar values, it is quite a different thing to suggest
that the overlap is complete, and that the Confrontation Clause is
nothing more or less than a codification of the rules of hearsay
and their exceptions as they existed historically at common law.
Our decisions have never established such a congruence; indeed, we
have more than once found a violation of Page 399 U. S. 156 confrontation values even though the statements in issue were
admitted under an arguably recognized hearsay exception. See
Barber v. Page, 390 U. S. 719 (1968); Pointer v. Texas, 380 U.
S. 400 (196). The converse is equally true: merely
because evidence is admitted in violation of a long-established
hearsay rule does not lead to the automatic conclusion that
confrontation rights have been denied. [ Footnote 8 ]

															Given the similarity of the values protected, however, the
modification of a State's hearsay rules to create new exceptions
for the admission of evidence against a defendant will often raise
questions of compatibility with the defendant's constitutional
right to confrontation. Such questions require attention to the
reasons for, and the basic scope of, the protections offered by the
Confrontation Clause.

															The origin and development of the hearsay rules and of the
Confrontation Clause have been traced by others, and need not be
recounted in detail here. [ Footnote
9 ] It is sufficient to note that the particular vice that gave
impetus to the confrontation claim was the practice of trying
defendants on "evidence" which consisted solely of ex
parte affidavits or depositions secured by the examining
magistrates, thus denying the defendant the opportunity to
challenge his accuser in a face-to-face encounter in front of the
trier of fact. Prosecuting attorneys

															"would frequently allege matters which the prisoner denied and
called upon them to prove. The Page 399 U. S. 157 proof was usually given by reading depositions, confessions of
accomplices, letters, and the like, and this occasioned frequent
demands by the prisoner to have his 'accusers,' i.e., the
witnesses against him, brought before him face to face. . . .
[ Footnote 10 ]"

															But objections occasioned by this practice appear primarily to
have been aimed at the failure to call the witness to confront
personally the defendant at his trial. So far as appears, in
claiming confrontation rights, no objection was made against
receiving a witness' out-of-court depositions or statements so long
as the witness was present at trial to repeat his story and to
explain or repudiate any conflicting prior stories before the trier
of fact.

															Our own decisions seem to have recognized at an early date that
it is this literal right to "confront" the witness at the time of
trial that forms the core of the values furthered by the
Confrontation Clause:

															"The primary object of the constitutional provision in question
was to prevent depositions or ex parte affidavits, such as
were sometimes admitted in civil cases, being used against the
prisoner in lieu of a personal examination and cross-examination of
the witness in which the accused has an opportunity Page 399 U. S. 158 not only of testing the recollection and sifting the conscience
of the witness, but of compelling him to stand face to face with
the jury in order that they may look at him, and judge by his
demeanor upon the stand and the manner in which he gives his
testimony whether he is worthy of belief." Mattox v. United States, 156 U.
S. 237 , 156 U. S.
242 -243 (1895). Viewed historically, then, there is good
reason to conclude that the Confrontation Clause is not violated by
admitting a declarant's out-of-court statements as long as the
declarant is testifying as a witness and subject to full and
effective cross-examination.

															This conclusion is supported by comparing the purposes of
confrontation with the alleged dangers in admitting an out-of-court
statement. Confrontation: (1) insures that the witness will give
his statements under oath -- thus impressing him with the
seriousness of the matter and guarding against the lie by the
possibility of a penalty for perjury; (2) forces the witness to
submit to cross-examination, the "greatest legal engine ever
invented for the discovery of truth"; [ Footnote 11 ] (3) permits the jury that is to decide
the defendant's fate to observe the demeanor of the witness in
making his statement, thus aiding the jury in assessing his
credibility.

															It is, of course, true that the out-of-court statement may have
been made under circumstances subject to none of these protections.
But if the declarant is present and testifying at trial, the
out-of-court statement, for all practical purposes, regains most of
the lost protections. If the witness admits the prior statement is
his, or if there is other evidence to show the statement is his,
the danger of faulty reproduction is negligible, and the jury can
be confident that it has before it two conflicting statements by
the same witness. Thus, as far as the Page 399 U. S. 159 oath is concerned, the witness must now affirm, deny, or qualify
the truth of the prior statement under the penalty of perjury;
indeed, the very fact that the prior statement was not given under
a similar circumstance may become the witness' explanation for its
inaccuracy -- an explanation a jury may be expected to understand
and take into account in deciding which, if either, of the
statements represents the truth.

															Second, the inability to cross-examine the witness at the time
he made his prior statement cannot easily be shown to be of crucial
significance as long as the defendant is assured of full and
effective cross-examination at the time of trial. The most
successful cross-examination at the time the prior statement was
made could hardly hope to accomplish more than has already been
accomplished by the fact that the witness is now telling a
different, inconsistent story, and -- in this case -- one that is
favorable to the defendant. We cannot share the California Supreme
Court's view that belated cross-examination can never serve as a
constitutionally adequate substitute for cross-examination
contemporaneous with the original statement. The main danger in
substituting subsequent for timely cross-examination seems to lie
in the possibility that the witness'

															"[f]alse testimony is apt to harden and become unyielding to the
blows of truth in proportion as the witness has opportunity for
reconsideration and influence by the suggestions of others, whose
interest may be, and often is, to maintain falsehood, rather than
truth." State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901
(1939). That danger, however, disappears when the witness has
changed his testimony so that, far from "hardening," his prior
statement has softened to the point where he now repudiates it.
[ Footnote 12 ] Page 399 U. S. 160 The defendant's task in cross-examination is, of course, no
longer identical to the task that he would have faced if the
witness had not changed his story, and hence had to be examined as
a "hostile" witness giving evidence for the prosecution. This
difference, however, far from lessening, may actually enhance, the
defendant's ability to attack the prior statement. For the witness,
favorable to the defendant, should be more than willing to give the
usual suggested explanations for the inaccuracy of his prior
statement, such as faulty perception or undue haste in recounting
the event. Under such circumstances, the defendant is not likely to
be hampered in effectively attacking the prior statement solely
because his attack comes later in time.

															Similar reasons lead us to discount as a constitutional matter
the fact that the jury at trial is foreclosed from viewing the
declarant's demeanor when he first made his out-of-court statement.
The witness who now relates a different story about the events in
question must necessarily assume a position as to the truth value
of his prior statement, thus giving the jury a chance to observe
and evaluate his demeanor as he either disavows or qualifies his
earlier statement. The jury is alerted by the inconsistency in the
stories, and its attention is sharply focused on determining either
that one of the stories reflects the truth, or that the witness,
who has apparently lied once, is simply too lacking in credibility
to warrant its believing either story. The defendant's
confrontation rights are not violated, even though some demeanor
evidence that would have been relevant in resolving this
credibility issue is forever lost.

															It may be true that a jury would be in a better position to
evaluate the truth of the prior statement if it could somehow be
whisked magically back in time to witness a gruelling
cross-examination of the declarant as he first gives his statement.
But the question, as we Page 399 U. S. 161 see it, must be not whether one can somehow imagine the jury in
"a better position," but whether subsequent cross-examination at
the defendant's trial will still afford the trier of fact a
satisfactory basis for evaluating the truth of the prior statement.
On that issue, neither evidence [ Footnote 13 ] nor reason convinces us that contemporaneous
cross-examination before the ultimate trier of fact is so much more
effective than subsequent examination that it must be made the
touchstone of the Confrontation Clause.

															Finally, we note that none of our decisions interpreting the
Confrontation Clause requires excluding the out-of-court statements
of a witness who is available and testifying at trial. The concern
of most of our cases has been focused on precisely the opposite
situation -- situations where statements have been admitted in the
absence of the declarant and without any chance to cross-examine
him at trial. These situations have arisen through application of a
number of traditional "exceptions" to the hearsay rule, which
permit the introduction of evidence despite the absence of the
declarant usually on the theory that the evidence possesses other
indicia of "reliability" and is incapable of being admitted,
despite good faith efforts of the State, in any way that will
secure Page 399 U. S. 162 confrontation with the declarant. [ Footnote 14 ] Such exceptions, dispensing altogether with
the literal right to "confrontation" and cross-examination, have
been subjected on several occasions to careful scrutiny by this
Court. In Pointer v. Texas, 380 U.
S. 400 (1965), for example, the State introduced at
defendant's trial the transcript of a crucial witness' testimony
from a prior preliminary hearing. The witness himself, one
Phillips, had left the jurisdiction, and did not appear at
trial.

															"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,"

															380 U.S. at 380 U. S. 407 ,
we held that its introduction violated the defendant's
confrontation rights. Similarly, in Barber v. Page, 390 U. S. 719 (1968), the State introduced the preliminary hearing testimony of
an absent witness, incarcerated in a federal prison, under an
"unavailability" exception to its hearsay rules. We held that that
exception would not justify the denial of confrontation where the
State had not made a good faith effort to obtain the presence of
the allegedly "unavailable" witness.

															We have no occasion in the present case to map out a theory of
the Confrontation Clause that would determine the validity of all
such hearsay "exceptions" permitting the introduction of an absent
declarant's statements. For where the declarant is not absent, but
is present to testify and to submit to cross-examination, our
cases, if anything, support the conclusion that the admission of
his out-of-court statements does not create a confrontation
problem. Thus, in Douglas v. Alabama, 380 U.
S. 415 (1965), decided on the same day as Pointer, we reversed a conviction in which the prosecution
read Page 399 U. S. 163 into the record an alleged confession of the defendant's
supposed accomplice, Loyd, who refused to testify on
self-incrimination grounds. The confrontation problem arose
precisely because Loyd could not be cross-examined as to his prior
statement; had such cross-examination taken place, the opinion
strongly suggests that the confrontation problem would have been
nonexistent:

															"In the circumstances of this case, petitioner's inability to
cross-examine Loyd as to the alleged confession plainly denied him
the right of cross-examination secured by the Confrontation Clause.
. . . Loyd could not be cross-examined on a statement imputed to,
but not admitted by, him. . . . [S]ince [the State's] evidence
tended to show only that Loyd made the confession,
cross-examination . . . as to its genuineness could not substitute
for cross-examination of Loyd to test the truth of the statement
itself. . . ."

															"Hence, effective confrontation of Loyd was possible only if
Loyd affirmed the statement as his."

															380 U.S. at 380 U. S.
419 -420.

															Again, in Bruton v. United States, 391 U.
S. 123 (1968), the Court found a violation of
confrontation rights in the admission of a codefendant's
confession, implicating Bruton, where the codefendant did not take
the stand. The Court again emphasized that the error arose because
the declarant "does not testify, and cannot be tested by
cross-examination," 391 U.S. at 391 U. S. 136 ,
suggesting that no confrontation problem would have existed if
Bruton had been able to cross-examine his codefendant. [ Footnote 15 ] Cf. Page 399 U. S. 164 Harrington v. Californoa, 395 U.
S. 250 , 395 U. S.
252 -253 (1969). Indeed, Bruton's refusal to regard
limiting instructions as capable of curing the error, suggests that
there is little difference as far as the Constitution is concerned
between permitting prior inconsistent statements to be used only
for impeachment purposes and permitting them to be used for
substantive purposes as well.

															We find nothing, then, in either the history or the purposes of
the Confrontation Clause, or in the prior decisions of this Court,
that compels the conclusion reached by the California Supreme Court
concerning the validity of California's § 1235. Contrary to the
judgment of that court, the Confrontation Clause does not require
excluding from evidence the prior statements of a witness who
concedes making the statements, and who may be asked to defend or
otherwise explain the inconsistency between his prior and his
present version of the events in question, thus opening himself to
full cross-examination at trial as to both stories. Page 399 U. S. 165 III We also think that Porter's preliminary hearing testimony was
admissible as far as the Constitution is concerned wholly apart
from the question of whether respondent had an effective
opportunity for confrontation at the subsequent trial. For Porter's
statement at the preliminary hearing had already been given under
circumstances closely approximating those that surround the typical
trial. Porter was under oath; respondent was represented by counsel
-- the same counsel, in fact, who later represented him at the
trial; respondent had every opportunity to cross-examine Porter as
to his statement, and the proceedings were conducted before a
judicial tribunal, equipped to provide a judicial record of the
hearings. Under these circumstances, Porter's statement would, we
think, have been admissible at trial even in Porter's absence if
Porter had been actually unavailable despite good faith efforts of
the State to produce him. That being the case, we do not think a
different result should follow where the witness is actually
produced.

															This Court long ago held that admitting the prior testimony of
an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U. S. 237 (1895). That case involved testimony given at the defendant's first
trial by a witness who had died by the time of the second trial,
but we do not find the instant preliminary hearing significantly
different from an actual trial to warrant distinguishing the two
cases for purposes of the Confrontation Clause. Indeed, we
indicated as much in Pointer v. Texas, 380 U.
S. 400 , 380 U. S. 407 (1965), where we noted that

															"[t]he 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 Page 399 U. S. 166 complete and adequate opportunity to cross-examine."

															And in Barber v. Page, 390 U.
S. 719 , 390 U. S.
725 -726 (1968), although noting that the preliminary
hearing is ordinarily a less searching exploration into the merits
of a case than a trial, we recognized that

															"there may be some justification for holding that the
opportunity for cross-examination of a witness at a preliminary
hearing satisfies the demands of the confrontation clause where the
witness is shown to be actually unavailable. . . ."

															In the present case, respondent's counsel does not appear to
have been significantly limited in any way in the scope or nature
of his cross-examination of the witness Porter at the preliminary
hearing. If Porter had died or was otherwise unavailable, the
Confrontation Clause would not have been violated by admitting his
testimony given at the preliminary hearing -- the right of
cross-examination then afforded provides substantial compliance
with the purposes behind the confrontation requirement, as long as
the declarant's inability to give live testimony is in no way the
fault of the State. Compare Barber v. Page, supra, with Motes
v. United States, 178 U. S. 458 (1900).

															But nothing in Barber v. Page or in other cases in this
Court indicates that a different result must follow where the State
produces the declarant and swears him as a witness at the trial. It
may be that the rules of evidence applicable in state or federal
courts would restrict resort to prior sworn testimony where the
declarant is present at the trial. But, as a constitutional matter,
it is untenable to construe the Confrontation Clause to permit the
use of prior testimony to prove the State's case where the
declarant never appears, but to bar that testimony where the
declarant is present at the trial, exposed to the defendant and the
trier of fact, and subject Page 399 U. S. 167 to cross-examination. [ Footnote 16 ] As in the case where the witness is
physically unproducible, the State here has made every effort to
introduce its evidence through the live testimony of the witness;
it produced Porter at trial, swore him as a witness, and tendered
him for cross-examination. Whether Porter then testified in a
manner consistent or inconsistent with his preliminary hearing
testimony, claimed a loss of memory, claimed his privilege Page 399 U. S. 168 against compulsory self-incrimination, or simply refused to
answer, nothing in the Confrontation Clause prohibited the State
from also relying on his prior testimony to prove its case against
Green. [ Footnote 17 ] IV There is a narrow question lurking in this case concerning the
admissibility of Porter's statements to Officer Wade. In the
typical case to which the California court addressed itself, the
witness at trial gives a version of the ultimate events different
from that given on a prior occasion. In such a case, as our holding
in 399 U. S. we
find little reason to distinguish among prior inconsistent
statements on the basis of the circumstances under which the prior
statements were given. The subsequent opportunity for
cross-examination at trial with respect to both present and past
versions of the event is adequate to make equally admissible, as
far as the Confrontation Clause is concerned, both the casual,
off-hand remark to a stranger and the carefully recorded testimony
at a prior hearing. Here, however, Porter claimed at trial that he
could not remember the events that occurred after respondent
telephoned him, and, hence, failed to give any current version of
the more important events described in his earlier statement.

															Whether Porter's apparent lapse of memory so affected Green's
right to cross-examine as to make a critical difference in the
application of the Confrontation Clause Page 399 U. S. 169 in this case [ Footnote
18 ] is an issue which is not ripe for decision at this
juncture. The state court did not focus on this precise question,
which was irrelevant given its broader and erroneous premise that
an out-of-court statement of a witness is inadmissible as
substantive evidence, whatever the nature of the opportunity to
cross-examine at the trial. Nor has either party addressed itself
to the question. Its resolution depends much upon the Page 399 U. S. 170 unique facts in this record, and we are reluctant to proceed
without the state court's views of what the record actually
discloses relevant to this particular issue. What is more, since we
hold that the admission of Porter's preliminary hearing testimony
is not barred by the Sixth Amendment despite his apparent lapse of
memory, the reception into evidence of the Porter statement to
Officer Wade may pose a harmless error question which is more
appropriately resolved by the California courts in the first
instance. Similarly, faced on remand with our decision that § 1235
is not invalid on its face, the California Supreme Court may choose
to dispose of the case on other grounds raised by Green but not
passed upon by that court; for example, because of its ruling on §
1235, the California court deliberately put aside the issue of the
sufficiency of the evidence to sustain conviction. [ Footnote 19 ]

															We therefore vacate the judgment of the California Supreme Court
and remand the case to that court for further proceedings not
inconsistent with this opinion. It is so ordered. MR. JUSTICE MARSHALL took no part in the decision of this
case. Page 399 U. S. 171 [ Footnote 1 ]

															Cal.Evid.Code § 1235 (1966). Section 770 merely requires that
the witness be given an opportunity to explain or deny the prior
statement at some point in the trial. See Cal.Evid.Code §
770 (1966); People v. Johnson, 68 Cal. 2d
646 , 650 n. 2, 441 P.2d 111, 114 n. 2 (1968), cert.
denied, 393 U.S. 1051 (1969).

															[ Footnote 2 ] See People v. Green, 70 Cal. 2d
654 , 657 n. 1, 451 P.2d 422, 424 n. 1 (1969).

															[ Footnote 3 ] See the comments of the California Law Revision
Commission, Cal.Evid.Code § 1235 (1966).

															[ Footnote 4 ] E.g., Ellis v. United States, 138 F.2d 612, 616-621
(C.A. 8th Cir.1943); State v. Saporen, 205 Minn. 358,
361-362, 285 N.W. 898, 90901 (1939). The cases are collected in 3
J. Wigmore, Evidence § 1018 (3d ed.1940) [hereinafter cited as
Wigmore] and Annot., 133 A.L.R. 1454, 1455-1457 (1941).

															[ Footnote 5 ] See Jett v. Commonwealth, 436
S.W.2d 788 (Ky.1969); Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d
609 (1969). See also United States v. De Sisto, 329
F.2d 929 (C.A.2d Cir.) (Friendly, J.), cert. denied, 377
U.S. 979 (1964); United States v. Block, 88 F.2d 618, 620
(C.A.2d Cir.) (L. Hand, J.), cert. denied, 301 U.S. 690
(1937); Di Carlo v. United States, 6 F.2d 364, 368 (C.A.2d
Cir.) (L. Hand, J.), cert. denied, 268 U.S. 706
(1925).

															[ Footnote 6 ]

															Dean Wigmore was the first noted commentator to adopt this
position, abandoning his earlier approval, in the first edition of
his Treatise, of the orthodox view. See 3 Wigmore § 1018
n. 2. Both the Model Code and the Uniform Rules have since followed
the Wigmore position, see Model Code of Evidence Rule
503(b) (1942); Uniform Rule of Evidence 63(1) (1953), as has the
recent preliminary draft of the rules of evidence for the lower
federal courts, see Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States,
Preliminary Draft of Proposed Rules of Evidence for the United
States District Courts and Magistrates, Rule 8-01(c)(2) (1969). For
commentators who have urged views similar to Wigmore's see C. McCormick, Evidence § 39 (1954); Maguire, The Hearsay System:
Around and Through the Thicket, 14 Vand.L.Rev. 741, 747 (1961);
Morgan, Hearsay Dangers and the Application of the Hearsay Concept,
62 Harv.L.Rev. 177, 92-196 (1948).

															[ Footnote 7 ]

															3 Wigmore § 1018.

															[ Footnote 8 ] See The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63,
236 (1968); Note, Confrontation and the Hearsay Rule, 75 Yale L.J.
1434, 1436 (1966).

															[ Footnote 9 ] See, e.g., McCormick, supra, n 6, at 455-457; 5 Wigmore § 1364; Morgan, supra, n 6, at
179-183. See also 9 W. Holdsworth, A History of English
Law 177-187, 214-219 (3d ed.1944); Note, Preserving the Right to
Confrontation -- A New Approach to Hearsay Evidence in Criminal
Trials, 113 U.Pa.L.Rev. 741, 746-747 (1965).

															[ Footnote 10 ]

															1 J. Stephen, A History of the Criminal Law of England 326
(1883). See also 9 Holdsworth, supra, n 9, at 225-228.

															A famous example is provided by the trial of Sir Walter Raleigh
for treason in 1603. A crucial element of the evidence against him
consisted of the statements of one Cobham, implicating Raleigh in a
plot to seize the throne. Raleigh had since received a written
retraction from Cobham, and believed that Cobham would now testify
in his favor. After a lengthy dispute over Raleigh's right to have
Cobham called as a witness, Cobham was not called, and Raleigh was
convicted. See 1 Stephen, supra, at 333-336; 9
Holdsworth, supra, at 216-217, 226-228. At least one
author traces the Confrontation Clause to the common law reaction
against these abuses of the Raleigh trial. See F. Heller,
The Sixth Amendment 104 (1951).

															[ Footnote 11 ]

															5 Wigmore § 1367.

															[ Footnote 12 ] See Comment, Substantive Use of Extrajudicial
Statements of Witnesses Under the Proposed Federal Rules of
Evidence, 4 U.Rich.L.Rev. 110, 117-118 (1969); 82 Harv.L.Rev. 475
n. 16 (1968).

															[ Footnote 13 ]

															The California Supreme Court, in its earlier decision on this
issue, stated that

															"[t]his practical truth [the importance of immediate
cross-examination] is daily verified by trial lawyers, not one of
whom would willingly postpone to both a later date and a different
forum his right to cross-examine a witness against his client." People v. Johnson, 68 Cal. 2d
646 , 655, 441 P.2d 111, 118 (1968), cert. denied, 393
U.S. 1051 (1969). The citations that follow this sentence are to
books on trial practice that shed little empirical light on the
actual comparative effectiveness of subsequent, as opposed to
timely, cross-examination. As the text suggests, where the witness
has changed his story at trial to favor the defendant, he should,
if anything, be more, rather than less, vulnerable to defense
counsel's explanations for the inaccuracy of his former
statement.

															[ Footnote 14 ] See generally, e.g., Wigmore §§ 1420-1422.

															[ Footnote 15 ]

															Whether admission of the statement would have violated federal
evidentiary rules against hearsay, see 391 U.S. at 391 U. S. 128 n. 3, is, as emphasized earlier in this opinion, a wholly separate
question. Indeed, failure to comply with federal evidentiary
standards appears to be the reason for the result in Bridges v.
Wixon, 326 U. S. 135 (1945) -- the only case which might be thought to suggest the
existence of a possible constitutional problem in admitting a
witness' prior inconsistent statements as substantive evidence.
There, the Court reversed a deportation order based on such
evidence, but the holding was an alternative one, and explicitly
rested on the ground that the relevant agency rules did not permit
the use of such statements. See 326 U.S. at 326 U. S.
151 -153. While the Court did suggest that the use of
such statements in a criminal case would run "counter to the
notions of fairness on which our legal system is founded," id. at 326 U. S. 154 ,
the discussion and citations appear to refer to the "orthodox"
position earlier adopted by this Court as a matter of federal
evidentiary, not constitutional, law. See Hickory v. United
States, 151 U. S. 303 , 151 U. S. 309 (1894). While we may agree that considerations of due process,
wholly apart from the Confrontation Clause, might prevent
convictions where a reliable evidentiary basis is totally lacking, see Thompson v. Louisville, 362 U.
S. 199 (1960), we do not read Bridges as
declaring that the Constitution is necessarily violated by the
admission of a witness' prior inconsistent statement for the truth
of the matter asserted. The Court's opinion in Bridges does not discuss the Confrontation Clause.

															[ Footnote 16 ]

															The explanation advanced for the contrary conclusion seems to be
that, where the witness is dead or otherwise unavailable, the State
may in good faith assume he would have given the same story at
trial, and may introduce the former testimony as reasonably
reliable and as prompted by the factor of "necessity." On the
contrary, it is argued, where the witness is present to testify but
does not relate the same story, "necessity," "reliability," and the
assumption that the story would be the same are all destroyed. See People v. Green, 70 Cal. 2d
654 , 664 and n. 11, 451 P.2d 422, 428 429 and n. 11 (1969);
Brief for Respondent 32. But the only "necessity" that exists in
either case is the State's "need" to introduce relevant evidence
that, through no fault of its own, cannot be introduced in any
other way. And the "assumption" that the witness would have given
the same story if he had been available at trial is little more
than another way of saying that the testimony was given under
circumstances that make it reasonably reliable -- there is nothing
in a witness' death, by itself, for example, which would justify
assuming his story would not have changed at trial. Finally, the
"reliability" of the statement is based on the circumstances under
which it was given -- circumstances that remain unaffected
regardless of whether the witness is present or absent at the later
trial. Surely, in terms of protecting the defendant's interests and
the jury's ability to assess the reliability of the evidence it
hears, it seems most unlikely that respondent in this case would
have been better off, as the dissent seems to suggest, if Porter
had died and his prior testimony were admitted than he was in the
instant case, where Porter's conduct on the stand cast substantial
doubt on his prior statement. As long as the State has made a good
faith effort to produce the witness, the actual presence or absence
of the witness cannot be constitutionally relevant for purposes of
the "unavailability" exception.

															[ Footnote 17 ]

															The hearsay exception itself has generally recognized that a
witness is "unavailable" for purposes of the exception where,
through lapse of memory or a plea of the Fifth Amendment privilege,
the State cannot secure his live testimony. See 5 Wigmore
§§ 1408, 1409.

															[ Footnote 18 ]

															Even among proponents of the view that prior statements should
be admissible as substantive evidence, disagreement appears to
exist as to whether to apply this rule to the case of a witness who
disclaims all present knowledge of the ultimate event. Commentators
have noted that, in such a case, the opportunities for testing the
prior statement through cross-examination at trial may be
significantly diminished. See Falknor, The Hearsay Rule
and Its Exceptions, 2 U.C.L.A.L.Rev. 43, 53 (1954); 31 N.Y.U.L.Rev.
1101, 1105 (1956). While both the Model Code and the Uniform Rules
would apparently admit prior inconsistent statements even where the
witness claims to have no present knowledge or recollection of the
event, see Model Code of Evidence Rule 503(b), Comment b, at 234 (1942); Uniform Rule of Evidence 63(1), Comment
(1953), the preliminary draft of proposed rules of evidence for
lower federal courts seems to limit admissibility to the case where
the witness actually testifies concerning the substance of the
event at issue, see Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States,
Preliminary Draft of Proposed Rules of Evidence for the United
States District Courts and Magistrates, rule 8-01(c)(2)(i),
Advisory Comm. Notes at 165 (1969). See Comment,
Substantive Use of Extrajudicial Statements of Witnesses Under the
Proposed Federal Rules of Evidence, 4 U.Rich.L.Rev. 110, 119 and n.
40 (1969). The latter position accords with the common law practice
of not permitting prior inconsistent statements to be introduced
even for impeachment purposes until and unless the witness has
actually given "inconsistent" testimony concerning the substance of
the event described in the prior statement. Id. at 119,
121; see e.g., Westinghouse Electric Corp. v. Wray Equipment
Corp., 286 F.2d 491, 493 (C.A. 1st Cir.), cert.
denied, 366 U.S. 929 (1961); 3 Wigmore § 1043.

															[ Footnote 19 ]

															This issue is not insubstantial. Conviction here rests almost
entirely on the evidence in Porter's two prior statements, which
were themselves inconsistent in some respects. See, e.g., Brief for Respondent 3 and n. 2, 49-50. The California Supreme
Court also found it unnecessary to reach respondent's additional
contentions of suppression of evidence and prejudicial misconduct. See People v. Green, 70 Cal. 2d
654 , 666, 451 P.2d 422, 429 (1969). Moreover, as noted earlier
in this opinion, ante at 399 U. S. 153 and n. 2, the California court suggested that Porter's prior
statements may not even have been admissible under § 1235 as
"inconsistent" with his testimony at trial. Compare People v.
Green, supra, at 657 n. 1, 451 P.2d at 424 n. 1, with n 18, supra. MR. CHIEF JUSTICE BURGER, concurring.

															I join fully in MR. JUSTICE WHITE's opinion for the Court. I add
this comment only to emphasize the importance of allowing the
States to experiment and innovate, especially in the area of
criminal justice. If new standards and procedures are tried in one
State, their success or failure will be a guide to others and to
the Congress.

															Here, California, by statute, recently adopted a rule of
evidence [ Footnote 2/1 ] that, as
MR. JUSTICE WHITE observes, has long been advocated by leading
commentators. Two other States, Kentucky [ Footnote 2/2 ] and Wisconsin, [ Footnote 2/3 ] have, within the past year, embraced
similar doctrines by judicial decisions. None of these States has
yet had sufficient experience with their innovations to determine
whether or not the modification is sound, wise, and workable. The
California Supreme Court, in striking down the California statute,
seems to have done so in the mistaken belief that this Court,
through the Confrontation Clause, has imposed rigid limits on the
States in this area. As the Court's opinion indicates, that
conclusion is erroneous. The California statute meets the tests of
the Sixth and Fourteenth Amendments, and, accordingly, the wisdom
of the statute is properly left to the State of California; other
jurisdictions will undoubtedly watch the experiment with interest.
The circumstances of this case demonstrate again that neither the
Constitution, as originally drafted, nor any amendment, nor indeed
any need, dictates that we must have absolute uniformity in the Page 399 U. S. 172 criminal law in all the States. Federal authority was never
intended to be a "ramrod" to compel conformity to nonconstitutional
standards.

															[ Footnote 2/1 ]

															Cal.Evid.Code § 1235 (1966).

															[ Footnote 2/2 ] Jett v. Commonwealth, 436
S.W.2d 788 (Ky.1969).

															[ Footnote 2/3 ] Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d
609 (1969), petition for certiorari pending, No. 389,
Misc., O.T. 1969.

															MR. JUSTICE HARLAN, concurring.

															The precise holding of the Court today is that the Confrontation
Clause of the Sixth Amendment does not preclude the introduction of
an out-of-court declaration, taken under oath and subject to
cross-examination, to prove the truth of the matters asserted
therein, when the declarant is available as a witness at trial.
With this, I agree. [ Footnote
3/1 ]

															The California decision that we today reverse demonstrates,
however, the need to approach this case more broadly than the Court
has seen fit to do, and to confront squarely the Confrontation
Clause, because the holding of the California Supreme Court is the
result of an understandable misconception, as I see things, of
numerous decisions of this Court, old and recent, that have
indiscriminately equated "confrontation" with "cross-examination."
[ Footnote 3/2 ] See Bruton v.
United States, 391 U. S. 123 (1968); Roberts v. Russell, 392 U.
S. 293 (1968); Pointer v. Texas, 380 U.
S. 400 (1965); Douglas v. Alabama, 380 U.
S. 415 (1965); Brookhart v. Janis, 384 U. S.
1 (1966); Page 399 U. S. 173 Barber v. Page, 390 U. S. 719 (168); Smith v. Illinois, 390 U.
S. 129 (1968); Bridges v. Wixon, 326 U.
S. 135 (1945); Salinger v. United States, 272 U. S. 542 , 272 U. S. 548 (1926) (dictum); Reynolds v. United States, 98 U. S.
145 (1879); Mattox v. United States, 156 U. S. 237 (1895); Motes v. United States, 178 U.
S. 458 (1900); Kirby v. United States, 174 U. S. 47 (1899); and Dowdell v. United States, 221 U.
S. 325 , 221 U. S. 330 (1911). [ Footnote 3/3 ]

															These decisions have, in my view, left ambiguous whether and to
what extent the Sixth Amendment "constitutionalizes" the hearsay
rule of the common law.

															If "confrontation" is to be equated with the right to
cross-examine, it would transplant the ganglia of hearsay rules and
their exceptions into the body of constitutional protections. The
stultifying effect of such a course upon this aspect of the law of
evidence in both state and federal systems need hardly be labored,
and it is good that the Court today, as I read its opinion, firmly
eschews that course.

															Since, in my opinion, this state decision imperatively
demonstrates the need for taking a fresh look at the constitutional
concept of "confrontation," I do not think that stare
decisis should be allowed to stand in the way, albeit the
presently controlling cases are of recent vintage. [ Footnote 3/4 ] As the Court's opinion suggests, the
Confrontation Page 399 U. S. 174 Clause comes to us on faded parchment. History seems to give us
very little insight into the intended scope of the Sixth Amendment
Confrontation Clause. Commentators have been prone to slide too
easily from confrontation to cross-examination.

															Against this amorphous backdrop, I reach two conclusions. First,
the Confrontation Clause of the Sixth Amendment reaches no farther
than to require the prosecution to produce any available witness whose declarations it seeks to use in a
criminal trial. Second, even were this conclusion deemed untenable
as a matter of Sixth Amendment law, it is surely agreeable to
Fourteenth Amendment "due process," which, in my view, is the
constitutional framework in which state cases of this kind should
be judged. For it could scarcely be suggested that the Fourteenth
Amendment takes under its umbrella all common law hearsay rules and
their exceptions.

															I begin with the Sixth Amendment, and defer until Parts 399 U. S. S.
189|>IV the application of these principles to the instant
case. I The Confrontation Clause of the Sixth Amendment is not one that
we may assume the Framers understood as the embodiment of settled
usage at common law. Cf. my dissenting opinion in Baldwin v. New York, ante, p. 399 U. S. 117 .
Such scant evidence as can be culled from the usual sources
suggests that the Framers understood "confrontation" to be
something less than a right to exclude hearsay, and the common law
significance Page 399 U. S. 175 of the term is so ambiguous as not to warrant the assumption
that the Framers were announcing a principle whose meaning was so
well understood that this Court should be constrained to accept
those dicta in the common law that equated confrontation with
cross-examination. A The text of the Sixth Amendment reads:

															"In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him."

															Simply as a matter of English, the clause may be read to confer
nothing more than a right to meet face to face all those who appear
and give evidence at trial. [ Footnote
3/5 ] Since, however, an extrajudicial declarant is no less a
"witness," the clause is equally susceptible of being interpreted
as a blanket prohibition on the use of any hearsay testimony.

															Neither of these polar readings is wholly satisfactory, still
less compelling. Similar guarantees to those of the Sixth Amendment
are found in a number of the colonial constitutions, [ Footnote 3/6 ] and it appears to have been
assumed that a confrontation provision would be included in the
Bill of Rights that was to be added to the Constitution after
ratification. [ Footnote 3/7 ] The
Congressmen who drafted the Bill of Page 399 U. S. 176 Rights amendments were primarily concerned with the political
consequences of the new clauses, and paid scant attention to the
definition and meaning of particular guarantees. Thus, the
Confrontation Clause was apparently included, without debate, along
with the rest of the Sixth Amendment package of rights -- to
notice, counsel, and compulsory process -- all incidents of the
adversarial proceeding before a jury as evolved during the 17th and
18th centuries. [ Footnote 3/8 ] If
anything, the confrontation guarantee may be thought, along with
the right to compulsory process, merely to constitutionalize the
right to a defense as we know it, a right not always enjoyed by the
accused, whose only defense prior to the late 17th century was to
argue that the prosecution had not completely proved its case.
[ Footnote 3/9 ] See H.
Stephen, "The Trial of Page 399 U. S. 177 Sir Walter Raleigh," Transactions of the Royal Historical
Society 172, 184 (4th ser. Vol. 2, 1919); F. Heller, The Sixth
Amendment 106-107 (1951). Such glimmer of light as history may be
thought to shed comes from the brief congressional colloquy on the
reach of the companion guarantee of compulsory process. The debate
suggests that this also broad and sweeping right was understood to
be qualified by an availability requirement. After what is now the
Sixth Amendment was put on the floor, the annals report the
following:

															"Mr. BURKE moved to amend this proposition in such a manner as
to leave it in the power of the accused to put off the trial to the
next session, provided he made it appear to the court that the
evidence of the witnesses, for whom process was granted but not
served, was material to his defence."

															"Mr. HARTLEY said that, in securing him the right of compulsory
process, the Government did all it could; the remainder must
lie in the discretion of the court. "

															"Mr. SMITH, of South Carolina, thought the regulation would come
properly in as part of the Judicial system."

															1 Annals of Cong. 756. (Emphasis added.)

															In the face of this colloquy, I cannot accept Professor Heller's
assertion in his book on the Sixth Amendment attributing to the
Framers a sweeping intent to prevent "introduction of evidence
given by witnesses whom the accused has not had an opportunity to
cross-examine," supra at 105. So far as I have been able
to ascertain, this thesis finds support only in the assumption,
traceable to Professor Hadley, [ Footnote 3/10 ] that:

															"The right of the accused in a Page 399 U. S. 178 criminal prosecution to be confronted with the witnesses against
him did not originate with the provision of the Sixth Amendment,
but was a common law right which had gained recognition as a result
of the abuses in the trial of Sir Walter Raleigh." Id. at 104. Heller's approach, resting as it does
essentially on assertion, [ Footnote
3/11 ] is neither persuasive as a historical reading nor tenable
in view of decisions by this Court that have held that the
confrontation right is not abridged by the use of hearsay that
would not have satisfied the dying declaration exception, which
was, according to Heller, the only apparent extant exception to the
hearsay exclusionary rule at the time the Sixth Amendment was
ratified. [ Footnote 3/12 ]

															Wigmore's more ambulatory view -- that the Confrontation Clause
was intended to constitutionalize the hearsay rule and all its
exceptions as evolved by the courts -- rests also on assertion
without citation, and attempts to settle on ground that would
appear to be equally infirm Page 399 U. S. 179 as a matter of logic. [ Footnote
3/13 ] Wigmore's reading would have the practical consequence of
rendering meaningless what was assuredly, in some sense, meant to
be an enduring guarantee. It is inconceivable that, if the Framers
intended to constitutionalize a rule of hearsay, they would have
licensed the judiciary to read it out of existence by creating new
and unlimited exceptions.

															From the scant information available, it may tentatively be
concluded that the Confrontation Clause was meant to
constitutionalize a barrier against flagrant abuses, trials by
anonymous accusers, and absentee witnesses. That the Clause was
intended to ordain common law rules of evidence with constitutional
sanction is doubtful, notwithstanding English decisions that equate
confrontation and hearsay. Rather, having established a broad
principle, it is far more likely that the Framers anticipated it
would be supplemented, as a matter of Judge-made common law, by
prevailing rules of evidence. B Judicial Precedent. -- The history tending to suggest
that availability underlies the confrontation right, as discussed
above, is, in my view, confirmed by a circumspect analysis of the
early decisions of this Court. [ Footnote 3/14 ] Page 399 U. S. 180 The early decision that consider the confrontation right at any
length all involved ex parte testimony submitted by
deposition and affidavit. See Reynolds v. United States, 98 U. S. 145 (1879); Mattox v. United States, 156 U.
S. 237 (1895); Motes v. United States, 178 U. S. 458 (1900); Kirby v. United States, 174 U. S.
47 (1899). [ Footnote
3/15 ] It was in this context that Mr. Justice Brown, Page 399 U. S. 181 in an oft-quoted passage from Mattox v. United States, set forth as the primary objective of the constitutional guarantee,
the prevention of

															"depositions or ex parte affidavits, such as were
sometimes admitted in civil cases, being used against the prisoner
in lieu of a personal examination and cross-examination of the
witness in which the accused has an opportunity not only of testing
the recollection and sifting the conscience of the witness, but
also of compelling him to stand face to face with the jury in order
that they may look at him, and judge by his demeanor upon the stand
and the manner in which he gives his testimony whether he is worthy
of belief."

															156 U.S. at 156 U. S.
242 -243. See also Dowdell v. United
States , 221 U.S. Page 399 U. S. 182 325, 221 U. S. 330 (1911); Snyder v. Massachusetts, 291 U. S.
97 , 291 U. S. 107 (1934).

															This restricted reading of the clause cannot be defended --
taking, as it does, a metaphysical approach, one that attempts to
differentiate between affidavits, as a substitute for first-hand
testimony, and extrajudicial testimonial utterances. Indeed, the
problems with the latter are somewhat greater, and the difficulty
in establishing accurately what an extrajudicial declarant said has
sometimes been considered an infirmity of hearsay evidence. See C. McCormick, Evidence § 224, at 458 (1954).
Conceptual difficulties aside, it would seem that the early
recognition of the dying declaration as an exception to the
Confrontation Clause, Mattox v. United States, supra; Kirby v.
United States, supra; Robertson v. Baldwin, 165 U.
S. 275 (1897), proceeded on the assumption that
extrajudicial testimonial declarations were also a concern of the
Sixth Amendment. [ Footnote
3/16 ]

															Notwithstanding language that appears to equate the
Confrontation Clause with a right to cross-examine, and, by
implication, exclude hearsay, the early holdings and dicta can, I
think, only be harmonized by viewing the confrontation guarantee as
being confined to an availability rule, one that requires the
production of a witness when he is available to testify. This view
explains the recognition of the dying declaration exception, which
dispenses with any requirement of cross-examination, and the
refusal to make an exception for prior recorded statements, taken
subject to cross-examination Page 399 U. S. 183 by the accused, when the witness is still available to testify. Compare Mattox v. United States, supra, with Motes v. United
States, supra. This rationalization of the early decisions is not only
justified by logic, but also anchored in precedent. In West v.
Louisiana, 194 U. S. 258 (1904), this Court, in reviewing its early confrontation decisions,
emphasized availability as the thread that tied them together. West involved the admission into evidence at trial of
deposition testimony, taken subject to cross-examination and under
oath, where the deponent was "permanently absent from the State and
was a nonresident thereof, and . . . his attendance could not be
procured." Ibid. Referring, inter alia, to Motes, Mattox, Kirby, and Reynolds, the Court
concluded that,

															"in not one of those cases was it held that, under facts such as
[were before the Court], there would have been a violation of the
Constitution in admitting the deposition in evidence."

															194 U.S. at 194 U. S. 266 .
That the uppermost consideration was the availability of the
witness is further underscored by the West discussion of
the common law rule that admitted deposition testimony

															"upon proof being made to the satisfaction of the court that the
witness was, at the time of the trial, dead, insane, too ill ever
to be expected to attend the trial, or kept away by the connivance
of the defendant."

															194 U.S. at 194 U. S. 262 .
[ Footnote 3/17 ] Page 399 U. S. 184 II Recent decisions have, in my view, fallen into error on two
scores. As a matter of jurisprudence, I think it unsound, for
reasons I have often elaborated, see, e.g., my dissenting
opinions in Duncan v. Louisiana, 391 U.
S. 145 , 391 U. S. 171 (1968), and Baldwin v. New York, ante, p. 399 U. S. 117 , to
incorporate as such the guarantees of the Bill of Rights into the
Due Process Clause. While, in this particular instance, this would
be of little practical consequence if the Court had confined the
Sixth Amendment guarantee to an "availability" requirement, some
decisions have, unfortunately, failed to separate, even as a
federal matter, restrictions on the abuse of hearsay testimony,
part of the due process right of a reliable and trustworthy
conviction, and the right to confront an available witness. See 399
U.S. 149 fn3/20|>n. 20, infra. By incorporating into the Fourteenth Amendment its
misinterpretation of the Sixth Amendment, these decisions have, in
one blow, created the present dilemma, that of bringing about a
potential for a constitutional rule of hearsay for both state and
federal courts. However ill-advised would be the
constitutionalization of hearsay rules in federal courts, the
undesirability of imposing those brittle rules on the States is
manifest. Given the ambulatory fortunes of the hearsay doctrine,
evidenced by the disagreement among scholars over the value of
excluding hearsay and the trend toward liberalization of the
exceptions, [ Footnote 3/18 ] it
would be most unfortunate for this Page 399 U. S. 185 Court to limit the flexibility of the States and choke
experimentation in this evolving area of the law. Cf. Baldwin
v. New York, supra. [ Footnote
3/19 ] I adhere to what I consider Page 399 U. S. 186 to be the sound view expressed in Stein v. New York, 346 U. S. 156 , 346 U. S. 196 (1953): "The hearsay evidence rule, with all its subtleties,
anomalies and ramifications, [should] not be read into the
Fourteenth Amendment." What I would hold binding on the States as a
matter of due process is what I also deem the correct meaning of
the Sixth Amendment's Confrontation Clause -- that a State may not,
in a criminal case, use hearsay when the declarant is available. See West v. Louisiana, supra. [ Footnote 3/20 ] Page 399 U. S. 187 There is no reason in fairness why a State should not, as long
as it retains a traditional adversarial trial, produce a witness
and afford the accused an opportunity to cross-examine him when he
can be made available. That this principle is an essential element
of fairness is attested to not only by precedent, Motes v.
United States, supra; Barber v. Page, supra; Smith v. Illinois,
supra, but also by the traditional and present exceptions to
the hearsay rule which recognize greater flexibility for receiving
evidence when the witness is not available. Furthermore it
accommodates the interest of the State in making a case, yet
recognizes the obligation to accord the accused the fullest
opportunity to present his best defense. [ Footnote 3/21 ] For those rare cases where a conviction
occurs after a trial where no credible evidence could be said to
justify the result, there remains the broader due process
requirement that a conviction cannot be founded on no evidence. See 399
U.S. 149 fn3/20|>n. 20, supra. Page 399 U. S. 188 III Putting aside for the moment the "due process" aspect of this
case, see 399
U.S. 149 fn3/10|>n. 20, supra, it follows, in my
view, that there is no "confrontation" reason why the prosecution
should not use a witness' prior inconsistent statement for the
truth of the matters therein asserted. Here, the prosecution has
produced its witness, Porter, and made him available for trial
confrontation. That, in my judgment, perforce satisfies the Sixth
Amendment. Indeed, notwithstanding the conventional
characterization of an available witness' prior out-of-court
statements as hearsay when offered affirmatively for the truth of
the matters asserted, see Hickory v. United States, 151 U. S. 303 , 151 U. S. 309 (1894); Southern R. Co. v. Gray, 241 U.
S. 333 , 241 U. S. 337 (1916); Bridges v. Wixon, 326 U.
S. 135 (1945), this is hearsay only in a technical
sense, since the witness may be examined at the trial as to the
circumstances of memory, opportunity to observe, meaning, and
veracity. See Comment, Model Code of Evidence, supra, 399
U.S. 149 fn3/18|>n. 18. I think it fair to say that the fact
that the jury has no opportunity to reconstruct a witness' demeanor
at the time of his declaration, and the absence of oath, are minor
considerations.

															The fact that the witness, though physically available, cannot
recall either the underlying events that are the subject of an
extrajudicial statement or previous testimony or recollect the
circumstances under which the statement was given does not have
Sixth Amendment consequence. The prosecution has no less fulfilled
its obligation simply because a witness has a lapse of memory. The
witness is, in my view, available. To the extent that the witness
is, in a practical sense, unavailable for cross-examination on the
relevant facts, for reasons Page 399 U. S. 189 stated in 399 U. S. I
think confrontation is nonetheless satisfied. [ Footnote 3/22 ] IV I turn finally to the question of whether this conviction stands
on such unreliable evidence that reversal is required. Cf.
Stovall v. Denno, 388 U. S. 293 (1967); Thompson v. City of Louisville, 362 U.
S. 199 (1960). I cannot conclude that the preliminary
hearing testimony was obtained under circumstances, as such, so
unreliable that its admission requires reversal as a matter of due
process, even though it was crucial to the central issue in the
case. Compare Stovall v. Denno, supra; Simmons v. United
States, 390 U. S. 377 (1968). The statement given to Officer Wade does, however, raise
such a possibility. I accordingly would remand the case to the
California Supreme Court for consideration of that question and,
whether or not it deems the second statement too unreliable to have
been admitted, to decide whether this conviction should be reversed
under California law for want of sufficient evidence to sustain a
conviction beyond a reasonable doubt. See In re Winship, 397 U. S. 358 (1970).

															[ Footnote 3/1 ]

															The Court declines to consider the admissibility of Porter's
out-of-court declaration to Officer Wade, and remands for a
determination as to whether it was properly admissible under
California law. I consider this in 399 U. S. infra. [ Footnote 3/2 ]

															While this broad problem that lies beneath the surface of
today's case would, in my view, have been more appropriately
considered in a more conventional hearsay setting, where the maker
of extrajudicial statement is not present at trial, it has been
briefed and argued by both sides, and I reach it now
notwithstanding the pendency of No. 21, Dutton v. Evans, on our docket. Dutton was argued before us on Oct. 15,
1969, and, on Apr. 27, 1970, was set for reargument. 397 U.S. 1060.
The case will be heard at the next Term.

															[ Footnote 3/3 ]

															The easy assumption that confrontation is the right to exclude
hearsay also appears in cases involving state criminal prosecutions
where this Court, as a matter of due process, declined to hold
applicable to the States the Sixth Amendment's right to
confrontation. See, e.g., Stein v. New York, 346 U.
S. 156 (1953); but see West v. Louisiana, 194 U. S. 258 (1904).

															[ Footnote 3/4 ]

															This is not merely a case of prior decisions that may have been
incorrectly decided or rationalized. The unworkability of
constitutionalizing any aspect of the conventional hearsay rule
means what is at stake is the future of sound constitutional
development in this area. Cf. Swift & Co. v. Wickham, 382 U. S. 111 , 382 U. S. 116 (1965), where we noted the mischief of "perpetuation of an
unworkable rule." Moragne v. States Marine Lines, 398 U. S. 375 (1970); Boys Markets v. Retail Clerks, 398 U.
S. 235 (1970); my dissenting opinion in Baldwin v.
New York, ante, p. 399 U. S. 117 , and
my separate opinion in Welsh v. United States, 398 U. S. 333 , 398 U. S. 344 (1970), and my dissenting opinion in Desist v. United
States, 394 U. S. 244 , 394 U. S. 256 (1969).

															[ Footnote 3/5 ]

															The Georgia Constitution of 1877 lends some support for this
restricted reading of confrontation. See Art. I, § 1, � 5,
which provided that the accused "shall be confronted with the
witnesses testifying against him. . . ." (Emphasis added.)
The natural reading of the provision, phrased as it is, would be to
restrict the guarantee to individuals who are appearing in
court.

															[ Footnote 3/6 ]

															Massachusetts, New Hampshire, North Carolina, Maryland, and
Virginia all included in their early constitutions a confrontation
provision. See F. Heller, The Sixth Amendment 22-24
(1951). The documents are reprinted in F. Thorpe, The Federal and
State Constitutions, passim (1909). Wigmore has collected
the state provisions. 5 J. Wigmore, Evidence § 1397, at 127-130 (3d
ed.1940).

															[ Footnote 3/7 ] See 1 J. Elliot's Debates 328, 334 (1876).

															[ Footnote 3/8 ] See 1 Annals of Cong. (1789-1790). Thus, my own
research satisfies me that the prevailing view -- that the usual
primary sources and digests of the early debates contain no
informative material on the confrontation right -- is correct.
Note, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434, 1436
n. 10 (1966); Note, Preserving the Right to Confrontation -- A New
Approach to Hearsay Evidence in Criminal Trials, 113 U.Pa.L.Rev.
741, 742 (1965); Note, Confrontation, Cross-Examination, And the
Right to Prepare a Defense, 56 Geo.L.J. 939, 953 (1968). For a
review of the history of confrontation at English common law, see Pollitt, The Right of Confrontation: Its History and
Modern Dress, 8 J.Pub.L. 381 (1959).

															[ Footnote 3/9 ] See H. Stephen, "The Trial of Sir Walter Raleigh,"
Transactions of the Royal Historical Society 172, 184 (4th ser.
Vol. 2, 1919). In discussing Raleigh's trial, Stephen notes,

															"The modern reader of Raleigh's trial is struck by the fact that
he had no assistance from counsel. He likewise would not have been
allowed to call witnesses had he wished to do so. . . . [The
accused was] defended by the argument that the case against [him]
had to be completely proved. If this was done, no witnesses or
counsel on the other side need be attended to; if it was not done,
none was needed." See also Heller, supra, 399
U.S. 149 fn3/6|>n. 6, at 106-107, and the remarks of Governor
Randolph at the Virginia ratification convention reported at 3 J.
Elliot's Debates 467 (1876).

															[ Footnote 3/10 ]

															Hadley, The Reform of Criminal Procedure, 10 Proceedings of the
Academy of Political Science 39, 400-401 (1923). Hadley's brief
remarks would seem to indicate that the abuse that provoked concern
was the use of affidavit and deposition testimony.

															[ Footnote 3/11 ]

															The only support offered for this reading is the assertion that
the Framers were concerned to prevent the abuses that occurred at
the infamous treason trial of Sir Walter Raleigh. The abuses there,
however, went far beyond a conviction based on hearsay. As one
commentator has noted, the reams of deposition testimony given by
Raleigh's alleged accomplice, who turned State's evidence,
contained only innuendo, and no credible assertion of substance
sufficient to support a verdict. See Stephen, "The Trial
of Sir Walter Raleigh," supra, 399
U.S. 149 fn3/9|>n. 9. In this light, the Sixth Amendment
guarantee might well be read as establishing a basic presumption of
producing witnesses without dignifying every hearsay ruling with
constitutional significance.

															[ Footnote 3/12 ]

															Heller, supra, 399
U.S. 149 fn3/6|>n. 6, at 105, citing H. Rottschaefer,
Handbook of American Constitutional Law 796 (1939). This view is
open to question. Wigmore, for one, takes the position that several
exceptions to the hearsay rule existed as of the time the Sixth
Amendment was adopted. 5 Wigmore, Evidence § 1397, at 130.

															[ Footnote 3/13 ]

															The basis of Wigmore's assertion is that the only right to
confrontation known at common law was that enshrined in the hearsay
rule. He concludes that, in view of the seemingly absolute
prohibition on the use of hearsay declarations, it is impossible to
apply literally to the Confrontation Clause, and that the Framers
intended confrontation to mean common law hearsay principles. See 5 Wigmore, Evidence § 1397, at 130-131.

															[ Footnote 3/14 ]

															The early decisions and recent cases are replete with dicta to
the effect that confrontation is equivalent to cross-examination.
Instead of treating cases like Brookhart v. Janis, supra;
Pointer v. Texas, supra; and Douglas v. Alabama,
supra, as denials of "due process," see infra, the
Court has employed sweeping language, and said, for example,

															"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." Pointer v. Texas, 380 U.S. at 380 U. S.
406 -407. This kind of broad language, tending to equate
confrontation and cross-examination, and the holding in Bruton, have conjured the spectre of the
constitutionalization of the hearsay rule that the dissent is
apparently willing to treat with.

															It is not surprising that confrontation and hearsay have been
considered fungible. The labels were not until recently likely to
affect the result in a federal trial. See comment in the
Preliminary Draft of Proposed Rules of Evidence for the United
States District Courts and Magistrates 156 (1969). Cf. Alford
v. United States, 282 U. S. 687 (1931) (right to cross-examine not treated as a denial of
confrontation).

															The portent of the label now emerges to the fore in federal
cases, however, against the backdrop of recent developments that
accord special treatment to constitutional errors, see
Harrington v. California, 395 U. S. 250 (1969) (harmless error); Chapman v. California, 386 U. S. 18 (1967); Kaufman v. United States, 394 U.
S. 217 , 394 U. S. 226 (1969) (collateral relief), and, for the States, in the context of
incorporation, which makes every hearsay ruling a potential 28
U.S.C. § 2254 issue. An additional consequence of
constitutionalizing the hearsay rules would be to put them beyond
the reach of Congress. But see Katzenbach v. Morgan, 384 U. S. 641 (1966).

															[ Footnote 3/15 ]

															Only Kirby did not, strictly speaking, involve the use
of deposition testimony. In Kirby's case, the Government sought to
introduce a judgment of conviction obtained against three
perpetrators of a theft in order to prove that property found in
Kirby's possession was, in fact, stolen. In Reynolds, the
Court held that an accused cannot complain about the introduction
of prior recorded testimony when the witness' absence is procured
by the defense. In Mattox, the Court, analogizing to the
exception to the hearsay rule for dying declarations, held
admissible prior recorded testimony taken under oath and subjected
to cross-examination where the witness had died since the first
trial. In Motes, the Court declined to countenance
testimony taken subject to cross-examination where it appeared the
Government might have produced the witness.

															Most later cases have also involved written testimony. See,
e.g., Barber v. Page, supra; Pointer v. Texas, supra; Douglas v.
Alabama, supra, (confession); Stein v. New York, 346 U. S. 156 , 346 U. S. 194 (1953) (confession); West v. Louisiana, 194 U.
S. 258 (1904); cf. Greene v. McElroy, 360 U. S. 474 (1959). Other problems treated under the rubric of confrontation
have included, inter alia, the exclusion of the accused
from his trial, In re Oliver, 333 U.
S. 257 (1948); Brookhart v. Janis, supra; cf. Snyder
v. Massachusetts, 291 U. S. 97 (1934)
(a viewing); Parker v. Gladden, 385 U.
S. 363 (1966) (improper remarks by bailiff); Turner
v. Louisiana, 379 U. S. 466 (1965).

															That, historically, the primary concern was the possibility of
trial by affidavit may be evidenced by several early state
constitutional provisions that specifically made exceptions to
confrontation by providing for use of depositions when the witness
is unavailable. See, e.g., California Const., 1879, Art.
I, § 13 ("The Legislature shall have power to provide for the
taking, in the presence of the party accused and his counsel, of
depositions of witnesses in criminal cases, other than cases of
homicide when there is reason to believe that the witness, from
inability or other cause, will not attend at the trial."); Colorado
Const., 1876, Art. II, § 16; Montana Cont., 1889, Art. III, §§ 16,
17; Ohio Const., 1851, Art. I, § 10; Texas Const., 1876, Art. I, §
10, as amended 1918.

															[ Footnote 3/16 ]

															Interestingly, in Hopt v. Utah, 110
U. S. 674 (1884) the Court, speaking through the same
Justice who wrote Kirby, in holding that it was error to
permit a surgeon to testify that he had examined the body of the
alleged victim of the charged homicide when the surgeon's knowledge
as to the identity of the deceased came from a third party, relied
only on hearsay principles, and made no allusion to the
Confrontation Clause.

															[ Footnote 3/17 ]

															That the critical element is availability cannot be doubted. The West opinion does not emphasize the opportunity to
cross-examine at the time of taking the depositions, and, as
already remarked, that would appear to be of secondary concern,
given the recognition in Mattox of the dying declaration
exception. West, moreover, perforce stands for the
proposition that confrontation is indifferent to any limitations on
the nature of cross-examination at a preliminary hearing that
underlie the dissent in this case.

															In view of the extended discussion of federal precedents and the
express rejection of West's contentions thereunder, for present
purposes, it is of no consequence that the case involved a state
criminal prosecution and that the Court declined to hold the Sixth
Amendment applicable as such.

															[ Footnote 3/18 ]

															While the importance of the right to cross-examine is not to be
minimized, see 5 Wigmore, supra, § 1367, the
desirability of excluding otherwise relevant evidence simply
because it has not been tested by cross-examination has been
frequently questioned. See generally C. McCormick,
Evidence §§ 224, 302-305, at 459, 628-634 (1954); ALI Model Code of
Evidence Rules 502, 503, and Comment, at 231-232 (1942);
Preliminary Draft of Proposed Rules of Evidence for the United
States District Courts and Magistrates, Rule 8-03, at 173 (1969);
Uniform Rules of Evidence, Rule 63 (liberalized exceptions). See also James, The Role of Hearsay in a Rational Scheme
of Evidence, 34 Ill.L.Rev. 788 (1940); Chadbourn, Bentham and The
Hearsay Rule -- A Benthamic View of Rule 63(4)(c) of the Uniform
Rules of Evidence, 75 Harv.L.Rev. 932, 942-951 (1962) (Uniform
Rules too restricted); McCormick, Hearsay, 10 Rutgers L.Rev. 620,
630 (1956) (commenting on Uniform Rules); cf. Quick,
Evidence, 6 Wayne L.Rev. 163, 168 (1959) (apparently critical of
the trend toward admissibility). Judges, too, have disagreed on the
desirability of excluding hearsay, compare Chief Justice
Marshall's view set forth in Queen v.
Hepburn , 7 Cranch 290 (1813), and that of
Justice Story in Ellicott v.
Pearl , 10 Pet. 412, 35 U. S. 436 (1836), with that of Judge Learned Hand set forth in his
lecture to the Association of the Bar of the City of New York, The
Deficiencies of Trials to Reach the Heart of the Matter, 3 Lectures
on Legal Topics, 1921-1922 P. 89 (1926).

															[ Footnote 3/19 ] See Report of the New Jersey Supreme Court Committee on
Evidence (1963). The potential for suffocating creative thinking is
suggested by the commentary on the Uniform Rules of Evidence by the
California Law Revision Commission. Prior to Pointer in
1962, the commission noted that, despite the federal rule, it was
free, consistent with due process, to consider and adopt Uniform
Rule 63(3)(b)(ii), providing for use of testimony from a former
trial when there was an identity of issues and reason to believe
there would have been adequate cross-examination and the declarant
is unavailable. The commission recommended adoption of Rule
63(3)(b)(ii). See Tentative Recommendation and a Study
Relating to the Uniform Rules of Evidence (1962), in 4 California
Law Revision Commission: Reports, Recommendations and Studies
454-457 (1963). The provision was omitted from the new evidence
code with a comment that a defendant in a criminal prosecution
should not be made to rely on another individual's
cross-examination. Evidence Code with Official Comments 1250
(California Law Revision Commission 1965). While this Court's
decision in Pointer was apparently not responsible for the
decision to omit this provision, since the final commission report
was submitted in January, 1965, prior to Pointer, it is
clear that, were hearsay constitutionalized, California could not
even have considered this innovation.

															[ Footnote 3/20 ]

															This is not to say that the right to cross-examination is not an
element of due process. Alford v. United States, 282 U. S. 687 (1931); In re Oliver, 333 U. S. 257 (1948); Snyder v. Massachusetts, 291 U. S.
97 (1934); Smith v. Illinois, 390 U.
S. 129 (1968). Due process does not permit a conviction
based on no evidence, Thompson v. City of Louisville, 362 U. S. 199 (1960); Nixon v. Herndon, 273 U.
S. 536 (1927), or on evidence so unreliable and
untrustworthy that it may be said that the accused had been tried
by a kangaroo court. Cf. In re Oliver, supra; Turner v.
Louisiana, 379 U. S. 466 (1965).

															In Stovall v. Denno, 388 U. S. 293 (1967), and Simmons v. United States, 390 U.
S. 377 (1968), the underlying principle was refined. The
Court there recognized that evidence of identification -- always a
critical issue in a criminal trial -- should not be received if the
circumstances of a pretrial confrontation were so infected by
suggestiveness as to give rise to an irreparable likelihood of
misidentification. By the same token, I would not permit a
conviction to stand where the critical issues at trial were
supported only by ex parte testimony not subjected to
cross-examination, and not found to be reliable by the trial judge. Cf. United States v. Kearney, 136 U.S.App.D.C. 328, 420
F.2d 170 (1969). It will, of course, be the unusual situation where
the prosecution's entire case is built upon hearsay testimony of an
unavailable witness. In such circumstance, the defendant would be
entitled to a hearing on the reliability of the testimony. Cf. ALI, Model Code of Evidence; United States v.
Kearney, supra. Due process also requires that the defense be
given ample opportunity to alert the jury to the pitfalls of
accepting hearsay at face value, and the defendant would, of
course, upon request be entitled to cautionary instructions. Cf. § 6.17, Manual on Jury Instructions, 33 F.R.D. 601
(missing witnesses). On the basis of this approach, I would stand
by my concurrence in the result in Pointer v. Texas,
supra, both because the out-of-court statement formed the bulk
of the prosecutor's case and also because there was no showing that
the witness could not have been made available for
cross-examination. See also Brookhart v. Janis, 384 U. S. 1 (1966); Barber v. Page, 390 U. S. 719 (1968). The result in Douglas v. Alabama, to which I also
still adhere, can be rationalized under this test, since there, the
inadmissible confession "constituted the only direct evidence" that
petitioner had committed the murder. 380 U.S. at 380 U. S. 419 .
An additional factor would move me to stand by Douglas. It
was a case of prosecutorial misconduct. By placing the witness on
the stand and reading in the confession, the prosecutor, in effect,
increased the reliability of the confession in the jury's eyes in
view of the witness' apparent acquiescence as opposed to
repudiation.

															[ Footnote 3/21 ] Cf. Napue v. Illinois, 360 U.
S. 264 (1959); Mooney v. Holohan, 294 U.
S. 103 (1935).

															[ Footnote 3/22 ]

															The lengths to which the prosecution must go to produce a
witness before it may offer evidence of an extrajudicial
declaration is a question of reasonableness. Barber v. Page,
supra; cf. Mullane v. Central Hanover Trust Co., 339 U.
S. 306 (1950). A good faith effort is, of course,
necessary, and added expense or inconvenience is no excuse. It
should also be open to the accused to request a continuance if the
unavailability is only temporary. Cf. Peterson v. United
States, 344 F.2d 419, 425 (C.A. 5th Cir.1965).

															MR. JUSTICE BRENNAN, dissenting.

															Respondent was convicted of violating California Health and
Safety Code § 11532, which prohibits furnishing narcotics to a
minor. The only issue at his trial was Page 399 U. S. 190 whether he had in fact, furnished Porter, a minor, with
marihuana. On the direct testimony, it does not appear that he
could have been constitutionally convicted, for it seems that there
would have been insufficient evidence to sustain a finding of
guilt. The State presented three witnesses to prove respondent's
guilt: Porter and Officers Wade and Dominguez. As the Court states,
Porter testified at trial that

															"he was uncertain how he obtained the marihuana, primarily
because he was at the time on 'acid' (LSD), which he had taken 20
minutes before respondent phoned. Porter claimed that he was unable
to remember the events that followed the phone call, and that the
drugs he had taken prevented his distinguishing fact from
fantasy." Ante at 399 U. S. 152 .
Officer Wade had no personal knowledge of the facts of the alleged
offense; he was able only to report the content of an extrajudicial
statement that Porter had made to him. Officer Dominguez testified
about an incident wholly separate from the alleged offense; his
testimony was consistent with the defense account of the facts.
[ Footnote 4/1 ]

															Thus, the evidence on which respondent was found guilty
consisted of two pretrial statements by Porter. The first was the
account given Officer Wade. It was unsworn, and not subject to
defense cross-examination. Porter's demeanor while making the
statement was not observed by the trial factfinder. The statement
was made under unreliable circumstances -- it was taken four days
after Porter's arrest for selling marihuana to an undercover agent,
and while he was still in custody. [ Footnote 4/2 ] No Page 399 U. S. 191 written transcript of the statement was introduced at trial.
Officer Wade recounted it simply as he remembered Porter's words.
[ Footnote 4/3 ] The second statement
was given by Porter during respondent's preliminary hearing. It was
sworn and subject to cross-examination. Defense counsel, however,
did not engage in a searching examination. [ Footnote 4/4 ] Again, Porter's demeanor while he made
this statement was unobserved by the trial factfinder. The
statement was put before this factfinder, of course, when, at
various points during Porter's direct examination at trial, the
prosecutor read excerpts from his preliminary hearing
testimony.

															Accordingly, the facts of this case present two questions
regarding the application of California Evidence Code § 1235:
first, whether the Confrontation Clause permits a witness'
extrajudicial statement to be admitted at trial as substantive
evidence when the witness claims to be unable to remember the
events with which his prior statement dealt, and, second, whether
the clause permits a witness' preliminary hearing statement, made
under oath and subject to cross-examination, to be introduced at
trial as substantive evidence when the witness claims to be unable
to remember the events with which the statement dealt. In my view,
neither statement can be introduced without unconstitutionally
restricting the right of the accused to challenge incriminating
evidence in the presence of the factfinder who will determine his
guilt or innocence. Page 399 U. S. 192 I The Court points out that

															"the particular vice that gave impetus to the confrontation
claim was the practice of trying defendants on 'evidence,' which
consisted solely of ex parte affidavits or depositions
secured by the examining magistrates, thus denying the defendant
the opportunity to challenge his accuser in a face-to-face
encounter in front of the trier of fact." Ante at 399 U. S. 156 .
A face-to-face encounter, of course, is important not so that the
accused can view at trial his accuser's visage, but so that he can
directly challenge the accuser's testimony before the factfinder. See 5 J. Wigmore, Evidence §§ 1364, 1365 (3d ed.1940). We
made this clear in Mattox v. United States, 156 U.
S. 237 , 156 U. S.
242 -243 (1895), where we stressed the necessity of

															"a personal examination and cross-examination of the witness in
which the accused has an opportunity not only of testing the
recollection and sifting the conscience of the witness, but of
compelling him to stand face to face with the jury in order that
they may look at him, and judge by his demeanor upon the stand and
the manner in which he gives his testimony whether he is worthy of
belief."

															There is no way to test the recollection and sift the conscience
of a witness regarding the facts of an alleged offense if he is
unwilling or unable to be questioned about them; [ Footnote 4/5 ] defense counsel cannot probe the
story of a silent witness and attempt to expose facts that qualify
or discredit it. The impetus to truth inherent in the oath sworn by
the witness, in the penalty for perjury, and, in Page 399 U. S. 193 the serious purpose of the courtroom have no effect on him so
far as the facts of the alleged offense are concerned. Nor,
obviously, can the factfinder view his demeanor while he recounts
the facts. If the witness claims that he is unable to remember the
pertinent events, it is true that this assertion can be challenged,
and that, in making and defending it, the witness will be affected
by his oath, the penalty for perjury, and the courtroom atmosphere.
It is equally true that the trial factfinder can observe and weigh
the witness' demeanor as he makes and defends such a claim. But a
decision by the factfinder that the witness is lying sheds no
direct light on the accuracy of any pretrial statement made by him;
that statement remains without the support or discredit that can
come only from the probing of its factual basis while the witness
stands face to face with the accused and the factfinder. If the
factfinder decides that the witness is honestly unable to remember
the events in question, that conclusion may or may not directly
guide the factfinder in assessing the reliability of the pretrial
statement. If, for example, the witness were unable to remember the
pertinent facts because he was under the influence of drugs at the
time they occurred, the factfinder might reasonably disregard any
pretrial account of these events given by the witness.

															This Court has already explicitly held in Douglas v.
Alabama, 380 U. S. 415 , 380 U. S.
419 -420 (1965), that the Confrontation Clause forbids
the substantive use at trial of a prior extrajudicial statement
when the declarant is present at trial but unwilling to testify
about the events with which his prior statement dealt. In Douglas, the prosecution introduced the alleged confession
of the accused's supposed accomplice, one Loyd, who was unwilling
to testify about the pertinent events for fear of
self-incrimination. We held that

															"petitioner's inability to cross-examine Loyd as to the alleged
confession plainly denied Page 399 U. S. 194 him the right of cross-examination secured by the Confrontation
Clause. Loyd's alleged statement that the petitioner fired the
shotgun constituted the only direct evidence that he had done so. .
. . [E]ffective 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."

															For purposes of the Confrontation Clause, there is no
significant difference between a witness who fails to testify about
an alleged offense because he is unwilling to do so and a witness
whose silence is compelled by an inability to remember. Both are
called to the stand to testify. The jury may view the demeanor of
each as he indicates why he will not discuss the crucial events.
But in neither instance are the purposes of the Confrontation
Clause satisfied, because the witness cannot be questioned at trial
concerning the pertinent facts. In both cases, if a pretrial
statement is introduced for the truth of the facts asserted, the
witness becomes simply a conduit for the admission of stale
evidence, whose reliability can never be tested before the trial
factfinder by cross-examination of the declarant about the
operative events, and by observation of his demeanor as he
testifies about them.

															Unlike the Court, I see no reason to leave undecided the
inadmissibility of Porter's statements to Officer Wade. We have
before us the transcript of Porter's trial testimony. He could not
remember the operative events. Whether he feigned loss of memory is
irrelevant to respondent's confrontation claim. Under Douglas, his statement to Officer Wade must be excluded as
substantive evidence. [ Footnote
4/6 ] Page 399 U. S. 195 II The question remains whether the fact that a pretrial statement
was obtained at a preliminary hearing, under oath and subject to
cross-examination, distinguishes that statement for confrontation
purposes from an extrajudicial statement. I thought that our
decision in Barber v. Page, 390 U.
S. 719 (1968), resolved this issue. In Barber we stated that confrontation at a preliminary hearing cannot
compensate for the absence of confrontation at trial, because the
nature and objectives of the two proceedings differ significantly.
In that case, the prosecution argued that the accused had waived
his right to cross-examination at the preliminary hearing. Though
we rejected that argument, to put beyond doubt the necessity for
confrontation at trial, we stated:

															"Moreover, we would reach the same result on the facts of this
case had petitioner's counsel actually cross-examined [the witness]
at the preliminary hearing. . . . The right to confrontation is
basically a trial right. It includes both the opportunity to
cross-examine and the occasion for the jury to weigh the demeanor
of the witness. A preliminary hearing is ordinarily a much less
searching exploration into the merits of a case than a trial,
simply because its function is the more limited one of determining
whether probable cause exists to hold the accused for trial." Id. at 390 U. S. 725 .
[ Footnote 4/7 ] Page 399 U. S. 196 We applied Barber retroactively in Berger v.
California, 393 U. S. 314 (1969), a case in which defense counsel did have an opportunity to
cross-examine the witness at the preliminary hearing. We held,
nonetheless, that "[c]learly, petitioner's inability to
cross-examine . . . at trial may have had a significant effect on
the integrity of the factfinding process.'" Id. at 393 U. S.
315 . Preliminary hearings in California are not atypical in their
nature and objectives:

															"In most California criminal prosecutions, the preliminary
examination is conducted as a rather perfunctory uncontested
proceeding with only one likely denouement -- an order holding the
defendant for trial. Only television lawyers customarily demolish
the prosecution in the magistrate's court. The prosecution need
show only 'probable cause,' a burden vastly lighter than proof
beyond a reasonable doubt." People v. Gibbs, 255 Cal. App.
2d 739 , 743-744, 63 Cal. Rptr. 471, 475 (1967).

															It follows that the purposes of the Confrontation Clause cannot
be satisfied by a face-to-face encounter at Page 399 U. S. 197 the preliminary hearing. Cross-examination at the hearing pales
beside that which takes place at trial. This is so for a number of
reasons. First, as noted, the objective of the hearing is to
establish the presence or absence of probable cause, not guilt or
innocence proved beyond a reasonable doubt; thus, if evidence
suffices to establish probable cause, defense counsel has little
reason at the preliminary hearing to show that it does not
conclusively establish guilt -- or, at least, he had little reason
before today's decision. Second, neither defense nor prosecution is
eager before trial to disclose its case by extensive examination at
the preliminary hearing; thorough questioning of a prosecution
witness by defense counsel may easily amount to a grant of gratis discovery to the State. Third, the schedules of
neither court nor counsel can easily accommodate lengthy
preliminary hearings. Fourth, even were the judge and lawyers not
concerned that the proceedings be brief, the defense and
prosecution have generally had inadequate time before the hearing
to prepare for extensive examination. Finally, though counsel were
to engage in extensive questioning, a part of its force would never
reach the trial factfinder, who would know the examination only
second hand. As the California Supreme Court stated:

															"[L]ost in a cold reading of the preliminary transcript is the
more subtle, yet undeniable, effect of counsel's rhetorical style,
his pauses for emphasis and his variations in tone, as well as his
personal rapport with the jurors, as he pursues his
cross-examination. For example, . . . while the lawyer"

															"must keep control of himself . . . , [t]his does not mean that
the cross-examiner never should fight with a witness, raise his
voice, or become angry. Forensic indignation, whether expressed
physically or verbally, may produce good results in special
circumstances."

															"In addition, counsel may well conduct Page 399 U. S. 198 his cross-examination in a different manner before a committing
magistrate than before a trial court or jury. Thus, . . . counsel
must always temper his cross-examination to the individual jurors,
using their reactions as a guide to the most effective line of
questioning."

															"The cross-examiner must remember that he is a performer, and
the jurors are his audience. No good performer ignores his
audience, and all performances are conducted for the purpose of
favorably impressing the audience. . . ."

															"We conclude that experience demonstrates the essentiality of
truly contemporaneous cross-examination."

															70 Cal. 2d at 662-663, 451 P.2d at 427.

															If cross-examination at the preliminary hearing rarely
approximates that at trial, observation by the trial factfinder of
the witness' demeanor as he gives his prior testimony is virtually
nonexistent. Unless the committing magistrate is also the trial
factfinder, the demeanor purpose of the Confrontation Clause is
wholly negated by substituting confrontation at the preliminary
hearing for confrontation at trial. And yet, in the words of the
California court,

															"[i]t is because demeanor -- attitude and manner -- is a
significant factor in weighing testimonial evidence that it is
axiomatic the trier of fact, before whom the witness testified and
was cross-examined . . . , is the sole judge of the credibility of
a witness and of the weight to be given his testimony." Id. at 662, 451 P.2d at 427. No such determination of
credibility is possible when the witness comes before the trial
factfinder by the reading of a cold transcript.

															It appears, then, that, in terms of the purposes of the
Confrontation Clause, an equation of face-to-face encounter at the
preliminary hearing with confrontation at trial must rest largely
on the fact that the witness testified Page 399 U. S. 199 at the hearing under oath, subject to the penalty for perjury,
and in a courtroom atmosphere. These factors are not insignificant,
but, by themselves, they fall far short of satisfying the demands
of constitutional confrontation. Moreover, the atmosphere and
stakes are different in the two proceedings. In the hurried,
somewhat pro forma context of the average preliminary
hearing, a witness may be more careless in his testimony than in
the more measured and searching atmosphere of a trial. Similarly, a
man willing to perjure himself when the consequences are simply
that the accused will stand trial may be less willing to do so when
his lies may condemn the defendant to loss of liberty. In short, it
ignores reality to assume that the purposes of the Confrontation
Clause are met during a preliminary hearing. Accordingly, to
introduce preliminary hearing testimony for the truth of the facts
asserted, when the witness is in court and either unwilling or
unable to testify regarding the pertinent events, denies the
accused his Sixth Amendment right to grapple effectively with
incriminating evidence.

															The Court's ruling, moreover, may have unsettling effects on the
nature and objectives of future preliminary hearings. The
California Court defined the problem:

															"Were we to equate preliminary and trial testimony, one
practical result might be that the preliminary hearing, designed to
afford an efficient and speedy means of determining the narrow
question of probable cause, would tend to develop into a full-scale
trial. This would invite thorough and lengthy cross-examination,
with the consequent necessity of delays and continuances to bring
in rebuttal and impeachment witnesses, to gather all available
evidence, and to assure generally that nothing remained for later
challenge. In time, this result would prostitute the accepted
purpose of preliminary Page 399 U. S. 200 hearings, and might place an intolerable burden on the time and
resources of the courts of first instance."

															70 Cal. 2d at 664, 451 P.2d at 428.

															Conscientious defense counsel, aware that today's decision has
increased the likelihood of the use of preliminary hearing
testimony at trial, may well wish to conduct a full-scale,
unlimited cross-examination of prosecution witnesses at the
hearing. We held in Coleman v. Alabama, ante, p. 399 U. S. 1 , that an
accused has a right to assistance of counsel during a preliminary
hearing. And we have made clear that

															"it is a denial of the accused's constitutional right to a fair
trial to force him to trial with such expedition as to deprive him
of the effective aid and assistance of counsel." White v. Ragen, 324 U. S. 760 , 324 U. S. 764 (194). In light of today's decision, may defense counsel be denied
requests for delay that are reasonably necessary to enable him to
conduct a thorough examination at the preliminary hearing? What
limits, if any, may still be placed on the defense's use of the
preliminary hearing as a discovery device to extract information
from the prosecution that is reasonably necessary not to a
determination of probable cause, but to a rigorous examination of
government witnesses? Do the requisites of "effective assistance of
counsel" require defense counsel to conduct such an examination?
[ Footnote 4/8 ] Page 399 U. S. 201 The Court relies heavily on the traditional practice of
admitting the prior testimony of a witness who is physically
unavailable at trial. It finds no ground for distinguishing between
the pretrial declarant who fails to testify at trial because he is
not physically present and the pretrial declarant who, though
present at trial, fails to testify because he is unwilling or
unable to do so. The Court reasons that the "necessity" for the
introduction of either declarant's prior statement is "the State's need' to introduce relevant evidence," and that the testimony's
"reliability" rests "on the circumstances under which it was given -- circumstances
that remain unaffected regardless of whether the witness is present
or absent at the later trial." Ante at 399 U. S. 167 n. 16. I disagree.

															The State, obviously, does need to introduce relevant evidence.
But the "necessity" that justifies the admission of pretrial
statements is not the prosecution's need to convict, but the
factfinder's need to be presented with reliable evidence to aid its
determination of guilt or innocence. Whether a witness' assertions
are reliable ordinarily has little or no bearing on their
admissibility, for they are subject to the corrective influences of
his demeanor and cross-examination. If, however, there is no
possibility that his assertions can be so tested at trial, then
their reliability becomes an important factor in deciding whether
to permit their presentation to the factfinder. When a probability
exists that incriminating pretrial testimony is unreliable, its
admission, absent confrontation, will prejudicially distort the
factfinding process.

															The reliability of pretrial testimony, in turn, is not
determined simply by the circumstances under which it Page 399 U. S. 202 was given. It is also influenced by subsequent developments. If,
for example, prior testimony is later disavowed by the declarant in
an extrajudicial but convincing statement, it would be unrealistic
to argue at a later trial, from which the declarant was physically
absent, that the reliability of his prior testimony was unaffected
by the intervening event.

															The subsequent developments under consideration here are (1)
failure to testify at trial because of physical unavailability and
(2) failure to testify because of unwillingness to do so or
inability to remember. In my view, these developments have very
different implications for the reliability of prior testimony.
Physical unavailability is generally a neutral factor; in most
instances, it does not cast doubt on the witness' earlier
assertions. Inability to remember the pertinent events, on the
other hand, or unwillingness to testify about them, whether because
of feigned loss of memory or fear of self-incrimination, does cast
such doubt. Honest inability to remember at trial raises serious
question about clarity of memory at the time of the pretrial
statement. The deceit inherent in feigned loss of memory lessens
confidence in the probity of prior assertions. And fear of
self-incrimination at trial suggests that the witness may have
shaped prior testimony so as to avoid dangerous consequences for
himself. Reliability cannot be assumed simply because a prior
statement was made at a preliminary hearing.

															In sum, I find that Porter's real or pretended lapse of memory
about the pertinent events casts serious doubt upon the reliability
of his preliminary hearing testimony. It is clear that, so long as
a witness, such as Porter, cannot or will not testify about these
events at trial, the accused remains unable to challenge
effectively that witness' prior assertions about them. The probable
unreliability of the prior testimony, coupled with the
impossibility Page 399 U. S. 203 of its examination during trial, denies the accused his right to
probe and attempt to discredit incriminating evidence. Accordingly,
I would hold California Evidence Code § 1235 in violation of the
Confrontation Clause to the extent that it permits the substantive
use at trial of prior statements, whether extrajudicial or
testimonial, when the declarant is present at trial but unable or
unwilling to be questioned about the events with which the prior
statements dealt. I would therefore affirm the reversal of
respondent's conviction.

															[ Footnote 4/1 ] See People v. Green, 70 Cal. 2d
654 , 657-658, 451 P.2d 422, 424 (1969).

															[ Footnote 4/2 ]

															Porter declared under oath on May. 12, 1967, that,

															"when I was arrested and was in custody, the police kept telling
me that they knew it was JOHN GREEN I was involved with, and that,
unless I implicated him, that they would see that I was out of
circulation for a long time. . . ."

															[ Footnote 4/3 ] Cf. Goldberg v. Kelly, 397 U.
S. 254 , 397 U. S. 269 (1970), where the Court stated that

															"[t]he second-hand presentation to the decisionmaker by the
caseworker has its own deficiencies; since the caseworker usually
gathers the facts upon which the charge of ineligibility rests, the
presentation of the recipients side of the controversy cannot
safely be left to him."

															[ Footnote 4/4 ]

															No question, for example, was asked Porter by either the defense
or prosecution as to whether he was under the influence of drugs at
the time of the alleged offense.

															[ Footnote 4/5 ]

															If, on the other hand, the witness is willing and able to
testify at trial about the operative events, the demands of the
Confrontation Clause may be met, even though the witness
contradicts his pretrial assertions. I see no need on the facts
presented here, however, to resolve this issue.

															[ Footnote 4/6 ]

															The fact that, in appropriate circumstances, such a statement
may be admitted to impeach a witness is not as anomalous as the
Court suggests, ante at 399 U. S. 164 .
If, for example, Porter's pretrial statements had been admitted at
respondent's trial solely for impeachment purposes, they would not
have provided substantive proof of his guilt, and, as noted, there
would then very likely have been insufficient evidence to sustain
his conviction.

															[ Footnote 4/7 ]

															The California Supreme Court in the present case discussed in
more detail the distinctions between a preliminary hearing and
trial, stating that

															"the purpose of a preliminary hearing is not a full exploration
of the merits of a cause or of the testimony of the witnesses. It
is designed and adapted solely to answer the far narrower
preliminary question of whether probable cause exists for a
subsequent trial. The judge in preliminary proceedings is not
required to be convinced of the defendant's guilt 'beyond a
reasonable doubt,' but need only look for reasonable credibility in
the charge against him. A fortiori, a witness' testimony,
though the only evidence adduced, need not be convincing or
credible beyond a reasonable doubt, and cross-examination which
would surely impeach a witness at trial would not preclude a
finding of probable cause at the preliminary stage. Even given the
opportunity . . . , neither prosecution nor defense is generally
willing or able to fire all its guns at this early stage of the
proceedings, for considerations both of time and efficacy. . . .
Indeed, it is seldom that either party has had time for
investigation to obtain possession of adequate information to
pursue in depth direct or cross-examination."

															70 Cal. 2d at 663, 451 P.2d at 428. See also Virgin Islands
v. Aquino, 378 F.2d 540, 549 (C.A.3d Cir.1967).

															[ Footnote 4/8 ]

															Beyond these problems, today's holding raises another practical
difficulty: how extensive must cross-examination at the preliminary
hearing be before constitutional confrontation is deemed to have
occurred? Is the mere opportunity for face-to-face encounter
sufficient? Perhaps so. The Court states that "respondent had every
opportunity to cross-examine Porter as to his statement" at the
hearing. Ante at 399 U. S. 165 .
Does that mean that, if defense counsel fails to take advantage of
the opportunity, that the accused can subsequently be convicted at
trial on the basis of wholly untested evidence? If more than an
unexercised chance to cross-examine is required, how thorough and
effective must the questioning be before it satisfies the
Confrontation Clause? Is it significant, for example, that, in the
present case, neither the defense nor prosecution explored the most
elemental fact about Porter's testimony -- the possibility that he
was under the influence of drugs at the time of the alleged
offense?