LOCATION: 17th Judicial Circuit Green County Alabama Jury Commission
DOCKET NO.: 387
DECIDED BY: Burger Court (1970-1971)
CITATION: 399 US 149 (1970)
ARGUED: Apr 20, 1970
DECIDED: Jun 23, 1970
Facts of the case
Media for California v. Green
Audio Transcription for Oral Argument - April 20, 1970 in California v. Green
Warren E. Burger:
Today's calendar for argument is Number 387, California against John Anthony Green.
Mr. James, you may proceed whenever you're ready.
William E. James:
Mr. Chief Justice -- thank you.
Mr. Chief Justice, may it please the Court.
This matter is before this Court on the petition of the state of California containing that the Supreme Court of the state of California improperly and incorrectly interpreted the rulings of this Court on the question of the confrontation clause of the Sixth Amendment and that pursuant to that misinterpretation of the confrontation clause that the Supreme Court of California held unconstitutional a state statute that would have permitted the admission for the truth of the matters asserted prior inconsistent statements of a witness who was present at trial and subject to cross examination.
It was only a few weeks back I believe that this Court had occasion to view another aspect of the confrontation clause and in Illinois versus Allen held there that a defendant could deprive himself of the right by his conduct to be present in Court.
The Court emphasized that one of the rights included in the confrontation clause of the Sixth Amendment was the right to be present in Court.
How else could you confront your accusers and this Court has been consistent in holding that the Sixth Amendment right is a right at trial, a right to conduct cross examination of the accusers, of the witnesses against the particular defendant.
In the early case -- I should say in the first case where this Court held that the confrontation clause was obligatory on that states Pointer versus Texas, this Court said as has been pointed out a major reason underlying the constitutional right of confrontation is to give a defendant charged with crime an opportunity to cross examine the witnesses against him.
This Court followed that with the case of Barber versus Page emphasizing that the right to confrontation is basically a trial right.
It includes both the opportunity to cross examine and the occasion for the jury to weigh the demeanor of the witness.
In a companion case to Pointer, Douglas versus Alabama, this Court used these terms.
Our cases construing the clause referring to the confrontation clause hold that a primary interest secured by it is a right of cross examination.
An adequate opportunity for cross examination may satisfy the clause even in the absence of physical confrontation.
In that particular case, a defendant Douglas had a co-defendant who was separately tried, Loyd.
Loyd was convicted and took an appeal and at the trial of Douglas, the prosecution called Loyd and Loyd since he had an appeal pending decided to exercise his privilege against self incrimination and refused to answer questions so the prosecutor commenced to read his confession which implicated Douglas to him and the prosecutor asked the witness Loyd at each sentence if he had made this statement and he refused to answer on the ground of self incrimination and this Court held that the defendant Douglas had been denied the effective right of confrontation because he had no opportunity to cross examine the witness who was exercising the privilege against self-incrimination and in Bruton, a more recent case discussing the aspects of confrontation, this Court said in reference to the Douglas case, we held that Douglas' inability to cross examine Loyd denied Douglas the right of cross examination secured by the confrontation clause.
We noted that effective confrontation of Loyd was possible only if Loyd affirmed the statement as his, however, Loyd did not do so but relied on his privilege to refuse to answer.
Now, the California legislature in 1965 adopted the evidence code of California, incorporating in that code, the other provisions contained relating to evidence in the code of civil procedures and other codes and abandoned by the adoption of that code, the so-called orthodox view as to impeachment, the use of impeaching prior inconsistent statements and adopted what has been referred to as the academic view, that is that prior inconsistent statements of a witness, present in Court and subject to cross examination would be admissible as substance of evidence and they enacted evidence code Section 1235 which is the statute involved in this case and made it effective in California on January 1, 1967 and the factual basis upon which this case arises involved --
Before you proceed to the facts to this case General James, is there any available evidence showing the legislative history of this amendment in the California code relating to evidence, any -- is there anything --
William E. James:
That you know off that shows why the state legislature did this?
William E. James:
Yes Your Honor.
The code commissioners when the evidence code was being considered by the legislature made comments and the comments of the code commissioners are contained in the code.
I believe they were coded in our petition for certiorari and also in our petition for -- in our brief filed for the petitioner herein, the code commissioner's notes were also referred to in the notes of the committee for the adoption of the rules of evidence for the federal courts and magistrates and there contained in --
These notes indicate what?
That this was in response to some sort of a felt need or was just as the academic rule and these commissioners were academic people and they thought they got to put on that rule, what was it?
William E. James:
Well, it was a conclusion of the commissioners that this was the federal rule of evidence and that there was no reason why these statements shouldn't be used as had been suggested by Wigmore in his latest work has been expressed by McCormick in his work on evidence.
I think in our petitioner's opening brief at pages 36 and 37 where we are discussing the reasons by the advisory committee for the proposed rules of evidence for the federal courts and magistrates, they adopted a portion of the code commissioner's notes and has contained there, it generally states that Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely non-existent and it goes in continuance and it concludes by citing McCormick in his code and evidence and then the advisory committee of the federal rules, a committee for the adoption of the federal rules states that advisory committee finds this view more convincing than those expressed in People versus Johnson which was a predecessor of the Green case.
Moreover, the requirement that the statement be inconsistent with the testimony given assures a thorough explanation of both versions of the witnesses on the stand and bars, any general and indiscriminate use of previously prepared statements.
The commissioner's notes are contained in a number of volumes which preceded the action by the state legislature in adopting the evidence code.