Nelson v. O’Neil

PETITIONER:Nelson
RESPONDENT:O’Neil
LOCATION:Edward Coolidge’s Home

DOCKET NO.: 336
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 402 US 622 (1971)
ARGUED: Mar 24, 1971
DECIDED: Jun 01, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – March 24, 1971 in Nelson v. O’Neil

Warren E. Burger:

— next in number 336, Nelson against O’Neil.

Mr. Kirk you may proceed whenever you’re ready.

Charles R. B. Kirk:

Thank you, Mr. Chief Justice and may it please the Court.

The central question in this case is Bruton there.

Was the respondent O’Neil, given the opportunity to cross-examine a co-defendant Runnels, who in a confession implicated O’Neil or to perhaps phrase it as the Court of Appeal did, was there an opportunity for effective cross-examination.

I think a central to the determination of this question is examination of the purpose of confrontation, and is this Court recently said in Dutton v. Evans and I quote, ?The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth determining process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truth of the prior statement.?

Now before looking to the options available, when the confessing co-defendant takes that stand as Mr. Runnels did in this case, let’s see what this case does not involve.

This case does not involve a Pointer type issue where the witness never takes a stand and is never cross-examined, never available.

This is not a Douglas type issue where the co-defendant takes the stand, but by invoking the privilege against self-incrimination removes himself from any possibility of either direct or cross-examination.

So, when the Court of —

Did Runnels on any ground attempted to remain silent and refused to testify?

Charles R. B. Kirk:

Mr. Runnels?

Yes.

Charles R. B. Kirk:

No, Your Honor.

He voluntarily testified.

He was on the stand at his own request in his own defense.

Warren E. Burger:

Respondent’s counsel simply passed up his opportunity to cross-examine —

Charles R. B. Kirk:

That is my viewpoint, Your Honor.

He had the full opportunity, he could have done so if he wanted, but he did not.

William J. Brennan, Jr.:

Well they were opposed to putting it out.

Charles R. B. Kirk:

Yes, they were indeed Mr. Justice Brennan.

William J. Brennan, Jr.:

Why would the respondent’s counsel want to cross-examine?

Charles R. B. Kirk:

Well, this is part of my point.

I think that —

William J. Brennan, Jr.:

Why wouldn’t ? what wouldn’t he want to —

Charles R. B. Kirk:

Well, —

William J. Brennan, Jr.:

They were — both had passed without —

That’s right.

This is precisely my point.

I think that the respondent confuses the technique of cross-examination.

William J. Brennan, Jr.:

What’s the purpose of cross-examination?

The technique is assuredly to make the fellow develop some kind of conflict, if you want to or prove inconsistencies, if you want to.

But if that man is on your side, if that witness is on your side and fully supporting your defense —

Ordinarily, a witness testifying in a way which helps the State against you, obviously you want to cross-examine him on that, testifying in a way which was to help state or it helps you —

Charles R. B. Kirk:

That’s part of the issue here.

Byron R. White:

Well, I suppose get him to tell the story again?

Charles R. B. Kirk:

You certainly can.

This was —

Byron R. White:

Having the story in your paper again?

It may — you may call it a cross-examination, but you still get to tell precisely the same story, you get — no I didn’t make the statement.

Charles R. B. Kirk:

This is what —

Mr. Justice White, this is precisely what happened when the state prosecutor cross-examined Mr. Runnels.

He went back and said, ?Well, didn’t you talk to Officer Traphagen??

And Mr. Runnels says, Sure, I did.

Didn’t Officer Traphagen asked you a few did this and so?

Sure, he did and, didn’t you say you did?

No, I didn’t.

I never — I — once I found out that I had a right to attorney, I calmed up and didn’t say anything further.

And the — then the prosecutor said, well, didn’t you really do this, didn’t you really commit this crime and he said, no I didn’t do any such thing.

This was — these options where all available to Mr. O’Neil’s counsel.

He complains that perhaps, he couldn’t bring out the fact or that he couldn’t bring up the fact that maybe O’Neil was have some kind of motive, have some kind of dislike for — maybe Runnels have some kind of dislike for O’Neil because O’Neil had sort of told on him as Officer Traphagen had told Mr. Runnels.

But, he could have asked Runnels that he could have said do you dislike O’Neil?

Runnels would have said, ?No.?

Would your dislike for O’Neil could have caused you to make this statement?

I didn’t make any statement at all.

I like O’Neil, we didn’t do it.

This was available, but it wasn’t done.

Now, so I think, I think that that you’ve really pointed out, perhaps the ultimate question, the better question here.

Why should O’Neil attack the statement at all?

Cross-examination is a tool, but you don’t use tools unwisely.

Charles R. B. Kirk:

You don’t use tools if you don’t need to and they didn’t need to.

Now, I, myself have wondered how the Court of Appeals could say there wasn’t any effective cross-examination in this case or wasn’t any possibility?

The Court of Appeals didn’t say and Mr. O’Neil has proffered a few explanations in his brief before this Court, and we touched on some of them with my answers.

Namely, he says that, ?You can only have effective cross-examination if the witness — if you can bring out qualifications in his testimony of other things.?

Again, this is confusing the technique with the purpose of cross-examination.

I mentioned again, that there’s not point to probe Runnels’ anger.

He could have asked Runnels if he was angry at him, but he didn’t.

He says you can’t probe the statement for omissions or errors or inconsistencies.

Well, you don’t want to.

This statement — this statement, what more could he want?

Then what Runnels — then what Runnels gave him on the stand.

As the dissenting judge below pointed out, ?the best O’Neil could hope for would be for Runnels to testify that the confession was false and that O’Neil did not commit the crimes.?

Here, Runnels gave O’Neil all that and more.

He denied that he confessed and said at O’Neil was not at the scene of the crimes.

Byron R. White:

I gather that Runnels did admit, having a conversation with the detective?

Charles R. B. Kirk:

He did admit —

Byron R. White:

And didn’t — and just said he just disagreed is what the content was of the conversation.

Charles R. B. Kirk:

Yes, he did Mr. Justice White.

And not only that, but he said —

Byron R. White:

And the circumstances of the conversation were available for investigation.

I mean, under what circumstances did you have this conversation.

Was there any violence or threats, or promises or anything else?

Charles R. B. Kirk:

This was available for expiration.

In fact, this is one of the points that was brought out in the closing arguments.

I remember they brought in one witness who said, ?Well, I talked to officer Traphagen and he said that he was going to give Runnels five to 10 years, if the told me something and one year to life if he didn’t, so I told Runnels and then Runnels confessed.

This kind of thing was all available for expiration, but it wasn’t done.

Warren E. Burger:

Let me ask you this question Mr. Kirk.

Suppose the State have not call Runnels at all.

Charles R. B. Kirk:

They didn’t.

Warren E. Burger:

Let me get the setting now of the cross-examination.

Warren E. Burger:

Suppose the State had called him, excuse me, suppose the State had called him and he simply relayed that he had conversations, but denied the content as it was.

What would the situation be in your view?

Charles R. B. Kirk:

You mean, where he admits having made the statement?

Warren E. Burger:

No.

Admits having had a conversation with the policeman but denies the policeman’s version of it?

Charles R. B. Kirk:

Oh!

This is what he did in this case Your Honor.

Warren E. Burger:

But on who’s call?

Charles R. B. Kirk:

This is on the defendant on — he was appearing as his own witness and at the same time as a witness for Mr. O’Neil.

It makes no difference as far as I can see, who calls him with this particular — this is the result of his testimony.

Warren E. Burger:

But it makes the difference in terms of the sequence of his testimony, and whether he is being cross-examined or not, doesn’t it?

Charles R. B. Kirk:

Well, it depends insofar as who is cross examining him, that’s indeed true.

In fact, although here, the cross-examination came by his co-defendant who was being tried at same time, so he still have cross examination by a defendant as opposed to cross examination by the prosecutor.

Warren E. Burger:

But if the defendant himself had called him, could he have said any — could he have given any testimony more favorable to the respondent here than he gave as it appears in this record now?

Charles R. B. Kirk:

I don’t think so.

There are certainly alternatives.

I mean, he could have said well, I said that but I was beaten.

Warren E. Burger:

And that’s one of the reasons why as Mr. Justice Brennan suggested that there was no occasion to cross-examine him.

Charles R. B. Kirk:

Because he had the perfect, the most favorable result from his direct examination came out.

I didn’t say it and we weren’t there.

This was the ultimate kind of response you can get from a witness as to these particular facts.

This is exactly what O’Neil got.

There was no reason to cross-examine him.

Now —

Byron R. White:

Did I ask you — this was pre-Bruton I take it?

Charles R. B. Kirk:

This was Your Honor.

Byron R. White:

And that if this co-defendant had never taken the stand, there would have been a Bruton there?

Charles R. B. Kirk:

Yes, there —

Byron R. White:

Yes, but he did take the stand?

Charles R. B. Kirk:

He did take the stand.

Byron R. White:

It’s — there was availability to cross-examination.

If the trial were held today, I suppose the prosecution after Runnels had taken the stand, he is available for cross-examination could — well, the evidence was inadmissible then admissible against the defendant, wasn’t it on the merits?

Charles R. B. Kirk:

On the merits, yes.

Byron R. White:

I mean, the limiting instruction was no longer necessary?

Charles R. B. Kirk:

Today, it would not be.

I think either under the decisions of this Court in Green, suggesting that this is available, a substantive of evidence, certainly under California law or in Harris v. New York where it could be used at least for the purposes of impeachment to — against Mr. Runnels testifying in behalf of O’Neil.

This certainly militates against any claim of harm which assuming for purposes of argument you would even reach.

I don’t have a great deal to add, but I would like to briefly touch upon the last argument which the respondent has categorized as a pro forma argument.

This is in relation to the concept of exhaustion.

Perhaps, it’s a pro forma to respond and it certainly is not pro forma to us as a state.

It’s a rather short argument because there is not really much to say.

When — the point is this.

When new principles are announced by this Court, some Court must examine, when it’s a retroactive principle, it must examine all cases.

This is a new remedy, Bruton, was a new remedy under Roberts.

It was a new decision.

It was a remedy presently available, and in the interest of comity which this Court has just recently emphasized in Harris v. Younger and Boyle v. Landry and other cases, in the interest of comity and in the interest of preserving the dual nature of federalism, it would seemed that it would be better to refer cases such as this back to the state court for an initial look.

The point is this.

Now, I agree that you could argue that well, you already in federal Court, why go back to the state court?

That’s not really a question.

Here the trial transcript had not even been submitted to the federal court at the time we argued exhaustion.

Some Court must examine this transcript.

This one is I would say relatively short by some standards of trials in our State.

But I think that it would be — it would further the concept of federalism and certainly reduce the burden on the federal judiciary, if exhaustion were utilized, when a new decision creates.

It — what is in effect a new remedy and makes it presently available.

Warren E. Burger:

You’re suggesting that’s what the district judge, federal district judge should have done —

Charles R. B. Kirk:

Should have done with this case, and the — unless there are any further questions from the Court, I’ll submit.

Thank you.

Warren E. Burger:

Thank you Mr. Kirk.

Mr. Campbell?

James S. Campbell:

Mr. Chief Justice and may it please the Court.

James S. Campbell:

This case involves evidence of an oral, unrecorded statement reportedly made by a suspect during custodial interrogation, a statement that accuses another person of participation in a crime, a statement reported in court by an investigating officer who conducted the interrogation.

This is unreliable evidence.

It’s one of the most unreliable forms of evidence known to the law.

Yet, it is also —

Warren E. Burger:

I’m not sure I have that clear.

Which is the unreliable evidence?

James S. Campbell:

The unreliable evidence is the evidence of the statement, this alleged statement.

Warren E. Burger:

Do you — you’re going to develop for us, why that’s unreliable —

James S. Campbell:

Yes I will Mr. Chief Justice.

This evidence in addition to being unreliable is also devastating.

It’s powerfully incriminating evidence as this Court described it in Bruton.

This unreliability and this devastating impact are the two most important factors to keep in mind in determining whether O’Neil had in this case an adequate opportunity to cross-examine his accuserd.

In other kinds of cases, involving other kinds of evidence, dying declarations, spontaneous declarations, documentary evidence of one kind or another, business records, it may well be that something less than the fullest and most effective cross-examination will suffice to satisfy the requirements of the Confrontation Clause.

But if there’s any evidence as to which a defendant is entitled to have the true and full measure of cross-examination.

It is the highly unreliable and powerfully incriminating evidence which went before the jury that convicted O’Neil.

Now, O’Neil did not have a full and effective opportunity to cross-examine all the witnesses against him, for the alleged maker of this devastating out of court accusation, flatly denied having made the statement.

Fully effective cross-examination of an out of court accusation of this type, can occur only when the witness to whom the statement is attributed, affirms the statement in Court, so that the accused can probe its truthfulness by all the many lines of attack that we include under the head of cross-examination.

This principle is established in the case at bar as govern by the decisions of this Court in Douglas against Alabama and Bruton against the United States.

What is the need just before Runnels had testified that yes I did make the statement (Inaudible) — how do you resolve all that?

James S. Campbell:

If he admitted the genuineness of the statement.

That is brought at (Inaudible) O’Neil brought it for at the cross-examine?

James S. Campbell:

But he denied the truthfulness of the —

No but that is anything that is anybody’s fault except the witness who testified?

James S. Campbell:

I’m just merely trying to get clear on the hypothetical situation.

I assume you’re posing the case where the witness admits making —

If Mr. Runnels got on the stand in his own defense and said, ?Yes, I made the statement.

(Inaudible) it is attributed to me by the police officer.?

James S. Campbell:

Well, then there are two further facts which may change the result.

Thus, he then say, ?I deny now, what I said then.

What I said was not true? or does he say, ?and furthermore what I said was true.?

Well, he just having made the statement then he exposes himself to cross-examination by counsel for O’Niel?

James S. Campbell:

Well, to the extent that he admits making the statement, but denies the content of it.

Now, he says it’s genuine but that it wasn’t true, then you have the situation which — a situation which the United States is amicus curiae in Green said there would be effective cross-examination in this case.

The United States in Green took the position that where there was a flat denial of the statement as to its genuineness and its truthfulness, there can be no effective cross-examination, that’s our case here.

The — a further case is the one where the witness admits the genuineness of the statement but denies its truthfulness.

That is somewhat more like that Green case, but still not too Green.

The third situation is the one where the witness affirms making the statement, and he affirms the truthfulness of what’s contained in there.

Then, he essentially incorporates and reproduces the accusations in Court and at that point, the only — which it again, not our case, the only remaining argument against the admission of the statement under those circumstances would simply be a straight due process argument that despite this fact, the evidence is still so unreliable that the traditional exclusion of evidence of this sort is required as a constitutional matter.

Warren E. Burger:

Would you agree that ordinarily, the purpose of cross-examination is to persuade the jury either one that the witness is not telling the truth or two that his memory is faulty or that for some other reason his testimony should not be accepted?

Does that generally represent cross-examination?

James S. Campbell:

Well, the purposes of cross — I would hesitate Mr. Chief Justice to try to encapsulate here for you all the purposes of cross-examination as this —

Warren E. Burger:

While those three of the purposes that ordinarily —

James S. Campbell:

Yes, these are certainly among the purposes, one is to attack the credibility of the witness through the various devices which are encompassed under the head —

Warren E. Burger:

Now, if a witness is called, gives direct examination which just has no real impact on any on the particular case at all, just not a bit harmful.

It doesn’t help; it doesn’t hurt just largely irrelevant.

Does a wise lawyer usually not elect simply to let that witness alone?

James S. Campbell:

That’s correct, that’s correct.

He would probably not cross-examine —

Warren E. Burger:

Now the defendant’s counsel here, respondent’s counsel at trial made that kind of a decision, a tactical decision here, didn’t he?

James S. Campbell:

Yes, he did not, O’Neil’s counsel did not cross-examine Runnels.

Warren E. Burger:

Well, then why would you think he made that decision?

James S. Campbell:

I think he made that decision because he realized he could not fully effectively cross-examine the really damaging evidence in this case by addressing questions to Runnels.

The most that he could hope to do would be to elicit from Runnels a cumulative repetition of the denial of the statement which Runnels had already made on examination by his own counsel.

The notion that this denial —

Warren E. Burger:

How was Runnels’ testimony damaging?

The denial which Runnels offered in Court was of sum, but very, very limited assistance to the defense, it was unnecessary part of the defense.

Obviously, the co-defendant Runnels would had to deny making a statement if is not going to plead not guilty, a statement which incriminates him as well as his co-defendant, but the point — the evidence that were concerned about, the evidence — the accusation which has not been cross-examined and which can’t be cross-examined by addressing question to Runnels is this out of Court in custody accusation that is reported, this alleged accusation, it’s reported in court through the testimony of the police officer.

Isn’t a proper way to attack to that by cross examining the officer when he testifies about it?

James S. Campbell:

No.

This —

Warren E. Burger:

Is it — was it permitted?

James S. Campbell:

Yes.

There was an opportunity to cross-examine the officer.

Warren E. Burger:

Was he cross-examined?

James S. Campbell:

He was not questioned.

He was not cross-examined by O’Neil’s counsel.

Warren E. Burger:

You say, that was a denial of cross-examination?

James S. Campbell:

No, I do not.

I simply say that that opportunity to cross-examine the officer and the opportunity to address further questions to Runnels denying the statement, do not amount to a full and effective opportunity to cross-examine the most damaging evidence in this case.

This out of Court accusation is particularly incriminating and particularly unreliable kind of evidence.

Thurgood Marshall:

Mr. Campbell, you emphasize this particularly unreliable and i have difficulty putting that together with the fact that you didn’t cross-examine the person who I think your charging with giving an unreliable report.

James S. Campbell:

No.

This witness, Runnels, stated that he never made such a statement.

He denied having made the statement.

Thurgood Marshall:

Well —

James S. Campbell:

He could not be effectively cross-examined on this statement that was attributed to him by another.

Thurgood Marshall:

Couldn’t you probe the officer as to whether he did or did not?

James S. Campbell:

There are some lines of questioning which could be addressed to the officer and there were some lines of questioning which were addressed to the officer by Runnels’ counsel and that is no substitute.

That is no —

Thurgood Marshall:

Well, he is not here.

O’Neil is here, right?

James S. Campbell:

Correct.

Thurgood Marshall:

O’Neil asked the officer, for example, did he make the statement, he didn’t ask him any thing?

James S. Campbell:

That’s correct.

But surely, it would not be —

Thurgood Marshall:

Why?

James S. Campbell:

Because he did not feel that he had anything to gain by attempting to question that officer.

Thurgood Marshall:

So, that was his tactical, refusal to exercise his rights.

James S. Campbell:

But if that had been the case, if that had been —

Thurgood Marshall:

Are you complaining about that?

James S. Campbell:

No, I’m not complaining about that.

But if that had been sufficient cross-examination of this out of Court accusation, both Bruton and Douglas would have had to been decided otherwise.

In Douglas, there were law officers on the stand —

Thurgood Marshall:

I’ll be (Inaudible) this man had the chance to cross-examine, the two people involved in this (Inaudible), only two, right?

James S. Campbell:

That’s correct.

Thurgood Marshall:

The man is allegedly made a statement and the officer who heard the statement.

Two people are the only two people, they could get to whether or not this was a correct statement or not, am I right?

James S. Campbell:

That’s in the context this trial, that’s correct.

Thurgood Marshall:

Right and he didn’t cross-examine either one?

James S. Campbell:

That’s right.

He did not exercise his opportunity to address questions to either of those witnesses.

The point is that that opportunity which he had, which he admittedly had is not an opportunity to cross-examine his accusers on the accusations made to them.

It’s not a fully effective opportunity to do that.

Thurgood Marshall:

How could he accurately cross-examine his accusers?

James S. Campbell:

He can accurately cross-examine his accusers if his accusers come in to open court and give their accusations in open court, either directly at that point or by affirming the accusation and incorporating it in their testimony, pledging their credibility to witness standing behind it in the Court.

That is — that is confrontation and that is cross-examination.

And I urge again, that this requirement of full and effective cross-examination is one that is appropriate to evidence of this kind.

And if I may return for just a moment to the nature of this evidence, in the recent case here of Dutton against Evans, the plurality opinion was able to identify a number of indicia of reliability which attached to the spontaneous remark that was there held to be properly admitted, despite the fact that the person who made it was not called as a witness at all.

In this case by contrast, one can identify numerous indicia of unreliability that attached to this statement.

This is accomplice testimony.

The accomplice was under arrest.

He was facing prosecution.

He made a self-serving.

He allegedly made a self-serving, plain-shifting statement.

He was in the coercive atmosphere of custody.

He — they — a common interrogation strategy was used against him, giving him a motive to accuse his fellow.

The statement was reported in the Court by an interested party, namely the investigating officer who allegedly received the statement.

There was no other officer present.

There was no other person present, and the statement, the statement is oral and unrecorded.

Warren E. Burger:

Well, you are now attacking the officer’s testimony or Runnels testimony?

James S. Campbell:

I am here pointing out the indicia of unreliability that is attached to the evidence which was the decisive evidence in this case.

Warren E. Burger:

Well —

James S. Campbell:

And this evidence —

Warren E. Burger:

Runnels or the officer?

James S. Campbell:

This is the officer’s evidence of a statement attributed to Runnels.

It is his evidence of a statement by Runnels.

That evidence, that evidence has this indicia of unreliability attached to it.

Warren E. Burger:

You’re now arguing that the officer’s testimony should not be — should not have been admitted at all, aren’t you?

James S. Campbell:

Yes.

I’m saying the evidence which were complaining about here is this evidence of the statement which is the officer’s evidence.

Warren E. Burger:

But you don’t argue that he — there was any denial of opportunity to cross-examine that officer as effectively and as long as he wanted?

James S. Campbell:

No, and to the extent that he is not reporting statements of this kind, then he can be cross-examined.

The argument you really are making now is the confrontation argument of due process?

James S. Campbell:

I think it has a close affinity to due process arguments.

However, I do —

William J. Brennan, Jr.:

The confrontation, that’s obvious —

James S. Campbell:

No, I —

William J. Brennan, Jr.:

The confrontation both of the officer and the Runnels.

James S. Campbell:

Only in the sense that they were physically present in the Court.

There was not confrontation in the sense —

(Inaudible) that it was open if the counsel, the O’Neil’s counsel to try the case anyway he wanted this for — (Inaudible) by asking appropriate questions?

This is —

James S. Campbell:

No.

He —

He can’t have anymore complication in that case?

James S. Campbell:

No, he could have.

He couldn’t had and effective opportunity to cross-examine the accusation against him.

At what stage, the time at the police station or something?

James S. Campbell:

If the statement had originally been given at a time when it was subject to full and effective cross-examination as the statements were in Green that would have sufficed.

William J. Brennan, Jr.:

There were others take this to Green?

James S. Campbell:

The statement the officer waived that the Court didn’t reached that statement.

The statement that the Court held, could have been improperly admitted at the trial.

It was the —

Byron R. White:

Didn’t Green hold that a prior statement is admitted and the witness testifies, and he’s making the statement but denied the truth of the statement, gives a different version in the Court the he gave before.

James S. Campbell:

No.

Green —

Byron R. White:

Does that dispose of that issue?

James S. Campbell:

No.

Green — in Green, the witness conceded giving the testimony at the preliminary hearing, and he further insisted in Court that the testimony that he gave was the truth, as he then believed it.

And he further insisted at the time of the trial that he couldn’t — he was now telling the truth when he said he really couldn’t remember what happened.

But Green is a case that is quite different from this.

This is a flat denial that any statement was made, it’s genuineness as to (Inaudible) than its truthfulness is denied.

Byron R. White:

Wholly aside from Green, let’s take the situation where the witness does say yes, I made the statement but I deny that it was true.

And I now give a different version of the events.

Would your argument then say — would your position then be that the prior statement is inadmissible?

James S. Campbell:

My position on that would be that it is not this case, there is a further opportunity.

We come closer to full and effective cross-examination in that case.

Byron R. White:

Well, what would be your position on this Mr. Campbell?

James S. Campbell:

Well, I —

Byron R. White:

Under confrontation?

James S. Campbell:

Under confrontation, given this kind of statement.

I would be inclined to say that that cannot come in under those circumstances.

Byron R. White:

Either —

James S. Campbell:

Because —

Byron R. White:

Whereas he says I made the statement but then I deny its truth?

James S. Campbell:

That’s right and if we’re talking about this kind of statement.

If we’re talking about oral unrecorded statements given in custody, reported to police officers by accomplices with the motive to incriminate others that we have here, but it is this kind of evidence, I would take that —

Byron R. White:

Well, it seems to me that Green at least, you call it victim, if you want to settle that kind of a case I just gave you.

James S. Campbell:

Well, but Green was — Green involved — if Green would have to — some of the discussion in Green would have to more close limited to the facts if the position that I’ve just urged were to be held to be still open, that’s correct.

However, there was in that case a very different kind of statement.

James S. Campbell:

It was in principally involved.

Byron R. White:

In terms of confrontation, what real difference do you see between the case I just gave you where he admits making statement, but now denies its truth and where he denies having made the statement at all?

When you — now on cross-examination you can ask him whether the facts that the officer claims he related are true or not.

I mean, you can not only ask him whether he made those statements, but you can say are those facts true, which is precisely what you would ask if he admitted making the proper statement?

James S. Campbell:

This gets very precisely to the point that was urged by petitioner here that his denial is that best thing that can hoped for on cross-examination.

That is simply isn’t true.

Runnels, for example in this case, Runnels self interested denial that he made the statement, whether it’s true, either way, is far less persuasive to the jury than many of the results that cross-examination might have achieved.

For example, by showing that the statement was motivated by anger that it was full of errors and inconsistencies, Runnels denial really carries no more weight in the jury’s eyes than he is not guilty plea.

He has to deny the statement and the denial is no substitute for cross-examination.

Byron R. White:

But you certainly want the jury to believe but he now says, don’t you?

James S. Campbell:

You certainly do.

Byron R. White:

Yes.

James S. Campbell:

You certainly do.

You hope that it will, but that does not substitute for cross-examination.

It does not substitute for what you can get in terms of an effective probing of an accusation that’s made in Court by an accuser who is there in Court.

Warren E. Burger:

But how could you be any better off than the you were here, how could you be any better off?

James S. Campbell:

If one where to have an accuser in Court and to subject him to a probing cross-examination —

Warren E. Burger:

Is Runnels an accuser?

James S. Campbell:

According to the police officer, he is.

Warren E. Burger:

Well, but when he is sitting on the stand —

James S. Campbell:

He is not an accuser then.

He is one of the defendants.

He is —

Warren E. Burger:

Then, what are we talking about?

James S. Campbell:

He stands — he stands at that point in the dock, accused side by side with the defendant, and he can’t — if the accuser can’t be cross-examine by addressing questions to Runnels.

Finally —

Thurgood Marshall:

You are saying that if the man denies the statement, it’s inadmissible?

James S. Campbell:

That’s correct.

Thurgood Marshall:

What authority do you have for that?

James S. Campbell:

Pardon?

Thurgood Marshall:

What authority do you have for that?

James S. Campbell:

I have the rationale of Douglas against Alabama and Bruton against the United States.

Thurgood Marshall:

Rationale?

James S. Campbell:

The holding, the holding.

Thurgood Marshall:

I don’t think you heard my question correctly that any statement if the man denies, it can’t be admitted.

You don’t want to say that?

James S. Campbell:

No.

I want to bring this case back to the kind of statement and the kind of evidence we’re talking about here.

We’re talking about a classical form of unreliable, devastating accusation.

That’s the kind of evidence —

Thurgood Marshall:

Stage of this case, how could you get a probing, to use your word that you wanted, how under the sun?

James S. Campbell:

You can get the probing if the witness who makes the accusation testifies —

Thurgood Marshall:

This — in the case this, the witness is made the accusation, the testimony is in.

Now once that’s there, how could O’Neil probe?

James S. Campbell:

He can’t.

Thurgood Marshall:

So, you really saying the statement should not have been admitted.

James S. Campbell:

That’s right.

That’s right.

Thurgood Marshall:

Here’s the truth in the case, once he has said that, I didn’t make that statement, the State had nothing that it could do about that.

James S. Campbell:

They should — that’s right.

Thurgood Marshall:

There’s something with his right up, cross-examination and confrontation.

James S. Campbell:

Well, if I may, the procedure that should be followed in cases like this is the procedure that Mr. Justice White outlined in his dissent in Bruton and the one that the American Bar Association project and (Inaudible) the standards for criminal justice has recommended.

Warren E. Burger:

Did the American Bar report say that was a constitutional requirement or merely a good idea to how to handle the problem?

James S. Campbell:

I think that the discussion indicates there’s a — is a constitutional problem.

Warren E. Burger:

Very well Mr. Campbell.

Charles R. B. Kirk:

Just a very few brief comment if I may Mr. Chief Justice.

Warren E. Burger:

You have a few minutes left.

Charles R. B. Kirk:

I would like to bring out something I believe is a misunderstanding of the record on the part of Mr. Campbell.

Warren E. Burger:

Thank you, Mr. Kirk.