380 U.S. 400 (1965), 577, Pointer v. Texas

Docket Nº:577.
Citation:380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923
Opinion Judge:Mr. BLACK, Justice.
Party Name:Bob Granville POINTER, Petitioner, v. STATE OF TEXAS.
Attorney:[85 S.Ct. 1066]Orville A. Harlan, Houston, Tex., for petitioner. Gilbert J. Pena, Laredo, Tex., for respondent.
Judge Panel:Mr. Justice HARLAN, concurring in the result. Mr. Justice STEWART, concurring in the result. Mr. Justice GOLDBERG, concurring.
Case Date:April 05, 1965
Court:United States Supreme Court

Page 400

380 U.S. 400 (1965)

85 S.Ct. 1065, 13 L.Ed.2d 923

Bob Granville POINTER, Petitioner,



No. 577.

United States Supreme Court

April 5, 1965

Argued March 15, 1965.


The defendant was convicted of robbery in the Criminal District Court, Harris County, Texas, and he appealed. The Court of Criminal Appeals of Texas, 375 S.W.2d 293, affirmed. Certiorari was granted. The Supreme Court, Mr. Justice Black, held that the Sixth Amendment's guarantee of right of an accused to confront the witnesses against him is a fundamental right and is made obligatory on the states by the Fourteenth Amendment. It was further held that the use in Texas criminal case of transcript of witness' testimony at preliminary hearing denied the defendant his Sixth Amendment right to confront and to cross-examine by counsel the witnesses against him, where he had not been represented by counsel at the preliminary hearing.


Petitioner was arrested and brought before a state judge for preliminary hearing on a robbery charge. The complaining witness testified but petitioner, who had no counsel, did not cross-examine. Petitioner was later indicted and tried. The witness had moved to another State, and the transcript of his testimony at the hearing was introduced over petitioner's objections that he was denied the right of confrontation. He was convicted and the highest state court affirmed.


1. The right granted to an accused by the Sixth Amendment to confront the witnesses against him, which includes the right of cross-examination, is a fundamental right essential to a fair trial and is made obligatory on the States by the Fourteenth Amendment. Pp. 403-406.

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

375 S.W.2d 293, reversed and remanded.

[85 S.Ct. 1066]Orville A. Harlan, Houston, Tex., for petitioner.

Gilbert J. Pena, Laredo, Tex., for respondent.


Mr. BLACK, Justice.

The Sixth Amendment provides in part that:

‘ In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * * and to have the Assistance of Counsel for his defence.’

Page 401

Two years ago in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, we held that the Fourteenth Amendment makes the Sixth Amendment's guarantee of right to counsel obligatory upon the States. The question we find necessary to decide in this case is whether the Amendment's guarantee of a defendant's right ‘ to be confronted with the witnesses against him,’ which has been held to include the right to cross-examine those witnesses, is also made applicable to the States by the Fourteenth Amendment.

The petitioner Pointer and one Dillard were arrested in Texas and taken before a state judge for a preliminary hearing (in Texas called the ‘ examining trial’ ) on a charge of having robbed Kenneth W. Phillips of $375 ‘ by assault, or violence, or by putting in fear of life or bodily injury,’ in violation of Texas Penal Code Art. 1408. At this hearing an Assistant District Attorney conducted the prosecution and examined witnesses, but neither of the defendants, both of whom were laymen, had a lawyer. Phillips as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint. Apparently Dillard tried to cross-examine Phillips but Pointer did not, although Pointer was said to have tried to cross-examine some other witnesses at the hearing. Petitioner was subsequently indicted on a charge of having committed the robbery. Some time before the trial was held, Phillips moved to California. After putting in evidence to show that [85 S.Ct. 1067] Phillips had moved and did not intent to return to Texas, the State at the trial offered the transcript of Phillips' testimony given at the preliminary hearing as evidence against petitioner. Petitioner's counsel immediately objected to introduction of the transcript, stating, ‘ Your Honor, we will object to that, as it is a denial of the confrontment of the witnesses against the Defendant.’

Page 402

Similar objections were repeatedly made by petitioner's counsel but were overruled by the trial judge, apparently in part because, as the judge viewed it, petitioner had been present at the preliminary hearing and therefore had been ‘ accorded the opportunity of cross examining the witnesses there against him.’ The Texas Court of Criminal Appeals, the highest state court to which the case could be taken, affirmed petitioner's conviction, rejecting his contention that use of the transcript to convict him denied him rights guaranteed by the Sixth and Fourteenth Amendments. 375 S.W.2d 293. We granted certiorari to consider the important constitutional question the case involves. 379 U.S. 815, 85 S.Ct. 88, 13 L.Ed.2d 28.

In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra. In making that argument petitioner relies mainly on White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, in which this Court reversed a conviction based in part upon evidence that the defendant has pleaded guilty to the crime at a preliminary hearing where he was without counsel. Since the preliminary hearing there, as in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel. But the State informs us that at a Texas preliminary hearing such as is involved here, pleas of guilty or not guilty are not accepted and that the judge decides only whether the accused should be bound over to the grand jury and if so whether he should be admitted to bail. Because of these significant differences in the procedures of the respective States, we cannot say that the White case is necessarily controlling

Page 403

as to the right to counsel. Whether there might be other circumstances making this Texas preliminary hearing so critical to the defendant as to call for appointment of counsel at that stage we need not decide on this record and that question we reserve. In this case the objections and arguments in the trial court as well as the arguments in the Court of Criminal Appeals and before us make it clear that petitioner's objection is based not so much on the fact that he had no lawyer when Phillips made his statement at the preliminary hearing, as on the fact that use of the transcript of that statement at the trial denied petitioner any opportunity to have the benefit of counsel's cross-examination of the principal witness against him. It is that latter question which we decide here.


The Sixth Amendment is a part of what is called our Bill of Rights. In Gideon v. Wainwright, supra, in which this Court held that the Sixth Amendment's right to the assistance of counsel is obligatory upon the States, we did so on the ground that ‘ a provision of the Bill of Rights which is ‘ fundamental and essential to a fair trial’ is made obligatory upon the States by the Fourteenth Amendment.' 372 U.S., at 342, 83 S.Ct., at 795. And last Term in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, in holding that the Fifth Amendment's guarantee against self-incrimination was made applicable to the [85 S.Ct. 1068] States by the Fourteenth, we reiterated the holding of Gideon that the Sixth Amendment's right-to-counsel guarantee is " a fundamental right, essential to a fair trial," and ‘ thus was made obligatory on the States by the Fourteenth Amendment.’ 378 U.S., at 6, 84 S.Ct., at 1492. See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. We hold today that the Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.

Page 404

It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. See, e.g., 5 Wigmore, Evidence s 1367 (3d ed. 1940). The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution. Moreover, the decisions of this Court and other courts[*] throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases. This Court in Kirby v. United States, 174 U.S. 47, 55, 56, 19 S.Ct. 574, 577, 43 L.Ed. 890, referred to the right of confrontation as ‘ (o)ne of the fundamental guaranties of life and liberty,’ and ‘ a right long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the constitution of the United States and in the constitutions of most, if not of all, the states composing the Union.’ Mr. Justice Stone, writing for the Court in Alford v. United...

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