399 U.S. 149 (1970), 387, State of California v. Green

Docket Nº:387.
Citation:399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489
Opinion Judge:Mr. WHITE, Justice.
Party Name:State of CALIFORNIA, Petitioner, v. John Anthony GREEN.
Attorney:William E. James, Los Angeles, Cal., for petitioner. Solicitor Gen. Erwin Griswold for the United States, as amicus curiae, by special leave of Court. E. Barrett Prettyman, Jr., Washington, D.C., for respondent.
Judge Panel:Mr. Chief Justice Burger and Mr. Justice Harlan concurred and filed opinions; Mr. Justice Brennan dissented and filed opinion. Mr. Justice MARSHALL took no part Mr. Justice BLACKMUN took no part Mr. Chief Justice BURGER, concurring. Mr. Justice HARLAN, concurring. Mr. Justice BRENNAN, dissenting.
Case Date:June 23, 1970
Court:United States Supreme Court

Page 149

399 U.S. 149 (1970)

90 S.Ct. 1930, 26 L.Ed.2d 489

State of CALIFORNIA, Petitioner,


John Anthony GREEN.

No. 387.

United States Supreme Court

June 23, 1970

Argued April 20, 1970.

Mr. Chief Justice Burger and Mr. Justice Harlan concurred and filed opinions; Mr. Justice Brennan dissented and filed opinion.

For opinion after remand see 92 Cal.Rptr., 479 P.2d 998.

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[90 S.Ct. 1931] William E. James, Los Angeles, Cal., for petitioner.

Solicitor Gen. Erwin Griswold for the United States, as amicus curiae, by special leave of Court.

E. Barrett Prettyman, Jr., Washington, D.C., for respondent.


Mr. WHITE, Justice.

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.’ 1 In People v. Johnson, 68 Cal. 2d 646, 68 Cal.Rptr. 599, 441 P. 2d 111 (1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693 (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the California Supreme Court held that prior statements of a witness that were not subject to cross-examination when originally made, could not be introduced under this section to prove the charges against a defendant without violating the defendant's right of confrontation guaranteed by the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

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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.


In January 1967, one Melvin Porter, a 16-year-old minor, was arrested for selling marihauna 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

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stand.’ People v. Green, 70 Cal.2d 654, 657, 75 Cal.Rptr. 782, 783, 451 P.2d 422, 423 (1969). He testified that respondent [90 S.Ct. 1932] 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 s 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.

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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 s 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, 90 S.Ct. 547, 24 L.Ed.2d 492 (1970).


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, 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, 70 Cal.2d at 659, 75 Cal.Rptr., at 785, 451 P.2d, at 425. We disagree.

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Section 1235 of the California Evidence Code represents a considered choice by [90 S.Ct. 1933] the California Legislature3 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, 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 jurisdictions5 and supported by most legal commentators and by recent proposals to codify the law of evidence6 would

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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.'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 [90 S.Ct. 1934] 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

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confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). 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.8

Given the similarity of the values protected, however, the modification of a State's hearsay...

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