Berger v. California, 221
| Decision Date | 13 January 1969 |
| Docket Number | No. 221,221 |
| Citation | 393 U.S. 314,89 S.Ct. 540,21 L.Ed.2d 508 |
| Parties | Donald Leslie BERGER v. CALIFORNIA |
| Court | U.S. Supreme Court |
Thomas C. Lynch, Atty. Gen. of California, William E. James, Asst. Atty. Gen., and Marvin A. Bauer, Deputy Atty. Gen., for respondent.
Petitioner was convicted of robbery and kidnaping for the purpose of robbery. The victim, one Carl Arthur Dunston, testified against petitioner at a preliminary hearing; there was evidence that at the time of the trial Dunston was in Colorado. A state investigator tried to contact Dunston on the telephone; he got through to some of Dunston's relatives and to his employer, but not to Dunston himself. Although two telegrams were received, allegedly from Dunston, no subpoena was served. At trial, the transcript of Dunston's preliminary hearing testimony was introduced into evidence. On appeal, the Court of Appeal for the Second Appellate District of California held that this procedure did not deny petitioner his Sixth Amendment right to be confronted with the witnesses against him since Dunston was absent from the State of his own free will and since petitioner's counsel had had an adequate opportunity to cross-examine Dunston at the preliminary hearing. 258 Cal.App.2d 622, 66 Cal.Rptr. 213 (1968). The California Supreme Court denied petitioner a hearing on April 4, 1968. Nineteen days later we held in the case of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness' presence. The sole question in this case is whether the holding of Barber v. Page should be given retroactive application. We think that it should.
Clearly, petitioner's inability to cross-examine Dunston at trial may have had a significant effect on the 'integrity of the fact-finding process.' Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965); cf. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). As we pointed out in Barber v. Page, one of the important objects of the right of confrontation was to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses. 390 U.S., at 721, 88 S.Ct., at 1320. And California's claim of a significant countervailing interest based upon its reliance on...
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