Douglas v. State of Alabama, 313

CourtUnited States Supreme Court
Citation85 S.Ct. 1074,380 U.S. 415,13 L.Ed.2d 934
Docket NumberNo. 313,313
PartiesJesse Elliott DOUGLAS, Petitioner, v. STATE OF ALABAMA
Decision Date05 April 1965

380 U.S. 415
85 S.Ct. 1074
13 L.Ed.2d 934
Jesse Elliott DOUGLAS, Petitioner,



No. 313.
Argued March 9 and 10, 1965.
Decided April 5, 1965.

Charles Cleveland, Birmingham, Ala., for petitioner.

Paul T. Gish, Jr., Montgomery, Ala., for respondent.

Page 416

Mr. Justice BRENNAN delivered the opinion of the Court.

The petitioner and one Loyd were tried separately in Alabama's Circuit Court on charges of assault with intent to murder. Loyd was tried first and was found guilty. The State then called Loyd as a witness at petitioner's trial. Because Loyd planned to appeal his conviction, his lawyer, who also represented petitioner, advised Loyd to rely on the privilege against self-incrimination and not to answer any questions. When Loyd was sworn, the lawyer objected, on self-incrimination grounds, 'to this witness appearing on the stand,' but the objection was overruled. Loyd gave his name and address but, invoking the privilege, refused to answer any questions concerning the alleged crime. The trial judge ruled that Loyd could not rely on the privilege because of his conviction, and ordered him to answer, but Loyd persisted in his refusal.1 The judge thereupon granted the State Solicitor's motion 'to declare (Loyd) a hostile witness and give me the privilege of cross-examination.' The Solicitor then produced a document said to be a confession signed by Loyd. Under the guise of cross-examination to refresh Loyd's recollection, the Solicitor purported to read from the document, pausing after every few sentences to ask Loyd, in the presence of the jury, 'Did you make that statement?' Each time, Loyd asserted the privilege and refused to answer, but the Solicitor continued this form of questioning until the entire docu-

Page 417

ment had been read.2 The Solicitor then called three law enforcement officers who identified the document as embodying a confession made and signed by Loyd. Although marked as an exhibit for identification, the document was not offered in evidence.

This procedure, petitioner argues, violated his rights under the Confrontation Clause of the Sixth Amendment as applied to the States. The statements from the document as read by the Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial importance, they named the petitioner as the person who fired the shotgun blast which wounded the victim.3 The jury found petitioner guilty.

Page 418

The Court of Appeals of Alabama affirmed, 42 Ala.App. 314, 163 So.2d 477. Although stating that Loyd's alleged confession was inadmissible in evidence against petitioner under state law because '(t)here must be confrontation face to face to allow viva voce cross-examination before the jury,' and noting that 'it might be claimed that the repeated and cumulative use of the confession might have been an indirect mode of getting the inadmissible confession in evidence,' the Court of Appeals affirmed petitioner's conviction on the ground that petitioner's counsel had 'stopped objecting' and that in that circumstance, 'the failure to object was waiver.' 42 Ala.App., at 329, 332, 163 So.2d, at 493, 495. The Supreme Court of Alabama denied review, 276 Ala. 703, 163 So.2d 496. We granted certiorari, 379 U.S. 815, 85 S.Ct. 77, 13 L.Ed.2d 28. We reverse.


We decide today that the Confrontation Clause of the Sixth Amendment is applicable to the States. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065. Our cases construing the clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation. As the Court said in Mattox v. United States,

'The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits * * * being used against the prisoner

Page 419

in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' 156 U.S. 237, 242—243, 15 S.Ct. 337, 339, 39 L.Ed. 409.

See also 5 Wigmore, Evidence §§ 1365, 1397 (3d ed. 1940); State v. Hester, 137 S.Ct. 145, 189, 134 S.E. 885, 900 (1926).

In the circumstances of this case, petitioner's inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. Loyd's alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so; coupled with the description of the circumstances surrounding the shooting, this formed a crucial link in the proof both of petitioner's act and of the requisite intent to murder. Although the Solicitor's reading of Loyd's alleged statement, and Loyd's refusals to answer, were not technically testimony, the Solicitor's reading may well have been the equivalent in the jury's mind of testimony that Loyd in fact made the statement; and Loyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true. Slochower v. Board of Higher Education, 350 U.S. 551, 557—558, 76 S.Ct. 637, 640—641, 100 L.Ed. 692; United States v. Maloney, 262 F.2d 535, 537 (C.A.2d Cir. 1959). Since the Solicitor was not a witness, the inference from his reading that Loyd made the statement could not be tested by cross-examination. Similarly, Loyd could not be cross-examined on a statement imputed to but not admitted by him. Nor was the opportunity to cross-examine the law en-

Page 420

forcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause. Indeed, their testimony enhanced the danger that the jury would treat the Solicitor's questioning of Loyd and Loyd's refusal to answer as proving the truth of Loyd's alleged confession. But since their evidence tended to show only that Loyd made the confession, cross-examination of them as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150; cf. Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890.

Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but...

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