Opinion · Supreme Court of the United States
Berger v. California
Berger v. Cal., 21 L. Ed. 2d 508 (1969)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1969-01-14
- Topic
- general
holding retroactive the ruling in Barber v. Page, 390 U.S. 719, 20 L.Ed. 2d 255 (1968 | holding retroactive the ruling in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968 | stating that rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial are applied retroactively | finding that state’s failure to subpoena witness and defendant’s lack of opportunity to cross-examine witness violated defendant’s Sixth Amendment rights | holding retroactive Barber v. Page, 390 U. S. 719 (1968) | holding retroactive Barber v. Page, 390 U. S. 719 (1968) | giving retroactive effect to Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) | giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968) | giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968) | holding retroactive the ruling in Barber v. Page, 390 U.S. 719, 20 L.Ed. 2d 255 (1968), that the absence of a witness from the jurisdiction did not justify the use at trial of preliminary hearing testimony unless the state had made a good faith effort to secure the witness’ presence | giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968) | giving retroactive effect to Barber v. Page, 390 U.S. 719 (1968) | a state cannot use preliminary hearing transcript of absent witness’ testimony without showing good faith effort to secure his presence at trial | Per curiam opinion finding Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed. 2d 255 (1968 | the rule announced in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed. 2d 255 (1968 | prior testimony of witness absent from jurisdiction, Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) | Per curiam opinion finding Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968 | the rule announced in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed. 2d 255 (1968 | state must make "good faith" effort to procure witness' appearance at trial for cross examination purposes before preliminary hearing testimony of said witness is available to prosecution at trial | “[O]ne 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.” | “[0]ne 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.” | “[O]ne 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.” | re Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) | "[T]he 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." | absence of witness from jurisdiction will not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure his presence | state must make “good faith” effort to procure witness’ appearance at trial for cross examination purposes before preliminary hearing testimony of said witness is available to prosecution at trial | discussing the right to confront and cross-examine witnesses | prior testimony of absent witness | prior testimony of absent witness
Citator
- Cited by
- 160 opinions
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 *315 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, 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 (1965); cf. Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, ante, p. 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. And California’s claim of a significant countervailing interest based upon its reliance on previous standards, see Stovall v. Denno, 388 U. S. 293, 297 (1967), is most unpersuasive. Barber v. Page was clearly foreshadowed, if not preordained, by this Court’s decision in Pointer v. Texas, 380 U. S. 400 (1965), which was handed down more than a year before petitioner’s trial. Accordingly, we can see no reason why Barber v. Page should not be given fully retroactive application.
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeal is vacated and the case is remanded for reconsideration in light of this Court’s decision in Barber v. Page, 390 U. S. 719 (1968).
It is so ordered.