After petitioner was arrested for murder, another person
(McDonald) made, but later repudiated, a written confession. On
three separate occasions, each time to a different friend, McDonald
orally admitted the killing. Petitioner was convicted of the murder
in a trial that he claimed was lacking in due process because
petitioner was not allowed to (1) cross-examine McDonald (whom
petitioner had called as a witness when the State failed to do so),
since, under Mississippi's common law "voucher" rule, a party may
not impeach his own witness, or (2) introduce the testimony of the
three persons to whom McDonald had confessed, the trial court
having ruled their testimony inadmissible as hearsay. The
Mississippi Supreme Court affirmed.
Held: Under the facts and circumstances of this case,
petitioner was denied a fair trial, in violation of the Due Process
Clause of the Fourteenth Amendment. Pp.
410 U. S.
294-303.
(a) The application of the "voucher" rule prevented petitioner,
through cross-examination of McDonald, from exploring the
circumstances of McDonald's three prior oral confessions and
challenging his renunciation of the written confession, and thus
deprived petitioner of the right to contradict testimony that was
clearly "adverse." Pp.
410 U. S.
295-298.
(b) The trial court erred in excluding McDonald's hearsay
statements, which were critical to petitioner's defense and which
bore substantial assurances of trustworthiness, including that each
was made spontaneously to a close acquaintance, that each was
corroborated by other evidence in the case, that each was in a real
sense against McDonald's interest, and that McDonald was present
and available for cross-examination by the State. Pp.
410 U. S.
298-303.
252 So. 2d
217, reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN,
JJ., joined. WHITE, J., filed a concurring opinion,
post,
p.
410 U. S. 303.
REHNQUIST, J., filed a dissenting opinion,
post, p.
410 U. S.
308.
Page 410 U. S. 285
MR. JUSTICE POWELL delivered the opinion of the Court.
Petitioner, Leon Chambers, was tried by a jury in a Mississippi
trial court and convicted of murdering a policeman. The jury
assessed punishment at life imprisonment, and the Mississippi
Supreme Court affirmed, one justice dissenting.
252 So. 2d
217 (1971). Pending disposition of his application for
certiorari to this Court, petitioner was granted bail by order of
the Circuit Justice, dated February 1, 1972. Two weeks later, on
the State's request for reconsideration, that order was reaffirmed.
405 U. S. 1205
(1972). Subsequently, the petition for certiorari was granted, 405
U.S. 987 (1972), to consider whether petitioner's trial was
conducted in accord with principles of due process under the
Fourteenth Amendment. We conclude that it was not.
I
The events that led to petitioner's prosecution for murder
occurred in the small town of Woodville in southern Mississippi. On
Saturday evening, June 14, 1969, two Woodville policemen, James
Forman and Aaron "Sonny" Liberty, entered a local bar and pool hall
to execute a warrant for the arrest of a youth named C. C. Jackson.
Jackson resisted, and a hostile crowd of some 50 or 60 persons
gathered. The officers' first attempt to handcuff Jackson was
frustrated when 20 or 25 men in the crowd intervened and wrestled
him
Page 410 U. S. 286
free. Forman then radioed for assistance and Liberty removed his
riot gun, a 12-gauge sawed-off shotgun, from the car. Three deputy
sheriffs arrived shortly thereafter, and the officers again
attempted to make their arrest. Once more, the officers were
attacked by the onlookers, and, during the commotion, five or six
pistol shots were fired. Forman was looking in a different
direction when the shooting began, but immediately saw that Liberty
had been shot several times in the back. Before Liberty died, he
turned around and fired both barrels of his riot gun into an alley
in the area from which the shots appeared to have come. The first
shot was wild and high and scattered the crowd standing at the face
of the alley. Liberty appeared, however, to take more deliberate
aim before the second shot. and hit one of the men in the crowd in
the back of the head and neck as he ran down the alley. That man
was Leon Chambers.
Officer Forman could not see from his vantage point who shot
Liberty or whether Liberty's shots hit anyone. One of the deputy
sheriffs testified at trial that he was standing several feet from
Liberty, and that he saw Chambers shoot him. Another deputy sheriff
stated that, although he could not see whether Chambers had a gun
in his hand, he did see Chambers "break his arm down" shortly
before the shots were fired. The officers who saw Chambers fall
testified that they thought he was dead, but they made no effort at
that time either to examine him or to search for the murder weapon.
Instead, they attended to Liberty, who was placed in the police car
and taken to a hospital, where he was declared dead on arrival. A
subsequent autopsy showed that he had been hit with four bullets
from a .22-caliber revolver.
Shortly after the shooting, three of Chambers' friends
Page 410 U. S. 287
discovered that he was not yet dead. James Williams, [
Footnote 1] Berkley Turner, and Gable
McDonald loaded him into a car and transported him to the same
hospital. Later that night, when the county sheriff discovered that
Chambers was still alive, a guard was placed outside his room.
Chambers was subsequently charged with Liberty's murder. He pleaded
not guilty, and has asserted his innocence throughout.
The story of Leon Chambers is intertwined with the story of
another man, Gable McDonald. McDonald, a lifelong resident of
Woodville, was in the crowd on the evening of Liberty's death.
Sometime shortly after that day, he left his wife in Woodville and
moved to Louisiana and found a job at a sugar mill. In November of
that same year, he returned to Woodville when his wife informed him
that an acquaintance of his, known as Reverend Stokes, wanted to
see him. Stokes owned a gas station in Natchez, Mississippi,
several miles north of Woodville, and, upon his return, McDonald
went to see him. After talking to Stokes, McDonald agreed to make a
statement to Chambers' attorneys, who maintained offices in
Natchez. Two days later, he appeared at the attorneys' offices and
gave a sworn confession that he shot Officer Liberty. He also
stated that he had already told a friend of his, James Williams,
that he shot Liberty. He said that he used his own pistol, a
nine-shot .22-caliber revolver, which he had discarded shortly
after the shooting. In response to questions from Chambers'
attorneys, McDonald affirmed that his confession was voluntary, and
that no one had compelled him to come to them. Once the confession
had been transcribed,
Page 410 U. S. 288
signed, and witnessed, McDonald was turned over to the local
police authorities, and was placed in jail.
One month later, at a preliminary hearing, McDonald repudiated
his prior sworn confession. He testified that Stokes had persuaded
him to confess that he shot Liberty. He claimed that Stokes had
promised that he would not go to jail and that he would share in
the proceeds of a lawsuit that Chambers would bring against the
town of Woodville. On examination by his own attorney and on
cross-examination by the State, McDonald swore that he had not been
at the scene when Liberty was shot, but had been down the street
drinking beer in a cafe with a friend, Berkley Turner. When he and
Turner heard the shooting, he testified, they walked up the street
and found Chambers lying in the alley. He, Turner, and Williams
took Chambers to the hospital. McDonald further testified at the
preliminary hearing that he did not know what had happened, that
there was no discussion about the shooting either going to or
coming back from the hospital, and that it was not until the next
day that he learned that Chambers had been felled by a blast from
Liberty's riot gun. In addition, McDonald stated that, while he
once owned a .22-caliber pistol, he had lost it many months before
the shooting, and did not own or possess a weapon at that time. The
local justice of the peace accepted McDonald's repudiation and
released him from custody. The local authorities undertook no
further investigation of his possible involvement.
Chambers' case came on for trial in October of the next year.
[
Footnote 2] At trial, he
endeavored to develop two
Page 410 U. S. 289
grounds of defense. He first attempted to show that he did not
shoot Liberty. Only one officer testified that he actually saw
Chambers fire the shots. Although three officers saw Liberty shoot
Chambers and testified that they assumed he was shooting his
attacker, none of them examined Chambers to see whether he was
still alive or whether he possessed a gun. Indeed, no weapon was
ever recovered from the scene, and there was no proof that Chambers
had ever owned a .22-caliber pistol. One witness testified that he
was standing in the street near where Liberty was shot, that he was
looking at Chambers when the shooting began, and that he was sure
that Chambers did not fire the shots.
Petitioner's second defense was that Gable McDonald had shot
Officer Liberty. He was only partially successful, however, in his
efforts to bring before the jury the testimony supporting this
defense. Sam Hardin, a lifelong friend of McDonald's, testified
that he saw McDonald shoot Liberty. A second witness, one of
Liberty's cousins, testified that he saw McDonald immediately after
the shooting with a pistol in his hand. In addition to the
testimony of these two witnesses, Chambers endeavored to show the
jury that McDonald had repeatedly confessed to the crime. Chambers
attempted to prove that McDonald had admitted responsibility for
the murder on four separate occasions, once when he gave the sworn
statement to Chambers' counsel and three other times prior to that
occasion in private conversations with friends.
In large measure, he was thwarted in his attempt to present this
portion of his defense by the strict application of certain
Mississippi rules of evidence. Chambers asserts in this Court, as
he did unsuccessfully in his motion for new trial and on appeal to
the State Supreme Court, that the application of these evidentiary
rules rendered
Page 410 U. S. 290
his trial fundamentally unfair and deprived him of due process
of law. [
Footnote 3] It is
necessary, therefore, to examine carefully the rulings made during
the trial.
Page 410 U. S. 291
II
Chambers filed a pretrial motion requesting the court to order
McDonald to appear. Chambers also sought a ruling at that time
that, if the State itself chose not to call McDonald, he be allowed
to call him as an adverse witness. Attached to the motion were
copies of McDonald's sworn confession and of the transcript of his
preliminary hearing at which he repudiated that confession. The
trial court granted the motion requiring McDonald to appear, but
reserved ruling on the adverse witness motion. At trial, after the
State failed to put McDonald on the stand, Chambers called
McDonald, laid a predicate for the introduction of his sworn
out-of-court confession, had it admitted into evidence, and read it
to the jury. The State, upon cross-examination, elicited from
McDonald the fact that he had repudiated his prior confession.
McDonald further testified, as he had at the preliminary hearing,
that he did not shoot Liberty, and that he confessed to the crime
only on the promise of Reverend Stokes that he would not go to jail
and would share in a sizable tort recovery from the town. He also
retold his own story of his actions on the evening of the shooting,
including his visit to the cafe down the street, his absence from
the scene during the critical period, and his subsequent trip to
the hospital with Chambers.
At the conclusion of the State's cross-examination, Chambers
renewed his motion to examine McDonald as an adverse witness. The
trial court denied the motion, stating: "He may be hostile, but he
is not adverse in the sense of the word, so your request will be
overruled." On appeal, the State Supreme Court upheld the trial
Page 410 U. S. 292
court's ruling, finding that "McDonald's testimony was not
adverse to appellant," because "[n]owhere did he point the finger
at Chambers." 252 So. 2d at 220.
Defeated in his attempt to challenge directly McDonald's
renunciation of his prior confession, Chambers sought to introduce
the testimony of the three witnesses to whom McDonald had admitted
that he shot the officer. The first of these, Sam Hardin, would
have testified that, on the night of the shooting, he spent the
late evening hours with McDonald at a friend's house after their
return from the hospital, and that, while driving McDonald home
later that night, McDonald stated that he shot Liberty. The State
objected to the admission of this testimony on the ground that it
was hearsay. The trial court sustained the objection. [
Footnote 4]
Berkley Turner, the friend with whom McDonald said he was
drinking beer when the shooting occurred, was then called to
testify. In the jury's presence, and without objection, he
testified that he had not been in the cafe that Saturday, and had
not had any beers with McDonald. The jury was then excused. In the
absence of the jury, Turner recounted his conversations with
McDonald while they were riding with James Williams to take
Chambers to the hospital. When asked whether McDonald said anything
regarding the shooting of Liberty, Turner testified that McDonald
told him that he "shot him." Turner further stated that, one week
later, when he met McDonald at a friend's house, McDonald reminded
him of their prior conversation and urged Turner not to "mess him
up." Petitioner argued to the court that, especially where there
was other proof
Page 410 U. S. 293
in the case that was corroborative of these out-of-court
statements, Turner's testimony as to McDonald's self-incriminating
remarks should have been admitted as an exception to the hearsay
rule. Again, the trial court sustained the State's objection.
The third witness, Albert Carter, was McDonald's neighbor. They
had been friends for about 25 years. Although Carter had not been
in Woodville on the evening of the shooting, he stated that he
learned about it the next morning from McDonald. That same day, he
and McDonald walked out to a well near McDonald's house, and there
McDonald told him that he was the one who shot Officer Liberty.
Carter testified that McDonald also told him that he had disposed
of the .22-caliber revolver later that night. He further testified
that, several weeks after the shooting, he accompanied McDonald to
Natchez, where McDonald purchased another .22 pistol to replace the
one he had discarded. [
Footnote
5] The jury was not allowed to hear Carter's testimony.
Chambers urged that these statements were admissible, the State
objected, and the court sustained the objection. [
Footnote 6] On appeal, the State Supreme
Court approved the lower court's exclusion of these witnesses'
testimony on hearsay grounds. 252 So. 2d at 220.
Page 410 U. S. 294
In sum, then, this was Chambers' predicament. As a consequence
of the combination of Mississippi's "party witness" or "voucher"
rule and its hearsay rule, he was unable either to cross-examine
McDonald or to present witnesses in his own behalf who would have
discredited McDonald's repudiation and demonstrated his complicity.
Chambers had, however, chipped away at the fringes of McDonald's
story by introducing admissible testimony from other sources
indicating that he had not been seen in the cafe where he said he
was when the shooting started, that he had not been having beer
with Turner, and that he possessed a .22 pistol at the time of the
crime. But all that remained from McDonald's own testimony was a
single written confession countered by an arguably acceptable
renunciation. Chambers' defense was far less persuasive than it
might have been had he been given an opportunity to subject
McDonald's statements to cross-examination or had the other
confessions been admitted.
III
The right of an accused in a criminal trial to due process is,
in essence, the right to a fair opportunity to defend against the
State's accusations. The rights to confront and cross-examine
witnesses and to call witnesses in one's own behalf have long been
recognized as essential to due process. Mr. Justice Black, writing
for the Court in
In re Oliver, 333 U.
S. 257,
333 U. S. 273
(1948), identified these rights as among the minimum essentials of
a fair trial:
"A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense -- a right to his day
in court -- are basic in our system of jurisprudence; and these
rights include, as a minimum, a right to examine the witnesses
against him, to offer testimony, and to be represented by counsel.
"
Page 410 U. S. 295
See also Morrissey v. Brewer, 408 U.
S. 471,
408 U. S.
488-489 (1972);
Jenkins v. McKeithen,
395 U. S. 411,
395 U. S.
428-429 (1969);
Specht v. Patterson,
386 U. S. 605,
386 U. S. 610
(1967). Both of these elements of a fair trial are implicated in
the present case.
A
Chambers was denied an opportunity to subject McDonald's damning
repudiation and alibi to cross-examination. He was not allowed to
test the witness' recollection, to probe into the details of his
alibi, or to "sift" his conscience so that the jury might judge for
itself whether McDonald's testimony was worthy of belief.
Mattox v. United States, 156 U. S. 237,
156 U. S.
242-243 (1895). The right of cross-examination is more
than a desirable rule of trial procedure. It is implicit in the
constitutional right of confrontation, and helps assure the
"accuracy of the truth-determining process."
Dutton v.
Evans, 400 U. S. 74,
400 U. S. 89
(1970);
Bruton v. United States, 391 U.
S. 123,
391 U. S.
135-137 (1968). It is, indeed, "an essential and
fundamental requirement for the kind of fair trial which is this
country's constitutional goal."
Pointer v. Texas,
380 U. S. 400,
380 U. S. 405
(1965). Of course, the right to confront and to cross-examine is
not absolute, and may, in appropriate cases, bow to accommodate
other legitimate interests in the criminal trial process.
E.g.,
Mancusi v. Stubbs, 408 U. S. 204
(1972). But its denial or significant diminution calls into
question the ultimate "
integrity of the factfinding process,'"
and requires that the competing interest be closely examined.
Berger v. California, 393 U. S. 314,
393 U. S. 315
(1969).
In this case, petitioner's request to cross-examine McDonald was
denied on the basis of a Mississippi common law rule that a party
may not impeach his own witness. The rule rests on the presumption
-- without regard to the circumstances of the particular case --
that a party who calls a witness "vouches for his credibility."
Page 410 U. S. 296
Clark v. Lansford, 191 So. 2d
123, 125 (Miss.1966). Although the historical origins of the
"voucher" rule are uncertain, it appears to be a remnant of
primitive English trial practice in which "oath-takers" or
"compurgators" were called to stand behind a particular party's
position in any controversy. Their assertions were strictly
partisan and, quite unlike witnesses in criminal trials today,
their role bore little relation to the impartial ascertainment of
the facts. [
Footnote 7]
Whatever validity the "voucher" rule may have once enjoyed, and
apart from whatever usefulness it retains today in the civil trial
process, it bears little present relationship to the realities of
the criminal process. [
Footnote
8] It might have been logical for the early common law to
require a party to vouch for the credibility of witnesses he
brought before the jury to affirm his veracity. Having selected
them especially for that purpose, the party might reasonably be
expected to stand firmly behind their testimony. But in modern
criminal trials, defendants are rarely able to select their
witnesses: they must take them where they find them. Moreover, as
applied in this case, the "voucher" rule's [
Footnote 9] impact was doubly harmful to Chambers'
efforts to develop his defense. Not only was he precluded from
cross-examining McDonald, but, as the State conceded at oral
argument, [
Footnote 10] he
was also
Page 410 U. S. 297
restricted in the scope of his direct examination by the rule's
corollary requirement that the party calling the witness is bound
by anything he might say. He was, therefore, effectively prevented
from exploring the circumstances of McDonald's three prior oral
confessions and from challenging the renunciation of the written
confession.
In this Court, Mississippi has not sought to defend the rule or
explain its underlying rationale. Nor has it contended that its
rule should override the accused's right of confrontation. Instead,
it argues that there is no incompatability between the rule and
Chambers' rights because no right of confrontation exists unless
the testifying witness is "adverse" to the accused. The State's
brief asserts that the "right of confrontation applies to witnesses
against' an accused." [Footnote 11] Relying on the trial court's determination
that McDonald was not "adverse," and on the State Supreme Court's
holding that McDonald did not "point the finger at Chambers,"
[Footnote 12] the State
contends that Chambers' constitutional right was not
involved.
The argument that McDonald's testimony was not "adverse" to, or
"against," Chambers is not convincing. The State's proof at trial
excluded the theory that more than one person participated in the
shooting of Liberty. To the extent that McDonald's sworn confession
tended to incriminate him, it tended also to exculpate Chambers.
[
Footnote 13] And, in the
circumstances of this case, McDonald's retraction inculpated
Chambers to the same extent that it exculpated McDonald. It can
hardly be disputed that McDonald' testimony was in fact, seriously
adverse to Chambers. The availability of the right
Page 410 U. S. 298
to confront and to cross-examine those who give damaging
testimony against the accused has never been held to depend on
whether the witness was initially put on the stand by the accused
or by the State. We reject the notion that a right of such
substance in the criminal process may be governed by that
technicality or by any narrow and unrealistic definition of the
word "against." The "voucher" rule, as applied in this case,
plainly interfered with Chambers' right to defend against the
State's charges.
B
We need not decide, however, whether this error alone would
occasion reversal since Chambers' claimed denial of due process
rests on the ultimate impact of that error when viewed in
conjunction with the trial court's refusal to permit him to call
other witnesses. The trial court refused to allow him to introduce
the testimony of Hardin, Turner, and Carter. Each would have
testified to the statements purportedly made by McDonald, on three
separate occasions shortly after the crime, naming himself as the
murderer. The State Supreme Court approved the exclusion of this
evidence on the ground that it was hearsay.
The hearsay rule, which has long been recognized and respected
by virtually every State, is based on experience and grounded in
the notion that untrustworthy evidence should not be presented to
the triers of fact. Out-of-court statements are traditionally
excluded because they lack the conventional indicia of reliability:
they are usually not made under oath or other circumstances that
impress the speaker with the solemnity of his statements; the
declarant's word is not subject to cross-examination; and he is not
available in order that his demeanor and credibility may be
assessed by the jury.
California v. Green, 399 U.
S. 149,
399 U. S. 158
(1970). A number of exceptions have developed over the years to
allow admission
Page 410 U. S. 299
of hearsay statements made under circumstances that tend to
assure reliability and thereby compensate for the absence of the
oath and opportunity for cross-examination. Among the most
prevalent of these exceptions is the one applicable to declarations
against interest [
Footnote
14] -- an exception founded on the assumption that a person is
unlikely to fabricate a statement against his own interest at the
time it is made. Mississippi recognizes this exception but applies
it only to declarations against pecuniary interest. [
Footnote 15] It recognizes no such
exception for declarations, like McDonald's in this case, that are
against the penal interest of the declarant.
Brown v.
State, 99 Miss. 719, 55 So. 961 (1911).
This materialistic limitation on the "declaration against
interest" hearsay exception appears to be accepted by most States
in their criminal trial processes, [
Footnote 16] although a number of States have discarded
it. [
Footnote 17]
Declarations against penal interest have also been excluded in
federal courts under the authority of
Donnelly v. United
States, 228 U. S. 243,
228 U. S.
272-273 (1913), although exclusion would not be required
under the newly proposed Federal Rules of Evidence. [
Footnote 18] Exclusion, where the
limitation prevails, is usually premised on the view that admission
would lead to the frequent presentation of perjured testimony to
the jury. It is believed that confessions of
Page 410 U. S. 300
criminal activity are often motivated by extraneous
considerations and, therefore, are not as inherently reliable as
statements against pecuniary or proprietary interest. While that
rationale has been the subject of considerable scholarly criticism,
[
Footnote 19] we need not
decide in this case whether, under other circumstances, it might
serve some valid state purpose by excluding untrustworthy
testimony.
The hearsay statements involved in this case were originally
made and subsequently offered at trial under circumstances
that.provided considerable assurance of their reliability. First,
each of McDonald's confessions was made spontaneously to a close
acquaintance shortly after the murder had occurred. Second, each
one was corroborated by some other evidence in the case --
McDonald's sworn confession, the testimony of an eyewitness to the
shooting the testimony that McDonald was seen with a gun
immediately after the shooting. and proof of his prior ownership of
a .22-caliber revolver and subsequent purchase of a new weapon. The
sheer number of independent confessions provided additional
corroboration for each. Third, whatever may be the parameters of
the penal interest rationale, [
Footnote 20] each
Page 410 U. S. 301
confession here was in a very real sense self-incriminatory and
unquestionably against interest.
See United States v.
Harris, 403 U. S. 573,
403 U. S. 584
(1971);
Dutton v. Evans, 400 U.S. at
400 U. S. 89.
McDonald stood to benefit nothing by disclosing his role in the
shooting to any of his three friends, and he must have been aware
of the possibility that disclosure would lead to criminal
prosecution. Indeed, after telling Turner of his involvement, he
subsequently urged Turner not to "mess him up." Finally, if there
was any question about the truthfulness of the extrajudicial
statements, McDonald was present in the courtroom and was under
oath. He could have been cross-examined by the State, and his
demeanor and responses weighed by the jury.
See California v.
Green, 399 U. S. 149
(1970). The availability of McDonald significantly distinguishes
this case from the prior Mississippi precedent,
Brown v. State,
supra, and from the
Donnelly-type situation, since,
in both cases, the declarant was unavailable at the time of trial.
[
Footnote 21]
Page 410 U. S. 302
Few rights are more fundamental than that of an accused to
present witnesses in his own defense.
E.g., Webb v. Texas,
409 U. S. 95
(1972);
Washington v. Texas, 388 U. S.
14,
388 U. S. 19
(1967);
In re Oliver, 333 U. S. 257
(1948). In the exercise of this right, the accused, as is required
of the State, must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence. Although perhaps no rule of
evidence has been more respected or more frequently applied in jury
trials than that applicable to the exclusion of hearsay, exceptions
tailored to allow the introduction of evidence which in fact, is
likely to be trustworthy have long existed. The testimony rejected
by the trial court here bore persuasive assurances of
trustworthiness, and thus was well within the basic rationale of
the exception for declarations against interest. That testimony
also was critical to Chambers' defense. In these circumstances,
where constitutional rights directly affecting the ascertainment of
guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.
We conclude that the exclusion of this critical evidence,
coupled with the State's refusal to permit Chambers to
cross-examine McDonald, denied him a trial in accord with
traditional and fundamental standards of due process. In reaching
this judgment, we establish no new principles of constitutional
law. Nor does our holding signal any diminution in the respect
traditionally accorded to the States in the establishment and
implementation of their own criminal trial rules and
Page 410 U. S. 303
procedures. Rather, we hold quite simply that, under the facts
and circumstances of this case, the rulings of the trial court
deprived Chambers of a fair trial.
The judgment is reversed, and the case is remanded to the
Supreme Court of Mississippi for further proceedings not
inconsistent with this opinion.
It is o ordered.
[
Footnote 1]
James Williams was indicted along with Chambers. The State,
however, failed to introduce any evidence at trial implicating
Williams in the shooting. At the conclusion of the State's
case-in-chief, the trial court granted a directed verdict in his
favor.
[
Footnote 2]
Upon Chambers' motion, a change of venue was granted and the
trial was held in Amite County, to the east of Woodville. The
change of trial setting was in response to petitioner's claim that,
because of adverse publicity and the hostile attitude of the police
and sheriff's staffs in Woodville, he could not obtain a fair and
impartial trial there.
[
Footnote 3]
On the record in this case, despite the State Supreme Court's
failure to address the constitutional issue, it is clear that
Chambers' asserted denial of due process is properly before us. He
objected during trial to each of the court's rulings. As to the
confrontation claim, petitioner asserted, both before and during
trial, his right to treat McDonald as an adverse witness. His
motion for new trial, filed after the jury's verdict, listed as
error the trial court's refusal to permit cross-examination of
McDonald and the exclusion of evidence corroborative of McDonald's
guilt. The motion concluded that the trial "was not in accord with
fundamental fairness guaranteed by the Fourteenth Amendment of the
Constitution." Chambers reasserted those claims on appeal to the
State Supreme Court. After the affirmance of his conviction by that
court, Chambers filed a petition for rehearing addressed almost
entirely to the claim that his trial had not been conducted in a
manner consistent with traditional notions of due process. The
State Supreme Court raised no question that Chambers' claims were
not properly asserted, and no claim has been made by the State --
in its response to the petition for certiorari, in its brief on the
merits, or at oral argument -- that the questions are not properly
reviewable by this Court.
See Street v. New York,
394 U. S. 576,
394 U. S.
581-585 (1969);
New York ex rel. Bryant v.
Zimmerman, 278 U. S. 63,
278 U. S. 67-68
(1928).
Unlike
Henry v. Mississippi, 379 U.
S. 443 (1965), this case does not involve the state
procedural requirement of contemporaneous objection to the
admission of evidence. Petitioner's contention, asserted before the
trial court on motion for new trial and subsequently before the
Mississippi Supreme Court, is that he was denied "fundamental
fairness guaranteed by the Fourteenth Amendment" as a result of
several evidentiary rulings. His claim, the substance of which we
accept in this opinion, rests on the cumulative effect of those
rulings in frustrating his efforts to develop an exculpatory
defense. Although he objected to each ruling individually,
petitioner's constitutional claim -- based as it is on the
cumulative impact of the rulings -- could not have been raised and
ruled upon prior to the conclusion of Chambers' evidentiary
presentation. Since the State has not asserted any independent
state procedural ground as a basis for not reaching the merits of
petitioner's constitutional claim, we have no occasion to decide
whether -- if such a ground exists -- its imposition in this case
would serve any "legitimate state interest."
Id. at
379 U. S. 447.
Under these circumstances, we cannot doubt the propriety of our
exercise of jurisdiction.
[
Footnote 4]
Hardin's testimony, unlike the testimony of the other two men
who stated that McDonald had confessed to them, was actually given
in the jury's presence. After the State's objection to Hardin's
account of McDonald's statement was sustained, the trial court
ordered the jury to disregard it.
[
Footnote 5]
A gun dealer from Natchez testified that McDonald had made two
purchases. The witness' business records indicated that McDonald
purchased a nine-shot .22-caliber revolver about a year prior to
the murder. He purchased a different style .22 three weeks after
Liberty's death.
[
Footnote 6]
It is not entirely clear whether the trial court's ruling was
premised on the same hearsay rationale underlying the exclusion of
the other testimony. In this instance, the State argued that
Carter's testimony was an impermissible attempt by petitioner to
impeach a witness (McDonald) who was not adverse to him. The trial
court did not state why it was excluding the evidence but the State
Supreme Court indicated that it was excluded as hearsay. 252 So. 2d
at 220.
[
Footnote 7]
3A J. Wigmore, Evidence § 896, pp. 658-660 (J. Chadbourn ed.
1970); C. McCormick, Evidence § 38, pp. 75-78 (2d ed.1972).
[
Footnote 8]
The "voucher" rule has been condemned as archaic, irrational,
and potentially destructive of the truth-gathering process. C.
McCormick,
supra, n 7;
E. Morgan, Basic Problems of Evidence 70-71 (1962); 3A J. Wigmore,
supra, n 7, § 898, p.
661.
[
Footnote 9]
The "voucher" rule has been rejected altogether by the newly
proposed Federal Rules of Evidence, Rule 607, Rules of Evidence for
United States Courts and Magistrates (approved Nov. 20, 1972, and
transmitted to Congress to become effective July 1, 1973, unless
the Congress otherwise determines).
[
Footnote 10]
Tr of Oral Arg. 35-37
[
Footnote 11]
Brief for Respondent 9 (emphasis supplied).
[
Footnote 12]
252 So. 2d at 220.
[
Footnote 13]
See Donnelly v. United States, 228 U.
S. 243,
228 U. S. 272
(1913).
[
Footnote 14]
Jefferson, Declarations Against Interest: An Exception to the
Hearsay Rule, 58 Harv.L.Rev. 1 (1944).
[
Footnote 15]
H. McElroy, Mississippi Evidence § 46 (1955);
Forrest County
Coop. Assn. v. McCaffrey, 253 Miss. 486, 493, 176 So. 2d 287,
289-290 (1965).
[
Footnote 16]
McCormick,
supra, n
7, § 278, p. 673; 5 J. Wigmore, Evidence § 1476, pp. 283-287 n. 9
(1940).
[
Footnote 17]
See, e.g., People v. Spriggs, 60 Cal. 2d
868, 389 P.2d 377 (1964);
People v.
Lettrich, 413 Ill. 172,
108 N.E.2d
488 (1952);
People v. Brown, 26 N.Y.2d 88, 257 N.E.2d
16 (1970);
Hines v. Commonwealth, 136 Va. 728, 117 S.E.
843 (1923).
[
Footnote 18]
Rule 804,
supra, n
9.
[
Footnote 19]
See, e.g., Committee on Rules of Practice Procedure,
Rules of Evidence for United States Courts and Magistrates 19-131
(rev. draft, Mar.1971); 5 J. Wigmore,
supra, n 16, § 1476, p. 84; Wright, Uniform
Rules and Hearsay, 26 U.Cin.L.Rev 575 (1957);
United States v.
Annunziato, 293 F.2d 373, 378 (CA2),
cert. denied,
368 U.S. 919 (1961) (Friendly, J.);
Scolari v. United
States, 406 F.2d 563, 564 (CA9),
cert. denied, 395
U.S. 981 (1969).
[
Footnote 20]
The Mississippi case which refused to adopt a hearsay exception
for declarations against penal interest concerned an out-of-court
declarant who purportedly stated that he had committed the murder
with which his brother had been charged. The Mississippi Supreme
Court believed that the declarant might have been motivated by a
desire to free his brother, rather than by any compulsion of guilt.
The Court also noted that the declarant had fled, was unavailable
for cross-examination, and might well have known at the time he
made the statement that he would not suffer for it.
Brown v.
State, 99 Miss. 719, 55 So. 961 (1911). There is, in the
present case, no such basis for doubting McDonald's statements.
See Note, 43 Miss.L.J. 122, 127-129 (1972).
[
Footnote 21]
McDonald's presence also deprives the State's argument for
retention of the penal interest rule of much of its force. In
claiming that "[t]o change the rule would work a travesty on
justice," the State posited the following hypothetical:
"If the rule were changed, A could be charged with the crime, B
could tell C and D that he committed the crime,
B could go into
hiding, and, at A's trial, C and D would testify as to B's
admission of guilt; A could be acquitted, and B would return to
stand trial; B could then provide several witnesses to testify as
to his whereabouts at the time of the crime. The testimony of those
witnesses, along with A's statement that he really committed the
crime, could result in B's acquittal. A would be barred from
further prosecution because of the protection against double
jeopardy. No one could be convicted of perjury, as A did not
testify at his first trial, B did not lie under oath, and C and D
were truthful in their testimony."
Brief for Respondent 7 n. 3 (emphasis supplied). Obviously, B's
absence at trial is critical to the success of the
justice-subverting ploy.
MR. JUSTICE WHITE, concurring.
We would not ordinarily expect an appellate court in the state
or federal system to remain silent on a constitutional issue
requiring decision in the case before it. Normally, a court's
silence on an important question would simply indicate that it was
unnecessary to decide the issue because it was not properly before
the court or for some other reason. As my Brother REHNQUIST points
out, the Court stated in
Street v. New York, 394 U.
S. 576,
394 U. S. 582
(1969), that,
"when . . . the highest state court has failed to pass upon a
federal question, it will be assumed that the omission was due to
want of proper presentation in the state courts unless the
aggrieved party in this Court can affirmatively show the
contrary."
Under this rule, it becomes the petitioner's burden to
demonstrate that, under the applicable state law, his claim was
properly before the state court, and was therefore necessarily
rejected, although silently, by affirmance of the judgment. If he
fails to do so, we need not entertain and decide the federal
question that he presses.
It is not our invariable practice, however, that we will not
ourselves canvass state law to determine whether the federal
question, presented to but not discussed by the state supreme
court, was properly raised in accordance with state procedures. The
Court surveyed state law in
Street itself with little if
any help from the appellant; and I think it is appropriate here,
where the State does not contest our jurisdiction and seemingly
Page 410 U. S. 304
concedes that the question was properly raised below and
necessarily decided by the Mississippi Supreme Court.
There is little doubt that Mississippi ordinarily enforces a
rule of contemporaneous objection with respect to evidence; the
three opinions in
Henry v. State, 253 Miss. 263,
154 So. 2d
289 (1963); 253 Miss. 283, 174 So. 2d 348 (1965);
198 So. 2d
213 (1967), make this sufficiently clear. Also, that case came
here, and we not only noted the existence of the rule, but
recognized that it served a legitimate state interest.
Henry v.
Mississippi, 379 U. S. 443
(1965). The same rule obtains where the proponent of evidence
claims error in its exclusion:
"The rejection of evidence not apparently admissible is not
error, in the absence of an offer or sufficient statement of the
purpose of its introduction, by which the court may determine its
relevancy or admissibility. . . . This Court has consistently
followed this rule requiring definiteness and sufficiency of an
offer of proof. . . ."
Freeman v. State, 204 So. 2d
842, 847-848 (1967) (dissenting opinion).
There are Mississippi cases stating that, in proper
circumstances, the contemporaneous objection rule will not be
enforced, and that the State Supreme Court, in some circumstances,
will consider an issue raised there for the first time. In Carter
v. State, 198 Miss. 523, 21 So. 2d 404 (1945), the only issue in
the appellate court concerned appellant's mental condition at the
time of the crime, an issue not raised at trial. The court said
"[t]he rule that questions not raised in the trial court cannot
be raised for the first time on appeal is not without exceptions,
among which are errors 'affecting fundamental rights of the parties
. . . or affecting
Page 410 U. S. 305
public policy,' . . . if to act on which will work no injustice
to any party to the appeal."
Id. at 528, 21 So. 2d at 404. The court proceeded to
consider the issue. In
Brooks v. State, 209 Miss. 150,
155,
46 So. 2d
94, 97 (1950), a convicted defendant asserted in the State
Supreme Court for the first time the inadmissibility of certain
evidence on the grounds of an illegal search and seizure, violation
of the rule against self-incrimination, and improper
cross-examination. The court considered these questions and
reversed the conviction, saying that
"[e]rrors affecting fundamental rights are exceptions to the
rule that questions not raised in the trial court cannot be raised
for the first time on appeal. . . . [W]here fundamental and
constitutional rights are ignored, due process does not exist, and
a fair trial in contemplation of law cannot be had."
The reach of these cases was left in doubt when, in affirming
the judgment in
Henry v. State, 253 Miss. 263,
154 So. 2d
289 (1963), the Mississippi Supreme Court refused to consider a
claim of illegally obtained evidence because the matter had not
been presented to the trial court. The case did not come within
Brooks v. State, supra, the court ruled, because Henry's
counsel were experienced and adequate, and Henry was bound by their
mistakes. This Court vacated that judgment and remanded for
determination whether there had been a deliberate bypass, reading
Mississippi law as extending no discretion to give relief from the
contemporaneous objection rule where "petitioner was represented by
competent local counsel familiar with local procedure."
Henry
v. Mississippi, 379 U.S. at
379 U. S. 449
n. 5. In its initial opinion on remand, the Supreme Court of
Mississippi reasserted the necessity to object at the time
testimony is offered in the trial court, but it said,
"[n]evertheless, if it appears to the trial judge that the
Page 410 U. S. 306
foregoing rule of procedure would defeat justice and bring about
results not justified or intended by substantive law, the rule may
be relaxed and subordinated to the primary purpose of the law to
enforce constitutional rights in the interest of justice."
Henry v. State, 253 Miss. at 287, 174 So. 2d at 351.
*
In
King v. State, 230 So. 2d
209, 211 (1970), this statement from the 1965
Henry
opinion was interpreted as giving the Supreme Court of the State,
as well as the trial court, sufficient latitude to treat the
request for a peremptory instruction to the jury after failure to
object to the introduction of allegedly illegally obtained evidence
as if the appellant had made timely objection.
Moreover, in
Wood v. State, 257 So. 2d
193, 200 (1972), where a convicted defendant complained of a
wide-ranging and allegedly unfair cross-examination of defense
witnesses, and where there had been a failure to object to part of
the prejudicial inquiry, the State Supreme Court nevertheless
considered the question, stating:
"We note also that no objection was made to the testimony of
Donald Ray Boyd when he was asked whether he had ever been in jail.
However, it was stated in
Brooks, supra, that, in extreme
cases, a failure to object to questions which were violative of a
constitutional right did not, in all events, have to be objected to
before they would receive consideration by this Court. The
appellant in this case was being tried for murder. The evidence of
defendant's guilt was extremely close. A shred of evidence one way
or the other could have been persuasive to the jury. In our
opinion, this warrants our
Page 410 U. S. 307
consideration of the questions and responses to which repeated
objections were made and sustained by the court, as well as the
consideration of the testimony of Donald Ray Boyd wherein he was
asked whether he had been in jail or not, though no formal
objection was made thereto."
These cases seemingly preserve some aspects of the
Brooks rule, and hence anticipate some situations where
the contemporaneous objection requirement will not be enforced,
despite
Henry. There will be occasions where the Supreme
Court of Mississippi will consider constitutional claims made in
that court for the first time.
Where this leaves the matter of our jurisdiction in the light of
decisions such as
Williams v. Georgia, 349 U.
S. 375 (1955), is not clear. There, while acknowledging
that motions for a new trial after final judgment were not favored
in Georgia, the Court recognized that such motions had been granted
in "exceptional" or "extraordinary" cases, their availability being
within the well informed discretion of the courts. It was claimed
that denying Williams' motion was an adequate state ground
precluding review here, but,
"since his motion was based upon a constitutional objection, and
one the validity of which has in principle been sustained here, the
discretionary decision to deny the motion does not deprive this
Court of jurisdiction to find that the substantive issue is
properly before us."
Id. at
349 U.S.
389.
In the circumstances before us, where there were repeated offers
of evidence and objections to its exclusion, although not on
constitutional grounds, where the matter was presented in federal
due process terms to the State Supreme Court, and where the State
does not now deny that the issue was properly before the state
court and could have been considered by it, I am inclined,
although
Page 410 U. S. 308
dubitante, to conclude with the Court that we have
jurisdiction.
As to the merits, I would join in the Court's opinion and
judgment.
* The trial court, on remand from the 1965
Henry
decision, 253 Miss. 283, 174 So. 2d 348, found there had been
deliberate bypass, and, affirming on appeal,
198 So. 2d
213 (1967), the Mississippi Supreme Court did not mention
Brooks v. State, 209 Miss. 150,
46 So. 2d
94 (1950), or the rule for like cases.
MR. JUSTICE REHNQUIST, dissenting.
Were I to reach the merits in this case, I would have
considerable difficulty in subscribing to the Court's further
constitutionalization of the intricacies of the common law of
evidence. I do not reach the merits, since I conclude that
petitioner failed to properly raise in the Mississippi courts the
constitutional issue that he seeks to have this Court decide.
Title 28 U.S.C. 1257 provides in pertinent part as follows:
"Final judgments or decrees rendered by the highest court of a
State in which a decision could be had may be reviewed by the
Supreme Court as follows:"
"
* * * *"
"(3) By writ of certiorari, . . . where any title, right,
privilege or immunity is specially set up or claimed under the
Constitution, treaties or statutes of, or commission held or
authority exercised under, the United States."
We deal here with a limitation imposed by Congress upon this
Court's authority to review judgments of state courts. It is a
jurisdictional limitation,
Cardinale v. Louisiana,
394 U. S. 437,
394 U. S. 438
(1969), that has always been interpreted with careful regard for
the delicate nature of the authority conferred upon this Court to
review the judgments of state courts of last resort:
"Upon like grounds the jurisdiction of this court to reexamine
the final judgment of a state court
Page 410 U. S. 309
cannot arise from mere inference, but only from averments so
distinct and positive as to place it beyond question that the party
bringing a case here from such court intended to assert a Federal
right."
Oxley Stave Co. v. Butler County, 166 U.
S. 648,
166 U. S. 655
(1897).
In
Street v. New York, 394 U.
S. 576 (1969), cited by the Court in its
n 3, the following language from the earlier
case of
New York ex rel. Bryant v. Zimmerman, 278 U. S.
63,
278 U. S. 67
(1928), was quoted:
"No particular form of words or phrases is essential, but only
that the claim of invalidity and the ground therefor be brought to
the attention of the state court with fair precision
and in due
time."
394 U.S. at
394 U. S. 584
(emphasis added).
The question of whether a constitutional issue has been raised
in "due time" in the state courts is one generally left to state
procedure, subject to the important condition that the state
procedure give no indication
"that there was an attempt on the part of the state court to
evade the decision of Federal questions, duly set up, by
unwarranted resort to alleged rules under local practice."
Louisville & Nashville R. Co. v. Woodford,
234 U. S. 46,
234 U. S. 51
(1914). More recently, the Court has stated in
Henry v.
Mississippi, 379 U. S. 443,
379 U. S. 447
(1965) that:
"These cases settle the proposition that a litigant's procedural
defaults in state proceedings do not prevent vindication of his
federal rights unless the State's insistence on compliance with its
procedural rule serves a legitimate state interest."
Since the Court in
Henry was dealing with a rule of
trial procedure from the State of Mississippi, its analysis in that
case is particularly helpful in deciding this one. It was conceded
by all parties there that the Mississippi
Page 410 U. S. 310
rules required contemporaneous objection to evidentiary rulings,
and this Court commented:
"The Mississippi rule . . . clearly does serve a legitimate
state interest. By immediately apprising the trial judge of the
objection, counsel gives the court the opportunity to conduct the
trial without using the tainted evidence. If the objection is well
taken, the fruits of the illegal search may be excluded from jury
consideration, and a reversal and new trial avoided."
Id. at
379 U. S.
448.
In that case, the petitioner had made his motion to exclude the
evidence at the close of the State's case, and this Court observed
that a ruling on the motion at that point would very likely have
prevented the possibility of reversal and new trial just as surely
as a ruling on a motion made contemporaneously with the offer of
the evidence.
Here, however, the record of the state proceedings shows that
the first occasion on which petitioner's counsel even hinted that
his previous evidentiary objection had a constitutional basis was
at the time he filed a motion for new trial. By delaying his
constitutional contention until after the evidence was in and the
jury had retired and returned a verdict of guilty against him,
petitioner denied the trial court an opportunity to reconsider its
evidentiary ruling in the light of the constitutional objection.
While this Court, in
Henry, expressed doubt as to the
adequacy for federal purposes of Mississippi's differing treatment
of a motion to exclude at the close of the State's case and an
objection made contemporaneously with the offer of the evidence,
there can be no doubt that the policy supporting Mississippi's
requirement of contemporaneous objection cannot be served equally
well by a motion for new trial following the rendition of the
jury's verdict.
Page 410 U. S. 311
It is perfectly true, as the Court states in
n 3 of its opinion, that petitioner "objected
during trial to each of the court's rulings." But this is only half
the test; the litigant seeking to have a decision here on a
constitutional claim must not only object or otherwise advise the
lower court of his claim that a ruling is error, but he must make
it clear that his claim of error is constitutionally grounded. In
Bailey v. Anderson, 326 U. S. 203
(1945), the petitioner argued in this Court that a state court
condemnation award that failed to include interest from the date of
possession denied him just compensation in violation of the Due
Process Clause of the Fourteenth Amendment. This Court noted that,
in the state circuit court ,petitioner had requested that the award
include interest from the date of taking, and that the circuit
court, without explanation, had rejected this claim. But this Court
went on to say:
"But, throughout the proceedings in the circuit court, appellant
made no claim to interest on constitutional grounds, and made no
attack on the constitutionality of the award or the court's decree
because of the asserted denial of interest."
Id. at
326 U. S. 206.
Concluding from an examination of the opinion of the Supreme Court
of Appeals of Virginia that, although appellant had raised his
constitutional claim there, it had not been passed upon by that
court, this Court held that the "appeal must be dismissed for want
of any properly presented substantial federal question."
Id. at
326 U. S. 207.
Neither the majority nor the dissenting opinions of the Supreme
Court of Mississippi contain one syllable that refers expressly or
by implication to any claim based on the Constitution of the United
States. Those opinions did, of course, treat the evidentiary
objections and proffers
Page 410 U. S. 312
that this Court now holds to be of constitutional dimension, but
it passed on them in terms of nonconstitutional evidentiary
questions that are one of the staples of the business of appellate
courts that regularly review claims of error in the conduct of
trial. Since Mississippi requires contemporaneous objection to
evidentiary rulings during the trial, it would have been entirely
proper for the Supreme Court of Mississippi to conclude that, even
though petitioner might have asserted constitutional claims in his
brief there, they had been raised too late to require consideration
by it.
This Court said in
Street v. New York:
"Moreover, this Court has stated that, when, as here, the
highest state court has failed to pass upon a federal question, it
will be assumed that the omission was due to want of proper
presentation in the state courts, unless the aggrieved party in
this Court can affirmatively show the contrary."
394 U.S. at
394 U. S.
582.
If, by some extraordinarily lenient construction of the
decisional requirement that the constitutional claim be made "in
due time" in the state proceedings, the making of such a claim for
the first time in a motion for a new trial were deemed timely, it
is still extraordinarily doubtful that this petitioner adequately
raised any constitutional claims in his motion for new trial. That
motion consisted of the following pertinent points:
"3rd, the Court erred in refusing to declare Gable McDonald a
hostile and adverse witness and permitting the Defendant to
propound leading questions as on cross-examination."
"4th, the Court erred in refusing to permit the Defendant to
introduce evidence corroborating the
Page 410 U. S. 313
admission of Gable McDonald admitting the killing of Aaron
Liberty."
"
* * * *"
"6th, the trial of the Defendant was not in accord with
fundamental fairness guaranteed by the Fourteenth Amendment of the
Constitution of the United States and Article Three, Sections
Fourteen and Twenty-Six of the Constitution of the State of
Mississippi."
It would have to be an extraordinarily perceptive trial judge
who could glean from this motion that the separately stated third
and fourth points, dealing as they do in customary terms of claims
of trial error in the exclusion or admission of evidence, were
intended to be bolstered by the generalized assertion of the
violation of due process contained in a separately stated point.
The contention of the sixth point, standing by itself, that
"the trial of the Defendant was not in accord with fundamental
fairness guaranteed by the Fourteenth Amendment of the Constitution
of the United States"
directs the trial court to no particular ruling or decision that
he may have made during the trial; it is a bald assertion that the
trial, from beginning to end, was somehow fundamentally unfair.
Even the most lenient construction of that part of 28 U.S.C. § 1257
that requires that the "title, right, privilege or immunity" be
"specially set up or claimed" could not aid petitioner in his claim
that this point properly raised a federal constitutional issue.
This Court, under the Constitution, has the extraordinarily
delicate, but equally necessary, authority to review judgments of
state courts of last resort on issues that turn on construction of
the United States Constitution or federal law. But before we
undertake to tell a
Page 410 U. S. 314
state court of last resort that its judgment is inconsistent
with the mandate of the Constitution, it behooves us to make
certain that, in doing so, we adhere to the congressional mandate
that limits our jurisdiction. Believing as I do that petitioner has
not complied with 28 U.S.C. § 1257(3), I would dismiss the writ of
certiorari.