Gregory v. State

Wilner, J., delivered the opinion of the Court. The Citizens Bank of Maryland has a branch office located in the Blair Plaza Shopping Center, in Silver Spring. Shortly after 6:00 p.m. on February 9,1977, Stephen Wyatt Gregory, the appellant, entered that office carrying two rifles, one under each arm. His first act was to order the several customers then in the bank to leave, which, without undue hesitation, they did.

He found himself, then, alone in the lobby and separated from the bank employees by a floor-to-ceiling partition, the major part of which consisted of bullet-proof glass. At his direction, however, the assistant manager opened a door connecting the lobby with the office and working areas; and appellant thereupon proceeded to take the assistant manager and seven other employees hostage. The silent alarm was immediately activated, and the bank was soon surrounded by the police. It quickly became apparent that appellant did not intend to rob the bank, although what, if any, motive he did have remained a mystery.

During the course of the next six-and-a-half hours, appellant spoke on the telephone with assorted newsmen, a friend, his mother, and with Sergeant McFee, of the Montgomery County Police Department. Every now and then, he fired his rifles from inside the bank, discharging in all some 205 rounds, mostly at objects in the bank. Fortunately, he did not injure or kill anyone, although he easily could have done so. Almost from the beginning, and periodically throughout the siege, he allowed his eight hostages, one by one, either to escape or to leave with his permission.

Finally, an hour or so after the last hostage left, appellant put down his weapons and was captured by the police. As a result of this bizarre and frightening episode, a 87-count indictment was returned against appellant, charging him with nine counts of kidnapping, nine counts of false imprisonment, seven counts of assault with intent to murder, and twelve counts of assault. To each count, appellant pled ²⁹⁹ not guilty and not guilty by reason of insanity. Trial was held before a jury in the Circuit Court for Montgomery County, at the conclusion of which appellant was convicted of eight counts of false imprisonment and four counts of assault. 1 Upon his eight convictions for false imprisonment, appellant was sentenced to imprisonment for eight consecutive terms of two years each (total: 16 years), and upon the assault convictions, he was sentenced to imprisonment for four concurrent terms of two years each.

Appellant presents two questions in this appeal: 1. Whether or not the admission of opinions and/or conclusions of three psychiatrists who were not called to testify on the issue of legal responsibility violated appellant’s right to confrontation as guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights; and 2. Whether it was error for the trial judge to refuse to permit cross-examination as to or introduction by appellant of lay opinions as to sanity and/or rationality and to present testimony as to certain previous episodes of appellant’s life. (1) Right of Confrontation There was no significant dispute about what occurred in the bank; appellant did not contest that he, in fact, did those things which the State and its witnesses claimed he had done.

His sole defense was that he was not responsible for his acts — that he was legally insane at the time he committed them. Appellant’s “sanity”, therefore, was the only real issue in the case; and it was a strongly contested one. In accordance with Maryland law (Code, art. 59, § 25), once appellant entered his plea of not guilty by reason of insanity, he was referred to Clifton T. Perkins State Hospital for evaluation as to his “responsibility” at the time of the incident. 2 On June 14, 1977, the Superintendent (Dr. LeBow) ³⁰⁰ and the Clinical Director (Dr. Silver) of Perkins reported to the court, and to counsel, that: “No evidence for psychosis or organacity was elicited. Psychological testing revealed him [appellant] to be of average intelligence with a personality picture of immaturity, histrionics, and low frustration tolerance.

It was the unanimous opinion of the medical staff that the patient is suffering from a personality disorder characterized variously as hysteric, passive-aggressive and antisocial. “It was the unanimous opinion of the medical staff that, at the present time, Mr. Gregory is able to understand the nature and object of the proceedings against him and assist in his own defense. It was the further majority opinion of the medical staff that at the time of the alleged offense the patient was not suffering from a mental disorder which would have caused him to lack substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.” (Emphasis supplied.) Of critical significance, in terms of appellant’s defense of insanity, was the medical staff conference that occurred on June 13,1977; for, in large part, it was at, and as a result of, that conference that the medical opinions described in Dr. LeBow’s letter were developed and recorded. The report of that conference shows that the following reports were submitted: (1) Psychiatric Case Workup by Dr. Adamo; (2) Psychological Report by Mr. Morse; (3) Social Service Summary by Ms. Collins; and (4) Nursing Service Summary by Mr. Bouldin. The report then concludes: “After interviewing the patient, the following opinions were expressed: Dr. Lebow: Hysterical Personality.

Competent and Responsible. ³⁰¹ Dr. Silver: Hysterical Personality with antisocial trends. Competent and Responsible. Dr. Adamo: Hysterical Personality. Depressive Neurosis.

Competent and Not Responsible. Dr. Hertzberg: Passive-aggressive Personality. Competent and Responsible. Dr. Fitzpatrick: Passive-aggressive Personality.

Competent and Responsible. Dr. Abbas: Antisocial Personality. Competent and Responsible. Final Diagnosis: Personality Disorder characterized variously as hysteric, passive-aggressive and antisocial.

Recommendations: This patient is competent for trial. He was responsible at the time of the alleged offenses (majority opinion). Return to Court custody. /s/ __ Stuart Silver, M.D., Clinical Director” The “bottom line”, so to speak, of this conference, and ultimately of the hospital report itself, was that (1) all six psychiatrists agreed that appellant had a mental disorder, (2) five of the doctors, expressing four somewhat varying diagnoses, considered appellant nevertheless to be competent and responsible, and (3) one doctor (Adamo), expressing a fifth diagnosis, believed him to be competent but not responsible. At the commencement of trial, both sides agreed to an “order of proof” consistent with that approved in Hawkins v. State, 34 Md. App. 82 (1976); namely: the defense would introduce the issue of “sanity” in. its case-in-chief, and the State, in rebuttal, would respond with its evidence on that ³⁰² issue.

In accordance with that procedure, appellant offered the testimony of four psychiatrists. Dr. Brian Crowley, employed by appellant, had examined appellant prior to his second admission to Perkins. He testified that appellant suffered from the cumulative effect of a mental depression (depressive neurosis), a serious personality disorder of mixed type, and being “under the influence of ethyl alcohol to some substantial extent I think very considerable on that occasion.” Crowley opined that appellant’s mental disorder caused him to lack substantial capacity to conform his conduct to requirements of law on the day in question, and that his opinion would be the same even if he assumed that appellant had not been under the influence of alcohol. Following Dr. Crowley was Dr. John McCormack.

Dr. McCormack had been on duty at a hospital near the shopping center, and had been called to the scene by the police when appellant, while still in the bank with the hostages, had indicated a desire to talk to a psychiatrist. He had occasion to observe what occurred, including appellant and his demeanor, and had also talked with the police, with appellant’s parents, and with appellant’s girlfriend. In addition, he had listened in on the various telephone conversations with appellant. Although he had not examined appellant, Dr. McCormack was permitted to express his opinion that appellant suffered from a mental disorder (which he did not define more specifically than “a depression”) and that, on the evening in question, appellant was unable to conform his conduct to the requirements of the law. 3 Next, Dr. Adamo, the psychiatrist from Perkins who had done the Psychiatric Case Work-up (and the only one of those present and “voting” at the June 13 medical staff conference who believed appellant to be not responsible) testified.

Dr. Adamo had interviewed appellant on three occasions during his stay at Perkins — twice on June 10 (which was prior to the staff conference) and once on June 15 (after the conference). He stated that appellant had a mental disorder, ³⁰³ which he diagnosed as a depressive neurosis, and that this disorder was so severe as to impair his ability to appreciate the criminality of his conduct and to conform his conduct to the requirement of law. It was during the State’s cross-examination of Dr. Adamo that the confrontation issue first arose. Over appellant’s objection, constitutionally based, the full hospital record from Perkins, including the minutes of the medical staff conference in which the opinions of all six psychiatrists were recorded (see supra), was admitted into evidence.

Also over objection, Adamo testified that the other psychiatrists at the conference did not agree with his opinion that appellant was not responsible, but he was not asked, and did not state, what the opinions of the other psychiatrists were. Finally, Dr. Gordon Livingston, a psychiatrist employed by the defense, testified that appellant had a combination of two mental disorders — an impulsive character disorder of long standing and a depression — and that, as a result of those disorders, at the moment he entered the bank, he lacked substantial capacity to conform his conduct to the requirement of the law. In rebuttal, the State produced Dr. LeBow and Dr. Leonard Hertzberg. Dr. LeBow agreed with Dr. Livingston’s diagnosis that appellant suffered from a “character impulse disorder characterized by hysterical and antisocial trends” which, he said, better expressed his own earlier diagnosis of “hysterical personality.” However, he did not believe that this disorder rendered appellant “not responsible” — that it “interrupted] his thinking to the extent that he misperceived reality; that he would be unable to understand what the dictates of society were; and that he would not have been able to work out some alternative way of handling the problems that he was facing in a way other than performing an antisocial act.” Acknowledging that appellant may have been depressed.

Dr. LeBow did not consider the depression to be a “psychiatric depression”, Dr. Hertzberg stated that appellant had a “mixed bag” of personality disorders, but that he did not have a mental ³⁰⁴ disorder of such magnitude that he lacked substantial capacity to appreciate the criminality of his actions or to conform his conduct to the requirements of the law. Dr. Hertzberg’s original opinion was that appellant’s disorder was a “passive-aggressive personality”. At trial, however, he modified his diagnosis to that of “hysterical personality”, although this did not affect his ultimate opinion that appellant was “responsible.” Although both Dr. LeBow and Dr. Hertzberg testified about Dr. Adamo’s conclusions, and indicated their disagreement with his opinion as to appellant’s “responsibility”, neither of them testified about the opinions rendered by the other three State psychiatrists present at the medical staff conference. Except for the brief statement by Dr. Adamo, on cross-examination, that the other doctors present at the conference did not share his opinion, the only evidence as to the existence of those three “out of court” opinions came from the hospital record. 4 The jury therefore had before it the testimony of four psychiatrists claiming appellant'was “insane”, that of two psychiatrists claiming he was “sane”, and a hospital record showing that three more psychiatrists also believed that appellant was “sane”.

It is impossible, of course, for this Court to know what, if any, weight the jury may have given to the opinions of the three absent psychiatrists. The record, in fact, is silent as to whether the jury ever saw the report of the medical staff conference, or actually became aware of what these opinions were. 5 Nonetheless, the report was in evidence, and we are not at liberty to assume that the jury was unaware of its contents. We must therefore proceed upon the premise that the jury was aware of, and considered, the fact that three psychiatrists, not present in court to be observed by the jury, stared upon by appellant, and cross-examined by counsel, had ³⁰⁵ expressed the opinion that appellant was responsible for his acts and, under the virtually uncontradicted evidence, therefore guilty as charged. The court believed that the issue raised by appellant’s objection to the hospital record was controlled by Dunn v. State, 226 Md. 463 (1961), and overruled the objection on the basis of that case.

Actually, Dunn is not precedent for such action, as it did not involve an objection based upon the constitutional right of confrontation. The objections raised to the admission of the hospital report there were grounded upon hearsay, relevance, and the qualifications of the declarants. Those are not the issues here. It is clear, beyond dispute, that the hospital record, once properly authenticated, was not rendered inadmissible because it was or contained hearsay.

As against a hearsay objection, it was admissible as a business record under Courts article § 10-101, and possibly as well as a public record under § 10-204. Dunn clearly establishes that principle. The question here is whether, notwithstanding the admissibility of the record generally under an exception to the hearsay rule, that part of it recording the opinions of Drs. Silver, Fitzpatrick, and Abbas as to appellant’s “sanity” should not have been admitted because it denied appellant the right to confront those three witnesses against him.

We are dealing here with Article 21 of the Declaration of Rights of Maryland, and the Sixth Amendment to the United States Constitution. In terms of the right of confrontation, these two measures of organic law are virtually identical and have been held to express “the same right”. Crawford v. State, 282 Md. 210 (1978). See also Jackson v. State, 31 Md. App. 332 (1976).

Article 21, adopted as part of our first Constitution in 1776, provides, in relevant part, that “in all criminal prosecutions, every man hath a right... to be confronted with the witnesses against him....” The Sixth Amendment provides, again in relevant part, that “in all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him....” In comparison with most of the other declarations of personal liberty that comprise our Bills of Rights, State and ³⁰⁶ Federal, this one has received, until recently, very little attention. Although, as with most of the “rights” now associated with the broader concept of due process of law, the right of confrontation arose in the common law, the history of its development is not so clear. 6 It does seem clear, ³⁰⁷ however, that this right had been fairly well established in ³⁰⁸ the common law prior to the time of the American Revolution. 7 It has been suggested, declared, and assumed that the right of confrontation was an outgrowth of the hearsay rule generally, 8 which may well be the case. To some extent, at least, their purposes are similar. But, however entwined the development of these two concepts may have been in their formative periods, the evidence is quite clear that, at least by the late 1600’s, the right of confrontation was considered to be something more than merely a part of the overall rule against the use of hearsay.

It was much more particular, being a right peculiar to defendants in certain criminal cases, rather than to litigants, or even defendants, generally; and ³⁰⁹ it had to do not with the quality of the evidence given by witnesses (whether it was upon personal knowledge, for example), but rather with the requirement that the witness be produced — that his testimony be viva voce. The suggestion that the right of confrontation is no more than a particular expression or emanation of the hearsay rale does not find substantial support historically. More significant is the fact that a number of the conventions that drafted the first State constitutions apparently considered the right of confrontation to be something apart from the common law hearsay rule; for, while most of them either assumed or wrote into the early constitutions the right of the inhabitants to much of the common law of England (which included, of course, the rules against hearsay evidence), many of them separately declared the right of an accused to be confronted by the witnesses against him as part of their Declaration of Rights. 9 Unfortunately, there has been little in the way of thorough research done with respect to the inclusion of this particular right in the early State Constitutions, 10 and it is not entirely clear, therefore, what the framers had in mind when they drafted this clause. 11 The same paucity of information exists ³¹⁰ with respect to the formulation of the Sixth Amendment to the U.S. Constitution. Although in a few of the conventions called to consider ratification of the Federal Constitution in 1787-1788, notably Pennsylvania, Massachusetts, Virginia, New York, and Maryland, opponents of the new Charter criticized its lack of a Bill of Rights, there was little, if any, discussion about the right of confrontation in particular. 12 Moreover, although we know that the first ten amendments, initiated in and proposed by the First Session of Congress, were derived largely from the proposals submitted by James Madison, supplemented by those emanating from some of the State ratifying conventions, the Annals of Congress are virtually silent with respect to what the Congress believed the right to confrontation entailed. 13 We thus have two provisions of organic law — one State and one Federal — nearly identical in language, expressing what, on more than one occasion, the Supreme Court has considered to be “one of the fundamental guarantees of life and liberty” 14 with precious little legislative history to point out their meaning.

This lack of authoritative direction, unfortunately, had led courts, and commentators, into considerable confusion as to just what it is, or was, that this right was designed to protect: was it merely the right of the accused to be present when evidence was given against him; was it the right to require that evidence be by testimony rather than by document; was it the right to demand a face-to-face confrontation with the witness; was it the right ³¹¹ to cross-examine the witness? Was its purpose to assure a certain quality of evidence used to convict, to allow the trier of fact the opportunity to gaze upon the witness in aid of determining his credibility, or perhaps simply to encourage prosecutorial fairness and diligence? The application, and indeed the description of the right, as well as its relationship to the hearsay rule, has, historically, come to depend upon how the courts have viewed its function. Until Pointer v. Texas, 380 U. S. 400 (1965), the Sixth Amendment was not applicable to the States.

This meant that the pre-1965 nature, scope, and meaning of the right of confrontation in Maryland developed solely from the opinions of the Court of Appeals in the context of Article 21 of the Declaration of Rights. The course of development of the State provision was marked in Johns v. State, 55 Md. 350 (1881). The defendant there was a tax collector, who was charged with failing to remit all that he had collected. The statute making such a defalcation a crime also provided that the Comptroller’s certificate showing the amount of default constituted prima facie evidence of a defalcation.

Johns objected to the admission of the Comptroller’s certificate, claiming that his right of confrontation under Article 21 had been violated. The Court rejected this defense, however, stating, at page 360: “In declaring that the party accused shall have the right to be confronted with the witnesses against him, that provision of the Declaration of Rights is not to be understood as excluding all other evidence except oral evidence of witnesses produced in court. Such has never been its interpretation, nor does the language warrant it. It is only where the prosecution is to be maintained by the testimony of living witnesses that they are required to be produced in court, confronted with the accused, and deliver their testimony under the sanction of an oath, and be subject to cross-examination.

In other words, no witness shall give his testimony in secret, or out of the presence of the accused; and no party shall be ³¹² put upon his trial upon mere hearsay evidence; but the witness shall be produced, and be subject to all the tests that the law has devised for the full disclosure of the truth. In all this, however, there is nothing to exclude other evidence recognized and sanctioned by the law, as fit and appropriate means of establishing the truth of the charge against the accused.” Presumably in this context — that where the testimony of a living witness is involved, the witness must be produced — the Court went on to hold, at page 362: “Indeed, there can be no question of the power of the Legislature to change the common law rules of evidence, or to prescribe new rules, altogether different from those known to the common law; and it may declare what proof shall be deemed, or taken as prima facie sufficient to establish any particular fact, even in criminal cases.” The Court next considered Article 21 in Dutton v. State, 123 Md. 373 (1914), an outrageous situation in tyhich the defendant, accused (and convicted) of a capital crime, was excluded from the courtroom while the chief witness against him testified. This did not involve the question of documentary evidence, but only whether the accused had a right to be present to confront a witness giving evidence against him. Citing Johns v. State, supra, as authority, the Court reversed the conviction. 15 In Jones v. State, 205 Md. 528 (1954), the Court interpreted Johns as concluding that “the right of confrontation does not apply to documentary evidence, and that the Legislature has the constitutional power to change the common law rules of evidence as to what documents are admissible and the weight ³¹³ to be attributed to them, even in criminal cases.” The defendant in Jones was charged with performing an illegal abortion.

In order to bolster the “victim’s” uncertain testimony as to her pregnancy, the State called the head of the department of obstetrics at the hospital in which the “victim” was treated, who brought with him the hospital record, for the purpose of establishing that the “victim” had, in fact, been pregnant. This witness had not himself examined the woman. An objection was made to any testimony by this physician based upon the hospital record on the ground that the record was not made as a result of an examination by that doctor and because it was hearsay. No mention was made of the right of confrontation.

In point of fact, the hospital record was never offered into evidence, and the doctor’s testimony was given without any reference to it. Despite both the lack of objection based upon Article 21, and the fact that the record itself was neither offered nor referred to, the Court concluded that, had it been offered, it would have been admissible under the business record statute, and that that statute, making the hospital record admissible, did not violate Article 21. Johns was cited and construed in that context. In light of the factual background of the case, it is difficult to regard the sweeping statement that “the right of confrontation does not apply to documentary evidence” as anything more than dicta, the support for which is not altogether clear. 16 ³¹⁴ Jones was cited, without comment, in Dunn v. State, supra, as authority for the proposition that the business record statute was applicable in criminal cases.

This was, as previously noted, in the context of an objection based on hearsay, rather than confrontation, grounds. 17 Despite this somewhat shaky development, however, as of 1965, the law •of Maryland {Johns and Jones) seemed to be that the right of confrontation did not apply to documentary evidence in any form, including hospital records; and that, if a document was otherwise admissible under traditional or statutory rules of evidence, it was not rendered inadmissible under Article 21, regardless of what it contained. At this point, with Pointer v. Texas, supra, the State and Federal rights coalesce, and it is necessary, therefore, to trace the development of the Sixth Amendment provision. In Mattox v. United States, 156 U. S. 237 (1895), one of the earliest cases involving the federal right of confrontation, the Court stated (p. 242): “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner 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.” Mattox had been convicted of murder in an earlier trial, but the conviction had been reversed on appeal. In the interval before his retrial, two material witnesses had died, and the question was whether a transcript of the reporter’s notes of ³¹⁵ their earlier testimony was admissible at the second trial.

The Court held that it was admissible, noting, on the one hand, that “the right of cross-examination once having been exercised, it was no hardship upon the defendant to allow the testimony of the deceased witness to be read”, and that to read the constitution in so technical a manner as to produce a different result would be to carry the right “farther than is necessary to the just protection of the accused, and farther than the safety of the public will warrant.” The simple point in Mattox is that, where a witness has once given testimony under oath, in the presence of the accused, subject to cross-examination, and that witness is unavailable to be present at trial, his recorded testimony is admissible. The right of confrontation, though applicable, has been satisfied. This is entirely consistent with what Hawkins, Chitty, and Hale believed the common law rule and practice to be (see footnote 6) and has been adopted on a number of occasions since Mattox by the Maryland Court of Appeals. 18 A different principle is applicable, at least under federal standards, when a document other than prior recorded testimony is involved. The Supreme Court first dealt with this issue in Kirby v. United States, 174 U. S. 47 (1899).

The defendant there was convicted of receiving stolen goods. A necessary element of that crime was proof that the goods in question had been stolen from the United States government. This element was sought to be proved by offering a record of the conviction of the person who allegedly stole the goods, under a federal statute making the thief’s conviction conclusive evidence against the alleged receiver that U. S. property was stolen. The Court held the statute unconstitutional, declaring that, constitutionally, the ³¹⁶ document — the record of conviction — could not suffice to establish a fact required to be proved by witnesses. 19 A further strengthening of the federal right came in Motes v. United States, 178 U. S. 458 (1900).

There, the Court concluded that the transcript of testimony of a government witness, given at a preliminary hearing at which cross-examination was allowed, was not admissible at trial where the witness had absconded as a result of the government’s negligence. At page 474, the Court stated: “We are unwilling to hold it to be consistent with the constitutional requirement that an accused shall be confronted with the witnesses against him, to permit the deposition or statement of an absent witness taken at an examining trial to be read at the final trial, when it does not appear that the witness was absent by the suggestion, connivance, or procurement of the accused, but does appear that his absence was due to the negligence of the prosecution. We need not decide more in the present case.” In Dowdell v. United States, 221 U. S. 325 (1911), the Court considered a statutory codification of the Sikth Amendment right, as it appeared in the Philippine Bill of Rights. On the defendant’s initial appeal to the Philippine Supreme Court, a question arose as to whether he had ever entered a plea to the charge, and whether he had been present, as required, throughout his trial.

The record was unclear as to the latter question, and, in order to clarify it, the territorial Supreme ³¹⁷ Court directed the trial court clerk to certify (1) whether he, the clerk, was present throughout the trial, and (2) whether, from his own observation, the defendant was also continuously present. The United States Supreme Court upheld this procedure against attack on confrontation grounds, stating: “This provision of the statute [right of confrontation] intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination. It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination.” The Court went on to say, however, (p. 330): “But this general rule of law embodied in the Constitution ... and intended to secure the right of the accused to meet the witnesses face to face, and to thus sift the testimony produced against him, has always had certain well-recognized exceptions. As examples are cases where the notes of testimony of deceased witness, of which the accused has had the right of cross-examination in a former trial, have been admitted.

Dying declarations, although not made in the presence of the accused, are uniformly recognized as competent testimony. Mattox v. United States, supra. Documentary evidence to establish collateral facts admissible under the common law, may be admitted in evidence.” (Emphasis supplied.) The Court did not explain what it meant by the qualifying phrase “to establish collateral facts”; but it does seem clear ³¹⁸ that it was not excepting all documentary evidence from the strictures of the confrontation clause. 20 Some additional doubt about the status of documentary evidence arose from the Court’s Opinion in Snyder v. Massachusetts, 291 U. S. 97 (1934), a case that involved neither documents nor the right of confrontation. Massachusetts law permitted a jury to view the scene of the alleged crime, and the sole question before the Court was whether Snyder’s Fourteenth Amendment right to due process of law (rather than his Sixth Amendment right to confrontation) was violated because he was not present when the jury was taken to the scene and made its view.

In affirming the conviction, the Court attempted to draw a distinction between the “privilege of presence” and the “privilege of confrontation”, and, with citations omitted, said of the latter, at page 107: “Nor has the privilege of confrontation at any time been without recognized exceptions, as for instance dying declarations or documentary evidence____The exceptions are not even static, but may be enlarged ³¹⁹ from time to time, if there is no material departure from the reason of the general rule.” (Emphasis supplied.) 21 The Court made clear what it viewed as the “reason of the general rule” in Pointer v. Texas, 380 U. S. 400 , as it declared the essence of this “fundamental right” of confrontation to be the right of cross-examination, made effective by the assistance of counsel. See pp. 405-407. Recognizing the admissibility of dying declarations, testimony of a deceased witness who testified at a former trial, and “other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses”, the Court nevertheless concluded that “a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” This “fundamental right” which, in that case, was incorporated into the due process clause of the Fourteenth Amendment and thus made obligatory upon the States, the Court held was violated when a transcript of testimony given at a preliminary hearing, at which the defendant was present but without counsel, was admitted into evidence without the witness being present at trial. The Court’s holding may be summarized in this part of its statement at p. 407: “Because the transcript of [the witness’] statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine [the witness], its introduction ... in a criminal case ... amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment.” Re-affirmation of this concept of the right of confrontation — that of preserving and ensuring the right of ³²⁰ cross-examination — came in Douglas v. Alabama, 380 U. S. 415 (1965) and again in Bruton v. United States, 391 U. S. 123 (1968), both cases involving the admissibility of confessions by an accomplice who, by virtue of the Fifth Amendment, was not subject to cross-examination. 22 It came again, even more pointedly in Barber v. Page, 390 U. S. 719 (1968), dealing again with the use of a transcript of testimony given at a preliminary hearing.

Pointer , as noted, rendered such a transcript inadmissible if the witness whose testimony it recorded had not been subject to cross-examination. In Barber , the Court, extending perhaps the rationale of Motes, supra, concluded that, even if the former testimony was given subject to. cross-examination, the transcript is still inadmissible unless the witness is truly unavailable for trial, and that his incarceration in a federal prison outside of the State’s jurisdiction did not render him constitutionally unavailable. Pointing out the different ways in which the State could have obtained the witness for trial, the Court said, at page 724: “In short, a witness is not ‘unavailable’ for purposes of the foregoing exceptions to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence.

The right of confrontation may not be dispensed with so lightly.” The right to confrontation, the Court held, “is basically a trial right” that includes “both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” Thus, “[wjhile there may be some ³²¹ justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable,” that justification does not pertain where the witness can be produced in court. Since Pointer , the Supreme Court has never retreated from what is essentially a two-step view of the confrontation clause: (1) that its principal mission is to ensure a fair trial by safe-guarding the right of effective cross-examination of witnesses; and (2) this is a mission that can be accomplished only by requiring witnesses giving critical evidence to be in court where they may be cross-examined in the presence of the accused and the trier of fact. The cases following Barber and Bruton only reinforce that interpretation. California v. Green, 399 U. S. 149 (1970), marked the first occasion in which the Court squarely addressed, in a broad way, the interrelationships between the right of confrontation and the hearsay rule.

At issue was the extent to which the prior inconsistent statement of a witness testifying at trial was admissible into evidence. Noting that, in terms of the law of evidence, there were two points of view about this — the majority view allowing such statements only for the purpose of impeachment, and not for their truth, the minority view permitting such statements to be received for their truth — the Court addressed what it deemed to be the narrow issue of whether the right of confrontation is “necessarily inconsistent with a State’s decision to change its