CALIFORNIA v.

GREEN
June 23, 1970 | Mr. Justice White | Hearsay: Testimonial
Knowledge
Digester: Fausto, Jaime Manuel A.

provided in these rules, prior out-of-court testimonies should be

admissible if such were made based on the witness personal
knowledge. This case probably adds that such testimonies will be
admissible for as long as the witness was properly cross-examined.

SUMMARY: Melvin Porter was arrested for selling marijuana to

an undercover police officer. In a preliminary hearing, Porter made
statements naming respondent Green as his supplier. The
statements were subjected to cross-examination by Greens
counsel. Green was then charged with selling drugs to a minor. In
Greens trial, however, Porter suddenly made statements
inconsistent with the ones he made during the preliminary
hearing, and claimed that he wasnt sure if Green was actually his
supplier. Porter however admitted that he made the statements in
the preliminary hearing, and insisted that he was telling the truth
then, and that he was telling the truth in the trial itself and that he
just had difficulty remembering the details. Green was convicted
by the district Court. The District CA and California SC reversed
this, holding that Sec. 1235 of the California Evidence Code (see
provision in first bullet below) was unconstitutional insofar as it
permitted the substantive use of prior inconsistent statements of a
witness, even though the statements were subject to crossexamination at a prior hearing. They held that Green was deprived
of his right to confrontation and that the cross-examination during
the preliminary hearing was insufficient. The US SC vacated the
California SCs decision and remanded the case. It held that Sec.
1235 was constitutional and that Porters statements should have
been admitted.
DOCTRINE: The Confrontation Clause does not require excluding
from evidence the prior statements of a witness who concedes
making the statements, and who may be asked to defend or
otherwise explain the inconsistency between his prior and his
present version of the events in question, for he thus opens himself
to full cross-examination at trial as to both stories.
The substantive use of prior inconsistent statements is permitted
on the theory that the usual dangers of hearsay are largely
nonexistent where the witness testifies at trial. The whole purpose
of the Hearsay rule has been already satisfied because the witness
is present and subject to cross-examination and there is ample
opportunity to test him as to the basis for his former statement.
As to our R130.6, Testimony generally confined to personal
knowledge; hearsay excluded. A witness can testify only to
those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as otherwise

BACKGROUND:
Sec. 1235 of the California Evidence Code provides that,
evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing and is offered in
compliance with Section 770.
In People v Johnson, the California SC held that prior
statements of a witness that were not subject to crossexamination when originally made, could not be introduced
under this section to prove the charges against a defendant
without violating the defendant's right of confrontation under
the 6th Amendment.
FACTS:
Melvin Porter, a 16-year old minor, was arrested for selling
marijuana to an undercover police officer. After his arrest,
Porter named respondent Green as his supplier.
Officer Wade heard Porters statements. Porter claimed that
green asked him to sell the drugs and personally delivered to
him 29 baggies of marijuana. This is what Porter sold to the
undercover police officer.
At Greens preliminary hearing, Porter again named Green
as the supplier, but now instead claimed that Green showed
him where to find the drugs instead of personally delivering it
to him. Porters story was subjected to extensive crossexamination by Greens counsel. After this preliminary
hearing, Green was charged with furnishing marijuana to a
minor in violation of California law.
Two months later, Greens trial took place. But this time,
Porter gave statements inconsistent with the ones he
gave in the preliminary hearing:
He was markedly evasive and uncooperative on the stand
He suddenly said he was on acid (LSD) so he didnt know
how he got the drugs, or even whether or not Green was
the supplier in the first place
The prosecutor than read Porters statements from the
preliminary hearing. Porter said his memory was then
refreshed and then proceeded to say that he in fact got the

drugs where Green pointed it out, but then later again said
that he was actually unsure of what happened.
Porter admitted making the statement in the preliminary
hearing, and insisted that he had been telling the truth when
interviewed by Officer Wade and when he made it during the
hearing, but also that he was telling the truth in the main trial
and just claiming that he couldnt remember the actual events.
Green was convicted by the District Court.
District CA reversed, holding that the use of Porter's prior
statements for the truth of the matter asserted therein, denied
respondent his right of confrontation under the California SCs
recent decision in People v. Johnson.
California SC affirmed, holding that Sec. 1235 was
unconstitutional insofar as it permitted the substantive use of
prior inconsistent statements of a witness, even though the
statements were subject to cross-examination at a prior
hearing.
The California SC held that neither the right nor the
opportunity to cross-examine Porter at the preliminary
hearing satisfied the commands of the Confrontation
Clause.
It relied on People v Johnson in holding that the crossexamination in the trial itself is not an adequate substitute
for the cross-examination made in the preliminary hearing,
thus violating Greens right to Confrontation.

RULING: California SS decision vacated and case remanded.

Whether the California SC erred in excluding Porters prior
testimony made in the preliminary hearing YES.
The orthodox view of Sec. 1235 and as relied upon by the
California SC is that the out-of-court statements are
inadmissible for the usual reasons that have led to the
exclusion of hearsay statements: the statement may not have
been made under oath; the declarant may not have been
subjected to cross-examination when he made the statement;
and the jury cannot observe the declarant's demeanor at the
time he made the statement.
The minority view supported by most legal commentators and
applied by the US SC permits the substantive use of prior
inconsistent statements on the theory that the usual
dangers of hearsay are largely nonexistent where the
witness testifies at trial:

"The whole purpose of the Hearsay rule has been

already satisfied because the witness is present and
subject to cross-examination and there is ample
opportunity to test him as to the basis for his former
statement."
The violation of the Confrontation Clause refers to the dangers
of the practice of trying defendants on evidence that consisted
solely of ex parte affidavits or depositions secured by the
examining magistrates, thus denying the defendant the
opportunity to challenge his accuser in a face-to-face
encounter in front of the trier of fact.
This has also been invoked when there is a failure to call the
witness to personally confront the defendant at his trial; but
the Court ruled that so long as the witness was present at the
trial to repeat his story and to explain or repudiate any
conflicting prior stories, such satisfied the Confrontation
Clause. The Confrontation Clause is not violated by
admitting a declarant's out-of-court statements, as long
as the declarant is testifying as a witness and subject to
full and effective cross-examination.
The Confrontation Clause curbs the dangers brought about by
admitting out-of-court statements by:
Insuring that the witnesses gives statements under oath
Forces the witnesses to submit to cross-examination
Permits the jury to observe the demeanor of the witness
HOWEVER, the Court held that as long as the declarant is
present and testifying at trial, the dangers would be absent and
what the Clause seeks to protect is fulfilled. If the witness
admits the prior statement is his, or if there is other evidence
to show the statement is his, the danger of faulty reproduction
is negligible and the jury can be confident that it has before it
two conflicting statements by the same witness.
Also, the inability to cross-examine the witness when he made
his prior statement is permissible as long as the defendant is
assured of full and effective cross-examination during the trial
itself. Thus, the California SC is wrong in saying that a belated
cross-examination is not an adequate substitute for crossexamination during Porters original statement in the
preliminary hearing.
Also, there are no decisions in interpreting the Clause that
requires excluding the out-of-court statements of a witness who
is available and testifying at trial. In fact, the Clause has been
applied only in cases where the prior statements were

admitted in the absence of the declarant and with no

opportunity to cross-examine him. There is therefore no
confrontation problem concerning out-of-court
statements where the declarant is not absent, but is
present to testify and to submit to cross-examination.
In sum:
There is nothing in the history or purposes of the
Confrontation Clause, or in jurisprudence, that requires the
exclusion of prior statements of a witness who concedes in
making those statements; and
If he can also be asked to defend or explain the
inconsistency between his prior and present statements, for
he is thus opened to full cross-examination at the trial as to
both versions of the story.

Whether Porters testimony at the preliminary hearing was

admissible in the trial in the first place YES.
Porters statements at the preliminary hearing had been given
under circumstances closely approximating those that
surround the typical trial.
Thus, the Court believes that such would be admissible even if
Porter had been unavailable in the trial itself. All the more
reason that the statements should be admissible since Porter
was in fact present at the trial.
Assuming that Porter died or was unavailable at the trial itself,
the Court held that the fact that there was a cross-examination
would constitute substantial compliance with the confrontation
requirement for the purposes of the trial itself, for as long as
the declarants inability to testify was in no fault of the State.
BURGER, CONCURRING
He just pointed out that he concurs with the decision and that
the doctrine has been applied in Kentucky and Wisconsin.
The law in question meets the tests of the 6th and 14th
Amendments, and further developments on this doctrine have
yet to be seen in further cases.
HARLAN, CONCURRING
There is a need to distinguish confrontation with crossexamination. If not, the hearsay rules and exceptions will be
transplanted into the body of constitutional protections and
would thus make decisions ambiguous.

Confrontation was intended by the framers to be less than a

right to exclude hearsay.
The text of the Sixth Amendment reads: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." But witness can
refer to an extrajudicial declarant and thus the clause is
susceptible to be interpreted as a blanket prohibition on the
use of hearsay.
Harlan agrees more with the theory that the right of the
accused in a criminal prosecution to be confronted with the
witnesses against him did not originate with the provision of
the Sixth Amendment, but was a common law right
The Confrontation Clause was meant to constitutionalize a
barrier against flagrant abuses, trials by anonymous accusers,
and absentee witnesses. That the Clause was intended to
ordain common law rules of evidence with constitutional
sanction is doubtful, notwithstanding English decisions that
equate confrontation and hearsay.
There is also no "confrontation" reason why the prosecution
should not use a witness' prior inconsistent statement for the
truth of the matters therein asserted. The fact that the witness,
though physically available, cannot recall either the
underlying events that are the subject of an extra-judicial
statement or previous testimony or recollect the circumstances
under which the statement was given, does not have Sixth
Amendment consequence. The prosecution has no less fulfilled
its obligation simply because a witness has a lapse of memory.

BRENNAN, DISSENTING
The only issue is if Green had in fact furnished Porter, a minor,
with drugs thus violating California Law. The evidence
presented included Porters statements.
The facts then present two questions regarding the application
of Sec. 1235:s
Whether the conformation clause permits a witness
extrajudicial statement to be admitted at trial as
substantive evidence when the witness claims to be unable
to remember the events in his statement; and
Whether the clause permits a witness' preliminary hearing
statement, made under oath and subject to crossexamination, to be introduced at trial as substantive
evidence when the witness claims to be unable to
remember the events with which the statement dealt.

There is no way to test the recollection and sift the conscience

of a witness regarding the facts of an alleged offense if he is
unwilling or unable to be questioned about them.
This Court has already explicitly held in Douglas v. Alabama,
that the Confrontation Clause forbids the substantive use at
trial of a prior extrajudicial statement, when the declarant is
present at trial but unwilling to testify about the events with
which his prior statement dealt.
For purposes of the Confrontation Clause, there is no
significant difference between a witness who fails to testify
about an alleged offense because he is unwilling to do so and a
witness whose silence is compelled by an inability to
remember.
Both are called to the stand to testify.
The jury may view the demeanor of each.
But in neither instance are the purposes of the
Confrontation Clause satisfied, because the witness cannot
be questioned at trial concerning the pertinent facts.
As to the second issue, in Barber v Page, we stated that
confrontation at a preliminary hearing cannot compensate for
the absence of confrontation at trial, because the nature and
objectives of the two proceedings differ significantly. The crossexamination at the haring pales in comparison to what takes
place in a trial.
In a preliminary hearing: the purposes of the confrontation
clause cannot be satisfied.
The objective is to establish probable cause only; the
defense counsel has little reason to establish guilt
Neither party would disclose its case by extensive
examination
The state cannot accommodate lengthy preliminary
hearings

There is little time before such hearing to prepare for

extensive examination
If cross-examination at the preliminary hearing rarely
approximates that at trial, observation by the trial factfinder of
the witness' demeanor as he gives his prior testimony is
virtually nonexistent. And yet, the majority pointed out that the
demeanor is a significant factor in weighing testimonial
evidence.
The Court's ruling, moreover, may have unsettling effects on
the nature and objectives of future preliminary hearings. This
would invite lengthy cross-examination and delays and
continuances, and all other factors in a trial. The full-scale
cross-examination should be done at the trial instead.
The Court relies heavily on the traditional practice of
admitting the prior testimony of a witness who is physically
unavailable at trial. It finds no ground for distinguishing
between the pretrial declarant who fails to testify at trial
because he is not physically present and the pretrial declarant
who, though present at trial, fails to testify because he is
unwilling or unable to do so.
The reliability of pretrial testimony, in turn, is not determined
simply by the circumstances under which it was given. It is also
influenced by subsequent developments, namely: (1) failure to
testify at trial because of physical unavailability and (2) failure
to testify because of unwillingness to do so or inability to
remember. These have very different implications for reliability
of prior testimony. Reliability cannot be assumed simply
because a prior statement was made at a preliminary hearing.
As applied, Porters situation casts doubt upon his reliability in
in the preliminary hearing. The probable unreliability of the
prior testimony, coupled with the impossibility of its
examination during trial, denies the accused his right to probe
and attempt to discredit incriminating evidence.