california
green
argued
april
decided
june
respondent
convicted
furnishing
marihuana
minor
violation
california
law
chiefly
basis
evidence
consisting
prior
inconsistent
statements
made
minor
porter
respondent
preliminary
hearing
police
officer
statements
admitted
california
evidence
code
prove
truth
matters
asserted
therein
district
appeal
reversed
california
affirmed
held
unconstitutional
insofar
permitted
substantive
use
witness
prior
inconsistent
statements
even
though
statements
subject
prior
hearing
held
confrontation
clause
sixth
amendment
made
applicable
fourteenth
amendment
violated
admitting
declarant
statements
long
testifying
witness
trial
subject
full
purposes
amendment
satisfied
time
trial
even
since
witness
oath
subject
demeanor
observed
trier
fact
pp
even
absence
opportunity
full
trial
admission
evidence
preliminary
hearing
testimony
violate
constitution
preliminary
hearing
case
porter
oath
respondent
represented
counsel
full
opportunity
significantly
different
actual
trial
far
purposes
confrontation
clause
concerned
long
held
admitting
prior
trial
testimony
unavailable
witness
violate
clause
different
result
follow
case
witness
actually
produced
pp
question
whether
porter
claimed
lapse
memory
trial
important
events
described
earlier
statement
officer
affected
respondent
right
make
critical
difference
application
confrontation
clause
issue
first
resolved
state
pp
william
james
assistant
attorney
general
california
argued
cause
petitioner
briefs
thomas
lynch
attorney
general
barrett
prettyman
appointment
argued
cause
filed
brief
respondent
solicitor
general
griswold
argued
cause
amicus
curiae
urging
reversal
brief
assistant
attorney
general
wilson
peter
strauss
beatrice
rosenberg
roger
pauley
justice
white
delivered
opinion
section
california
evidence
code
effective
january
provides
vidence
statement
made
witness
made
inadmissible
hearsay
rule
statement
inconsistent
testimony
hearing
offered
compliance
section
people
johnson
cal
cert
denied
california
held
prior
statements
witness
subject
originally
made
introduced
section
prove
charges
defendant
without
violating
defendant
right
confrontation
guaranteed
sixth
amendment
made
applicable
fourteenth
amendment
case
us
california
applied
ban
prior
statement
witness
made
preliminary
hearing
oath
subject
full
adequately
counseled
defendant
agree
california
two
reasons
one
involves
rejection
holding
people
johnson
january
one
melvin
porter
minor
arrested
selling
marihuana
undercover
police
officer
four
days
arrest
custody
juvenile
authorities
porter
named
respondent
green
supplier
recounted
later
one
officer
wade
porter
claimed
green
called
earlier
month
asked
sell
stuff
grass
afternoon
personally
delivered
shopping
bag
containing
baggies
marihuana
supply
porter
made
sale
undercover
officer
week
later
porter
testified
respondent
preliminary
hearing
named
respondent
supplier
although
claimed
instead
personally
delivering
marihuana
green
showed
pick
shopping
bag
hidden
bushes
green
parents
house
porter
story
preliminary
hearing
subjected
extensive
respondent
counsel
counsel
represented
respondent
subsequent
trial
conclusion
hearing
respondent
charged
furnishing
marihuana
minor
violation
california
law
respondent
trial
took
place
two
months
later
sitting
without
jury
state
chief
witness
young
porter
time
porter
words
california
proved
markedly
evasive
uncooperative
stand
people
green
cal
testified
respondent
called
january
asked
sell
unidentified
stuff
admitted
obtaining
shortly
thereafter
plastic
baggies
marihuana
sold
pressed
whether
respondent
supplier
porter
claimed
uncertain
obtained
marihuana
primarily
time
acid
lsd
taken
minutes
respondent
phoned
porter
claimed
unable
remember
events
followed
phone
call
drugs
taken
prevented
distinguishing
fact
fantasy
see
app
various
points
porter
direct
examination
prosecutor
read
excerpts
porter
preliminary
hearing
testimony
evidence
admitted
truth
matter
contained
therein
memory
refreshed
preliminary
hearing
testimony
porter
guessed
indeed
obtained
marihuana
backyard
respondent
parents
home
given
money
sale
respondent
however
porter
indicated
memory
preliminary
testimony
mostly
refreshed
rather
memory
events
still
unsure
actual
episode
see
app
later
trial
officer
wade
testified
relating
porter
earlier
statement
respondent
personally
delivered
marihuana
statement
also
admitted
substantive
evidence
porter
admitted
making
statement
app
insisted
telling
truth
believed
officer
wade
preliminary
hearing
insisted
also
telling
truth
claiming
inability
remember
actual
events
respondent
convicted
district
appeal
reversed
holding
use
porter
prior
statements
truth
matter
asserted
therein
denied
respondent
right
confrontation
california
recent
decision
people
johnson
supra
california
affirmed
finding
impelled
recent
decisions
hold
unconstitutional
insofar
permitted
substantive
use
prior
inconsistent
statements
witness
even
though
statements
subject
prior
hearing
granted
state
petition
certiorari
ii
california
construed
confrontation
clause
sixth
amendment
require
exclusion
porter
prior
testimony
offered
evidence
prove
state
case
green
view
neither
right
porter
trial
concerning
current
prior
testimony
opportunity
porter
preliminary
hearing
satisfied
commands
confrontation
clause
think
california
wrong
counts
positing
case
posed
instance
witness
gave
trial
testimony
inconsistent
prior
statements
california
authority
decision
people
johnson
supra
held
belated
trial
adequate
substitute
right
contemporaneous
original
testimony
different
tribunal
people
green
supra
disagree
section
california
evidence
code
represents
considered
choice
california
legislature
two
opposing
positions
concerning
extent
witness
prior
statements
may
introduced
trial
without
violating
hearsay
rules
evidence
orthodox
view
adopted
jurisdictions
statements
inadmissible
usual
reasons
led
exclusion
hearsay
statements
statement
may
made
oath
declarant
may
subjected
made
statement
jury
observe
declarant
demeanor
time
made
statement
accordingly
view
statement
may
offered
show
truth
matters
asserted
therein
introduced
appropriate
limiting
instructions
impeach
credibility
witness
changed
story
trial
contrast
minority
view
adopted
jurisdictions
supported
legal
commentators
recent
proposals
codify
law
evidence
permit
substantive
use
prior
inconsistent
statements
theory
usual
dangers
hearsay
largely
nonexistent
witness
testifies
trial
whole
purpose
hearsay
rule
already
satisfied
witness
present
subject
ample
opportunity
test
basis
former
statement
task
case
decide
positions
purely
matter
law
evidence
sounder
issue
us
considerably
narrower
one
whether
defendant
constitutional
right
confronted
witnesses
necessarily
inconsistent
state
decision
change
hearsay
rules
reflect
minority
view
described
may
readily
conceded
hearsay
rules
confrontation
clause
generally
designed
protect
similar
values
quite
different
thing
suggest
overlap
complete
confrontation
clause
nothing
less
codification
rules
hearsay
exceptions
existed
historically
common
law
decisions
never
established
congruence
indeed
found
violation
confrontation
values
even
though
statements
issue
admitted
arguably
recognized
hearsay
exception
see
barber
page
pointer
texas
converse
equally
true
merely
evidence
admitted
violation
hearsay
rule
lead
automatic
conclusion
confrontation
rights
denied
given
similarity
values
protected
however
modification
state
hearsay
rules
create
new
exceptions
admission
evidence
defendant
often
raise
questions
compatibility
defendant
constitutional
right
confrontation
questions
require
attention
reasons
basic
scope
protections
offered
confrontation
clause
origin
development
hearsay
rules
confrontation
clause
traced
others
need
recounted
detail
sufficient
note
particular
vice
gave
impetus
confrontation
claim
practice
trying
defendants
evidence
consisted
solely
ex
parte
affidavits
depositions
secured
examining
magistrates
thus
denying
defendant
opportunity
challenge
accuser
encounter
front
trier
fact
prosecuting
attorneys
frequently
allege
matters
prisoner
denied
called
upon
prove
proof
usually
given
reading
depositions
confessions
accomplices
letters
like
occasioned
frequent
demands
prisoner
accusers
witnesses
brought
face
face
objections
occasioned
practice
appear
primarily
aimed
failure
call
witness
confront
personally
defendant
trial
far
appears
claiming
confrontation
rights
objection
made
receiving
witness
depositions
statements
long
witness
present
trial
repeat
story
explain
repudiate
conflicting
prior
stories
trier
fact
decisions
seem
recognized
early
date
literal
right
confront
witness
time
trial
forms
core
values
furthered
confrontation
clause
primary
object
constitutional
provision
question
prevent
depositions
ex
parte
affidavits
sometimes
admitted
civil
cases
used
prisoner
lieu
personal
examination
witness
accused
opportunity
testing
recollection
sifting
conscience
witness
compelling
stand
face
face
jury
order
may
look
judge
demeanor
upon
stand
manner
gives
testimony
whether
worthy
belief
mattox
conclusion
supported
comparing
purposes
confrontation
alleged
dangers
admitting
statement
confrontation
insures
witness
give
statements
oath
thus
impressing
seriousness
matter
guarding
lie
possibility
penalty
perjury
forces
witness
submit
greatest
legal
engine
ever
invented
discovery
truth
permits
jury
decide
defendant
fate
observe
demeanor
witness
making
statement
thus
aiding
jury
assessing
credibility
course
true
statement
may
made
circumstances
subject
none
protections
declarant
present
testifying
trial
statement
practical
purposes
regains
lost
protections
witness
admits
prior
statement
evidence
show
statement
danger
faulty
reproduction
negligible
jury
confident
two
conflicting
statements
witness
thus
far
oath
concerned
witness
must
affirm
deny
qualify
truth
prior
statement
penalty
perjury
indeed
fact
prior
statement
given
similar
circumstance
may
become
witness
explanation
inaccuracy
explanation
jury
may
expected
understand
take
account
deciding
either
statements
represents
truth
second
inability
witness
time
made
prior
statement
easily
shown
crucial
significance
long
defendant
assured
full
effective
time
trial
successful
time
prior
statement
made
hardly
hope
accomplish
already
accomplished
fact
witness
telling
different
inconsistent
story
case
one
favorable
defendant
share
california
view
belated
never
serve
constitutionally
adequate
substitute
contemporaneous
original
statement
main
danger
substituting
subsequent
timely
seems
lie
possibility
witness
alse
testimony
apt
harden
become
unyielding
blows
truth
proportion
witness
opportunity
reconsideration
influence
suggestions
others
whose
interest
may
often
maintain
falsehood
rather
truth
state
saporen
danger
however
disappears
witness
changed
testimony
far
hardening
prior
statement
softened
point
repudiates
defendant
task
course
longer
identical
task
faced
witness
changed
story
hence
examined
hostile
witness
giving
evidence
prosecution
difference
however
far
lessening
may
actually
enhance
defendant
ability
attack
prior
statement
witness
favorable
defendant
willing
give
usual
suggested
explanations
inaccuracy
prior
statement
faulty
perception
undue
haste
recounting
event
circumstances
defendant
likely
hampered
effectively
attacking
prior
statement
solely
attack
comes
later
time
similar
reasons
lead
us
discount
constitutional
matter
fact
jury
trial
foreclosed
viewing
declarant
demeanor
first
made
statement
witness
relates
different
story
events
question
must
necessarily
assume
position
truth
value
prior
statement
thus
giving
jury
chance
observe
evaluate
demeanor
either
disavows
qualifies
earlier
statement
jury
alerted
inconsistency
stories
attention
sharply
focused
determining
either
one
stories
reflects
truth
witness
apparently
lied
simply
lacking
credibility
warrant
believing
either
story
defendant
confrontation
rights
violated
even
though
demeanor
evidence
relevant
resolving
credibility
issue
forever
lost
may
true
jury
better
position
evaluate
truth
prior
statement
somehow
whisked
magically
back
time
witness
gruelling
declarant
first
gives
statement
question
see
must
whether
one
somehow
imagine
jury
better
position
whether
subsequent
defendant
trial
still
afford
trier
fact
satisfactory
basis
evaluating
truth
prior
statement
issue
neither
evidence
reason
convinces
us
contemporaneous
ultimate
trier
fact
much
effective
subsequent
examination
must
made
touchstone
confrontation
clause
finally
note
none
decisions
interpreting
confrontation
clause
requires
excluding
statements
witness
available
testifying
trial
concern
cases
focused
precisely
opposite
situation
situations
statements
admitted
absence
declarant
without
chance
trial
situations
arisen
application
number
traditional
exceptions
hearsay
rule
permit
introduction
evidence
despite
absence
declarant
usually
theory
evidence
possesses
indicia
reliability
incapable
admitted
despite
efforts
state
way
secure
confrontation
declarant
exceptions
dispensing
altogether
literal
right
confrontation
subjected
several
occasions
careful
scrutiny
pointer
texas
example
state
introduced
defendant
trial
transcript
crucial
witness
testimony
prior
preliminary
hearing
witness
one
phillips
left
jurisdiction
appear
trial
transcript
phillips
statement
offered
petitioner
trial
taken
time
circumstances
affording
petitioner
counsel
adequate
opportunity
phillips
held
introduction
violated
defendant
confrontation
rights
similarly
barber
page
state
introduced
preliminary
hearing
testimony
absent
witness
incarcerated
federal
prison
unavailability
exception
hearsay
rules
held
exception
justify
denial
confrontation
state
made
effort
obtain
presence
allegedly
unavailable
witness
occasion
present
case
map
theory
confrontation
clause
determine
validity
hearsay
exceptions
permitting
introduction
absent
declarant
statements
declarant
absent
present
testify
submit
cases
anything
support
conclusion
admission
statements
create
confrontation
problem
thus
douglas
alabama
decided
day
pointer
reversed
conviction
prosecution
read
record
alleged
confession
defendant
supposed
accomplice
loyd
refused
testify
grounds
confrontation
problem
arose
precisely
loyd
prior
statement
taken
place
opinion
strongly
suggests
confrontation
problem
nonexistent
circumstances
case
petitioner
inability
loyd
alleged
confession
plainly
denied
right
secured
confrontation
clause
loyd
statement
imputed
admitted
ince
state
evidence
tended
show
loyd
made
confession
genuineness
substitute
loyd
test
truth
statement
hence
effective
confrontation
loyd
possible
loyd
affirmed
statement
find
nothing
either
history
purposes
confrontation
clause
prior
decisions
compels
conclusion
reached
california
concerning
validity
california
contrary
judgment
confrontation
clause
require
excluding
evidence
prior
statements
witness
concedes
making
statements
may
asked
defend
otherwise
explain
inconsistency
prior
present
version
events
question
thus
opening
full
trial
stories
iii
also
think
porter
preliminary
hearing
testimony
admissible
far
constitution
concerned
wholly
apart
question
whether
respondent
effective
opportunity
confrontation
subsequent
trial
porter
statement
preliminary
hearing
already
given
circumstances
closely
approximating
surround
typical
trial
porter
oath
respondent
represented
counsel
counsel
fact
later
represented
trial
respondent
every
opportunity
porter
statement
proceedings
conducted
judicial
tribunal
equipped
provide
judicial
record
hearings
circumstances
porter
statement
think
admissible
trial
even
porter
absence
porter
actually
unavailable
despite
efforts
state
produce
case
think
different
result
follow
witness
actually
produced
long
ago
held
admitting
prior
testimony
unavailable
witness
violate
confrontation
clause
mattox
case
involved
testimony
given
defendant
first
trial
witness
died
time
second
trial
find
instant
preliminary
hearing
significantly
different
actual
trial
warrant
distinguishing
two
cases
purposes
confrontation
clause
indeed
indicated
much
pointer
texas
noted
case
us
quite
different
one
phillips
statement
taken
hearing
petitioner
represented
counsel
given
complete
adequate
opportunity
barber
page
although
noting
preliminary
hearing
ordinarily
less
searching
exploration
merits
case
trial
recognized
may
justification
holding
opportunity
witness
preliminary
hearing
satisfies
demands
confrontation
clause
witness
shown
actually
unavailable
present
case
respondent
counsel
appear
significantly
limited
way
scope
nature
witness
porter
preliminary
hearing
porter
died
otherwise
unavailable
confrontation
clause
violated
admitting
testimony
given
preliminary
hearing
right
afforded
provides
substantial
compliance
purposes
behind
confrontation
requirement
long
declarant
inability
give
live
testimony
way
fault
state
compare
barber
page
supra
motes
nothing
barber
page
cases
indicates
different
result
must
follow
state
produces
declarant
swears
witness
trial
may
rules
evidence
applicable
state
federal
courts
restrict
resort
prior
sworn
testimony
declarant
present
trial
constitutional
matter
untenable
construe
confrontation
clause
permit
use
prior
testimony
prove
state
case
declarant
never
appears
bar
testimony
declarant
present
trial
exposed
defendant
trier
fact
subject
case
witness
physically
unproducible
state
made
every
effort
introduce
evidence
live
testimony
witness
produced
porter
trial
swore
witness
tendered
whether
porter
testified
manner
consistent
inconsistent
preliminary
hearing
testimony
claimed
loss
memory
claimed
privilege
compulsory
simply
refused
answer
nothing
confrontation
clause
prohibited
state
also
relying
prior
testimony
prove
case
green
iv
narrow
question
lurking
case
concerning
admissibility
porter
statements
officer
wade
typical
case
california
addressed
witness
trial
gives
version
ultimate
events
different
given
prior
occasion
case
holding
part
ii
makes
clear
find
little
reason
distinguish
among
prior
inconsistent
statements
basis
circumstances
prior
statements
given
subsequent
opportunity
trial
respect
present
past
versions
event
adequate
make
equally
admissible
far
confrontation
clause
concerned
casual
remark
stranger
carefully
recorded
testimony
prior
hearing
however
porter
claimed
trial
remember
events
occurred
respondent
telephoned
hence
failed
give
current
version
important
events
described
earlier
statement
whether
porter
apparent
lapse
memory
affected
green
right
make
critical
difference
application
confrontation
clause
case
issue
ripe
decision
juncture
state
focus
precise
question
irrelevant
given
broader
erroneous
premise
statement
witness
inadmissible
substantive
evidence
whatever
nature
opportunity
trial
either
party
addressed
question
resolution
depends
much
upon
unique
facts
record
reluctant
proceed
without
state
views
record
actually
discloses
relevant
particular
issue
since
hold
admission
porter
preliminary
hearing
testimony
barred
sixth
amendment
despite
apparent
lapse
memory
reception
evidence
porter
statement
officer
wade
may
pose
question
appropriately
resolved
california
courts
first
instance
similarly
faced
remand
decision
invalid
face
california
may
choose
dispose
case
grounds
raised
green
passed
upon
example
ruling
california
deliberately
put
aside
issue
sufficiency
evidence
sustain
conviction
therefore
vacate
judgment
california
remand
case
proceedings
inconsistent
opinion
ordered
justice
blackmun
took
part
consideration
decision
case
footnotes
see
people
green
cal
see
comments
california
law
revision
commission
cal
evid
code
ellis
cir
state
saporen
cases
collected
wigmore
evidence
ed
hereinafter
cited
wigmore
see
jett
commonwealth
gelhaar
state
see
also
de
sisto
cir
friendly
cert
denied
block
cir
hand
cert
denied
di
carlo
cir
hand
cert
denied
dean
wigmore
first
noted
commentator
adopt
position
abandoning
earlier
approval
first
edition
treatise
orthodox
view
see
wigmore
model
code
uniform
rules
since
followed
wigmore
position
see
model
code
evidence
rule
uniform
rule
evidence
recent
preliminary
draft
rules
evidence
lower
federal
courts
see
committee
rules
practice
procedure
judicial
conference
preliminary
draft
proposed
rules
evidence
district
courts
magistrates
rule
commentators
urged
views
similar
wigmore
see
mccormick
evidence
maguire
hearsay
system
around
thicket
vand
rev
morgan
hearsay
dangers
application
hearsay
concept
harv
rev
wigmore
see
term
harv
rev
note
confrontation
hearsay
rule
yale
see
mccormick
supra
wigmore
morgan
supra
see
also
holdsworth
history
english
law
ed
note
preserving
right
confrontation
new
approach
hearsay
evidence
criminal
trials
rev
stephen
history
criminal
law
england
see
also
holdsworth
supra
famous
example
provided
trial
sir
walter
raleigh
treason
crucial
element
evidence
consisted
statements
one
cobham
implicating
raleigh
plot
seize
throne
raleigh
since
received
written
retraction
cobham
believed
cobham
testify
favor
lengthy
dispute
raleigh
right
cobham
called
witness
cobham
called
raleigh
convicted
see
stephen
supra
holdsworth
supra
least
one
author
traces
confrontation
clause
reaction
abuses
raleigh
trial
see
heller
sixth
amendment
wigmore
see
comment
substantive
use
extrajudicial
statements
witnesses
proposed
federal
rules
evidence
rich
rev
harv
rev
california
earlier
decision
issue
stated
practical
truth
importance
immediate
daily
verified
trial
lawyers
one
willingly
postpone
later
date
different
forum
right
witness
client
people
johnson
cal
cert
denied
citations
follow
sentence
books
trial
practice
shed
little
empirical
light
actual
comparative
effectiveness
subsequent
opposed
timely
text
suggests
witness
changed
story
trial
favor
defendant
anything
rather
less
vulnerable
defense
counsel
explanations
inaccuracy
former
statement
see
generally
wigmore
whether
admission
statement
violated
federal
evidentiary
rules
hearsay
see
emphasized
earlier
opinion
wholly
separate
question
indeed
failure
comply
federal
evidentiary
standards
appears
reason
result
bridges
wixon
case
might
thought
suggest
existence
possible
constitutional
problem
admitting
witness
prior
inconsistent
statements
substantive
evidence
reversed
deportation
order
based
evidence
holding
alternative
one
explicitly
rested
ground
relevant
agency
rules
permit
use
statements
see
suggest
use
statements
criminal
case
run
counter
notions
fairness
legal
system
founded
discussion
citations
appear
refer
orthodox
position
earlier
adopted
matter
federal
evidentiary
constitutional
law
see
hickory
may
agree
considerations
due
process
wholly
apart
confrontation
clause
might
prevent
convictions
reliable
evidentiary
basis
totally
lacking
see
thompson
louisville
read
bridges
declaring
constitution
necessarily
violated
admission
witness
prior
inconsistent
statement
truth
matter
asserted
opinion
bridges
discuss
confrontation
clause
explanation
advanced
contrary
conclusion
seems
witness
dead
otherwise
unavailable
state
may
good
faith
assume
given
story
trial
may
introduce
former
testimony
reasonably
reliable
prompted
factor
necessity
contrary
argued
witness
present
testify
relate
story
necessity
reliability
assumption
story
destroyed
see
people
green
cal
brief
respondent
necessity
exists
either
case
state
need
introduce
relevant
evidence
fault
introduced
way
assumption
witness
given
story
available
trial
little
another
way
saying
testimony
given
circumstances
make
reasonably
reliable
nothing
witness
death
example
justify
assuming
story
changed
trial
finally
reliability
statement
based
circumstances
given
circumstances
remain
unaffected
regardless
whether
witness
present
absent
later
trial
surely
terms
protecting
defendant
interests
jury
ability
assess
reliability
evidence
hears
seems
unlikely
respondent
case
better
dissent
seems
suggest
porter
died
prior
testimony
admitted
instant
case
porter
conduct
stand
cast
substantial
doubt
prior
statement
long
state
made
effort
produce
witness
actual
presence
absence
witness
constitutionally
relevant
purposes
unavailability
exception
hearsay
exception
generally
recognized
witness
unavailable
purposes
exception
lapse
memory
plea
fifth
amendment
privilege
state
secure
live
testimony
see
wigmore
even
among
proponents
view
prior
statements
admissible
substantive
evidence
disagreement
appears
exist
whether
apply
rule
case
witness
disclaims
present
knowledge
ultimate
event
commentators
noted
case
opportunities
testing
prior
statement
trial
may
significantly
diminished
see
falknor
hearsay
rule
exceptions
rev
rev
model
code
uniform
rules
apparently
admit
prior
inconsistent
statements
even
witness
claims
present
knowledge
recollection
event
see
model
code
evidence
rule
comment
uniform
rule
evidence
comment
preliminary
draft
proposed
rules
evidence
lower
federal
courts
seems
limit
admissibility
case
witness
actually
testifies
concerning
substance
event
issue
see
committee
rules
practice
procedure
judicial
conference
preliminary
draft
proposed
rules
evidence
district
courts
magistrates
rule
advisory
comm
notes
see
comment
substantive
use
extrajudicial
statements
witnesses
proposed
federal
rules
evidence
rich
rev
latter
position
accords
practice
permitting
prior
inconsistent
statements
introduced
even
impeachment
purposes
unless
witness
actually
given
inconsistent
testimony
concerning
substance
event
described
prior
statement
see
westinghouse
electric
wray
equipment
cir
cert
denied
wigmore
issue
insubstantial
conviction
rests
almost
entirely
evidence
porter
two
prior
statements
inconsistent
respects
see
brief
respondent
california
also
found
unnecessary
reach
respondent
additional
contentions
suppression
evidence
prejudicial
misconduct
see
people
green
cal
moreover
noted
earlier
opinion
ante
california
suggested
porter
prior
statements
may
even
admissible
inconsistent
testimony
trial
compare
people
green
supra
supra
chief
justice
burger
concurring
join
fully
justice
white
opinion
add
comment
emphasize
importance
allowing
experiment
innovate
especially
area
criminal
justice
new
standards
procedures
tried
one
state
success
failure
guide
others
congress
california
statute
recently
adopted
rule
evidence
justice
white
observes
long
advocated
leading
commentators
two
kentucky
wisconsin
within
past
year
embraced
similar
doctrines
judicial
decisions
none
yet
sufficient
experience
innovations
determine
whether
modification
sound
wise
workable
california
striking
california
statute
seems
done
mistaken
belief
confrontation
clause
imposed
rigid
limits
area
opinion
indicates
conclusion
erroneous
california
statute
meets
tests
sixth
fourteenth
amendments
accordingly
wisdom
statute
properly
left
state
california
jurisdictions
undoubtedly
watch
experiment
interest
circumstances
case
demonstrate
neither
constitution
originally
drafted
amendment
indeed
need
dictates
must
absolute
uniformity
criminal
law
federal
authority
never
intended
ramrod
compel
conformity
nonconstitutional
standards
cal
evid
code
jett
commonwealth
gelhaar
state
petition
certiorari
pending
justice
harlan
concurring
precise
holding
today
confrontation
clause
sixth
amendment
preclude
introduction
declaration
taken
oath
subject
prove
truth
matters
asserted
therein
declarant
available
witness
trial
agree
california
decision
today
reverse
demonstrates
however
need
approach
case
broadly
seen
fit
confront
squarely
confrontation
clause
holding
california
result
understandable
misconception
see
things
numerous
decisions
old
recent
indiscriminately
equated
confrontation
see
bruton
roberts
russell
pointer
texas
douglas
alabama
brookhart
janis
barber
page
smith
illinois
bridges
wixon
salinger
dictum
reynolds
mattox
motes
kirby
dowdell
decisions
view
left
ambiguous
whether
extent
sixth
amendment
constitutionalizes
hearsay
rule
common
law
confrontation
equated
right
transplant
ganglia
hearsay
rules
exceptions
body
constitutional
protections
stultifying
effect
course
upon
aspect
law
evidence
state
federal
systems
need
hardly
labored
good
today
read
opinion
firmly
eschews
course
since
opinion
state
decision
imperatively
demonstrates
need
taking
fresh
look
constitutional
concept
confrontation
think
stare
decisis
allowed
stand
way
albeit
presently
controlling
cases
recent
vintage
opinion
suggests
confrontation
clause
comes
us
faded
parchment
history
seems
give
us
little
insight
intended
scope
sixth
amendment
confrontation
clause
commentators
prone
slide
easily
confrontation
amorphous
backdrop
reach
two
conclusions
first
confrontation
clause
sixth
amendment
reaches
farther
require
prosecution
produce
available
witness
whose
declarations
seeks
use
criminal
trial
second
even
conclusion
deemed
untenable
matter
sixth
amendment
law
surely
agreeable
fourteenth
amendment
due
process
view
constitutional
framework
state
cases
kind
judged
scarcely
suggested
fourteenth
amendment
takes
umbrella
hearsay
rules
exceptions
begin
sixth
amendment
defer
parts
iii
iv
application
principles
instant
case
confrontation
clause
sixth
amendment
one
may
assume
framers
understood
embodiment
settled
usage
common
law
cf
dissenting
opinion
baldwin
new
york
ante
scant
evidence
culled
usual
sources
suggests
framers
understood
confrontation
something
less
right
exclude
hearsay
significance
term
ambiguous
warrant
assumption
framers
announcing
principle
whose
meaning
well
understood
constrained
accept
dicta
common
law
equated
confrontation
text
sixth
amendment
reads
criminal
prosecutions
accused
shall
enjoy
right
confronted
witnesses
simply
matter
english
clause
may
read
confer
nothing
right
meet
face
face
appear
give
evidence
trial
since
however
extrajudicial
declarant
less
witness
clause
equally
susceptible
interpreted
blanket
prohibition
use
hearsay
testimony
neither
polar
readings
wholly
satisfactory
still
less
compelling
similar
guarantees
sixth
amendment
found
number
colonial
constitutions
appears
assumed
confrontation
provision
included
bill
rights
added
constitution
ratification
congressmen
drafted
bill
rights
amendments
primarily
concerned
political
consequences
new
clauses
paid
scant
attention
definition
meaning
particular
guarantees
thus
confrontation
clause
apparently
included
without
debate
along
rest
sixth
amendment
package
rights
notice
counsel
compulsory
process
incidents
adversarial
proceeding
jury
evolved
centuries
anything
confrontation
guarantee
may
thought
along
right
compulsory
process
merely
constitutionalize
right
defense
know
right
always
enjoyed
accused
whose
defense
prior
late
century
argue
prosecution
completely
proved
case
see
stephen
trial
sir
walter
raleigh
transactions
royal
historical
society
ser
vol
heller
sixth
amendment
glimmer
light
history
may
thought
shed
comes
brief
congressional
colloquy
reach
companion
guarantee
compulsory
process
debate
suggests
also
broad
sweeping
right
understood
qualified
availability
requirement
sixth
amendment
put
floor
annals
report
following
burke
moved
amend
proposition
manner
leave
power
accused
put
trial
next
session
provided
made
appear
evidence
witnesses
process
granted
served
material
defence
hartley
said
securing
right
compulsory
process
government
remainder
must
lie
discretion
smith
south
carolina
thought
regulation
come
properly
part
judicial
system
annals
cong
emphasis
added
wigmore
ambulatory
view
confrontation
clause
intended
constitutionalize
hearsay
rule
exceptions
evolved
courts
rests
also
assertion
without
citation
attempts
settle
ground
appear
equally
infirm
matter
logic
wigmore
reading
practical
consequence
rendering
meaningless
assuredly
sense
meant
enduring
guarantee
inconceivable
framers
intended
constitutionalize
rule
hearsay
licensed
judiciary
read
existence
creating
new
unlimited
exceptions
scant
information
available
may
tentatively
concluded
confrontation
clause
meant
constitutionalize
barrier
flagrant
abuses
trials
anonymous
accusers
absentee
witnesses
clause
intended
ordain
common
law
rules
evidence
constitutional
sanction
doubtful
notwithstanding
english
decisions
equate
confrontation
hearsay
rather
established
broad
principle
far
likely
framers
anticipated
supplemented
matter
common
law
prevailing
rules
evidence
judicial
precedent
history
tending
suggest
availability
underlies
confrontation
right
discussed
view
confirmed
circumspect
analysis
early
decisions
early
decisions
consider
confrontation
right
length
involved
ex
parte
testimony
submitted
deposition
affidavit
see
reynolds
mattox
motes
kirby
context
justice
brown
passage
mattox
set
forth
primary
objective
constitutional
guarantee
prevention
depositions
ex
parte
affidavits
sometimes
admitted
civil
cases
used
prisoner
lieu
personal
examination
witness
accused
opportunity
testing
recollection
sifting
conscience
witness
also
compelling
stand
face
face
jury
order
may
look
judge
demeanor
upon
stand
manner
gives
testimony
whether
worthy
belief
see
also
dowdell
snyder
massachusetts
restricted
reading
clause
defended
taking
metaphysical
approach
one
attempts
differentiate
affidavits
substitute
testimony
testimonial
utterances
indeed
problems
latter
somewhat
greater
difficulty
establishing
accurately
declarant
said
sometimes
considered
infirmity
hearsay
evidence
see
mccormick
evidence
conceptual
difficulties
aside
seem
early
recognition
dying
declaration
exception
confrontation
clause
mattox
supra
kirby
supra
robertson
baldwin
proceeded
assumption
extrajudicial
testimonial
declarations
also
concern
sixth
amendment
notwithstanding
language
appears
equate
confrontation
clause
right
implication
exclude
hearsay
early
holdings
dicta
think
harmonized
viewing
confrontation
guarantee
confined
availability
rule
one
requires
production
witness
available
testify
view
explains
recognition
dying
declaration
exception
dispenses
requirement
refusal
make
exception
prior
recorded
statements
taken
subject
accused
witness
still
available
testify
compare
mattox
supra
motes
supra
rationalization
early
decisions
justified
logic
also
anchored
precedent
west
louisiana
reviewing
early
confrontation
decisions
emphasized
availability
thread
tied
together
west
involved
admission
evidence
trial
deposition
testimony
taken
subject
oath
deponent
permanently
absent
state
thereof
attendance
procured
ibid
referring
inter
alia
motes
mattox
kirby
reynolds
concluded
one
cases
held
facts
violation
constitution
admitting
deposition
evidence
uppermost
consideration
availability
witness
underscored
west
discussion
rule
admitted
deposition
testimony
upon
proof
made
satisfaction
witness
time
trial
dead
insane
ill
ever
expected
attend
trial
kept
away
connivance
defendant
ii
recent
decisions
view
fallen
error
two
scores
matter
jurisprudence
think
unsound
reasons
often
elaborated
see
dissenting
opinions
duncan
louisiana
baldwin
new
york
ante
incorporate
guarantees
bill
rights
due
process
clause
particular
instance
little
practical
consequence
confined
sixth
amendment
guarantee
availability
requirement
decisions
unfortunately
failed
separate
even
federal
matter
restrictions
abuse
hearsay
testimony
part
due
process
right
reliable
trustworthy
conviction
right
confront
available
witness
see
infra
incorporating
fourteenth
amendment
misinterpretation
sixth
amendment
decisions
one
blow
created
present
dilemma
bringing
potential
constitutional
rule
hearsay
state
federal
courts
however
constitutionalization
hearsay
rules
federal
courts
undesirability
imposing
brittle
rules
manifest
given
ambulatory
fortunes
hearsay
doctrine
evidenced
disagreement
among
scholars
value
excluding
hearsay
trend
toward
liberalization
exceptions
unfortunate
limit
flexibility
choke
experimentation
evolving
area
law
cf
baldwin
new
york
supra
adhere
consider
sound
view
expressed
stein
new
york
rule
subtleties
anomalies
ramifications
read
fourteenth
amendment
hold
binding
matter
due
process
also
deem
correct
meaning
sixth
amendment
confrontation
clause
state
may
criminal
case
use
hearsay
declarant
available
see
west
louisiana
supra
reason
fairness
state
long
retains
traditional
adversarial
trial
produce
witness
afford
accused
opportunity
made
available
principle
essential
element
fairness
attested
precedent
motes
supra
barber
page
supra
smith
illinois
supra
also
traditional
present
exceptions
hearsay
rule
recognize
greater
flexibility
receiving
evidence
witness
available
furthermore
accommodates
interest
state
making
case
yet
recognizes
obligation
accord
accused
fullest
opportunity
present
best
defense
rare
cases
conviction
occurs
trial
credible
evidence
said
justify
result
remains
broader
due
process
requirement
conviction
founded
evidence
see
supra
iii
putting
aside
moment
due
process
aspect
case
see
supra
follows
view
confrontation
reason
prosecution
use
witness
prior
inconsistent
statement
truth
matters
therein
asserted
prosecution
produced
witness
porter
made
available
trial
confrontation
judgment
perforce
satisfies
sixth
amendment
indeed
notwithstanding
conventional
characterization
available
witness
prior
statements
hearsay
offered
affirmatively
truth
matters
asserted
see
hickory
southern
gray
bridges
wixon
hearsay
technical
sense
since
witness
may
examined
trial
circumstances
memory
opportunity
observe
meaning
veracity
see
comment
model
code
evidence
supra
think
fair
say
fact
jury
opportunity
reconstruct
witness
demeanor
time
declaration
absence
oath
minor
considerations
fact
witness
though
physically
available
recall
either
underlying
events
subject
statement
previous
testimony
recollect
circumstances
statement
given
sixth
amendment
consequence
prosecution
less
fulfilled
obligation
simply
witness
lapse
memory
witness
view
available
extent
witness
practical
sense
unavailable
relevant
facts
reasons
stated
part
ii
think
confrontation
nonetheless
satisfied
iv
turn
finally
question
whether
conviction
stands
unreliable
evidence
reversal
required
cf
stovall
denno
thompson
city
louisville
conclude
preliminary
hearing
testimony
obtained
circumstances
unreliable
admission
requires
reversal
matter
due
process
even
though
crucial
central
issue
case
compare
stovall
denno
supra
simmons
statement
given
officer
wade
however
raise
possibility
accordingly
remand
case
california
consideration
question
whether
deems
second
statement
unreliable
admitted
decide
whether
conviction
reversed
california
law
want
sufficient
evidence
sustain
conviction
beyond
reasonable
doubt
see
winship
declines
consider
admissibility
porter
declaration
officer
wade
remands
determination
whether
properly
admissible
california
law
consider
part
iv
infra
broad
problem
lies
beneath
surface
today
case
view
appropriately
considered
conventional
hearsay
setting
maker
extrajudicial
statement
present
trial
briefed
argued
sides
reach
notwithstanding
pendency
dutton
evans
docket
dutton
argued
us
apr
set
reargument
case
heard
next
term
easy
assumption
confrontation
right
exclude
hearsay
also
appears
cases
involving
state
criminal
prosecutions
matter
due
process
declined
hold
applicable
sixth
amendment
right
confrontation
see
stein
new
york
see
west
louisiana
merely
case
prior
decisions
may
incorrectly
decided
rationalized
unworkability
constitutionalizing
aspect
conventional
hearsay
rule
means
stake
future
sound
constitutional
development
area
cf
swift
wickham
noted
mischief
perpetuation
unworkable
rule
moragne
marine
lines
boys
markets
retail
clerks
dissenting
opinion
baldwin
new
york
ante
separate
opinion
welsh
dissenting
opinion
desist
georgia
constitution
lends
support
restricted
reading
confrontation
see
art
provided
accused
shall
confronted
witnesses
testifying
emphasis
added
natural
reading
provision
phrased
restrict
guarantee
individuals
appearing
massachusetts
new
hampshire
north
carolina
maryland
virginia
included
early
constitutions
confrontation
provision
see
heller
sixth
amendment
documents
reprinted
thorpe
federal
state
constitutions
passim
wigmore
collected
state
provisions
wigmore
evidence
ed
see
elliot
debates
see
annals
cong
thus
research
satisfies
prevailing
view
usual
primary
sources
digests
early
debates
contain
informative
material
confrontation
right
correct
note
confrontation
hearsay
rule
yale
note
preserving
right
confrontation
new
approach
hearsay
evidence
criminal
trials
rev
note
confrontation
right
prepare
defense
geo
review
history
confrontation
english
common
law
see
pollitt
right
confrontation
history
modern
dress
pub
see
stephen
trial
sir
walter
raleigh
transactions
royal
historical
society
ser
vol
discussing
raleigh
trial
stephen
notes
modern
reader
raleigh
trial
struck
fact
assistance
counsel
likewise
allowed
call
witnesses
wished
accused
defended
argument
case
completely
proved
done
witnesses
counsel
side
need
attended
done
none
needed
see
also
heller
supra
remarks
governor
randolph
virginia
ratification
convention
reported
elliot
debates
hadley
reform
criminal
procedure
proceedings
academy
political
science
hadley
brief
remarks
seem
indicate
abuse
provoked
concern
use
affidavit
deposition
testimony
support
offered
reading
assertion
framers
concerned
prevent
abuses
occurred
infamous
treason
trial
sir
walter
raleigh
abuses
however
went
far
beyond
conviction
based
hearsay
one
commentator
noted
reams
deposition
testimony
given
raleigh
alleged
accomplice
turned
state
evidence
contained
innuendo
credible
assertion
substance
sufficient
support
verdict
see
stephen
trial
sir
walter
raleigh
supra
light
sixth
amendment
guarantee
might
well
read
establishing
basic
presumption
producing
witnesses
without
dignifying
every
hearsay
ruling
constitutional
significance
heller
supra
citing
rottschaefer
handbook
american
constitutional
law
view
open
question
wigmore
one
takes
position
several
exceptions
hearsay
rule
existed
time
sixth
amendment
adopted
wigmore
evidence
basis
wigmore
assertion
right
confrontation
known
common
law
enshrined
hearsay
rule
concludes
view
seemingly
absolute
prohibition
use
hearsay
declarations
impossible
apply
literally
confrontation
clause
framers
intended
confrontation
mean
hearsay
principles
see
wigmore
evidence
early
decisions
recent
cases
replete
dicta
effect
confrontation
equivalent
instead
treating
cases
like
brookhart
janis
supra
pointer
texas
supra
douglas
alabama
supra
denials
due
process
see
infra
employed
sweeping
language
said
example
major
reason
underlying
constitutional
confrontation
rule
give
defendant
charged
crime
opportunity
witnesses
pointer
texas
kind
broad
language
tending
equate
confrontation
holding
bruton
conjured
spectre
constitutionalization
hearsay
rule
dissent
apparently
willing
treat
surprising
confrontation
hearsay
considered
fungible
labels
recently
likely
affect
result
federal
trial
see
comment
preliminary
draft
proposed
rules
evidence
district
courts
magistrates
cf
alford
right
treated
denial
confrontation
portent
label
emerges
fore
federal
cases
however
backdrop
recent
developments
accord
special
treatment
constitutional
errors
see
harrington
california
harmless
error
chapman
california
kaufman
collateral
relief
context
incorporation
makes
every
hearsay
ruling
potential
issue
additional
consequence
constitutionalizing
hearsay
rules
put
beyond
reach
congress
see
katzenbach
morgan
kirby
strictly
speaking
involve
use
deposition
testimony
kirby
case
government
sought
introduce
judgment
conviction
obtained
three
perpetrators
theft
order
prove
property
found
kirby
possession
fact
stolen
reynolds
held
accused
complain
introduction
prior
recorded
testimony
witness
absence
procured
defense
mattox
analogizing
exception
hearsay
rule
dying
declarations
held
admissible
prior
recorded
testimony
taken
oath
subjected
witness
died
since
first
trial
motes
declined
countenance
testimony
taken
subject
appeared
government
might
produced
witness
later
cases
also
involved
written
testimony
see
barber
page
supra
pointer
texas
supra
douglas
alabama
supra
confession
stein
new
york
confession
west
louisiana
cf
greene
mcelroy
problems
treated
rubric
confrontation
included
inter
alia
exclusion
accused
trial
oliver
brookhart
janis
supra
cf
snyder
massachusetts
viewing
parker
gladden
improper
remarks
bailiff
turner
louisiana
historically
primary
concern
possibility
trial
affidavit
may
evidenced
several
early
state
constitutional
provisions
specifically
made
exceptions
confrontation
providing
use
depositions
witness
unavailable
see
california
art
legislature
shall
power
provide
taking
presence
party
accused
counsel
depositions
witnesses
criminal
cases
cases
homicide
reason
believe
witness
inability
cause
attend
trial
colorado
art
ii
montana
art
iii
ohio
art
texas
art
amended
interestingly
hopt
utah
speaking
justice
wrote
kirby
holding
error
permit
surgeon
testify
examined
body
alleged
victim
charged
homicide
surgeon
knowledge
identity
deceased
came
third
party
relied
hearsay
principles
made
allusion
confrontation
clause
critical
element
availability
doubted
west
opinion
emphasize
opportunity
time
taking
depositions
already
remarked
appear
secondary
concern
given
recognition
mattox
dying
declaration
exception
west
moreover
perforce
stands
proposition
confrontation
indifferent
limitations
nature
preliminary
hearing
underlie
dissent
case
view
extended
discussion
federal
precedents
express
rejection
west
contentions
thereunder
present
purposes
consequence
case
involved
state
criminal
prosecution
declined
hold
sixth
amendment
applicable
importance
right
minimized
see
wigmore
supra
desirability
excluding
otherwise
relevant
evidence
simply
tested
frequently
questioned
see
generally
mccormick
evidence
ali
model
code
evidence
rules
comment
preliminary
draft
proposed
rules
evidence
district
courts
magistrates
rule
uniform
rules
evidence
rule
liberalized
exceptions
see
also
james
role
hearsay
rational
scheme
evidence
rev
chadbourn
bentham
hearsay
rule
benthamic
view
rule
uniform
rules
evidence
harv
rev
uniform
rules
restricted
mccormick
hearsay
rutgers
rev
commenting
uniform
rules
cf
quick
evidence
wayne
rev
apparently
critical
trend
toward
admissibility
judges
disagreed
desirability
excluding
hearsay
compare
chief
justice
marshall
view
set
forth
queen
hepburn
cranch
justice
story
ellicott
pearl
pet
judge
learned
hand
set
forth
lecture
association
bar
city
new
york
deficiencies
trials
reach
heart
matter
lectures
legal
topics
see
report
new
jersey
committee
evidence
potential
suffocating
creative
thinking
suggested
commentary
uniform
rules
evidence
california
law
revision
commission
prior
pointer
commission
noted
despite
federal
rule
free
consistent
due
process
consider
adopt
uniform
rule
ii
providing
use
testimony
former
trial
identity
issues
reason
believe
adequate
declarant
unavailable
commission
recommended
adoption
rule
ii
see
tentative
recommendation
study
relating
uniform
rules
evidence
california
law
revision
commission
reports
recommendations
studies
provision
omitted
new
evidence
code
comment
defendant
criminal
prosecution
made
rely
another
individual
evidence
code
official
comments
california
law
revision
commission
decision
pointer
apparently
responsible
decision
omit
provision
since
final
commission
report
submitted
january
prior
pointer
clear
hearsay
constitutionalized
california
even
considered
innovation
say
right
element
due
process
alford
oliver
snyder
massachusetts
smith
illinois
due
process
permit
conviction
based
evidence
thompson
city
louisville
nixon
herndon
evidence
unreliable
untrustworthy
may
said
accused
tried
kangaroo
cf
oliver
supra
turner
louisiana
stovall
denno
simmons
underlying
principle
refined
recognized
evidence
identification
always
critical
issue
criminal
trial
received
circumstances
pretrial
confrontation
infected
suggestiveness
give
rise
irreparable
likelihood
misidentification
token
permit
conviction
stand
critical
issues
trial
supported
ex
parte
testimony
subjected
found
reliable
trial
judge
cf
kearney
app
course
unusual
situation
prosecution
entire
case
built
upon
hearsay
testimony
unavailable
witness
circumstance
defendant
entitled
hearing
reliability
testimony
cf
ali
model
code
evidence
kearney
supra
due
process
also
requires
defense
given
ample
opportunity
alert
jury
pitfalls
accepting
hearsay
face
value
defendant
course
upon
request
entitled
cautionary
instructions
cf
manual
jury
instructions
missing
witnesses
basis
approach
stand
concurrence
result
pointer
texas
supra
statement
formed
bulk
prosecutor
case
also
showing
witness
made
available
see
also
brookhart
janis
barber
page
result
douglas
alabama
also
still
adhere
rationalized
test
since
inadmissible
confession
constituted
direct
evidence
petitioner
committed
murder
additional
factor
move
stand
douglas
case
prosecutorial
misconduct
placing
witness
stand
reading
confession
prosecutor
effect
increased
reliability
confession
jury
eyes
view
witness
apparent
acquiescence
opposed
repudiation
cf
napue
illinois
mooney
holohan
lengths
prosecution
must
go
produce
witness
may
offer
evidence
declaration
question
reasonableness
barber
page
supra
cf
mullane
central
hanover
trust
effort
course
necessary
added
expense
inconvenience
excuse
also
open
accused
request
continuance
unavailability
temporary
cf
peterson
cir
justice
brennan
dissenting
respondent
convicted
violating
california
health
safety
code
prohibits
furnishing
narcotics
minor
issue
trial
whether
fact
furnished
porter
minor
marihuana
direct
testimony
appear
constitutionally
convicted
seems
insufficient
evidence
sustain
finding
guilt
state
presented
three
witnesses
prove
respondent
guilt
porter
officers
wade
dominguez
porter
testified
trial
uncertain
obtained
marihuana
primarily
time
acid
lsd
taken
minutes
respondent
phoned
porter
claimed
unable
remember
events
followed
phone
call
drugs
taken
prevented
distinguishing
fact
fantasy
ante
officer
wade
personal
knowledge
facts
alleged
offense
able
report
content
extrajudicial
statement
porter
made
officer
dominguez
testified
incident
wholly
separate
alleged
offense
testimony
consistent
defense
account
facts
thus
evidence
respondent
found
guilty
consisted
two
pretrial
statements
porter
first
account
given
officer
wade
unsworn
subject
defense
porter
demeanor
making
statement
observed
trial
factfinder
statement
made
unreliable
circumstances
taken
four
days
porter
arrest
selling
marihuana
undercover
agent
still
custody
written
transcript
statement
introduced
trial
officer
wade
recounted
simply
remembered
porter
words
second
statement
given
porter
respondent
preliminary
hearing
sworn
subject
defense
counsel
however
engage
searching
examination
porter
demeanor
made
statement
unobserved
trial
factfinder
statement
put
factfinder
course
various
points
porter
direct
examination
trial
prosecutor
read
excerpts
preliminary
hearing
testimony
accordingly
facts
case
present
two
questions
regarding
application
california
evidence
code
first
whether
confrontation
clause
permits
witness
extrajudicial
statement
admitted
trial
substantive
evidence
witness
claims
unable
remember
events
prior
statement
dealt
second
whether
clause
permits
witness
preliminary
hearing
statement
made
oath
subject
introduced
trial
substantive
evidence
witness
claims
unable
remember
events
statement
dealt
view
neither
statement
introduced
without
unconstitutionally
restricting
right
accused
challenge
incriminating
evidence
presence
factfinder
determine
guilt
innocence
points
particular
vice
gave
impetus
confrontation
claim
practice
trying
defendants
evidence
consisted
solely
ex
parte
affidavits
depositions
secured
examining
magistrates
thus
denying
defendant
opportunity
challenge
accuser
encounter
front
trier
fact
ante
encounter
course
important
accused
view
trial
accuser
visage
directly
challenge
accuser
testimony
factfinder
see
wigmore
evidence
ed
made
clear
mattox
stressed
necessity
personal
examination
witness
accused
opportunity
testing
recollection
sifting
conscience
witness
compelling
stand
face
face
jury
order
may
look
judge
demeanor
upon
stand
manner
gives
testimony
whether
worthy
belief
way
test
recollection
sift
conscience
witness
regarding
facts
alleged
offense
unwilling
unable
questioned
defense
counsel
probe
story
silent
witness
attempt
expose
facts
qualify
discredit
impetus
truth
inherent
oath
sworn
witness
penalty
perjury
serious
purpose
courtroom
effect
far
facts
alleged
offense
concerned
obviously
factfinder
view
demeanor
recounts
facts
witness
claims
unable
remember
pertinent
events
true
assertion
challenged
making
defending
witness
affected
oath
penalty
perjury
courtroom
atmosphere
equally
true
trial
factfinder
observe
weigh
witness
demeanor
makes
defends
claim
decision
factfinder
witness
lying
sheds
direct
light
accuracy
pretrial
statement
made
statement
remains
without
support
discredit
come
probing
factual
basis
witness
stands
face
face
accused
factfinder
factfinder
decides
witness
honestly
unable
remember
events
question
conclusion
may
may
directly
guide
factfinder
assessing
reliability
pretrial
statement
example
witness
unable
remember
pertinent
facts
influence
drugs
time
occurred
factfinder
might
reasonably
disregard
pretrial
account
events
given
witness
already
explicitly
held
douglas
alabama
confrontation
clause
forbids
substantive
use
trial
prior
extrajudicial
statement
declarant
present
trial
unwilling
testify
events
prior
statement
dealt
douglas
prosecution
introduced
alleged
confession
accused
supposed
accomplice
one
loyd
unwilling
testify
pertinent
events
fear
held
petitioner
inability
loyd
alleged
confession
plainly
denied
right
secured
confrontation
clause
loyd
alleged
statement
petitioner
fired
shotgun
constituted
direct
evidence
done
ffective
confrontation
loyd
possible
loyd
affirmed
statement
however
loyd
relied
privilege
refuse
answer
purposes
confrontation
clause
significant
difference
witness
fails
testify
alleged
offense
unwilling
witness
whose
silence
compelled
inability
remember
called
stand
testify
jury
may
view
demeanor
indicates
discuss
crucial
events
neither
instance
purposes
confrontation
clause
satisfied
witness
questioned
trial
concerning
pertinent
facts
cases
pretrial
statement
introduced
truth
facts
asserted
witness
becomes
simply
conduit
admission
stale
evidence
whose
reliability
never
tested
trial
factfinder
declarant
operative
events
observation
demeanor
testifies
unlike
see
reason
leave
undecided
inadmissibility
porter
statements
officer
wade
us
transcript
porter
trial
testimony
remember
operative
events
whether
feigned
loss
memory
irrelevant
respondent
confrontation
claim
douglas
statement
officer
wade
must
excluded
substantive
evidence
ii
question
remains
whether
fact
pretrial
statement
obtained
preliminary
hearing
oath
subject
distinguishes
statement
confrontation
purposes
extrajudicial
statement
thought
decision
barber
page
resolved
issue
barber
stated
confrontation
preliminary
hearing
compensate
absence
confrontation
trial
nature
objectives
two
proceedings
differ
significantly
case
prosecution
argued
accused
waived
right
preliminary
hearing
though
rejected
argument
put
beyond
doubt
necessity
confrontation
trial
stated
moreover
reach
result
facts
case
petitioner
counsel
actually
witness
preliminary
hearing
right
confrontation
basically
trial
right
includes
opportunity
occasion
jury
weigh
demeanor
witness
preliminary
hearing
ordinarily
much
less
searching
exploration
merits
case
trial
simply
function
limited
one
determining
whether
probable
cause
exists
hold
accused
trial
preliminary
hearings
california
atypical
nature
objectives
california
criminal
prosecutions
preliminary
examination
conducted
rather
perfunctory
uncontested
proceeding
one
likely
denouement
order
holding
defendant
trial
television
lawyers
customarily
demolish
prosecution
magistrate
prosecution
need
show
probable
cause
burden
vastly
lighter
proof
beyond
reasonable
doubt
people
gibbs
cal
app
cal
rptr
ost
cold
reading
preliminary
transcript
subtle
yet
undeniable
effect
counsel
rhetorical
style
pauses
emphasis
variations
tone
well
personal
rapport
jurors
pursues
example
lawyer
must
keep
control
mean
never
fight
witness
raise
voice
become
angry
forensic
indignation
whether
expressed
physically
verbally
may
produce
good
results
special
circumstances
addition
counsel
may
well
conduct
different
manner
committing
magistrate
trial
jury
thus
counsel
must
always
temper
individual
jurors
using
reactions
guide
effective
line
questioning
must
remember
performer
jurors
audience
good
performer
ignores
audience
performances
conducted
purpose
favorably
impressing
audience
conclude
experience
demonstrates
essentiality
truly
contemporaneous
cal
appears
terms
purposes
confrontation
clause
equation
encounter
preliminary
hearing
confrontation
trial
must
rest
largely
fact
witness
testified
hearing
oath
subject
penalty
perjury
courtroom
atmosphere
factors
insignificant
fall
far
short
satisfying
demands
constitutional
confrontation
moreover
atmosphere
stakes
different
two
proceedings
hurried
somewhat
pro
forma
context
average
preliminary
hearing
witness
may
careless
testimony
measured
searching
atmosphere
trial
similarly
man
willing
perjure
consequences
simply
accused
stand
trial
may
less
willing
lies
may
condemn
defendant
loss
liberty
short
ignores
reality
assume
purposes
confrontation
clause
met
preliminary
hearing
accordingly
introduce
preliminary
hearing
testimony
truth
facts
asserted
witness
either
unwilling
unable
testify
regarding
pertinent
events
denies
accused
sixth
amendment
right
grapple
effectively
incriminating
evidence
ruling
moreover
may
unsettling
effects
nature
objectives
future
preliminary
hearings
california
defined
problem
equate
preliminary
trial
testimony
one
practical
result
might
preliminary
hearing
designed
afford
efficient
speedy
means
determining
narrow
question
probable
cause
tend
develop
trial
invite
thorough
lengthy
consequent
necessity
delays
continuances
bring
rebuttal
impeachment
witnesses
gather
available
evidence
assure
generally
nothing
remained
later
challenge
time
result
prostitute
accepted
purpose
preliminary
hearings
might
place
intolerable
burden
time
resources
courts
first
instance
cal
conscientious
defense
counsel
aware
today
decision
increased
likelihood
use
preliminary
hearing
testimony
trial
may
well
wish
conduct
unlimited
prosecution
witnesses
hearing
held
coleman
alabama
ante
accused
right
assistance
counsel
preliminary
hearing
made
clear
denial
accused
constitutional
right
fair
trial
force
trial
expedition
deprive
effective
aid
assistance
counsel
white
ragen
light
today
decision
may
defense
counsel
denied
requests
delay
reasonably
necessary
enable
conduct
thorough
examination
preliminary
hearing
limits
may
still
placed
defense
use
preliminary
hearing
discovery
device
extract
information
prosecution
reasonably
necessary
determination
probable
cause
rigorous
examination
government
witnesses
requisites
effective
assistance
counsel
require
defense
counsel
conduct
examination
relies
heavily
traditional
practice
admitting
prior
testimony
witness
physically
unavailable
trial
finds
ground
distinguishing
pretrial
declarant
fails
testify
trial
physically
present
pretrial
declarant
though
present
trial
fails
testify
unwilling
unable
reasons
necessity
introduction
either
declarant
prior
statement
state
need
introduce
relevant
evidence
testimony
reliability
rests
circumstances
given
circumstances
remain
unaffected
regardless
whether
witness
present
absent
later
trial
ante
disagree
state
obviously
need
introduce
relevant
evidence
necessity
justifies
admission
pretrial
statements
prosecution
need
convict
factfinder
need
presented
reliable
evidence
aid
determination
guilt
innocence
whether
witness
assertions
reliable
ordinarily
little
bearing
admissibility
subject
corrective
influences
demeanor
however
possibility
assertions
tested
trial
reliability
becomes
important
factor
deciding
whether
permit
presentation
factfinder
probability
exists
incriminating
pretrial
testimony
unreliable
admission
absent
confrontation
prejudicially
distort
factfinding
process
reliability
pretrial
testimony
turn
determined
simply
circumstances
given
also
influenced
subsequent
developments
example
prior
testimony
later
disavowed
declarant
extrajudicial
convincing
statement
unrealistic
argue
later
trial
declarant
physically
absent
reliability
prior
testimony
unaffected
intervening
event
subsequent
developments
consideration
failure
testify
trial
physical
unavailability
failure
testify
unwillingness
inability
remember
view
developments
different
implications
reliability
prior
testimony
physical
unavailability
generally
neutral
factor
instances
cast
doubt
witness
earlier
assertions
inability
remember
pertinent
events
hand
unwillingness
testify
whether
feigned
loss
memory
fear
cast
doubt
honest
inability
remember
trial
raises
serious
question
clarity
memory
time
pretrial
statement
deceit
inherent
feigned
loss
memory
lessens
confidence
probity
prior
assertions
fear
trial
suggests
witness
may
shaped
prior
testimony
avoid
dangerous
consequences
reliability
assumed
simply
prior
statement
made
preliminary
hearing
sum
find
porter
real
pretended
lapse
memory
pertinent
events
casts
serious
doubt
upon
reliability
preliminary
hearing
testimony
clear
long
witness
porter
testify
events
trial
accused
remains
unable
challenge
effectively
witness
prior
assertions
probable
unreliability
prior
testimony
coupled
impossibility
examination
trial
denies
accused
right
probe
attempt
discredit
incriminating
evidence
accordingly
hold
california
evidence
code
violation
confrontation
clause
extent
permits
substantive
use
trial
prior
statements
whether
extrajudicial
testimonial
declarant
present
trial
unable
unwilling
questioned
events
prior
statements
dealt
therefore
affirm
reversal
respondent
conviction
see
people
green
cal
porter
declared
oath
may
arrested
custody
police
kept
telling
knew
john
green
involved
unless
implicated
see
circulation
long
time
cf
goldberg
kelly
stated
presentation
decision
maker
caseworker
deficiencies
since
caseworker
usually
gathers
facts
upon
charge
ineligibility
rests
presentation
recipient
side
controversy
safely
left
question
example
asked
porter
either
defense
prosecution
whether
influence
drugs
time
alleged
offense
hand
witness
willing
able
testify
trial
operative
events
demands
confrontation
clause
may
met
even
though
witness
contradicts
pretrial
assertions
see
need
facts
presented
however
resolve
issue
fact
appropriate
circumstances
statement
may
admitted
impeach
witness
anomalous
suggests
ante
example
porter
pretrial
statements
admitted
respondent
trial
solely
impeachment
purposes
provided
substantive
proof
guilt
noted
likely
insufficient
evidence
sustain
conviction
california
present
case
discussed
detail
distinctions
preliminary
hearing
trial
stating
purpose
preliminary
hearing
full
exploration
merits
cause
testimony
witnesses
designed
adapted
solely
answer
far
narrower
preliminary
question
whether
probable
cause
exists
subsequent
trial
judge
preliminary
proceedings
required
convinced
defendant
guilt
beyond
reasonable
doubt
need
look
reasonable
credibility
charge
fortiori
witness
testimony
though
evidence
adduced
need
convincing
credible
beyond
reasonable
doubt
surely
impeach
witness
trial
preclude
finding
probable
cause
preliminary
stage
even
given
opportunity
neither
prosecution
defense
generally
willing
able
fire
guns
early
stage
proceedings
considerations
time
efficacy
indeed
seldom
either
party
time
investigation
obtain
possession
adequate
information
pursue
depth
direct
cal
see
also
virgin
islands
aquino
cir
beyond
problems
today
holding
raises
another
practical
difficulty
extensive
must
preliminary
hearing
constitutional
confrontation
deemed
occurred
mere
opportunity
encounter
sufficient
perhaps
respondent
every
opportunity
porter
statement
hearing
ante
mean
defense
counsel
fails
take
advantage
opportunity
accused
subsequently
convicted
trial
basis
wholly
untested
evidence
unexercised
chance
required
thorough
effective
must
questioning
satisfies
confrontation
clause
significant
example
present
case
neither
defense
prosecution
explored
elemental
fact
porter
testimony
possibility
influence
drugs
time
alleged
offense