California v. Green, 399 U.S. 149 (1970)

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

Syllabus

Respondent was convicted of furnishing marihuana to a minor in violation of California law, chiefly on the basis of evidence consisting of prior inconsistent statements made by the minor (Porter) (1) at respondent’s preliminary hearing and (2) to a police officer. These statements were admitted under California Evidence Code § 1235 to prove the truth of the matters asserted therein. The District Court of Appeal reversed. The California Supreme Court affirmed, and held § 1235 unconstitutional insofar as it permitted the substantive use of a witness’ prior inconsistent Statements even though such statements were subject to cross-examination at a prior hearing.

Held:

1. The Confrontation Clause of the Sixth Amendment, as made applicable to the States by the Fourteenth Amendment, is not violated by admitting a declarant’s out-of-court statements as long as he is testifying as a witness at trial and is subject to full cross-examination. The purposes of the Amendment are satisfied at the time of trial, even if not before, since the witness is under oath, is subject to cross-examination, and his demeanor can be observed by the trier of fact. Pp. 153-164.

2. Even in the absence of an opportunity for full cross-examination at trial, the admission into evidence of the preliminary hearing testimony would not violate the Constitution. For the preliminary hearing in this case (where Porter was under oath, and where respondent was represented by counsel and had full opportunity for cross-examination) was not significantly different from an actual trial as far as the purposes of the Confrontation Clause are concerned, and it has long been held that admitting the prior trial testimony of an unavailable witness does not violate that clause. A different result should not follow where, as in this case, the witness was actually produced. Pp. 165-168.

3. The question whether Porter’s claimed lapse of memory at the trial about important events described in his earlier statement to the officer so affected respondent’s right to cross-examine as to make a critical difference in the application of the Confrontation Clause is an issue that should first be resolved by the state court. Pp. 168-170.

70 Cal.2d 654, 451 P.2d 422, vacated and remanded.