393 U.S. 314 (1969)

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Berger v. California

U.S.

Jan 13, 1969

393 U.S. 314 (1969)

Summary

holding that testimony of witnesses absent from the jurisdiction shall not be used unless good faith effort has been made by the state to secure appearance of the witnesses as announced in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 to be retroactive

Summary of this case from Schlomann v. Moseley

See 22 Summaries

Opinion

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT.

No. 221, Misc.

Decided January 13, 1969.

The holding in Barber v. Page, 390 U.S. 719, that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness' presence, should be given retroactive application.

Certiorari granted; 258 Cal.App.2d 622, 66 Cal.Rptr. 213, vacated and remanded.

Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Marvin A. Bauer, Deputy Attorney General, for respondent.

PER CURIAM.

Petitioner was convicted of robbery and kidnaping for the purpose of robbery. The victim, one Carl Arthur Dunston, testified against petitioner at a preliminary hearing; there was evidence that at the time of the trial Dunston was in Colorado. A state investigator tried to contact Dunston on the telephone; he got through to some of Dunston's relatives and to his employer, but not to Dunston himself. Although two telegrams were received, allegedly from Dunston, no subpoena was served. At trial, the transcript of Dunston's preliminary hearing testimony was introduced into evidence. On appeal, the Court of Appeal for the Second Appellate District of California held that this procedure did not deny petitioner his Sixth Amendment right to be confronted with the witnesses against him since Dunston was absent from the State of his own free will and since petitioner's counsel had had an adequate opportunity to cross-examine Dunston at the preliminary hearing. 258 Cal.App.2d 622, 66 Cal.Rptr. 213 (1968). The California Supreme Court denied petitioner a hearing on April 4, 1968. Nineteen days later we held in the case of Barber v. Page, 390 U.S. 719, that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness' presence. The sole question in this case is whether the holding of Barber v. Page should be given retroactive application. We think that it should.

Clearly, petitioner's inability to cross-examine Dunston at trial may have had a significant effect on the "integrity of the fact-finding process." Linkletter v. Walker, 381 U.S. 618, 639 (1965); cf. Roberts v. Russell, 392 U.S. 293 (1968); McConnell v. Rhay, ante, p. 2 (1968). As we pointed out in Barber v. Page, one of the important objects of the right of confrontation was to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses. 390 U.S., at 721. And California's claim of a significant countervailing interest based upon its reliance on previous standards, see Stovall v. Denno, 388 U.S. 293, 297 (1967), is most unpersuasive. Barber v. Page was clearly foreshadowed, if not pre-ordained, by this Court's decision in Pointer v. Texas, 380 U.S. 400 (1965), which was handed down more than a year before petitioner's trial. Accordingly, we can see no reason why Barber v. Page should not be given fully retroactive application.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeal is vacated and the case is remanded for reconsideration in light of this Court's decision in Barber v. Page, 390 U.S. 719 (1968).

It is so ordered.

Summaries of

Berger v. California

U.S.

Jan 13, 1969

393 U.S. 314 (1969)

Summary of this case from Schlomann v. Moseley

holding retroactive the ruling in Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, that the absence of a witness from the jurisdiction did not justify the use at trial of preliminary hearing testimony unless the state had made a good faith effort to secure the witness' presence

Summary of this case from State v. Jackson

finding that state's failure to subpoena witness and defendant's lack of opportunity to cross-examine witness violated defendant's Sixth Amendment rights

Summary of this case from Cross v. Hardy

giving retroactive effect to Barber v. Page, 390 U.S. 719

Summary of this case from Williams v. United States

In Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), the Supreme Court directed that Barber v. Page should "be given fully retroactive application."

Summary of this case from United States ex Rel. Stubbs v. Mancusi

In Berger, there was some evidence that the missing witness was in Colorado, outside the jurisdiction of the California court.

Summary of this case from Hoover v. Beto

In Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), the Court held that its ruling in Barber v. Page is retroactive.

Summary of this case from Daboul v. Craven

stating that the inability to cross-examine a witness at trial may have had a "significant effect on the `integrity of the fact-finding process'"

Summary of this case from Danforth v. Crist

In Berger v. California, 393 U.S. 314 [ 89 S.Ct. 540, 21 L.Ed.2d 508], Supreme Court of the United States indicated that testimony at a preliminary hearing may indeed be used. The Court is satisfied that there is no constitutional prohibition [T. 120-121].

Summary of this case from Gonzalez v. Scully

In Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), the Court retroactively applied Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (the absence of a witness from the jurisdiction does not justify the use at trial of his preliminary hearing testimony unless he is unavailable and the prosecution has made a good-faith effort to obtain him).

Summary of this case from United States v. Lenardo

discussing the right to confront and cross-examine witnesses

Summary of this case from State v. Burdge

In Berger, the Supreme Court held that a kidnapping conviction must be reversed where the absent victim did not personally testify but his testimony given at the preliminary hearing was read into the record.

Summary of this case from State v. Pereda

giving retroactive effect to Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255

Summary of this case from Ex Parte Pennington

giving retroactive effect to Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255

Summary of this case from Rutherford v. State

In Berger the United States Supreme Court held that because a defendant's lack of opportunity to cross-examine a witness at trial may have a significant effect on the "integrity of the fact-finding process" (Linkletter v. Walker (1965) 381 U.S. 618, 639 [14 L.Ed.2d 601, 614, 85 S.Ct. 1731]), Barber v. Page must be given " fully retroactive application."

Summary of this case from In re Montgomery

In Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (January 13, 1969), the Court gave Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, fully retroactive application.

Summary of this case from Whitehead v. State

In Berger v. California (1969) 393 U.S. 314 [21 L.Ed.2d 508, 89 S.Ct. 540], the Barber "unavailable witness" rule was made retroactive and was specifically applied to a case in which there was an opportunity for cross-examination at the preliminary hearing when the prior testimony was taken.

Summary of this case from People v. Green

In Berger v. California (1969) supra, 393 U.S. 314, 315 [21 L.Ed.2d 508, 510, 89 S.Ct. 540, 541], the high court stated that Barber was "foreshadowed, if not preordained" by Pointer v. Texas. Similarly, it could be said that the instant case was "foreshadowed, if not preordained" by People v. Johnson. (See People v. Vinson (1969) 268 Cal.App.2d 672 [ 74 Cal.Rptr. 340].)

Summary of this case from People v. Green

In Berger v. California (1969) 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (Berger), the Court gave retroactive effect to Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, where the Court held that the confrontation clause prohibits the introduction of a witness's preliminary hearing testimony unless the prosecution has made a good faith effort to secure the witness's presence at trial.

Summary of this case from In re Haden

excluding preliminary hearing testimony of absent witness without good-faith effort to secure attendance at trial

Summary of this case from In re Haden

In Berger, the witness was merely out of state, telephone calls had been made to him but the State made no attempt to serve the witness with a subpoena.

Summary of this case from Bartruff v. State

In Berger v. California, 393 U.S. 314 [21 L.Ed.2d 508, 89 S.Ct. 540], decided on January 13, 1969, the Supreme Court of the United States held that the holding of Barber v. Page, supra, should be given retroactive application.

Summary of this case from People v. Smith

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