399 U.S. 149 (1970)
In January 1967, sixteen-year-old Melvin Porter was arrested for selling marijuana to an undercover police officer.1 Four days after his arrest, while in the custody of juvenile authorities, Porter told Officer Wade that respondent John Green had supplied him with the marijuana.2 Porter stated that Green had called him earlier that month, asked him to sell some stuff or grass, and personally delivered a shopping bag containing twenty-nine baggies of marijuana from which Porter made the sale.3
A week later, Porter testified at Green's preliminary hearing.4 He again identified Green as his supplier, though he now stated that Green had shown him where to pick up the shopping bag hidden in the bushes at Green's parents' house rather than personally delivering it.5 Green's counsel, the same attorney who later represented him at trial, conducted extensive cross-examination of Porter at the hearing.6 At the conclusion of the hearing, Green was charged with furnishing marijuana to a minor.7
Green's trial took place two months later before a judge sitting without a jury in the Superior Court of San Luis Obispo County.8 Porter again took the stand as the State's chief witness but proved markedly evasive and uncooperative.9 He testified that Green had called him and asked him to sell some stuff and that he had obtained twenty-nine baggies of marijuana.10 Porter claimed he could not remember the events after the phone call because he had taken LSD twenty minutes before Green phoned and the drugs prevented him from distinguishing fact from fantasy.11
During Porter's direct examination, the prosecutor read excerpts from his preliminary hearing testimony, which were admitted as substantive evidence under California Evidence Code section 1235.12 Officer Wade also testified about Porter's earlier statement to him.13 Porter admitted making both prior statements and insisted he had been telling the truth as he then believed it, but he maintained that his current testimony about his inability to remember was also truthful.14 Green was convicted.15
The California Court of Appeal reversed the conviction, holding that the use of Porter's prior statements violated the Confrontation Clause.16 The California Supreme Court affirmed.17 The United States Supreme Court granted certiorari.18
Whether the admission at trial of a witness's preliminary hearing testimony violates the Confrontation Clause when the witness is present at trial but claims a loss of memory regarding the events?19
The Confrontation Clause requires that the accused have the opportunity to confront and cross-examine witnesses against him, but this right is satisfied when the declarant testifies at trial under oath, is subject to full cross-examination, and the trier of fact can observe demeanor, even if the witness claims memory loss about the underlying events.20
No. The facts establish that Porter was present and sworn at Green's trial.21 Porter was asked the same questions he answered at the preliminary hearing.22 Porter admitted making the prior statements.23 Porter was subject to cross-examination by the same counsel who had examined him earlier.24
This allowed the judge to assess his credibility and memory claim directly.25 Porter's lapse of memory did not render him unavailable because the constitutional protection centers on the right to cross-examine rather than the witness's ability to recall events perfectly.26 The preliminary hearing itself occurred under oath before a judicial officer with Green's counsel conducting extensive cross-examination, closely approximating trial conditions.27 These elements together fulfill the Clause's core purposes of oath, cross-examination, and demeanor observation without requiring exclusion of the prior testimony.28
The admission of Porter's preliminary hearing testimony did not violate the Confrontation Clause.29
Related opinions on this issue
Justice Harlan concurred in the judgment.30 He agreed that the admission of Porter's preliminary hearing testimony did not violate the Confrontation Clause.31 The witness was present at trial and subject to cross-examination.32
The fact that he claimed a loss of memory does not change the analysis.33 Harlan reasoned that the Clause reaches no farther than requiring the prosecution to produce any available witness whose declarations it seeks to use.34 Porter was available as a witness at trial.35
Harlan further concluded that even if the Sixth Amendment were read more broadly, due process under the Fourteenth Amendment would permit the same result because it does not incorporate all common-law hearsay rules.36 This approach preserves state flexibility to experiment with evidence rules while protecting core confrontation values.37
Justice Burger concurred in the opinion of the Court.38 He emphasized that the Confrontation Clause guarantees the defendant the right to confront the witnesses against him.39 In this case, the witness was present at trial.40
The witness was subject to cross-examination.41 Burger added that the prior testimony was properly admitted.42 He stressed the importance of allowing the States to experiment and innovate in the area of criminal justice.43
California had adopted a rule of evidence long advocated by leading commentators.44 The success or failure of such innovations would guide other states and Congress.45 Burger concluded that the wisdom of the statute is properly left to the State of California.46
Whether the Confrontation Clause permits the substantive use of a witness's prior inconsistent statements when the witness is available for cross-examination at trial?47
The Confrontation Clause does not bar the substantive use of a witness's prior inconsistent statements when the witness is available at trial to affirm, deny, or explain the statements under oath and is subject to full cross-examination concerning both the prior and current versions of events.48
Yes. The facts show that Porter was available at trial.49 Porter conceded making the prior statements to Officer Wade and at the preliminary hearing.50 Porter insisted he had been truthful then but now claimed memory loss due to LSD.51
Porter was fully cross-examined on the inconsistency.52 This allowed the trier of fact to weigh both versions.53 The Clause's protections of oath, cross-examination, and demeanor are restored when the declarant testifies at trial even if the prior statements were not made under identical circumstances because the jury can observe the witness affirm or repudiate them.54 Historical practice and precedent confirm that the core concern was preventing trials on ex parte affidavits without any opportunity to confront the declarant, not barring prior statements when the witness appears and can be tested.55
The California courts erred by equating the Clause with rigid hearsay rules that would exclude such statements outright.56
The Confrontation Clause permits the substantive use of Porter's prior inconsistent statements.57
Whether a witness who claims memory loss at trial is unavailable for full cross-examination such that prior testimony cannot be admitted under the Confrontation Clause?58
A witness who claims memory loss at trial is not unavailable for purposes of the Confrontation Clause because the right to cross-examination remains intact when the witness is present, sworn, and can be questioned about the prior testimony and the inconsistency even if recall of the underlying events is impaired.59
No. The facts demonstrate that Porter, although claiming inability to remember the events after the phone call, was physically present at trial.60 Porter was asked the same questions answered previously.61 Porter admitted making the statements.62 Porter remained subject to cross-examination by Green's counsel on the memory claim and prior versions.63
The California Supreme Court improperly tied unavailability to the witness's memory rather than to the opportunity for cross-examination, which is the constitutionally critical factor.64 Memory impairment may affect reliability but does not eliminate the right to test the witness's credibility through cross-examination and demeanor observation by the trier of fact.65 Precedent supports admitting prior testimony when the witness appears and submits to examination regardless of claimed memory lapse.66
A witness claiming memory loss at trial is not unavailable for full cross-examination under the Confrontation Clause.67
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan dissented.68 He stated that the admission of Porter's prior statements violated the Confrontation Clause.69 The witness at trial claimed a complete loss of memory.70
The witness was therefore unavailable for cross-examination within the meaning of the Confrontation Clause.71 Brennan explained that 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.72 Defense counsel cannot probe the story of a silent witness.73
The impetus to truth inherent in the oath, the penalty for perjury, and the courtroom atmosphere have no effect on the witness so far as the facts of the alleged offense are concerned.74 Brennan concluded that the prior testimony should not have been admitted.75 He would affirm the reversal of respondent's conviction.76
Justice Marshall joined the dissenting opinion of Justice Brennan.77 He added that the Confrontation Clause requires that the defendant have the opportunity to cross-examine the witness at trial.78 When the witness claims a loss of memory, that opportunity is not provided.79
Marshall emphasized that the purposes of the Confrontation Clause cannot be satisfied by a face-to-face encounter at the preliminary hearing alone.80 Cross-examination at the hearing pales beside that which takes place at trial.81 The objective of the hearing is to establish probable cause, not guilt beyond a reasonable doubt.82
Marshall concluded that the conviction should be reversed.83
Whether cross-examination of a witness at a preliminary hearing satisfies the Confrontation Clause when the witness later claims inability to remember the events at trial?84
Cross-examination at a preliminary hearing satisfies the Confrontation Clause when the hearing provided circumstances closely approximating a trial, including oath, representation by counsel, full opportunity to cross-examine, and a judicial record, even if the witness later claims memory loss at trial because the prior opportunity combined with the witness's presence at trial fulfills constitutional requirements.85
Yes. The facts establish that at the preliminary hearing Porter testified under oath.86 Green's counsel conducted extensive cross-examination.87 The proceeding was before a judicial officer.88
A record was made.89 At trial Porter was again present, sworn, and tendered for cross-examination on the same matters.90 These conditions meet the Clause's demands because the preliminary hearing testimony was given under safeguards comparable to trial and the subsequent trial appearance allowed further testing of credibility.91 The Clause does not require that cross-examination occur only at the final trial when the earlier examination was adequate and the witness is available to explain any inconsistency.92
The state courts' contrary holding would improperly exclude reliable evidence without advancing confrontation values.93
Cross-examination at the preliminary hearing satisfies the Confrontation Clause despite the witness's later memory claim at trial.94