336 U.S. 440, 69 S. Ct. 716, 93 L. Ed. 790 (1949)
A federal district court indictment charged that petitioner and a woman defendant had induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, transported or caused her to be transported for that purpose, and conspired to commit those offenses.1 Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed.2
The challenged testimony was elicited by the Government from its complaining witness and narrated a purported conversation between the complaining witness and the woman defendant more than a month and a half after October 20, 1941.3 The woman defendant asked the complaining witness if she had talked yet, advised her not to until they got a lawyer, to be very careful what she said, and stated that it would be better for the two girls to take the blame than the petitioner because he could not stand it.4
At the time the conversation took place in December 1941, the trip to Florida had been made, the complaining witness had left Florida, returned to New York, and resumed her residence there. The petitioner, the woman defendant, and the complaining witness had been arrested.5 The Florida grand jury failed to indict and the cases there were closed without prosecution in February 1942. The New York indictments were not returned until January 1943.6
Petitioner was tried four times with the following results: mistrial; conviction; mistrial; conviction with recommendation for leniency.7 The record of the trial covers more than 800 pages.8
Whether the hearsay declaration attributed to the alleged co-conspirator after the central objectives of the conspiracy had ended was admissible against the petitioner?9
No. The reported conversation occurred in December 1941, more than a month and a half after the October 20, 1941 trip to Miami that formed the central aim of the charged conspiracy.12 By that date the complaining witness had already left Florida, returned to New York, and resumed her residence there, and all three individuals had been arrested.13 The Florida grand jury later declined to indict.14 The statement was made after the objectives of the transportation conspiracy had ended in success or failure.15
It was not uttered in furtherance of that conspiracy.16 Therefore it could not be admitted against the petitioner under the co-conspirator exception.17
The hearsay declaration was inadmissible against the petitioner.18
Whether the admission of the hearsay declaration, if erroneous, was harmless under 28 U.S.C. (1946 ed.) § 391?19
No. Petitioner faced four trials that produced two mistrials, one conviction, and a final conviction accompanied by a recommendation of leniency.22 On the vital and sordid elements of the case the jury was forced to choose between the testimony of the petitioner and that of the complaining witness, with only limited corroboration on peripheral matters.23 The record of the extended trial exceeds 800 pages.24 Under these circumstances the erroneous admission of the hearsay statement may well have supplied the additional weight that tipped the scales against the petitioner.25
The erroneous admission of the hearsay declaration was not harmless.26
Related opinions on this issue
Justice Burton agreed that the hearsay testimony was inadmissible yet concluded its admission constituted harmless error.27 He emphasized that the trial was lengthy, the record exceeded 800 pages, and the jury was thoroughly familiar with the credibility of the witnesses.28 The supporting evidence was cumulative, repetitive, and corroborated to such an extent that the single reported conversation could not have appreciably affected the verdict or the rights of the parties.29
Reversing the conviction after the fourth trial on the basis of this isolated hearsay statement would, in his view, make a travesty of the jury system.30