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87 S.Ct.

1920 Page 1
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

of defendant in criminal case to have compulsory


process is applicable to states through Fourteenth
Supreme Court of the United States Amendment and whether that right was violated by
Jackie WASHINGTON, Petitioner, state procedural statutes providing that persons
v. charged as principals, accomplices, or accessories
STATE OF TEXAS. in same crime cannot be introduced as witnesses for
No. 649. each other. Vernon's Ann.Tex.P.C. art. 82; Vernon's
Ann.Tex.C.C.P. art. 36.09; U.S.C.A.Const.
Argued March 15 and 16, 1967.
Amends. 6, 14.
Decided June 12, 1967.
[2] Constitutional Law 92 3850
Murder prosecution. The Criminal District Court
No. 4, Dallas County, rendered judgment, and de- 92 Constitutional Law
fendant appealed. The Texas Court of Criminal Ap- 92XXVII Due Process
peals, 400 S.W.2d 756, affirmed, and defendant ob- 92XXVII(A) In General
tained certiorari. The Supreme Court, Mr. Chief 92k3848 Relationship to Other Constitu-
Justice Warren, held that Texas defendant was tional Provisions; Incorporation
denied his Sixth Amendment right to have com- 92k3850 k. Bill of Rights in General.
pulsory process for obtaining witnesses by statutes Most Cited Cases
providing that principals, accomplices, or accessor- (Formerly 92k254.2, 92k251)
ies in same crime cannot be introduced as witnesses Bill of Rights provision which is fundamental and
for each other, thus denying defendant right to essential to fair trial is made obligatory upon states
place on stand witness who was physically and by Fourteenth Amendment. U.S.C.A.Const.
mentally capable of testifying to events that he had Amend. 14.
personally observed and whose testimony would
have been relevant and material to defense. [3] Constitutional Law 92 3856

Judgment reversed. 92 Constitutional Law


92XXVII Due Process
Opinion on remand, Tex.Cr.App., 417 S.W.2d 378. 92XXVII(A) In General
92k3848 Relationship to Other Constitu-
West Headnotes
tional Provisions; Incorporation
[1] Federal Courts 170B 506 92k3856 k. Sixth Amendment. Most
Cited Cases
170B Federal Courts (Formerly 92k268(10), 92k268(2))
170BVII Supreme Court Accused's Sixth Amendment right to have compuls-
170BVII(E) Review of Decisions of State ory process for obtaining witnesses in his favor is
Courts applicable to states through Fourteenth Amend-
170Bk504 Nature of Decisions or Ques- ment. U.S.C.A.Const. Amends. 6, 14.
tions Involved
170Bk506 k. Criminal Matters; Habeas [4] Constitutional Law 92 4677
Corpus. Most Cited Cases
92 Constitutional Law
(Formerly 106k397)
92XXVII Due Process
Certiorari was granted to determine whether right
92XXVII(H) Criminal Law

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87 S.Ct. 1920 Page 2
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

92XXVII(H)5 Evidence and Witnesses 410II(A) Capacity and Qualifications in Gen-


92k4677 k. Right to Present Witnesses; eral
Compulsory Process. Most Cited Cases 410k35 k. Capacity in General. Most
(Formerly 92k268(10), 92k268(2)) Cited Cases
Right to offer testimony of witnesses, and to com- Truth is more likely to be arrived at by hearing
pel their attendance, if necessary, is in plain terms testimony of all persons of competent understand-
the right to present a defense, and a fundamental ing who may seem to have knowledge of facts in-
element of due process of law. volved in case, leaving credit and weight of such
testimony to be determined by jury or by court.
[5] Criminal Law 110 508(1)
[7] Witnesses 410 2(2)
110 Criminal Law
110XVII Evidence 410 Witnesses
110XVII(S) Testimony of Accomplices and 410I In General
Codefendants 410k2 Right of Accused to Compulsory Pro-
110XVII(S)1 In General cess
110k508 Admissibility and Effect of 410k2(2) k. Constitutional and Statutory
Testimony Provisions. Most Cited Cases
110k508(1) k. In General. Most Sixth Amendment was designed in part to make
Cited Cases testimony of defendant's witnesses admissible on
his behalf in court. U.S.C.A.Const. Amends. 6.
Criminal Law 110 508(3)
[8] Witnesses 410 2(1)
110 Criminal Law
110XVII Evidence 410 Witnesses
110XVII(S) Testimony of Accomplices and 410I In General
Codefendants 410k2 Right of Accused to Compulsory Pro-
110XVII(S)1 In General cess
110k508 Admissibility and Effect of 410k2(1) k. In General. Most Cited Cases
Testimony (Formerly 92k268(10), 92k268(2))
110k508(3) k. Persons Jointly In-
dicted in General. Most Cited Cases Constitutional Law 92 4674
Rule rendering accomplices or coindictees incom-
92 Constitutional Law
petent to testify at least in favor of each other, as
92XXVII Due Process
well as other disqualifications for interest, rested on
92XXVII(H) Criminal Law
unstated premise that right to present witnesses was
92XXVII(H)5 Evidence and Witnesses
subordinate to courts' interest in preventing perjury,
92k4672 Witnesses in General
and that erroneous decision was best avoided by
92k4674 k. Competency and Quali-
preventing jury from hearing any testimony that
fications. Most Cited Cases
might be perjured, even if it were only testimony
(Formerly 92k268(10), 92k268(2))
available on crucial issue.
Criminal Law 110 508(1)
[6] Witnesses 410 35
110 Criminal Law
410 Witnesses
110XVII Evidence
410II Competency
110XVII(S) Testimony of Accomplices and

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87 S.Ct. 1920 Page 3
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

Codefendants ated by a state procedural statute providing that per-


110XVII(S)1 In General sons charged as principals, accomplices, or ac-
110k508 Admissibility and Effect of cessories in the same crime cannot be introduced as
Testimony witnesses for each other.
110k508(1) k. In General. Most
Cited Cases FN1. ‘In all criminal prosecutions, the ac-
Texas defendant was denied his Sixth Amendment cused shall enjoy the right to a speedy and
right to have compulsory process for obtaining wit- public trial, by an impartial jury of the
nesses by statutes providing that principals, accom- State and district wherein the crime shall
plices, or accessories in same crime cannot be in- have been committed, which district shall
troduced as witnesses for each other, thus denying have been previously ascertained by law,
defendant right to place on stand witness who was and to be informed of the nature and cause
physically and mentally capable of testifying to of the accusation; to be confronted with the
events that he had personally observed and whose witnesses against him; to have compulsory
testimony would have been relevant and material to process for obtaining witnesses in his fa-
defense. Vernon's Ann.Tex.P.C. art. 82; Vernon's vor, and to have the Assistance of Counsel
Ann.Tex.C.C.P. art. 36.09; U.S.C.A.Const. for his defence.’
Amends. 6, 14.
FN2. ‘(N)or shall any State deprive any
[9] Witnesses 410 2(2) person of life, liberty, or property, without
due process of law * * *.’
410 Witnesses
410I In General Petitioner, Jackie Washington, was convicted in
410k2 Right of Accused to Compulsory Pro- Dallas County, Texas, of murder with malice and
cess was sentenced by a jury to 50 years in prison. The
410k2(2) k. Constitutional and Statutory prosecution's evidence showed that petitioner, an
Provisions. Most Cited Cases 18-year-old youth, had dated a girl named Jean
Framers of Constitution did not intend to commit Carter until her mother had forbidden her to see
futile act of giving defendant right to secure attend- him. The girl thereafter began dating another boy,
ance of witnesses whose testimony he had no right the deceased. Evidently motivated by jealousy, pe-
to use. U.S.C.A.Const. Amend. 6. titioner with several other boys began driving
**1921 *14 Charles W. Tessmer, Dallas, Tex., for around the City of Dallas on the night of August 29,
petitioner. 1964, looking for a gun. The search eventually led
to one Charles Fuller, who joined the group with
Howard M. Fender, Austin, Tex., for respondent. his shotgun. After obtaining some shells from an-
other source, the group of boys proceeded to Jean
Carter's home, where Jean, her family and the de-
Mr. Chief Justice WARREN delivered the opinion
ceased were having supper. Some of the boys threw
of the Court.
bricks at the house and then ran back to the car,
[1] We granted certiorari in this case to determine leaving petitioner and Fuller alone in front of the
whther the right of a defendant in a criminal case house with the shotgun. At the sound of the bricks
FN1 the deceased and Jean Carter's mother rushed out
under the *15 Sixth Amendment to have com-
pulsory process for obtaining witnesses in his favor on the porch to investigate. The shotgun was fired
is applicable to the States through the Fourteenth by either petitioner or Fuller, and the *16 deceased
FN2 was fatally wounded. Shortly afterward petitioner
Amendment, and whether that right was viol-
and Fuller came running back to the car where the

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87 S.Ct. 1920 Page 4
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

other boys waited, with Fuller carrying the shotgun. but they may claim a severance, and if one
or more be acquitted they may testify in
Petitioner testified in his own behalf. He claimed behalf of the others.’ Vernon's Ann.
that Fuller, who was intoxicated, had taken the gun Tex.Pen.Code, Art. 82.
from him, and that he had unsuccessfully tried to
persuade Fuller to leave before the shooting. Fuller ‘Persons charged as principals, accom-
had insisted that he was going to shoot someone, plices or accessories, whether in the same
and petitioner had run back to the automobile. He or different indictments, cannot be intro-
saw the girl's mother come out of the door as he duced as witnesses for one another, but
began running, and he subsequently heard the shot. they may claim a severance; and, if any
At the time, he had thought that Fuller had shot the one or more be acquitted, or the prosecu-
woman. In support of his version of the facts, peti- tion against them be dismissed, they may
tioner offered the testimony of Fuller. The record testify in behalf of the others.’ Tex.Code
indicates that Fuller would have testified that peti- Crim.Proc., Art. 711 (1925).
tioner pulled at him and tried to persuade him to
leave, and that petitioner ran before Fuller fired the These statutory provisions were apparently
fatal shot. repealed by implication by Art. 36.09 of
the Vernon's Ann.Texas Code of Criminal
**1922 It is undisputed that Fuller's testimony Procedure of 1965, which became effective
would have been relevant and material, and that it after petitioner's trial. Article 36.09
was vital to the defense. Fuller was the only person provides that ‘Two or more defendants
other than petitioner who knew exactly who had who are jointly or separately indicted or
fired the shotgun and whether petitioner had at the complained against for the same offense or
last minute attempted to prevent the shooting. an offense growing out of the same trans-
Fuller, however, had been previously convicted of action may be, in the discretion of the
the same murder and sentenced to 50 years in pris- court, tried jointly or separately as to one
FN3
on, and he was confined in the Dallas County or more defendants; provided that in any
jail. Two Texas statutes provided at the time of the event either defendant may testify for the
trial in this case that persons charged or convicted other or on behalf of the State * * *.’
as coparticipants in the same crime could not testify
FN4 Counsel have cited no statutes from other
for one another, although there was no bar to
FN5 jurisdictions, and we have found none, that
their testifying*17 for the State. On the basis
of these statutes the trial judge sustained the State's flatly disqualify coparticipants in a crime
objection and refused to allow Fuller to testify. Pe- from testifying for each other regardless of
titioner's conviction followed, and it was upheld on whether they are tried jointly or separately.
appeal by the Texas Court of Criminal Appeals. To be distinguished are statutes providing
400 S.W.2d 756. We granted certiorari. 385 U.S. that one of two or more defendants tried
812, 87 S.Ct. 123, 17 L.Ed.2d 54. We reverse. jointly may, if the evidence against him is
insufficient, be entitled to an immediate
FN3. See Fuller v. State, 397 S.W.2d 434 acquittal so he may testify for the others.
(Tex.Crim.App.1966). These statutes seem designed to allow such
joint defendants to testify without incrim-
FN4. ‘Persons charged as principals, ac- inating themselves. See, e.g., Ala.Code,
complices or accessories, whether in the Tit. 15, s 309 (1958); Alaska Code
same or by different indictments, can not Crim.Proc. s 12.20.060 (1962);
be introduced as witnesses for one another, Kan.Gen.Stat.Ann. s 62-1440 (1964).

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87 S.Ct. 1920 Page 5
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

FN5. Rangel v. State, 22 Tex.App. 642, 3 [3][4] The right of an accused to have compulsory
S.W. 788 (1887). process for obtaining witnesses in his favor stands
on no lesser footing than the other Sixth Amend-
ment rights that we have previously held applicable
I.
to the States. This Court had occasion in In re Oliv-
[2] We have not previously been called upon to de- er, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948)
cide whether the right of an accused to have com- , to describe what it regarded as the most basic in-
pulsory process for obtaining witnesses in his favor, gredients of due process of law. It observed that:
guaranteed in federal trials by the Sixth Amend-
‘A person's right to reasonable notice of a charge
ment, is so fundamental and essential to a fair trial
against him, and an opportunity to be heard in his
that it is incorporated in the *18 Due Process
FN6 defense-a right to his day in court-are basic in our
Clause of the Fourteenth Amendment. At one
system of jurisprudence; and these rights include,
time, it was thought that the Sixth Amendment had
FN7 as a minimum, a right to examine the witnesses
no application to state criminal trials. That
against him, to offer testimony, and to be represen-
view no longer prevails, and in recent years we
ted by counsel.’ 333 U.S., at 273, 68 S.Ct. at 507
have increasingly looked to the specific guarantees
(footnote omitted).
of the Sixth Amendment to determine whether a
state criminal trial was conducted with due process *19 The right to offer the testimony of witnesses,
of law. We have held that due process requires that and to compel their attendance, if necessary, is in
the accused have the assistance of counsel for his plain terms the right to present a defense, the right
defense, [FN8] **1923 that he be confronted with to present the defendant's version of the facts as
FN9
the witnesses against him, and that he have the well as the prosecution's to the jury so it may de-
FN10 FN11
right to a speedy and public trial. cide where the truth lies. Just as an accused has the
right to confront the prosecution's witnesses for the
FN6. ‘(A) provision of the Bill of Rights
purpose of challenging their testimony, he has the
which is ‘fundamental and essential to a
right to present his own witnesses to establish a de-
fair trial’ is made obligatory upon the
fense. This right is a fundamental element of due
States by the Fourteenth Amendment.'
process of law.
Gideon v. Wainwright, 372 U.S. 335, 342,
83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963).
II.
FN7. See West v. State of Louisiana, 194
U.S. 258, 264, 24 S.Ct. 650, 652, 48 L.Ed. Since the right to compulsory process is applicable
965 (1904). in this state proceeding, the question remains
whether it was violated in the circumstances of this
FN8. Gideon v. Wainwright, 372 U.S. 335, case. The testimony of Charles Fuller was denied to
83 S.Ct. 792, 9 L.Ed.2d 799 (1963). the defense not because the State refused to compel
his attendance, but because a state statute made his
FN9. Pointer v. State of Texas, 380 U.S.
testimony inadmissible whether he was present in
400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
the courtroom or not. We are thus called upon to
FN10. Klopfer v. North Carolina, 386 U.S. decide whether the Sixth Amendment guarantees a
213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). defendant the right under any circumstances to put
his witnesses on the stand, as well as the right to
FN11. In re Oliver, 333 U.S. 257, 68 S.Ct. compel their attendance in court. The resolution of
499, 92 L.Ed. 682 (1948). this question requires some discussion of the com-

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87 S.Ct. 1920 Page 6
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

mon-law context in which the Sixth Amendment indictees were incompetent to testify at least in fa-
was adopted. vor of each other even at separate trials, and in spite
of statutes making a defendant competent to testify
Joseph Story, in his famous Commentaries on the FN16
in his own behalf. *21 It was thought that if
Constitution of the United States, observed that the two persons charged with the same crime were al-
right to compulsory process was included in the lowed to testify on behalf of each other, ‘each
Bill of Rights in reaction to the notorious common- would try to swear the other out of the charge.'
law rule that in cases of treason or felony the ac- FN17
This rule, as well as the other disqualifica-
cused was not allowed to introduce witnesses in his tions for interest, rested on the unstated premises
FN12
defense at all. Although *20 the absolute pro- that the right to present witnesses was subordinate
hibition of witnesses for the defense had been abol- to the court's interest in preventing perjury, and that
FN13
ished in England by statute before 1787, the erroneous decisions were best avoided by prevent-
Framers of the Constitution felt it necessary spe- ing the jury from hearing any testimony that might
cifically to provide that defendants in criminal be prejured, even if it were the only testimony
cases should be provided the means of obtaining FN18
available on a crucial issue.
witnesses so that their own evidence, as well as the
prosecution's, might be evaluated by the jury. FN14. See generally 2 Wigmore ss
575-576 (3d ed. 1940). We have discussed
FN12. 3 Story, Commentaries on the Con- elsewhere the gradual demise of the com-
stitution of the United States ss 1786-1788 mon-law rule prohibiting defendants from
(1st ed. 1833). testifying in their own behalf. See Fer-
guson v. State of Georgia, 365 U.S. 570,
FN13. By 1701 the accused in both treason
81 S.Ct. 756, 5 L.Ed.2d 783 (1961).
and felony cases was allowed to produce
witnesses who could testify under oath. FN15. See 2 Wigmore s 580, at 709-710
See 2 Wigmore, Evidence s 575, at (3d ed. 1940); Henderson v. State, 70 Ala.
685-686 (3d ed. 1940). 23, 24-25 (Dec.Term 1881); Allen v. State,
10 Ohio St. 287, 303 (Dec.Term 1859).
[5] Despite the abolition of the rule generally dis-
qualifying defense witnesses, the common law re- FN16. See Foster v. State, 45 Ark. 328
tained a number of restrictions on witnesses who (1885 May Term); State v. Drake, 11 Or.
were physically**1924 and mentally capable of 396, 4 P. 1204 (1884). Both cases have
testifying. To the extent that they were applicable, been overturned by statute. Ark.Stat.Ann. s
they had the same effect of suppressing the truth 43-2017 (1947); Ore.Rev.Stat. s 139.315
that the general proscription had had. Defendants (1965).
and codefendants were among the large class of
witnesses disqualified from testifying on the ground FN17. Benson v. United States, 146 U.S.
FN14
of interest. A party to a civil or criminal case 325, 335, 13 S.Ct. 60, 63, 36 L.Ed. 991
was not allowed to testify on his own behalf for (1892).
fear that he might be tempted to lie. Although ori-
ginally the disqualification of a codefendant ap- FN18. ‘Indeed, the theory of the common
pears to have been based only on his status as a law was to admit to the witness stand only
party to the action, and in some jurisdictions co- those presumably honest, appreciating the
indictees were allowed to testify for or against each sanctity of an oath, unaffected as a party
FN15 by the result, and free from any of the
other if granted separate trials, other jurisdic-
tions came to the view that accomplices or co- temptations of interest. The courts were

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87 S.Ct. 1920 Page 7
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

afraid to trust the intelligence of jurors.’ is difficult to see how the Constitution is any less
Benson v. United States, 146 U.S. 325, violated by arbitrary rules that prevent whole cat-
336, 13 S.Ct. 60, 63, 36 L.Ed. 991 (1892). egories of defense witnesses from testifying on the
basis of a priori categories that presume them un-
[6] The federal courts followed the common-law re- worthy of belief.
strictions for a time, despite the Sixth Amendment.
In United States v. Reid, 12 How. 361, 13 L.Ed. The rule disqualifying an alleged accomplice from
1023 (1852), the question was whether one of two testifying on behalf of the defendant cannot even be
defendants jointly indicted for murder on the high defended on the ground that it rationally sets apart a
seas could call the other as a witness. Although this group of persons who are particularly likely to
Court expressly recognized that the Sixth Amend- commit perjury. The absurdity of the rule is amply
ment was designed to abolish some of the harsh demonstrated by the exceptions that have been
rules of the common law, particularly including the made to it. For example, the accused accomplice
refusal to allow the defendant in a serious criminal may be called by the prosecution to testify against
FN19 FN20
case to present witnesses in his defense, it the defendant. Common sense would suggest
held that the rules of evidence in the federal courts that he often has a greater interest in lying in favor
were those in force in the various States at the time of the prosecution rather than against it, especially
of the passage of the Judiciary Act of 1789, includ- if he is still awaiting his own trial or sentencing. To
ing the disqualification of defendants indicted to- think that criminals will lie to save their fellows but
gether. The holding in United States v. Reid was not to obtain favors from the prosecution*23 for
not satisfactory to later generations, however, and themselves is indeed to clothe the criminal class
in 1918 this Court expressly overruled it, *22 refus- with more nobility than one might expect to find in
ing to be bound by ‘the dead hand of the common- the public at large. Moreover, under the Texas stat-
law rule of 1789,’ and taking note of ‘the convic- utes, the accused accomplice is no longer disquali-
tion of our time that the truth is more likely to be fied if he is acquitted at his own trial. Presumably,
arrived at by hearing the testimony of all persons of he would them be free to testify on behalf of his
competent understanding who may seem to have comrade, secure in the knowledge that he could in-
knowledge of the facts involved in a case, leaving criminate himself as freely as he liked in his testi-
the credit and weight of such testimony to be de- mony, since he could not again be prosecuted for
termined by the jury or **1925 by the court * * *.’ the same offense. The Texas law leaves him free to
Rosen v. United States, 245 U.S. 467, 471, 38 S.Ct. testify when he has a great incentive to perjury, and
148, 150, 62 S.Ct. 406. bars his testimony in situations where he has a less-
er motive to lie.
FN19. 12 How., at 363-364, 13 L.Ed. 1023
. FN20. See n. 5, supra.

[7] Although Rosen v. United States rested on non- [8][9] We hold that the petitioner in this case was
constitutional grounds, we believe that its reasoning denied his right to have compulsory process for ob-
was required by the Sixth Amendment. In light of taining witnesses in his favor because the State ar-
the common-law history, and in view of the recog- bitrarily denied him the right to put on the stand a
nition in the Reid case that the Sixth Amendment witness who was physically and mentally capable
was designed in part to make the testimony of a de- of testifying to events that he had personally ob-
fendant's witnesses admissible on his behalf in served, and whose testimony would have been rel-
FN21
court, it could hardly be argued that a State would evant and material to the defense. The
not violate the clause if it made all defense testi- Framers of the Constitution did not intend to com-
mony inadmissible as a matter of procedural law. It mit the futile act of giving to a defendant the right

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87 S.Ct. 1920 Page 8
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
(Cite as: 388 U.S. 14, 87 S.Ct. 1920)

to secure the attendance of witnesses whose testi- indicted in connection with the same offense, who
mony he had no right to use. The judgment of con- would not, however, be barred from testifying if
viction must be reversed. It is so ordered. called by the prosecution. Texas has put forward no
justification for this type of discrimination between
FN21. Nothing in this opinion should be the prosecution and the defense in the ability to call
construed as disapproving testimonial priv- the same person as a witness, and I can think of
ileges, such as the privilege against self- none.
incrimination or the lawyer-client or hus-
band-wife privileges, which are based on In my opinion this is not, then, really a problem of
entirely different considerations from those ‘compulsory process' at all, although the Court's in-
underlying the common-law disqualifica- corporationist approach leads it to strain this consti-
tions for interest. Nor do we deal in this tutional provision to reach these peculiar statutes.
case with nonarbitrary state rules that dis- Neither is it a situation in which the State has de-
qualify as witnesses persons who, because termined, as a matter of valid state evidentiary law,
of mental infirmity of infancy, are incap- on the basis of general experience with a particular
able of observing events or testifying about class of persons, as for example, the mentally in-
FN1
them. competent or those previously convicted of
FN2
perjury, that the pursuit of *25 truth is best
Reversed. served by an across-the-board disqualification as
Mr. Justice HARLAN, concurring in the result. witnesses of persons of that class. Compare Spen-
For reasons that I have stated in my concurring cer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648,
opinion in Gideon v. Wainweight, 372 U.S. 335, 17 L.Ed.2d 606. This is rather a case in which the
349, 83 S.Ct. 792, 799, 9 L.Ed.2d 799, and in my State has recognized as relevant and competent the
opinion concurring in the result in *24Pointer v. testimony of this type of witness, but has arbitrarily
State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, barred its use by the defendant. This, I think, the
1070, 13 L.Ed.2d 923 and in my dissenting opinion Due Process Clause forbids.
in Poe v. Ullman, 367 U.S. 497 539-545, 81 S.Ct.
1752, 1774-1778, 6 L.Ed.2d 989, I cannot accept FN1. E.g., Cal.Civ.Proc.Code s 1880,
the view that the Due Process Clause of the Four- subd. 1; Cal.Pen.Code s 1321.
teenth Amendment ‘incorporates,’ in its terms, the
specific provisions of the Bill **1926 of Rights. In FN2. E.g., 12 Vermont Stat.Ann., Tit. 12, s
my view the Due Process Clause is not reducible to 1608. See generally 2 Wigmore, Evidence
‘a series of isolated points,’ but is rather ‘a rational s 488 (3d ed. 1940).
continuum which, broadly speaking, includes a
U.S.Tex. 1967.
freedom from all substantial arbitrary impositions
Washington v. Texas
and purposeless restraints * * *.’ Poe v. Ullman,
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019
supra, at 543, 81 S.Ct. at 1777, see Palko v. State of
Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. END OF DOCUMENT
288; Klopfer v. North Carolina, 386 U.S. 213, 226,
87 S.Ct. 988, 995, 18 L.Ed.2d 1 (opinion concur-
ring in the result).

I concur in the result in this case because I believe


that the State may not constitutionally forbid the
petitioner, a criminal defendant, from introducing
on his own behalf the important testimony of one

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