402 U.S. 622 (1971)
The respondent, Joe O’Neil, was arrested along with a man named Runnels when the police of Culver City, California, answered a midnight call from a liquor store reporting that two men in a white Cadillac were suspiciously cruising about in the neighborhood.1 The police responded to the call, spotted the Cadillac, and followed it into an alley where a gun was thrown from one of its windows. They then stopped the car and apprehended the respondent and Runnels.2
Further investigation revealed that the car had been stolen about 10:30 that night in Los Angeles by two men.3 They had forced its owner at gunpoint to drive them a distance of a few blocks and then robbed him of $8 and driven off.4 The victim subsequently picked Runnels and the respondent from a lineup, positively identifying them as the men who had kidnaped and robbed him.5
Arraigned on charges of kidnaping, robbery, and vehicle theft, both the respondent and Runnels pleaded not guilty, and at their joint trial they offered an alibi defense.6 Each told the same story: they had spent the evening at the respondent’s home until about 11 p. m., when they had left together. While waiting at a bus stop they were picked up by a friend driving a white Cadillac, and he offered to lend them the car for a few hours while he went into a nightclub.7
Another police officer testified that after the arrest Runnels had made an unsworn oral statement admitting the crimes and implicating the respondent as his confederate.8 When Runnels took the stand in his own defense, he was asked on direct examination whether he had made the statement, and he flatly denied having done so.9 He also vigorously asserted that the substance of the statement imputed to him was false, and he was then intensively cross-examined by the prosecutor but stuck to his story in every particular.10
The jury found both defendants guilty as charged.11 After unsuccessful efforts to set aside the conviction in the California courts, the respondent applied for federal habeas corpus relief in the United States District Court for the Northern District of California.12 While the case was pending there this Court decided Bruton v. United States and Roberts v. Russell, the District Court ruled that the respondent’s conviction had to be set aside, the Court of Appeals for the Ninth Circuit affirmed, and the Supreme Court granted certiorari.13
Whether the Confrontation Clause is violated when a codefendant’s out-of-court statement implicating the defendant is introduced at a joint trial and the codefendant testifies denying the statement while providing testimony favorable to the defendant?14
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for full and effective cross-examination.15
No. The respondent’s counsel remained free to cross-examine Runnels but chose not to do so.16 Runnels also testified at length concerning the events on the night in question in a manner identical to the respondent’s own alibi testimony.17 Because Runnels was present, testified fully about the events on the night in question, denied making the statement, and provided testimony favorable to the respondent, cross-examination was full and effective within the meaning of the rule announced in Bruton and California v. Green.18
The respondent was denied no rights protected by the Sixth and Fourteenth Amendments.19
Related opinions on this issue
Justice Harlan joined the opinion and judgment of the Court.20 He would, however, have gone further and held that because respondent’s conviction became final before this Court decided Bruton v. United States, 391 U.S. 123 (1968), he cannot avail himself of that new rule in subsequent federal habeas corpus proceedings.21 See Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion of this writer).22 It is difficult to fathom what public policy is served by opening the already overcrowded federal courts to claims such as these.23 Respondent’s trial and appeals were, at the time they occurred, conducted in a manner perfectly consistent with then-prevailing constitutional norms.24
A reversal of the conviction now would either compel the State to place an already once-tried case again on its criminal docket, to be retried on substantially the same but now more stale evidence, or else force the State to forgo its interest in enforcing its criminal laws relating to kidnaping, robbery, and car theft because of the disappearance of evidence.25
Justice Marshall dissented on the ground that this case dramatically illustrates the need for the adoption of new rules regulating the use of joint trials.26 Here there is no question that Runnels’ alleged statement to the police was not admissible under state law against O’Neil.27 But there is a very real danger that the statement was in fact used against O’Neil.28
Those that argue for the use of joint trials contend that joint trials are justified because of the saving of time, money, and energy that result.29 But as this case shows, much of the supposed saving is lost through protracted litigation that results from the impingement on a codefendant’s rights of confrontation and equal protection.30 He endorsed the American Bar Association standard requiring the prosecutor to elect between a joint trial in which the statement is excluded, a joint trial at which the statement is admitted but the portion that refers to the moving defendant is effectively deleted, or severance.31
Justice Brennan dissented, contending that the Court asks and answers the wrong question in this case.32 Under the law of California at the time of respondent’s trial, admissions to a police officer by a criminal defendant after his arrest could not be used as substantive evidence against other defendants, whether or not the declarant testified at trial.33 The question with which we are faced is not whether the Sixth Amendment would forbid California from using Runnels’ statement as substantive evidence against respondent O’Neil if it chose to do so.34
California rejected that choice. The jury in the present case was explicitly instructed that Runnels’ statement could not be considered as evidence against O’Neil.35 He concluded that Bruton and Roberts v. Russell forbid this practice because it creates different rules of evidence for defendants tried jointly versus separately, a discrimination the Constitution does not permit.36