380 U.S. 400 (1965)
Pointer and one Dillard were arrested in Texas and taken before a state judge for a preliminary hearing on a charge of having robbed Kenneth W. Phillips of $375 by assault, or violence, or by putting in fear of life or bodily injury, in violation of Texas Penal Code Art. 1408.1 At this hearing an Assistant District Attorney conducted the prosecution and examined witnesses, but neither of the defendants, both of whom were laymen, had a lawyer.2 Phillips as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint.3 Apparently Dillard tried to cross-examine Phillips but Pointer did not, although Pointer was said to have tried to cross-examine some other witnesses at the hearing.4
Petitioner was subsequently indicted on a charge of having committed the robbery.5 Some time before the trial was held, Phillips moved to California.6 After putting in evidence to show that Phillips had moved and did not intend to return to Texas.7 The State at the trial offered the transcript of Phillips’ testimony given at the preliminary hearing as evidence against petitioner.8 Petitioner’s counsel immediately objected to introduction of the transcript, stating, “Your Honor, we will object to that, as it is a denial of the confrontment of the witnesses against the Defendant.”9 Similar objections were repeatedly made by petitioner’s counsel but were overruled by the trial judge, apparently in part because, as the judge viewed it, petitioner had been present at the preliminary hearing and therefore had been “accorded the opportunity of cross examining the witnesses there against him.”10
The Texas Court of Criminal Appeals, the highest state court to which the case could be taken, affirmed petitioner’s conviction.11 The Supreme Court granted certiorari to consider the important constitutional question the case involves.12
Whether the Sixth Amendment’s guarantee of a defendant’s right to be confronted with the witnesses against him, which has been held to include the right to cross-examine those witnesses, is also made applicable to the States by the Fourteenth Amendment?13
The Sixth Amendment's right of an accused to confront the witnesses against him is a fundamental right and is made obligatory on the States by the Fourteenth Amendment.14 It is to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.15
Yes. Pointer was not represented by counsel at the preliminary hearing where Phillips gave testimony identifying him as the robber. When Phillips moved to California, the State introduced the transcript of that testimony at trial over objection, without Pointer having had an opportunity for cross-examination by counsel. This procedure denied Pointer the fundamental right of confrontation guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth Amendment.16
The conviction must be reversed because the use of the transcript denied petitioner his constitutional right to confrontation under the Sixth and Fourteenth Amendments.17
Related opinions on this issue
Justice Harlan agreed that admission of the statement deprived the petitioner of a right of confrontation assured by the Fourteenth Amendment but rejected the incorporation doctrine.18 He maintained that the right of confrontation is implicit in the concept of ordered liberty reflected in the Due Process Clause of the Fourteenth Amendment independently of the Sixth Amendment.19 Harlan emphasized that the federal system tolerates differences between federal and state methods subject to fundamental fairness and criticized incorporation for subordinating state differences to federal Bill of Rights requirements.20
Justice Stewart concurred in the judgment reversing the conviction because the petitioner was denied the opportunity to cross-examine through counsel the chief witness for the prosecution.21 He declined to join the pronouncement making the Sixth Amendment's confrontation right obligatory on the States, instead grounding the decision in the Fourteenth Amendment's guarantee that no State shall deprive any person of life, liberty, or property without due process of law.22 Stewart noted that the right of defense counsel to cross-examine is one of the fundamental guarantees essential to a fair trial.23
Justice Goldberg joined the opinion and judgment holding that the Sixth Amendment's confrontation right is fundamental and made obligatory on the States by the Fourteenth Amendment.24 He defended the process of absorption by which fundamental guarantees of the Bill of Rights are applied to the States, rejecting the view that once incorporated a provision applies only in a watered-down version.25 Goldberg argued that this approach protects individual liberties without undermining federalism and that the Court should not allow States greater latitude to abridge fundamental rights than the Federal Government.26