Pointer v. Texas,

380 U.S. 400 (1965), argued 15 Mar. 1965, decided 5 Apr. 1965 by vote of 9 to 0; Black for the Court, Harlan, Stewart, and Goldberg concurring. The *Sixth Amendment provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witness against him.” Although the right to confrontation had long been recognized in state law, in this case the Supreme Court ruled that the Sixth Amendment guarantee was applicable to the states via the Due Process Clause of the *Fourteenth Amendment (see due process, procedural; incorporation doctrine).

The case arose when a defendant’s attorney objected to the introduction of a transcript of testimony of a robbery victim who had moved out of state between the time he had testified at a preliminary hearing and the trial: in this transcribed testimony the victim identified Pointer as the offender, and Pointer was convicted largely upon the basis of this testimony. In overturning his conviction, the Supreme Court held that introduction of such testimony, which had been taken at a proceeding at which Pointer had been present but unrepresented by counsel, constituted a denial of his Sixth Amendment rights to confront witnesses and to cross-examine them by counsel.

In overturning the conviction and extending the right to confrontation to the states, the Court also ruled that this right must be determined by the same standards that hold in federal proceedings. In so doing, the Court also reiterated the underlying reason for the rule, which is to give defendants charged with crimes an opportunity to cross-examine witnesses against them. However, even as the Court embraced a sweeping interpretation of the right, it acknowledged some practical limits, noting for instance that declarations of dying persons and testimony of deceased witnesses who had testified at former trials could still be admissible despite the impossibility of confrontation.

Malcolm M. Feeley