Pointer v. Texas/Concurrence Stewart

Mr. Justice STEWART, concurring in the result.

I join in the judgment reversing this conviction, for the reason that the petitioner was denied the opportunity to cross-examine, through counsel, the chief witness for the prosecution. But I do not join in the Court's pronouncement which makes 'the Sixth Amendment's right of an accused to confront the witnesses against him * *  * obligatory on the States.' That questionable tour de force seems to me entirely unnecessary to the decision of this case, which I think is directly controlled by the Fourteenth Amendment's guarantee that no State shall 'deprive any person of life, liberty, or property, without due process of law.'

The right of defense counsel in a criminal case to cross-examine the prosecutor's living witnesses is '(o)ne of the fundamental guaranties of life and liberty,' and 'one of the safeguards essential to a fair trial.' It is, I think, as indispensable an ingredient as the 'right to be tried in a courtroom presided over by a judge.' Indeed, this Court has said so this very Term. Turner v. State of Louisiana, 379 U.S. 466, 472 473, 85 S.Ct. 546, 549-550, 13 L.Ed.2d 424.

Here that right was completely denied. Therefore, as the Court correctly points out, we need not consider the case which could be presented if Phillips' statement had been taken at a hearing at which the petitioner's counsel was given a full opportunity to cross-examine. See West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965.