Washington v. Texas/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

For reasons that I have stated in my concurring opinion in Gideon v. Wainweight, 372 U.S. 335, 349, 83 S.Ct. 792, 799, 9 L.Ed.2d 799, and in my opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923 and in my dissenting opinion in Poe v. Ullman, 367 U.S. 497 539-545, 81 S.Ct. 1752, 1774-1778, 6 L.Ed.2d 989, I cannot accept the view that the Due Process Clause of the Fourteenth Amendment 'incorporates,' in its terms, the specific provisions of the Bill of Rights. In my view the Due Process Clause is not reducible to 'a series of isolated points,' but is rather 'a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints * *  * .' Poe v. Ullman, 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. 288; Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (opinion concurring 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 indicted in connection with the same offense, who would not, however, be barred from testifying if called by the prosecution. Texas has put forward no justification for this type of discrimination between the prosecution and the defense in the ability to call the same person as a witness, and I can think of none.

In my opinion this is not, then, really a problem of 'compulsory process' at all, although the Court's incorporationist approach leads it to strain this constitutional provision to reach these peculiar statutes. Neither is it a situation in which the State has determined, as a matter of valid state evidentiary law, on the basis of general experience with a particular class of persons, as for example, the mentally incompetent or those previously convicted of perjury, that the pursuit of truth is best served by an across-the-board disqualification as witnesses of persons of that class. Compare Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. This is rather a case in which the State has recgn ized as relevant and competent the testimony of this type of witness, but has arbitrarily barred its use by the defendant. This, I think, the Due Process Clause forbids.