dissenting.
Appellee Evans was convicted of first-degree murder after a trial in which a witness named Shaw was allowed to testify, over counsel’s strenuous objection, about a statement he claimed was made to him by Williams, an alleged accomplice who had already been convicted in a separate trial.1 According to Shaw, the statement, which implicated both Williams and Evans in the crime, was made in a prison conversation immediately after Williams’ arraignment. Williams did not testify nor was he called as a witness. .Nevertheless, the Court today concludes that admission of the extrajudicial statement, attributed to an alleged partner in crime did not deny Evans the right “to be confronted with the witnesses against him” guaranteed by the Sixth and Fourteenth Amendments to the Constitution. In so' doing,. the majority reaches a result completely inconsistent with recent opinions of this Court, especially Douglas v. Alabama, 380 U. S. 415 (1965), and Bruton v. United States, 391 U. S. 123 (1968). In my view, those cases fully apply here and establish a clear violation of Evans’ constitutional rights.
*101In Pointer v. Texas, 380 U. S. 400 (1965), this Court first held that “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.” Id., at 403. That decision held constitutionally inadmissible a statement offered against a defendant at a state trial where the statement was originally made at a preliminary hearing under circumstances not affording the defendant an adequate opportunity for cross-examination. Indeed, we have since held that even cross-examination at a prior hearing does not satisfy the confrontation requirement, at least where the witness who made the statement is available tnbe called at trial. Barber v. Page, 390 U. S. 719 (1968). “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” Id., at 725.
In Douglas v. Alabama, supra, this Court applied the principles of Pointer to a case strikingly similar to this one. There, as here, the State charged two defendants with a crime and tried them in separate trials. There, as here, the State first prosecuted one defendant (Loyd) and then used a statement by him in the trial of the •second defendant (Douglas). Although the State called Loyd as a witness, an appeal from his conviction was pending and he refused to testify on the ground that doing so would violate his Fifth Amendment privilege against self-incrimination.
Without reaching the question whether the privilege was properly invoked,2 the Court held that the prosecu*102tor’s reading of Loyd’s statement in a purported.attempt to refresh his memory denied Douglas’ right to confrontation. “Loyd could not be cross-examined on a statement imputed to but not admitted by him.” 380 U. S., at 419. Of course, Douglas was provided the opportunity to cross-examine the officers who testified regarding Loyd’s statement. “But since their evidence tended to show only that Loyd made thé confession, cross-examination of them . . ..could not substitute for cross-examination of Loyd to test the truth of the statement itself.” 3 Id., at 420. ■ Surely, the same reasoning compels the exclusion of Shaw’s testimony here. Indeed, the only significant difference between Douglas and this case, insofar as the denial of the opportunity to cross-examine is concerned, is that here the State did not even attempt to call Williams to testify in Evans’ trial. He was plainly available to the State, and for all we know he would have willingly testified, at least with regard to his alleged conversation with Shaw.4
Finally, we. have applied the reasoning of Douglas to hold that, “despite instructions to the jury to disregard *103the implicating statements in determining the codefend-ant’s guilt or innocence, admission at a joint trial of a defendant’s extrajudicial confession implicating a code-fendant violated the codefendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Roberts v. Russell, 392 U. S. 293 (1968), giving retroactive effect in both state and federal trials to Bruton v. United States, 391 U. S. 123 (1968). Thus Williams’ alleged statement, an extrajudicial admission made to a fellow prisoner, could not even have been introduced against Williams if he had been tried in a joint trial with Evans.
The teaching of this line of cases seems clear: Absent the opportunity for cross-examination, testimony about the incriminating and implicating statement allegedly made by Williams was constitutionally inadmissible in the trial of Evans.
Mr. Justice Stewart’s opinion for reversal characterizes as “wholly unreal” the possibility that cross-examination of Williams himself would change the picture presented by Shaw’s account. A trial lawyer might well doubt, as an article of the skeptical faith of that profession, such a categorical prophecy about the likely results of careful cross-examination. Indeed, the facts of this case clearly demonstrate the necessity for fuller factual development which the corrective test of cross-examination makes possible.' The plurality for reversal pigeonholes the out-of-court statement that was admitted in evidence as a “spontaneous” utterance, hence tó be believed. As the Court of Appeals concluded, however, there is great doubt that Williams even made the statement attributed to him.5 More*104over, there remains the further question what, if anything, Williams might have meant by the remark that Shaw recounted. Me. Justice Stewart’s opinion concedes that the remark is ambiguous. Plainly it stands as an accusation of some sort: “If it hadn’t been for . . . Evans,” said Williams, according to Shaw, “we wouldn’t be in this now.” At his trial Evans himself gave unsworn testimony to the effect that the murder prosecution might have arisen from enmities that Evans’ own law enforcement activities had stirred up in the locality. Did Williams’ accusation relate to Evans as a man. with powerful and unscrupulous enemies, or Evans as a murderer? Mr. Justice Stewart’s opinion opts for the latter interpretation, for it' concludes that Williams’ remark was “against his penal interest” and hence to be believed. But at this great distance from events, no one’ can be certain. The point is that absent cross-examination of Williams himself, the jury was left with only the unelucidated, apparently damning, and patently damaging accusation as told by Shaw.
Thus we have a case with all the unanswered questions that the confrontation of witnesses through cross-examination is meant to aid in answering: What did the declarant say, and what did he mean, and was it the truth? If Williams had testified and been cross-examined, Evans’ counsel could have fully explored these and other matters. The jury then could have evaluated the statement in the light of Williams’ testimony and demeanor. As it was, however, the State was able to use Shaw to present the damaging evidence and thus to avoid confronting Evans with the person who allegedly gave witness against him. I had thought that this was precisely what the Confrontation Clause as applied to the States in Pointer and our other cases prevented.
Although Mr. Justice Stewart’s opinion for reversal concludes that there was no violation of Evans’ right of *105confrontation, it does so in the complete absence of authority or reasoning to explain that result. For example,-such facts as that Williams’ alleged statement was not made during official interrogation, was not in transcript form, and was not introduced in a joint trial — though they differentiate some of the cases— are surely irrelevant. Other cases have presented each ■ of these factors,6 and .no reason is offered why the right of confrontation could be so limited.
Nor can it be enough that the statement was' admitted in evidence “under a long-established and well-recognized rule of state law.” Mr. Justice Stewart’s opinion surely does not mean that- a defendant’s constitutional right of confrontation must give way to a state evidenti-ary rule. That much is established by our decision in Barber v. Page, supra, which held unconstitutional the admission of testimony in accordance with a rule similarly well recognized and long established. However, the plurality for reversal neither succeeds in distinguishing that case nor considers generally' that there are inevitably conflicts between Pointer and state evidentiary rules. Rather, it attempts to buttress its conclusion merely by announcing a r'eluctance to equate. evidentiary hearsay rules .and the Confrontation Clause.7
*106The Court of Appeals, however, was not of the view that the Confrontation Clause implies unrelenting hostility to whatever evidence may be classified as hearsay. Nor did that court hold that States must conform their evidentiary rules to the hearsay exceptions applicable in federal conspiracy trials. While it did note that this case does not in reality even involve the traditional hearsay rule and its so-called coconspirators exception,8 that was not the basis for its decision. Rather, the Court of Appeals found in the admission of an incriminatory and inculpating statement attributed to an alleged accomplice who was not made available for cross-examination what it termed an obvious abridgment of Evans’ right of confrontation. Since the State presented no satisfactory justification for the denial of confrontation, cf. Pointer v. Texas, 380 U. S., at 407, the Court of Appeals *107held that under Douglas v. Alabama and this Court’s other cases Evans was denied his constitutional rights.
Surely the Constitution requires at least that much when the State denies a defendant the right to confront and cross-examine the witnesses against him in a criminal trial. In any case, that Shaw’s testimony was admitted in accordance with an established rule of state law cannot aid my Brethren in reaching their conclusion. Carried to its logical end, justification of a denial of the right of confrontation on that basis would provide for the wholesale avoidance of this Court’s decisions in Douglas and Bruton,9 decisions which Mr. Justice Stewart’s opinion itself reaffirms. Indeed, if that opinion meant what it says, it would come very close to establishing in reverse the very equation it seeks to avoid — an equation that would give any exception to a state hearsay rule a “permanent niche in the Constitution” in the form of an exception to the Confrontation Clause as well.
Finally, the plurality for reversal apparently distinguishes the present case on the ground that it “does not involve evidence in any sense ‘crucial’ or ‘devastating.’ ” *108Despite the characterization of . Shaw’s testimony as “of peripheral significance at most,” however, the possibility of its prejudice to Evans was very real. The outcome of Evans’ trial rested, in essence, on whether the jury would believe the testimony of Truett with regard to Evans’ role in the murder. Truett spoke as an admitted accomplice who had been immunized from prosecution. Relying on Georgia law, not federal constitutional law, the trial judge instructed the jury that “you cannot lawfully convict upon the testimony of an accomplice alone. . . . [T]he testimony of an accomplice must be corroborated .... [T]he corroboration . . . must be such as to connect the defendant with the criminal act.” The State presented the testimony of a number of other witnesses, in addition , to that of the alleged accomplice that tended to corroborate Evans’ guilt. But Shaw’s account of what Williams supposedly said to him was undoubtedly a part of that corroborating evidence.10
*109Indeed, Mr. Justice Stewart’s opinion does not itself upset the Court of Appeals’ finding that the admission of Shaw’s testimony, if erroneous, could not be considered harmless. Beyond and apart from the question of harmless error, Mr. Justice Stewart undertakes an inquiry, the purpose of which I do not understand, into whether the evidence admitted is “crucial” or “devastating.” The view is, apparently, that to require the exclusion of evidence falling short of that high standard of prejudice would bring a moment of clamor against the Bill of Rights. I would eschew such worries and confine the inquiry to the traditional questions: Was the defendant afforded the right to confront the witnesses against him? And,, if not, was the denial of his constitutional right harmless beyond a reasonable doubt?
The fact is that Evans may well have been convicted in part by an incriminatory and implicating statement attributed to an alleged accomplice who did not testify and who consequently could not be questioned regarding the truth or meaning of that statement. The Court of Appeals correctly recognized that the Confrontation Clause prohibits such a result, whether the statement is introduced under the guise of refreshing a witness’ recollection as in Douglas v. Alabama, against a codefendant with a limiting instruction as in Bruton v. United States, or in accordance with some other evidentiary rule as here.
I am troubled by the fact that the plurality for reversal, unable when all is said to place this case beyond the principled reach of our prior decisions, shifts its ground and begins a hunt for whatever “indicia of reliability” may cling to Williams’ remark, as told by Shaw. Whether Williams made a “spontaneous” statement “against his penal interest” is the very question that should have been tested by cross-examination of Williams *110himself. If “indicia of reliability” are so easy to come by, and prove so much, then it is only reasonable to ask whether the Confrontation Clause has any independent vitality at all in protecting a criminal defendant against the use of extrajudicial statements not subject to cross-examination and not exposed to a jury assessment of the declarant’s demeanor at trial.11 I believe the Confrontation Clause has been sunk if any out-of-court statement bearing an indicium of a probative likelihood can come in, no matter how damaging the statement may be or how great the need for the truth-discovering test of cross-examination. Cf. California v. Green, 399 U. S. 149, 161-162 (1970). Our decisions from Pointer and Douglas to Bruton and Roberts require more than this meager inquiry. Nor is the lame “indicia” approach necessary to avoid a rampaging Confrontation Clause that tramples all flexibility and innovation in a state’s law of evidence. That specter is only a specter.12 To decide this case I need, not go beyond hitherto settled Sixth and Fourteenth Amendment law to consider generally what effect, if any, the Confrontation Clause has on the common-law hearsay rule and its exceptions, since no issue of such global dimension is presented. Cf. Bruton v. United States, 391 U. S., at 128 n. 3. The incriminatory extrajudicial statement of an alleged accomplice is so inherently prejudicial that it cannot be introduced unless there is an opportunity to cross-examine the declarant, whether or not his state*111ment falls within a genuine exception, to the hearsay rule.
In my view, Evans is entitled to a trial in which he is fully accorded his constitutional guarantee of the right to confront and cross-examine all the witnesses against him. I would affirm.the judgment of the Court of Appeals and let this case go back to the Georgia courts to be tried without the use of this out-of-court statement attributed by Shaw to Williams.
Shaw had been a witness at Williams’ trial; his testimony was fully anticipated and was objected to. both before and after its admission.
This same question — which presents a fundamental conflict between a defendant’s Sixth Amendment rights and a witness’ Fifth Amendment privilege — might have been present here had the State *102called Williams to testify. Under a view that would make availability of a declarant the only concern of confrontation, see California v. Green, 399 U. S. 149, 172-189 (1970) (Harlan, J., concurring), the State’s right or duty to. compel a codefendant’s testimony, by timing of trials and use of testimonial immunity, wou11 seemingly have to be decided. See Comment, Exercise of the Privilege Against Self-Incrimination by Witnesses and Codefendants: The Effect Upon the Accused, 33 U. Chi. L. Rev. 151, 165 (1965).
Cf. Brookhart v. Janis, 384 U. S. 1, 4 (1966).
My Brother Stewart comments that Evans might have brought Williams to the courthouse by subpoena. Defense counsel did not .do so, believing that ’ Williams would stand on his right not to incriminate himself. Tr. of Oral Arg. 55. Be that as it may, it remains that the duty to confront- a criminal defendant with the witnesses against him falls upon the State, and here the State was allowed to introduce damaging evidence without running the risks of trial confrontation. Cf. n. 2, supra.
After considering Shaw’s testimony and other evidence submitted at the trial, the Court of Appeals concluded that Shaw’s account of his conversation with Williams was notable for “its basic incredibility.” 400 F. 2d 826, 828 n. 4.
For example, Pointer involved only the second, and that one was not present in either Bruton or Roberts.
Constitutionalization of “all common-law hearsay rules and their exceptions,” California v. Green, 399 U. S., at 174 (concurring opinion), would seem to be a prospect more frightening than real. Much of the complexity afflicting hearsay rules cpmes from the definition. of hearsay as an out-of-court statement presented for the truth of the matter stated — a definition nowhere adopted by this Court for confrontation purposes. Rather, the decisions, while looking to availability of a declarant, Barber v. Page, supra, recognize that “cross-examination is included in the right of an accused in a criminal case- to confront the witnesses against him,” Pointer v. Texas, 380 U. S., at 404, and that, admission in the absence of cross-*106examination of certain types of suspect and highly damaging statements is one of the "threats to a fair trial” against which “the Confrontation Clause was directed,” Bruton v. United States, 391 U. S., at 136.
Evans was not charged with conspiracy nor could he have been under Georgia law. The “conspiracy” element came in as part of the State’s evidentiary law, part of which goes far beyond the traditional hearsay exception even as it exists with regard to the “concealment phase” in some jurisdictions. Indeed, Williams’ alleged statement itself negates the notion that Evans had authorized Williams to speak or had assumed the. risk in order to achieve an unlawful aim through concert of effort. It is difficult to conceive how Williams could be part of a conspiracy to conceal the crime when all the alleged participants were in custody and he himself had already been arraigned. As this Court stated in Fiswick v. United States, 329 U. S. 211, 217 (1946), an “admission by one co-conspirator after he has been apprehended is not in any sense a furtherance of the criminal enterprise. It is rather a frustration of it.” One lower court in Georgia has adopted essentially this reasoning in reversing a conviction where testimony similar to that objected to in this case was admitted. See Green v. State, 115 Ga. App. 685, 155 S. E. 2d 655 (1967). But see n. 9, infra.
The Georgia rule involved here, which apparently makes admissible all pre-trial statements and admissions of an alleged accomplice or coconspirator, inevitably conflicts with this Court’s decisions regarding the Confrontation Clause. See Darden v. State, 172 Ga. 590, 158 S. E. 414 (1931), and Mitchell v. State, 86 Ga. App. 292, 71 S. E. 2d 756 (1952), where confessions of codefendants not on trial were held admissible. Indeed, the Georgia Supreme Court seems to have resolved this conflict in favor of the state rule by erroneously concluding that this Court’s decisions are based on the federal hearsay rule concérning "a confession 'by one of the co-conspirators after he has been apprehended.” Pinion v. State, 225 Ga. 36, 37, 165 S. E. 2d 708, 709-710 (1969). See also Park v. State, 225 Ga. 618, 170 S. E. 2d 687 (1969), petition for cert. filed, November 4, 1969, No. 57, O. T. 1970 (renumbered).
The trial judge’s instructions left no doubt that the statement attributed' to Williams could provide the necessary corroboration. See Trial Record 412-413. Indeed, the prejudicial impact of Shaw’s testimony is graphically revealed simply by juxtaposing two quotations. First, there is characterization in Mr. Justice Stewart’s opinion of Shaw’s testimony, a characterization that I find fair albeit studiedly mild: “[T]he jury was being invited to infer that Williams had implicitly identified Evans as the 'perpetrator of the murder. . . .” (Emphasis added.) Second, there is the trial judge’s charge on corroboration of accomplice testimony: “Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of an accomplice to support a verdict.” (Emphasis added.) In the light of the charge and on consideration of the whole record of Evans’ trial, it is impossible for me to believe “beyond a reasonable doubt” that the error complained- of did not contribute to the verdict obtained. Chapman v. California, 386 U. S. 18, 24 (1967); Harrington v. California, 395 U. S. 250, 251 (1969).
Mr. Justice Harlan answers this question with directness by adopting, to decide this case, his view of due process which apparently, makes no distinction between civil and criminal trials, and. which would prohibit only irrational or unreasonable evidentiary rulings. Needless to say, I cannot accept the view that Evans’ constitutional rights should be measured by a standard concededly having nothing to do. with the Confrontation Clause.
See n. 7, supra.