New 5-to-4 Majority

To critics who disliked the liberalism of the Warren Supreme Court, the biggest irritant was often the narrow margin of a 5-to-4 vote that tipped the balance in criminal cases toward the rights of the defendant. Last week, with two Nixon appointees now seated, the Burger court leaned the other way in its first criminal decision to be decided by a single vote.

The case came from Georgia and involved the fate of the hearsay rule in state trials. In general, that rule excludes statements made out of court. But the rule has many exceptions and qualifications. Georgia law, for example, sanctions hearsay evidence obtained from a conspirator against his co-conspirators in most circumstances. Many lawyers argue that this violates the defendants' Sixth Amendment right to confront the witnesses against them.

Harmless Error. The Warren court imposed that "fundamental" right on the states in 1965. But last week, in the case of Alex Evans, the Burger court limited the right somewhat. Evans was charged as one of the murderers of three policemen who were found handcuffed together with multiple gunshot wounds in the backs of their heads. At Evans' trial, a Georgia prisoner testified that he had heard one of the murder defendants say: "If it hadn't been for that dirty son of a bitch Alex Evans, we wouldn't be in this now." The trial judge admitted this hearsay evidence, even though Evans had no chance to cross-examine the man who was supposed to have made the remark.

The court upheld the trial judge's ruling. The nature of the statement, wrote Justice Potter Stewart, was such that it carried indications of "reliability" and the possibility of its being shaken on cross-examination was "wholly unreal." Moreover, Stewart said that the testimony "was of peripheral significance at most," since 20 witnesses testified and were available for cross-examination--including another co-conspirator who described in detail the crime and Evans' part in it. Three justices agreed with Stewart; two of them, Justice Harry Blackmun and Chief Justice Warren Burger, went on to argue that even if the judge made an error by admitting the evidence, it was a harmless error.

Crucial Fifth. Justice John Harlan did not agree that the evidence was "peripheral," but he did concur in upholding the conviction. He argued that exceptions to the hearsay rule should not be weighed against the Sixth Amendment confrontation right at all. Instead, he gave priority to the due process clauses of the Fifth and 14th amendments, which, he says, ask whether or not the contested evidence compromised a fair trial. In Evans, he concluded that it had not.

Such logic showed the independence of the scholarly Harlan. Armed with a penetrating intellect, he has developed a craftsmanlike and rigorous judicial philosophy that often leads him to his conclusion by a route that differs from that of the other justices. In many cases, his crucial swing vote may well determine how far from the Warren court's activism the Burger court will move.

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