opinion: BERGER v. CALIFORNIA.
  No. 221,
  Misc.
  Decided January 13, 1969.
  Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Marvin A. Bauer, Deputy Attorney General, for respondent.
  Per Curiam.
  Petitioner was convicted of robbery and kidnaping for the purpose of robbery. The victim, one Carl Arthur Dunston, testified against petitioner at a preliminary hearing; there was evidence that at the time of the trial Dunston was in Colorado. A state investigator tried to contact Dunston on the telephone; he got through to some of Dunston’s relatives and to his employer, but not to Dunston himself. Although two telegrams were received, allegedly from Dunston, no subpoena was served. At trial, the transcript of Dunston’s preliminary hearing testimony was introduced into evidence. On appeal, the Court of Appeal for the Second Appellate District of California held that this procedure did not deny petitioner his Sixth Amendment right to be confronted with the witnesses against him since Dunston was absent from the State of his own free will and since petitioner’s counsel had had an adequate opportunity to cross-examine Dunston at the preliminary hearing. 258 Cal. App. 2d 622, 66 Cal. Rptr. 213 (1968). The California Supreme Court denied petitioner a hearing on April 4, 1968. Nineteen days later we held in the case of Barber v. Page, 390 U. S. 719, that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness’ presence. The sole question in this case is whether the holding of Barber v. Page should be given retroactive application. We think that it should.
  Clearly, petitioner’s inability to cross-examine Dunston at trial may have had a significant effect on the “integrity of the fact-finding process.” Linkletter v. Walker, 381 U. S. 618, 639 (1965); cf. Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, ante, p. 2 (1968). As we pointed out in Barber v. Page, one of the important objects of the right of confrontation was to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses. 390 U. S., at 721. And California’s claim of a significant countervailing interest based upon its reliance on previous standards, see Stovall v. Denno, 388 U. S. 293, 297 (1967), is most unpersuasive. Barber v. Page was clearly foreshadowed, if not preordained, by this Court’s decision in Pointer v. Texas, 380 U. S. 400 (1965), which was handed down more than a year before petitioner’s trial. Accordingly, we can see no reason why Barber v. Page should not be given fully retroactive application.
  The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeal is vacated and the case is remanded for reconsideration in light of this Court’s decision in Barber v. Page, 390 U. S. 719 (1968).
  It is so ordered.
choices: involuntary confession habeas corpus plea bargaining: the constitutionality of and/or the circumstances of its exercise retroactivity (of newly announced or newly enacted constitutional or statutory rights) search and seizure (other than as pertains to vehicles or Crime Control Act) search and seizure, vehicles search and seizure, Crime Control Act contempt of court or congress self-incrimination (other than as pertains to Miranda or immunity from prosecution) Miranda warnings self-incrimination, immunity from prosecution right to counsel (cf. indigents appointment of counsel or inadequate representation) cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) line-up discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) double jeopardy ex post facto (state) extra-legal jury influences: miscellaneous extra-legal jury influences: prejudicial statements or evidence extra-legal jury influences: contact with jurors outside courtroom extra-legal jury influences: jury instructions (not necessarily in criminal cases) extra-legal jury influences: voir dire (not necessarily a criminal case) extra-legal jury influences: prison garb or appearance extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) extra-legal jury influences: pretrial publicity confrontation (right to confront accuser, call and cross-examine witnesses) subconstitutional fair procedure: confession of error subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) subconstitutional fair procedure: entrapment subconstitutional fair procedure: exhaustion of remedies subconstitutional fair procedure: fugitive from justice subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) subconstitutional fair procedure: stay of execution subconstitutional fair procedure: timeliness subconstitutional fair procedure: miscellaneous Federal Rules of Criminal Procedure statutory construction of criminal laws: assault statutory construction of criminal laws: bank robbery statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) statutory construction of criminal laws: escape from custody statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) statutory construction of criminal laws: financial (other than in fraud or internal revenue) statutory construction of criminal laws: firearms statutory construction of criminal laws: fraud statutory construction of criminal laws: gambling statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 statutory construction of criminal laws: immigration (cf. immigration and naturalization) statutory construction of criminal laws: internal revenue (cf. Federal Taxation) statutory construction of criminal laws: Mann Act and related statutes statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol statutory construction of criminal laws: obstruction of justice statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) statutory construction of criminal laws: Travel Act, 18 USC 1952 statutory construction of criminal laws: war crimes statutory construction of criminal laws: sentencing guidelines statutory construction of criminal laws: miscellaneous jury trial (right to, as distinct from extra-legal jury influences) speedy trial miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)