In the case of Berger v. California, the U.S. Supreme Court ruled in 1968 that a defendant's Sixth Amendment right to confront witnesses was violated when an affidavit was used as evidence without giving him the opportunity to cross-examine its author. The petitioner, Berger, had been convicted for bookmaking based on an affidavit from a police officer who did not testify at trial and thus could not be questioned by defense counsel. The court held that this practice contravened constitutional guarantees of due process and confrontation rights under the Sixth Amendment unless it is demonstrated that the witness is unavailable and there has been prior cross-examination.

In the dissenting opinion for Berger v. California, Justice Harlan argued that the majority's decision to reverse and remand was based on a misinterpretation of Sheppard v. Maxwell, 384 U.S. 333 (1966). He contended that Sheppard did not establish an absolute rule requiring reversal whenever pretrial publicity might have influenced a jury but rather emphasized the trial judge’s responsibility in managing such situations effectively. In this case, he believed there was no evidence to suggest that the trial judge failed in his duty or that any juror was actually prejudiced by media coverage of Berger's previous conviction for similar offenses. Furthermore, he pointed out inconsistencies between this ruling and other cases where convictions were upheld despite arguably more prejudicial circumstances surrounding trials.