STOVALL v. DENNO

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Argument of Leon B. Polsky

Chief Justice Earl Warren: Number 254, Theodore Stovall, Petitioner, versus Wilfred Denno, Warden.

Mr. Polsky.

Mr. Leon B. Polsky: Mr. Chief Justice, may it please the Court.

I would like briefly to go over the relevant facts as it relates to the questions before the Court in this case and the two preceding cases highlighting those factual matters in which the three cases that you have on this general lineup question to some extent differ, it may involve different rules of law.

Essentially what happened here was that a homicide took place in the early morning of -- in a rural community -- urban community, New York State.

The next day, Stovall was taken into custody, went through a lengthy interrogation throughout the rest of the day and night and the following morning was arraigned upon a complaint charging a capital offense.

After that arraignment at which he was not offered -- assigned counsel, after that arraignment, he was then taken back to the police station where probably nothing much transpired and then to the hospital room where the wife of the victim was then under treatment.

In that hospital room, the wife of the victim who became the identifying witness at the trial was with three white police officers and two white assistant district attorneys.

Stovall, a Negro, was brought in handcuffs, handcuffed to other white officers into the room.

In the room he was asked, quote, to say these words, we do not know what those words were, for voice identification.

Justice John M. Harlan: By that these words were.

Mr. Leon B. Polsky: Yes, well, he was told to say something --

Justice John M. Harlan: (Inaudible)

Mr. Leon B. Polsky: We don't know what it was.

The testimony of the witnesses at the trial were -- that he was told to say certain words and that was it.

We don't know what the --

Justice John M. Harlan: What county in New York State was it?

Mr. Leon B. Polsky: This was in Nassau County, in Hempstead I believe.

The wife of the victim identified Stovall at that time as --

Justice William J. Brennan: As what?

Mr. Leon B. Polsky: As the man who killed her husband and who stabbed her.

Approximately a year later, when the case came to trial, the district attorney in his opening stated that Mrs. Behrendt would testify that two days after the crime she identified Stovall.

And the prosecutor then said he did not know whether Mrs. Behrendt would be able to identify the petitioner in court.

Mrs. Behrendt then later did in fact identify Stovall in court and she did in fact testify that she had previously identified the petitioner in her hospital room.

Now under New York law, this evidence of prior identification if she had only been able to say, "He is the man I identified a year ago", and if there were no other evidence in the case except for corpus delicti, that would be sufficient evidence of the defendant's guilt to sustain a motion to dismiss the indictment and to sustain a motion -- to sustain the prima facie case of the people.

In other words this prior identification alone is affirmative evidence both of guilt and to corroborate the in court identification which Mrs. Behrendt made at the trial.

Now, our claim --

Justice John M. Harlan: Do you have to have that kind of corroboration (Inaudible), suppose Mrs. Behrendt had never seen this defendant, (Inaudible) in the court, identified him, is that enough?

Mr. Leon B. Polsky: Oh, yes.

Justice John M. Harlan: (Inaudible)

Mr. Leon B. Polsky: No.

No, I -- it's not that the corroboration is necessary.

It is bolstering testimony but it also is independent, it has independent evidentiary value so that if she did not, if she was not able to identify him at trial, this prior identification is evidence of the defendant's guilt.

Justice John M. Harlan: (Inaudible)

Mr. Leon B. Polsky: Well actually, in New York it is rather peculiar because until 1927, the New York Courts excluded all evidence of prior identification. By the Statute 393 (b) of the Code of Criminal Procedure evidence of prior identification by the witness who was testifying may be admitted if identity is an issue.

So without the statute, New York would adhere to the common law rule that evidence of prior identification is inadmissible.

Justice Potter Stewart: Who gave this evidence of prior identification?

Mr. Leon B. Polsky: The evidence came out in this fashion.

First, the prosecutor in his opening stated that Mrs. Behrendt would testify that she identified --

Justice Potter Stewart: Yes.

Mr. Leon B. Polsky: -- that's the man.

Justice Potter Stewart: -- but that's in evidence.

I asked who gave the evidence.

Mr. Leon B. Polsky: Then -- Mrs. Behrendt testified to it.

Justice Potter Stewart: And that's all?

Mr. Leon B. Polsky: Well, prior to the testimony of Mrs. Behrendt, several police officers who had been present in the hospital room at the time of the identification were on cross-examination interrogated by the defense counsel as to the manner of identification, as to the suggestive condition.

Was he the only Negro in the room?

Was he in handcuffs?

Had Mrs. Behrendt been told that the suspect was going to be brought in?

And in other words, the defense counsel, as we argue was laying the foundation for the impeachment of Mrs. Behrendt's promised testimony because she did in fact later testified that Stovall had been brought into her room or rather she had been moved to another room and then Stovall was brought in and she there said,"He is the man".

Justice Potter Stewart: But she was the -- if I understand your answer correctly, she was the only one who gave evidence that she had made this identification in the hospital, is that right or wrong?

Mr. Leon B. Polsky: She is the only one who directly gave it.

I think it's implicit in the cross-examination of the officers who were present that an identification had in fact been made.

Justice Potter Stewart: But they didn't say something?

You didn't asked him I say -- as I gather, this came out on cross-examination and you didn't asked him.

Did Mrs. Stovall identified this man, Stovall?

Mr. Leon B. Polsky: I think the questions were framed differently.

I cannot give you chapter and verse on this.

I think the questions essentially were framed:

Were you there when Mrs. Behrendt identified the petitioner?

And, What were the conditions existing in the room at the time that Mrs. Behrendt identified --

Justice Potter Stewart: And this -- this came before her (Voice Overlap) --

Mr. Leon B. Polsky: This came before her test --

Justice Potter Stewart: -- when she had identified this man.

Mr. Leon B. Polsky: Right, right.

Now, essentially our argument under the Sixth Amendment and under the Hamilton and White cases, I think is designed to preserve the integrity of those cases.

Essentially, we have all that was present in both of those cases, defendant arraigned upon a capital charge.

A defendant then entitled to counsel who didn't waive it and who didn't get counsel.

And that thereafter and we suggest because of the absence of counsel something happened by which the state may have gained an advantage in the ultimate prosecution of the case.

Now --

Justice John M. Harlan: Is it your --

Justice Potter Stewart: Do I understand that you're relying on two specific positions, did I hear you say?

Mr. Leon B. Polsky: Hamilton against Alabama.

Justice Potter Stewart: Right.

Mr. Leon B. Polsky: And White against Maryland.

Now --

Justice John M. Harlan: Well, suppose he knows about the legal procedure, stage in the legal procedure where the skill of the counsel (Inaudible) skillful counsel to make this (Inaudible)?

Mr. Leon B. Polsky: Well, I regard my duty as an attorney to protect every right that my client has and to prepare his case as best as I can.

This does no restrict me to the courtroom.

This does not restrict me to only raising constitutional questions.

If counsel had been assigned here and quite frankly if it -- if I had been the counsel assigned here I would have pleaded with the district attorney to hold the lineup.

Even if he would -- hadn't intended to bring Stovall to Mrs. Behrendt's room, if she was in danger of death and if she was as the majority of the Circuit held the only person who could exonerate him, I would have wanted Stovall to be brought to her room.

But I also would have asked the prosecutor to do it in a fair way, so that the man has a chance because coming back to 393 (b) of the New York statute, under New York law, what happens in that hospital room is evidence.

This is not an interview with the witness where subsequently the witness testifies and doesn't recount what he told the district attorney in the district attorney's office, this is something which is actual, real evidence which is occurring at the time.

And it is at this time that this man is going to be convicted or acquitted.

And I as his counsel believed that I am entitled to be there.

Justice Abe Fortas: Well, assume they accepted that, what is your thought as to the proper remedy for the situation, is it to exclude all identification by Mrs. Behrendt or is it to say that the evidence as to the -- just confrontation and the identification at the time of the confrontation is inadmissible?

Mr. Leon B. Polsky: Well, all we have asked for in the Circuit was that this evidence of prior identification be excluded.

We did not ask that the present identification be excluded, leaving to us the option as Judge Friendly in his panel decision and later in his en banc dissent leaving the defense counsel the option of using the prior identification for whatever impeaching effect it might have.

This is one possible solution.

The other solution -- which --

Justice Abe Fortas: Well, (Voice Overlap) --

Mr. Leon B. Polsky: -- perhaps is more realistic.

Justice Abe Fortas: That would become a dangerous thing for a defense counsel, he is, wouldn't he?

Mr. Leon B. Polsky: Well, it depends how damaging the in court identification would be.

But I think the most realistic solution and it is not easy.

Is to have a voir dire either pretrial or in the middle of the trial or whatever stage is most convenient.

Essentially the kind of voir dire or you would have on a motion to suppress where the Government has conceded that search number one was illegal but claims that search number two was legal and where defense counsel says that search number two is the fruit of the poisoned for a search.

In other words you have this problem of taint.

Does the first illegal act taint the second or is the second act sufficiently independent of the first to be allowed to stand.

I don't think that we have the right to ask for a complete attainder of a witness just because a prosecutor made a mistake.

But to the extent that the mistake hurts the defendant's case, I think we have a right to ask that his testimony be excluded.

Justice Abe Fortas: Do you mean, not really be argued about, very much though, is that right, you agree with that?

Mr. Leon B. Polsky: I don't follow Your Honor.

Justice Abe Fortas: Well, Mrs. Behrendt saw this man in a hospital room.

She subsequently saw him in court.

Now, you're suggesting that you have a voir dire to ascertain whether the identification in the court was the fruit of the identification on the hospital?

Mr. Leon B. Polsky: Yes sir.

Justice Abe Fortas: It's quite the likelihood of getting Mrs. Behrendt to agree to that as so slim that it raise the question as to whether it's worthwhile or it's just gains.

Mr. Leon B. Polsky: Well, I'm not so sure because under the Silverthorne line of cases, the Government has the burden like clear and convincing evidence to prove it.

Mrs. Behrendt saw this man for less than five seconds at the time the crime was committed.

After she was struck down, Stovall remained in the room but Mrs. Behrendt said that she did not see him.

He was brought into the room under -- I think pretty, spotlight conditions.

I think a judge would be entitled to say that the people have not proven to his satisfaction of her identification is independent.

But, I grant you it is a difficult problem, but I think we're entitled to trial.

Essentially my point here though is that the prior identification is not affirmatively admissible, that is what this case is about.

And that prior identification was used -- it was used in a capital case.

There is no way we can ever juggle the record in such a way that we can determine how damaging this was or was not.

Justice Abe Fortas: Are you basing this on the Sixth Amendment or due process?

Mr. Leon B. Polsky: This aspect is based on the Sixth.

Although quite frankly, there has to be a -- not a collision, an overlapping here because there are factors which aggravates --

Justice Abe Fortas: Well, let's test that among us, suppose the police had -- suppose Stovall had had a counsel, the police had said.

Alright.

Lawyer Polsky come along, so you went to the -- and then would you have to go along when you go along to the hospital room with Stovall be handcuffed to the officers and everything would be done there, Mrs. Behrendt went to identify Stovall as she apparently did it, does that take care of your problem?

That would take care of your Sixth Amendment right in a sense, wouldn't it?

Mr. Leon B. Polsky: Right sir.

Justice Abe Fortas: Now, does that take care of your point?

Mr. Leon B. Polsky: That takes care of the Sixth Amendment point.

Justice Abe Fortas: Does that take care of your point here?

Mr. Leon B. Polsky: No, I also go beyond that -- I mean, supplying him a counsel would have -- would take care of my problem here --

Justice Potter Stewart: I don't --

Mr. Leon B. Polsky: -- except for the extent that the lineup was not fair, I would still even if he had counsel have a point involving the fundamental fairness of showing a man alone to a victim under these particular circumstances where her testimony or rather where her identification then becomes affirmative evidence to be used at trial.

I would still have that, whether he had counsel or not.

And I realized the problems with the Fourteenth Amendment argument, it's essentially how fair is fair and how unfair is unfair.

Justice John M. Harlan: You say that the -- assuming all of the facts, the certain facts that she brought out?

Mr. Leon B. Polsky: If this identification, the pretrial identification had been so unfair, as we contend it was, to violate the Fourteenth Amendment, then I say that the evidence of prior identification should not have been permitted to go to the jury.

And while the Fourteenth Amendment -- and here is perhaps where I -- where there's this overlapping of Amendments.

In the earlier -- well, the absence of counsel is one of the factors to be taken into consideration in determining the fairness of this lineup.

And you also have the problem of reporting the lineup.

I do not know what was said by Stovall.

I doubt whether anybody else really does know at this point.

Had he had counsel there?

Perhaps we would know what those words were that he was made to say.

And it's not enough to rely upon the petitioner to tell his lawyer, A, because the petitioner very well may not remember, and B, the petitioner or defendants in most criminal cases cannot testify because of prior convictions.

Justice Hugo L. Black: You may have said heretofore, but I do not recover your evidence stating precisely how the state knew the pretrial identification in evidence.

Mr. Leon B. Polsky: The identification was used in this way, in the prosecutors opening address to the jury, he informed the jury that this woman would testify that one year previously she had identified Stovall in her hospital room.

Justice Hugo L. Black: And then that was tried -- they didn't do that?

Mr. Leon B. Polsky: And then they did do that.

Now, there has been --

Justice Hugo L. Black: They did that, you didn't do it.

They did it?

Mr. Leon B. Polsky: We did not do it except that prior to her testimony, defense counsel cross-examined those officers who were testifying as part of the case in chief.

On the question of what happened in the hospital room, they questioned one of the officers how many -- was there another Negro in the room, was the defendant in handcuffs, questions designed to lay the foundation for the impeachment of this promised testimony to be given by the wife of the victim.

Now, in the Circuit I think we had complete agreement between the majority and the dissenting judges on the question of -- that this was not an invited error by the defense counsel and that the question has been preserved for federal reviews.

Justice Hugo L. Black: In other words, you present facts as I understand your -- the issue, involved in such -- in a case where a defendant asked and subjected to identification against his will, without his lawyer, that the consequence of it is that evidence of that circumstance cannot be introduced against him.

Mr. Leon B. Polsky: Yes sir.

Justice Potter Stewart: Are you showing that here that this identification was against his will?

Mr. Leon B. Polsky: It was shown that he was taken in handcuffs and told to say these words.

I think it is shown that he was taken contrary to law earlier in the morning of the day of the identification.

He had been arraigned and had been committed pending further exam -- further arraignment proceedings by the committing magistrate.

That commitment under state law is to the custody of the sheriff who is the man --

Justice Potter Stewart: That's what I (Voice Overlap) -- I just want to --

Mr. Leon B. Polsky: -- in charge of the jail.

Justice Potter Stewart: Yes.

Mr. Leon B. Polsky: Instead of being taken to the sheriff and put in jail, he was taken from the courtroom by police officers, the ones who had been investigating the case back to police station where perhaps they just waited for a few moments and then went over to the hospital room.

So it was in violation of the state law.

Justice Potter Stewart: Yes, I think.

But --

Mr. Leon B. Polsky: There was no showing that Stovall protested.

Stovall did not testify at the trial.

Justice Potter Stewart: Right.

Chief Justice Earl Warren: Mr. Cahn.

Argument of William Cahn

Mr. William Cahn: Mr. Chief Justice, if the Court pleases.

May I first correct counsel by stating that the first evidentiary matter in reference to the prior identification was brought out by defense counsel on cross-examination of the state's witness.

This was the first time in testimony that the circumstances of the prior identification were brought to the attention of the jury.

It is true that the prosecutor in his opening mentioned the fact that Mrs. Behrendt had identified the defendant in her hospital room approximately 36 hours after the crime and that he did not know whether or not she could identify the defendant in the courtroom which in fact she did.

And may I point out to the -- this honorable body that each and every time a witness points to the defendant at defense table, and I'm certain that each and every witness knows where the defendant sits, he sits alone with his counsel each and every time she or he lifts a finger and points to the defendant at the defense counsel and says, "That is the man", that type of testimony is exactly what took place in the hospital, in Garden City, New York.

Justice Abe Fortas: But one case, a lawyer -- his lawyer is present, the other case, he's not.

And that's what this -- we're talking about, is it not?

Mr. William Cahn: Mr. Justice Fortas I don't think the presence of the attorney whether in court or out of court gives rise to a constitutional question.

Justice Abe Fortas: Well that's the problem.

I mean, if I were --

Mr. William Cahn: And certain --

Justice Abe Fortas: -- certain as you now sound, I'd be a happier man.

Mr. William Cahn: And so would I, sir.

May I say that the one classification of evidence which is unrestricted or remains the least restricted by statutes and court decision is eyewitness testimony.

It is important testimony restricted indeed by the weight a jury wishes to place upon it and the credibility a jury wishes to give to the witness.

In this particular case, the one eyewitness was the widow of the slain doctor who herself was a victim of 11 slashes of the defendant's knife, two of which were near fatal.

She was physically and mentally incapable of making any identification which obviously would be of great import to this case.

Approximately 36 hours later after arraignment, the defendant was brought to the hospital room where Mrs. Behrendt, the wife of the deceased was able to make identification.

Again, she was the only witness who could completely exonerate this defendant.

And because of this identification we are here this afternoon and may I say this that I much prefer standing before this august body explaining why we made the identification rather than having had Mrs. Behrendt die and she was hovering between life and death, having had her die and explain to this Court why we didn't have an identification made.

It is clean in the briefs of counsel that the identification itself constituted the violation of the Fifth Amendment.

I think People against Schmerber -- Schmerber against California excuse me, reiterates the concept of law that testimonial compulsion relates to oral and written testimony of the accused and that identification is not so classified.

No one can deny that identification is an important weapon of the defense, at some times is vital.

And therefore, if there were no Fifth -- if there is no Fifth Amendment problem to be considered, where then does the Sixth Amendment come into play.

What could counsel do?

All of the suggestions related by counsel in this case and the previous cases referred to suggestions of procedure.

I might have told the prosecutor to have five men in the lineup rather than three, 10 men rather than five.

I might not have had the defendant walk this way.

I might have had him walk that way.

May I suggest that these are suggestions as to police procedures but give no rise to the rights of the defendant.

No right to the counsel to suggest this and certainly gives no right under the Sixth Amendment.

There would be no legal assistance as in the Hamilton and in the White case to which counsel previously referred.

Their legal assistance for the defendant was mighty important, but in this particular case, what was being done -- investigation which certainly can survive an arraignment which certainly survives an indictment, which certainly survives even the trial itself because no -- at no time, the people precluded from making further investigation and very often it happens during the course of the trial.

Therefore there was no legal assistance which a counsel could afford defendant in no way, and therefore it does not give rise to the Sixth Amendment.

Justice Hugo L. Black: Don't you think that argument is a little strange (Voice Overlap)?

Mr. William Cahn: In what way Mr. Justice Black?

Justice Hugo L. Black: To say that a lawyer, a man in jail, in custody unable to make bonds, but he's in custody of the officers of the law, that a lawyer could do him no good if he were present when they were interrogating him?

Mr. William Cahn: Sir, there is nowhere in the record that indicates that this defendant was interrogated in any way at this identification.

Justice Hugo L. Black: Well, why do they take him out for any purpose whatever outside of this jail?

Mr. William Cahn: May I respectfully say --

Justice Hugo L. Black: Do you --

Mr. William Cahn: -- I do not --

Justice Hugo L. Black: Do you think that a lawyer could do him no good?

Mr. William Cahn: May I respectfully say that no legal assistance could be offered, yes sir.

This is my opinion of the Schmerber case because if that was true, certainly an attorney could have said in the Schmerber case I would want you to wait until this defendant's own doctor could take his blood or at least have his own doctor present.

I would want perhaps for you to take a urine analysis, in addition to blood or instead of blood, but these again are only suggestions --

Justice Hugo L. Black: The lawyer could've objected --

Mr. William Cahn: -- as to procedure.

Justice Hugo L. Black: The lawyer could've just knowing that.

Mr. William Cahn: But, insofar as the case --

Justice Hugo L. Black: Do you mean that when a man is put in jail, the officers of the law have a right which he has no chance to object to it, to take him anywhere they please, to have all investigations made in the absence of his attorney, and have him there alone.

Mr. William Cahn: Where the defendant's health or safety is not put in jeopardy, where he is not interrogated to a point or to any point, where his presence is for the purpose of purely investigation, and his health and safety and body is fully protected, I can see no purpose for legal assistance of counsel insofar as the defendant --

Justice Hugo L. Black: Why should you object --

Mr. William Cahn: -- is concerned.

Justice Hugo L. Black: -- to lawyers being there if they could do no good?

Mr. William Cahn: There is no objection to the lawyer being there Mr. Justice Black.

Justice Hugo L. Black: Did you notify his lawyer?

Mr. William Cahn: Pardon sir?

Justice Hugo L. Black: Did you notify his lawyer?

Mr. William Cahn: He had no lawyer sir.

Justice Hugo L. Black: He had no lawyer.

Mr. William Cahn: His arraignment was adjourned for the purposes of obtaining an attorney.

This was a question of emergency.

We did not know whether Mrs. Behrendt would live or die, so he was immediately taken without the aid of counsel because we saw no constitutional right.

Justice Hugo L. Black: For the state had the power to do it.

Mr. William Cahn: Pardon sir?

Justice Hugo L. Black: The state had the power to do it because he was under arrest.

Suppose he had been out on bond --

Mr. William Cahn: Yes sir.

Justice Hugo L. Black: -- could you have seized him on the street and taken him down for that purpose?

Mr. William Cahn: No, I think he would have had to -- have been rearrested and as long as he was out on bond, I don't think we could have done that.

Justice Hugo L. Black: The only reason for being able to do it was that he was under arrest --

Mr. William Cahn: He was in custody--

Justice Hugo L. Black: -- awaiting a charge of murder.

Mr. William Cahn: No more than -- if he -- if Mrs. Behrendt were able to come to the District Court where he was arraigned and make identification, I think this would have been proper or if he were out on the street and Mrs. Behrendt were physically able to do so, she could have made identification --

Justice Hugo L. Black: (Inaudible)

Mr. William Cahn: -- out on the street, if this however --

Justice Hugo L. Black: And he was -- he would, he wouldn't have helped with that.

Mr. William Cahn: Pardon sir?

Justice Hugo L. Black: He could not have been compelled to help if he just -- if she just happens to see him on the streets.

Mr. William Cahn: He could not have been compelled to help?

Justice Hugo L. Black: To help you do this.

He helped you by going with you.

Mr. William Cahn: That's correct sir.

That is correct.

Justice Hugo L. Black: He helped you make out a case against himself, did he not?

Mr. William Cahn: He helped us make a case against himself?

I do not believe that this comes under the constitutional concept of self-incrimination by his mere presence there.

He -- by going with us --

Justice Hugo L. Black: Although it gives the state --

Mr. William Cahn: -- of course it was a --

Justice Hugo L. Black: Although it gave the state much assistance what might have been vital to his conviction.

Mr. William Cahn: Yes and it also provided him an opportunity to be completely exonerated.

And if we have to wait until Mrs. Behrendt was physically able to do so, then she would have been brought to the jail or brought to a court at his further arraignment and the same thing would have been accomplished.

Now, insofar as the results of this prior identification is concerned -- what took place, the --

Justice Hugo L. Black: What point -- did they make him say anything?

Mr. William Cahn: They made him say certain words.

They asked him to say certain words.

Argument of Justic Douglas

Mr. Justic Douglas: Could he have been asked that at the trial to compel -- to speak at a trial?

Rebuttal of William Cahn

Mr. William Cahn: Yes sir.

I believe he could have.

I believe the Schmerber case stands for that and I believe a line of New York State cases stands for that.

We've had incidents where they were asked to put on certain clothing, where they're asked to even shave or to -- if he had a scar on his chest and that was the subject of an identity by a witness, I think he could have been asked to remove his shirt in court with whether the counsel objected or not and -- so that the, let's say a scar or a tattoo could have been identified by the witness.

If he had -- if it was noticed that he had 11 toes, I think he could have been asked to take off his shoe in court whether counsel objected or not.

I think the line of cases so hold and I think that concept of law is reiterated in the Schmerber case.

Justice Abe Fortas: I thought Schmerber made a distinction between the man's blood and the man's words.

Mr. William Cahn: As far as the words are concerned at no time where any of these words brought to the attention of the jury, it was clear and I think the record is clear and the counsel mentioned that these words were stated purely for the identification of the voice and in no way was the defendant interrogated.

Justice Abe Fortas: I know, but there's a difference in -- they can be words and words in -- with respect to identification where it stated that would suggest an identification in words stated that Ambrek could be neutral.

Mr. William Cahn: May I suggest Mr. Justice Fortas that it's the words he were forced to say were, I committed the crime and this method was brought before the attention of the jury, to what benefit or to what detriment would it have been to the defendant and those were not the words (Voice Overlap) --

Justice Abe Fortas: But I think, I think -- I think if a man were brought before Mrs. Behrendt handcuffed and he said to Mrs. Behrendt, I committed the crime that'd be a sort of a natural tendency on her part to say, "Well, I guess you did".

Mr. William Cahn: I can't argue with the -- Justice Fortas, on that.

There -- that there might have been a natural --

Justice William J. Brennan: Well, Mr. Cahn --

Mr. William Cahn: -- tendency to so.

Yes sir.

Justice William J. Brennan: As to why you accept the suggestion my Brother Fortas as the Schmerber distinction is between taking blood and words.

I thought it was between taking blood and testimonial communication --

Mr. William Cahn: Well --

Justice William J. Brennan: And difference is --

Mr. William Cahn: As I -- yes, I agree with you Mr. Justice Brennan.

The --

Justice William J. Brennan: I'm glad you do.

Mr. William Cahn: The testimonial compulsion I believe that is set out in the Schmerber case relates to --

Justice William J. Brennan: That's where the deal come -- communication --

Mr. William Cahn: That's correct.

Justice William J. Brennan: -- which in some instance, I think Schmerber suggest it might not be in the form of words --

Mr. William Cahn: There are no questions --

Justice William J. Brennan: -- or in the form of a nod of the head or something else, isn't it?

Mr. William Cahn: There is no question that if this defendant were interrogated rather than merely to ask to say words, there might have been a very definite violation.

But this was not the case, there is no suggestion anywhere in the record that this defendant was interrogated or asked about the crime and the record is replete with testimony that there was no confession here, none whatsoever.

Insofar as due process is concerned, the method of identification in no way shocks the conscience of mankind or falls below the standards of the Fourteenth Amendment because as I pointed out to this illustrious body before, each and every time whether an attorney is present or not a witness who knows where the defendant sits who perhaps sometimes in court is shackled and who sees him go and come at recesses perhaps handcuffed to the marshals of the Court, sits down and says, Yes, there is the man this same process is done each and every time.

And this too, in no way violates the conscience of mankind or falls below the standards of due process as set out by the Fourteenth Amendment and this testimony is indeed extremely important.

Viewing the defendant alone very, very often happens as a matter of fact, very often becomes the subject of probable cause of arrest, if a person is robbed and 10 minutes later, sees a police officer, and complainants of the robbery, walks down the street and says, There is the man who is walking alone, this is probable cause for arrest and --

Justice John M. Harlan: Maybe this is about a collateral, I mean if you haven't had this lady's testimony, would you have a case against this man?

Mr. William Cahn: No question in my mind, Your Honor, there would have been a case but may I repeat that the first testimonial inference of this prior identification came as a result of cross-examination by defense counsel of the people's witness.

The only time it was mentioned first was in the opening of the assistant district attorney.

Further, the prior identification became the basis of attack for Mrs. Behrendt's identification in court.

As a matter of fact the foundation was laid by the defendant himself and he almost rested his case on indicating that her identification in court was as the result of this prior identification over a year ago in the hospital room.

Justice Hugo L. Black: May I ask you what in your judgment is the duty of a sheriff who has a prisoner in custody in jail under his care?

Mr. William Cahn: To properly care for the safety and health of the defendant.

I don't think he has -- that to see that he's --

Justice Hugo L. Black: Do you --

Mr. William Cahn: -- properly fit --

Justice Hugo L. Black: Do you think the law gives him any right to utilize that time when a man is there, merely charged with a crime, take him out of jail, utilized him for his purposes and kind of build up a case against him?

Mr. William Cahn: I see no constitutional --

Justice Hugo L. Black: Do you think --

Mr. William Cahn: -- question --

Justice Hugo L. Black: Do you think that's a good sound policy for the sheriff?

Mr. William Cahn: Well it may if -- may I explain something Mr. Justice Black that in Nassau County where the judge places the defendant in custody of the sheriff, it is the police who take the defendant to the jail and place him into the custody of a sheriff.

There was no -- he didn't go to the jail first.

There was a stop off at the hospital.

Justice Hugo L. Black: Put into custody of the sheriff as a trustee?

Mr. William Cahn: That's correct.

Justice Hugo L. Black: To keep him in prison under guard, but to do nothing to him, isn't he?

Mr. William Cahn: To do nothing to him --

Justice Hugo L. Black: That would harm him.

Mr. William Cahn: That would harm him.

That is correct sir.

And in --

Justice Hugo L. Black: That's a very good policy, isn't it?

Mr. William Cahn: I certainly agree with Mr. Justice Black, yes sir.

It is a very good policy and I state that, in no way that this identification harmed the defendant because it just delayed his identification and in fact --

Justice Hugo L. Black: Well, it harmed him because they took him out and did that.

Mr. William Cahn: Yes, it did in this particular instance but may I point out to Mr. Justice Black that it could also had resulted in his complete exoneration.

Justice Hugo L. Black: Well there's nothing -- it's not the duty of the sheriff to take him out of jail even to -- his complete examination.

Mr. William Cahn: Well, it can be done sir.

I see no restriction against it and may I point this out --

Justice Hugo L. Black: A prisoner -- a prisoner has -- is absolute at the mercy of his jailer.

Mr. William Cahn: Oh, where?

In a civilized state Mr. Justice Black and there are certain limitations which are placed upon sheriffs, law enforcement officers or custodians of prisoners.

There are certain limitations which must have necessity, be adhered to and I think --

Justice Hugo L. Black: Do you know of any law in any state in the union I don't know of any law in interstate and union which exist now or ever has existed that in -- actually empowers the sheriff the duty to take a prisoner, take him out in order to help build up a case against him.

Mr. William Cahn: No sir, not in those very terms.

But in this case may I point out that it would have just delayed it, it would have meant Mrs. Behrendt getting physically well enough to come over to the jail and view the body.

The viewing itself is the essence and the pit of this particular question and I think no harm whatsoever was done to the prisoner in this particular case.

It was just a stop off before going to jail.

Thank you.

Chief Justice Earl Warren: Mr. Uviller.

Argument of H. Richard Uviller

Mr. H. Richard Uviller: Chief Justice may it please the Court.

I have heard my very good friend Mr. Polsky and also Mr. Fulcon(PH) say that they would have liked to have been present as counsel at the time of these identifications.

And indeed they have suggested what they might have thought have to do, how they might have benefited their clients had they been present.

I would like to suggest to the Court that the Sixth Amendment right to counsel is not obedient to the desires of counsel to be present or from the contingent benefit that a defendant might have received had counsel been present.

There are many incidents in the preparation of a case by the prosecution either before or after indictment at which had the counsel for the defendant been present, he might have benefited his client's interest, where a prosecutor for example interrogate a witness in the absence of the defendant.

Clearly counsel if he were present might cross-examine that witness or interrogate him as well and perhaps have that witness change his testimony to benefit the interest of the defendant.

Justice William J. Brennan: Do you mean interrogate him in his office?

Mr. H. Richard Uviller: In his office, in the police station --

Justice Potter Stewart: Yes.

Mr. H. Richard Uviller: -- in his own home.

During these preparatory phases of the prosecution's obligation, no one has suggested and I don't think the counsel here today would suggest that the defense counsel has the right to be present.

Does it change because the defendant's body is there because the conversation between the prosecutor takes place -- of the prosecutor and the witness takes place in the physical presence of the defendant.

We submit that it does not and there is a very vital difference between inspection of the body, movement of the muscles, use of the vocal chords by a defendant and the interrogation of that defendant.

And I think that is the principle import of the Schmerber decision.

It wasn't -- divide a Court, but I think that the majority opinion was quite explicit on this particular phase of the use of the defendant against himself or the use of some facet of his physical characteristics.

The language is that it was the Schmerber case itself, that voice timbre or the use of words for identification purposes is not a testimonial communication such as that covered by the Fifth Amendment.

I think what we have here is a sixth Amendment question purely.

And the Sixth Amendment question depends upon the limits which are given to the right of an accused to have his counsel -- the assistance of his counsel before his defense.

I submit to the Court and it is our position that there are limits to that right.

He comes into existence when a man becomes an accused and clearly Stovall wasn't accused at the time of the confrontation in the hospital room.

He did have the right to whatever protection the Sixth Amendment offered him as of that moment.

But it is nonetheless incumbent upon the Court I believe to define the extent of that protection.

And if we start from the premise that there are limits, there are things that may occur where the defendant does not have the right to the assistance of his counsel, even though it may be to his detriment not to have counsel, even though the counsel may have suggestions to that, then I think it becomes very close to the situation that we have here.

The court below has held that there was no legal service for counsel to perform.

Counsel could have made suggestions, counsel could have told his defendant not to say anything, not to allow his voice to be used for identification.

But a very important teaching of Schmerber, I submit is that counsel cannot create a right by asserting and a counsel does not have the right if the client does not have the right to remain silent and to withhold his voice as he might cover his face with his hands.

Then the mere fact that counsel might advise him to do so does not create that right.

Justice Byron R. White: Mr. Uviller what -- with or without counsel at a lineup if the defendant says I -- just refuses to speak, somebody wants to get a voice identification and he says that he -- doesn't say a word, he just shakes his head.

No, he just won't do it.

You say he has no right to remain silent but did anyone get him to speak?

Mr. H. Richard Uviller: Yes, that is the unanswered question I believe Justice White in Schmerber.

The same thing is true there.

What if the defendant just physically refuses to give the blood?

He has no right to refuse to give it but how much force can be used to extract it from him.And I think the implication of Schmerber is clear and that is that if force -- if brutality is used in any way to force the defendant to comply even though he has no right to refuse, one has the Fourteenth Amendment question --

Justice Byron R. White: It's the due process clauses --

Mr. H. Richard Uviller: A due process question, a Rochin situation.

Justice Byron R. White: But doesn't that tend to answer the question that you first put, and is it -- is there a role for counsel?

Well, was a role for a counsel, counsel might've said -- to tell the handcuffed man in the hospital room not to speak and the -- what you're not telling us as I understand it that the police under our system of law can either get a court order compelling him to speak or can they beat it out of him.

I mean the -- that is so, it would seem to me that there isn't from (Inaudible) for a counsel.

Mr. H. Richard Uviller: That is really the nut of my point.

My point is that counsel the services of counsel, the assistance of counsel guaranteed by the constitution does not embrace telling the defendant to do something in his interests which he does not have a right, a constitutional -

Justice Abe Fortas: (Inaudible)

Mr. H. Richard Uviller: -- or statutory rights to do.

Justice Abe Fortas: But maybe with an -- proximate counsel to tell the defendant not to do something, that the police tell him to do, in which the defendant cannot be compelled to do.

That's the issue, (Voice Overlap).

Mr. H. Richard Uviller: But he has no right to refuse to do.

I might -- my -- I would --

Justice Abe Fortas: Well, I did not understand that from your previous answer.

Mr. H. Richard Uviller: Well, I --

Justice Abe Fortas: Why is the defendant compelled to give the police a voice test?

What can the police do if he doesn't -- they say now, Say something and the commoner remains mute, now what can the police do?

Mr. H. Richard Uviller: I think we have to be -- we have to -- the only way that this unanswerable question can possibly (Voice Overlap) --

Justice Abe Fortas: I'm not sure it's unanswerable.

Mr. H. Richard Uviller: Well, it was certainly unanswered in -- and was left to one side in Schmerber for all of these reasons which are different, very difficult question.

I think we have to take two contentions.

Either the defendant does comply and answers or gives his blood or let his voice be used, in which case the question is, has any violation of his constitutional and statutory rights been accomplished in that instance.

The answer here is no.

Or he voluntarily refuses in which case the question is quite different, that is what may be constitutionally done to unrefuse him, to loosen up the -- this particular kind of evidence.

And I think there are two separate questions.

And I don't think that the counsel --

Justice Abe Fortas: I see.

Mr. H. Richard Uviller: -- has the right to transform the question from one type into the other.

Justice Abe Fortas: I see the line that you are going, it is a very narrow line and perhaps there is a function for a counsel here, which is to tell the witness not to give the police a voice test or go beyond that and that the police say -- turned to Stovall here and had said to him, Stovall, to say Mrs. Behrendt or whatever the name is, I drop (Inaudible) on you, do you refuse to say it?

Mr. H. Richard Uviller: Well my answer to that Justice Fortas would be this.

His mother could have told him that too.

I did not view that that sort of advice as the kind of assistance of counsel for his defense which the Sixth Amendment commands.

It is not simply that the defendant could derive a benefit whether the presence of counsel might help him or the counsel might think of something could tell him what to do that gives him the right to have counsel present.

If that were the case, then he would have the right to have counsel after indictment in all phases of the prosecution's investigation in preparation for trial, when the interview -- when they took the fingernail scraping, from under Stovall's fingers in this case, counsel might have been there to say, "You missed the thumb", and that might have helped him tremendously.

Justice John M. Harlan: Well, what would be your view -- as I get your argument in -- this is the Sixth Amendment argument, your premises are?

Mr. H. Richard Uviller: I think it's the Sixth Amendment case Justice Harlan.

Justice John M. Harlan: Well, this is a due process, a Sixth Amendment?

Mr. H. Richard Uviller: Right sir, right.

Justice John M. Harlan: Would the evidence that would've made some right of counsel in a generic sense?

Mr. H. Richard Uviller: Yes, sir.

Justice John M. Harlan: Would you say there's no right of counsel in connection with the lineup together?

Mr. H. Richard Uviller: That's correct sir.

I think --

Justice John M. Harlan: To show them (Inaudible) -- if this man had had a lawyer and his lawyer heard about the lineup or heard about the review of his (Inaudible) in the hospital and be allowed to be there in five minutes, the police could have excluded him?

Mr. H. Richard Uviller: Yes sir.

They could have excluded him.

Justice John M. Harlan: That's the way I see it (Voice Overlap) --

Mr. H. Richard Uviller: This -- the con -- this Court has held that the constitutional right to counsel pertains only in courtroom situations except in three cases, Escobedo, which was a pre-indictment, pre-arraignment case which I think has been somewhat modified by Miranda and the Spano-Massiah line.

Now the Spano-Massiah line is clearly testimonial.

Both cases involved the interrogation of the defendant and the use against him of evidence obtained by him, from him rather, by some sort of official trickery.

And we are suggesting that the Massiah doctrine which accords the right to counsel outside the courtroom should not be applicable to any situation other than one where evidence is sort of a testimonial nature from the person or the defendant himself.

Chief Justice Earl Warren: Mr. Uviller, do we know in this case what the words were that he was required to answer.

Mr. H. Richard Uviller: No sir.

Chief Justice Earl Warren: How do we know then that it's only for testimonial -- I mean for the purpose of identification?

Mr. H. Richard Uviller: Well, we do know that from the record (Voice Overlap) --

Chief Justice Earl Warren: No, how will we know that?

Mr. H. Richard Uviller: The testimony was that he was asked to speak certain words for identification.

Chief Justice Earl Warren: Yes, who said that?

Mr. H. Richard Uviller: I believe it was one of the detectives on cross-examination --

Chief Justice Earl Warren: Yes, but don't you think if counsel have been permitted to be there, that there might be a conflict in that testimony that might have helped the defendant?

Mr. H. Richard Uviller: No sir, I don't think so, because these words were not used against the defendant.

The very fact that we don't know the words indicates to me that they're not testimonial evidence.

They're not evidence of a testimonial communication.

Chief Justice Earl Warren: You mean because --

Mr. H. Richard Uviller: If the record doesn't --

Chief Justice Earl Warren: You mean, because the police didn't say it was for other purposes.

Mr. H. Richard Uviller: Yes, because it wasn't used at the trial against him.

Chief Justice Earl Warren: Didn't we have a question in one of the other cases to whether the questions they asked him about the automobile, if he owned an automobile, what he's number was, and so forth, whether that bore upon it?

Mr. H. Richard Uviller: Yes.

Chief Justice Earl Warren: Now the police said there that's just for the purpose of identification (Voice Overlap) --

Mr. H. Richard Uviller: Right.

Chief Justice Earl Warren: So --

Mr. H. Richard Uviller: Oh, I would answer that the same way Mr. Chief Justice.

I think in the Gilbert case, the state case which is before the Court today, those answers made by the defendant were not used against him either.

Chief Justice Earl Warren: How do we know they weren't used against him?

Mr. H. Richard Uviller: Because they weren't proved at the trial.

Chief Justice Earl Warren: Well, they might have been -- they might have used it as a fruit of the poison tree.

Mr. H. Richard Uviller: Well, if there had been -- there might have to be an inquiry into that.

That is to say if the police learned anything on basis of which they obtained other evidence, then there might be a suppression question on the Wong Sun, as if -- it seems to me that's a Wong Sun question, but I don't think that the record in this case, the Stovall case, or from what I know of the Gilbert case presents a Wong Sun question.

There was never any piece of evidence that was attacked as the fruit of anything that has been learned in this post indictment on counsel interrogation.

Chief Justice Earl Warren: The only way it could have been done was by compelling a witness to take -- the defendant to take the stand and say so, wouldn't it, in his trial?

Mr. H. Richard Uviller: Well, in our jurisdiction it's done in the absence of the jury that before or during the trial and a motion to suppress evidence which is alleged to be the fruits of an unconstitutional interrogation.

I would say that the absence from the records in this case Mr. Chief Justice of any allegation of a Wong Sun nature precludes the Court from considering the possibility that some evidence might have been the fruit of an interrogation.

Certainly in the Stovall case, there's absolutely no justification that I believe at all, and I dare say the same is true in the Gilbert record.

Chief Justice Earl Warren: Very well.

Mr. H. Richard Uviller: Thank you.

Chief Justice Earl Warren: Mr. Polsky.

Rebuttal of Leon B. Polsky

Mr. Leon B. Polsky: Mr. Chief Justice, first I would like to answer a question asked by Mr. Justice Black concerning the powers of a sheriff in New York.

Under Section 500 (c) of the New York Code of Criminal Procedure, a sheriff shall not without lawful authority let any such person committed person out of jail which I think precludes any release of a prisoner without a court order.

Addressing myself to the argument that has been made both here and in the proceeding cases, that this was just a prosecutor's preparation of a case and that it's analogous to interview with witnesses, I think there we come very close to the nub of what's involved here.

Here, the situation would be analogous to the interview with witnesses if a district attorney when interviewing a witness would then prepare a statement for the witness which the witness then would sign, and then that statement itself would be put in evidence at trial as affirmative proof of what the witness had to say.

In other words, the pretrial interview via prosecutor, what transpires at that interview is not evidence --

Justice John M. Harlan: So you --

Justice Potter Stewart: The difference in that is that here the witness was under oath in Court when she testified as to her prior identification, it wasn't like putting a piece of -- un-sworn piece of paper in.

Mr. Leon B. Polsky: But even if the witness at the trial in the interview situation took the trial under oath testified.

Justice William J. Brennan: And adopted this statement under oath --

Mr. Leon B. Polsky: And then --

Justice William J. Brennan: -- subject to cross-examination --

Mr. Leon B. Polsky: No.

Justice William J. Brennan: -- that would be --

Mr. Leon B. Polsky: On direct examination.

Justice William J. Brennan: Yes, and I say subject to cross-examination.

Mr. Leon B. Polsky: I would say no.

I was -- I know of no rule of evidence which would permit a prior consistent statement by a witness given out of court to the attorney preparing the case would be admitted in evidence as part of the direct case.

Justice Hugo L. Black: Do you agree with what seems to be the assumption that the constitutional rights of a lawyer is limited to his right to have somebody represent him in the actual trial of the case?

Mr. Leon B. Polsky: No sir.

I don't agree --

Justice Hugo L. Black: In the proceedings in Courts?

Mr. Leon B. Polsky: No sir.

I do not agree.

A case is won or lost out of court.

Justice Hugo L. Black: I assume in modern trial of cases there are few lawyers representing any client, who do not have some method of protecting their client and advising them, or they actually get on the trial, into the courtroom, is that right?

Mr. Leon B. Polsky: I'm sorry sir, I just --

Justice Hugo L. Black: I said I assume, I don't -- maybe I'm wrong, in modern trial of cases there are far more things that a lawyer does to represent his client merely represent his interest and talked to him and advised him while he is actually in the court, in the witness chair or being tried.

Mr. Leon B. Polsky: Yes sir.

Justice Hugo L. Black: And that the method of investigation by both sides is carried on both by the state and the defendant with -- in advance of the trial.

Mr. Leon B. Polsky: That is correct.

As the district attorney has said here, this identification by Mrs. Behrendt in the hospital room was critical.

It was the thing that the Court have -- had exonerated him.

I would like to be there when my client --

Justice William J. Brennan: Suppose the --

Mr. Leon B. Polsky: -- is being exonerated.

Justice William J. Brennan: Our case is as Mr. Uviller said, so far had said that the Sixth Amendment right to counsel extends in advance of the trial on the Hamilton at that time of arraignment under Miranda, the time of interrogation, and then the Spano-Massiah, Massiah, that line of cases, after indictment.

But we've already held that there are circumstances in which the Sixth Amendment right applies before trial.

Mr. Leon B. Polsky: Right.

Justice William J. Brennan: As Mr. Uviller said that the argument on the other side is that this is not one with which those principles are applicable for the reasons.

Mr. Leon B. Polsky: Right.

Well I disagree with that.

Justice William J. Brennan: I know you do.

But the --

Mr. Leon B. Polsky: Because --

Justice William J. Brennan: But it's not -- there's no premise here that the Sixth Amendment applies only to the right to counsel at trial.

Mr. Leon B. Polsky: No sir.

Justice William J. Brennan: There's no premise here (Inaudible)

Mr. Leon B. Polsky: No, the premise is the right of counsel in court as opposed to the right to counsel out of court.

Justice William J. Brennan: Well, I know, but there are three out-of-court situations --

Mr. Leon B. Polsky: That's right.

Justice William J. Brennan: -- where the right to counsel (Voice Overlap) --

Mr. Leon B. Polsky: Right.

And we say it extends to this situation.

Justice William J. Brennan: That's right.

That's what I understood you to say.

Mr. Leon B. Polsky: And we contend that if these cases ought to have any meaning, of Hamilton and White, even if limited only to a capital situation, if they are to have any prophylactic meaning, if they are to get a man, a lawyer as soon as he -- as a court can get him one then the state must act at their peril in any way that they tried to obtain evidence thereafter.

Thank you, sir.