WASHINGTON v. TEXAS
Legal provision: Right to Confront and Cross-Examine, Compulsory Process
Argument of Howard M. Fender
Chief Justice Earl Warren: Jackie Washington, Petitioner, versus the State of Texas.
Mr. Howard M. Fender: Mr. Chief Justice, may it please the Court.
On the occasion of adjournment yesterday, there was a discussion going on concerning the parallel I was drawing between a statute which prohibits lunatics, and idiots, drunkards, from testifying in the statute in this instance which prohibits a codefendant from testifying.
In order to give you the example of why I think parallel was well drawn Your Honor, I would like to review briefly some of the facts in this case although I dont think they're entirely necessary to a determination question.
Nevertheless counsel yesterday in his argument indicated that if the codefendant had been allowed to testify that he would exonerate the petitioner in this case.
The petitioner, a young man who went around and gathered up a gang, he was searching for a gun.
He placed it in the hands of his drunken codefendant, placed the rest of his gang around the house to throw rocks at the house to bring someone to the front door.
And apparently at that time he lost his courage.
And according to his testimony and according to the affidavit of the codefendant, the last minute, he turned and ran.
I'd like to point out to the Court that he'd be perfectly guilty as a principle even though he did lose his courage and ran at the last minute.
He started the whole thing going.
He organized the expedition.
He was the general that laid down the plan of action and was therefore completely culpable for the death of the deceased in this case.
Chief Justice Earl Warren: Was it agreed that they plan the expedition for the purpose of murdering this man?
Mr. Howard M. Fender: Oh, to the purpose of shooting him Your Honor and actually, it was for the purpose of shooting him.
At the trial, they naturally claim that they were just trying to fight.
The deceased had been --
Chief Justice Earl Warren: Well, if that -- that was a contested fact, I take it?
Mr. Howard M. Fender: Yes sir.
The deceased had been running around with the petitioner's girlfriend, age 16.
And some bad blood had arisen between them and he went around and said he was going to go there and shoot him.
Justice Potter Stewart: Who was the aged 16, the deceased, the girlfriend or the petitioner?
Mr. Howard M. Fender: The girl.
The girlfriend was -- the others were in there 17, 18-year old bracket.
Justice Hugo L. Black: What was the sentence?
Mr. Howard M. Fender: 50 years.
Chief Justice Earl Warren: Who fixes a sentence?
Mr. Howard M. Fender: The -- at that time, under a single hearing, the jury found guilt or innocence and fixed the punishment.
Under our new code, guilt or innocence is first determined except in murder -- in capital cases which still continue that way.
So the jury under the present system still fixes both in capital cases which murder is.
Chief Justice Earl Warren: Well then, did the jury fixes the punishment, I presume it might be quite relevant whether he abandoned the intention to do whatever he's trying to do before --
Mr. Howard M. Fender: That's --
Chief Justice Earl Warren: -- before it happened.
Mr. Howard M. Fender: That is correct, Your Honor, and he so testified the testimony was before the jury.
Chief Justice Earl Warren: I know but wouldn't --
Mr. Howard M. Fender: And --
Chief Justice Earl Warren: -- wouldn't he be entitled to a corroboration of that if it was in order to support this case?
Mr. Howard M. Fender: If he had competent witnesses to corroborate, yes he would Your Honor.
Chief Justice Earl Warren: Well.
Mr. Howard M. Fender: But in this instance he -- the other -- the witness that he called for was not competent to testify under state law.
Chief Justice Earl Warren: Because he was the codefendant only.
Mr. Howard M. Fender: And because the statute specifically prohibited codefendants from testifying for one or another at that time, yes sir.
Chief Justice Earl Warren: Yes, yes.
Justice Hugo L. Black: What was his sentence, the codefendant?
Mr. Howard M. Fender: (Inaudible) got 50 years, Your Honor.
And I might add that the -- in an examination of the record here you will see that the codefendant at the time of his trial was trying to lay it all on the petitioner.
The affidavit of the codefendant according to the statements of attorneys in the -- in our transcript here, he was switching around and after he gotten his 50 years, which we feel is the perfect justification for the legislature adopting this rule.
That is to having been convicted, given his 50 years then the codefendant Fuller was going to turn around and switch his story.
And it's not adequate to say that perjury can be brought because as this Court well knows conflicts and statements do not necessarily support perjury.
First place we'd have to prove at which time the man was lying.
But he obviously was changing his story from the time of his trial when he was putting on the petitioner that is the codefendant Fuller was changing his story from the time of his own trial to the time of this trial.
Chief Justice Earl Warren: But would the prosecution have called him and used him?
Mr. Howard M. Fender: Yes sir.
Chief Justice Earl Warren: Well, why if he's unreliable for one side, why wouldn't he be just as unreliable from the other -- for the other side?
Mr. Howard M. Fender: I cannot --
Chief Justice Earl Warren: What is the explanation of that?
Mr. Howard M. Fender: My explanation to that Your Honor is that the -- if the prosecutor in interrogating these people as prospect to witnesses, unless he should make some improper promise and of course that would invalidate any witness' testimony.
Chief Justice Earl Warren: Invalidate it or so that he (Voice Overlap) --
Mr. Howard M. Fender: It'd be a subject (Voice Overlap) -- it will be subject to attack, Your Honor.
Chief Justice Earl Warren: Subject to his credibility, wouldn't it?
Mr. Howard M. Fender: But assuming no improper inducement on the part of the prosecutor, if one codefendant is willing to turn states evidence, the prosecutor is privileged to use it.
And I think that is a practice that is followed in states whether or not they have such a statute as Texas has.
Chief Justice Earl Warren: Well, in principle though what is the difference between him testifying for one side but not being able to testify for the other now, (Voice Overlap)?
Mr. Howard M. Fender: The natural tendency to be more truthful when you are making incriminating statements about a friend and then if you are making statements in his support which I think is a natural human tendency.
Chief Justice Earl Warren: Yes, and -- well, not so human tendency for him to accuse rather than to excuse?
Mr. Howard M. Fender: To be truthful in his accusation than to necessarily be truthful in his effort to gain freedom for his friend.
Justice John M. Harlan: Of course you have another human element depended and to assume, that is the impulse to testify before the Government for any possible (Inaudible).
Mr. Howard M. Fender: That is possibly true but at the same time if the codefendant is subject to acquittal, the severance statutes which were mentioned yesterday permit either of two codefendants to file a motion for severance and to require the trial of the other man first so that he may establish his innocence and thereby become a free agent and competent witness for the codefendant.
In this instance the -- Fuller was tried first, convicted and given 50 years.
The state felt that it would avail them nothing in the way of seeking the truth of this story to put him on the stand.
And in accordance with the statute opposed he's getting on the stand.
This has been the ruling of Texas for time immemorial and many other states have had this rule.
Some use -- still retain the rule that prohibits codefendants from testifying for one another.
Chief Justice Earl Warren: Why did the legislature of Texas change the law since this case?
Mr. Howard M. Fender: Mr. Chief Justice, every prosecutor in the state is asking that same question.
All I can say is we, we have to live with it now.
Chief Justice Earl Warren: Well, --
Mr. Howard M. Fender: We have lost a great many of our tools.
We still try to go on.
I don't believe it was necessarily required but in the sweeping revision of our Code of Criminal Procedure, this was included as one of the changes that the legislature brought about.
Chief Justice Earl Warren: And what it considered fairness?
Mr. Howard M. Fender: I presumed -- presume so Your Honor but I'd -- I would like to add that I don't feel the mere fact that the legislature has now changed the statute would necessarily reflect that the prior statute was bad just as our changing from a single hearing wherein guilt and innocence and punishment were determined to stage hearing.
There's not in my mind necessarily mean that the single hearing was bad.
And in this instance I feel it's just a change that has come about with the changing times.
But I still don't feel that that should be any indictment of our former system.
Justice John M. Harlan: Did you say there are other states that have this matter of statute amended?
Mr. Howard M. Fender: Yes sir.
Justice John M. Harlan: Which one?
Mr. Howard M. Fender: I can't name them right now but I'd be glad to furnish them to the Court.
Chief Justice Earl Warren: Would you do that please?
Mr. Howard M. Fender: Yes sir.
Of course, Georgia if you'll recall until this Court acted, even prevented the defendant from taking the stand at one time.
Justice John M. Harlan: Well there was the --
Mr. Howard M. Fender: But --
Justice John M. Harlan: -- common law rule?
Mr. Howard M. Fender: Yes sir.
Justice John M. Harlan: And then --
Mr. Howard M. Fender: Well under the common law rule --
Justice John M. Harlan: Testify on his own defense?
Mr. Howard M. Fender: That's true and also there was a common law rule that developed this rule originally and the common law has been changed.
Then most -- and the principle authority cited by petitioner in his brief, the Funk case goes into that but I don't think it's authority for what we're considering here today as I pointed out in my brief.
The Funk case was an effort to define or redefine the common law because it was a federal trial and it was necessary for them to apply the common law of the state in determining their procedure.
But it -- I don't see that there's any authority for overwriting the statute because this Court in writing in Funk each time that they mention the change always added a proviso in the absence of congressional action or in the absence of legislative statement whereas in our case, we have a statute.
There was no question of the common law being applied in this Texas trial.
The only place is whether or not our statute is valid as it appears to be for quite sometime.
Now, I would like to once again --
Justice Hugo L. Black: May I ask you what provision?
Mr. Howard M. Fender: Yes sir.
Justice Hugo L. Black: What affect do you give to the provision of the Sixth Amendment, the compulsory process of witnesses?
Mr. Howard M. Fender: I was just getting ready to mention that, Mr. Justice Black.
I feel that the Sixth Amendment to the constitution guarantees to every person who is going to have to stand trial that any witness that is available in his favor will be brought into the Court.
In other words you cannot deny him the right to have his witnesses present.
In this instance, the witness was available.
There's no question about that.
He was right there at the Dallas County jail and the Court had to control all remedy; he was admitted that although he was not put on the stand because of the objection that he was available and could have been put on the stand.
The state cannot deny a man the right to have a sheriff go out and get the defendant's witnesses in just the same way that he will go out and get the state's witnesses.
That to me is the meaning of the Sixth Amendment.
But in this instance the man was disqualified.
And I feel that you're in the same position as you would be if you brought a man in by compulsory process.
And a motion was filed by the state to prohibit his testimony on the grounds that he knew nothing but hearsay testimony, and therefore could have no possible basis for testifying.
And if at a hearing on the motion in limine, the Court determined that the witness knew absolutely nothing about the facts of the case except something that he had heard.
The Court did properly exclude the testimony of that witness on the grounds that he was disqualified by a reason of lack of knowledge.
That would not deny the man compulsory process to bring his witness in.
It will only bar the witness from testifying after he arrives in the courtroom.
Justice Hugo L. Black: Suppose the States could go further and abide but no relative of any person charged with the crime should be allowed to be testify for defense?
Mr. Howard M. Fender: I would presume that such a statute would be subject to attack even though I don't -- I can't reasonably expect a legislature in its wisdom to pass such a statute.
Nonetheless, I think that would be subject to attack for the reason --
Justice Hugo L. Black: On what ground?
Mr. Howard M. Fender: On the ground that that would deny a man a fair trial without reason.
That it would be outside of the police power of the state to arbitrarily and capriciously prevent anyone from testifying.
Whereas I do not believe that the prohibition of a codefendant is arbitrary or capricious but rather that it's based in sound judgment although the judgment has now been changed.
Justice Hugo L. Black: I didn't (Inaudible) the words, or at sometimes disturbing, arbitrarily and capricious as a substitute for the Court, the Court can utilize to make new laws, constitutional laws when it so desires.
But what I was talking about was rather this right -- the Sixth Amendment some on which to having that available means to have them -- have to be used, whether that -- why in your judgment the Sixth Amendment shouldn't be construed so as to bar what Texas has done here?
Mr. Howard M. Fender: Well I think by the same token if it bars that, it would also bar their right to exclude idiots, lunatics, and drunkards which is why I brought it up yesterday.
There would be no end to it if you can't bring in -- I mean if you can't --
Justice Hugo L. Black: About to get a (Voice Overlap) --
Mr. Howard M. Fender: -- exclude one man because of the Sixth Amendment then you get --
Justice Hugo L. Black: You got to get a witness who's capable mentally to testify I would suppose.
Maybe he couldn't talk at all.
I don't think your idiots and drunkards had, should they?
Maybe it does.
Mr. Howard M. Fender: Now --
Chief Justice Earl Warren: In the case of an idiot, can the prosecution use an idiot against the man?
Mr. Howard M. Fender: Neither party can use it if the other party objects Your Honor.
Chief Justice Earl Warren: Yes, but isn't that different from here where -- whether the state can use a witness against the man but the man can't use the witness for him?
Mr. Howard M. Fender: Yes sir but this is just like the right of a defendant to put his wife on the stand in his behalf.
But the state may not call the defendant's wife in his behalf.
And I presume that if our present ruling failed under the Sixth Amendment, it also our statute prohibiting wives from testifying against their husbands would fall for the same reason, Mr. Justice Black.
And yet I've never had any quarrel with the statute.
I've never felt that we should attempt to force wives to testify against their husbands.
Justice Hugo L. Black: You mean that it would call the state to disqualify a state from barring another man's wife from testifying in his behalf?
Mr. Howard M. Fender: We don't bar them, Mr. Justice Black.
The statute says that the state cannot call the defendant's wife and force her to testify against him.
Justice Hugo L. Black: Suppose he's made the same statement that a defendant cannot call another man's wife to testify in his behalf?
Mr. Howard M. Fender: I would not see any connection there, Your Honor.
Justice Hugo L. Black: Well, they --
Mr. Howard M. Fender: There's a connection between the man and his wife, but I see no connection unless it would be an illicit one between him and another man's wife.
Justice Hugo L. Black: Oh, you said where one man is suspected to having committed the murder, his wife will not be testify -- someone to testify on behalf of another man charged with murder.
Mr. Howard M. Fender: I frankly don't know whether the privilege would extend to other principles or not, I read of that.
Justice Hugo L. Black: Well, I'm not talking about a common law privilege; I'm talking about the constitution.
Mr. Howard M. Fender: Well, I don't think if the constitution under the Sixth Amendment should extend to prohibit -- I mean to permit a man's wife to be forced to testify against their husband.
And I --
Justice Hugo L. Black: That's for the state?
Mr. Howard M. Fender: Yes sir.
I don't -- but I think --
Justice Hugo L. Black: But suppose there's a difference in the Bill of Rights as applied to the state and applied to the defendant.
Mr. Howard M. Fender: Well I'm sure there is because the Bill of Rights specifically says a defendant in a criminal case --
Justice Hugo L. Black: That's right.
Mr. Howard M. Fender: -- whereas the state doesn't get the same (Voice Overlap) --
Justice Hugo L. Black: So that doesn't get too far, they go back to where they -- what the state can do there.
The question whether the defendant can be deprived of.
Mr. Howard M. Fender: Well I'm sorry but I thought we were discussing the relative difference between what the state can do and what the defendant can do in this case.
And I want to point out that it works the other way.
And I believe that compulsory process is available.
It should be available to both sides.
I don't know whether the States got a Bill of Rights or not but it seems to me it's analogous, Your Honor.
Justice Tom C. Clark: You admit that the witness clause of the Sixth Amendment applies to the States?
Mr. Howard M. Fender: Frankly I would hope that it applied to the States because the Fourteenth Amendment having brought in the rest that we might as well let the witness clause with him in the compulsory process?
Justice Tom C. Clark: Yes.
Mr. Howard M. Fender: Yes sir, I have no quarrel with the questions whether the compulsory process clause is applicable.
Justice Tom C. Clark: But not in a -- I don't remember any case in the Court that said that, I just --
Mr. Howard M. Fender: Frankly I couldn't find any but I just assumed that since the hair goes with the hide that that section would go with the others in being applicable to the State.
Justice Hugo L. Black: I hope your assumption has resounding?
Mr. Howard M. Fender: Sometimes the hair gets burned off, Mr. Justice Black.
Justice Tom C. Clark: I'm afraid you won't get everybody on that.
Mr. Howard M. Fender: I don't necessarily to want everybody.
I'm just not going to fight that point sir.
I would also like to call the Court's attention to the fact that in the event that the Court does overturn this conviction that you might well take into consideration the same matter that you did in the case of Reid versus Plato when we had our three habitual criminal arguments here last fall.
In the Reid case, the question retroactivity arose.
I'm sure that there are great many prisoners in the State Penitentiary in Texas right now who in one way or another would claim that they were denied the right to call a codefendant.
These are men whose cases have long since been put to rest.
Their time for -- neither they took their appeal or their time for appeal has long since expired.
It would occur to me that in the event you do overturn this that you might put sometime limitation as you have done in some of your recent decisions so that we would not be faced with a substantial number of applications for writ of habeas corpus in our Court of Criminal Appeals and our federal courts seeking to reopen these cases on this basis.
I would hate to have to take on a new set of cases because we've got enough to say grace over down there now.
Justice John M. Harlan: And this statute apply only where there's a (Voice Overlap) --
Justice Hugo L. Black: Go ahead and (Voice Overlap) --
Mr. Howard M. Fender: No sir.
It applies where the -- where indictments arise out of the same offense, essentially the same set of facts.
We do not often jointly indict in Texas because of the procedural difficulties that arise from joint trials under our statutes.
It is more normal to return single indictments and then we occasionally join them together for trial unless there is a motion for severance filed.
Justice John M. Harlan: The state's work -- can the state waive --
Unknown Speaker: (Inaudible)
Justice John M. Harlan: (Inaudible)
Mr. Howard M. Fender: I can go even further if you pardon me for testifying outside the record and said I have permitted litigations that I have prosecuted.
It can be waived.
Justice John M. Harlan: It can be waived?
Mr. Howard M. Fender: Yes sir.
Justice John M. Harlan: And has been waived?
Mr. Howard M. Fender: And has been waived, yes sir.
Justice John M. Harlan: May you request to (Inaudible) --
Mr. Howard M. Fender: Well, they call the witness in the state objected so there was no question to waiver.
The State affirmatively objected when the witness was called by the counsel for the defendant -- petitioner.
Chief Justice Earl Warren: What theory on -- what theory did you -- do you waive that right?
Mr. Howard M. Fender: I just simply didn't think it was going to particularly hurt my case.
I thought I might get something out of him on cross-examination that I wouldn't direct, Your Honor.
Chief Justice Earl Warren: In other words, you use it only when it will benefit the State?
Mr. Howard M. Fender: Well I say when I don't think they'll be a detriment to the State.
Justice Abe Fortas: Well, in the -- actually with the elimination of this rule make much a difference in your experience.
How long -- the rule has been repealed, now the statute has been repealed?
Mr. Howard M. Fender: The statute has been changed.
That was effective January 1st, 1966, Mr. Justice Fortas.
Justice Abe Fortas: So you haven't had -- as you've had some experience --
Mr. Howard M. Fender: Very little appellate experience yet.
They've had some experience down in the District Court but not on our system.
Not many cases have yet gotten up to the appellate court where this been done.
Justice Abe Fortas: Can you tell us whether -- do you know whether there has been a rush of instances in which a defendant has put a codefendant on the stand?
Mr. Howard M. Fender: I --
Justice Abe Fortas: From my experience, it's a very dangerous practice for a defendant.
Mr. Howard M. Fender: Just in talking to other prosecutors at our various meetings, I've gotten the impression that it has been tried several times than as you say it has had variable results.
Justice Abe Fortas: Yes, it certainly does.
Mr. Howard M. Fender: I frankly would welcome the opportunity open to cross-examine the man that I would hesitate to put on the stand and vouch for myself but I don't -- I can't give you any statistics on it sir.
I notice that my time is drawing to a close.
I would like to simply remind the Court one more time that this is a hearing under the Sixth Amendment with regard to compulsory process.
And the State was made by the counsel, that Spencer, Reid and Belle were affirmed by this Court on the basis that no specific provision the constitution was violated.
And in view of the fact that the witness was available in the courthouse and was only prohibited from testifying by the State statute, I would like to urge upon the Court that the principles enunciated in Spencer, Reid, and Belle, would be applicable here because no specific provision of the constitution has been violated.
The compulsion of the attendants of witnesses in my view point was not denied to this man.
The testimony was denied to him under the statute after the witness had been made physically available to him.
The mention of Bonner versus Beto which is pending in the Fifth Circuit and has to do with the husband and wife relationship and the denial of her testimony under similar circumstances where she was a co-indictee is under motion for rehearing by our office.
And if we lose there, we're going to ask you all to review it unless you little too adversely in this case and we consider it ill-advised to do so.
But it has not been finally decided at this point.
If there are no further questions, thank you very much gentlemen.
Argument of Charles W. Tessmer
Mr. Charles W. Tessmer: By way of a few brief concluding remarks, I would like to point out that only a few states prohibit the use of a codefendant at this time.
They're listed in the Appendix A of the brief.
That's Alabama, Alaska, Kansas, Nebraska, South Dakota, Texas, and Wyoming.
I do believe however that in fundamental fairness, the other states outside of my home state Texas apply the rule equally against the State and against the defendant in prohibiting the competency of a codefendant as a witness.
With reference to --
Justice John M. Harlan: That's across the board both sides, State can't call him?
Mr. Charles W. Tessmer: It's my opinion, that's true Your Honor.
The State cannot in those few states, not -- neither can the defendant.
But in Texas, the State may call the accused co-principal.
Justice John M. Harlan: Well, is there any other State which has a statute like this?
Mr. Charles W. Tessmer: To my knowledge no sir.
Justice John M. Harlan: I beg your pardon?
Mr. Charles W. Tessmer: To my knowledge, no Mr. Justice Harlan.
In answer to counsel's argument about the record, I would suggest Fuller versus the State, the opinion cited in our brief.
The codefendant being first tried as to whether or not he mislead the state.
His confession introduced by the State.
He stated as follows, Then I saw a man come out on -- of the house on the porch.
This is codefendant Fuller testifying in his confession used for the State.
That's when I shot the gun one time, Jackie ran.
Jackie is Washington.
Therefore the State used this evidence, (Inaudible) but its true that Jackie did not fire the gun and that he ran.
And I therefore challenge counsel's remarks about perjury and what had happened in the first trial.
Justice Tom C. Clark: Did Fuller --
Mr. Charles W. Tessmer: That's the confession --
Justice Tom C. Clark: Fuller took the stand in the first trial?
Mr. Charles W. Tessmer: Fuller did, Yes Your Honor.
Justice Tom C. Clark: Did he --
Mr. Charles W. Tessmer: And --
Justice Tom C. Clark: -- testify against -- rather he indicate that the defendant here had more to do with it than (Voice Overlap) --
Mr. Charles W. Tessmer: He admitted that in the trial record of firing a shot, he simply tried to justify it on the grounds that he meant to frighten and did not intend to hit the deceased when he came on the front porch, when he fired the shotgun.
But in his confession made shortly after arrest used for the state, he clearly exonerated our client.
Now, I think all agree that a man is not guilty of a crime by being physically present at the scene unless he by act, word, or gesture encourages the commission.
The defense withdrew from the intention and the plan is a valid defense and was so charged by the jury in the Washington case.
By way of conclusion, Mr. Justice Harlan pointedly remarked yesterday, is this in fact a compulsory process case?
I would say yes.
I disagree with the Attorney General of Texas when he states that process means merely getting one to court.
I think the effective process is the same as effective counsel, that the legitimate ends of process is to not get the man to the Court outdoor and stop there but to get him into the witness box where he can tell a truthful story.
Justice Potter Stewart: Well then if you are right, then every common law testimonial privilege has to fall, doesn?t it, under the constitution?
Mr. Charles W. Tessmer: I would say no sir.
Justice Potter Stewart: You get a -- got a priest or a physician or a spouse, and they don't testify under the well established common law rule of testimonial privilege that violates the Sixth Amendment guarantee of compulsory process under your reasoning.
Mr. Charles W. Tessmer: I would say not in every case.
I would say that compulsory effective process means where the evidence is legitimate, where it is being applied to deny the truth.
Here the petitioner itself --
Justice Potter Stewart: Now, often a testimonial privilege not to testify by its very hypothesis.
Is it detriment to the ascertainment of truth in a criminal trial?
Mr. Charles W. Tessmer: Very true, I would agree with that statement, Mr. Justice.
Justice Potter Stewart: And every single one of these testimonial privileges would fall if you're right as to the reach of the impact of the Sixth Amendment right to compulsory testimony, aren't you?
Mr. Charles W. Tessmer: I would say that the application in a given case might fall.
My point would be that it makes no difference whether we approach this case to the Sixth Amendment by way of the Fourteenth by incorporation.
Or whether we approach it under the Fourteenth Amendment alone because in any concept of ordered liberty, the precept that one should have a right to offer the truth by way of defense is a valid precept in law and one that should be enforced by virtue of the Fourteenth Amendment of the constitution.
Justice John M. Harlan: And regardless, the due process clause it says if you were wrong about the (Inaudible).
Mr. Charles W. Tessmer: I would answer that when --
Justice John M. Harlan: Is there any specific provision of the constitution before Congress.
Mr. Charles W. Tessmer: Then Your Honor I would argue that under the Fourteenth Amendment and that under the fundamental fairness doctrine the right to be heard, the right to make a defense in court that certainly as the Court of Appeals in the Fifth Circuit reasoned in Bonner v. Beto.
That where the State by legislation and the trial judge by enforcing the State statute by order suppresses, suppresses evidence showing the truth, the truth of the accused is not guilty, then certainly the principles of Brady against Maryland should be brought in this case.
And therefore the conviction would be just as invalid where the State legislature suppresses the truth by statute.
And the trial judge enforced it from as if the prosecutor or the Attorney General of Texas suppressed evidence knowingly that would show innocence of the accused.
I think either -- by authority of Brady against Maryland or by authority of Pointer against Texas specifically the Sixth Amendment right to compulsory process, this case should be reversed.
As pointed out in the Ferguson case and in concluding, that where a truth is sought in a criminal case to be shown by way of defense.
That it would seem that any bar to the ascertainment of that truth which is not reasonable are not applied to both parties must fall as was said in the Ferguson case.
The indulgence in such an age worn time disallowed principle would be to go backwards into the past.
And I respectfully submit in conclusion that this case must be reversed.
Justice William J. Brennan: May I ask you one question?
Mr. Charles W. Tessmer: Yes Mr. Justice Brennan.
Justice William J. Brennan: This follows the line that from the interrogation that the discussion you're having with Justice Stewart.
Is there any authority for the proposition that the compulsory attendants or witness clauses embraces the right to that witness evidence once you get him in the courtroom?
Not with standing incompetencies, statutes to privilege or otherwise?
Mr. Charles W. Tessmer: There are some Circuit Court of Appeals cases and I believe Theoni (ph) holds that and also Robinson versus Pate.
It is cladly -- a clad holding on the Sixth Amendment that that embodies the right to have those witnesses in the witness box.
Justice William J. Brennan: What was in Robinson which were -- a privilege involved in the Robinson?
Mr. Charles W. Tessmer: In Robinson, he had asked for some witnesses.
He claimed insanity as a defense.
The counsel did not subpoena the two lay witnesses who saw him shortly after the homicide.
And as a result, the Court of Appeals for the Seventh Circuit held that in the wake of Gideon against Wainwright, and that right to counsel under the Sixth Amendment means --
Justice William J. Brennan: Well, as I understand it though that it not involved a question whether the particular witness had a privilege or was by statute as here made incompetent to testify.
Mr. Charles W. Tessmer: That is very true.
Justice William J. Brennan: Well, my question was, are there any decisions which do involve the application of that clause where what's interposed is a privilege or an incompetent defense?
Mr. Charles W. Tessmer: Well of course, looking at the federal decisions in Funk versus the United States, I believe that would be the holding in that case where the --
Justice William J. Brennan: What was Funk?
Mr. Charles W. Tessmer: The common law rule was previously that a wife was incompetent to testify for her husband because of interest.
The Funk court -- this honorable Court in that case overruled the common law rule in the light of human experience and reason permitting the testimony.
On the other hand, the privilege has been sustained.
I believe in a man, that prosecution --
Justice William J. Brennan: That was where the husband wanted the wife's testimony.
Mr. Charles W. Tessmer: Yes, Your Honor.
Justice William J. Brennan: And was willing to waive the privilege, doesn't they?
Mr. Charles W. Tessmer: Yes Your Honor.
Now we do have --
Justice William J. Brennan: How about this case?
Mr. Charles W. Tessmer: We do have statutes in Texas that waive the wife's privilege in many cases not to be called by the State.
The legislature recently passed a statute holding that the wife in incest prosecutions could testify even though normally she would be barred.
So it's a matter of legislative enactment.
I wish to thank this honorable court for hearing.
Justice Byron R. White: Could I ask you?
I suppose -- what would you say if the -- does the defendant calls a witness and the witness gets some stand and he is asked a question that calls for hearsay, would you think -- then it has a right to elicit that hearsay from that --
Mr. Charles W. Tessmer: Certainly not Your Honor.
The rules of evidence --
Justice Byron R. White: Why not?
Mr. Charles W. Tessmer: Because we deal with rules that have a guarantee of truthfulness to it.
Justice Byron R. White: You mean -- do you mean hearsay is unreliable?
Mr. Charles W. Tessmer: Unreliable.
Justice Byron R. White: But what if the Texas legislature says, not only is hearsay unreliable but testimony of uncertain witness with a certain relationship to another is unreliable.
We judge both to be unreliable in the same category.
Mr. Charles W. Tessmer: Then I think this honorable Court should weigh in the balance, the reason for it, and the effectiveness of such a rule.
Justice Byron R. White: So you really think our question is -- isn't the rationality of the Texas Court's judgment?
Mr. Charles W. Tessmer: Yes, particularly the rationale.
Justice Byron R. White: Are there Texas legislature judgments?
Mr. Charles W. Tessmer: I would say to this extent that the judgment of the Texas legislature and the enforcement of this particular statute, allowing the prosecution to indict those they think are involved in the crime, and thereby eliminate every possible witness that's indicted until he's tried and acquitted.
Certainly that --
Justice Byron R. White: Well, now let's -- let's say that the Texas legislature had a statute which it may have, I don't know against hearsay.
That no hearsay in our courts except in limited -- with limited exception and the reason is that it's unreliable.
Do you agree with that judgment?
Mr. Charles W. Tessmer: I agree they could certainly do that Mr. Justice White because the dying declaration is statutory.
We find the -- a reason that it's trustworthy when a man's dying.
And he says somebody shot me.
Hearsay is untrustworthy but we permit exceptions.
Justice Byron R. White: Well, let's assume for the moment then that -- let's assume for the moment that you believe and then the Texas legislature also has the present statute, codefendants may not testify if the state objects?
What if you believe that that was as rational as the hearsay rule, you wouldn't think then that the Sixth Amendment would outlaw that statute?
Mr. Charles W. Tessmer: I would think that the Sixth Amendment would outlaw the statute if the --
Justice Byron R. White: Well, it doesn't outlaw the hearsay statute, you say.
Mr. Charles W. Tessmer: Would outlaw this statute, Mr. Justice White, if its application evolved and invoked the depravation of Sixth Amendment rights.
Justice Byron R. White: Oh, I agree with that.
That's the question.
Do you say that the Sixth Amendment is not violated by a hearsay statute?
Mr. Charles W. Tessmer: I say that, yes Your Honor.
Justice Byron R. White: What if you believe that the codefendant statute was as rational as a hearsay statute?
Mr. Charles W. Tessmer: Well, first of all --
Justice Byron R. White: And the testimony of your codefendant was as unreliable as hearsay.
Now let's just assume that.
Then I suppose you can not reach the same conclusion on this.
Mr. Charles W. Tessmer: I would answer it this way.
The credibility as for the jury, as triers of the fact, they can adjudge the credibility of the codefendant far better than the legislative.
Justice Byron R. White: (Inaudible) except for hearsay?
Mr. Charles W. Tessmer: Or even the Attorney General figures --
Justice Byron R. White: Except to hearsay?
Mr. Charles W. Tessmer: Subject to hearsay, Your Honor.
Justice Byron R. White: Well, that --
Chief Justice Earl Warren: I suppose you wouldn't say though that if as to hearsay that the statute said that a defendant could not produce any hearsay but that the prosecution would or could that it would be bad.
Mr. Charles W. Tessmer: I would feel that would be highly unfair, Your Honor.
Chief Justice Earl Warren: Well, then why isn't it unfair to allow the defendant's wife to testify in his behalf but to prohibit the State from allowing her to testify in its behalf?
Mr. Charles W. Tessmer: We do not prohibit the State from --
Justice Potter Stewart: That's the law on the federal court, isn't it?
Mr. Charles W. Tessmer: It's the law in our courts --
Justice Potter Stewart: Funk case and the Hawkins case?
Mr. Charles W. Tessmer: I would say Mr. Justice Stewart since time immemorial, our courts and all courts of law, England is not to the contrary, have recognized the most intimate relationship in the world as man and wife.
And that anything that comes between what God has joined together, they must follow unless there's a real necessity for it.
Justice Potter Stewart: No, we're talking about the ascertainment of truth in a criminal trial, aren't we?
Mr. Charles W. Tessmer: Yes Your Honor.
Justice Potter Stewart: And certainly, the -- prohibiting the Government from getting the true facts from the wife of the defendant is to impair that process of ascertaining the truth, is it not?
Mr. Charles W. Tessmer: I would agree with that and I certainly think it must face the balancing of interest test just like the Fifth Amendment prohibits the prosecution from calling the defendant and ascertaining truth.
Justice Potter Stewart: Exactly, I mean, although he may if he wants to testify in his advocate.
Mr. Charles W. Tessmer: Certainly, but we must here balance the rights involved which is more important to Fifth, the Fourteenth and the Sixth where they conflict.
Chief Justice Earl Warren: And I suppose also you would say that the state could limit itself in any way it wants to the manner in which it would prosecute a man because it is not subject to the Bill of Rights.
But that it -- there are certain things that it cannot do as to an individual on its Bill of Rights, and wouldn't that be a factor in it too?
Mr. Charles W. Tessmer: I would certainly think so and I think it would go back to a fundamental fair right to trial under the Fourteenth Amendment of the constitution Your Honor.
Justice Hugo L. Black: With reference to yesterday, there's a man who gives hearsay evidence to testify to have knowledge of the facts of an offense?
Mr. Charles W. Tessmer: Of course, the hearsay rule has no application except for the matters offered to prove the truth thereof.
Secondly I would say that the hearsay rule is valid and reasonable.
Justice Hugo L. Black: What is the hearsay rule?
Mr. Charles W. Tessmer: That out of court statements made without the sanction of both which you're offered to prove that that statement is true and made without the right of confrontation of that hearsay witness, and made without the right to cross-examine that hearsay witness would certainly be violative of due process.
Certainly if there's a valid reason for it because we just said in Pointer --
Justice Hugo L. Black: Well, I don't know about the due process at the time --
Mr. Charles W. Tessmer: The Sixth Amendment.
Justice Hugo L. Black: What is the difference between a hearsay privilege and other privilege the hearsay evidence, the evidence that a man gives about what somebody else known or claimed to have known.
Mr. Charles W. Tessmer: Yes Your Honor.
Justice Hugo L. Black: It is not evidence of his knowledge of the offense, it's the charge.
Mr. Charles W. Tessmer: And it is heard without confrontation as in Pointer and without the right to effective counsel to cross-examine that hearsay declarant who made the statement out of court.
Justice Hugo L. Black: Well in short, to have a man to testify to somebody he doesn't know.
Mr. Charles W. Tessmer: That is very true.
Justice Hugo L. Black: That what he say, somebody else knew which would -- I suppose one of the basic things that court want to get witnesses who are familiar with the facts that they are inquired about.
Mr. Charles W. Tessmer: And there --
Justice Hugo L. Black: Although the law could permit hearsay?
Mr. Charles W. Tessmer: Yes sir.
Justice Hugo L. Black: But it need not.
Mr. Charles W. Tessmer: There were only two witnesses in the world who knew what happened.
If there are no more questions, I thank the Court for --
Justice William O. Douglas: I'd like to ask --
Justice Byron R. White: Just one more then -- go ahead.
Justice William O. Douglas: Mr. Tessmer, you referred to Fuller's confession, I don't find it in the record.
Could you give me the reference?
Mr. Charles W. Tessmer: Your Honor, there's some colloquy in the record about objections.
The citation is 397 S.W. 2d, South Western Reporter Second at page 434 wherein the State used Fuller's confession as evidence of the truth of what happened.
Justice William O. Douglas: The confession set out in that case.
Mr. Charles W. Tessmer: Yes Your Honor and verbatim in toto.
Justice William O. Douglas: Thank you.
Justice William J. Brennan: What -- but this involves that affidavit at page five of the record, didn't it?
That's your offer of proof.
Mr. Charles W. Tessmer: That is our offer of proof.
Justice William J. Brennan: And the bill of exception.
Mr. Charles W. Tessmer: In the settled bill of exception.
Justice William J. Brennan: This is what -- he would have testified too, you say hadn't he been on -- that he's allowed to question.
Mr. Charles W. Tessmer: Yes Your Honor and that is corroborated by the full confession of Fuller set out, offered at his preliminary trial.
Justice Tom C. Clark: That's the point.
There's something in his confession that corroborates that affidavit, you say?
Mr. Charles W. Tessmer: Yes Your Honor.
Justice Tom C. Clark: Hearsay.
Mr. Charles W. Tessmer: So the State had knowledge of this.
They used it.
Justice Byron R. White: Now if you were to hear from one of these other states that has a statute like this except that it applies to both the state and the defendant, you'd be making the same argument, wouldn't you?
Mr. Charles W. Tessmer: I would be making the same argument with this --
Justice Byron R. White: Based on the Sixth Amendment.
Mr. Charles W. Tessmer: On the Sixth Amendment with this exception Mr. Justice White.
And that is that if the rule were applied equally against the state and the defendant equally, that neither one could use him.
And if the rule as I believe it to be in some of those states is that after trial of the other man, he has no interest whether he's convicted or whether he's acquitted, then from many of those states permit him to testify.
We'd have to wait 50 years.
Justice Byron R. White: Yes.
But let's assume right here that in this -- this was in another state what happened here and the defendant offered his codefendant (Voice Overlap) objection.
I suppose you would be making the same argument such that that's an irrational judgment.
Mr. Charles W. Tessmer: By virtue of the concurring opinion in Ferguson against Georgia, I would agree wholeheartedly with that concurrence that that statute should fall.
Justice -- some of the justices felt that the Article 40, 416, Georgia Code should fall even though there was no objection in the trial court to not being sworn.
Justice Byron R. White: I take that your basis is that the Sixth Amendment doesn't overwrite sensible or rational testimonial qualifications statutes.
Mr. Charles W. Tessmer: I would agree with that to some extent, yes Your Honor.
Justice Potter Stewart: (Inaudible)
Mr. Charles W. Tessmer: I would say that -- pardon me?
Justice Potter Stewart: It's the balancing proposition.
Mr. Charles W. Tessmer: The balancing, I would say that the Sixth Amendment, the right to a speedy trial is somewhat relative and this is something that you couldn't automatically say work the constitutional deprivation whether it was six months or three months or a year.
Certainly, it's not as strong as Pointer confrontation, cross-examination, and compulsory process.
Thank you very much.