CALIFORNIA v. BYERS

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Argument of Louise H. Renne

Chief Justice Warren E. Burger: Number 75, California against Byers.

Mrs. Renne you may proceed whenever you ready.

Ms Louise H. Renne: Mr. Chief Justice, may it please the Court.

This case arises on certiorari to the Supreme Court of the State of California and presents the issue of the applicability of the Fifth Amendment privilege against self-incrimination to a state hit and run statute.

In particular, we think the questions presented by this case are one, whether the requirement imposed by a state hit and run statute that a driver involved in an accident must stop at the scene and give his name and address violates the privilege against self-incrimination and two, whether it is necessary to bar use of that information or fruits of that information in any criminal proceeding, in order to sustain the constitutionality of the statute.

The State Supreme Court held that the Fifth Amendment privilege against self-incrimination did apply to the requirement that a driver must stop at the scene of the accident and identify himself and that the constitutionality of the statute could only be sustained if no use of that information or the fruits was made in any criminal proceeding.

It is our position that the Fifth Amendment does not apply to a requirement that a driver must stop and identify himself to the owner of damaged property or to a person injured on the road and that it is not necessary to bar identification evidence or the fruits to that compliance in any kind of criminal proceeding.

The way in which this case arose procedurally, was that a two-count criminal complaint was filed in the Mendocino County Justice Court for the Ukiah Judicial District in California, charging the respondent Jonathan Todd Byers with two misdemeanor violations of the California Vehicle Code.

Count 1 of the complaint charged that the respondent Byers failed to pass to the left safely as he was overtaking and passing a vehicle proceeding in the same direction.

Count 2 of the complaint charged that he violated the California property damage hit and run statute.

Under that statute, a driver is required to stop at the scene of the accident when he is involved in any accident resulting in property damage and give his name and address to the owner or of the property damaged or the driver of the vehicle damaged.

This requirement is similar to the uniform vehicle code requirement and in fact the laws of all jurisdictions in our country impose similar requirements that driver must stop and identify himself.

The purpose of the statute is to protect against financial loss or where similar requirements are imposed in personal injury hit and run statute to ensure that people will not be left lying hurt and injured on the roads.

There is another section, part of the statute 2, Section 202 and that deals in the case where you have unattended property where the driver or owner of the damaged property cannot be immediately located.

In that case, the driver must leave a note on the car giving that same information and statement of the circumstances and notify the local police.

The purpose of that provision is to make sure that when the owner of the damaged property comes to his property, he will know who to contact in the case when he sees the note or if the note has been lost or destroyed, find out who the owner was from the police.

This particular part of the statute has never been raised and questioned in the proceedings below.

Instead from the outset of the case when the demurrer was first filed to the complaint, the basis of the respondent's argument was that the minimal duty to stop and give the name and address to the driver or owner of the property damaged, violated the privilege against self-incrimination.

The Justice Court dismissed the demurrer.

However, when a writ of prohibition was then taken to the superior court, the superior court held that the Fifth Amendment privilege against self-incrimination applied to this minimal duty and that the respondent Byers could not be prosecuted for failing to stop at the scene of the accident.

The people filed a notice of appeal to the Court of Appeal.

The Court of Appeal reversed the decision of the Superior Court.

The Court of Appeal held that the -- it held that the Fifth Amendment privilege against self-incrimination did apply to this identification requirement.

But that the constitutionality of the statute could be sustained if no use were made of the identification evidence or any fruits of the compliance with the statute.

Both parties then filed petitions for hearing with the State Supreme Court.

The State Supreme Court reversed the Court of Appeals.

It agreed with the Court of Appeals to the extent that it held that all drivers must stop and comply with the statute.

It also agreed with the Court of Appeals that the Fifth Amendment applied to the privilege against self-incrimination.

But it further held that the constitutionality of the statute could be sustained if no use were made of that information in any kind of criminal proceeding that might arise.

The court recognized that this was a new doctrine of jurisprudence because until the decision below, this kind of requirement had been uniformly upheld in California and other elsewhere.

So that the court held that fairness required that the respondent Byer should be excused for his failure to stop at the scene of the accident because the respondent could not have anticipated that the court would impose this kind of use restriction.

We respectfully submit that the decision of the State Supreme Court should be reversed and we have three primary reasons.

Justice Potter Stewart: Do you understand that the use restriction would include any reliance by the state on the fact that this was the man who -- this was the name of the man who caused the damage?

Ms Louise H. Renne: Yes Your Honor, this is our understanding of the decision.

Now, we might say that the decision doesn't really say that we are estop from the moment the Fifth Amendment applies from the moment -- from mere observation that the man has stopped.

What the State Supreme Court held was that the privilege applies at the moment, driver is required to stop and give his name and address at the scene of the accident and reasonably believes that compliance will result in self-incrimination.

If I might jump ahead of myself just to give a practical illustration of where I think the court's decision leads us and that case is illustrated by a case now pending in the Court of Appeal in California.

The particular facts of the case are that the petitioner who was in fact an unlicensed driver hit a parked car and stopped in California.

He stopped and apparently the owner of the parked car was in a restaurant or the nearby area and the owner came out and the petitioner gave his name and address to the owner of the vehicle.

Some minutes later while the petitioner was standing there talking with the owner of the damaged vehicle, the police arrived on the scene.

It may have been in response to a call, but for some reason the police arrived on the scene.

The petitioner immediately said to the police, my car hit this parked car and I have been drinking.

The police noticed that the petitioner did appear to be a bit unsteady on his feet and he did smell of intoxicants and advised the petitioner of the imply conscience statute, under which petitioner driver is deemed to have given his consent to a Breathalyzer test.

And as a result of that test and the facts, a misdemeanor drunk driving complaint was filed in the California Municipal Court.

The petitioner argued one, that the state could not introduce evidence of his name and address which he had given to the other driver because that was barred by the decision below.

Number two, but for the statute he would not have stopped and then the police wouldn't have found out, wouldn't have arrived on the scene presumably and he wouldn't have told the police that he was drinking and the results of the Breathalyzer test would not have become known.

The Superior Court, although the municipal court refused to dismiss the complaint, the Superior Court held that under the decision below the information as to the name and address was privileged, the statements to the police were privileged and the results of the Breathalyzer test were privileged, even though under other cases of this Court, that information would not be privileged.

Justice Potter Stewart: So it's your submission General Renne as I understand it that, the decision of the Supreme Court of California in this case means that if a driver damages property and stops along, leaves his name, he first of all of course is not guilty of violation of the hit and run statute and secondly he immunizes himself from any prosecution for any other offense, is that?

Ms Louise H. Renne: That is exactly our position Your Honor.

Justice Potter Stewart: And I suppose a logical extension of that might be -- it could be argued that he also immunizes himself from any subsequent tort liability if it can be shown that it resulted from his identification as a result of his stopping and leaving his name?

Ms Louise H. Renne: Well, I think that this we -- that is our position.

Justice Potter Stewart: The way I have gotten there so far in this case.

Ms Louise H. Renne: Yes, that is correct Your Honor and I think how far you can carry this, you can just perhaps go on forever.

It not only applied -- first of all the lower California courts have extended the decision to the personal injury hit and run statutes.

So that now, any time a driver is involved in an accident, he was assured virtual immunity from criminal prosecution.

Chief Justice Warren E. Burger: The safe thing to do all was just to stop and leave your name and address, isn't it?

Ms Louise H. Renne: That is correct.

Chief Justice Warren E. Burger: And you get an immunity back?

Ms Louise H. Renne: That is correct Your Honor and the purpose of the hit and run statute is not to catch criminals.

The purpose of the statute is for very legitimate reasons either protecting against financial loss or to make sure that people are not left suffering on the roads.

And if in the course complying with this statute, a criminal violation is revealed, we are precluded from doing anything about it and consequently it's our view that any deterrent effect of the criminal laws is completely lost, whereas as is frequently the case, the right to have a license or predicate -- or revocation of a license is the predicated on conviction, we are led into very serious problems in making sure that only careful and confident people are driving on the highways.

It's our position that this -- the decision is wrong.

It's wrong because the statute does not create a substantial hazard of self-incrimination.

It's requirements, merely giving your name and address is akin to identification requirements, it's akin to requirements that have been imposed at any kind of regulatory field.

Justice Byron R. White: Yeah, but there is more -- there is more to it than just identifying yourself.

The fact is that you have to leave your name and address at a place where an accident has happened which is more than that.

It says my name is so and so and I was here, I was driving the car.

Isn't that true?

Ms Louise H. Renne: Yes, that is true Your Honor.

Justice Byron R. White: Now you wouldn't -- would you say that's non-testimonial?

Ms Louise H. Renne: We would urge that it is non-testimonial.

First of all we would urge that --

Justice Byron R. White: A requirement that says, I so and so have just been involved in an accident?

Ms Louise H. Renne: Well, although it is verbal Your Honor, we would say that it is non-testimonial to this extent.

The respondent has conceded number one, that the requirement to stop does not violate the Fifth Amendment, and he hasn't taken issue with our contention that a driver could be required to stop and leave his fingerprint or presumably be photographed and it's our contention that giving your name and address is akin to this kind of identification in fact less cumbersome.

Justice Byron R. White: Well, I would think here you are saying, let's assume that a statute didn't require someone to leave his name and address when he has had an accident, just requires him to leave his fingerprint at the scene, as whose ever fingerprint this is was involved in an accident.

I would think that there would be the same objection just because it involves saying, I whose fingerprint has left here, I was here.

Ms Louise H. Renne: Well, the respondent has not taken issue with our contention.

Of course, it is our position that the Fifth Amendment has never been carried this far.

Even if it would be considered testimonial, certainly the requirement to stop and give your name and address, identify yourself doesn't create a substantial hazard of self-incrimination.

It is not a crime number one, to drive and two be in an accident -- Excuse me--

Justice Byron R. White: Isn't that your better argument than non-testimonial nature of this, that would really doesn't pose any substantial (Inaudible)?

Ms Louise H. Renne: Well certainly a very clear argument in our mind, Your Honor, that this does not create a substantial hazard of self-incrimination.

We stand very firmly on that and that the requirement -- well, I may back track just to make clear of course of being in an accident doesn't mean that you have committed a crime.

It can happen to anybody.

It's a very chance event and since the purpose of the statute is for other reasons and the information required is neutral that this does not create a substantial hazard of self-incrimination.

Chief Justice Warren E. Burger: But let's assume for the moment that it does have overtones of the possibility.

Do you argue that when you take an automobile license you take it upon certain conditions and if you can't -- if you don't comply with those conditions you don't get a license?

Ms Louise H. Renne: Well, that is our position Your Honor that even if there should be any overtones of self-incrimination that the requirement to stop and give your name and address and to be -- the state to be able to use that information later is a valid condition that the state may impose upon drivers.

As a matter of fact, we think that this case can meet the constitutional test of an implied waiver that when a person puts a very dangerous instrumentality under their control, an instrumentality which the statistics show us results in death and destruction comparable to war and when it's also considered that this kind of duty has been imposed upon driver since automobiles were first invented.

It has been assumed that when you are in an accident you should stop that there could even be an implied waiver and for the State Supreme Court to hold as they have held that we cannot enforce the criminal laws or make sure there are only careful and confident drivers are on the highway seems to us is an unwarranted extension of the Fifth Amendment and it's unresponsively need, the recognition of the need despite any assertion of the privilege.

We think that the reading of the State Supreme Court opinion makes clear that the court reached the decision that it did based on this Court's opinions in the Albertson, Marchetti, Grosso and Haynes cases and the Leary cases in which the Court held unconstitutional registration requirements in the areas of communist registration, gambling, firearm and marijuana transfer statutes.

But in those cases --

Justice William J. Brennan: Yes, but I gather your Supreme Court didn't go so far as to say you did not have to leave your name and address.

It said only that, to that extent the state's interest in having the name and address can be satisfied and it accommodated with the privilege by simply denying the use of the information, the name and address in any state prosecution, was that it?

Ms Louise H. Renne: Yes, they but --

Justice William J. Brennan: It didn't go quite so far as we had -- we went in Marchetti, Grosso?

Ms Louise H. Renne: Well, we think that the very fact that it didn't go quite that far Your Honor indicates that the State Supreme Court recognized that these statutes must be upheld insofar as --

Justice William J. Brennan: Well, they recognized that the state interest could be accommodated with the privilege by simply denying the use of the criminal prosecution and yet requiring the personnel involvement in such an accident to leave his name and address.

Ms Louise H. Renne: Yes, and it's our position Your Honor that in coming to conclusion that this balance could be reached that the State was quite unrealistic in coming to that conclusion.

We think that it reached that conclusion because it thought it was compelled to hold the Fifth Amendment privilege applicable to this requirement because of this Court's decisions in the Albertson, Marchetti and Grosso, Haynes cases.

If the Court did not find that the requirement fell within the Fifth Amendment, it then wouldn't have gone on to come to or attempt to resolve the problem by imposing use restrictions.

And in relying we think in anyway upon Marchetti, Grosso and Haynes for the conclusion it reached as to the applicability of the Fifth Amendment, the court was mistaken because we think that this Court did make it quite clear that those cases were dealing with very narrow areas, gamblers, people who had the registered firearms and the very fact of registering the firearms would incriminate them.

We don't have that kind of case at all in the driver accident case.

Justice William J. Brennan: Well except what -- under your State Supreme Court decision, the state does get the name and address, doesn't it?

Now what purpose do you want to use it for except in a criminal prosecution?

Ms Louise H. Renne: Excuse me Your Honor.

First of all, whether or not the state may will get the name and address may depend on the circumstances.

Now in the case where you have attended property, I mean if the driver is right there under the hit and run statute, you only need to give your name and address to the driver and then leave.

And there is no requirement that the owner of damage property notify the police of the accident.

So -- and the court opinion below doesn't --

Justice William J. Brennan: But what the state want the name and address for?

Ms Louise H. Renne: Well the state interest in having a private exchange of information is to protect against financial loss.

Justice William J. Brennan: There is nothing in the Supreme Court holding that affects that state interest, does it?

Ms Louise H. Renne: No, that's --

Justice William J. Brennan: Because then that -- it said that the name and address have to given.

Now what other purpose does state want the address?

Ms Louise H. Renne: Well the other purpose that the state would have -- first of all the state has an interest in any case in knowing who caused accidents or why accidents were caused.

Justice William J. Brennan: That's all satisfied in the Supreme Court decision.

Ms Louise H. Renne: But the other interest is in enforcing its criminal laws, that interest is not satisfied.

Justice William J. Brennan: That's where -- that's the crux of it isn't it?

Ms Louise H. Renne: That is --

Justice William J. Brennan: You want us -- as for purposes of prosecuting and convicting under the state criminal laws and surely that implicates --

Justice Thurgood Marshall: But what about a statute that if you go over 80 miles and hour, you have to give a name and address, does that help in any part?

Ms Louise H. Renne: Well I think that I don't know what the state --

Justice Thurgood Marshall: Well my question is what's the difference?

Ms Louise H. Renne: Well I think there is a quite a lot of difference Your Honor going --

Justice Thurgood Marshall: Insofar as the state is concerned, these are two traffic violations. All the state is interested in I assume with the traffic violation.

You are not interested to damage the car, that's civil, am I right?

Ms Louise H. Renne: That is correct Your Honor.

Justice Thurgood Marshall: What's the difference?

Ms Louise H. Renne: Well I think the difference is that if the statute read that only people driving 80 miles per hour need to stop and give their name and address, then an 80 miles an hour were per se crime that perhaps it could be said in that case that the only state interest was to catch criminals if I understand your question correctly.

But here the purpose of the statute --

Justice Thurgood Marshall: But if you drive 80 miles an hour and strike a car, just takes off the middle piece of thing, just leave the name and address.

Ms Louise H. Renne: That is correct Your Honor.

Justice Thurgood Marshall: But what's the magic of having an accident?

Ms Louise H. Renne: Well the magic of the having the accident is that that triggers the hit and run statute and that --

Justice Thurgood Marshall: Requires him to admit that the he committed the crime?

Ms Louise H. Renne: Well, we know we don't know, whether or not and you never know why an accident was caused.

Justice Thurgood Marshall: Why you are interested?

Ms Louise H. Renne: Well the state has a number of interests.

Justice Thurgood Marshall: I can see the interest of the state in seeing through that citizen of the state who caused damage, who shall be able to litigate, know who did it.

But I don't see the interest of the state in having that name and address for any prosecutorial purpose of any kind.

Ms Louise H. Renne: Well Your Honor I think that the interest of the state in having a name and address -- now that I just make perfectly clear that in this case you are only required to give to a third party, but of course there are other reporting statutes, that are not involved in that case but this interest -- state has a great deal of interest in knowing number one, who is involved in accidents, are they careful and competent drivers.

We may -- as a person is involved in numbers of accidents, he may not be a careful and competent driver.

So it maybe necessary to revoke his license, which is an interest totally unrelated to prosecutorial interest.

We may want to know why your accident is caused, by the accidents -- if it's reported us to --

Justice Thurgood Marshall: Are you interested in the prosecutorial use of it which is the Fifth Amendment?

Ms Louise H. Renne: The Fifth Amendment, that's correct.

Justice Thurgood Marshall: That's my interest and the fact that you want statistics that doesn't bother me at all?

Ms Louise H. Renne: Well you --

Justice Thurgood Marshall: And the fact that you want to prosecute this man, does worry me?

Ms Louise H. Renne: Well, it seems to me Your Honor that if in any regulatory area, there are going to be criminal statutes.

It's presumably the legislature's view or Congress' view, if it's a federal regulatory area, the criminal statutes have some deterrent value on the behavior of the regulated person.

Now, if the state or the Congress, for example can't enforce income tax laws, if the criminal statutes cannot be enforced as a criminal matter or as a practical matter then there is no deterrent effect.

Justice Thurgood Marshall: Criminal statute here is failure to leave your name and address?

Ms Louise H. Renne: It's correct.

Justice Thurgood Marshall: That's the statute.

Ms Louise H. Renne: That is the statute.

Justice Thurgood Marshall: So if you leave your name and address, is that for the benefit of the state because I thought you said that if you give it to the guy with the car, the state will never know about it?

Ms Louise H. Renne: That's correct Your Honor the state may not.

Justice Thurgood Marshall: But what good is that to the state, no good?

Ms Louise H. Renne: Well, but the problem is that the --

Justice Thurgood Marshall: Right?

Ms Louise H. Renne: No not -- yes when it's just given to the one driver then we may not find out about it, of course that also --

Justice Thurgood Marshall: You won't find out about it to prosecute the man?

Ms Louise H. Renne: Well, no the real problem Your Honor is that, if we find out about it, if the police is happened by, which is what happened in the case in Stockton, then -- and they discover either the man was drunk or he was an unlicensed driver, then because the State Supreme Court has said that the privilege applies at the very moment, a person is required to stop and identify himself.

If the privilege applies at that very moment, then if we happened to find out a criminal violation is revealed at that moment, there is nothing we can do about it.

Justice Thurgood Marshall: In your Stockton case what do you need his name and address for, you said the police picked him up?

Ms Louise H. Renne: But that --

Justice Thurgood Marshall: And he was (Inaudible) drunk.

So why you need this little slip of paper for?

Ms Louise H. Renne: Well the reason --

Justice Thurgood Marshall: You need it to prosecute him?

Ms Louise H. Renne: Well the reason the driver stopped Your Honor was, because he hit a car.

Justice Thurgood Marshall: Well if he (Inaudible) without the statute, he would have stopped.

Ms Louise H. Renne: Well he alleged that he stopped because of the statute.

Justice Thurgood Marshall: That is definitely not this case.

Ms Louise H. Renne: No, it's not this case Your Honor.

But because this man never stopped of course, but in any case if the privilege applies at the very point a man is required to stop, then the state can really cannot do anything about it if a criminal prosecution should be revealed.

Justice Thurgood Marshall: (Inaudible)

Ms Louise H. Renne: Well --

Justice Thurgood Marshall: (Inaudible)

Ms Louise H. Renne: It said you can't use that information or the fruits of the compliance.

Now the compliance means from the minute you stop to, so that we can't use the driver's name and address.

Well, we submit a name and address just are not incriminating, there is nothing incriminating about driving.

There is nothing about being -- incriminating about being a driver.

If a criminal prosecution is warranted, it's up to the state to show that an accident was caused any -- by criminal conduct.

Justice Potter Stewart: General Renne, when a person gets a license to drive on the roads of your state, is there -- are there any explicit conditions imposed or anything, any application he signs insofar as obeying the laws of the state, anything along those lines?

Ms Louise H. Renne: Well the -- I would have to qualify my opinion on this Your Honor, there certainly is, there is not any kind of --

Justice Potter Stewart: Any kind of expressive waiver.

Ms Louise H. Renne: Agreement that he would stop.

No, there is not an express waiver of any kind, but it would be our position that this kind of duty has been upheld.

Justice Potter Stewart: As an implicit waiver, is it?

Ms Louise H. Renne: Yes, I am sorry as an implicit wavier, yes.

I think it should be perfectly clear --

Justice Potter Stewart: Hess against Pawloski has maybe some slight relevance, does it?

Ms Louise H. Renne: I think Hess v. Pawloski has a very great deal of relevance Your Honor.

I think there are other decisions of this Court as our recalling Illinois versus Allen last year, the Court held that a defendant by his conduct can waive his right to be present at a jury -- before the jury or court hearing.

I think the driving is like any other area of regulation.

There are certain minimal requirements that must be met, certain information that must either be given to a private individual because of a regulatory interest or to the government.

And where the information is neutral, and it has legitimate regulatory purposes, the Fifth Amendment doesn't apply.

Excuse me.

Justice Harry A. Blackmun: Mrs. Renne I have lost as little bit as to what happened under count one and the offense under 21750.

Can you tell me?

Ms Louise H. Renne: Well, as a practical matter the case was never prosecuted, Your Honor, because we have always been on appeal and so meanwhile the prosecution on count one has been held on abeyance so there has been nothing that's happened.

Justice Byron R. White: But it would in affect frustrated by the affect of this decision, I would think?

Ms Louise H. Renne: I would certainly think so Your Honor, we are in very difficult position.

Justice Byron R. White: That's the only source of your information.

Ms Louise H. Renne: Well of course in this particular case, in this particular --

Justice Byron R. White: For compliance.

If there had been compliance, it would be frustrated.

Ms Louise H. Renne: Yes, we believe it would frustrated in the decision --

Justice Byron R. White: here there was no compliance, that's right.

Ms Louise H. Renne: That's correct, there are -- there may well be areas where a theory of use restrictions have very valid purpose and can accommodate a government's need for information, and the privilege, but the problem in this case is where accident occurs, it's a chance of thing it occurs, on this -- the duty must be performed on the spot and if the privilege applies, the minute there is an accident, the minute there is a duty to stop and give your name and address, we think we are placed in a virtual impossible situations as far as undertaking any kind of criminal law enforcement.

Excuse me.

Justice Harry A. Blackmun: Now your opposition tries, seeks I think to draw a distinction between the death or injury statute and the property damage statute.

Do you feel there is any validity to that distinction that he attempts to draw?

Ms Louise H. Renne: Well, I think Your Honor that holding of one court particular, Bailey versus Superior Court which is cited in the respondent's brief and in our reply brief maybe the answer to your question at least one distinction the California courts have tried to draw.

Justice Harry A. Blackmun: I want to know what you think?

Ms Louise H. Renne: Well I think it's very difficult to draw any kind of distinction.

Certainly you cannot draw a distinction insofar as giving your name and address is concerned.

You cannot draw a distinction between the personal injury or the property damage hit and run statute and the California courts have so held.

Now in the Bailey case that Court attempted to draw a distinction when it said that the duty to stop and render aid and assistance was non-testimonial and that you could draw a distinction along those lines whether or not that distinction would hold water, should that case or a similar case come before the state Supreme Court is open to question.

I think it's very difficult kind of distinction to pursue.

Justice Harry A. Blackmun: Certainly other state hit and run statutes often do not separate the death and injury portion from the other portion?

Ms Louise H. Renne: If I might add Your Honor that every time from the years ago when hit and run statutes were attacked under this grounds, they have been uniformly upheld.

Only one reported case ever held a hit and run statute unconstitutional, and it did so on that ground, on the ground that the driver was required to stop and give a full report of the accident.

That was Rambrandt (ph) versus City of Cleveland.

But in that case the Court was very careful to draw a distinction that anything less than that was not violative of the privilege against self-incrimination.

Recently the state court of -- Supreme Court of Illinois held their statute constitutional under the Fifth Amendment also.

Justice John M. Harlan: As I read your California Supreme Court opinion (Inaudible)

Justice Hugo L. Black: May I ask one question?

Ms Louise H. Renne: Yes Your Honor.

Justice Hugo L. Black: What if California had a law that required burglars to leave calling cards at the homes they have burglarized stating when they were there, what would you say about that?

Ms Louise H. Renne: I would think that that would be an unconstitutional statute to the extent that it requires only burglars to stop.

I mean if the purpose is to have only burglars stop.

Justice Hugo L. Black: (Inaudible)

Ms Louise H. Renne: And in a home that it would seem to me that that statute probably would be unconstitutional, because the only purpose of that statute would be to catch burglars, burglary is per se a crime.

It occurs in a home.

These are all very distinguishing features from the case we have presented here.

Driving is not a crime.

Justice Hugo L. Black: But (Voice Overlap) they can tell they were there

Use evidence against them I was simply asking you to point out real difference of (Inaudible).

I am not saying which way I'm (Inaudible), you apply to other crimes, raise several question in each one?

Ms Louise H. Renne: Well, I think that it might raise questions.

You would have to, depending on ask what is the purpose of the statute?

Why do you want it?

Of course drive, I think, the simple answer is that driving just is not a crime.

Justice Hugo L. Black: What if they just wanted to use against him, by the state in each instance.

I believe the same rule would apply, wouldn't it?

Chief Justice Warren E. Burger: Mrs. Louise, one difference --

Ms Louise H. Renne: The only purpose was to --

Chief Justice Warren E. Burger: There is one distinction between what Justice Black was asking you about is that robbing banks is inherently illegal and driving automobiles is not. One is licensed by the state and the other is not?

Ms Louise H. Renne: That's correct.

Justice Hugo L. Black: Well, is it inherently illegal?

I had an idea that this is illegal to go to the law and made itself.

Chief Justice Warren E. Burger: I don't think --

I think it falls under the category of malum not in per se, but malum in se in the Common Law.

Ms Louise H. Renne: That's correct, Your Honor.

Justice Hugo L. Black: But we are not strongly going with the Common law.

Chief Justice Warren E. Burger: Mrs. Renne, I think we won;t ask your friend to take two or three minutes now.

We'll let you begin fresh after lunch.[Luncheon Break]

Mr. Poulos would you proceed.

Argument of John W. Poulos

Mr. John W. Poulos: Mr. Chief Justice and if it may please the Court.

Initially, I'd like to point out that there are three areas that I'm going to discuss, but I'm not going to take them up in the order in which I now present them.

The first, is that there has been a incomplete statement of the facts.

Secondly, there has been an erroneous, completely erroneous characterization of California Law after the Byers decision and thirdly, the point of the implied waiver, we've heard discussed here today was raised for the first time in the reply brief.

Now, this has been argued before and was before both the California Supreme Court and the California Court of Appeal, but I did not have the opportunity to present my position on the doctrine of the implied waver before this Court, because it came before this Court the first time in the reply of brief.

But I will comment, I hope somewhat extensively on that theory in a moment.

The underlying facts involved in this case are really quite simple.

They start off this, Byers was driving a vehicle down one of this roads, the public highways in the State of California.

He was following a vehicle in front of him, and while attempting to pass the vehicle in front, he made what is known as an unlawful pass or unsafe pass to the left, a violation of California Vehicle Code Section in question.

As a result of that failure to make a pace -- a safe pass to the left, there was a collision.

The collision caused property damage and the property damage which was caused as result of that accident, is the property damage that triggered the Hit and Run Statute here in question, California Vehicle Code, Section 2002 (a).

Now, at the trial, in the prohibition proceedings there was indeed a stipulation to that effect.

There was also a finding, in the Court's findings of fact and conclusions of law, in connection with the prohibition proceeding, indicating that indeed was the fact.

And so that what we have here is the issue as to whether or not the State of California can by the use of the Hit and Run Statute force a man to make a statement which would incriminate himself for indeed, it was criminal action on the part of Byers which triggered the reporting requirement of the Hit and Run statute.

Every California case --

Justice Hugo L. Black: The state forced him to do that?

Mr. John W. Poulos: Forced him by virtue of the statute.

Justice Hugo L. Black: But that's enforcement?

Mr. John W. Poulos: Well, but for the privilege against self-incrimination, it would have forced.

Justice Hugo L. Black: But he could have objected, he didn’t have to (Inaudible)

Mr. John W. Poulos: And that’s precisely what he did to, he did not comply with the statute, raising the Fifth Amendment privilege.

The action was then filed two days later in the Justice Court, simply two days after the accident there was a complaint filed in the Justice Court alleging a violation of the Safe Pass statute and also a violation which is incidentally Vehicle Code Section 21750, and in a count two the violation of the California hit and run provision, a demur was interposed and --

Justice Potter Stewart: Does it appear how they -- since he did not obey the hit and run statute, does it appear how they knew -- how the state knew who he was when the trial was --

Mr. John W. Poulos: Well, I would have to speculate of the record.

On the record itself, it does not appear, but there are million of ways of finding out who is driving an automobile other than compelling it out of his own mouth.

Justice Byron R. White: Like the license plates?

Mr. John W. Poulos: Like the license plates.

Justice Byron R. White: You think that would be barred too?

Mr. John W. Poulos: No, I do not.

Justice Byron R. White: You could be forced to --

Mr. John W. Poulos: We are forced to drive automobiles with license plates.

Justice Byron R. White: Even though you may be in an accident and incriminate yourself for identifying yourself.

Mr. John W. Poulos: That’s correct and I am going to get back to that point in a minute is the reason that I feel that, that is true.

Every California Court from the Superior Court to the Court of Appeal to the Supreme Court of California has held that there has been a violation of the Fifth Amendment privilege against self-incrimination.

Under the facts of this case, the only argument is that the Superior Court said, I am reading Albertson versus Subversive Activities Control Board for as you recognize Marchetti, Grosso, Haynes and Leary had not been decided at the time of the prohibition proceedings in the California Superior Court.

At that point, the Court said that the Fifth Amendment privilege was a complete defense.

There was an appeal, the appeal went to the Court of Appeal of California, the only difference really between the decision of the Superior Court and decision of the California Court of Appeal was that the California Court of Appeal seized upon the concept of use restrictions.

Now the concept of use restrictions was not even argued before the California Court of Appeal in any kind of meaningful sense.

It wasn’t raised in the briefs and it was only collaterally touched upon.

The decision came down, using rather vague terms, the reference to the Court of Appeal citation is found in the petition for writ of certiorari, the exact citations skips of my mind at the moment, but if the Court is to look at that decision, you see that the use restriction concept really did at that point, give someone a fear of the so called immunity bath.

For that reason both counsel for the petitioner and the counsel for the respondent, petitioned the Supreme Court.

There was a dual reason behind the respondent.

It was sought to be urged a concept of fairness, but if this was indeed a new concept of -- in the jurisprudence of the State of California, namely the creation of use restrictions then he should not be criminally punished for having agreed with all of the members of the California courts that the Fifth Amendment was applicable.

The Court granted the petition for hearing and in fact it granted both petitions for hearing.

There is quoted in the reply brief what appears to be a concession on my part.

I want to place that concession in proper context for I do not concede now that it is a concession.

If the Court compares the language of the Court of Appeal decision you will see why I made the statements in the petition for a hearing before the California Supreme Court as broadly as I did.

But the issue of the use restrictions of course was one of the main issues before the California Supreme Court and it was fully argued.

The California Supreme Court’s decision in the case is substantially different than the use restriction concept used by the Court of Appeal below.

At this point, the California Supreme Court created a limited concept of use restriction.

The Court clearly states in that case that it is only the information which is procured as a result of the compliance with the hit and run statute which is -- which cannot be used.

There is no concept of an immunity bath used by the California Supreme Court.

The language is in three or four different places in the opinion clearly indicating that the only thing that is within the use restriction is this concept of the information actually compelled.

Now, there are two California Court of Appeal cases subsequent to Byers which clearly shows that Byers has not produced that immunity bath in California that the Attorney General would have you believe, simply is not so.

The first citation is found in both, it was first found in my brief, the respondent's brief and later it appears on the reply brief, it's Bailey versus Superior Court of Ventura and its 4 Cal. App. 3d 522.

Unknown Speaker: What's that?

Mr. John W. Poulos: 4 Cal. App. 3d 522, 84 Cal. Rptr. 436.

Now, we were not belaboring that case.

That is a case that came up after the decision in Byers.

It was a case dealing with Section 2001, rather than 2002 of the California Vehicle Code.

The difference being 2001 is that Personal Injury Hit and Run Statute, 2002 is the Property Damage Hit and Run Statute.

Well, I think there is a difference and the reason I have pointed out that in the brief was not that there is a difference in the reporting requirement.

For both the statutes require you to stop and to characterize yourself, if you will, as being the driver of the adverse vehicle and in that sense they are both self-incriminating.

For under the facts of this case for example, if Byers had indeed stopped and had characterized himself as the driver of the vehicle who had sideswiped the other automobile, he would have been supplying the prosecution with one of the elements of the offense, plainly and simply --

Justice Harry A. Blackmun: (Inaudible)

Mr. John W. Poulos: Pardon me?

Justice Harry A. Blackmun: Anything more than identity?

Mr. John W. Poulos: Well that isn't identity.

I think that's the problem that we have been running through in this case.

This is not an identity case.

I think the question posed by Mr. Justice White clearly shows that it is not, but let me read you from another California case for just a moment.

Chief Justice Warren E. Burger: Mr. Poulos would you clear up why this is more than identity.

We'll perhaps understand the case better?

Mr. John W. Poulos: Yes, Your Honor and that's why I want to cite from this case before you.

A mere identity case is a case in which a citizen is -- for example, a citizen walking down the street is stopped by the authorities and asked, what is your name?

There are no circumstances requiring him to characterize himself.

He doesn't say I am driver of a vehicle who has just violated the Vehicle Code or I am not a burglar or a murderer or a speeder, nothing like that is required.

But, the Vehicle Code Section, the herein question does require you to do that.

Chief Justice Warren E. Burger: Well, would you say if it required you to do more than -- no more than identify yourself it would be alright?

Mr. John W. Poulos: Of course, that this doesn't reach that point.

Chief Justice Warren E. Burger: Well, but that's the center --

Mr. John W. Poulos: I think that if you were simply walking down the street and there was only --

Chief Justice Warren E. Burger: We are only dealing with drivers now and automobiles, not with pedestrians?

Mr. John W. Poulos: Well, but this --

Justice Byron R. White: (Inaudible) when you leave your name on the site of accident, you are saying I was here and I was involved in the accident?

Mr. John W. Poulos: Well, I agree with that.

I don't think, you couldn't require constitutionally I submit, under the facts of this case a mere identity.

Under the facts of this case because it isn't the fellow walking down, he is in suspicious circumstances.

The California Supreme Court specially found that.

They said there was a substantial correlation between being a driver involved in an accident and have contemporaneously violated one or more sections of the California Vehicle Code.

Justice Harry A. Blackmun: Counsel, are you saying that being involved in an accident equates with some kind of Criminal Act?

Mr. John W. Poulos: I cannot say that it is equated but nor has this Court ever required an equation.

There -- what we are talking about here is a substantial correlation and the California Supreme Court found that substantial correlation in almost words, I am not purporting to quote but --

Justice Byron R. White: Counsel you don't have stroke down the statute (Inaudible) --

Mr. John W. Poulos: No, no.

Justice Byron R. White: All you have to say there is a complete correlation in this case?

Mr. John W. Poulos: There is complete correlation in this case.

Justice Byron R. White: And what he did (Inaudible) that he refused to leave the statement behind and say that he did it?

Mr. John W. Poulos: I agree with that --

Justice Byron R. White: In that --

Mr. John W. Poulos: -- that is argued, that position really is argued in our brief, but I think this case even, even goes beyond that point.

Justice Byron R. White: Where is the Criminal Act here?

Mr. John W. Poulos: The violation of Vehicle Code Section 21750 which was failure to pass to the left at a safe distance.

Justice Harry A. Blackmun: (Voice Overlap) when you say this?

Justice Thurgood Marshall: He didn't have admit that.

All he had to say was I was involved in an accident?

Mr. John W. Poulos: No, Your Honor.

No, Your Honor, that isn't.

People --

Justice Thurgood Marshall: 2002 is driver of any vehicle involved in an accident (Inaudible)

Mr. John W. Poulos: Well, Your Honor, may I read for you how the California Courts have construed that Section.

The California Courts getting back to this case --

Justice Thurgood Marshall: Well, I mean, are your appealing from this opinion, this judgment of the California Court?

Mr. John W. Poulos: No, Your Honor, but I am trying to dispel any idea that this is just simply an identification case, it is not.

Justice Thurgood Marshall: Well, suppose there is an accident and the police come up and say, give me your driver's license, you don't have to give him?

Mr. John W. Poulos: No, I don't think you do.

Justice Thurgood Marshall: Well, you don't. You want that statute to go through.

Mr. John W. Poulos: If you are in the situation where the statute requires you to -- if you are the driver of a vehicle.

Justice Thurgood Marshall: Does California have a statute which require you to show your driver's license?

Mr. John W. Poulos: I can't answer that, Your Honor.

Justice Thurgood Marshall: Wouldn't make waves -- [Laughter]

Mr. John W. Poulos: Well, if you put it that way, no.

But, I would again like to refer to this case.

It says thus under the facts peculiar to this case, we find no error in the Court's instructions that to comply with section 2001, now this is the personal injury, but the wording, the relevant wording is exactly the same.

Defendant was under a duty not only to identify himself as he did, but also to identify himself as the driver of a vehicle involved in the accident.

So that it is not simply an identity case, but it is a case where you require the defendant to characterize himself vis-vis a burglar, vis-a-vis a person who has been the driver of an offending vehicle.

Justice Harry A. Blackmun: Isn't that really to characterize himself as the driver of the vehicle involved in an accident.

Mr. John W. Poulos: Yes.

Justice Harry A. Blackmun: Is that criminal?

Mr. John W. Poulos: I would venture a guess that it is most cases.

In most cases, there is no doubt a high correlation between being a driver in the accident, being the driver involved in an accident and a violation of one or more sections of the California Vehicle Code.

The California Supreme Court so found and certainly it's in an admirable position to be able to do that.

Justice Harry A. Blackmun: Then you come up with a supposititious case where you would not have the same result as you pin on this factual result, this set of facts on the California Case statute.

How could you ever have a situation where on theory it is not (Inaudible)

Mr. John W. Poulos: Of course, you really wouldn't want it, you don't need one, because the operation of this --

Justice Byron R. White: What about the driver of the other car?

Mr. John W. Poulos: Well, but there is a certain genius about this decision and the genius is this, that it preserves exactly the States interest in securing the information.

If there has not been the contemporaneous violation of another Code section, there is compliance, there is no need to impose, use restrictions, because they are not needed.

There hasn't been any self-incrimination.

But if in fact, there has been and the Court says there is this high correlation reaching enabling the court to reach the conclusion that there is a real and substantial risk of self-incrimination involved regardless of the facts, regardless of whether or not Byers in fact did the particular act.

There is the substantial risk of self-incrimination.

Chief Justice Warren E. Burger: Where did the Supreme Court of California get this correlation? Who said so?

Mr. John W. Poulos: Well, the Supreme Court of California said so --

Chief Justice Warren E. Burger: Well (Voice Overlap) --

Mr. John W. Poulos: -- and it gives --

Chief Justice Warren E. Burger: Did they just pull it out of the air or it is the correlation, the correlation between hit and run drivers in criminal activity?

Mr. John W. Poulos: I think that the California Supreme Court could take judicial notice of the fact that there is indeed a high correlation in the State of California between -- between being involved in an accident which is what they said.

Being involved in an accident and there being a substantial correlation between that and having violated one or more contemporary --

Chief Justice Warren E. Burger: Well, Mr. Justice White just asked you, does that apply to both drivers?

Mr. John W. Poulos: It certainly would apply to both drivers.

Chief Justice Warren E. Burger: And the correlation is the same as to both?

Mr. John W. Poulos: Well, no.

All you are telling me that in a two-party case, one may or may not.

Now, we don't know, that -- you can't infer that there is a 50% probability.

We all were familiar with instances in which both vehicles indeed have been at fault, that's not uncommon.

In fact, that maybe more common than the situation in which there is one at fault.

But I suspect that and I submit to the Court that the California Supreme Court is in a much better position to assess the working of those rules in California than as this Court.

Chief Justice Warren E. Burger: Well, I don't see that they have any basis for any judicial notice of any correlation whatsoever unless there was an evidence in the case suggesting that some study had been made, a survey had been made and this is the result?

Mr. John W. Poulos: I don't --

Chief Justice Warren E. Burger: It is pure speculation?

Mr. John W. Poulos: Well, we call things pure speculation and sometimes when we don't understand exactly why the court did what it did.

We have things called policy facts.

Every rule of law is based upon a particular outlook on the universe and when we are litigating that particular fact, we have a tendency to say well or we do say that the facts -- that the facts supporting that legal or supporting that conclusion have to be in the record.

But, that isn't the kind of a fact that is normally litigated.

That's what we would normally refer to as a policy fact, a fact that the Court is in a position to know and I submit that, that's a proper function of the judicial process.

Justice Byron R. White: Let's assume the driver -- the car driver (Inaudible) and just he is getting out of the car some (Inaudible)

Now he is under the obligation to report that accident (Inaudible)

Mr. John W. Poulos: Well, he is in -- depending in California on a number of things, if the accident cause damage more than $200.

Justice Byron R. White: Well if it costs money then --

Mr. John W. Poulos: Yes, he has an obligation --

Justice Byron R. White: And now do you think that he can claim the privilege?

Mr. John W. Poulos: Yes, but he can claim.

Justice Byron R. White: Simply no, he would have absolutely no information that he --

Mr. John W. Poulos: If he is going 80 miles an hour.

Justice Byron R. White: (Inaudible)

Mr. John W. Poulos: Oh!

Oh no, I am sorry.

I misunderstood your question.

The fellow that's parked has an obligation to report.

Justice Byron R. White: Well, what if he doesn't?

Mr. John W. Poulos: Well, it's technically I believe unless --

Justice Byron R. White: Is he privileged not to report (Inaudible)

Mr. John W. Poulos: No.

Justice Byron R. White: Because what?

Because he has no fair information that he might be involved?

Mr. John W. Poulos: Exactly.

Justice Byron R. White: And you say the difference between your case is the man have reasonable ground (Inaudible)

Mr. John W. Poulos: Precisely.

Now you --

Chief Justice Warren E. Burger: Is there any review of his appraisal of that situation?

Mr. John W. Poulos: Is there any review?

Well you get it in -- you got it in this case, namely there is a criminal charge filed against him and there is a determination judicially as to whether or not the privilege applied.

Chief Justice Warren E. Burger: We can change the situation just a little bit since we are getting in the hypothetical.

Suppose there is a collision of two moving cars on road and the one in the position, the posture of of your client who believes he is in -- has this fair anticipation of some criminal charge decides to stop.

But, in the meantime one of the passengers or the driver of the car has already taken note of his license number, but nevertheless they both stop, pull off the road. He complies with the statute under this decision of the Supreme Court of California, may they use the evidence against him?

Mr. John W. Poulos: Which evidence?

Chief Justice Warren E. Burger: The evidence that he stopped and that he --

Mr. John W. Poulos: The evidence from the license plate?

Chief Justice Warren E. Burger: No, may they use any evidence about this accident against him?

Mr. John W. Poulos: Yes, they may use all evidence.

Chief Justice Warren E. Burger: And why is that?

Mr. John W. Poulos: Other than the evidence that was compelled from him by virtue of the hit and run statute.

Chief Justice Warren E. Burger: How did they find that by a fact finding in each case?

Mr. John W. Poulos: No, the statute tells you very clearly what is compelled and what is not and the Court looks and that's really the holding of the Bailey case and of this other case that I -- there are two other cases or one other case that I think the Court really ought to look at.

Chief Justice Warren E. Burger: What was compelled from him that was not already known the driver of the other car, namely that he was in the automobile and that he was driving and that he had an accident?

Mr. John W. Poulos: The touchstone of the Fifth Amendment isn't, isn't what -- isn't, you can only incriminate yourself if no one else knows.

Your Honor the touchstone of the Fifth Amendment is it can't come from my mouth.

If I were to rob someone with a gun --

Chief Justice Warren E. Burger: Don't you think if you represent and you would undertake to make the claim that, that's the only way that they found out about him is the reporting, the fact that he stopped?

Mr. John W. Poulos: Well, one could make that claim, but as the Court will see from these subsequent California cases the claim will not be heeded, because they are in a situation where you can constitutionally require the fellow to stop, at the scene of the accident.

The Bailey case says, you can compel him to stop at the scene of the accident, you can compel him to render assistance to the injured party, but you may not compel him to speak his own guilt, which in essence is what the statute requires.

Now that they --

Chief Justice Warren E. Burger: But you are then equating, speaking his own guilt with the fact that he discloses his name and that he was the driver of the car?

Mr. John W. Poulos: Yes, which the California Supreme Court says is that he of course, under the facts of our case, there was no question.

He knew that if he characterized himself as the driver of that vehicle, he would be admitting one of the elements of the crimes, no question about that under the facts of our case. He was prosecuted for it.

There was no question that he did violate 21750, and if he did stop and did give the information he would be incriminating himself.

Now it is the hypothetical person, the person who is just going down the road, who would also come within the purview of the statute I assume, under a theory that there is such a substantial correlation that the statute is aimed to the select group of people inherently suspected of crime because of the substantial correlation, but that's really not our case.

Chief Justice Warren E. Burger: Well, you are saying that then you are not in the kind of a category that Marchetti and Grosso cases?

Mr. John W. Poulos: No, I think we are distinctly in that category of case.

The distinction being here that there is -- that the court found that there was this substantial correlation.

Finding the substantial correlation, it is difficult to distinguish this case from Marchetti, Grosso, Haynes and Leary.

One could -- the Attorney General argues that there has been some kind of a new standard applied.

These are magic words.

We don't decide cases upon whether or not the Supreme Court incants (ph) the right formula The purpose of that formula is an order to determine that there is a real and substantial risk of self-incrimination and that there was in this case.

Well, I have only a short period of time left and I wanted to talk for a moment about this doctrine of implied waiver.

I don't think that doctrine of implied waiver raises a Federal question before this Court.

The reason I say that is that this Court, I am assuming were recognized but the doctrine of implied waiver is a legal doctrine, has nothing to do with the facts, isn't a factual thing at all.

It's a legal fiction and the effect of the legal fiction is to create a substantive rule of law.

When you say someone is impliedly waived to something that is really in effect a substantive rule of law.

The substantive rule and law in California, is for the California courts or the California legislature to decide.

It only would become a federal question if and only if the courts first decided that there was in fact such an implied waiver, then the constitutional issue would attach, as to whether or not in fact this was constitutionally permissible.

But under this case, all of the courts, the Court of Appeal expressly refused to find implied waiver here.

There is no basis for it in either a California statute or a California case law.

Secondly, the California Supreme Court said the same thing.

They called it “unattainable” and again, the Court of Appeal in the Bailey case has held the same thing.

So I don't think that the idea of implied waiver presents this Court with any federal question in this case.

It's really a red herring.

Again --

Unknown Speaker: (Inaudible).

Mr. John W. Poulos: In a license revocation proceeding?

Justice Byron R. White: Yes, they appeal to court (Inaudible) forbidding the use of the evidence in criminal case.

Now, let's assume in a judgment applied to the statute (Inaudible) will that proceeding revoke your license?

Mr. John W. Poulos: That's a difficult question.

I suppose the answer to that logically would be yes, and I don't think this --

Justice Byron R. White: (Inaudible)

Mr. John W. Poulos: Well, no.

But you know this Court has said for example in Garrity and Broderick, and it's even been applied in cases of the private forfeiture of property.

Justice Byron R. White: (Inaudible) statement of licensees.

Mr. John W. Poulos: No, I really don't see that as the issue in the case.

Justice Byron R. White: (Inaudible).

Mr. John W. Poulos: Well, I'm not sure that it does.

I'm expressing doubt about that case.

That isn't our case, and I can see competing interests where one classically might say that the privilege against self-incrimination doesn't apply in that kind of situation, but the reasoning would be quite different.

The reasoning would be this that that goes to the license which permitted you to drive in the first place and it's quite different really to say that a state couldn't use it in the license revocation proceeding then it is --

Justice Byron R. White: Or that you haven't waived your (Inaudible)

Mr. John W. Poulos: Well, yes, but that's a little different.

I suspect the California Court might, Your Honor reach that result of implied waiver in that kind of a revocation hearing, but, you know, that I could see the court legitimately doing that.

Justice Hugo L. Black: May I ask you one question?

Let's suppose that this thing had occurred, an accident had occurred on the first day of October, 1969.

A week later police, chief of police rode him and said there was an accident down at a certain place, and a certain time, and the man was killed.

We want you to ride write us now, whether or not you were the man driving the car that killed him.

Could he be compelled after that?

Mr. John W. Poulos: No.

But, that doesn't meet Marchetti, Grosso, Haynes, and Leary.

That's the basic philosophy behind the Fifth Amendment, the powers --

Justice Hugo L. Black: Suppose, they didn't ask him to tell all the details, but they asked him to give enough, although, the man was not known --

Mr. John W. Poulos: Well, Hoffman --

Justice Hugo L. Black: Just enough to put them on the trail and get him.

Mr. John W. Poulos: Well, the Hoffman versus The United States case followed, and Malloy versus Hogan, there's an innumerable -- well there's a complete line of cases, using the link in the chain of evidence test.

Yes, indeed they supplied him, or the sheriff went to the hypothetical required him to supply evidence which will provide the prosecution with the link in the chain of evidence since it's permitted.

Justice Hugo L. Black: What's the difference in making him give an answer a week later insofar as the Fifth amendment is concerned, making him give the time the accident occurred?

Mr. John W. Poulos: I see none, and that's why I think there's a whole section in our brief saying, we don't need the Marchetti, Grosso, and Haynes line of cases, but this is a patent violation of the Fifth Amendment privilege under prior case law.

Justice Thurgood Marshall: What about the license tag?

Mr. John W. Poulos: About the license tags?

I think that the state can require a vehicle to have license tags.

Justice Thurgood Marshall: And that they can use all of the information that's on the registration of the car.

Mr. John W. Poulos: Yes.

Justice Thurgood Marshall: What's the difference?

Mr. John W. Poulos: That doesn't, yeah on its face the first significant distinction is simply this.

There is never there a requirement of testimonial compulsion which has been this Court's, one of its touchstones of determining whether or not the Fifth Amendment does apply.

This is a case -- the case at bar is one of testimonial compulsion.

The case that you propose is not.

Justice Thurgood Marshall: But why can't I say like and I am not going to give you my address because some time in future (Inaudible)

Mr. John W. Poulos: Well, because I don't think that presents a real and substantial risk of self-incrimination.

Justice Thurgood Marshall: But when I give you my address, so you can come and pick me up, when I have that accident?

Mr. John W. Poulos: If you have the accident.

I think is --

Justice Thurgood Marshall: (Inaudible).

Mr. John W. Poulos: Well, but maybe by the fact that you give me your address, you'll be a better driver.

Justice Thurgood Marshall: I just -- what I am worried about frankly is, if you can get this information, by the means of your tags, your driver's license or any other information, what's wrong with -- it means that you have given from your own mouth to quote you?

Mr. John W. Poulos: Because --

Justice Thurgood Marshall: From your own mouth or I am wrong, your own handwriting on the application?

Mr. John W. Poulos: There is still a crucial difference.

Neither instances of your hypothetical require anyone to characterize himself.

You aren't saying to the police authorities, I was the driver.

That is a case of identity where you are talking about the license plate numbers and that's why I thought it was crucial for us to explore that from the first.

There is that crucial distinction between an identification requirement and one which requires you really to characterize yourself within a criminal context.

Chief Justice Warren E. Burger: But then, would it be safe to taking it from your conclusion, even though it isn't this case that you would agree that if all you had to do is stop and leave your name, nothing else, just your name or your license number, that would not be a -- present Fifth Amendment problem?

Mr. John W. Poulos: No, I think that presents the Fifth Amendment problem.

Chief Justice Warren E. Burger: Then, why do you say that you make the distinction between something which involves only identification, wouldn't that be more of an identification?

Mr. John W. Poulos: If someone who is -- if it required everyone who was involved in the accident, the drivers, the riders, everyone who were involved in the broad sense and whether it was a driver or a rider or a witness to give his name and address.

I think that is a substantially different problem than we have before us.

Chief Justice Warren E. Burger: Then it is -- what you are saying I take it to make sure I have it correctly that if it required every passenger in the car, including the driver to leave his name and address, it would present no Fifth Amendment problems?

Mr. John W. Poulos: (Inaudible) only to automobile accidents.

Chief Justice Warren E. Burger: Any contact between two moving vehicles or one moving vehicle and a stationary vehicle or a person?

Mr. John W. Poulos: No, I think there is a Fifth Amendment problem there.

I don't think it's of the magnitude that the problem we have discussed, it's quite distinguishable.

Chief Justice Warren E. Burger: How does a person who is a passenger in the car incriminate himself?

Mr. John W. Poulos: He does not.

Chief Justice Warren E. Burger: Well, then if the statute requiring the passengers, all --

Mr. John W. Poulos: It really is the scope of the inquiry.

If you can get enough people in, so that it's so-called neutral on its face which was one of the problems in the Sullivan case.

If it's -- it applies to so many people outside of a criminal context, then you see, you'll begin to run into the question of whether there is a real and substantial risk of self-incrimination.

Chief Justice Warren E. Burger: Well, isn't there a state interest in preserving the witnesses to accidents which are not criminal and to criminal conduct?

Mr. John W. Poulos: Yes, but that's precisely why the state of California in this case used the use-restriction doctrine.

They said that we recognize our interest in having that information, but we recognize as illegitimate.

The use of that information in a criminal proceeding and that again is the genius of the the use-restriction device.

The court says, I mean the California, all -- the California Court of Appeal and California Supreme Court both say that with the use restriction device, we allow the decision -- we allow the state to get their legitimate information.

But we do not permit the state to use that as punishment.

Chief Justice Warren E. Burger: You would not see, this opinion of the Supreme Court of California as reaching a statute which required that all the passengers report the accident?

Mr. John W. Poulos: No, I don't.

I don't think this -- that would be an entirely different case it would litigated -- it would have to be litigated.

I am not sure at this point that I would say that it was completely divested of any Fifth Amendment problem, but it is a substantially different case.

Chief Justice Warren E. Burger: We recognize you can't bind the Supreme Court of California, I just wanted to get your reaction to it.

Justice John M. Harlan: What do you think exactly of the Sullivan case which certainly (Inaudible)?

Mr. John W. Poulos: I am sorry, I didn't understand the question.

Justice John M. Harlan: Okay, what do you think acceptance of your position in this case would do to the Sullivan case, Justice Holmes, Sullivan case?

Mr. John W. Poulos: Nothing.

Justice John M. Harlan: Which we distinguished in Marchetti and I think also in --

Mr. John W. Poulos: Nothing and the reason -- I think this case --

Justice John M. Harlan: And why is that?

Mr. John W. Poulos: -- is completely consistent with the Sullivan rule because during the course of the Sullivan decision, this Court said, in essence and I am not quoting, but the Court said, you cannot refuse to file the income tax return over the blanket concept that to do so will incriminate yourself.

But you may make specific objection in that return to a specific question which incriminates you and that is completely consistent with what we are doing in the Byers case.

It's a much easier case than Marchetti, Grosso and Haynes.

In this case, we come exactly within the purview of what was done in Sullivan.

For in this case, the only that was asked was self-incriminating.

That was not true in Sullivan, although the Sullivan Court did recognize, speaking to Mr. Justice Holmes, did recognize that if the specific question was put to you and indeed was self-incriminating, you could claim it in the Return. I see that this case does nothing to Sullivan.

In fact, I have cited Sullivan in the brief in support of my contention.

Chief Justice Warren E. Burger: Thank you Mr. Poulos.

Mrs. Renne.

Rebuttal of Louise H. Renne

Ms Louise H. Renne: Mr. Chief Justice, may it please the Court.

With respect to the last question answered, we think that the decision below is directly contrary to this Court's holding in U.S. v. Sullivan for the reason that U.S. v. Sullivan held that taxpayers must still file a return even though the source of their income was illegal.

So that a taxpayer had to identify himself as a taxpayer.

Similarly here, a diver need to only identify himself as a driver.

It's identification is part of a regulatory group, so --

Justice Byron R. White: Well --

Ms Louise H. Renne: Yes Your Honor.

Justice Byron R. White: Doesn't leaving the name and address not only identify yourself as a driver, but as a driver of the car that has just been in an accident?

Ms Louise H. Renne: It does identify, yes it does identify yourself as a driver of a car that has been involved in an accident.

Justice Byron R. White: In a specific accident.

Ms Louise H. Renne: A specific accident, that's correct Your Honor.

But, the fact that you have been in an accident certainly does not --

Justice Byron R. White: What about this specific accident?

Let's don't talk about accidents in general.

What about this specific accident that the man was just in?

Ms Louise H. Renne: That would not be incriminating and in this --

Justice Byron R. White: Why wouldn't it be incriminating?

Ms Louise H. Renne: The fact that you give the name and address or you have given a name and address as being the driver in this specific accident has nothing to do with incrimination in my understanding of your question Your Honor.

If I might add -- if I understand your question I think that it's interesting to note that the respondent has now conceded that it was criminal conduct that caused the accident.

But, if a trial had been held, this is what the trial would have been all about and I don't know whether or not until the concession, nobody could say that it was caused by criminal conduct, that was the charge.

But, the state would have to prove that beyond a reasonable doubt in a criminal trial could be that there might be a defense that the respondent Byers could show that as he attempted to pass the car, the driver of the other car speeded up.

Justice Byron R. White: Well, what about Mr. Justice Black's question to your colleague, when the police show up at your house and say there was an accident here last week, we understand you were there, were you there?

Ms Louise H. Renne: I think that the police could ask that question.

Justice Byron R. White: Could they make it a crime to refusing to answer it?

Ms Louise H. Renne: Well, I think it will have to depend upon why they were asking the question?

Justice Byron R. White: Well, they come and ask you and you say sorry, it's none of your business, can you do that?

Ms Louise H. Renne: The week's lag maybe sufficient and particularly at what the police were trying to show is that you were hit and run --

Justice Byron R. White: Well, what if it's an hour after the accident?

Ms Louise H. Renne: I think that the police could ask that question.

Justice Byron R. White: Well, they can always ask you anything but do you have to answer?

Ms Louise H. Renne: Well, you would certainly if I am answering the question, this way you would certainly have to answer if you were there right on the spot at the scene of the accident.

You would have to answer that.

Justice Byron R. White: Now they ask you that, were you driving the car that was in an accident at 6th Street, New York?

Ms Louise H. Renne: That maybe a different case Your Honor.

I think that would be a different case.

Justice Byron R. White: Well, is that incriminating -- would it be -- would you say that would be incriminating?

Ms Louise H. Renne: I think -- could the state make that a crime?

Justice Byron R. White: Well, if it isn't incriminating, they can make you answer.

Ms Louise H. Renne: Well, I think that they could.

I think that a lot would have to depend upon that what were the circumstances.

Then I think you get into other kinds of cases.

When you have the accident scene, I mean you have an immediate event that requires a person to answer, I mean, you have on this probable cause at that point where you have a person in their home you might have -- I think your problems may be different, but I don't think we -- in order to sustain the constitutionality of this statute, I don't think we have to go on and consider that other case.

I think it's enough that if there -- you are on the scene of the accident, the police can require you to show your license, they can require you to answer.

Justice Byron R. White: You say that the police -- the state may make him leave his name and identify himself at the scene of the accident, but an half an hour later he cannot me made to answer the question, were you driving the car in that accident?

Ms Louise H. Renne: Well, I think that the problems maybe entirely different.

I think it raises entirely different kinds of issues, entirely different kinds of considerations --

Justice Byron R. White: Well you don't care to speculate on what the answer should be?

Ms Louise H. Renne: Well under California law, under various statutes, he could be required to answer.

It would under -- he could be required to answer, yes, but I don't think we have to go that far in this case.

Justice Thurgood Marshall: (Inaudible) law requires him to give an official report to the state (Inaudible)?

Ms Louise H. Renne: Yes, it does Your Honor.

Justice Thurgood Marshall: (Inaudible)

Ms Louise H. Renne: If the reports are available to persons involved in accidents.

They are kept confidential to the extent that you have to have some interest in seeing the report.

If I might also add Your Honor --

Justice Thurgood Marshall: (Inaudible) involved driver of this car?

Ms Louise H. Renne: Oh, certainly and I think that when you pose the question, isn't this the exact same case as when you are filling out a license or a vehicle registration application.

I think the answer is, yes this is the same case.

Identification is involved.

Justice Thurgood Marshall: When you fill out application, you don't say that you were the driver of the car that had the accident, there is a difference there.

Ms Louise H. Renne: Well yes, but if your license is seen, then it is just -- you just found out who filed out the application.

Justice Thurgood Marshall: You can then say the car was stolen.

Ms Louise H. Renne: Well --

Justice Thurgood Marshall: But, if you give the name and say well, I don't think it's important.

Ms Louise H. Renne: Well, except under the theory the State Supreme Court I mean it could be the case that if you are wanted for another crime, you are not required to show your license because that might incriminate you for reasons unrelated to the accident at all.

Justice Hugo L. Black: Are you familiar with the line of cases beginning with, Chief Justice Marshall's statement in (Inaudible) that any evidence of which a man (Inaudible), any evidence that might tend to show that you are guilty of a crime, you can't refuse that.

Ms Louise H. Renne: Your Honor, are you referring to the link in a chain kind of analysis?

That line, yes.

We are familiar with that line of cases and it was that --

Justice Hugo L. Black: It has been an unbroken line of decisions of this Court again, hasn't it?

Ms Louise H. Renne: That is -- the use of that certainly has been considered.

But usually when it has been considered, it has been considered in the context of a judicial proceeding or legislative committee proceeding where the very fact that a witness is called before the Court or the legislature may -- there is official attention has been focused.

Justice Hugo L. Black: (Voice Overlap) legislative by judicial proceedings?

I thought the amendment said, no man shall be compelled to give evidence against himself.

Justice Potter Stewart: In any criminal case?

Ms Louise H. Renne: In any criminal case.

In any criminal case.

If I might add in Marchetti, Grosso and Haynes line of cases --

Justice Hugo L. Black: Have you read any cases that we decided that indicates that you got to be asking a pending criminal case following the line of Mr. Chief Justice's argument that even though there has not been, it might be used as a link in a chain, the victim of the crime, that he can decline that.

Ms Louise H. Renne: Well, I think there are two cases that come -- are two lines of cases that immediately come to mind in answering your question.

The first is the Marchetti, Grosso and Haynes line of cases in talking about the link of the chain says that the information required must constitute a substantial link in the chain.

Justice Hugo L. Black: Well, wouldn't it be substantial?

Ms Louise H. Renne: Name and address, no Your Honor.

It's not a crime to be in an accident.

Justice Hugo L. Black: Name and address in connection with an accident that has happened, somebody is hurt or somebody is killed.

Ms Louise H. Renne: That could be caused by any number of reasons.

Justice Hugo L. Black: Well, they don't prove the guilt and innocence.

Just a question as I understood it I maybe wrong.

The link in the chain it might tend to incriminate.

Ms Louise H. Renne: Well, if we are going to extend the link and the chain analysis endlessly, then it would mean that U.S. in U.S. v. Sullivan that decision should have gone the other way because the fact that a taxpayer files is required to file a tax return in which by the fact that he states the source of his income or the fact that he doesn't state the source of his income.

Justice Hugo L. Black: Sullivan case.

Ms Louise H. Renne: The Sullivan case --

Justice Hugo L. Black: Well, that's a general rule and he did not say they had to answer every question and he said they could be excused for making the report of the taxes.

Ms Louise H. Renne: And we think that we have the exact same situation in this case Your Honor.

We are not asking the driver to state how many drinks did you have or had your been drinking prior to the accident.

The driver is only required to say that he was a driver and it's a same thing -- same case also as Shapiro versus United States which we referred to in our briefs embodying the required records doctrine where you have a regulatory program.

The information required is essential for the regulatory program and in this case, it's even more neutral kind than that required in Shapiro versus United States, the Fifth Amendment does not apply.

Justice Hugo L. Black: That seems he should have had quite an apprehension he was talking, wouldn't he?

Ms Louise H. Renne: Pardon me.

Justice Hugo L. Black: Wasn't he tried for crime?

Ms Louise H. Renne: The respondent in this case?

Justice Hugo L. Black: Yes.

Ms Louise H. Renne: No, Your Honor.

This case --

Justice Hugo L. Black: There wasn't a charge made against him.

Ms Louise H. Renne: There was a charge made against him.

Justice Hugo L. Black: What was the charge?

Ms Louise H. Renne: The charge was failure to pass to the left safely.

Justice Hugo L. Black: Was that an offense under the laws of California?

Ms Louise H. Renne: It is an offense under the laws of California.

Justice Hugo L. Black: What happened to that charge?

Ms Louise H. Renne: MWell, nothing has happened yet except that the State Supreme Court has said that the man -- it would be unfair to try the respondent Byers.

Now, our position --

Justice Hugo L. Black: Well, he evidently could have had a reason for that apprehension and that's exactly what occurred, the state did charge him for crime.

Ms Louise H. Renne: The state did charge him, but the record doesn't show how the state found out, it was this man.

Justice Hugo L. Black: Well, they found out, when they found out, they charged him with the crime?

Ms Louise H. Renne: Well they did because at the trial, the facts of what actually occurred would have come out.

Chief Justice Warren E. Burger: Mrs. Renne is it clear on this record, I thought your friend had said so that they did not find out about him because of his stopping and reporting in compliance with the statutes, is that right or not?

Ms Louise H. Renne: Yes, the state did not find out.

Chief Justice Warren E. Burger: So that it was not his stopping and reporting that brought on this criminal procedure at all.

Ms Louise H. Renne: No.

Justice Hugo L. Black: Well, that was the (Inaudible), well that was the question I was asking you.

I was asking you, if it wasn't the rule of law and hadn't been since the Marshall Statement and if it's a link in the chain of evidence, it might call the man to be prosecuted, not convicted?

Ms Louise H. Renne: He might be turned loose.

Justice Hugo L. Black: If it's a link in a chain of evidence, it might cause him to be prosecuted, he couldn't be compelled to answer?

Ms Louise H. Renne: That is correct, that has been a statement law.

The problem is how do you apply link in the chain.

I am reminded of the one of the nail, the shoe was lost, etcetera, etcetera and every piece of information that a person can be required give, a manufacturer has to label his goods, the physician has to report nature and causes of accident, every piece of information, a person could be required to give, could lead to some conceivable criminal charge.

Justice Hugo L. Black: Well it did.

Ms Louise H. Renne: It did in this case.

Well, in this case he didn't stop, so it didn't.

Justice Hugo L. Black: Well, he hasn't been convicted as I understand it?

Ms Louise H. Renne: No, at the trial, we would have found out whether or not he was guilty

.He now says he was, but we didn't know it for sure earlier.

I just would finally like to add in conclusion that insofar as the State Supreme Court held that there is a substantial shadow of suspicion cast upon people in accident, that that determination is unsubstantiated by the record.

There is no evidence.

This case arose on the pleadings and in reaching that conclusion the State Supreme Court in our view, did not rest on any particular provisions of California law.

It seemed to believe it was compelled to do so in cases of Marchetti, Grosso and Haynes.

We think those cases are distinguishable because of the very facts involved in those cases and not here.

Chief Justice Warren E. Burger: Thank you Mrs. Renne.

Mr. Poulos you acted at our request and at our appointment, and thank you for your assistance not only to your client, but your very careful assistance in preparation of this case.

Rebuttal of John W. Poulos

Mr. John W. Poulos: Thank you.

Chief Justice Warren E. Burger: Thank you.

The case is submitted.