BROOKS v. TENNESSEE

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Argument of Robert E. Kendrick

Chief Justice Warren E. Burger: Argument now in Number 71-5313, Brooks against Tennessee.

You may proceed.

Mr. Robert E. Kendrick: Mr. Chief Justice and may it please the Court.

It’s a privilege for me to represent the State of Tennessee here today in an effort to maintain a statute that our elected representatives enacted some 85 years ago and have maintained until this day.

This statute is well known to Tennessee lawyers and judges and has been routinely applied and seldom questioned.

I believe I’m correct in saying that its constitutionality has not been challenged in the Appellate Courts to the State of Tennessee or in the United States Courts until this case and until the case of Harvey versus State which our Supreme Court decided last year sustaining the statute.

It is not in the record and I have not known until Mr. Summers brought forward yesterday that some man -- member committee has recommended, not a Committee of the Legislature, has recommended that the Tennessee Legislature both qualify the sequestration of witnesses rule which is now a rule of Court or by decision and also repeal or mend the statute which is before the Court today.

To my knowledge no Bill has been introduced to do that but if the -- but the legislature, the legislative branch created this statutory rule and its -- it is its prerogative to change it or to remove it or to retain it if it wishes and I don’t see that that particular relevant here today.

I’d like to remind the Court of something that Justice Cardozo said a number of years ago which we believed to be at the a pro po here.

He said to the Court in Snyder versus Commonwealth of Massachusetts, not cited in our brief but at page or Volume 291 U.S. 97 at page 105.

The Commonwealth of Massachusetts is free to regulate procedure of its courts and a court with its own conception of policy and fairness.

Unless in so doing it offends some principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental.

And further at page 122, “But justice, though due to the accused, is due to the accuser also.

The concept of fairness must not be strained till it is narrowed to a filament.

We ought to keep the balance true.”

Justice therefore is due to the accuser, to the victim of a crime, to the people of the State and we ask the Court today in the words of Justice Cardozo to keep the balance true.

The balance is all ready weighted in favor of the defendant in a number of well-known ways to the Court and I shall not go into those.

I will refer to one of them of which is pertinent here that is that if the defendant testifies, unlike all other witnesses, he may not be compelled to be outside the courtroom while other testimony is being given.

The petitioner here would like to be favored even further.

He would like uniquely among all the witnesses to be able after sitting in the courtroom and hearing the testimony of his own witnesses to be able to follow him to the stand and to testify in conformity to what they’ve stated.

Justice Potter Stewart: It’s not really unique because that’s what is done in 48 states of the Union, isn’t it?

Mr. Robert E. Kendrick: Well it’s not unique.

It is done in 48 states but a -- unique among the witnesses, he is the only one who can do that.

And he would like to be able to do that in Tennessee.

But to proceed under the sequestration of witnesses rule, none of the state’s witnesses has that privilege or is favored as this petitioner seeks to be in Tennessee, not even the prosecuting witness.

Thus a citizen may be assaulted and robbed or raped and as the prosecuting witness, he or she may not under the sequestration rule remain in the courtroom and hear the other witnesses for the state before testifying.

Now, in order for the prosecuting witness to be in the test -- in the Courtroom and to assist the District Attorney General in putting all of the state’s file to the case, the prosecuting witness must go on first.

Justice William H. Rehnquist: Mr. Kendrick, so supposing in a Tennessee trial that the defendant does take the stand as the first of the defense witnesses then other defense witnesses are called in, one of those witnesses deals with a factual element which the defendant did not deal with in his testimony.

Could the counsel for the defense then recall the defendant to deal with that particular point as a part of defense case or does discretion exist in the trial judge to permit that?

Mr. Robert E. Kendrick: Mr. Justice, we don’t have any decisions on that point but it’s my opinion that that could be done.

While it may not, the people of Tennessee through their duly elected representatives enact and maintain a statute which requires in at least to this area that the defense be subject to the same procedure of requirements as the prosecution.

That the accused, that he has to testify like the prosecuting witness who testifies and remains in the courtroom must testify first for his side.

While in the name of truth and justice and to keep the balance true, many of the people of the state not require that.

The Court may --

Justice Thurgood Marshall: Could it be that the constitution required that defendant be in Court?

Mr. Robert E. Kendrick: Yes, indeed it does Mr. Justice.

Justice Thurgood Marshall: And it doesn’t require to prosecuting witness being in there?

Mr. Robert E. Kendrick: It does not and that’s what -- that’s part of the problem of course.

That the defendant and I referred that a moment ago that the defendant has the right, he is favored in that way and we are not contesting it to be on the courtroom.

But under the sequestration of witnesses rule, the prosecuting witness may not be there and do the same thing and hear the other witnesses for his side and then testify.

If he is to test -- to be there, he has to testify first.

Now this is closely connected of course with the sequestration of witnesses rule and all we submit that all the policy arguments and statements that favor the sequestration of witnesses rule argued in favor of the Tennessee statute.

To make the sequestration of witnesses rule more effective, some states in fact this object the parties to that rule in several cases.

And a number of courts in several cases have required the parties to testify first.

We note this on page 7 of our brief.

Unknown Speaker: Do you know when it was in Tennessee, that defendants were -- became privileged to testify?

Mr. Robert E. Kendrick: It stated I think in the brief for the petitioner but I don’t have that date in mind, no sir.

Justice Potter Stewart: It’s 1887 wasn’t it when the statute came in, that’s what we are told yesterday.

Up until the --

Mr. Robert E. Kendrick: I think perhaps --

Justice Potter Stewart: -- the late 19th century, defendants couldn’t testify at all and when they were permitted to testify this condition was put on and it’s remained ever since.

Mr. Robert E. Kendrick: That’s perhaps is right, I think that’s right.

Unknown Speaker: And it’s never been changed?

Mr. Robert E. Kendrick: Never, never been changed in the state, never to my knowledge been challenged until over the last year or two and I think, and that definitely go even further, it is not being challenged anywhere except in the City of Chattanooga and balance, Summers says, has got in here.

Unknown Speaker: Now it’s being challenged here?

Mr. Robert E. Kendrick: Yes, sir and it by the -- and I’ll get to this in a moment.

Mr. Summers in err -- is in error in saying only the Sixth Circuit Court of Appeals has sustained such a rule in the Federal District Court as we point out in our brief.

The Ninth Circuit has also sustained that procedure in the Federal District Court.

Unknown Speaker: Do you think the defendant has a constitutional right to testify in his own behalf?

Mr. Robert E. Kendrick: He has that right in Tennessee, he needs -- has it by the statute, I don’t think that’s really an issue.

Unknown Speaker: Ferguson against Georgia, I think held whatever that he does, doesn’t it -- didn’t he?

Mr. Robert E. Kendrick: That the -- that his counsel has the right to direct a statement and to have to do that of the defendant and I would not follow that.

We certainly believe the defendant ought to be to testify in his own behalf and our statutes provide that.

Unknown Speaker: Do you claim he’s on conditional right to some extent?

Mr. Robert E. Kendrick: Well, it’s simply a matter of procedure to Hogan which these witnesses go on.

Farther --

Justice Thurgood Marshall: What’s the rule in Tennessee if a witness to the group that’s sequestered testifies and then hears four or five other witnesses and then is asked to re-testify, is that discretionary with the Court?

Mr. Robert E. Kendrick: Yes, sir.

Justice Thurgood Marshall: But it was not discretionary here because in this case, the man has and he was denied that right because of the statute.

Mr. Robert E. Kendrick: Yes.

That’s the way that the trial court viewed it and the statute reads somewhat in that way although our Appellate Courts have been some what liberal in the interpretation of it in permitting the defendant to testify on rebuttal even when he hasn’t testified on the writ or in the main part of the case.

Justice Thurgood Marshall: Where he hasn’t testified?

Mr. Robert E. Kendrick: Yes, sir.

Justice Thurgood Marshall: What case is that?

Mr. Robert E. Kendrick: That’s Martin versus State, 151 Tennessee 383, it’s cited in our brief.

Justice Thurgood Marshall: But what did it do with the statute? Did the stat -- did the Court ignored the statute?

Mr. Robert E. Kendrick: No, sir, the -- it’s been relaxed or that decision to the extent that that although it appears to read in mandatory language, the parties may waive it or the -- and the defendant is permitted to testify in rebuttal.

Justice Thurgood Marshall: It wasn’t relaxed in this case?

Mr. Robert E. Kendrick: Sir?

Justice Thurgood Marshall: It was not relaxed in this case?

Mr. Robert E. Kendrick: Of the -- the defendant wanted to go on first and the Court would not let him do that, that’s right.

Justice Thurgood Marshall: No.

He did not want to go on first.

Mr. Robert E. Kendrick: I’m sorry.

Justice Thurgood Marshall: [Laughter] What I mean, the Supreme Court --

Mr. Robert E. Kendrick: That’s a slip, he did not want to go on first.

Justice Thurgood Marshall: But the Supreme Court of Tennessee upheld that.

That’s for his faith to go on first --

Mr. Robert E. Kendrick: The Supreme Court --

Justice Thurgood Marshall: -- precluded him from testifying any time?

Mr. Robert E. Kendrick: The Supreme Court denied certiorari and the Court of Criminal Appeals sustained the decision to the trial court that the statute did not permit him to go on at a later time.

Justice Thurgood Marshall: My whole point is that all these other decisions do not help this case?

Mr. Robert E. Kendrick: They were not -- I don’t know whether they were invoked by anyone.

They weren’t referred to and it’s true that the defendant was not able to go on out of order.

Justice Thurgood Marshall: Well, how does -- the other cases of relaxation help this claim?

Not at all, right?

Mr. Robert E. Kendrick: He did not get what he wanted.

I would like to refer the Court to the fact and how important this is, I don’t know that this is not unique in Tennessee.

It’s all ready been alluded to that the State of Kentucky has a similar statute that’s been on the books for 79 years and to my knowledge has not been challenged the question as to its constitutionality.

The Court of Appeals for the Sixth Circuit, the Court of Appeals for the Ninth Circuit, five of the six judges in those cases that heard those cases approved the rule in the Federal District Courts, it is a rule --

Justice Potter Stewart: The -- in the Sixth Circuit rather seriously --

Mr. Robert E. Kendrick: Sir?

Justice Potter Stewart: I was rather interested to see that that was a Tennessee case that came from --

Mr. Robert E. Kendrick: It came up from the Western --

Justice Potter Stewart: Bailey Brown, the District Judge Bailey Brown in the opinion in the Court of Appeals written by Chief Judge Harry Phillips, both are Tennessee lawyers.

Mr. Robert E. Kendrick: Yes.

And then the three judges in the Ninth Circuit Court --

Justice Potter Stewart: Of course, were not Tennessee?

Mr. Robert E. Kendrick: Were not Tennessee lawyers.

Justice Potter Stewart: Right.

Unknown Speaker: Do you now what law was involved in the Ninth Circuit Case?

Mr. Robert E. Kendrick: It was a Court ruling, there was no federal statute involved.

The District Court judge simply -- well, it’s quoted on page 8 of our brief.

The defendant wanted to -- well, the Court said that if the defendant was going to testify in his own behalf, he have to proceed all the other witnesses and the Court of Appeals said and I quote just a little bit from that says that, “Trial Court’s ruling seems to be a sensible approach to the problem of what to do with the party who is also a witness when the exclusion of witnesses is called for in order to prevent fabrication of testimony and cites Wigmore on evidence and goes on to say that there is no prejudice shown and the only connection we can think of the appellant was rendered incapable of tailoring his own testimony to fit in with what previously was said by other witnesses.”

And beside the American jurisdictions that we’ve referred to, a number of English speaking jurisdictions have had this rule and still have it.

And we refer in -- on pages 10 and 11 to -- a case from Alberta, Canada in which the Court said to be called as the first witness for the defense or that the accuse ought to be called as the first witness for the offense because otherwise its -- observation to the jury that the accused has called it or adopted his evidence that fit in with the evidence of the witnesses who proceeded him.

And we refer to an Australian case upholding the rule and I think significantly in England, a rule that’s been a matter of practice since at least 1911, only recently in 1968 by the Court of Criminal Appeals in -- or the Court of Appeals in criminal division in England in a unanimous decision was made a Rule of Court for England and the Justice who wrote the opinion for that Court in 1968 said in part, the reason for this is obvious.

It’s that if they are to be permitted to hear the evidence, that is the defendants or other witnesses, they may be tempted to turn their own evidence and we get and I will get to this a bit later if I have the time.

This shows the reason of a rationality of the rule and Mr. Summers saw the petitioner contends that under the Fourteenth Amendment it’s an unreasonable rule and we contend that it’s imminently a reasonable rule and this Court all said so that I referred to.

So we have to take the position that the Tennessee Rule is a truth in testimonial law, a truth in testimonial law that it promotes truthful testimony that it’s a rational, a logical, a legitimate complement of the sequestration of witnesses rule.

Now, I think remarkably if the Court would look at the pages that I’m going to refer you to now in the petitioner’s brief that there is a concession of rationality there.

So at page 9 of the petitioner’s brief, he says that the fact that a party may not be placed under the rule, that is the sequestration rule, was probably one of the chief reasons for the requirement.

And then he says at page 9 that requiring the defendant to testify first if he testifies at all ensures that he will not be tempted to alter his own testimony after hearing other evidence presented in his behalf and the petitioner says further at pages 7 and 8 that the occasional readiness of the interested person to adopt his testimony when offered later to a victory rather than to a veracity so as to meet the necessities is laid opened by a file of witnesses is a rationale basis for the Tennessee statutes in question.

And then finally at page 17 of the petitioner’s brief, the petitioner says, the purpose of this code section to ensure that a defendant not be tempted to color his version of the circumstances by hearing witnesses in favor prior to his own testimony is perhaps legitimate.

Justice William H. Rehnquist: Mr. Kendrick as I read that section of the petitioner’s brief, I had the feeling he was dealing very fairly with the arguments against him and felt nonetheless that this was a burden on the right.

He was asserting.

He certainly didn’t concede that his point was invalid.

Mr. Robert E. Kendrick: He said all of this things and I applaud him for his fairness, true.

But the -- and he does view this as a burden and the state will say that that sometimes it may appear to be an inconvenience to the defendant but it’s an inconvenience to the state to have the limitation that’s placed upon it.

Justice Thurgood Marshall: Mr. Kendrick, you can say it was an inconvenience to the state in this case, was it?

Mr. Robert E. Kendrick: No, I think my point --

Justice Thurgood Marshall: It might remind you that the state offered to waive it?

Mr. Robert E. Kendrick: True and I wasn’t present at the trial.

The District Attorney General took care of the trial and this --

Justice Thurgood Marshall: Well, he did it, you don’t contest that he did say it was all right with him.

Mr. Robert E. Kendrick: True and I can only speculate that it really probably didn’t make any difference to the state in this case because they have confessed (Voice Overlap).

Justice Thurgood Marshall: But a number of other question is, when was the sequestration rule adopted in Tennessee?

Mr. Robert E. Kendrick: All might, it’s very ancient.

I think it’s been in effect to all the way back as far as --

Justice Thurgood Marshall: You keep saying that this is tied in it.

Nothing can be find anything in the statute that even hints that it’s tied in to the sequestration rule.

Mr. Robert E. Kendrick: Well, the statute was --

Justice Thurgood Marshall: Or it was that the State of Tennessee in granting the defendant the right to testify put this limitation on.

Mr. Robert E. Kendrick: That’s when the limitation was first put on.

Justice Thurgood Marshall: So where do we get this and the reason for it was the reason that the prosecuting witness had to go first?

Mr. Robert E. Kendrick: It did not state it there but we have by judicial decision the requirement of the prosecuting witness so far.

Justice Thurgood Marshall: So the prime side, isn’t it?

Mr. Robert E. Kendrick: I don’t know that Your Honor.

I think when it first came up that the Court ruled that way.

Justice Thurgood Marshall: You don’t think it’s a matter of due process that the person entitled to control his witnesses as to when he puts on his proof and how he it puts it on.

Mr. Robert E. Kendrick: I don’t think it’s a matter of due process, Your Honor.

I think it’s a matter and in fact the number of Courts in the -- that Court rule simply as a procedure for regulating the order in that testimony.

Justice Thurgood Marshall: But would your case be different if the statute had said that all witnesses who are going to testify must testify first?

Mr. Robert E. Kendrick: I don’t understand the question.

Justice Thurgood Marshall: Well, you said the prosecuting witness has to go first?

Mr. Robert E. Kendrick: That’s true Your Honor, if he’s going to testify, he has to testify first.

Justice Thurgood Marshall: Statute --

Mr. Robert E. Kendrick: And I think it’s proposed in this committee recommendation.

Justice Thurgood Marshall: Well you equate the prosecuting witness with the defendant and I suggest that that’s improper.

Mr. Robert E. Kendrick: Sir?

Justice Thurgood Marshall: I suggest that the prosecuting witness and the defendant are not at equal positions.

As I understand that this is the Donald L. Brooks versus the State of Tennessee.

Mr. Robert E. Kendrick: It is, yes.

Justice Thurgood Marshall: I don’t even know who the prosecuting witness was?

Mr. Robert E. Kendrick: No, he was a man who had his a store.

Unknown Speaker: Well, I mean he was in the party.

Mr. Robert E. Kendrick: Well --

Justice Thurgood Marshall: The state is the party.

Mr. Robert E. Kendrick: The state is the party.

That’s true but I don’t think it’s correct to say that the prosecuting witness has no interest in the outcome, well, when he’s been robbed and he wants to see justice there and he is the chief witness to the state.

Justice William H. Rehnquist: Mr. Kendrick, the petitioner concedes that there is a tie in between the sequestration rule --

Mr. Robert E. Kendrick: Yes, he does.

Unknown Speaker: And this rule, doesn’t he?

Mr. Robert E. Kendrick: Yes, he does.

Unknown Speaker: General Kendrick, is the -- are witnesses sequestered in all criminal cases routinely in Tennessee even if no motion is made to do so?

Mr. Robert E. Kendrick: It’s not a matter of law, the judge routinely says that parties want the rule and rather routine as they say we do.

Unknown Speaker: Do the parties want the rule?

Mr. Robert E. Kendrick: Yes.

Unknown Speaker: That we do and then -- until its done?

Mr. Robert E. Kendrick: That goes in there.

Justice Thurgood Marshall: What happens if the defendant waived the rule?

Mr. Robert E. Kendrick: The sequestration rule?

Justice Thurgood Marshall: Yes, the --

Mr. Robert E. Kendrick: Well, if the --

Justice Thurgood Marshall: Can’t you reply?

Mr. Robert E. Kendrick: If the state -- both parties have to waive the rule and then the rule is not in effect.

Justice Thurgood Marshall: But the statute is?

Mr. Robert E. Kendrick: The statute still is in effect, that’s right.

Justice Thurgood Marshall: How do you meet that?

Mr. Robert E. Kendrick: I don’t know that we have to meet it.

The judges though will apply the statute unless it’s waived by the state and sometimes the state offers to waive it in and then the defendant may go on when he wants to, agrees to waive.

Justice William H. Rehnquist: Was the rule invoked in this case, the sequestration rule?

Mr. Robert E. Kendrick: I do not remember that, it was invoked.

And we refer the Court at pages 13 and 14 to the decision which requires this to the prosecution --

Chief Justice Warren E. Burger: Is this in your own brief now, 13 and 14?

Mr. Robert E. Kendrick: Yes sir, I’m sorry Your Honor, Mr. Chief Justice, pages 13 and 14 of our brief.

We refer to the judicial requirement that the prosecution or the prosecuting witness go on first.

I hope we’ve been able to demonstrate that what we have in Tennessee here then is not a unique requirement but even if it was unique requirement that would make it unconstitutional.

Under our federal system of government the states are -- as Mr. Justice Brandeis said are laboratories in which experimentation may be made and referred to an opinion by Justice Blackmun in McKeiver versus Pennsylvania on page 15 of our brief to the same effect.

So, we submit that a judge should not vote against this rule of procedure simply because he disagrees with it as a matter of policy or I would personally prefer an ultimate procedure and we refer to the Court to Justice Harlan’s opinion in McGautha versus California in 1971 decision which we cite in our brief, 402 U.S. 183 and 221 and we refer the Court also to Mr. Justice Stewart’s concurring opinion in Spencer versus U.S. also cited in our brief --

Justice Potter Stewart: That’s against Texas?

Mr. Robert E. Kendrick: Against Texas, 385 U.S. 352 and 567, thank you sir.

Now in the time which may remains me, I’d like to turn to the petitioners objections to the Tennessee statute and I understand from his oral argument yesterday that he does conceive that the Sixth Amendment question is not before the Court in view of the limited grant of certiorari.

His Fifth Amendment argument as I gather is that this rule in some way infringes upon the defendant’s right to remain silent and by the way rather remarkably, I think later on he argues under the Tennessee Constitution Provision that it also infringes his right to be heard but now he says it infringes upon his right to silent.

But at page 16 of his brief he concedes, “Nor does it deny a defendant to their right to remain silent.”

His point seems to be that because he has to go on first, if he goes on at all that this is cutting down on his privilege or chilling it in some way and that it makes it more difficult.

The states answer to this is, that petitioner and his counsel ought to know before they get to trial. But the testimony will be what the witnesses will say and the desirability for waiving the right to remain silent and taking the stand in its own behalf.

Our feeling about is that the only thing that is limited as far as the defendant is concerned is the opportunity to trim or to color or to falsify his testimony to conform of what the other witnesses on his side have said and this is what this case is uniformly say that we have all ready referred the Court to.

The defendant says that in choosing to testify more making at charge at the beginning of his proof.

He then hazards himself through the cross examination or subjects himself to the hazards of cross examination, indeed he does.

But every witness who goes on the stand subjects himself to that hazard and the defendant will be subjected to that hazard regardless of when he takes the stand.

Another point he makes is that choosing to testify the beginning of this proof is a matter which should be left to his unfretted freedom.

Now, we point out at pages 18 and 19 of our brief that the defendant has the unfretted freedom to testify.

He only -- he is restricted as to when he can testify and we cite them McGautha versus California to the effect that it’s not unconstitutional simply to make him exercise a difficult choice.

I would like to move quickly to his Fourteenth Amendment argument which our view is in three parts.

One is that it imposes a burden upon him.

It does into some extent limit him but again, I remind the Court that he’s not restricted from testifying.

He may testify.

The Court though will require him to testify first.

But there is no reason why he has to hear the testimony of his own witnesses before he takes the stand.

A lot of good reasons why he has to hear the testimony of the witnesses of the state against him but he ought to know before his own witnesses take the stand what they are going to say.

Now, if they crack up on the cross examination then it would be beneficial to him to be able to get back on the stand and to rehabilitate the case I suppose.

The second --

Unknown Speaker: Well, let’s assume that the defendant wants to call a police officer like he did in this case and the police officer hasn’t testified?

Mr. Robert E. Kendrick: Well, he has opened to him an opportunity before taking -- discover deposition in advance in the trial and know -- and to know under oath what the officer is going to say.

Unknown Speaker: In the criminal case in Tennessee?

Mr. Robert E. Kendrick: That’s my remembrance of it Your Honor.

I would not like to be held to that but that that’s the way I remember it.

Justice Thurgood Marshall: You mean in Tennessee you can get depositions with the government’s witnesses?

Mr. Robert E. Kendrick: That’s certainly true in civil cases and --

Justice Thurgood Marshall: Well, I’m talking about criminal cases.

Mr. Robert E. Kendrick: I know you are and I just have to say I don’t have a clear -- I am not entirely sure of that.

Unknown Speaker: Assume that isn’t so and the --

Mr. Robert E. Kendrick: All right.

Unknown Speaker: You want to call the Chief of Police.

Mr. Robert E. Kendrick: But he may go out --

Unknown Speaker: It’s been under subpoena by the state to come to trial when the state have chosen not to put him on so the defendant ask the Court I would like to put him on and treat him as a hostile witness and the Court said, sorry, if you call him, he’s your witness.

Mr. Robert E. Kendrick: If all those things are done.

Unknown Speaker: Yes.

Mr. Robert E. Kendrick: And what’s the question?

Unknown Speaker: The question is you really don’t know where you stand, do you,, on your defense?

Mr. Robert E. Kendrick: No.

You don’t know where you stand on the defense.

Unknown Speaker: That was the case in this case, that was the situation in this case.

Mr. Robert E. Kendrick: I don’t remember that all of those things were true about him having been subpoenaed --

Unknown Speaker: The chief was under subpoena by the state.

He had to testify.

He asked the Court to let him cross examine and said, no, if you call him he’s your witness.

Mr. Robert E. Kendrick: Yes, that’s right, if he called him, he would have been the witness of the defendant but we don’t conceive that that in any way denies this defendant of his Fourteenth Amendment or due process rise and may I just tell --

Unknown Speaker: Well, the fact is though that you really sometimes can’t know what your defense is -- what the witnesses you want to call, that you are going to risk calling and really going to say (Voice Overlap) hold up under cross examination.

Mr. Robert E. Kendrick: You certainly should be able to interview your witnesses in advance unless you make the spot decision after you get to court that you are going to call some witness you have thought of calling to the court and I don’t know of any reason why this defendant in this case did not have interviewed the chief or anybody else that he wanted to out of a trial.

Justice William H. Rehnquist: Mr. Kendrick, didn’t you say an answer to an early question of mine that if in fact the police officer had covered a matter in the way that the defendant had the elected to first testify had not gone into that it would have been up to the trial judge’s discretion whether the defendant might not have been recalled?

Mr. Robert E. Kendrick: To allow him to be recalled to the stand after he wants to testify and Your Honor may I -- I have seen the red light.

Chief Justice Warren E. Burger: Your time is up but if you -- you may draw into a conclusion which you can go on.

Mr. Robert E. Kendrick: I would like to make a concluding statement if it please the Court.

Chief Justice Warren E. Burger: Do it briefly.

Mr. Robert E. Kendrick: The only other point that I haven’t covered and I will cover it in one sentence, concerns the matter of the state constitution.

It’s contended that the Tennessee Courts have misconstrued the statute in holding that it is not unconstitutional on its state constitution and I would like to refer the Court throughout the cases that we cite and filed proposition of our brief to the effect that that is decisions of this Court that that is really a matter for the state courts to decide whether state statute violate the state constitution and it’s not a federal question for this Court to be concerned with.

In conclusion, I would simply say that the defendant has not made out a case that runs constitutionality of this truth and testimonial law and we do ask the Court in the words of Justice Cardozo to keep the balance true.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Kendrick.

Mr. Summers.

Argument of Jerry H. Summers

Mr. Jerry H. Summers: Mr. Chief Justice and may it please the Court.

In a very short time I have remaining, I would like to elaborate on some questions that was asked by justices yesterday.

The first one that pertain to question by the Chief --Mr. Chief Justice in regard the question of offer of proof.

Your Honor, yesterday you inquired as to whether I should have made an offer proof and in this matter which you felt would possibly affect the record more fully.

I would only say that in the law in the State of Tennessee is that if an entire land of testimony is excluded or an entire witnesses’ testimony is excluded then it is not necessary to make an offer of proof under our laws of the State of Tennessee to protect an appeal.

Chief Justice Warren E. Burger: Is it permitted?

Mr. Jerry H. Summers: Is it permitted?

Yes, sir.

Chief Justice Warren E. Burger: To make an offer?

Mr. Jerry H. Summers: Well, it should be within discretion of the courts.

There has been a recent decision in the criminal court which allows you to make a -- in the criminal courts they’ve allowed you to make an offer of proof.

But that was -- decision came after this case was tried.

In regards to Mr. Rehn -- Mr. Justice Rehnquist’s question yesterday, I believe that in discussion at the time for rebuttal and surrebutal got jumbled up and I would like to say that it is my contention under the law that the scope that the defendant, if he was not allowed to testify and put on other witnesses, the state then put on rebuttal witnesses to testify to rebut his witnesses that he could testify as surrebutal witnesses but the scope of his surrebutal would be limited to those matters which had been brought out on the states rebuttal.

Now, we say that that does not alleviate the problem created by the statute.

If he could be a surrebutal witness because there are matters which certainly we would like to -- should be submitted to the court.

Now, in this matter in regards to Mr. Justice Blackmun’s question as to privilege as to yesterday, if this Court should declare the statute unconstitutional, it would be the burden upon the state to show beyond a reasonable doubt under the far holdings of this Court that the area was promised and not prejudicial.

Now, our position is that we contend that nothing can be more prejudicial than a statute which will restrict or deny a defendant from testifying his own behalf and if this statute is per se prejudicial.

We say that the defendant has a right to testify under the authority of a -- absolute right under Ferguson versus Georgia and in closing I would respectfully say that we think that --

Unknown Speaker: You think a -- you think that was Ferguson held?

Is that a constitutional (Voice Overlap).

Mr. Jerry H. Summers: I think -- I read it by implication that that was the way that I read the decision this -- that --

Unknown Speaker: That was the right to counsel?

Mr. Jerry H. Summers: Yes sir, yes it was.

But I felt the reading -- hat was the interpretation that applying Ferguson to this case that Donald Brooks has an absolute right to testify in a criminal case and that it -- that any that the state -- the statute State of Tennessee is restricting that right and that is the argument.

In closing, I would say that the decisions of Bell versus Mississippi and of Shipp which have been cited which the dissenting opinion of Judge McAlister we think present a logical and analytical approach to this to the problem, we respectfully urge the Court to reverse the conviction and declare the statute unconstitutional.

Chief Justice Warren E. Burger: Mr. Summers just one question.

You just said made claim to an absolute constitutional right to testify on behalf of the defendant.

Suppose the defendant at the opening of a case after the jury was selected, defendant’s counsel said now before the minds of the jury are poisoned, influenced by the prosecutions testimony, I would like an opportunity to put my defendants, the accused on the stand and have him tell his story to this jury.

Would you think he would an absolute right as part of his absolute right to testify that you claim to be heard first before the state is heard from?

Mr. Jerry H. Summers: No, you do not Your Honor.

I respectfully say that the burden --

Chief Justice Warren E. Burger: Would you concede that that might be a very helpful thing to a defendant sometimes to be able to get to the jury first before they have heard the prosecutions witnesses?

Mr. Jerry H. Summers: Your Honor, I would say no because they urge the presumption of innocence in the burden of proof to prove guilt is upon the state (Voice Overlap) --

Chief Justice Warren E. Burger: He acknowledged the tactical matter.

You suggest that it would never be to the advantage of the defendant to have that opportunity to reach the jury with his story first?

Mr. Jerry H. Summers: Your Honor, being in the heat of battle in many trials I would say and knowing how your trial can change, I would be reluctant as the trial counsel to -- until I had heard some of the proof.

I make the decision quite frequently as to whether my -- to put my client on the stand by the manner in which the states approve and I say would be first -- it would be a very infrequent case which I would put my client on because we do not have full discovery in the State of Tennessee, we have very limited in criminal procedure and I would be very hesitant to put my client on the stand to -- since to kill the prosecution there might be a very rare case in which it might be such as a matter of incest in which you –- it would be uncorroborated testimony of an accomplice and with the state had very limited -- a very weak case.

But I would be very reluctant as to file counsel to employ such a tactic because I can foresee it could backfire very readily.

Chief Justice Warren E. Burger: Thank you, Mr. Summers.

Thank you, Mr. Kendrick.

The case is submitted.