CUPP v. NAUGHTEN

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Argument of John W. Osburn

Chief Justice Warren E. Burger: We will hear arguments next in 72-1148 Cupp against Naughten.

Mr. Osburn I think you may proceed whenever you are ready now.

Mr. John W. Osburn: Thank you Mr. Chief Justice and may it please the Court.

The sophisticated legal issue which is before the Court in this case involving the presumption of witness truthfulness is an interesting contrast to the factual situation which gave rise to the case and upon which the State Court Trial Jury was called upon to deliberate.

The respondent Naughten was convicted in State Trial Court of the crime of armed robbery involving the robbery of a late night pore (ph) and a friend of his who were in the store about mid night.

One night the proprietor was locking the place up and getting ready to close and just before he locked the place, a man came in who witness later identified as the respondent Naughten and brandished the pistol and informed Mr. Livengood according to Livengood's testimony that this was stick up and he then forced the proprietor and the friend into the cooler and told them to wait there until he was finished.

Then the two men were sitting in the cooler and the friend said to the proprietor, “Well, I think they are gone now”, and so the proprietor went out and the robber had not gone and forced him again back into the cooler.

Then a short time later the friend again suggest that the robber was gone by this time and they came out and proprietor called the police.

The police arrived fairly immediately and it turned out that Mr. Naughten's car had been parked across the street in a tavern parking lot.

The police arrived and the proprietor, Mr. Livengood identified the respondent Naughten as being the robber.

There was no line up or there were no Wade-Gilbert problems, no problems of undue suggestibility.

Both, the proprietor and the witness had seen Mr. Naughten for approximately a period of 15 minutes, most of which they were in his presence, some part of which they were back in the cooler.

There was also a testimony by two police officers, one who testified that he came in and Mr. Livengood had identified Naughten as the robber, and there was also testimony that at the time that Naughten was handcuffed with his hands behind him that he was attempting to stuff some money into the crack between the seat of the automobile, this money was later retrieved by the police and this essentially was the testimony that was presented at the trial.

The defendant's cross-examination consisted primarily, the cross-examination consisted primarily of asking the two eyewitnesses about when they talked about the case, asking about why was that the man who was arrested, who was identified as Naughten, why it was that he did not have a pistol.

And the defendant didn't present testimony, didnt' call any witnesses, and the case went to the Jury then with the Court's instructions.

Now the Trial Court instructed the jury that it was the state's burden to prove guilt beyond the reasonable doubt, instructed the jury that the defendant was presumed to be innocent and the jury returned the verdict of guilty.

Chief Justice Warren E. Burger: I take it Mr. Solicitor General that you have reviewed these evidentiary matters in detail, perhaps the purposes of indicating that the guilt was established by overwhelming evidences of it, there is no question --

Mr. John W. Osburn: This is the reason why we tried to present it in this fashion, because it seems to us that on those facts and given the instructions which the Court gave clearly instructed on burden of proof, clearly instructed on presumption of innocence, that it's just inconceivable to me that a lay jury could have taken that instruction about witnesses being presumed to speak the truth and could have turned that on the facts of this case into an instruction which did just the opposite, which placed the burden of proof on the defendant, and this is particularly true in this case because of what occurred at the time that the Jury had received its instruction and counsel took his exceptions to the instructions.

At the time that their prepared instruction were given the Court and defense counsel, the prosecutor and the defendant, in court report, all went in to the Court's chambers and they then considered whether or not there were exceptions to the instructions and the counsel did take some, and one of the instructions which he requested, which he had an answer for was an instruction on that the jury was not to infer guilt from the fact that the defendant didn't take the stand.

This is what this instruction -- of course, there is considerable disagreement among defense counsel as to whether or not this is grid instruction or not, some counsel preferred -- some consider that the instruction is in the words of the Ninth Circuit "Don't put the jelly bean in your nose" instruction, because it simply caused attention to something that the jury might otherwise have overlooked.

Justice William J. Brennan: Mr. Solicitor General, despite the overwhelming evidences you say it guilt, I gather the Court of Appeals disagreed with the District Court that this was case in which Harrington's harmless errors rules required.

Mr. John W. Osburn: Yes.

Justice William J. Brennan: So as it comes to us at least that issue of the harmless error is not before us.

Mr. John W. Osburn: Well we think that it comes before the Court in two ways and maybe these are subtle statements of the same principle.

Justice William J. Brennan: But did you argue that?

Mr. John W. Osburn: Yes.

Justice William J. Brennan: Oh! You did.

Mr. John W. Osburn: Yes, we have raised both of those issues.

The first way of stating it is this, that the instruction itself, while it does present a colorable constitutional issue, because it's been discussed in the various circuits, in a constitutional context, and the courts have generally not given good marks to this instruction, that our position is, it's just not that bad, that it should result in the reversal in federal habeas corpus of a jury verdict on these facts.

That it's just inconceivable that on the facts of the case and given the clear precise instructions that the Court gave that a jury could possibly have even understood what the legal issue was all about.

Justice William J. Brennan: So you suggest that the Ninth Circuit apparently adopted the view that any constitutional error which is quite judicial per se and that's what obligated the harmless error determination?

Mr. John W. Osburn: Yes.

Now, they also found that none of other instructions which the Trial Judge had given specifically obviated the problem that is involved in this instruction.

Well, we think that it did because the jury was called back or rather the court and parties went back into the courtroom and after the jury has been sitting there and they are called back into the courtroom and court again gave them some instruction which says that the burden of proof is on the defendant and that --

Justice William H. Rehnquist: You say not presented.

Mr. John W. Osburn: Pardon me, the burden of proof is on the State, that the State must prove its guilt beyond a reasonable doubt and the defendant is presumed to be innocent.

Now we certainly recognized that it's fundamental to our law that a guilt of the defendant in a criminal case must be proved beyond a reasonable doubt.

It's not quite so clear that an instruction must be given to a State Tourt trial jury that the defendant is presumed to be innocent.

Nevertheless that is an instruction which is always given under our state law and which was given in this case.

Now, then the question is what is there about the presumption instruction that suddenly shifts the burden to the defendant, even though the Court said time and again that the defendant had no burden.

Well, the argument goes that where the defendant does not testify and where the defendant does not present any evidence or call any witnesses, that the instruction really amounts to a presumption of that witnesses who are called by the State have told the truth.

Because the instruction is expressed in terms of a rebuttable presumption, every witness is presumed to speak the truth, says the instruction.

This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest or motives, by contradictory evidence or by a presumption.

Now, the instruction says in its very words that while the witness is presumed to speak the truth, that the witness himself may overcome that presumption.

The presumption may be overcome by the manner in which the witness testifies, by the nature of his testimony.

The jury was again told at later place in the instructions that you are not bound to find in conformity with the testimony of the declarations of any number of witnesses which do not produce belief in your minds.

Now we have tried as is our lawyerly duty in the brief to explain why the instruction is given, to explain what it is intended to convey, and I think essentially it simply intended to convey the impression to the jury that the jury is there to hear the testimony, they are there to hear to witnesses.

They may begin with a presumption that a person who is sworn on oath, is not going to commit perjury and until there is something that occurs, something about the way the witness testifies, something about the way he looks or the nature of what he says that convinces a person that he is not telling the truth.

Justice Potter Stewart: Is it permissible or is it not, under the Oregon stature, as I understand it.

Mr. John W. Osburn: Yes.

Justice Potter Stewart: In your experiences, is it usually given or is it usually not given?

Mr. John W. Osburn: This instruction was given for many years.

It has been part of the standard form instructions.

Justice Potter Stewart: The statutes go back to 1862, you told us.

Mr. John W. Osburn: Yes.

Justice Potter Stewart: And there was a Californian statute from 1872 until 1965 saying the same thing.

But I wonder as a matter of practice, if it's usually given in criminal cases in Oregon or usually not given, I just want to know, maybe quite occasionally.

Mr. John W. Osburn: I have had an occasion to speak to judicial conferences, of course, and I have been discouraged to give any of the instruction.

The Supreme Court of Oregon says it's not, or if you give it, but that doesn’t mean it that it has to be given and so we have discouraged its use.

But, it has generally been given.

Justice Potter Stewart: Generally it's given is your experience.

Justice Thurgood Marshall: Even when the defendant doesn’t take the stand on testimony?

Mr. John W. Osburn: Yes.

Justice Thurgood Marshall: Nobody ever draws a line there?

Mr. John W. Osburn: Well, this is an instruction that has been given for about a hundred years and it is only in the last few years, in fact this is the first known case in which anybody has challenged the instruction.

Justice Thurgood Marshall: But, do you see any difference in the case where the defendant puts on -- the prosecution puts on eight witnesses and defendant puts on eight witnesses and the case where the prosecution puts on eight witnesses and the defendant puts on none, you don’t see any difference?

Mr. John W. Osburn: I don’t see any difference in this instruction.

Justice Thurgood Marshall: That's what the government found.

Mr. John W. Osburn: I don’t see any difference.

The manner of evaluating when a person gets on the stand, the manner of how you start out looking at it, whether or not you say to yourself, alright, this is a person who is called who presumably knows something about the case, and presumably is going to tell the truth.

That applies across the board to all witnesses.

Now, we do mention in the brief, of course, that witnesses to a case are chosen not by the parties.

These aren’t the prosecution’s witnesses; these are the people who were there.

Justice Thurgood Marshall: They are not the prosecution’s witnesses.

Mr. John W. Osburn: They are the prosecution’s witnesses only in the sense that the prosecution has chosen to call them.

Justice Thurgood Marshall: And vouches for them.

Mr. John W. Osburn: Well we have a rule of course as a matter of state practice that you can’t impeach your own witness by evidence of bad character or something else.

Justice Potter Stewart: But before these evidence -- they were held out.

That wasn't -- they are not the employees of the prosecutor's office; they are the victims of the hold up.

Mr. John W. Osburn: Exactly.

Justice Potter Stewart: And you didn’t choose them.

Mr. John W. Osburn: Right.

Justice Harry A. Blackmun: In your brief and in the opposing brief the references made to the Mathes' book on Jury Instructions, the 61 edition and also these 65 revision, I see no reference to the 1970 edition in either brief, where the instruction is omitted.

Mr. John W. Osburn: Yes.

I thought that was referred to in the respondent’s --

Justice Harry A. Blackmun: But maybe that source or the use among your trail judges is now eliminated.

Mr. John W. Osburn: Well, of course, Mathes's instructions are federal instructions and our State Courts as the most State Court have their own uniform jury instructions.

Justice William J. Brennan: We see that the Mathes form by many, many years, but the Mathes form was almost universally disfavored, shall I put it by Court of Appeals?

Mr. John W. Osburn: Well it's unusual and that I think as we indicated Judge Mathes was a California Trial Judge and when he had the opportunity to prepare the uniform jury instructions, he put that in, apparently because of his California background, and it immediately met with disfavor by practically every circuit.

Justice William J. Brennan: Is this the only circuit to say however that it has a constitutional infirmity?

Mr. John W. Osburn: There are cases -- many of the cases which, of course, are federal prosecutions, do speak in terms of constitutional infirmity, but they are talking in a context in which they don’t have to put it on constitutional grounds, because the Court of Appeals, of course, are free to suggest that the instruction is a poor one, which it well may be.

Justice William J. Brennan: Supervised.

Mr. John W. Osburn: Yes.

Chief Justice Warren E. Burger: The instruction is that at least one circuit reversed on the pure supervisory powers, I don’t know about the others.

Mr. John W. Osburn: Yes.

And as we indicate there is only one case of the -- nearly the cases that have disapproved the instruction in which, like this case, that's the only issue that's raised.

Normally there has been some other problem, a problem of failure to give an accomplished instruction or something like this, but our concern here is and if the reason for requesting this Court to review the case is that of course there is a constitutional colorable question presented here, of course we recognize that.

Our concern is though that there must be some point at which we say that although a colorable constitutional issue is presented that the constitutional -- the problem is really not one of constitutional magnitude, such as to justify overturning the decision of the jury and requiring the defendant to be tried anew.

I think basically that states our position.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Runkel.

Argument of Ross R. Runkel

Mr. Ross R. Runkel: Mr. Chief Justice, and may it please the Court.

I would just like to quote a couple of more lines from the instruction to be with.

The Appendix, Page 15, the judge instructs the jury on what a presumption means.

A presumption is a deduction which the law expressly directs to be made from particular facts and so on.

And then proceeds to discuss the various presumptions involved of which there are really only two, this truthfulness presumption and so-called the presumption of innocence.

Now, it's our position that the truthfulness presumption is in direct contradiction in terms, in theory, and in effect to the constitutional burden of proof.

The burden of proof means --

Chief Justice Warren E. Burger: Where did you find the burden of proof standards in the constitution?

Mr. Ross R. Runkel: It's in the Due Process Clause, Your Honor.

By decision of this Court and several others.

Chief Justice Warren E. Burger: It's rooted we now say, in the Due Process Clause, but it's not explicit anywhere in the constitution.

Mr. Ross R. Runkel: No, it's not expressed, it's not expressed.

The burden of proof means a number of things.

It can mean the burden of pleading, the burden of proceeding with the evidence, the burden of persuasion, and the only meaning it can really have that has any effect is the burden of persuading the jury of the truth of the allegations.

And so by saying that you were to presume that whatever these witnesses say is true, seems to me that's in direct contradiction to the concept of the burden of proof being on the State.

Chief Justice Warren E. Burger: But suppose counsel that this instruction had been given before any evidence went in as some trial judges in some courts do; give some general instructions of the jurors, particularly jurors at the outset of their service will grasp the burden of proof concept before they hear the evidence.

Now, suppose these instructions had been given in advance, would you think that would lighten the problem any?

Mr. Ross R. Runkel: Now it makes a big difference.

I think the position of the State seems to be that may be the instruction was given at the beginning, because perhaps when the witness first gets on the stand, you might accord him certain deference that he will not either lie or make innocent errors.

But, now we are dealing with a situation where the witnesses have already testified and now you are telling the Jury that they must presume that these witnesses in fact have testified truthfully.

And I would like to contrast that with another point in time where we talk about the truthfulness of witnesses and that's on appeal.

I have cited innumerable cases where the comment is made that witnesses should be presumed to have told the truth.

And here we are doing a completely difference thing.

Now, we are looking back on the case and saying was there sufficient evidence to go to the Jury, and in testing the sufficiency of evidence of course, we take the case in most favorable state and by doing that we presume that the witnesses did tell the truth.

But, that only gets us pass the question of whether the case should go to the Jury.

And now what we are doing in this case is what State is saying, the Judge is saying, this evidence is sufficient, therefore it goes to the Jury, and secondly you must presume that this sufficient evidence is in fact true.

And it seems to me then that there is really no difference at all between the sufficiency of evidence rule which may simply mean that there is some evidence and the rule that the burden of persuasion lies with the state.

It seems to me they are hopelessly confused by this instruction.

But, I would say that if the instruction were given at the outset, it certainly would make more sense.

Now, it's inescapable, we have to talk about presumption and inference cases.

I am taking the position, of course, that this is not really a true presumption at all because a presumption is a situation where you have a fact proved and the Jury has told that from that they should deduce a second fact.

In this case it seems to me there is no proved fact.

But, I think it's important to distinguish the line of cases in this Court, the most recent one being Barnes from the Spring, working all the way back through Gainy, Romano, Todd, Bowen, Black and so on.

Firstly all of which it seems to me involve inferences.

In other words, the Jury has told, you may if you wish link these two facts together in your minds.

In this case the Jury has told you are expressly directed to link these two facts in your minds.

Now, the reformulation of the inference rule in Barnes seems to be that the Judge may instruct on an inference, if a rational juror -- this is not in my brief, because I think that was decided about the time I was in printer’s office.

If a rational juror would be able to link the two facts and find that the presumed fact beyond the reasonable doubt.

But, that's in a mere inference.

Here we are telling the Jury that you must find.

And in that case it seems to me that Judge can give the instruction only if a Judge himself would find that the facts are linked beyond a reasonable doubt, because the Jury has no option at all.

They must find this fact to be true.

And if I can make a comment about Vlandis against Kline which is a whole another situation from the Spring involving an irrebuttable presumption in a civil case.

I take it that the rebuttable presumption in this case is one not lower than Vlandis against Kline.

But you will notice in Vlandis the Court holds that that kind of an irrebutabble presumption can be used only when the fact would follow necessarily and uniformly and certainly we are not asking for that much.

We are only asking that the judge be able to find beyond a reasonable doubt not uniformly and exclusively.

Now, the opinions from the other courts, both within the last ten years and over a hundred year span, indicate first that the presumption of truthfulness is not a standard exception for the reasonable doubt standard.

It has never been simply included as part of the package.

Secondly, every time the presumption of truthfulness seems to raise its head particularly in last ten years, it becomes crushed.

Now, in the Circuit Courts, every time the presumption of truthfulness raises its head the Court seemed to crush it in one session or another.

Justice Potter Stewart: On constitutional grounds?

Mr. Ross R. Runkel: Pardon.

Justice Potter Stewart: On constitutional grounds, not always.

Mr. Ross R. Runkel: I think it is very difficult to read both State cases and Circuit cases from the standpoint of whether they are federal constitutional grounds or supervisory or in the State cases, whether they are state constitutional grounds.

Justice Potter Stewart: Or simply error.

Mr. Ross R. Runkel: Or simply error of our federal constitution.

Justice Potter Stewart: The trial error of a non-constitutional magnitude.

Mr. Ross R. Runkel: In State cases you have three choices, I guess.

But in reading the language certainly of the opinions they usually talk in terms of presumption of innocence, which I think is precisely the same thing as a burden of proof being on the government, and the interference with the prerogatives of the Jury -- and I should say that it seems to me that in three of the Circuit cases, the one we are arguing today in addition Johnson from the Third Circuit and Birmingham from the Tenth Circuit, there really were no other substantial issues involved.

Obviously all of the rest of cases as all cases do involve a number of issues and you can’t get a pure case every time.

Justice Potter Stewart: This probably would arise in a case where the defendant put on witnesses.

Mr. Ross R. Runkel: Well, I think the problem is still there.

It's obviously much more irrational to presume -- not irrational, unfair and unbalanced to presume that only the State's witnesses are telling the truth.

I think it's just as irrational to presume that the defendant’s witnesses are telling the truth.

Justice Potter Stewart: Well, but the instruction is, the presumption is that all the witnesses are telling the truth and that the prosecution’s witnesses say, he is the man and the defendant’s witnesses says, he is not the man.

Mr. Ross R. Runkel: Then it's of course --

Justice Potter Stewart: It doesn't (Inaudible) appear that it balances.

Mr. Ross R. Runkel: Then it's less burdensome for the defendant, but more irrational, because witnesses are almost contradictory and how can you have a presumption they are both telling the truth?

Justice Potter Stewart: Well, but the instruction itself says there are many ways and this presumption could be overcome, does it not?

Mr. Ross R. Runkel: Yes.

It can be overcome.

Justice Byron R. White: In general -- It's sort of a general instruction about the credibility of witnesses and how the Jury is to approach whether to believe a witness or not.

And you say that the state must leave the -- the instructions must leave the Jury completely at large on that question.

Mr. Ross R. Runkel: No, not completely at large at all.

There are many cases in which --

Justice Byron R. White: But, you wouldn't insist that they say that the State witnesses presume not to tell the truth.

You wouldn’t insist on that.

Mr. Ross R. Runkel: Well, I couldn’t object to it.

Justice Byron R. White: No, but you wouldnt insist on that.

Mr. Ross R. Runkel: I wouldn’t ask for it not at all.

Now they must feel free to do something.

Justice Byron R. White: What are they supposed to -- they are supposed to be left completely in neutral.

Mr. Ross R. Runkel: No, I know of no cases that holds that the Jury has to be turned loose at large.

And there are many cases in which it is perfectly permissible even for the Judge to make the comment that in his mind the proof has been made beyond a reasonable doubt.

But, in every case like that I have seen the Judge goes ahead and then says, but now you don’t have to take my words for it.

In this case though the Jury has told that you must find the (Inaudible) he directs you to find.

Justice Byron R. White: To presume.

Mr. Ross R. Runkel: Well, that's why I reread the instruction where the jury has told what a presumption is.

Presumption is a deduction which the law directs expressly to be made.

That is a comment on the evidence.

Justice Byron R. White: But, it's a comment on how the Jury is -- whether Jury is to believe witness or not.

Mr. Ross R. Runkel: No, I think it is not a comment in the sense of this is my opinion, take it or leave it or like an inference instruction is; this is telling the Jury that they must find unless it is rebutted.

Chief Justice Warren E. Burger: Did you tell the Jury that they were the sole Judges and facts the usual --

Mr. Ross R. Runkel: Yes, right at the outset of the instruction.

Chief Justice Warren E. Burger: Do you think that can somewhat nuetralise the --

Mr. Ross R. Runkel: You would think so at first if you only read that -- this is a problem I think that was brought up in the Cool case from last year.

How do you read jury instructions?

Do you parcel them out or you read them all together.

To me, we have to read them together, and if I can read on Page 12 of the Appendix, it says, "The jury is the sole and exclusive judges of the facts and reliability."

It's followed, however, by a sentence which says that the jury’s power is not arbitrary and if the Court instructs you as to the law in a particular subject or how to judge the evidence you must follow the instructions.

And so they are saying, you are the exclusive judges so long as you follow the judge's instructions, and the instructions are that you must find them to be the truth.

Justice Byron R. White: So it's unconstitutional view to instruct the jury that they must believe a witness unless he is contradicted or un-contradicted evidence must be believed by the jury.

Mr. Ross R. Runkel: Well I think if that is unconstitutional, it's probably unconstitutional under the Jury Clause.

In this case as to any witness, in this case of course we are dealing with witness who in fact testified on behalf of the State.

So, that places the burden of persuasion -- well there is no burden persuasion then.

Justice Lewis F. Powell: Mr. Runkel.

Justice Byron R. White: They then, in effect -- the judge in effect told the jury the witnesses you have heard you should believe.

Mr. Ross R. Runkel: You must believe.

Justice William H. Rehnquist: But he did not qualify it by saying the manner of testifying might be taken in to consideration or the contradiction -- he gave the usual kind of qualifications you would expect.

Mr. Ross R. Runkel: I think not Your Honor, they are not the usual ones.

There is nothing here about things on the nature of bias or motivation that they can take into account absent evidence.

Justice William H. Rehnquist: Let me ask you this Mr. Runkel, where it says every witness is presumed to speak the truth on Page 16 of Appendix, then it says this presumption may be overcome by the manner in which the witness testifies, by the nature of his of her testimony, by evidence effecting his or her character interest or motive.

Now wouldn't that include bias?

Mr. Ross R. Runkel: Yes as a matter of evidence, but you see that shifts the burden to the defendant to put on evidence, and in a criminal case the defendant has no obligation to either put on evidence as it relates to the affirmative case.

Justice William H. Rehnquist: Well, but he can -- certainly you can show that the prosecution witness is biased by cross-examination without bringing any witness of your own.

Mr. Ross R. Runkel: That's true, that's true, it can be done by cross-examination and there was a certain amount here, but there is also the burden of persuasion, and you maybe able to get the evidence on by the states on witnesses.

In other words that simply means that you don’t have to go out and drum up witnesses.

But the State still has burden of persuasion that was -- that the facts were true.

Justice Byron R. White: But to me all this did was to disentitle the jury to disbelieve evidence that isn't contradicted.

Sometimes juries are free to disbelieve the only witness in the case.

Mr. Ross R. Runkel: I think they always are.

Justice Byron R. White: Yes.

Well they aren't here.

You say they aren't here.

Mr. Ross R. Runkel: They aren't -- no they are entitled in this case to disbelieve these witnesses and all of them if the defendant persuades them.

Justice Byron R. White: No, in this case where there weren't any other witnesses on the defendant side.

In this case you say the jury wasn't free to disbelieve the Government’s witnesses.

Mr. Ross R. Runkel: I think that's a slide over statement of my argument.

Justice Potter Stewart: Because they were told they could disbelieve it by the very manner in which the witness testified.

Mr. Ross R. Runkel: They were all entitled to disbelieve them.

Justice Byron R. White: Well then what's wrong with it, if they are all free to disbelieve them.

Mr. Ross R. Runkel: The problem is that burden of persuasion has to on the Government.

Now the only time the burden can shift to the defendant is after the Government has carried the burden on almost the crime.

We can put the burden on the defendant to prove insanity, excuse, justification in various defenses.

Justice Thurgood Marshall: Well, why does the defendant has a right to cross-examination?

It's what you say is true?

Mr. Ross R. Runkel: That's separate clause of constitution, Your Honor.

Justice Thurgood Marshall: Well is that?

Mr. Ross R. Runkel: Yes.

Justice Thurgood Marshall: Well, suppose there was an instruction and the court said, you notice all the witnesses and took them all, I won’t tell you what that mean.

That means that if he lies he goes to jail.

Mr. Ross R. Runkel: I don’t think this is a case of perjury, Your Honor, perjury was mentioned by the solicitor.

Justice Thurgood Marshall: What is the difference between that and in saying he is presumed to tell the truth?

Mr. Ross R. Runkel: Truth means what the judge had said it means, which is that that's what the jury is there to find out, is the truth, and truth means objective truth not perjury or lying versus not lying.

Chief Justice Warren E. Burger: Why not the instruction that Justice Marshall just proposed, would you think that was unconstitutional, if the judge reminded them that the witnesses had taken an oath and if they have not told the truth they would be subjected to prosecution for perjury?

Mr. Ross R. Runkel: I think that would -- I wouldn't object to it except that it's not a accurate statement of the law, because not telling the truth is not perjury, perjury is a deliberate and intentional lying on the material facts.

Chief Justice Warren E. Burger: I was taking a shortcut, read that into the instruction.

Mr. Ross R. Runkel: Yes, okay, read and that's fine, but you see that is not what they are being told; they are being told --

Chief Justice Warren E. Burger: Do you think that's less objectionable, less impact on the defendant than what was said here?

Mr. Ross R. Runkel: Yes.

Certainly more rationale.

If a person takes an oath, he knows that he must conform his conduct to the perjury statutes, but there is nothing about taking an oath that improves his perception or his memory or his method of articulation, and that's what we are dealing with when we are talking about telling the truth.

Justice Lewis F. Powell: Well, Mr. Runkel I gather, at 16 after discussing presumptions and the fact the Court instructed, presumptions are to be accepted my you as truth unless outweighed or equaled.

Mr. Ross R. Runkel: Yes, your Honor.

Justice Lewis F. Powell: And then in the second succeeding paragraph, doesn't the Court instruct them how they may be outweighed or equaled namely, overcome by the manner in which the witness testifies, the nature of his or her testimony?

Mr. Ross R. Runkel: Yes but that simply makes it a rebuttable presumption instead of an irrebuttable presumption, of course, an irrebuttable presumption would be worst, but the problem is that overcome means that now the defendant -- or equal means that now the defendant must carry at least a preponderance burden.

Justice Byron R. White: No but the jury -- under that lays a jury on its own motion and its own mind could say this fellow testified in such a manner that we don’t believe him without defendant having to do a thing.

Mr. Ross R. Runkel: Not do a thing in terms of put on evidence.

Justice Byron R. White: No, or even argue --

Mr. Ross R. Runkel: They must persuade them that they should think that --

Justice Byron R. White: The jury has already made up his mind set.

The jury may decide, it doesn't believe him because of the manner he tesitfied.

Mr. Ross R. Runkel: Perhaps that's theoretically true, but I think we have to operate under the rule of the game that the jury will comply with the instructions of the court and will not make decisions based on things off the record.

Justice William J. Brennan: I don’t suppose it would make any difference, but let me ask you Mr. Runkel, suppose in speaking of overcoming the presumption, this being a case where there was no evidence other than State's witnesses, had the court left out by evidence affecting his or her character, because so was none, by contradictory evidence, because so was none, and this has just been left with overcome by the manner in which the witness testifies, by the nature of his or her testimony, would you be making the same argument?

Mr. Ross R. Runkel: Yes, simply because the burden is on the Government to persuade the jury that the facts are true.

Justice William J. Brennan: Yes, but even though this tells the jury, in effect, if you just don't believe and you think the witness is lying then that's not end of the presumption.

Isn't that in fact of the court's instruction.

Mr. Ross R. Runkel: if they believe -- if the defendant can persuade them by a preponderance that the witness is not telling a truth then the witness can be disregarded.

Justice William J. Brennan: May I ask you since I have interrupted you?

In your own experience -- I gather this instruction in Oregon as discretionary by the the trial judge?

Mr. Ross R. Runkel: Yes, and I would like to distinguish that from I think it was --

Justice William J. Brennan: May I ask you a first --

Mr. Ross R. Runkel: Yes.

Justice William J. Brennan: In your own experience, does it make a difference for the Trial Judge whether the defense has put on a case?

Mr. Ross R. Runkel: I don't think I can answer that from my own experience, Your Honor.

But I would like to distinguish that from the concept of a permissive situation that it is permissive only in the sense that the judge is not statutorily commanded to give the instruction, but it's not permissive in the sense of an inference as opposed to a presumption.

Now, I would like to make a couple of other comments.

One is that for the life of me, I cannot understand what interest the State of Oregon has in giving this instruction.

It seems to me they don't need it, it's something --

Chief Justice Warren E. Burger: I think there is general agreement on that in the profession, don't you think?

Mr. Ross R. Runkel: I think so, but it seems to me that when we are dealing with concept of due process and the burden of proof, that the States need or previous cases argued today talking about compelling state interest, state has virtually no interest at all in having this instruction, and in the due process area, I think the State's need is a relevant criterion.

Now as far as the harmless error doctrine goes --

Justice William J. Brennan: How do you read what the Ninth Circuit had said about harmless error, it's constitutional error automatically -- it is a judicial --

Mr. Ross R. Runkel: It's never been the rule in Ninth Circuit and --

Justice William J. Brennan: Well, what what does this language mean in the opinion?

The appellee also contends that the instruction -- I am looking at Page 21 of the -- even a federally defective under the federal constitution was in the circumstances -- harmless beyond a reasonable doubt, we reject this argument also once not established infringement of a constitutionally protected right, the burden shifted to the appellee to establish that the error was harmless.

Mr. Ross R. Runkel: Well, I think that's the law under Chapman and Harrington, and the court, the Ninth Circuit is simply saying that the State has not carried its burden of showing that the error was harmless beyond a reasonable doubt, which is I think an impossible thing to do in any event.

We are saying that if we apply harmless error rule and I am taking the position, of course, that the harmless error rule cannot apply here, you are saying that an Appellate Court can determine beyond a reasonable doubt that if the jury had been given proper reasonable doubt standard they would have convicted anyway.

It's quite impossible to engraft these other harmless error cases into this one, because the harmless error cases ordinarily involve maybe a little comment that the defendant didn't take the stand or maybe a little extra illegal heroine introduced into a drug case.

Justice William J. Brennan: Well, your argument does rest on our acceptance of your proposition that this was a constitutional error, instruction is a constitutional error, doesn't it?

Mr. Ross R. Runkel: Absolutely, and the fact that the evidence was sufficient does not mean that the error was harmless, because you can stack up 15 or 20 witnesses and if you presume that they have all told the truth, then you would never have a burden on the State and any case would be harmless.

Chief Justice Warren E. Burger: Evidence a little bit more than sufficient we would say -- you are not suggesting that it is just to enough to get the jury --

Mr. Ross R. Runkel: Well, I don't think there is any distinction that we made between just enough to get a jury and --

Chief Justice Warren E. Burger: Well, that's a different point.

Your position then would be that it doesn't make any difference, the weight of the evidence is irrelevant on this point.

Mr. Ross R. Runkel: No I think the only relevant point is what if the juror complied with the instructions, what logical steps would he take in reaching his burden, apart from the quantity or the quality of the evidence.

Although I would point out that we are -- accepting the state's argument on harmless error that it could be harmless, where was the gun 10 minutes after the robbery, where was the so-called raincoat the robber wore, why was he driving the car and there were two other people in the car, why did the police arrested three defendants in the car and only charged one with the crime?

It seems to me there is some doubt here about guilt and innocence which the jury might have considered, if they were not require the believe the state's witness.

Thank You Your Honor.

Chief Justice Warren E. Burger: Do you have anything further Mr. Solicitor General?

Rebuttal of John W. Osburn

Mr. John W. Osburn: Just briefly your honor.

We assume I think as lawyers that the words that we say in a courtroom are hung on by the jury and that they attach great significance to them, and we have talked now both in briefs and in oral argument about this instruction.

Remember this is an instruction that went to the jury in about 15 seconds and they heard that middle of all kinds of other instructions about other things.

We ask a great deal of jurors.

We bring people in who are cab drivers and housewives.

We sit them down in a courtroom and we parade witnesses in front of them and then ask people to make a decision.

We think the fact finding system here was fair that the adequate evidence was presented, and that there was nothing essentially wrong with the standard which was employed by the court, that instruction is not a model but it's just not that bad.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Runkel you came here at the request of the Court and by our appointment.

On behalf of the Court, we thank you for your assistance to the man you are representing and your assistance to the Court in presenting the case.

Rebuttal of Ross R. Runkel

Mr. Ross R. Runkel: Thank you Your Honor.

Chief Justice Warren E. Burger: The case is submitted.