DAVIS v. ALASKA

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Argument of Robert H. Wagstaff

Chief Justice Warren E. Burger: We'll hear arguments next in 72-5794, Davis against Alaska.

Mr. Wagstaff, you may proceed whenever you are ready.

Mr. Robert H. Wagstaff: Mr. Chief Justice and may it please the Court.

The issue presented to the Court in this case is the virtual confrontation of the Confrontation Clause of the Sixth Amendment against a state statute and court rule which provides that juvenile record shall remain secret and anonymous in virtually all cases, save when the juvenile is being sentenced as an adult and the court in its discretion feels that the juvenile record would be relevant or desirable.

In this particular case, the statute and court rule was applied when a juvenile was testifying for the prosecution as a chief identification witness against the accused, petitioner Davis.

Now we sought at trial to use this -- his juvenile record, not simply to impeach his character with prior wrongful acts, but rather to show that he had biased, prejudiced and was testifying out of fear and favor when he identified petitioner Joshua Davis at trial.

The court's protective order or the court entered a protective order, the trial Court did, during the voir dire examination for the jurors and at that time, the issues were fully raised or actually presented in our briefs today.

The confrontation issue was argued to the Trial Court.

There has here been a significant diminution of cross-examination and this calls into question integrity of the whole fact-finding process and requires that the competing interest be closely examined.

The facts of the Davis case really bespeak the legal issues raised.

A safe was found on some property next to a truck, approximately 25 miles from North of Anchorage, Alaska.

The stepson of the owner of this property, owned this particular truck and was on a probation for burglary as a juvenile.

He had committed acts which should he have been an adult would be burglary.

He had been adjudicated a juvenile delinquent and was under probation at that time to the Juvenile Court, he was sixteen years of age and lived on this particular property.

Chief Justice Warren E. Burger: Was that his only collision with the law?

Mr. Robert H. Wagstaff: To our knowledge, we never actually were provided with the record at that time, but the respondent has admitted in essence what I have just related to the Court in their particular brief, we don't believe that's at issue.

We desired to bring this fact out to the jury in order to show that this witness was initially afraid that he was going to be linked into a burglary charge himself because this witness turned out to be the key critical identification witness and indeed the one essential witness had trialled against Joshua Davis.

The story that Mr. Green, the boy Green gave to the police officers when they came up to investigate the situation was that earlier in the day he had been walking in the area where the safe was found and observed two black men to be standing near a recent, a late-model Chevrolet automobile metallic in color.

He said that he talked to them briefly and asked what they were doing there and he asked they had any trouble and they related that they just said something to him, “Is your father here?”

He progressed.

He said no.

He progressed and came back later and stated that he observed these two men on same position, one with a crowbar.

He stated that he probably could identify them.

The next day Green was taken down to the police station in Anchorage and apparently coercive environment to begin with, coupled with this, he was taken into a small room in the presence of four detectives, seated between the two chief -- the two actual investigating officers, one of them was packaging pistols apparently in connection with another case and given either five or six photographs and asked to see if he could identify one or both of the persons that he claimed to have seen standing where this safe was found.

Now at this particular point in time, our theory of the case and the one that we were precluded from presenting to the jury was that Green was under a lot of pressure then to identify someone else.

He in his own mind if not actually was a suspect of this burglary and was under strong impetus to in fact pick someone out of these photographs in order to take the heat off of himself.

Again, the jury was not aware of these circumstances.

He did in fact take a picture out, one of which was the picture of Joshua Davis.

There was a subsequent line up and then an identification at trial.

Our point is that when this initial photographic identification was made, Green was then and from that point forward locked into this identification and this was the critical point in time when the identification --

Chief Justice Warren E. Burger: Before you leave that police station situation, I noticed on page 34 that you were referring to earlier, there was a general question in the course of the trial.

Had you -- this is addressed to Green, had you been questioned like that before by any law enforcement officer?

I would assume for the moment at least that that was some kind of an effort to perhaps lay grounds for impeaching him and he answered no, when in fact as we now know on the total record, if he had been involved as a juvenile and was on probation, he must have been at some time interrogated by police officers in the past.

Mr. Robert H. Wagstaff: That's correct, Mr. Chief Justice.

Chief Justice Warren E. Burger: Did you pursue that by way of any impeachment at a later point?

Mr. Robert H. Wagstaff: In the trial?

Chief Justice Warren E. Burger: Yes.

Mr. Robert H. Wagstaff: No, I did not.

An objection was made at that time when I asked that question.

There was a negative response.

That objection was incomplete, attempting to raise in the jury's mind and the court said simply I'll sustain the objection and at that point I believe that the court and the record reflects was referring to its prior protective order that we couldn't get into that particular area.

Respondent attempts to limit the meaning of that question with the words like that.

I think when the question is read in conjunction with the prior questions which was and then you went into the investigating room with Investigator Gray and Investigator Weaver, yeah, and they started asking you questions about the incident, is that correct?

Yeah.

Have you ever been questioned like that before by any law enforcement officers?

The answer was no.

Again, we feel that this answer itself was -- must have been untruthful and we were precluded from showing this to the jury.

Also we not only were prohibited from cross-examining Green on this point, but the police investigators as well with respect to particular pressures they may have put on Green at the time of the initial photographic identification.

Particularly Investigator Gray was asked, did you at any time suspect Green to be involved in this burglary?

He responded no.

Cross-examination at that point was precluded on how is your negative response consistent with your knowledge that he in fact was a juvenile on probation for burglary.

The safe was found on his land next to his truck.

Again that question was precluded.

The prosecution at trial made the most of their protective order.

The jury was in essence given a distorted view of exactly what Green was and who he was.

The protective order of course came during the voir dire examination, so any mention of the problem, the juvenile record would not come before the jury.

In closing the argument, the prosecution stated that the petitioner's entire defense, which -- our entire defense was that the Green's identification was unreliable, that he was under pressure.

We tried to show just by the fact that he was -- the safe was found on his property next to his truck that he would be under pressure.

That was our defense, this was developed an opening statement throughout the trial and closing argument.

The prosecution in the closing argument claimed that this was a total red herring issue, one that we had just made up and that there is no basis for this belief.

He also said and I am referring to pages 422 and 424 of the transcript that our defense of bias and prejudice in fear and favor on part of Green came as a result of pure suspicion of society and suspicion of law enforcement officers.

Of course, the prosecutor must have known in his own mind, at least, the origins of our attack on witness Green's credibility and any bias or any fear and favor he had in testifying, that came from other independent sources than that.

As a result of Green's identification at the station house, his search warrant was obtained for the car belonging to petitioner Joshua Davis.

A search was made of records of rental car agencies, the police suspected because of the description of the car, maybe it is a rental car.

They found the car rented to petitioner, obtained a search warrant for the premises, his house and also vehicle.

As a result of this search, they found evidence inferentially relating petitioner's car to being present perhaps at the scene or actually with having had a safe, perhaps, in the trunk of the rented car at one time as to extent of the other evidence presented against petitioner at trial.

The actual evidence in the trunk of the car were insulation fibers that could have come from a safe and paint chips that could have come from the safe.

This was the extent of the identification of these particular substances.

There was no -- there were no fibers or paint chips found on petitioner's clothing or on shoes or nor was the money found that was allegedly in the safe.

None of the things that the search warrant basically was seeking were ever found, just these small items of evidence.

This is important, of course, to lead to the significance of Green's identification, the crucial nature, the essential nature of his testimony.

Its essential nature, I do not believe is actually in dispute.

It was admitted at trial during the motion for a protective order described as essential witness with that very word.

Also, the Alaska Supreme Court in their opinion described him as an essential witness, that the case could not have been made without him.

The trial judge ruled on the issue, on the basis strictly of the state statute and the rule involved.

He initially was inclined to rule in our favor as the record reflects and stated when he reversed himself that he really didn't agree with what he was doing, but he felt constrained to do so by a specific court rule in Alaska and which is cited, of course, he is doing--

Justice Thurgood Marshall: Of course Joshua Davis had a juvenile record with that, would you allow that to go with it?

Mr. Robert H. Wagstaff: His juvenile record?

Justice Thurgood Marshall: I said suppose that he did have one, would you allow that to go with it?

Mr. Robert H. Wagstaff: Absolutely not.

His record would not be, he did not testify for one thing, but assuming that if he had testified then the state statute would have prohibited and the rule prohibited from being used against him in a subsequent criminal prosecution as it should be.

Justice Thurgood Marshall: The difference is what?

Mr. Robert H. Wagstaff: The different is what?

Well, in this case, that Green was not being accused of anything, the record was not sought to be used against him strictly.

It was sought to be used to impeach his credibility, not even necessarily to attack his character, but that he was testifying under fear and favor and if there is any conflict between that particular state law and rule in the Sixth Amendment, then the statute and rule must exceed to the Sixth Amendment, the Confrontation Clause.

Justice Byron R. White: You said -- did you say, you wanted to use the record to impeach his credibility?

Mr. Robert H. Wagstaff: Green's credibility, yes, and to show that he --

Justice Byron R. White: What did the Alaska Supreme Court mean when it said that Davis' claim is not to be interested in impeaching the juvenile, but rather desire to show bias, prejudice or motive and that the witness was under pressure to shift suspicion from himself to another, is that a current reflection of what you wanted to --?

Mr. Robert H. Wagstaff: Yes it is.

We are talking about impeachment and credibility.

Justice Byron R. White: He just was interested in introducing the record to show that he had a criminal record and he might not be reliable or truthful?

Mr. Robert H. Wagstaff: No, we weren't using it under the state rule of evidence which provides that impeachment of character may come about by showing a specific bad action and we weren't attempting to do that.

Justice Byron R. White: That kind of impeachment goes to sort of a general attack on credibility?

Chief Justice Warren E. Burger: On character.

Mr. Robert H. Wagstaff: The distinction that I would make is that would be an attack on the witness's character.

In this case, we wanted to make a specific attack on his credibility to show bias and prejudice.

Justice Byron R. White: But just for the limited purpose of showing bias, prejudice or motive in the sense that he had some special reason for cooperating with the police?

Mr. Robert H. Wagstaff: Yes.

Justice Byron R. White: Because he was on probation?

Mr. Robert H. Wagstaff: Yes.

That -- there would be two parts to what his special motive for the identification would be.

The first part would be to take the pressure off himself when he made that initial identification shortly after the safe was discovered on his property next to his trunk, that he was very anxious to do that, that the investigation be turned away from him, at least, as he thought in his own mind, and secondly, that he would have impetus to testify just by virtue of the fact that he was on probation and would somehow hope --

Justice Byron R. White: But if any of you had a more limited reason for wanting to enter -- to use the record then you might have had?

Mr. Robert H. Wagstaff: No, I don't think I understand your question, Justice White.

Justice Byron R. White: Well, the appellant -- he claims not to be interested in impeaching the juvenile.

Now, we put that aside whatever it is, you are left with something that is less than --

Mr. Robert H. Wagstaff: I have tried to cover that somewhat in my reply brief that when the term impeachment and the term attack on credibility have been used somewhat interchangeably and I tried to distinguish them at least for purposes of my argument in the cases that I have cited in support of our position also make that distinction.

Justice Byron R. White: The reason I was interested in this is the Alaska, the state Supreme Court seem to say that with respect to this limited reason for wanting to use the juvenile record that that reason was amply satisfied by this scope of cross-examination which was allowed.

Mr. Robert H. Wagstaff: I don't think that the Alaska Supreme Court was limiting themselves to strictly impeachment in the terms of the particular civil rule.

I think, they were talking about a general impeachment attack and I think that to define under two subheadings, under the word impeachment, attack against character and attack against credibility.

The case --

Chief Justice Warren E. Burger: How do you separate those two?

I confess that I could not understand what the Supreme Court opinion meant when they said that you were not attacking impeachment but whatever name you will call it, if you try to underline the jury's acceptance of the testimony given, it is impeachment, is it not?

Mr. Robert H. Wagstaff: I agree with that completely Mr. Chief Justice.

I think what report must have made was using -- they're using the term impeachment as a word of art, particularly, and I cited it in the first part of my brief under Alaska Civil Rule 43.

It talks about impeachment by an adverse party and then it goes on that a party may not be impeached by evidence of wrong, particular wrongful acts except that it maybe shown by the examination of the witness or the record of a judgment that he has been convicted of a crime.

I think that's what the court was talking about then.

We weren't attempting to do that, although, as I've argued in my brief I think that that even should be allowed and let the jury determine the particular significance.

Chief Justice Warren E. Burger: Well, maybe that you weren't quite pushing for that in the state --

Mr. Robert H. Wagstaff: I wasn't pushing for that and we aren't pushing for that now because it's not necessary in this case, but I think it should be.

Justice Byron R. White: Because it would be that you could use a prior criminal record for impeachment for a purpose that is wholly aside showing bias.

Mr. Robert H. Wagstaff: Yes, that simply this person is a bad person.

Justice Byron R. White: Yeah, and he may not be truthful?

Mr. Robert H. Wagstaff: Yes.

Justice Potter Stewart: Excuse me?

Justice William H. Rehnquist: And it might be that a jurisdiction such as Alaska might wholly abolish the rule that permits impeachment simply by showing a prior conviction and I take it your argument doesn't go to any such general abolishment?

Mr. Robert H. Wagstaff: No, it does not and of course there is a perceptible trend in that direction, but we were not limiting, we were not offering it solely for that purpose and actually that was the secondary purpose.

The primary purpose was to show that this witness in his own mind, by virtue of the fact that he was on probation for burglary would feel that he was a suspect.

Justice William H. Rehnquist: You might have had the situation for showing that if he were simply charged as a juvenile and not even finally adjudicated?

Mr. Robert H. Wagstaff: That's correct.

It could be -- his mind is what is critical and the jury should be allowed to determine what factors were present in his mind, what pressures he would feel.

We relied very heavily on of course two cases where this is discussed greatly off a case in Smith versus Illinois and I think those cases are directly applicable here.

Justice Potter Stewart: As I read the opinion of Chief Justice Boney and that part appearing on 59A of the appendix, he was simply describing your argument.

He says that you recognize that the majority of the case law is against you, so far as cross-examining a juvenile prosecution witness goes, in order generally to impeach him and that therefore you are trying to take your case out of this general rule and show that you have very special reasons, special circumstances to do it here and particularly in the light of his footnote point on that page.

Now you know what you argued to the Alaska Supreme Court, I don't, but this seems to be a reflection of the argument you made, that you are not under the general rule, you are under the exception rule.

Mr. Robert H. Wagstaff: That's correct.

Justice Potter Stewart: Because of the special circumstances in your case --

Mr. Robert H. Wagstaff: That's correct.

Justice Potter Stewart: -- of this particular witness having been found delinquent by reason of larceny and of this stolen safe having been found next to his trunk and therefore that he was under some particular reason to testify against your client, that that wasn't just a case of general impeachment, that's what I understand, is that my --

Mr. Robert H. Wagstaff: That's correct.

Justice Potter Stewart: One has read it?

Mr. Robert H. Wagstaff: No, I think that's absolutely correct Justice Stewart.

Justice Potter Stewart: And the court went on to think that if that was your purpose, at least their view of the evidence was and at the cross-examination that you had ample opportunity to satisfy that purpose, within the cross-examination that you were allowed?

Mr. Robert H. Wagstaff: That's correct.

Justice Potter Stewart: That's what they say?

Mr. Robert H. Wagstaff: That's what they found, but, of course, the questions that were permitted were only self-serving general questions such as did you feel you are under pressure Mr. Green, do you feel you might be a suspect?

Questions like this which he answered negatively, which he would --

Justice William H. Rehnquist: Nothing in the trial court's ruling prevented you from going into the fact that the safe was found on his property and that he had some relationship with the owner of the truck, and you were perfectly free to follow up that as you chose?

Mr. Robert H. Wagstaff: Yes, but that's the extent of it.

We could not bring it home to the juries as the Chief Justice Rabinowitz points out in his dissent, the pressures that Green must have had felt in his own mind and when he denied that he felt these pressures and when he denied that he had ever been questioned by a police officer before.

These were questions that were ripe for exposure and cross-examination that the witness either had a very bad memory or was lying or whatever other reasons can be expressed.

Justice William H. Rehnquist: Couldn't you under Alaska practice had moved to have his no answer to your question whether he had ever been questioned by a police officer stricken since the trial judge sustained an objection to the question?

Mr. Robert H. Wagstaff: It was not my objection.

It was -- I think, the demotion would have been made -- that motion to strike would have been made by the person making the objection, the prosecutor.

I think that the normal trial practice is let the answer stand, it's been made.

I would like to reserve the rest for rebuttal.

Justice Thurgood Marshall: Mr. Wagstaff, can I ask you (Inaudible)

Mr. Robert H. Wagstaff: Well, I didn't know was of course.

Justice Thurgood Marshall: You wouldn't bound by it?

Mr. Robert H. Wagstaff: You know I would be bound by --

Justice Thurgood Marshall: (Inaudible)

Mr. Robert H. Wagstaff: Yes, the order, protective order --

Justice Thurgood Marshall: It was outstanding and yet you asked that question that you got the answer no, but you were stuck with it, because of you asking the question?

Mr. Robert H. Wagstaff: That's correct.

Chief Justice Warren E. Burger: Mr. Merriner.

Argument of Charles M. Merriner

Mr. Charles M. Merriner: Mr. Chief Justice and may it please the Court.

As I read this Court's confrontation cases in determining the damage that has been done to the integrity of the fact-finding process, I see that the focus is on two things.

One is the cruciality of the un-confronted testimony and the other is that this Court likes to see just how mislead the fact-finder has been by not hearing the confrontation that has been denied.

And I must concede that Richard Green's testimony was crucial to the state's case against Joshua Davis.

My argument is that the jury was not significantly mislead by the denial of cross-examination, by not having heard about the juvenile record and by not hearing cross-examination in this area.

Justice William J. Brennan: Is that a harmless error?

Mr. Charles M. Merriner: No, Your Honor.

My argument is that the testimony was reliable enough that the jurors were authorized to hear it, even though they did not hear these facts that impeached the testimony and they did not hear cross-examination in that area.

In determining just how mislead the jurors were, I would like to emphasize here at the outset that Richard Green was on the stand, he was immediately cross-examined, in all areas except this one.

He was under oath.

The jury was able to observe this man's demeanor as he testified and although Mr. Wagstaff could not cross-examine him in this one area, he was able to bring out questions concerning whether or not this person thought himself to be under suspicion and therefore, whether or not he had a motive to quickly identify somebody else or to fabricate his story in order to help himself in some way.

Chief Justice Warren E. Burger: Mr. Merriner, we now know, do we not, that on page 34 he did answer one question falsely?

Whether it was --

Mr. Charles M. Merriner: I would dispute that Your Honor and --

Chief Justice Warren E. Burger: You mean that it was a false answer?

Mr. Charles M. Merriner: Yes, Your Honor.

Chief Justice Warren E. Burger: What do you think it was?

Mr. Charles M. Merriner: Mr. Chief Justice I pointed out in footnote 3 on my brief, it's on page 13 that this response was not untruthful because this inquiry referred to being questioned as a prospective witness and not as a prospective accused.

The words were, have you ever been questioned like that before?

This man was a witness and he was not a prospective accused.

We don't know whether or not the police officers questioned him at all when he was picked up for his juvenile violation.

Chief Justice Warren E. Burger: Well, isn't that then if that extraordinary, very extraordinary suggestion that you make were possibly true that they didn't question him, isn't that something that might appropriately been the scope of further examination?

Mr. Charles M. Merriner: Yes, Mr. Chief Justice.

Now, I submit to this Court that when this question was answered in this way, if Mr. Wagstaff had thought here that there was perjury involved, he could have asked for the jury to be excused, could have gone into this further, but there was an objection of Mr. Ripley, the prosecuting attorney said, I am going to object to this, Your Honor.

It's a carry on with rehash of the same thing.

He is attempting to the raise in the jury's mind.

Court simply said, I will sustain the objection.

Mr. Wagstaff at that time could have made an offer of proof, an offer of proof that perjury had been committed.

And if he could have shown that, then I would think that the Court would have had to have allowed in this juvenile record, because if you have got perjury on the stand, certainly, the defense counsel should be able to impeach with whatever means is necessary to bring out the fact that there has been perjury on the stand.

As the record now stands and he has never raised this.

In his brief he simply says in this one statement, counsel asked if he had ever been questioned before by law enforcement officers?

His answer was, no.

And he doesn't say in there, just show that the man purged himself, the implications raised, of course, and that's the reason I have put in my footnote 3, but as to final draw --

Justice William J. Brennan: In the face of your -- that Rule 23, you suggest that in the circumstances that you oscillate that you might have got the criminal record in?

Mr. Charles M. Merriner: Yes.

Justice William J. Brennan: Well, that would certainly be contrary to the prohibition of the Rule 23, wouldn't it?

Mr. Charles M. Merriner: Oh, yes, but of course, a rule cannot stand if it's unconstitutional for its application, to be -- for it to be applied and there is another rule in the Alaska Criminal Rules, Rule 57 which says that in the interest of justice, we can't dispense with any of the foregoing rules.

The rule would I submit have had to have been abandoned at that point, if during the offer of proof, it had come out that Richard Green had perjured himself by the statement, then I would think that defense counsel would have been able to bring out the juvenile record at that point or his right to confront the witnesses against him would be denied.

But Mr. Wagstaff in getting off this point, was able to question closely about whether or not Richard Green considered himself under suspicion.

And as the Alaska Supreme Court stressed, the jury was able to observe his demeanor while he was being questioned this way.

The facts that work out from the jurors did somewhat impeach Richard Green's testimony the fact that he had been convicted of a crime, did somewhat impugn his credibility that's being a larcenous type crime, a burglary of two cabins.

The fact that he was on probation showed that he had somewhat of a motive to quickly identify somebody else to hoist the blame onto someone else to take the suspicion that he felt was on himself or perhaps even to fabricate his story in order to aid himself in the eyes of the law enforcement people he had to deal with.

But, these facts are not that impeaching in themselves.

As for the argument that the conviction it show -- itself impeaches his credibility in the sense that this was a larcenous type crime.

Mr. Wagstaff is not relying much upon this argument.

As Mr. Justice White was bringing out, the Alaska Supreme Court, indicated in the opinion that this was not Mr. Wagstaff's main argument that it should have been brought in as a conviction itself to impeach credibility.

He has a further argument, that is, that there was a motive here because of the probation.

Mr. Justice Rehnquist mentioned the possibility of totally abolishing for any witness, the use of prior records.

Now in February this year, Alaska -- the Alaska Supreme Court did promulgate a rule, that says you cannot use for any witness, any criminal conviction if it is over five years old.

I can see problems there.

If there is a perjury conviction and that's six years old in the state's witness as the perjury conviction behind him, is a crucial witness.

I can definitely see there are problems that the defense counsel would be denied his right to confront, if he could not answer a question.

Justice William H. Rehnquist: Well, you then treat the right to confront not mainly the right to cross-examine generally, but the right to cross-examine about any subject that the defense counsel chooses?

Mr. Charles M. Merriner: If by not being allowed to go into this area, the jury is rather greatly misled about the reliability of his testimony, that testimony is crucial, yes.

Justice William H. Rehnquist: Well, what if the state recognizes a husband-wife marital communication privilege and that privilege is claimed by a witness on the stand as being cross-examined by defense counsel, do you think that the state court has to abolish that in the interest of confrontation?

Mr. Charles M. Merriner: Well, I know in Washington v. Texas, this Court stressed the fact that they were no way indicating that these privileges were being questioned.

But I could see the possibility of the defense knowing about some communication made to a husband, wife is on the stand, crucial state's witness.

Some communication that you know, she tells him, I am going to get up on the stand and lie and I can see there that if the state just went ahead and applied the rule without any much consideration about, I can see that the denial of confrontation wouldn't exist --

Justice William H. Rehnquist: Well, have any of our cases ever gone there far?

Mr. Charles M. Merriner: No, Mr. Justice--

Justice William H. Rehnquist: Well, you are arguing for the state, aren't you?

Mr. Charles M. Merriner: Yes, but I am arguing here that the focus should be -- the test should on the cruciality of the testimony to just how misled were the jurors.

Now, this test will apply to any fact situation or apply to any privilege his equity of privilege whatever and it maybe that all rules in some situations would have to fall.

Justice Mr. Justice Blacknum: Of course, the prosecution always has the privilege in not raising the rule?

Mr. Charles M. Merriner: Yes, assuming the court does not on its own do so.

Now, as to the impeaching quality of the fact that Richard Green was on probation.

The record contains no indication that he stood to gain anything significant at all by his actions.

The record contains no indication that he in anyway was involved in that burglary that he stood to separate probation obligation.

Chief Justice Warren E. Burger: Well, of course, have there been the usual scope of cross-examination, we might have a record that would disclose some reasons that we can now only speculate about?

Mr. Charles M. Merriner: Yes, but in light of how impeaching these facts were generally, which I have submit are not that impeaching and in light of the extensive corroboration of this man's testimony, it seems apparent that any further cross-examination into this area would not have raised any hidden doubts in the jurors' minds, doubts that are not present in this record.

This extensive corroboration shows that his testimony would not have cracked under further examination.

Justice Thurgood Marshall: How in the world can you say that?

Suppose he asked the question did the police officer say that, look, you are under probation, you are under this and you are under that, you have committed a crime exactly like this and that's one you were convicted for and it is either you or who else?

You mean, that wouldn't help?

Mr. Charles M. Merriner: Let me go into just how corroborative this testimony was and I think that when you realize just how corroborated it was, then you will see that by asking these further questions, that testimony would not have been changed.

Justice Thurgood Marshall: Well, I have great difficulty in being able to take a very careful pair of calipers in find out what goes through a juror's mind.

That will (Inaudible)

Mr. Charles M. Merriner: In these confrontation cases, that's the question that has to be asked, just what would the jurors have thought.

The test is what the average juror would have thought, an average (Inaudible) brings up, but that is the question has to be asked.

Now the confrontation --

Justice Thurgood Marshall: Do I know what the average juror In Anchorage Alaska would think?

You may assume I have never been there, except the going through on the plane.

Mr. Charles M. Merriner: It's even colder than this up then.[Laughter]

But, if we look at just how corroborated his testimony was, we'll see that these hidden doubts would not have been raised by further examination, any significant hidden doubt.

Now, perhaps most importantly, there was a story given to the trooper on the very day that the burglary occurred on the very day that the safe was found out at his stepfather's property.

And he said I saw these two men beside a late model, metallic blue, Chevrolet Sedan.

The very next day he went down to police station.

He picked out, out of six pictures, and I believe the record will show that, I know will show that the Alaska Supreme Court opinion is wrong in that respect, there were six pictures.

They are identified in the record, exhibits 25-30 I believe.

He picked out and also the Alaska Supreme Court opinion is wrong when it says, he picked two pictures, he picked out one picture, the record will show.

So he picked out of six pictures, the picture of the petitioner.

He was able to do this even though it was ten years old.

He did not show the petitioner with a mustache in the picture.

Although at the scene of the burglary he had a mustache at the lineup, two days after the photo lineup he had a mustache and two days after the photo identification there was a Capoeira lineup.

He again picked the man out, out of a group of seven men.

He picked two men at that time, one as representing the other man.

So he picked Joshua Davis, and as it turned out the evidence was that Joshua Davis had rented a late model of 1969, burglary having occurred in February of 1970, metallic blue, Chevrolet Impala.

At this point, maybe I should mention that Mr. Wagstaff contends that there was a coercive atmosphere there.

Yet, there really is nothing in record, that shows there wasn't anything suggestive about the photo identification, nothing at all.

He was in a room down at the police station true, but there is evidence in the record that no indication was made during the pick out of such and such a picture.

His testimony to that affect is none to the contrary.

Nothing at all on the record showing that the photo identification was suggestive.

There is lots of evidence about how this lineup was conducted, again nothing, the Capoeira (ph) lineup, nothing indicated, that wasn't anyway suggested.

Now, not only did he rent the car that was described, but the police developed evidence or discovered evidence that on the day of the burglary, shortly afternoon, Joshua Davis extended the rental contract by paying from a large roll of bills, $50, and two rolls of quarter.

And the story that Richard Green had given was that he had seen these men out there shortly before noon.

Also, in the trunk of the car there were paint chips and fibers, found that, I submit, virtually conclusively show that that safe was in that trunk.

Now --

Chief Justice Warren E. Burger: Well, then are you, are you really not so getting pretty close if not on a harmless error argument here?

Mr. Charles M. Merriner: No, Mr. Chief Justice.

When you look at the harmless error argument, you look at whether or not the jury would have been swayed to vote differently, if it had heard this evidence.

Now I have just given you some evidence that the jury hasn't even heard, that is, the contract extension.

Jury never heard about that.

I submit that the test is whether or not this evidence was reliable, viewing all that we know about this testimony, you know, all we know, was it reliable enough so that this jury was given reliable testimony was not misled as to this testimony, so that an innocent man was not convicted.

It is not an harmless error argument as such and that you do look at other evidences, aside from what the record contains, not that the jury heard.

Mr. Wagstaff says that all that the paint chips and fibers showed was that, a safe could have been in the safe.

The FBI agent told about performing a microchemical analysis on the fibers and he said that he had never found this particular composition materials in the fibers anywhere within safes.

He compared the fibers from the safe with the fibers in the trunk, he said they matched.

He said that just by looking at the fibers in the trunk, he could almost conclude for sure that they came from a Mosler safe, this was a Mosler safe, and you have the paint.

There were three layers of paint.

Again a microchemical analysis on each layer was the same.

The evidence virtually shows beyond any doubt that that trunk did contain that safe at one time.

Also, Richard Green, when he first told the story to the trooper, said that the man he talked with, whom he later identified as Joshua Davis, who was wearing a brown or black mackinaw jacket.

When the safe was later examined, there was found to be of little reddish brown material on one of the rough edges where it had been broken into.

Joshua Davis's description is given by Richard Green did not vary from his actual description and as to the tires in the reply brief, Mr. Wagstaff said that I unduly relied upon the evidence concerning the tires.

There were two sets of tire tracks out there, and one set of tire tracks went up to where the safe was found.

There had been a snow two or three days earlier.

These were the only tire tracks there.

The officer investigator Gray testified that he examined the two sets of tire tracks, both appeared to be made by snow tires.

The two tracks had been made by different vehicles and then when he was asked by Mr. Wagstaff, at questioning, he said the snow tires on the rear of the vehicle appeared to be the same and he met there and it was clear from the questioning, appear to be the same on these tracks that led up to the place where the safe was dumped off, as the tires on the back of the vehicle.

So you have all this corroboration.

The other fact that he was on the stand and the jury was able to observe his demeanor, he was under oath to the extent that he was cross-examined and his testimony contained sufficient indicia of reliability to justify the jury having heard this testimony even without the denied cross-examination.

The jury still possessed a satisfactory basis for examining the truthfulness of this testimony and Joshua Davis was not denied a fair trial.

In the confrontation cases of this Court, the thing is look not only to the damage done to the integrity of the fact-finding process, but the cases look to the underlying reasons behind the denial of the confrontation.

And if there has been a significant misleading of the jury concerning crucial testimony, that reason has to be closely examined.

In this case the jury was not significantly misled concerning the crucial testimony, but even if we close examine the -- closely examine the reason behind denying the cross-examination in the area, the juvenile record here, it will bear up to the the scrutiny.

If juvenile records had to be revealed in cases that would not benefit in which it would not benefit the defense, anymore than it would have in this case, then many juvenile records will have to be revealed.

And, of course, that will open somewhat of the breach and the juvenile system structure and there will be an attempted to damage to the system as such and it will adversely affect many juvenile witnesses who have juvenile -- many witnesses who have juvenile records and it will especially affect us, you are still being rehabilitated at the time they have to take the stand such as was the case here with Richard Green.

Justice Potter Stewart: Mr. Merriner, you began this, your statement by saying up juvenile records have to be revealed in a case that would not be of greater benefit to the defense than in this particular case.

Are you suggesting then that the rule should not be that the juvenile record is always inadmissible on cross-examination of prosecuting witness for purposes of impeachment, but that there be a case-by-case rule and balancing of how much harm is done to the defendant by nondisclosure of the record, how much, how -- how much damage would be done to the particular juvenile by disclosure of the record and so on, or are you trying -- is that the rule that do you think the Court --?

Mr. Charles M. Merriner: I would like to argue --

Justice Potter Stewart: -- put to test of this constitutional area or are you on the other hand saying that there ought to be a per se rule that if a state has expressed a public policy as your State of Alaska has, that juvenile records not be revealed that that be the end of it, that they never be revealed on cross-examination?

Is that what you are telling us that it ought to be or are you as your statement just suggested -- suggesting that there would a case-by-case evaluation and a balancing in each case depending upon the specific circumstances of each case?

Mr. Charles M. Merriner: I would argue for a per se rule if I felt that I analytically could, but take the situation where a juvenile is told by his judge.

Now you finger somebody else who was witty there and testify about that or else I am going to send your way as long as I can, you had a situation like that and you forbid any questioning about his juvenile appearance, you know, before that court, I can see that confrontation would be denied.

Here he had a definite motive, and assuming the testimony is crucial and assuming it's not greatly corroborated to show that there would not have been any doubts raised by having cross-examination.

Justice Thurgood Marshall: But your Supreme Court did limit this?

Mr. Charles M. Merriner: Excuse me?

Justice Thurgood Marshall: Supreme Court did not limit the per se rule?

Mr. Charles M. Merriner: Well, I read the opinion as hedging on the matter, yes, I think, it did and --

Justice Thurgood Marshall: Well, because the rule that's before us doesn't permit what you say, does it?

Mr. Charles M. Merriner: No, but --

Justice Thurgood Marshall: And that's the only thing here before us?

Mr. Charles M. Merriner: Well, we do have the other rule that I mentioned about how the interest of justice can call the rule not to be applied, but the Alaska Supreme Court, when it discussed this issue, a rather brief discussion, but --

Justice Potter Stewart: On page 60A, that's at bottom of page, they seem to be hedging a little bit saying that in this particular case, no --

Mr. Charles M. Merriner: Yes --

Justice Potter Stewart: -- great damage was done.

Mr. Charles M. Merriner: And in footnote 40 on 59A, they start out with a case where they say it stands for this juvenile record not admissible to impeach absence special circumstances.

Justice Potter Stewart: Well, that is citing if would the California case How?

Mr. Charles M. Merriner: Yes, but in citing a case --

Justice Potter Stewart: Well, you and to come back to my question, what's your argument is to us in this case, as I understand it then from your answer and you tell me if I'm wrong that you concede that there maybe cases where a denial of the right of the defense counsel to ask a prosecutor witness about his juvenile record would be a deprivation of the defendant's constitutional rights?

Mr. Charles M. Merriner: Yes, but I would think they would be --

Justice Potter Stewart: Am I right about that or not?

Mr. Charles M. Merriner: Yes, but I think these cases would be very rare and they will not be a great breach in the juvenile secrecy structure as such --

Justice Potter Stewart: These cases would be rare and this is not one of them?

Mr. Charles M. Merriner: Yes, the case, for example, where the judge tells them you get on the stand or you will be sentenced more than you would be ordinarily or a case like where there has been perjury, that has come out on the stand and you've got to bring up the juvenile record to show it, in cases like that.

Justice Potter Stewart: Have you --

Mr. Charles M. Merriner: I think that's all I have, there is --

Chief Justice Warren E. Burger: When the trial judge heard his answer that he had never been questioned, if not, should that not have suggested to the trial judge that here was an area in which the witness was not being completely candid with the jury?

Mr. Charles M. Merriner: It should have suggested that to Mr. Wagstaff, whether it turned out like that.

Chief Justice Warren E. Burger: Do you think Mr. Wagstaff then should have asked for opportunity out of the presence of the jury to pursue the cross-examination, in some way, that would lay a foundation for an exception to the Alaska rule on confrontation?

Mr. Charles M. Merriner: Yes, he should have at least done that, and I think the judge had a duty to do it on his own and as I argue in that footnote, this was really not an untruthful reply.

He had never been questioned like that as far as we know, he had never been questioned --

Chief Justice Warren E. Burger: Well, at the very least it was a very ambiguous answer, wasn’t it?

Mr. Charles M. Merriner: Yes, it was ambiguous.

Chief Justice Warren E. Burger: And you say it was the duty of defense counsel to pursue that?

Mr. Charles M. Merriner: Yes, I don’t see why this Court should focus upon that one questions and say, look here was all this perjury when it has not even been raised in the brief, has not been raised until argument now and the lower court has had no chance at all to rule upon that particular error, if that was error at that one point.

Justice William H. Rehnquist: Mr. Merriner, does Alaska practice provide an opportunity to counsel who finds himself in the position of Mr. Wagstaff did following the combined answer of Mr. Green and the objection by the prosecutor and the sustaining of the objection to the question to at least allow the party that asked the question and got what is basically an answer to a question that has been ruled to be impermissible and get that answer stricken, so that he isn’t both bound by the answer and still precluded by the court's ruling from following it up?

Mr. Charles M. Merriner: As fas as I know, yes.

He could have argued that this was a non-responsive answer and I am not bound, he could have made that argument and the judge certainly within his discussion could have stricken that.

Justice Thurgood Marshall: You say that he was unresponsive, he said, have you ever been questioned, he said, no.

Mr. Charles M. Merriner: Well, okay. [Laughter]

Certainly, he was responsive to the -- Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Merriner, Do you have anything further Mr. Wagstaff?

Rebuttal of Robert H. Wagstaff

Mr. Robert H. Wagstaff: Yes Your Honor, thank you.

Now with respect to a follow-up on that particular answer, whether that should have been done at trial, I think you should look back to the court’s initial ruling, the -- when the protective order was asked for, it was unequivocal, it cited, the court says, you didn’t want to go in this area at all.

We were getting into that area a little bit and that’s why perhaps it was not pursued at that time.

I don’t think that particular question is essential.

It’s another -- it's another reason why cross-examination should have been allowed on that particular issue.

Of course, we never know again what the cross-examination of his record would have revealed and that’s the whole reason of permitting cross-examination.

Chief Justice Warren E. Burger: Was there anything that prevent you from asking the court to give you a hearing out of the presence of the jury to pursue your question on page 34 which at least was very ambiguous, you'd agree and then also to develop what were the detailed conversations between the police and this witness, Green, between the time they first contacted him and the day of the trial to see if, for example, there was any suggestion that if he didn’t cooperate, they would refer this to his probation officer or other comparable, anything to prevent you from doing that?

Mr. Robert H. Wagstaff: I would say what prevented me from doing that was the court's indication of the rule on protective order that you essentially felt that his juvenile record was invalid, that’s how I will answer that question, I do answer it.

Chief Justice Warren E. Burger: Well, it preserved the confidentiality of that by taking this kind of thing in chambers, but on the record?

Mr. Robert H. Wagstaff: That, perhaps, could have been done and again, the reason why I would not, is because of the protective order was interpreted and the force of it and the rapid objection and the sustaining of it.

Again, the critical issue are not these particular questions because we don’t know what the answer would been in further cross-examination.

The critical point, the essential point that we're making is the jury was never permitted to consider what pressures Green was under when he made the initial identification at the station house.

Mr. Merriner has urged what he characterizes a corroboration argument in which he cites much evidence that didn't even go to jury.

The proper test as the Chief Justice suggested is harmless error, a constitutional error was committed, was it harmless?

Can we say beyond a reasonable doubt that one juror would not have been affected by this information and I submit that we cannot.

The jury was out seven hours as it was.

The evidence that was cited -- well, when we're dealing with harmless error I think, it should be kept in mind that usually harmless error is referring to tainted evidence, that should have been kept out.

Is there sufficient evidence to convict any way without this?

In this case, it's exculpatory evidence that the jury should have been made aware of in a little different situation and I think this situation that was discussed in the case (Inaudible), a 1971 case.

Would the jury have been affected by this information?

Can we say beyond a reasonable doubt that the jury would not have come in with a verdict, that this would not have raised a reasonable doubt in their mind?

In the corroboration argument, Mr. Merriner cites and backs again that we are not even to the jury.

Fibers on a safe had matched the coat, this information was contained in affidavit for a search warrant, never submitted to the jury.

Rolls of bills and the search warrant never submitted to the jury, extension of the contract and the affidavit for search warrant never submitted to the jury.

Justice William O. Douglas: Extension of --.

Justice Potter Stewart: Or the --

Mr. Robert H. Wagstaff: Of the rental agreement, yes.

These are not proper considerations when we're discussing harmless error, not -- well is this person probably guilty or looking at the evidence that could have been presented, can we determine whether it’s sufficient to prove beyond a reasonable doubt of guilt?

Because we don’t know these rulings, how the trial judge would have ruled, whether this information is admissible in the first place?

Whether in fact, the fibers did match.

Perhaps, there was an identification by an FBI expert that said, they did not match.

We don’t know this.

So that information cannot be considered, and I think, it’s pretty clearly improper.

Harmless error is important also because the crime was burglary and larceny that he was convicted of, not possession of stolen property.

All the information that was the incriminating evidence if it can be characterized that which really incriminated Mr. Davis's car only indicated that there was stolen property in the car, not that the burglary and larceny have been committed, because there were other fingerprints found at the scene, not his.

And that’s why Green’s testimony was particularly essential that he established a link in the prosecution’s chain of evidence of recent possession and his testimony, absent his testimony there could have been a conviction.

Justice Potter Stewart: Mr. Wagstaff, are you contending for a rule that would prevent defense counsel to cross-examine a juvenile prosecuting witness as to his previous record in all cases, even though the state had a policy such as your State of Alaska has, keeping such records confidential or are you simply telling us that in this particular case, it was important to protect all the rights of your client?

Mr. Robert H. Wagstaff: I am saying both, Mr. Justice Stewart.

I think that any time someone is testifying against the accused in a criminal proceeding, that if they have a juvenile record, the defense has a right to bring this out for whatever weight it might have to the jury.

That fact alone, in some cases it could be very relevant.

For instance in the Alfred fact situation, that could be very relevant, but that’s for the jury to decide.

But we are even one step more persuasive than that.

Here we can show specific reason for why the juvenile record should be brought out.

I think in conclusion that is--

Justice Potter Stewart: To the Supreme Court of Alaska, you argued that your case was different, you said as I understand that, as the general rule is you can’t bring it up but this case is special circumstance.

Mr. Robert H. Wagstaff: Yes, I argued--

Justice Potter Stewart: Now you bring that argument to us, are you arguing that the general rule seems to be conceded in the states is simply constitutionally wrong?

Mr. Robert H. Wagstaff: I argued both, Mr. Justice Stewart, to the Supreme Court I am arguing now that it should be allowed to be brought out in all circumstances when someone is testifying against the accused in a criminal proceeding unless it can be shown that there is some really wild fact situation that where it would be terribly abusive, but absent that, that it should be brought out and let the jury determine whether this person in his own mind would have some, hold the benefit of his position with the prosecution, the government is offering him as a witness.

That’s for the jury to decide and again in this case, it’s much, much stronger because we can make a very persuasive argument to the jury--

Justice Potter Stewart: In fact, your objections are that if we set at this particular question, I got it from the brief, I haven’t gone beyond them, that only Michigan has adopted --

Mr. Robert H. Wagstaff: The per se rule, yes Michigan has adopted it.

Although the Mississippi case, the Hamburg case, the trial court there permitted testimony, the cross-examination showing that there have been some supervision by juvenile authorities but they felt that the record itself shouldn’t have been offered, but clearly the Michigan Court, the three cases that I cited, have adopted a per se rule.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.