UNITED STATES v. HALE

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Argument of Frey

Chief Justice Warren E. Burger: We'll hear arguments next in 74-364, United States against Hale.

Mr. Frey, you may proceed whenever you're ready.

Mr. Frey: Mr. Chief Justice and may it please the Court.

This case is here on the Government's petition for writ of certiorari to the United States Court of Appeals for District of Columbia Circuit which reversed respondent's robbery conviction.

Government's evidence against respondent Hale with the trial in this case consisted of four principle matters.

First, there was the eyewitness identification by the victim Mr. Arrington.

Second, there was the fact that Mr. Arrington had told the police prior to the time Mr. Hale was arrested that one of the robbers might be named Billy Hale.

Third was the fact that Hale's attempted flight when a police officer sought to arrest him after Arrington had identified Hale on the street as one of the robbers.

Fourth was Hale's possession in his trousers pocket of a $123.00 in cash at the time of his arrest.

It's on the latter piece of evidence that this case focuses and that much of the trial focused.

Arrington testified that the robbers took an estimated $96.00 from him but it was taken by co-defendant Anderson and that he sought handed by Anderson to respondent Hale.

One of the arresting officers testified to finding and ceasing the money at the time of Hale's arrest.

It was also brought out that Hale was unemployed.

The defense also concentrated on the money found in respondent's possession after the robbery.

Six of its seven witnesses testified on that subject.

The defense explanation was that respondent's estranged wife had received her welfare check that morning, cashed it and given $150.00 to respondent for the purpose of purchasing certain money orders.

She'd written a list on a scrap of paper of the money orders to be purchase which respondent testified he threw away the day after his arrest.

At the time of his arrest three or four hours after he had received the money from his wife, respondent testified that he was on his way to buy the money orders that she had requested.

Closing arguments of counsel also devoted significant attention to the question of the money.

Now, the particular questioning that led to the reversal of respondent's conviction came during cross-examination of him by the prosecutor.

The prosecutor asked him and this is at page 4 of the appendix, “Did they find some money on you?”

“Yes, they did.”

“Did you in anyway indicate where that money came from?”

“No, I didn't.”

“Why not?”

“I didn't feel it was necessary at the time.”

“You were advised of your rights, were you not?”

“Yes.”

At that point, the court interjected, stated that he is not required to indicate where the money came from.

There is no responsibility on his part in regarding to that.

And then in response to objections by defense counsel, the court further stated -- indicated to the jury that it is clearly an inappropriate question.

“You may disregard it ladies and gentlemen.”

The defendant is not required to give any explanation whatsoever at the time of his arrest.

Court of Appeals found this questioning to be improper and reverse the conviction because of it.

Now on analyzing this case, there are two distinct questions which I think it's important to keep separate.

The first is whether respondent's silence at the time he was arrested was so lacking in probative value, that its disclosure to the jury was more likely to impede than to foster a factually accurate verdict by the jury.

Chief Justice Warren E. Burger: Did the district judge give that admonition to the jury without on his own, without any request from the part of the --

Mr. Frey: Well, he initially interrupted the questioning without any objection by defense counsel to indicate that it was an improper question.

There then was a request that the question and answer be stricken, and he responded by telling the jury that they may disregard it, I'm not sure what that -- how the jury took that.

There was a harmless error contention raised in the Court of Appeals and it was rejected and we have not petition on the question of whether the error, if there was one was harmless in this case.

Now, the second question apart from the probative value prejudicial effect question is whether even if the disclosure of respondent's silence was likely to contribute to an accurate verdict, there is some overwriting constitutional policy dictating that a preference be accorded to suppression of the evidence, even at the expense of the truth seeking function of the trial.

Justice Thurgood Marshall: Mr. Frey, I have trouble with this silence part.

He had no obligation.

Is there anything at all?

Mr. Frey: That's correct, there's no question about that.

Justice Thurgood Marshall: And this money was not counterfeit was it?

Mr. Frey: No.

Justice Thurgood Marshall: It wasn't contraband was it?

Mr. Frey: No.

Justice Thurgood Marshall: Well, why should he -- I mean they took out his keys, you can say anything about those either, do they?

Why should --

Mr. Frey: Well --

Justice Thurgood Marshall: Why did he have the obligation of opening his mouth about --

Mr. Frey: We don't in anyway suggest that he had any obligation to give any explanation.

The question here is whether it was sufficiently likely that a person in his circumstances would have volunteered an explanation would have chosen to explain that his failure to do so shed some light on the truthfulness of his testimony at the trial.

Justice Thurgood Marshall: But the fact that he had money in his pocket, he was about -- he was obliged to explain it.

Mr. Frey: He was not obliged to explain it to the police.

He was not obliged to explain at the trial.

He elected not to --

Justice Thurgood Marshall: Well, why was he asked the question?

Mr. Frey: He was asked the question because his failure to explain that even though he was not oblige to explain it was nevertheless probative and I think I'm --

Justice Thurgood Marshall: Well, was it probative that he had a watch on it and then explained that?

Was it --

Mr. Frey: Well, it would have been --

Justice Thurgood Marshall: -- pack of cigarettes, he didn't explain --

Mr. Frey: No.

The reason the money was probative and was considered to be probative and this is why I indicated the amount of the tension that was paid to it was that it was presumably under the circumstances, unusual for somebody in Hale's condition to have such a large sum of money on him.

Justice Thurgood Marshall: What condition?

Mr. Frey: Well, he was unemployed.

Justice Thurgood Marshall: Did they know that?

I thought they asked him and he didn't say.

How did they know?

Mr. Frey: He didn't say but his wife testified on cross-examination that he was unemployed.

Justice Thurgood Marshall: But come under the question was asked, they didn't talk to his wife.

Mr. Frey: Well, I'm not sure that I understand.

Justice Thurgood Marshall: You say that we're talking about -- you use your words, the condition he was in when he was arrested.

He was a person walking down the street with money in his pocket.

Mr. Frey: That's right.

It wasn't unusually large sum of money in his pocket.

Justice Thurgood Marshall: $123.00 in this day and age is a large sum of money?

Mr. Frey: Well, I think it was unusually larger under the --

Justice Thurgood Marshall: He gets paid with it, huh?

What was it, is it a large sum of money or not?

Mr. Frey: Well, I think for -- in Hale circumstances --

Justice Thurgood Marshall: Well, what were the circumstances?

Mr. Frey: The circumstances were that he was arrested shortly after a robbery in which a similar although slightly lesser sum of money had been stolen from the victim, that Mr. Hale was unemployed, that it was not --

Justice Thurgood Marshall: They didn't know he was unemployed at that time.

Mr. Frey: But that's not -- the question is not what the police knew at that time.

Justice Thurgood Marshall: You assumed he was unemployed, why?

Mr. Frey: Well, the question is not what the police knew Mr. Justice Marshall, the question is what the jury would know in evaluating the truthfulness of Hale's testimony at trial of his explanation and I think it's --

Justice Thurgood Marshall: They just told him that he had a right to be silent.

Mr. Frey: Yes, they had.

Justice Thurgood Marshall: And he was silent.

Mr. Frey: Yes, he was.

Justice Thurgood Marshall: He was penalized?

Mr. Frey: Well now, I don't think he penalized for it.

I think that there is a consequence that attached once he elected to get on the stand and to explain to the jury why he had the money.

He ex --

Justice Thurgood Marshall: -- U.S. Attorney asked that question?

You advise the rights weren't you?

Why did he ask that question?

Mr. Frey: Well, I'm not sure why he asked that question, but I think it's --

Justice Thurgood Marshall: Is it not the question that once you give Miranda warnings you can do anything you want then?

Is that why he ask that question?

Mr. Frey: I don't -- I'm not sure that I understand.

The purpose of the Miranda warnings is to ensure --

Justice Thurgood Marshall: He asked the witness, he said but you were given the warnings weren't you?

Mr. Frey: Well, I think that the reason that question was asked, I think it's appropriate to call to the jury's attention as Judge Gesell did here that there is no duty to answer questions.

And the reason its appropriate is that that's a factor that the jury ought to take into consideration in evaluating whether or not the defendant's testimony has been impeached, whether they believe the defendant's testimony, it is a factor in the defendant's favor that he didn't have a duty to speak and that he was so advised.

In terms of the evidence --

Justice William H. Rehnquist: -- the fact that money was stolen rather than a watch or package of cigarettes that makes a question about money relevant whereas a question about a watch or cigarettes might not have been.

Mr. Frey: That's correct.

The money was after all at trial one of the principle pieces of evidence against Hale.

When Hale chose to testify, one of the burdens that he obviously undertook was to explain how it came about that he had the sum of money on him in order to rebut the inference that the jury might otherwise draw from his possession of this money.

When he sought to do that, the question then arose whether we could seek to impeach his testimony by showing his silence before the police.

Now, the Court of Appeals --

Justice Thurgood Marshall: That was not -- as I remember the record, they asked him where you search at the time you were pick up and he said no.

when were you and he said when I got to the precinct, when he got the precinct, what happened?

They search me.

It was -- that was doing that part that his testimony was in the part about the $45.00 and $1.00 bill.

Mr. Frey: Well, this was cross-examination by the prosecutor.

He had -- his testimony on cross-examination, the prosecutor asked him whether they found money.

Because one of the theories of the prosecution, one of the factual theories that was submitted to the jury was that this was the money that was stolen from Arrington.

Justice Thurgood Marshall: It's already an evidenced from the police, wasn't it?

Mr. Frey: Well, I understand that the fact of his possession of the money was already in evidence, but what was also an evidenced at the point that this cross-examination took place was his explanation of how he came to have the money.

Now, the Court of Appeals said there was nothing inconsistent as I think you're suggesting between his silence at the police station and his explanation at trial.

We don't agree with that.

We think it's important to inquire into what is meant by the word inconsistent.

The Court of Appeals and respondent here use it to mean necessarily contradictory;

that is that the testimony and the prior inconsistency can't both be true, and they seek to distinguish cases like Harris and Walder on the grounds that there, there was that kind of inconsistency.

Now, the question is in order to be probative for impeachment purposes must the evidence be wholly and inevitably inconsistent or does it suffice if it's probably inconsistent, if it tends to impeach the witness's testimony, now we think that the latter is sufficient.

And in this connection, I refer the Court to the definition of relevant evidence which is contained in Rule 401 of the Federal Rules of Evidence.

Relevant evidence is there to find as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Applying that standard here, it's clear that respondent's prior silence should have been admitted as having at least some tendency to show that his testimony at trial was not truthful.

In this connection, I'd like to advert to what Mr. Justice Frankfurter said in his concurring opinion in Adamson against California about this matter.

It said sensible and just-minded man in important affairs of life deemed it significant that a man remains silent when confronted with serious and responsible evidence against himself which it is within his power to contradict.

The notion that to allow jurors to do that with sensible and right-minded man do everyday violates the immutable principles of justices conceived by a civil life society is to trivialize the importance of due process.

To deny that the jury can be trusted to make such discrimination, that is assess the reasons for silence is to show little confidence in the jury system.

This is an empirical question and the degree to which silence tends to impeach is subsequently proffered explanation will vary from case to case.

Here, its impeaching effect is high.

If Hale's testimony at trial was true, it seems to us and we think it would have seen to the jury extremely unlikely that he would have failed to tell the same story to the police.

By telling the story, by explaining to the police what happen at the time, he would have capitalize on an opportunity possibly to prevent prosecution all together, or at the very least to neutralize a damaging piece of evidence.

This opportunity was evanescent if he didn't tell the police at that time where this money came from, he could never afterwards convince the police that his subsequent explanation was not fabricated.

Chief Justice Warren E. Burger: Did he make any effort to show after this episode, can you make any effort to show through his wife precisely where she had got the cash?

Mr. Frey: Yes, that was shown in great detail.

There was evidence showing that she received the check.

They had someone from the welfare office testify as to one the check was sent out, someone from the Treasury Department testify about when the check was cashed.

It was clear that she had received the money that day, and then of course that was her word and Hale's that she had given the money to him.

Now finally, a point that I think is very significant in assessing whether his silence was probative, whether it would have meant anything to a rational jury is the fact that it seems to me most unlikely that somebody in Hale's situation would have sat quietly by, let the police take from him the money which belong to his wife which was her welfare check, which was all the money that she and their two children had to live on for the next month, and would simply have said absolutely nothing.

Of course, he had a right to say nothing, but that's not the issue.

The issue was whether it was likely under those circumstances that he would have said nothing.

If it was unlikely under those circumstances that he would have said nothing, then surely, it bears substantially on the veracity of his testimony to let the jury know.

Justice Thurgood Marshall: Are you telling us that if he just said that was my wife's money, they have to given that back to him and instead to move?

Mr. Frey: Well, I'm not sure whether they -- I'm not --

Justice Thurgood Marshall: Do you really mean that he was ready being booked.

Mr. Frey: Well, I'm not saying that they would have given --

Justice Thurgood Marshall: He had been search, am I right?

Mr. Frey: I'm not --

Justice Thurgood Marshall: Already being booked.

Mr. Frey: I think he was -- I'm not clear whether he was being booked at the time he was searched, but I think it's probably true to say that they would not have given him back the money without checking it out.

But on the other hand, they would have checked the story out before he had a chance to speak with his wife before he had a chance to fabricate a story.

After all, the contention of the Government at trial and the purpose of the impeachment was that this was a story that he fabricated for purposes of trial.

We were trying to show that he didn't have a story.

He had no explanation at the time he was in the station house and that's why he was silent.

And we think that of course, he could explain to the jury, that's another important point Mr. Justice Marshall.

He could explain to the jury why he was silent.

The jury could see him if they believe his explanation that his silence was not because the story was fabricated but because he was relying on his rights as he understood them because he was intimidated for whatever reason, then the jury would discount the impeaching effect of that cross-examination.

Justice Potter Stewart: The -- in point of fact he was asked to explain his possession --

Mr. Frey: He was.

According to the colloquy between counsel and the court of course, this line of inquiry into his silence was cut off.

Justice Potter Stewart: So the jury never knew that he was asked?

Mr. Frey: The jury never knew that he was asked; that's correct.

I mean I picture further cross-examination would have gone into the kind of thing such as, could you stand there quietly and let them take your wife's welfare money, and then he might say well, I knew I wouldn't get it back anyway, and then the jury could see whether they believed him and when he gave the explanation.

Now, it's instructive here to compare the Grunewald case on which the Court of Appeals relied.

What this Court did in Grunewald was it looked at the answers that Mr. Grunewald gave a trial that the testimony that -- or rather help her in the defendant who was involved in that aspect of the case.

They looked at the answers and they said “Indeed, these answers could have been incriminating if they have been given to the grand jury.”

Therefore, under the other circumstances which we've adverted to in our brief, we think it has not probative value in the special circumstances of this case that he invoked the Fifth Amendment before the grand jury.

But let's look here at what it is that Mr. Hale said, a completely exculpatory statement, a statement which if true couldn't possibly have gotten him into trouble, if true.

Now also in terms of prejudicial effect, there is a distinction between this case and Grunewald.

Grunewald involved the balancing as this traditionally, the function of the trial court between the probative value and any potential prejudicial effect.

In Grunewald, in light of the conditions at the time with regard to the Fifth Amendment and this was in the height of the McCarthy era, the court felt that to tell the jury that the witness had taken the Fifth Amendment before the grand jury was to introduce a substantial risk of prejudice that the jury would impermissibly conclude from that that he must have been guilty.

Here, no but the jury was not told this line of questioning did not suggest any claim of the Fifth Amendment privilege against self-incrimination.

This line of questioning did not even indicate whether he was otherwise silent before the police.

It was sharply focused on a particular inquiry by the police and on a particular piece of his testimony to with his explanation of the money.

Under these circumstances, there was very, very little hazard of prejudicial effect.

Now, I've deferred discussion of the Fifth Amendment issues, both because they have been considered it greater length in our brief.

And because I don't believe that properly analyzed, this is really a Fifth Amendment case.

Court of Appeals based its holding on Griffin and on Miranda, but neither of those cases we submit supports the result that it reached.

Griffin is critically different because it involved the non-testifying defendant.

Thus, it was not concerned as he with specific impeachment use of silence.

The whole truth policy of the Harris line of cases was implicated.

Nor was the waiver concept of Raffel implicated in the Griffin situation.

Moreover in this case unlike Griffin, respondent had the opportunity to explain his silence.

The non-testifying defendant at the criminal trial has no such opportunity.

Also, I think its a little clearer the Griffin's refusal to take the stand was an invocation of his Fifth Amendment privilege in the sense that Hale's silence was not.

Now, the Miranda dictum I submit was also not intended to apply to impeachment use of silence, rather it was a reference to use in the case in Chief.

In summary, we think that this case fits within the Ruff or Harris line of cases in which this Court has rejected Fifth Amendment claims of a testifying defendant emphasizing the importance of fully testing the truthfulness of a defendant's testimony of getting the whole truth rather than the defendant's tailored version of it.

It's recognized in those cases that the protection of the Fifth Amendment are intended for the benefit of those who do not wish to testify and not for the benefit of those who as Hale do wish to testify.

On one final note I'd like to make.

A ruling in favor of the Government's position in this case will not have any effect of encouraging police misconduct in interrogating arrested suspects.

We could compare this case with the arguments that were made in the recently decided case of Oregon against Hass where the dissent took the position that there would not be any impediment to the police once a request for counsel had been made to persist in their questioning since they had everything to gain and nothing to lose.

The court nevertheless felt that the whole truth policy of the Harris line of cases was of overriding importance there.

Here however, we have a situation in which the police far from being given an incentive to coerce the statement are given a situation in which even if the defendant remain silent, there may be some prosecute of benefit down the road from such a chain of events, so that to extent that there is any tendency here to affect police conduct, the tendency will be to enforce the duty or reinforce the duty of the police to give this arrested suspect of free choice between voluntarily remaining silent and voluntarily speaking.

Mr. Hale had that choice.

Finally, I'd like to mention to the Court the Barnes case which had decided two terms ago on 412 U.S. at 846.

We didn't include that in our brief, but I think there are some parallels.

That case involved the question of the inference that could be drawn from possession of recently stolen goods, unexplained possession of recently stolen goods.

There was a Fifth Amendment contention that this put pressure on a defendant to proffer an explanation of his possession since otherwise the jury would be told they could infer his guilt from unexplained possession and the court rejected that contention.

Also, I'd like to point out that at page 31 of the respondent's brief, they rely on the case called Miranti, and that case has been limited to its facts by a subsequent Second Circuit decision in United States against Sewald, 450 F. 2d 1129.

I'd like to reserve the remainder of my time for --

Justice Potter Stewart: I just ask you before you sit down Mr. Frey, do you -- what if the trial judge had not told the jury of what he did in this case, i.e. what if he had not told them that the defendant was not required to give any explanation whatever at the time his arrest?

Mr. Frey: Well, we think that -- well, there are two pieces.

We think of course that he was completely wrong in saying that it was an improper question.

I don't think that we would object to the court reminding the jury although the defendant has the opportunity to so testify that there is no duty on the part of the defendant to speak.

I think the jury ought to understand in the context of evaluating a defendant's silence that he has been given Miranda warnings.

It would be appropriate for the defendant to explain that if that's his explanation for his silence, for his counsel to bring it out on redirect, or even for the court to instruct.

I don't think we have any objection to that.

What we want is for the jury to know that we consider to be a very salient fact in evaluating the truthfulness of his testimony.

Justice Byron R. White: But you don't contend your privilege to put on his silence on your side of the case?

Mr. Frey: We're not contending that we could put this on as evidence in Chief.

I mean an argument could be made but much of the authority on which we rely would be inapplicable to such an argument.

Justice Byron R. White: And so you think it would be error if the court didn't instruct the jury that it's useable only for impeachment?

Mr. Frey: You mean assuming that the defendant requested such on limiting instruction?

Justice Byron R. White: Yes.

Mr. Frey: For purposes of the ruling that we seek here, we don't seek a ruling that it can be used as evidence in Chief.

And in fact --

Justice Byron R. White: But you con -- it's your position that it can't.

Mr. Frey: It cannot.

Justice Byron R. White: Isn't it?

Mr. Frey: Well, when the case arose in which there were some -- I would have to look at a concrete case in see what how I would evaluate the consideration.

Justice Byron R. White: -- I thought you made it, I thought you took the taking the position that --

Mr. Frey: Well --

Justice Byron R. White: It could not be used as --

Mr. Frey: It can't be use for the general purpose of showing guilt;

That is it can't be use to ask the jury to make the inference that because he remain silent at the time of arrest he is guilty.

Justice Byron R. White: Well then, you really are using it -- this isn't just for impeachment then, is it -- even when you ask it on cross-examination when he takes the stand?

Mr. Frey: It is --

Justice Byron R. White: You're not using it as substantive evidence of his guilt.

Mr. Frey: No, no.

With here, it's clear --

Justice Byron R. White: You're using it to cast and doubt the content, the truthfulness of his explanation.

Mr. Frey: Of a particular part of his explanation, this is an important distinction that I think that respondent fails to understand in discussing the Stewart case.

There's a difference between general impeachment, impeachment of his character, impeachment of his general credibility, and specific impeachment directed at specific testimony.

Justice Byron R. White: But you're saying to the jury in effect the same jury -- if his explanation were really true, he would have said something about it.

Mr. Frey: That's what we're saying --

Justice Byron R. White: So, you're saying there, his explanation is not true?

Mr. Frey: That's right.

Now, that's an impeachment use as I understand the concept.

In any event, we certainly contend that that's a legitimate use of that evidence.

However, it should be labeled.

Chief Justice Warren E. Burger: You have not made a point to if I recall your brief that the fact that no objection was made by the defense here.

Mr. Frey: Well, there was an objection after the court first itself spoke, then the defense said “Well, we object to and we don't make a point of that.”

Justice Thurgood Marshall: Also, made a motion to strike.

Mr. Frey: Well, I think they did, but the resolution of that --

Justice Thurgood Marshall: -- made a motion to strike.

Mr. Frey: Well of course, we think there was no -- the contention that we make is that they had no right to have it restricted.

Justice Thurgood Marshall: (Inaudible)

Mr. Frey: Yes, but we're not relying on -- we're not saying that they were silent to their detriment.

We're not saying that they should be penalized for any failure on the part of defense counsel to do anything.

Justice Potter Stewart: What was this colloquy down in the appendix under the asterisks on page 5?

That was at the conclusion of the evidence when they were discussing the instructions to the jury, was it?

Mr. Frey: No, that was shortly after in connection with the discussion of the -- there was a request for a mistrial by the defense at that point.

One of the grounds on which mistrial was requested was this improper cross-examination, but the court --

Justice Thurgood Marshall: That was at bench?

Mr. Frey: Yes and the court said “I don't think you're entitled to a mistrial because I think I've corrected it”.

Of course we think the court's correction was incorrect.

Justice Potter Stewart: And the jury didn't hear that?

Mr. Frey: The jury did not hear the material under the asterisk, that's correct.

I'd like to save the remainder of my time if I may.

Chief Justice Warren E. Burger: Very well.

Mr. Ritchie.

Argument of Larry J. Ritchie

Mr. Larry J. Ritchie: Mr. Chief Justice and may it please the Court.

Prior to discussing whether the impeachment here was really proper impeachment and I don't think it's important to follow up on the few other points that were just made with regard to the prejudice that was involved.

We disagree that the Fifth Amendment isn't involved here.

Indeed, we think the issue is whether the Fifth Amendment was violated by the prosecution placing before the jury, this evidence of the defendants' prior silence at the police station.

The privilege gives the accused the right to remain silent.

That right extends to both innocent and guilty alike.

The reason for that policy underlying the Fifth Amendment really has nothing to do with protecting the guilty, rather, the privilege exist to protect our system of criminal justice, the accusatory system, in which the Government has the burden of proving guilt.

They must shoulder the entire load without any help from the defendant.

Such a system represents a fair state individual balance and that it protects the individual from possible inhumane treatment by the Government and trying to secure statements from him which could be use against him.

It also insures the dignity of the individual by insuring the individual a right to privacy.

He doesn't have to respond to the questions of the police.

He doesn't have to dignify those questions, those accusations by responding to them.

Unfortunately, most laymen don't know or don't understand the policy reasons behind underlying the Fifth Amendment.

The silence of the accused at the time of his arrest is probably all too often equated with guilt.

There is that possibility.

It was for that reason that the no comment rule was really made a part of the Fifth Amendment by the Griffin case.

If the defendant elects to remain silent, then the prosecution can't comment on that silence because of the danger that the jury will draw that impermissible inference of guilt.

The privilege would really be meaningless if the defendant had the right to remain silent, and then the prosecution could bring out that silence to be use against him.

That danger is present whether the silence is brought out and the case in Chief, whether it's brought out in closing argument, whether it's brought out on cross-examination in impeaching the jury, silence is still before the jury and the jury still may draw the impermissible inference of guilt.

Instructions just can't cure that problem.

Justice Potter Stewart: That's true in the Griffin situation where the -- in other words, where the defendant doesn't elect to take the witness stand at his own trial.

That's -- the jury sees that and is aware of it and nobody can prevent whatever inference they may draw from being drawn, isn't that correct?

Mr. Larry J. Ritchie: That's correct.

That's why here, the danger is much more because the jury would not know of his prior silence, unless it were brought to the attention of them by the prosecution.

Justice Potter Stewart: And yet, nobody has ever held that the -- then you couldn't so long as there is a right of the defendant not to testify at his trial.

In fact that the -- if he doesn't testify that the jury is well aware of, that obviously is not prejudicial error or is it?

The jury's awareness of his silence at his trial, certainly is with or without an instruction is not prejudicial error so long as the instruction is not that they can draw an inference of the kind --

Mr. Larry J. Ritchie: Well, the --

Justice Potter Stewart: -- made in the Griffin case.

Mr. Larry J. Ritchie: The jury by the instruction to limit this to credibility is really being told that they can consider the silence and that into infer that the defendant is lying on the stand when he says that he is innocent, but they can't consider his silence to infer guilt.

I just don't think that the jury can really successfully engage in such mental gymnastics and understand that explanation completely.

Chief Justice Warren E. Burger: Well, does it not as Mr. Justice Stewart just suggested involve some struggle on the part of the jury to listen perhaps for four or five days to witnesses testifying against the defendant and then never hear from the defendant?

Is there not somewhat the same kind of problem there?

Mr. Larry J. Ritchie: Yes, there is.

The -- and in fact --

Chief Justice Warren E. Burger: Can you think of any cure for that?

Mr. Larry J. Ritchie: The only cure for that is going back many years ago before the federal statute in many state statutes were passed of relieving the defendant of his incompetency to testify at all.

Indeed, one of -- that would -- the law until the federal statute was passed a number of years back.

One of the argument has been by some scholars and law review articles that that statute should never been passed because this inference could be drawn if they don't take the stand when they got the right to.

The statute itself provided that no presumption shall be drawn, but you are correct.

The fact is before the jury, they know that he has the right to take the stand and if he does not, they can see that.

But here --

Chief Justice Warren E. Burger: -- uninstructed, was unguided --

Mr. Larry J. Ritchie: Unguided, they can see --

Chief Justice Warren E. Burger: -- action on the part of the jury then isn't it?

Mr. Larry J. Ritchie: That is correct.

Chief Justice Warren E. Burger: But do they have --they did have the benefit of some instruction on the subject didn't they?

Mr. Larry J. Ritchie: They did, but here, they couldn't see it Your Honor.

Here, it wasn't his refusal to take the stand in his trial.

Here, it was his refusal to speak at the police station.

They had no way of knowing that.

It wasn't something they could see.

Chief Justice Warren E. Burger: Do you have any hypothesis to suggest why given your view of the case here, necessary view of the case that there wasn't an objection as soon as the first question was asked.

Did you in any way indicate where that money came from?

Didn't that in your point of view call for an objection right then and there?

Mr. Larry J. Ritchie: I think it did Your Honor.

I can only go by the record.

I don't know what counsel was doing at the time whether he was rising to make an objection or whether he just remain seated until the judge spoke, I don't know what happened.

Chief Justice Warren E. Burger: It looks as though he at least remained silent whether seated or otherwise until the judge acted and then he thanked the judge for intervening for in fact making the objection.

Mr. Larry J. Ritchie: That is the way the record appears.

Chief Justice Warren E. Burger: At that time from your point of view it was too late to do --

Mr. Larry J. Ritchie: That is correct.

Chief Justice Warren E. Burger: You think a mistrial should have been granted?

Mr. Larry J. Ritchie: I do.

Grunewald --

Justice Thurgood Marshall: You left that one point; it did make a motion to strike.

What did you see that in the record.

Mr. Larry J. Ritchie: Yes.

After the judge initially made a statement, there was a motion to strike and then following that shortly, there was a motion for a mistrial.

Justice Thurgood Marshall: -- mistrial.

Now both were denied.

Mr. Larry J. Ritchie: That is correct.

Grunewald itself discussed the prejudice because of this possible impermissible inference of guilt being drawn by the jury.

There, a credibility of instruction had been given, it was brought out that Mr. Halperin was silent at the grand jury for purposes of testing his credibility, and there was in that case an instruction telling the jury to consider it only for purposes of credibility.

In that case, the court nevertheless found that the instruction could not cure it, that the impermissible inference was possible because the evidence had been placed before they jury.

It is really that placing of the silence before the jury which causes this impermissible inference of guilt which may well be a bad thing, even where impeachment is proper.

But in this case, we would argue that impeachment wasn't proper to begin with.

Obviously, one of the rules of evidence is that a person can be impeached by prior inconsistent statements.

The Government is arguing that this case is similar to Harris;

it is not for two reasons.

The first reason is that Harris didn't really involve a violation of the Fifth Amendment;

it just involved the violation of those procedural rules, those prophylactic rules which were setout to protect the defendant against possible violation of Fifth Amendment rights by police officers.

Justice Byron R. White: If there were no Fifth Amendment -- no privilege against self-incrimination just as a matter of evidence and proof.

You wouldn't argue that silence and the facts in this case wouldn't have been relevant or wouldn't have -- or that some proper inference might have been drawn from --

Mr. Larry J. Ritchie: Yes, I would.

Justice Byron R. White: And how is that?

Mr. Larry J. Ritchie: The reason why silence would not be relevant, the Government's argument is really that if the defendant had this exculpatory testimony available to him, he had been given the money by his wife.

Then when he was arrested by the police, he would have told them that.

He didn't do that, he was silence.

We think that that silence is at best ambiguous conduct.

He is -- the defendant who's just been arrested and taken into the police station --

Justice Byron R. White: Well, the police say you stole -- obviously, you stole this money, we're going to charge with it, and he said wait, here's what I got the money.

You don't think there is some sort of an inference there?

Mr. Larry J. Ritchie: No, I do not, and the reason I don't is really two for one reason is because that the fact that was under arrest, without mass media television shows, I think it's common knowledge by great deal of society that possibly the best strategic policy to exercise at the police station is to remain silent.

At least until he has an opportunity to confer with counsel that is prevalent advice given by counsel to their clients.

The defendant may be confuse, embarrass, he may fear misquotation, he may fear misconstruction of his words, there are a lot of reasons.

Justice William H. Rehnquist: But the Hornbooks, I think, are solidly against you on that point, absent Fifth Amendment considerations.

There may be any reasons that may be advanced by the defendant after the evidence is adduce as to why it isn't inconsistent.

But it tends to prove that, at least it arguably proves that, and as long as it arguably proves that that's all you need to get it into the evidence.

Mr. Larry J. Ritchie: Mr. Justice, there are number of state courts then considering this sort of an issue with regard to the tacit admission doctrine that if held, that arrest is a per se rule indicates that the silence after that arrest is not probative.

It is not an admission of guilt of any form.

Justice William H. Rehnquist: But isn't that in the context to the Fifth Amendment?

Mr. Larry J. Ritchie: To some degree, it is, but I think the other thing that we have to pay attention to here is that the police themselves have just told the defendant that he has the right to remain silent, that he has the right not to answer any questions until he confers with counsel.

The interrogators have just told him that.

He is exercising his rights.

He is doing what interrogators have just told him he could do.

I don't see how it could be --

Justice William H. Rehnquist: But the fact that he was told he could do it, doesn't mean that he is totally has to do it?

Mr. Larry J. Ritchie: No, it doesn't.

He is informed that he has the right to remain silent and that anything he says may be use against him.

Justice William H. Rehnquist: Both of which are true and both of which were relied on this case.

Mr. Larry J. Ritchie: He might also infer that if he is silent, he will not get into any particular trouble, that it will not be use against him.

Justice William H. Rehnquist: That's his inference certainly, that's nothing that the police told him.

Mr. Larry J. Ritchie: No, but it certainly imply I think in the warnings, it wouldn't be unreasonable for him to get that sort of feeling from the warnings that are actually given.

Justice William H. Rehnquist: Well, if its at best of implication, why isn't the best way to handle it as an evidentiary matter to say that he can adduce that on redirect.

In other words, the Government shows silence, he comes back and says it was only natural;

I was scared, I thought maybe I should have remained silent.

Why not treated as a factual issue one that rather the one depends on privilege?

Mr. Larry J. Ritchie: Well, I think that is a question where the Fifth Amendment privilege does come into play because of the impermissible inference of guilt that's associated with that silence.

The jury as I mentioned earlier, I don't think will be able to understand it.

As a matter of fact, they can't go through the mental gymnastics in understanding this is only for credibility, it can't be use to infer guilt and as a matter of law --

Justice William H. Rehnquist: -- you're saying Harris and Walden or Walder and Oregon against Hass are wrong because that's exactly what the jury was told to meet you those cases.

Mr. Larry J. Ritchie: Those cases did not involve a violation of the Fifth Amendment.

Those cases involved statement by the defendant which was clearly inconsistent.

Justice William H. Rehnquist: Well, they involve the statement that was made in violation of the Miranda rules which you describe as prophylactic and not part of the Fifth Amendment?

Mr. Larry J. Ritchie: That's correct.

Justice William H. Rehnquist: Well, why are those rules any less at par of the Fifth Amendment than the Griffin holding that comment violates it?

I mean that isn't written into the Fifth Amendment.

Mr. Larry J. Ritchie: No, it isn't written into the Fifth Amendment.

The Fifth Amendment said that no person shall be compelled to be a witness against himself in the criminal case.

It seems to me that if his silence isn't brought out, even on impeachment, then he is being a witness himself in a criminal case.

Justice Potter Stewart: So the police -- what you argued and the response for which the way you responded to Justice Rehnquist, all these matters could be brought out (a) by this redirect examination and (b) in the closing argument to the jury, the members of the jury presumably see as many television programs as your client does or other people do.

Isn't this sort of the same thing as evidence of flight which the general rule is admissible and which could be explained often?

Mr. Larry J. Ritchie: These things could be brought out on rebuttal.

I just fear that the danger that's involved here is the jury not really understanding the policy reasons underlying the Fifth Amendment that it doesn't necessarily mean that a person is guilty, that inference may be drawn by them.

They are being told by the judge in his instruction --

Justice Potter Stewart: -- that objection goes to -- if that's valid, then the whole business of impeachment of credibility through questions and which bring out such things as prior offenses and so on would be invalid, and yet, that's being accepted --

Mr. Larry J. Ritchie: Well, I think we got a special danger here where the Fifth Amendment is involved.

Justice Potter Stewart: If your argument is that the jury will not be able to comprehend the limiting instructions as to the use of what was brought out on cross-examination, that's a very broad attack on the whole use of impeachment.

Mr. Larry J. Ritchie: Oh, I think not.

In the normal situation where impeachment is being used, I don't think there is anywhere near the danger that the jury is going to misunderstand.

Justice Potter Stewart: Prior offenses and so on?

Mr. Larry J. Ritchie: Prior offenses and it's a great deal of different I think in the privilege against self-incrimination.

Justice Potter Stewart: And prior inconsistent testimony not in this context?

Mr. Larry J. Ritchie: That's right, yes Your Honor.

The defendant who is testifying in front of the jury, I think it must be remembered.

Obviously is going to be looked at by the jury as a person who has a special interest in the case.

In fact, they will be told that by instructions more than likely, and I think that with those instructions with his position in the case is going to be hard for them to rationally understand any explanation that they might have and to feel strongly about it and believe that over the possible inference of guilt that may be drawn from his prior silence.

Chief Justice Warren E. Burger: Mr. Ritchie, I wonder if almost all of your arguments would not also be directed at the well accepted rule, but unexplained possession of recently stolen property affords the jury an opportunity to draw an inference of guilt, not just an inference of want, of reliability as a witness or credibility but an inference of guilt.

Mr. Larry J. Ritchie: I think not.

In the Barnes situation in the recent presumption of from recently possession of recently stolen property, if in fact in this case, Mr. Hale had money on him which was marked in some way and clearly could be tied to the complaining witness, then I don't think he would be required to tell the police to explain that the police has possession of the money.

Rather, it's a question more of trial tactics.

The inference from the possession is a reasonable one which he can choose at his trial to either get up and explain or to let the jury draw the inference.

He has the advantage of counsel defendant here at the police station doesn't have the advantage of counsel.

Chief Justice Warren E. Burger: What if in this particular situation, the evidence of the Government showed that the amount stolen from the victim was a $157.33 and that that turned out to be precisely the amount of money in his pocket when they caught up with him, and that the denominations corresponded to the denominations of the money taken, would you -- where would that fall?

Would that fall into the category of possession of recently stolen property or where would that fall in your view?

Mr. Larry J. Ritchie: It may.

Again, I think in that situation, the only thing that Mr. Hale would be required to do would feel any pressure about it all would be at his trial to make a determination of whether he is going to take the stand to rebut the inference that the jury may draw from that fact.

Again here, we're talking about Mr. Hale at the police station where he has just been arrested.

He does not have counsel present.

There is no -- there should be no pressure on him to explain at that time to the police.

Chief Justice Warren E. Burger: Of course, Mr. Justice Frankfurter's opinion to be sure it was a concurring opinion not an opinion of the court was to the effect that in the ordinary run of the generality of human experience, if people have an explanation, a valid explanation, they give it, and that therefore the failure to do what is found to be the generality of human experience is something a jury is entitled to hear about and consider.

Would I take that you would reject Mr. Justice Frankfurter's view on the matter?

Mr. Larry J. Ritchie: Yes, I would.

That view was expressed prior to the time to the no comment rule was held or did the Fifth Amendment, excuse me, was held applicable to the states in a state case and just -- would reject that view.

With regard to the pressure under the --

Justice Thurgood Marshall: Once you given up more than you have to, in this case, I would assume that you take position that that small amount of money he had, he had no one obligation to do it.

Mr. Larry J. Ritchie: No, that is correct.

I take that position.

Justice Thurgood Marshall: Well, you have him abandon that that holds.

Mr. Larry J. Ritchie: Oh no, I certainly have not.

Chief Justice Warren E. Burger: Well, if it were $5,000.00 and then it has been a bank robbery or supermarket robbery, where they've had that kind of money these days, would you say the rule of law would be different, $5,000.00 instead of a $150.00?

Mr. Larry J. Ritchie: No, it would not.

I still don't think you would have to explain that at the police station.

Chief Justice Warren E. Burger: Why?

That isn't quite consistent with what at least I understood you told Mr. Justice Marshall.

Mr. Larry J. Ritchie: The pressure to explain at trial by the presumption of that that exists when a person is found in possession of recently stolen property is a difference sort of pressure than the pressure at the police station that a defendant might feel to talk to the police.

Chief Justice Warren E. Burger: I'm talking about the explanation at the same point in time.

The only difference from this case in my hypothetical --

Mr. Larry J. Ritchie: At trial.

Chief Justice Warren E. Burger: -- is $5,000.00 or to make it clear $20,000.00.

Would you think there is no more -- the Government could make no more use of his unexplained possession of $20,000.00 than of $150.00?

Mr. Larry J. Ritchie: I'm sorry Your Honor, you're talking about at trial now.

In that case, it seems to me that before the presumption that arises from the possession of recently stolen property can come into effect, the property must be shown to be the recently stolen property.

It may be that the circumstances would be such as somewhat -- the two examples suggested by you might raise that presumption that this was the stolen property, it might show that.

And if that's the case, then the inference may properly be drawn.

We certainly don't have that case here.

Chief Justice Warren E. Burger: -- only difference is the amount of the money, isn't it?

Mr. Larry J. Ritchie: It's the amount of the money.

He had a $123.00 in his pocket, $35.00 in his wallet, a total of a $158.00.

The complaining witness initially told that police $65.00 had been stolen.

He later changed that to $96.00.

There is a difference in the amount of the money.

There's no way to necessarily link that to the money that was actually taken.

Justice Lewis F. Powell: Mr. Ritchie, in light of Justice Harlan's opinion in Grunewald, is it necessary for you to rely as strongly as you do on the Fifth Amendment?

Mr. Larry J. Ritchie: Well, I think it is for the reason that Grunewald was a case in which the court exercised their supervisory power over the lower federal courts.

Justice Lewis F. Powell: It was not a constitutional decision.

Mr. Larry J. Ritchie: That is correct.

Justice Lewis F. Powell: Now, the four dissenting justices would have made it a constitutional holding.

Mr. Larry J. Ritchie: Yes, Your Honor.

Justice Lewis F. Powell: So, the majority decision really tend as I read it on the question whether or not the evidence had probative value in light of the Fifth Amendment?

Mr. Larry J. Ritchie: That is correct Your Honor.

The reason why I have to rely on the constitutional argument is really because this case is a case arising under the laws of the District of Columbia.

And as this Court has held in the Griffin case and the other Griffin, Griffin versus the District of Columbia and in Johnson case, when the local federal District Court is seating on a case which involves the trial of an offense applicable only to the District of Columbia, it will be considered to be acting as a local court.

That being the case there would be no federal supervisory power over the courts in this case.

Justice William H. Rehnquist: Was that still true with the D.C. court Reorganization Act, do you think?

Mr. Larry J. Ritchie: Yes, I do.

This was prior to the Reorganization Act.

This case was tried back in 1971.

No, 19 --

Justice William H. Rehnquist: That court reorganization;

that was 1970.

Mr. Larry J. Ritchie: It was.

It arose in the system prior to the change over and after the Court Reorganization Act, so it was tried and federal District Court.

Justice Potter Stewart: Today, this offense would be tried in the Superior --

Mr. Larry J. Ritchie: Today, it would be tried in the Superior Court.

Justice Potter Stewart: Certainly, there are still some supervisory of power is there not, at least toward the federal District Courts in the District of Columbia?

Mr. Larry J. Ritchie: Yes, I thought think there is.

Justice Potter Stewart: You mean, it's just a non-constitutional error is all -- in the federal trial is what supervisory power means.

Mr. Larry J. Ritchie: The Government has argued that there would be no -- but by your ruling that it seeks there would be no way that the police could possibly violate the use of those such a ruling to violate the rights of the accused.

I just want to disagree with that because I think that if indeed, the Government gets the ruling their seeking in this case where a defendant's silence can be used against him.

They can confront him at the station house with a very similar sort of technique as mentioned in Miranda.

When they were discussing the police manuals in Miranda, they pointed out that one technique mentioned was where the police officer tells to the accused, “Joe, you got the right to remain silent.

I'm not going to take that right away from you.

I wouldn't do anything to do that.

But if you don't tell me, you don't explain to me of what situation is, if you remain silent, I'll have to assume that you're guilty.”

You can certainly see that.

Everybody else will assume the same thing.

That sort of statement by the police was viewed in Miranda as amounting to a form of psychological coercion, and I think it does.

If the Government seeks against the rule they seek today, then the police could properly tell the accused that, would be a proper statement to give.

That would result in a great deal of pressure being placed on the defendant's right to remain silent at the police station.

He can invoke that right to remain silent, only on the condition that it may be use in evidence against him and impeachment.

It seems to me that puts a great deal of pressure on him to talk, to give up his right to remain silent.

It does result in a cost at exact cause on the privilege.

I think the Government in the relying on Williams and McGautha and Barnes, really overlooks the fact that in those cases where trial tactics was often discussed, the defendant had counsel.

Here, the defendant is just been arrested at the police station.

He did not have counsel.

This was in a question of trial tactics on his part.

He didn't have counsel.

He didn't have any idea, yet maybe what his defense would be he hadn't conferred with counsel.

I think there's a great deal of difference between this case and between with the cases of McGautha and Williams and Barnes.

As far as waiver is concerned, the Government argues that by taking the stand, he waived his right to remain silent.

In a single proceeding obviously, taking the stand will waive the right to remain silent.

He must answer the questions.

He must not evade questions directed to him by the prosecution.

If he does, then the jury could possibly infer guilt and maybe rightly so.

But here, we're talking about two separate proceedings;

the right to remain silent at the time of arrest and the right to remain silent as his trial.

There is no reason for the waiver about taking the stand to be a retroactive waiver.

In the Raffel case which is relied on black counsel, the only basis which was suggested for extending this scope of the waiver are against extending the scope of the waiver was the possible pressure on the defendant to testify this first trial.

The court rejected that because that pressure really wouldn't exist.

He wouldn't be expected to have a second trial.

He couldn't anticipate that he would get a mistrial.

Here on the other hand at the police station, he may well expect to have a trial.

He is probably looking forward to one.

Justice Harry A. Blackmun: Let me see if I understand you, would you feel that an affirmance here would result in an overruling of the Raffel?

Mr. Larry J. Ritchie: I'm not sure that it would.

I think Raffel as been limited to its facts pretty much by more recent cases by Stewart in particular.

Grunewald and Stewart, both fail to follow Raffel.

Justice Harry A. Blackmun: They didn't overrule it?

Mr. Larry J. Ritchie: They did not overrule it.

Justice Harry A. Blackmun: And it was a unanimous opinion and the court which included Justices Holmes and Brandeis.

Mr. Larry J. Ritchie: That is correct.

Justice Harry A. Blackmun: In fact, Justice Brandeis wrote the opinion.

Mr. Larry J. Ritchie: That is correct sir.

Thank you.

Chief Justice Warren E. Burger: Mr. Ritchie, you have I think two minutes left to --

Rebuttal of Frey

Mr. Frey: Thank you.

I'll try to be quick.

The reason are my opponent can't rely on Grunewald Mr. Justice Powell, said I think on a fair reading of Grunewald, it more closely supports us than them, the kind of analysis in which the court engaged in Grunewald would not lead to the same conclusion as applied to the facts from this case.

With respect to what Mr. Hale could reasonably infer from the warning that was given to him at the time he was arrested, I don't think he could reasonably infer that his silence wouldn't hurt him.

There are many ways in which his silence would hurt him.

His silence would cause him to be charge with a crime.

His silence would cause him to lose the opportunity to neutralize the piece of evidence.

His silence might cause him to lose whatever opportunity he had to get this money back.

The silence carries many prices.

The price of possible impeachment if he's brought to trial and if he decides to testify by his silence, it seems to me a very remote one, very unlikely to control his conduct that the time extremely unlikely to put impermissible pressure on him in violation of the Fifth Amendment.

And I think it's important to note that his silence was not the product of any violation of the Fifth Amendment.

Obviously, his right to remain silent was honored and even there, I think that it's -- by no means clear that what was referred to in Miranda is the right to remain silent is actually a Fifth Amendment right.

You have a right not to be compelled to speak.

In Michigan against Tucker suggest that that right is somewhat different and somewhat more narrow and it might be more accurate if the Miranda warnings instead of describing a right to remain silent advised the arrestee that he has no obligation to speak or perhaps that he can't be compelled to speak.

In any event, I think there was no real likelihood of prejudicial effect.

By prejudicial effect, what is meant is that the jury will impermissibly draw the improper conclusion and I don't think that could be the case here.

Thank you.

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

Thank you Mr. Ritchie.

The case is submitted.