DOYLE v. OHIO

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Argument of James R. Willis

Chief Justice Warren E. Burger: We will hear arguments first this morning in 75-5014, Doyle against Ohio and 5015 Wood against Ohio.

Mr. Willis.

Mr. James R. Willis: Mr. Chief Justice and may it please the Court.

Jefferson Doyle and Richard Wood, the petitioners in this case, were convicted and sentenced to serve penal terms of 20-40 years for the sale of Marijuana.

This Court granted certiorari to consider among other things, the question left unanswered in US versus Hale that is the whether Constitution prohibits the persecution from showing that one who had been advised of his right of silence end up his right of counsel, properly subjects himself to questions designed to show he availed himself of such rights.

Also involved here are serious questions as to whether an accused can be asked why he failed to disclose his defense at the preliminary hearing where he appeared with counsel, and whether a defense witness arrested and charged with same offense can be asked comparable questions.

These include why they did not consent to a search of the car.

Then there is the further fact that these points where vigorously argued to the jury.

The relevant facts are not in serious dispute.

Doyle and Wood were arrested shortly after they had been seen emerging from a parking lot.

An informer had preceded them; he was carrying a 10 pound bag of marijuana which he indicated had been purchased from the petitioners.

Their defense was that they had been framed.

The fact shows that they had driven about the city, according to their defense, in search of the person who had framed them and they were stopped and arrested by the local police who were aided by the sheriff’s department.

The Court of Appeals expressly viewed the asking of the assailed questions as properly designed to test credibility.

The related arguments were approved on the basis of this determination.

In a nutshell, we contend here that to the extent, Raffel may have somehow survived as a viable concept, this Court’s decision in Johnson, Grunewald and Griffin may have even been invigorated by Harris.

This Court’s decisions in Miranda and Hale, certainly when viewed in tandem, mandate that Raffel should be expressly relegated to the archives of antiquity.

The state and the government, in its amicus brief, would have this Court declare in spite of the clear and ambiguous thrust of Miranda and Griffin that the failure of an accused base on his right of silence and to counsel to reveal the details of his defense during police interrogation is a factor that bears on creditability.

While it is doubtless truth that the Grunewald, Hale conclusion that mere silence is not inconsistent with innocence is a valid premise.

It is also true that a request to consult with counsel should not create a negative force against the believability of exculpatory defense as was the case here.

Raffel of course held that it was proper to show at a subsequent trial that the accused did not testify at his first trial.

For me, it is most difficult to square Raffel with the Griffin principle that one cannot be penalized for not having testified and the elementary fairness concept expressed in Johnson makes the fact that the Miranda warnings were given these petitioners a most crucial consideration.

The same as true of Grunewald as it is hard to see how this Court’s supervisory powers of the lower Federal Courts could possibly be more sensitive to the rights of an accused to a fair trial then it is to Constitution itself.

As counsel reads Hale absent a on a duty to speak and absent a threshold inconsistency between a failure to do so and later exculpatory testimony, proof of silence, lacks a significance probative value and should be excluded.

Here of course, as was the case in Grunewald, the focus on Doyle and Wood following their arrest was so intense that it was natural for them to feel they were being questioned solely for the purpose of providing evidence that could be uses against them.

Indeed, there is simply no basis in this record even for the strained hope by them that the revelation of their defense to the police during interrogation could have possibly resulted in their arrest -- in their release.

Raffel, of course, was based on an assumption rejected in Grunewald and again in Hale that silence is inconsistent with a later exculpatory defense.

But as the Court has recognized, and I think it is salient here that there is simply no proof that an innocent person would tend to make an exculpatory statement whereas the guilty person will remain silent.

We contend that it there is something wrong with the rule which permits the conversion of one’s permissible use of Fifth Amendments shield into evidence of guilt.

This, of course, is the point made in the concurring opinion in Grunewald which, we contend, was adapted in Griffin and certainly impeachment tends to demonstrate it is untruth by implication which was a point made in one of the concurring opinions in Miranda.

The interesting aspect of this case, of course, lies in the fact that in Ohio there were decisions which had expressly excluded the ability of the prosecutor to comment on the failure of a person to appear before the grand jury.

The Supreme Court of Ohio had indicated that this of course was improper and then no amount of instruction could cure of this fault on the part of State.

There were decisions which indicated it was impermissible to comment on the fact that one did not reveal his defense at a preliminary hearing.

Again, the Supreme Court of Ohio take into position that any instruction was insufficient and then there was the Stevens case out of Ohio which indicated that it was impermissible to argue to the jury that at a point of arrest would have been a good time for the defendant to have revealed his exculpatory defense.

There was a statute in Ohio which was of course applicable at the time this case was tried and that statute expressly provided that when an accused person appeared at a preliminary hearing without counsel, he should be expressly advised that the he need not make any statement and the failure to make a statement could not be used against him at the time of trial.

Thus, we have the anomalous situation where one appears with counsel and he is of course of penalized because he did not reveal his defense at the preliminary hearing.

To put the issue in its proper context, I think, that a slight emphasis should be given to some of the questions that were asked of Mr. Wood and Mr. Doyle.

The point of course is that Doyle was tried -- Wood was tried first, Doyle appeared as a witness in the Wood case.

Doyle was tried and Wood appeared as a witness.

So that we do have a sophisticated aspect of some of the questions which deal with whether or not the same standards applied to a witness who appears testifying in the defense of a co-defendant or whether or not the Fifth Amendments right of silence which also was given to him at the time of his arrest is to be exposed to the jury to impeach his credibility when he appears as a witness.

The Trial Court in ruling on emotion for judgment of acquittal a post trial indicated that different rules applied.

We contend that the rights have not been given to both these defendants and both having indicated that they desired to rely on their rights and they wanted to consult with an attorney, that it does not make any difference whether he appears at the post trial -- whether he appears at the trial post indictment.

It does not make any difference whether he appears as a witness or as a defendant that the implications are exactly the same.

In this case, when Doyle and Wood were stopped, the officer indicated, and it is a fact that he told them they have the right to remain silent and they have right to consult an attorney.

Both indicated that they wanted to consult an attorney.

Later, they came to the incarceration area and indicated to Wood, you do not have any objections to us searching your car.

He said I want to consult with an attorney about that and that was his evidence on the point, and Doyle of course gave comparable indications.

Then, of course, the State then went to the problem of getting a search warrant and they located in the car some money and of course they were asked at the trial, why did you not consent to the search of the car and why was it that you did not reveal this frame defense to the police on the night of the arrest?

Why, when you appeared at the preliminary hearing, did you not reveal the contents of your defense?

And the question about the counsel was brought before by questions asked of one of the petitioners is why did you not relate the essence of your defense and he indicated that I wanted to consult with an attorney.

So while you appeared at the preliminary hearing, you had an attorney at that time, did you not?

And he said yes.

And why did you not tell the judge at that preliminary hearing that you have been framed and would that not have been a wonderful time to have revealed to the judge that you have been framed.

And all these questions of course were asked over objections.

The only instruction given to Court related to the testimony of one who appeared on as rebuttal witness in the Wood trial, he was asked on the rebuttal that Mr. Wood, at anytime, protests his innocence.

And we again objected and the Court indicated that -- did Mr. Doyle at anytime protests his innocent.

Doyle testifying as a witness in the Wood trial, and the Court instructed the jury that that went to impeach the credibility of Mr. Doyle who had appeared as a witness on behalf of Mr. Wood.

Yes, sir?

Justice John Paul Stevens: Do you think there is any inconsistency between the defendant’s silence at the time of arrest and his testimony of trial?

Mr. James R. Willis: Do I see any inconsistency?

Justice John Paul Stevens: Yes.

Mr. James R. Willis: Mr. Justice Stevens, I see none.

I feel that the Constitution having as interpreted by Miranda having conferred upon the accused, the absolute right to remain silent, I see no inconsistency between that and the position taken by this Court in the --

Justice John Paul Stevens: Assuming that the Court -- assuming the Court should disagree with you on the question whether there is inconsistency or not, would your position then fail? Please turn on the question whether or not there is inconsistency?

Mr. James R. Willis: I would say so, in the line of Harris versus New York, the position taken by the Court there of course related to inconsistent statements, which were at variance with the later defense.

I think, although I am not in agreement necessarily with Harris, but given Harris, I do not think that this case would turn on that point because here --

Justice John Paul Stevens: Well, there could ever be a case in which silence would be inconsistent with trial testimony?

Mr. James R. Willis: I would suppose so.

Using the Third Circuit’s case of USL, the Bird case, whatever it is, there the indication was that the man was arrested and at sometimes after a person had been killed and later he was charged with a murder and his defense was accident and he was questioned as to whether or not why he had not reported the fact that he had accidentally injured someone.

I think in that instance, at least I could live with that opinion.

And there is the Fifth Circuit Opinion in Ramirez whether person testified a trial that he was coerced in selling the contraband.

I think there, I can see how he might have been under some duty to speak, and I think that is the point, absent a duty to speak.

I have problems with it and I have even greater problems when the man has given the Miranda warning which is to the effect that he has the right to remain silent.

And I think that he certainly can rely on that.

And there is an old opinion rendered by in the Sixth circuit I think it is the McCarthy and it is probably back in the 20s.

And the point there was made that if a person could be penalized for exercising his right of silence that you have to change the warning to read that anything that you say can be used against you and if you do not say anything that can be used against you too.

And I think that makes sense.

It just seems that there is something wrong to tell a man you have the right to remain silent and you have the right to consult with an attorney.

And he says very good, I want to exercise those rights.

And then later, he is penalized for having done so.

I just cannot reconcile that with the position taken by Mr. Justice Douglas in Johnson not can I take it --

Justice John Paul Stevens: There was inconsistency between silence at his later trial testimony.

Mr. James R. Willis: Inconsistency, but I do not accept that the premise that silence is necessarily –

Justice John Paul Stevens: At the time of the arrest, the officer cannot really know what the man is going to testify to later.

So why would he has to give him that warning?

Mr. James R. Willis: Well the Court said he must be warned in Miranda, and I am relying on that.

This Court --

Justice John Paul Stevens: Warning about your silence maybe used against you.

Did you say your silence maybe used against you if you testify later in a way inconsistent with silence?

Mr. James R. Willis: But I am not agreeing --

Justice John Paul Stevens: In that circumstance, so which would be permissible I suppose.

Mr. James R. Willis: I admit that some of the decisions tend to suggest that this is the case.

Again, the Third Circuit current opinion in Bird and RAMIREZ’S decision out of the out Fifth Circuit tends to say that there are some circumstances in which silence is inconsistent with innocence and with later exculpatory testimony and for that reason is admissible.

But I think for that reason, this Court ought to articulate standard under which all of us can live.

And I believe that is one of the real problems that confronts defense council.

We recall, I think it was Mr. Justice Jackson in Watts versus Indiana indicated that any lawyer, worth his so, will advice his client not to make any statement on any circumstance.

Justice William H. Rehnquist: Your client is free and you are free to argue to the jury that no inference should be drawn or that it is such a debatable inference that he may, well has just been following his Miranda warning.

Why converted it into a question of law rather than simply something that the jury should evaluate one way or the other?

Mr. James R. Willis: Well, I think this position, Mr. Justice Rehnquist that any defendant who does not testify goes against the grant.

And certainly if you cannot penalize him for not testifying to a jury in open court, why should you penalize him because he does not desire to risk distortion by the police officers as to what he might have said when questioned on the public highway.

And for that reason and because the drift as I apprehend from the Court’s decisions is that he has this right to remain silent, why should he be penalized?

Justice William H. Rehnquist: Why do you say you are penalizing?

I mean you are letting a lot of statements made by the defendant to a third-party at the trial, you do not regard those as penalizing, do you?

Mr. James R. Willis: Well, I do not say he is being penalized but I think he properly subjects himself to a testimony that tends to prove him guilty when it is provided by others.

But I think the Fifth Amendment says he does not have to provide any testimony himself which is incriminating, and this is at least the thrust to the position I am trying to defend.

Certainly, I do not see how one can conclude that because a person is told he can remain silent and he decides to remain silent, that he must be guilty and that this has some evidentiary value insofar as the question of guilt or innocence is concerned.

Chief Justice Warren E. Burger: Something as a premise, Mr. Willis, the idea that the silence is incriminating, you say that he is not obliged to answer because this tends to incriminate him?

Mr. James R. Willis: No, I am not saying that -- I am not necessarily saying that if I am then I am not -- what I am trying to say, I am not saying very well.

What I am really trying to say is that this Court, as indicated in Miranda that the man has the right to remain silent and he has to be told of this, and that he has a right to counsel and he has to be told of this.

Now that seems to me that there is something basically unfair to then turn that around and penalize him by exposing to the jury that he elected to remain silent when he had an option which would have permitted him to waive these constitutional rights and reveal to this police officers, possibly in some secret session or in present of five or six other police officers who may very well distort what he has to say.

I think he has a right to reveal his defense in an open court where it can be fully evaluated.

Chief Justice Warren E. Burger: Do you mean he has a right to reserve totally any statement about his defense until he is in open court with his counsel?

Mr. James R. Willis: That is it.

That is precisely the point.

I feel that he has no duty to speak when interrogated by the police officers and I think this Court has made that point very clear.

And this is the point that I think Mr. Justice Douglas made in Johnson when the particular defendant was told by the Court that he could refuse to answer questions based on his right on this Fifth Amendment rights.

And then later, the prosecutor was able to argue that the man had exercised his right of silence.

Certainly, something fundamentally wrong to penalize a person for having exercised the right that you extended to him, and this is the point upon which I place my basic emphasis.

Chief Justice Warren E. Burger: Mr. Justice Jackson’s often quoted observation that if a lawyer has called in any lawyer worthy assault will tell his client to say nothing whatever.

In the Miranda opinion, Chief Justice Warren, he recalled and added at some points in his discussion of the setting that we are talking about and it goes on to say it can be assumed that in such circumstances, that is when a lawyer is called in and the client tells the lawyer he is innocent and can exculpate himself, his statement goes on.

A lawyer would advise his client to talk freely to police in order to clear himself.

Certainly, some inconsistency between those two observations of the two justices?

Mr. James R. Willis: Yes, and I --

Chief Justice Warren E. Burger: Either one is a ruling of law but an observation.

Mr. James R. Willis: This is the point I was going to make.

I think that the statement by Mr. Justice Warren, of course, was dicta and it certainly -- I do not agree with that particular statement and I feel that as counsel for a person who is on the accusation that I have the choice of giving him the advice which I considered to be consistent with the client’s best interest.

I think that that is traditionally the role that defense counsel has to bear when he assumes the obligation of defending one accused to crime.

I see nothing improper in indicating to a person against whom there is a raid, some suspicious circumstances that he should exercise his right to reserve as the court has indicated his right to defend against these judges in open Court.

Particularly, when the likelihood that if he were to make all sorts of exculpatory statement is not going to result in this illusion elision in any way.

In any event are void the problem going to trial then having the issue decided by a jury.

Yes, sir?

Justice Lewis F. Powell: Do you draw the distinction between instances that exist at the time of arrest when the Miranda warnings are given and those that exist at the preliminary hearing?

Mr. James R. Willis: Yes.

In this case I do because at the preliminary hearing, the man appeared with counsel and certainly, if he retains counsel, you ought to follow counsel’s advice.A

nd at that point, we can assume that the counsel had evaluated all the facts and circumstances and in this particular case, he conducted a pretrial motion to suppress which had been defeated and the likelihood was good that the man was going to get indicted by the grand jury.

Also, we had the State Statute which expressly indicated that if a person had appeared without counsel, the Court had to advice them that they need not make any statements and their failure to make any statements could not be used against them at the time of trial.

So, are we to say that counsel cannot give the same advice to his clients that the Court would be required to give within he appeared without counsel?

I hope that answers the Court’s question.

Justice Lewis F. Powell: He took the stand, did he not?

Mr. James R. Willis: At the trial, yes.

Justice Lewis F. Powell: The election not contested by or offer any explanation of his original silence, at the preliminary hearing it was a trial tactic as lawyers would perhaps say.

Mr. James R. Willis: Well, I would not certainly call it Mr. Justice, a trial tactic although it probably results in being just that.

The point was it would have been futile for him to have testified at the preliminary hearing.

The burden there is only a probable cause to believe that this person was implicated in some crime and is then up to the grand jury to determine whether or not he should be indicted.

So the likelihood of him forestalling this situation at that point was too remote for him to even involve himself in trying to explain his particular defense at that time.

Justice Thurgood Marshall: At one case, once you lose your emotions to suppress your dead pigeon anyhow so far as the grand jury is concerned.

Mr. James R. Willis: In simple -- oh yeah, so far as the grand jury is concerned, yes.

I would like reserve whatever time I have left -- yes?

Justice John Paul Stevens: Question on the facts.

It was the defense theory at the trial of the informant had framed the defendants as I understand?

Mr. James R. Willis: That is correct.

Justice John Paul Stevens: Was it part of the theory that the arresting officers were parties to the frame?

Mr. James R. Willis: Not precisely.

No I do not -- I would say no.

That was not a part of the defense.

The point was that the particularly informants had already been sentenced to the penitentiary and he had been brought back and was out on bail pending a habeas corpus ruling and he sought out this officers that he happen to try to do something to help himself.

He admitted this much.

Justice John Paul Stevens: Thank you.

Mr. James R. Willis: And we were concerned that he was trying to get these people to go penitentiary in his place.

Chief Justice Warren E. Burger: Mr. Collins.

Argument of Ronald L. Collins

Mr. Ronald L. Collins: Mr. Chief Justice.

Justice Lewis F. Powell: Is the State of Ohio so in progress that it can not afford to print briefs filed in the United States Supreme Court?

Mr. Ronald L. Collins: I am sorry, Your Honor.

I thought that we had complied with the rule.

That is what we offer.

Justice Lewis F. Powell: Not complied with the rule, my question is directed that to the fact that the Great State of Ohio comes to our Court with a that has not printed, whereas most people who do appear here manage to find the means to print their briefs and it just puzzles me.

Mr. Ronald L. Collins: Your Honor, I had expected that since the petitioners had come in here in the form of a popper that we could have replied in kind if we had chosen to do so.

Justice Lewis F. Powell: Is there a certain right to do it under the rules and I understand --

Justice Thurgood Marshall: You did not make a (Inaudible).

Mr. Ronald L. Collins: Excuse me? [Laughing] Excuse me, no.

Justice Thurgood Marshall: I mean Ohio did not make a (Inaudible), oh yes.

Mr. Ronald L. Collins: No, Your Honor.

May it please the court?

My name is Ronald L. Collins.

I am the prosecuting attorney for Tuscarawas County, Ohio.

I wish to deal a little bit with the facts in this case and then I wish to stress five points in argument for clarification and amplification of the written brief which we have provided the court.

Before we get into those matters, I do have one thing to indicate to the court less the court please on do emphasis on the matters as brought to the attention of Court by Mr. Willis, the defendant’s being sentenced to 20-40 years in penitentiary.

As the Court is aware in the case of Downey versus Perini which has been sent back to the Sixth Circuit into Ohio for further determination.

Ohio has retroactively changed its penalties in marijuana cases and this will apply to these defendants.

As Mr. Willis pointed out to the Court, the facts here are relatively simple.

I think they are complicated only by the disbelieved testimony of the petitioners to the defendants below and that they are very important facts are very important in this particular case.

I think they are important in light of Mr. Willis’s concession here that inconsistency turns this case and that Ramirez is such a case.

We contend it is but a short step and perhaps even backwards from Ramirez to our case.

In the facts of our case, on April 28, 1973, the informant notified in Multi-County Narcotics Bureau, which is the local bureau in our County, Tuscarawas County, Ohio that he had set up a deal with one of the defendants, Mr. Jefferson Doyle to purchase a quantity of marijuana from him.

The deal was for 10 pounds of marijuana, of course it is sackful as it turned out.

The price is to be $175 a pound or $1750 for the 10 pounds.

The Bureau had trouble getting this amount of money and on the short notice that they had, however, they did get some amount of it $1520 or $1540 as I recall and had some part of that money photocopied so that they had the serial numbers.

The informant was searched so that they found no drugs on him and the surveillance team, in fact several surveillance teams were set up to watch the informant as he went to his rendezvous.

The photocopied money or – some of the money was photocopied and all was what given to him including the photocopied money and he set off for his rendezvous with the petitioners, the defendants below.

The exchange was made.

The informant gave the defendants his money and the defendants gave the informant the marijuana.

Later, after search warrant, the money including that which was photocopied was found in the rented – the locked rented car of the petitioners bowled up under the floor mat, the passenger side of that car.

Had trial and the trial testimony of the defendants they testified for in their own behalf in separate trials and each other’s behalf as witnesses in the separate trials.

Their testimony essentially was that they were involved in this matter but it was only of the defendants, Mr. Doyle who wanted to buy marijuana not to sell it and that it was the informant who I might pointed out, the evidence showed knew he was under surveillance at the time this rendezvous took place was framing.

The informant was framing by the defendants that the marijuana was his 10 pounds not the defendant’s.

That the money -- how did they explain the money

?Well, apparently it had been thrown in the window and to the backseat at the time that they turned down the deal to purchase the marijuana, according to their story.

Then it was their testimonies that day after they left this rendezvous, they discovered this money in the backseat and think scared, not knowing what to do, they hid it under the floor mat, yes they did hide it.

And the --

Chief Justice Warren E. Burger: (Inaudible) how the police facts relate to the legal constitutional claims presented to us?

Mr. Ronald L. Collins: Well, it is going to be the contention as I get to it in my argument of the state that in considering the question of consistency or inconsistency was the silence at the time of the arrest.

The Court must consider the nature of the trial testimony and what I am saying forth here is the nature of the trial testimony.

Chief Justice Warren E. Burger: Claimed not all silence – silence may not be used to impeach under all circumstances but under some circumstances and that this is one of the cases where it maybe so used.

Mr. Ronald L. Collins: That is correct, Mr. Chief Justice.

The petitioners also went on to testify in their part of their case that they were trying and they were chasing this informant after they found that money to find out what is going on.

Maybe some 10 or 15, 20 minutes and after they had driven around several blocks, say, they went in to find out what was going on and my question is, where they perhaps wanting to know what had happened to the other $400 that they had won and since they had indicated in their testimony that they did count the money.

At this point, they were picked up and they did not talk to law enforcement officers who did pick them up who had found out about this through the informant going to the sheriff’s department and later a radio communication telling them – telling the other officers of what had happen.

At the trial, the prosecutor cross-examined on the silence of the defendants at the time they were arrested.

That is clear.

Now, in argument, I would like to stress five points.

First, it has been mentioned what is being penalized by the persecutor’s cross examination. I want to deal with exactly what is being penalized.

Second, how the silence of the defendants at the time of the arrest became meaningful conduct not just silence.

Third, I would like to deal with the purpose of the prosecutor’s questions.

Fourth, the inapplicability of Miranda and fifth, some due process considerations--

Unknown Speaker: (Inaudible)

Mr. Ronald L. Collins: I will if you have a question, sir.

Unknown Speaker: Do you think it is a part?

Mr. Ronald L. Collins: I think not because -- I think that the preliminary hearing goes along with the same kind of point that we contend, obtain that trial.

In other words, that the prosecution could make no use of the silence of the defendants in their case and chief and this certainly could not be brought up.

Only side of the case presented preliminary hearing, the states case.

And therefore, there was no occasions since the defendants did not take a stand at the preliminary hearing, there is no occasion for this issue to come up.

The warning that the Court gave is very similar to the warning which police officers given to Miranda.

Justice John Paul Stevens: The question is, why do you think there is the same degree of inconsistency between failing to take the stand at the preliminary hearing on advice of counsel and the failure to make a volunteered statement at the time of arrest?

Mr. Ronald L. Collins: Yes, in particular – and given that particular fact –

Unknown Speaker: Do you think they are equally inconsistent with his trial testimony?

Mr. Ronald L. Collins: This particular trials testimony.

Justice Thurgood Marshall: Is it true that the prosecutor argued to the jury that he did not talk to its preliminary hearing?

Mr. Ronald L. Collins: Absolutely.

Justice Thurgood Marshall: The question is why it is not indicated?

Mr. Ronald L. Collins: I said that it is not in the case that they took a stand.

Justice Thurgood Marshall: No.

Mr. Ronald L. Collins: It is not in the preliminary hearing, Mr. Justice Marshall.

Justice Thurgood Marshall: The prosecutor did argue that if you to test by preliminary hearing was evidenced to be considered against the petitioner?

Mr. Ronald L. Collins: That is correct.

Justice Byron R. White: What if the government had used his silence on each side of the case?

Mr. Ronald L. Collins: Well that absolutely would be an error.

Justice Byron R. White: Under what?

Mr. Ronald L. Collins: Well --

Justice Byron R. White: Under Griffin?

Mr. Ronald L. Collins: No.

I do not think Griffin applies to this type of case.

Justice Byron R. White: Why not?

Why not -- if the defendant was silent and --

Mr. Ronald L. Collins: Yes, in that case Griffin would have some application.

I think what makes Griffin have no application in our own particular case is the fact that the defendants took a stand.

Justice Byron R. White: Well I know but suppose that they have put somebody on stand and said well he did not take the stands and explain anything, it is preliminary hearing or at any other time that he felt, on their side of the case.

Mr. Ronald L. Collins: I think that is --

Justice Byron R. White: Do you think that is there?

Mr. Ronald L. Collins: Yes.

Justice Byron R. White: Well let us suppose, the government does that on their direct side of the case and then the defendant takes the stand and they impeach him or they ask him the same questions about his preliminary hearing.

Were you silent at the preliminary hearing?

Did you have brief explaining this?

And he says no.

Now you say that is permissible but using it on their side of the case is not?

Mr. Ronald L. Collins: That is correct.

I think Miranda compels that.

Justice Byron R. White: And you are suggesting that -- or is this silent just for impeachment purposes?

Mr. Ronald L. Collins: That is correct.

Justice Byron R. White: Not a substantive evidence?

Mr. Ronald L. Collins: Absolutely.

Not as evidence of guilt but evidence for impeaching purposes that his story -- the stories that they are telling, exculpatory stories are layer fabrications.

The first point in the argument that I would like to make is about penalizing and Mr. Willis and the petitioners would contend that the state and by the questions and cross examination, that the state was penalizing the defendants for their exercises that are constitutional privilege.

We contend that if there is any penalty at all that there was not a penalty for the exercise of the constitutional privilege.

The penalty was for they are taking the stand and giving this fabrication, this fabricated exculpatory story.

If they had not taken the stand, the prosecution could not have said a thing about the silence, their silence at the time of their arrest.

Justice Thurgood Marshall: (Inaudible) Miranda ruling that they abide by what you say which is that you hear by one that if you make any statements, it will be used against you if you take the stand?

Mr. Ronald L. Collins: No.

I do not think that needs to be done.

Justice Thurgood Marshall: Is that not what you are arguing?

Mr. Ronald L. Collins: What I am arguing is that --

Justice Thurgood Marshall: What you are arguing is once he takes the stand, this Miranda ruling means nothing?

Mr. Ronald L. Collins: I am arguing that when the trial testimony turns out to be inconsistent with silence that the Miranda warning means nothing.

Justice Thurgood Marshall: So once he takes the stand and testifies, that is inconsistent, is it not, with silence?

Mr. Ronald L. Collins: No.

None --

Justice Thurgood Marshall: Talking is inconsistent with silence, is it not?

Mr. Ronald L. Collins: Yes, talking is inconsistent with silence.

Justice Thurgood Marshall: So you have to tell him that that if you test -- whatever you tell us, we will use against you if he takes the stand?

Mr. Ronald L. Collins: No.

I think the Court – the Trial Court has got the view, it is factual matter, listened to the testimony of the defendant which exculpates him and determine whether the nature of that testimony is such as it would cough or something other than silence.

Justice Thurgood Marshall: (Inaudible) that any testimony to exculpatory testimony of the defendant, they would not justify you and use the Miranda?

Mr. Ronald L. Collins: Yes.

I would point out the Hale case.

Justice Thurgood Marshall: Hale case was the supervisor I think.

Mr. Ronald L. Collins: I understand that but I am talking about the fact pattern in the Hale case where -- and I think it is a closed case but the factors that were brought out in that trial --

Justice Thurgood Marshall: (Inaudible) applied Hale to the State of Ohio?

Mr. Ronald L. Collins: Yes.

As a matter of fact, I think I argued that in the written brief.

Justice Byron R. White: Well, Hale is an evidentiary opinion, just the fact saying this testimony was not inconsistent, right?

Mr. Ronald L. Collins: Well, Hale --

Justice Byron R. White: What if it were applied to the state, what would you say the constitutional basis would be for applying it to the state?

Due process that just silence is does not any evidence?

Mr. Ronald L. Collins: Well I am not saying that --

Justice Byron R. White: That certainly would not be a Fifth Amendment matter, would it?

Mr. Ronald L. Collins: No.

I think it has to be due process and I think due process considerations would come down on our side.

I do not think --

Unknown Speaker: You are satisfied with Hale as applied to the state?

Mr. Ronald L. Collins: Well, I view Hale as not reaching the constitutional question at all and either constitutional question on due process or Fifth Amendment and I do not think this is a Fifth Amendment case.

I do not think Hale was at Fifth Amendment case.

If that was anything, it was a due process case and that is the same thing I think this is.

The second point is a related point and that is in light of the trial testimony of the defendants, their silence at the time of their arrest became conduct, because here they are with this marked money, this photocopied money in their car.

They have all these things that they have testified to and then which were set out in detail, and I do not want to dwell on the facts anymore, which made them, -- this conduct made them voiceless in the presence of the realities that they were facing.

A third point is related to this as well that the prosecutor asked about, and this has been a question before, asked about the defendant’s silence not to show guilt but to show that they were lying on the witness stand.

I think the fourth point I would like to stress here is, in my view, Miranda has no proper application to either Hale or to this case.

The warnings in Hale and in this case were given.

They were heeded.

The defendants said nothing.

I contend that there is a different line of cases here, entirely separate from Miranda.

Raffel versus United State, Grunewald versus United State, Harris versus New York and United State versus Hale.

As a matter of fact, throughout the appellate argument at this case, State has relied on the language in Harris.

I think the prosecution does have a right to rely on the language in Harris, some of which shows that Miranda does not apply.

The court at Page 224 in Harris had said some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose.

The discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded to this controlling.

Miranda barred the prosecution for making its case with statements of an accused made while in custody prior to having or effectively waiving counsel.

It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes provided of course that the trustworthiness of that evidence satisfies legal standards.

I think the Miranda rationale is important here that of deterring improper police conduct and getting rid of coercion.

Here, the conduct of the police was entirely proper.

They gave the Miranda warnings.

It was no compulsion, no element of compulsion or coercion at all.

The petitioners, the defendants made their free choice to take the witness stand at trial.

They made the free choice to remain silent at the time of their arrest.

And so that is an additional reason why I think there is no Fifth Amendment question here.

There is no element of compulsion.

There is no compelling at all.

Due process in the Constitution in my opinion amount to fairness, and I do not think that there is anything fair about presenting a lopsided version of truth to the jury.

I think that the defendants in this case, petitioners should not have been allowed to tell their story to the jury on impeded by being impeached by things which would go directly to the issue of whether there was a fabrication or not.

Was there a recent fabrication after these defendants had listened to the state’s case throughout the preliminary hearings, throughout discovery procedures and trial twice, two separate trials?

I think the jury had a right to weigh the credibility of the defendants and I think that the proper -- the prosecution had properly used the silence given the facts and the nature of the defendant’s testimony as impeachment as showing that this was a recent fabrication that they did not have a story at the time they were arrested and now all of a sudden at trial they do have a story.

There should be a full and not just a selective development with the recent fabrication and credibility issues.

Thank you.

Chief Justice Warren E. Burger: Mr. Willis.

Let me put a hypothetical Mr. Willis.

I am not sure whether you conceded an answer to Mr. Justice Stevens that in some circumstances silence might have a probative value but take this hypothetical case.

A setting of the same as you have here except that the charge is inflicting serious injury while driving an automobile under the influence of liquor.

Three men in the car and at a point after insignificant preliminaries, the policeman turns to the driver who has furnished his driver’s license and shown that he is the owner of the car, you are now under arrest for driving while under the influence of liquor.

And it is my duty to warn you and then he goes along with the usual warning.

And the owner of the car makes no response.

Then at the preliminary hearing, he appears with the lawyer and makes no statement, no preliminary response at all.

Then at the trial, his defense says he was not driving the car at all.

He was sleeping in the backseat and the other two passengers were -- the other two men who were in the front seat and one of them driving.

Would you say that the silence in these two first circumstances or either of them is inconsistent with innocence?

Rebuttal of James R. Willis

Mr. James R. Willis: I would say that it is not inconsistent with innocence and I would like to correct any impression that I may have given.

I did not concede that there were any circumstances in which silence could be inconsistent with innocence.

I indicated that there were some cases, Burt versus New Jersey and Ramirez where the Court took the position that in those circumstances, it was inconsistent with innocence.

I said I could see how the Court came to that conclusion although I do not agree with it, but I am indicating that this case is not even -- does not fall in that field.

This is different case in its entirety.

My position is that silence can never, following the warnings that that eliminates any duties or impose that the accused might otherwise have to explain incriminating circumstances and that he has a right to rely on the warnings given to him by Miranda, and that would apply across the board in all cases.

That is the position I have attempted to assert here.

Certainly, if these defendants had the right to remain silent, then the police did not have the right to create any evidence out of their exercise of the right to remain silent.

I feel that this Court’s decision in Hale ought to be applied full strength to the facts in the factual pattern involved here.

Certainly, we have to concern ourselves about them asking these petitioners about consenting to the search of the car.

I feel that they do not have to consent to the search of the car or ask Mr. Wood about this.

He was the lesser of the car and he indicated I want to discuss that with my attorney.

Now, how can you then torture that legitimately in the light of Grunewald and these other cases than to some evidence that can be used against these particular petitioners?

I feel that the Court ought to follow the suggestion made by Mr. Justice Black in his concurring opinion in Grunewald and ought to eliminate Raffel from the books of this Court as a viable opinion.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.