Cases by Issue - Self-Incrimination

Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County

Media File:

03-5554_20040322-argument.mp3

Related Transcript:

transcript.xml

Clips:

TRJ Clip 1

TRJ Clip 2

Transcript:

Argument of Robert E. Dolan

Chief Justice Rehnquist: We'll hear argument next in No. 03-5554, Larry D. Hiibel v. the Sixth Judicial District Court of Nevada.

Mr. Dolan.

Am I pronouncing your client's name correctly?

Mr. Dolan: Your Honor, it's Hiibel.

Chief Justice Rehnquist: Hiibel.

Very well.

Mr. Dolan: Thank you, Mr. Chief Justice.

May it please the Court:

I'm here today to respectfully ask this honorable Court to find that the search and seizure of my client was illegal and unreasonable and, in the process, to reverse my client's conviction.

Petitioner Hiibel was arrested and convicted of a crime simply because he did not identify himself or provide identity.

Justice O'Connor: Could the officer have just said, show me your driver's license?

Mr. Dolan: We don't believe so, Your Honor.

Justice Kennedy: Why?

Mr. Dolan: This was not a traffic stop.

This was a... an interaction between a pedestrian and a law enforcement officer, wherein the officer...

Justice O'Connor: But there was evidence... was it not clear that he had been driving and he got out of his vehicle?

At the time the officer saw him, he was out.

Mr. Dolan: No, Your Honor.

There was never a finding of fact on that issue.

In fact, the issue before the trier of fact in the justice of the peace court there in Winnemucca was whether or not the... the charge of resisting and delaying the officer occurred.

Chief Justice Rehnquist: What was the factual situation?

He... he was certainly right next to a truck, wasn't he?

Mr. Dolan: Yes.

When Deputy Dove arrived at the scene, Mr. Hiibel was standing at the passenger side of the car.

His daughter was in the cab of the truck by the... the steering wheel.

And when Deputy Dove arrived on the scene, he began the police-citizen encounter with Mr. Hiibel.

They approached each other.

Deputy Dove said, I heard that there was some kind of a fight.

Mr. Hiibel said, I don't know anything about that.

Deputy Dove then proceeded to ask approximately 11 times for Mr. Hiibel to provide identification.

Let me see ID.

Justice O'Connor: But you don't think he could have asked for his driver's license?

Mr. Dolan: No, Your Honor.

I don't believe that there was any reasonable basis for that question at that time.

Justice O'Connor: Well, because the officer had been told that in a truck... in that truck somebody was hitting somebody.

Mr. Dolan: Well, we believe that the deputy certainly had the right to ask for identity and... and we think equally so Mr. Hiibel was free not to respond.

Justice Scalia: I see.

What... what do you think the purpose of our... of our Terry... of our Terry decision is?

I mean, it says that when an officer sees somebody in suspicious circumstances, he can stop that person and inquire to satisfy himself that nothing... nothing underhanded is going on.

Now, what... what kind of questions can he ask that... that must be answered?

Justice Stevens: Any at all?

Mr. Dolan: The...

Justice Scalia: He... he can't even ask the name you say.

Mr. Dolan: Well, Your Honor...

Justice Scalia: Can he ask what... what are you doing here if he sees somebody hanging around a jewelry store at 2:00 a.m. and... and so he... he conducts a Terry stop?

What... what can he ask the fellow?

What are you doing here?

I mean, if he can't give his name, surely he doesn't have to tell the officer what he's doing here.

Mr. Dolan: Well, we... we certainly believe that under the Fifth Amendment a person has no obligation to respond to... to that officer.

The... the citizen never knows whether or not the encounter is a consensual encounter where he certainly has no obligation to speak or do anything.

He... in fact, he can freely terminate the encounter at any time.

Now, there is, under Your Honor's question, a Terry stop.

Certainly the citizen doesn't know that.

The officer does presumably, and if that Terry stop was to evolve into a probable cause circumstance...

Chief Justice Rehnquist: No, it hasn't.

Justice Scalia: It hasn't evolved.

It was just a Terry stop.

Mr. Dolan: Just a Terry stop.

Justice Kennedy: And you say...

Mr. Dolan: The officer is allowed to make...

Justice Scalia: He's allowed to ask questions, but he shouldn't expect answers.

Mr. Dolan: We certainly don't believe that the government can criminalize the non-response which the statute in this case does, Your Honor.

Chief Justice Rehnquist: Well, in a Terry stop, when the officer is attempting to make a patdown, can the person resist it?

Mr. Dolan: Not lawfully.

I believe that the Court certainly allows, if there is independent bases to conclude that the officer... that the subject is armed, the officer is lawful in using force to apply a patdown search.

And if a person resisted that, then that would be a basis for a criminal prosecution.

Justice Kennedy: You take the position, as I understand your brief, that the purposes of criminal investigation simply do not extend to asking for the names of witnesses, as... as I understand you.

Suppose there's a... a bank robbery and... and there's a fatal shooting and the robbers run out of the bank.

The police come a few minutes later.

Can they ask... can they require the witnesses to give their names?

Can there... could there be a State statute, properly drawn in that circumstance, which would require the witnesses to give their names?

Mr. Dolan: We don't believe so, Your Honor.

We believe that the relation to the State that free citizens have prevent the State from imposing obligations, affirmative obligations, to terminate the citizen-police encounter.

Justice Kennedy: Is your... is your... your negative answer to my question premised on the Fifth Amendment or some privacy concept?

Mr. Dolan: The... yes, Your Honor.

The... the privacy concept that the Fourth Amendment addresses certainly allows a person to be free from an illegal search.

We believe that when the Government is attempting to extract data from a person without probable cause, it is improper.

Justice O'Connor: But identity is somehow different.

It's kind of a neutral fact.

Under your view, it wouldn't be possible to have some national identification card requirement then.

Mr. Dolan: Your Honor, the... the name is not neutral, certainly in this domestic battery Terry stop, because the name itself...

Justice O'Connor: Well, I think one's... one's name probably is just a neutral fact.

It's not incriminating one way or the other.

Mr. Dolan: Your Honor, there are numerous instances where one's name is not a neutral fact.

In the facts of this case, the underlying purpose of the criminal investigation was to determine if a domestic battery had occurred.

Justice Ginsburg: But there would be no problem in... in checking the license on the vehicle and then seeing... and then the officer could ask are you whoever is the owner of the car.

Mr. Dolan: Yes, Your Honor.

Certainly there are numerous investigative tools available to the police, including running the license plate.

In fact, Deputy Dove...

Justice Scalia: Well, he does that.

Justice Scalia: You... you...

He does that and the person is...

Chief Justice Rehnquist: You can ask... you can ask if he's the owner of the car, the registered owner of the car, but you can't ask him his name?

Mr. Dolan: Well, we certainly believe that had that been the facts in the case and Mr. Hiibel chose not to respond, there would not be a basis that's proper under the law for a criminal prosecution in that regard, Your Honor.

Justice Souter: Yes, but I thought... no.

You were going to say something.

Chief Justice Rehnquist: That's all right.

Chief Justice Rehnquist: Go ahead.

Justice Souter: I... I thought your position was that if it had been sufficiently apparent that Mr. Hiibel was associated with the truck, that he owned it, had been driving it or something like that, that under those circumstances, the... the police could have... could have exercised the State's regulatory power over motor vehicles and said, show me your driver's license or show me your registration.

Is that correct?

Mr. Dolan: We believe that... that that is the law, Your Honor.

Chief Justice Rehnquist: All right.

Mr. Dolan: But this was not the case.

Justice Souter: And you're saying the reason they couldn't do any of those things here, in the sense of demanding compliance, is that there wasn't a sufficient connection shown between the... the... Mr. Hiibel and the truck.

Is that what it boils down to?

Mr. Dolan: Nor was it relevant at trial, Your Honor.

Justice Souter: Oh, okay.

But I mean, we're talking about the scene.

And at the scene, you're saying there just wasn't a predicate for forcing him to answer those questions.

Justice Scalia: Now...

Mr. Dolan: That is correct, Your Honor.

And it was... it was not a fact that was deemed relevant by the State at the time or the defense.

Justice Souter: Since... and since there was not, I take it your general position is that they can ask him anything.

He does not have to say anything in response to any question they ask.

Justice O'Connor: Period.

Mr. Dolan: That is...

Justice Scalia: Isn't that it?

Mr. Dolan: Yes, Your Honor.

Justice Scalia: Could they have... could they...

And that sort of assumes that there's no responsibility on the part of citizens.

I mean, but we impose all sorts of responsibilities on citizens in connection with the... the determination of criminal activity.

I mean, harboring a felon is... is a crime.

It's... it's unlawful to give a false response to a... to inquiry by a Federal investigative officer.

Why isn't it a perfectly reasonable responsibility of a citizen, when he's a witness to the... to a crime, to have to give his name so that he may call... be called upon to testify?

Why isn't that a minimal... a minimal citizen's responsibility and likewise in these circumstances?

I cannot imagine that any responsible citizen would have... would have objected to giving the name.

And if... if I... if one feels that way about it, why is it a violation of the Constitution to... to have citizens do what every responsible citizen, it seems to me, would do?

Mr. Dolan: Your Honor, the imposition of an affirmative duty to avoid criminal sanction when you are otherwise innocent of any crime is an improper tipping of balance in favor of the State at the expense of some very...

Justice Scalia: It's not in favor of the State.

Justice Kennedy: It's...

What's your best case for that proposition?

Mr. Dolan: Your Honor, the numerous anonymous activities that this Court finds to be important to the maintenance of a free society engaging...

Justice Kennedy: NAACP v. Alabama, but that was a suspect class, membership lists.

What... what else do you have?

Mr. Dolan: Your Honor, also the Watchtower line of cases, religious solicitation, religious door-to-door activity.

Justice Kennedy: That was a burden on speech.

Mr. Dolan: That is correct, Your Honor.

I'm addressing circumstances where a citizen also is left at the mercy of the discretion of an officer.

No citizen can safely have a voluntary interaction with an officer without risking arrest because there was no obligation in the law for the officer to say, as a result of you telling me that you have a red car, I now determine that reasonable suspicion exists.

Justice Ginsburg: What about giving this man, who appeared to be under the influence of alcohol, a breathalizer test?

Nothing different.

It's just as a basis for a Terry stop.

He's now out of the car.

The officer thinks Mr. Hiibel could be a menace on the road and so says, I'm giving you a breathalizer test.

Could he say... could he resist that?

Mr. Dolan: We... we don't believe that there was reasonable suspicion at all that he was the operator of the car and there would have been no lawful basis for the...

Justice Ginsburg: Well, the... there's a passenger sitting on the passenger seat, and he's gotten out and he's on the driver's side.

Chief Justice Rehnquist: Right?

Mr. Dolan: No, Your Honor.

In fact, Mr. Hiibel was standing at the passenger side door and the...

Justice Ginsburg: And the... there was somebody in that seat.

Mr. Dolan: No, Your Honor.

There...

Justice Scalia: Where... where was the daughter?

Mr. Dolan: The daughter was... when the officer arrived behind the wheel.

She eventually slid over to the passenger side when she was... towards the end of the encounter, she exited and then was thrown to the ground and arrested.

But...

Justice Ginsburg: Could... could she have been asked the name?

Could she have been asked her father's name?

Mr. Dolan: Certainly.

I believe available to Deputy Dove at the time was to do what he was there to do, and that was to investigate to see if a domestic battery had occurred.

I don't believe the issue before the Court is whether or not Deputy Dove engaged in the best or worst police activity.

I believe the issue before this Court... and with respect to Justice Kennedy's question, homeless people do not have the appropriate residences, permanent residences, and accordingly would be unable to provide their identification.

Justice O'Connor: Yes, but have... have our Terry cases suggested that the whole point of a stop and a search, based on reasonable suspicion, is to make identification?

Mr. Dolan: No, Your Honor.

Justice Kennedy: No?

Mr. Dolan: In... no, Your Honor.

I believe that certainly the concurring opinion of Justice White in Terry itself clearly stated that he was of the opinion that a person is not obliged to respond to...

Justice O'Connor: Well, that was a concurring opinion.

Do you think that a person stopped on reasonable suspicion can be compelled to give a fingerprint?

Mr. Dolan: That is a qualitatively different invasion of one's privacy.

But unless...

Justice O'Connor: Well, yes or no.

Mr. Dolan: Well, as a...

Chief Justice Rehnquist: No?

Mr. Dolan: general rule, no.

There may be some exceptions.

This Court has addressed the possible exceptions like being... the officer knows that a murder/ rape has occurred, fingerprints, bloody fingerprints, were found at the scene, there was independent facts to tie the person to that scene.

And the purpose of... of a fingerprint would be to confirm or dispel that officer's specific concern about the possible criminality of that one person, and the Court has indicated that that may be appropriate.

But that's a very... that's... was limited to those facts.

This was a misdemeanor.

Justice Scalia: So the... the officer who approaches somebody in a perfectly valid Terry stop, a really suspicious looking character, he puts several questions to him and the guy says, I'm... I'm... you know, I ain't talking, the officer just has to turn on his heel and leave the suspicious character to go about his suspicious business.

Mr. Dolan: Your Honor...

Justice Scalia: He can't... he can't say, come along with me.

You know, we'll find out who you are and why you're here.

Chief Justice Rehnquist: He can't do that.

Mr. Dolan: We believe the law under Wardlow, Your Honor, requires that unless the police officer is able to escalate his basis of knowledge to probable cause after a reasonable period of time of inquiry...

Justice Scalia: Why isn't the... maybe you and I differ on... on what the... what the course of a responsible citizen is.

I would think the course of a responsible citizen would be to answer the question what you're doing here and what your name is.

And if he doesn't answer that, I would... I would say that that make... may cause the situation to rise to the level of probable cause.

Mr. Dolan: We... we...

Justice Scalia: He's hanging around a jewelry store.

It's late at night.

He won't say who he is.

He wouldn't... won't say what he's doing there.

I would... I would drag him in.

Mr. Dolan: Well, the... the person could be purchasing jewelry for his paramour and... and he does not want his wife to know.

Justice Scalia: It's possible but unlikely.

Unidentified Justice: [Laughter]

Justice Souter: But isn't there another answer?

Justice Kennedy: Suppose...

Justice Kennedy: Isn't there another answer?

suppose there is probable cause to arrest and an arrest is made.

Could the State then require that the person answer as to his identity just so that the officer can confirm that he's got the right person?

Mr. Dolan: Again, I believe even in a post-probable cause booking procedure, a person has the right to remain silent if they view from their perspective... and I believe this is what the test is.

Rhode Island v. Innis would... would suggest that.

Justice Kennedy: Now, is that a Fifth Amendment privilege that you're...

Mr. Dolan: Yes.

Justice Ginsburg: indicating here?

Mr. Dolan: Yes, Your Honor, because one's name...

Justice Kennedy: Well, it... it seems to me that that is such a... a minor detail, in light of what the police can get in any event with fingerprints and so forth, that the Fifth Amendment should just say that that's not testimonial.

Mr. Dolan: Well, the... the Fifth...

Justice Kennedy: I mean, you're not probing the perception, the memory, the cognition of the witness.

You're just determining an extrinsic fact.

Mr. Dolan: Your Honor, the... the name is in fact testimonial because it is an assertion of fact, and one can lie about one's name, and accordingly, I think... believe the test of what's testimonial or not is met.

It's also incriminating because if an officer determines that probable cause exists that a domestic battery has occurred, that officer must arrest that person.

Justice Stevens: May I ask you this question that really follows up on Justice Scalia's question?

Would you also argue that the refusal to give the name could not be counted as an additional fact to establish probable cause?

Mr. Dolan: Yes, Justice Stevens.

We believe that a certain... any...

Justice Stevens: So you're not just relying on the fact that the refusal is itself a crime in this case.

Mr. Dolan: That... that... I'm...

Justice Stevens: You could again then say you could not even take it into account for determining whether there's enough evidence to... to take him to the station.

Mr. Dolan: The... the exercise of a constitutional right can never increase one's level of...

Chief Justice Rehnquist: Yes, but suppose he...

What... what about... what about, say, the murder scene exception we talked about in that Arizona case where an officer hears a shot fired, comes into the house, there are eight or nine people in the house.

Obviously, there's a dead body in the middle of the floor.

Can he ask everybody else for their names?

Mr. Dolan: Well, we certainly believe the officer can ask.

Chief Justice Rehnquist: And are they obligated to respond?

Mr. Dolan: I don't believe so, Your Honor, and I believe that the imposition of a criminal sanction for silence is...

Chief Justice Rehnquist: Well, how are we ever... how are we going to resolve a murder case if that's the law?

Mr. Dolan: Well, after... post probable cause, the law is a person is warned.

They are informed of their right to remain silent.

They are also informed of other constitutional rights.

Justice Kennedy: No, no, no.

Justice Kennedy: The Chief Justice's hypothetical is like my bank hypothetical.

It said... we're just talking about witnesses now.

Mr. Dolan: Well, I don't... I certainly think that the State's case about the lawfulness of an arrest and a conviction is... is weaker for seizing a witness who exercises their right to remain silent.

Justice Ginsburg: But there are situations where the State can... that we... well, Byers is one where we've already said the name can be requested.

People are required, when there's a registration for the draft, to give their names which... and that can't be made into a consensual situation in exchange for some benefit.

So we've treated names... the question of name differently, and there are many situations in which you are required to give the name.

Mr. Dolan: Well, Your Honor, as regards the Byers case, that statute spoke of a regulatory scheme in which the... the identity, which was required to be given, was not to a member of law enforcement.

It was to the owner of a vehicle.

The Nevada statute in question specifically contemplates that the dialogue occurs within a criminal investigation in a Terry stop, which was different from Byers certainly, and also the intent of the statute in Byers was just to ensure that civil liabilities would be satisfied.

Justice Ginsburg: Well, in terms of the State's need to know this information, how do you distinguish it from requiring people to register, give their name for the draft?

Mr. Dolan: In this case, Your Honor, the... the name is testimonial and incriminating because of the dynamic of the Nevada statute in question.

Justice Scalia: Well, you should just plead the Fifth Amendment, say, I... I refuse to answer on the ground that it might incriminate me.

That... was that... was that what was done here?

I didn't realize you're... you're making a... a Fifth Amendment incrimination claim.

Justice Kennedy: Is that...

Mr. Dolan: We are, Your Honor.

Justice Stevens: is that part of your...

Justice Breyer: I... I can go back for a second...

Mr. Dolan: Yes, Your Honor, we are.

Justice Scalia: So that... that assumes that he was guilty and... and had he not been... had he not been guilty of the beating, then he... then... then you would acknowledge that he would have had to answer.

It's only the person who's guilty of the beating who would have a right not to answer.

Mr. Dolan: One of the interests that the Fifth Amendment is designed to protect is to protect people who place... find themselves in ambiguous circumstances where...

Justice O'Connor: No.

Chief Justice Rehnquist: I think...

Mr. Dolan: their silence or their admission could...

Justice Scalia: Please answer the... the question yes or no.

Are you saying that only the... the person who had been beating the woman in the truck and therefore disclosure of his name would incriminate him, only that person has the right not to answer?

Or are you saying anybody who was asked had the right not to answer?

Mr. Dolan: Indeed... indeed, everyone who was asked.

Justice Scalia: Under the Fifth Amendment...

So you're not pleading the Fifth Amendment then.

I... that's... that's what I thought you were arguing and that has nothing to do with the Fifth Amendment.

Mr. Dolan: Well, the... the... from the perspective of petitioner Hiibel, when Deputy Dove said to him, I... I hear that there was a fight here, and then Deputy Dove started making inquiry of him, I think it was reasonable for petitioner Hiibel to realize that at this time he was facing the cruel trilemma, which this Court speaks of, and in fact had...

Justice Souter: Okay, but if... if at that point I had walked down the street and the cop had turned to me and said who are you, I wouldn't have had a Fifth Amendment right to refuse, would I?

Mr. Dolan: If there was an imposition of criminal sanction for the failure to respond...

Justice Scalia: No, no, no, no.

Justice Souter: I mean, you're putting the cart before the horse.

So far as the Fifth Amendment is concerned, whether the cop asked me, whether there's a statute that says you... you ought to give your name to the police, would I have had a Fifth Amendment right to refuse?

Mr. Dolan: If it's not the Fifth Amendment right to refuse, it's your right to be let alone which is...

Justice Scalia: All right.

There might be a Fourth Amendment...

based upon other constitutional principles.

Justice Souter: The only thing Justice Scalia and I are trying to get at is we thought you were saying at one point that everyone has a Fifth Amendment to refuse to identify himself under all circumstances, and that... that... is that your position?

Mr. Dolan: Your Honor, I... the question is only affirmative as regards the Fifth Amendment if the State was to criminalize your silence in respect to that question.

Chief Justice Rehnquist: Did the Supreme Court of Nevada pass... did you raise a Fifth Amendment question in the... in the Supreme Court of Nevada?

Mr. Dolan: We... we did, Your Honor.

Chief Justice Rehnquist: And did the court pass on it?

Mr. Dolan: The court rejected the motion for rehearing on that issue, Your Honor.

Chief Justice Rehnquist: Had you... had you raised it before the motion for rehearing?

Mr. Dolan: Yes.

Your Honor, it was raised at the trial level through the citation at the trial... I was the trial attorney... to Berkemer v. McCarty.

We... I appealed to the justice... excuse me.

I appealed to the Sixth Judicial District Court where both the State and the defendant specifically briefed the Fifth Amendment issues and argued the Fifth Amendment issues.

Justice Kennedy: But... but your answer that if... if the law requires that you give your name, then... then that makes everybody have a Fifth Amendment privilege is just... is just not right.

That's just circular.

I... I would agree that there may... there likely is no Fifth Amendment privilege for witnesses or I would... I would state that.

You might not agree.

As to people that are suspect of a crime, even if they're innocent, if you're... if you're right that the name is protected, then I think the privilege... that the privilege applies because even if they're innocent, it might be a link in the chain of evidence necessary to convict.

That's the... that's the test.

But the question, it... it seems to me, is whether a name itself... a name itself is... is... has such intrinsic testimonial consequences as opposed to neutral regulatory consequences that it should be within the Fifth Amendment.

That, it seems to me, the issue.

Mr. Dolan: Yes, Your Honor.

I believe that's where the Court will... will turn on that question.

But also with respect to the Fourth Amendment inquiry, a name is such that a person has a legitimate expectation in the privacy in that name, otherwise the government certainly then could require name tags and perhaps color codes.

Justice Kennedy: But the question of whether or not is that privacy is diminished when they're witnesses to a crime when they're present at a crime scene, and that's certainly much different from saying that all citizens have to give their name anytime a police officer asks them for any reason.

That's a completely different case.

Mr. Dolan: Yes, Your Honor.

Justice Scalia: I'm not... I'm not even sure that the driver of the truck would have a Fifth Amendment right.

I don't know how your name incriminates you.

Your name may help to... to catch you, but I don't know that that incriminates you.

By giving you... by giving him your name, you are what?

Proving that you did something wrong?

I... I don't see how it incriminates you.

Mr. Dolan: If... if at a traffic stop a request for a name is made by an officer to the person that the officer knows was driving the vehicle, I believe the implied consent rule would... would allow for the properly imposed government sanction in that... in that...

Chief Justice Rehnquist: The Supreme Court of Nevada in its concluding sentence of the majority says it follows that N.R.S. such and such is good law consistent with the Fourth Amendment.

And I don't see in the majority opinion any reference to the Fifth Amendment.

Now, you say you raised it on rehearing?

Mr. Dolan: Yes, Your Honor.

Chief Justice Rehnquist: And the... the order of the Supreme Court of Nevada is simply the petition for rehearing is denied.

Mr. Dolan: The...

Chief Justice Rehnquist: So I'm... I'm not sure at all you raised it sufficiently before the supreme court.

Mr. Dolan: Your Honor, the issue was also briefed in the opening brief before the Nevada Supreme Court.

The... the Nevada Supreme Court just chose not to address it in their opinion.

Chief Justice Rehnquist: You... you did raise it then in your briefs.

Mr. Dolan: Yes, Your Honor, it did.

Your Honor, I'd like to reserve the remainder of my time.

Argument of Conrad Hafen

Chief Justice Rehnquist: Very well, Mr. Dolan.

Mr. Hafen, we'll hear from you.

Mr. Hafen: Mr. Chief Justice, and may it please the Court:

There are three reasons why compelling a lawfully detained person to identify himself is reasonable under the Fourth Amendment.

It is a minimal intrusion.

It advances officer safety, and it promotes effective law enforcement in the prevention and detection of crime.

Furthermore, it does not violate the Fifth Amendment privilege against self-incrimination because identifying yourself is a neutral act.

Justice Kennedy: Now, that... that goes beyond Byers.

My... my... the hard part of this case for me is that Byers which, it seems to me, a much easier case, was so difficult for the Court.

You had a fragmented Court.

You didn't have an opinion for the majority of the Court.

And this, it does seem to me, goes one step beyond Byers with reference to the Fifth Amendment.

Mr. Hafen: Well, in regard...

Justice Kennedy: And... and Byers didn't take the position that you just take, that it's... that it's not testimonial.

It seems to me that's a plausible enough argument, but I... I can't get that out of Byers.

Mr. Hafen: Well, Your Honor, in regard to Byers, it was a plurality opinion, but there was also a strong concurrence by Justice Harlan.

And in that particular case, they talk about stating a name and address as being a neutral act, and in the same context, they talked about it in regard to a testimonial situation.

They talk about it's a testimonial situation or a non-testimonial situation when a person is stopped, the mere stopping of the car, but in the same context, they also say stating your name and your address is a neutral act.

Justice Kennedy: Well, I'll... I'll look at it again, but it seems to me even the Harlan opinion was in the context of what we might call the regulatory zone of... of automobile... automobile regulation and control.

Mr. Hafen: They did talk about that, Your Honor, but in the same context, they also describe or they... they address it in the criminal context.

The plurality opinion addresses it in the criminal context, and Justice Harlan also addresses it in the plurality... or...

Justice Scalia: The plurality opinion said that noting a name... notes that a name, quote, identifies but does not by itself implicate anyone in criminal conduct...

Mr. Hafen: That's correct.

Justice Scalia: which is the same point.

Mr. Hafen: That's correct, Your Honor.

That... that goes to the incriminating part of it, but when they talk about the neutral act, we're interpreting that to go to the testimonial part of it.

And this Court traditionally treats names differently.

Justice Ginsburg: You said name and address.

What else would be under your neutral category?

Could a telephone number, e-mail address?

How much fits in that neutral category that citizens can be required to answer?

Mr. Hafen: Your Honor, the statute in Nevada doesn't go that far.

It simply says compelling... the... the identification or to identify one's self.

So under the Nevada statute, those type of identifiers...

Justice Ginsburg: But I'm asking you what fits... what fits within this neutral... you... you say that there are certain things you can ask a person that they can be required to respond to because they're not incriminating and they're not a violation of privacy.

They're just neutral.

So I'm just trying to get a handle on if we say name is neutral, what else are we implicating.

Mr. Hafen: You could certainly make the argument that those other things that you suggested, Your Honor, are neutral.

However, going back to the Fourth Amendment, they really don't serve the purpose of officer safety.

It's the name that you need so that you can discover who this person is, what their background is...

Justice Ginsburg: I... I don't follow that really because I can understand the Terry stop.

You have to pat down immediately because the officer is at risk that the person will be armed.

But by the time they do the computer check, the harm... I mean, that doesn't arrest the situation.

It doesn't protect.

How is the officer protected in that interval between when the person says I won't give you my name... I mean, it had to... it has to take some time to do a check, doesn't it?

Mr. Hafen: Well, Your Honor, going outside the record, based on my experience as a prosecutor, that information can be received in just a... a matter of minutes.

And so while the officer is waiting for that information, he can certainly take the posture of protecting himself.

However, after receiving that information and obtaining the criminal history on this person... perhaps he has a... a history of battery on police officers... he can then escalate protection.

He either calls for backup or perhaps unholsters his... his revolver.

He has a number of things that he can do after he gets that information.

And so it is critical.

Justice Stevens: Does that... does not information convert reasonable suspicion into probable cause?

Mr. Hafen: Well...

Justice Stevens: Suppose he finds he's a real bad guy.

Does it now become probable cause?

Mr. Hafen: That certainly adds into the equation, Your Honor, but that in and of itself wouldn't convert into probable cause.

The officer would have to look at the totality of the circumstances and on review of...

Justice Stevens: Well, the totality of the circumstances are in... in the beginning he has reasonable suspicion but not probable cause.

The one thing he learns, in addition to that, is this is a bad guy.

Is it now probable cause?

Mr. Hafen: Well, again, I... I don't believe so because there would be other factors that would... would have to be taken into consideration.

Justice Stevens: But I've already given you all the factors.

What other factors are there?

The total of the factors that exist are there's only reasonable suspicion.

We add one more fact: he's a bad guy

Does that make it probable cause?

Mr. Hafen: No.

Justice Kennedy: Why not?

Why not?

He has a record.

Well, it might if he's a bad guy with a particular... with a particular pattern.

It was a jewelry store and he said he's a bad guy because he robbed a lot of jewelry stores under these same circumstances.

I mean, you could play with hypotheticals, it seems to me.

Justice Scalia: He has robbed this same jewelry store 10 previous times.

Unidentified Justice: [Laughter]

Justice Scalia: Don't you think that would elevate it to probable cause?

Mr. Hafen: Under your hypothetical, yes.

Justice Stevens: Yes, but the likelihood of... the likelihood of getting that precise information is quite remote, I think, in most of these cases.

Mr. Hafen: That's... that's correct.

Justice Breyer: What about Berkemer?

Mr. Hafen: Excuse me?

Justice Breyer: I... I've read the... the brief here.

It's a case called Berkemer v. McCarty referred to on page 13.

There must be some obvious answer I'm missing.

They're talking about a Terry stop and they say... the... the Court says this.

You can ask him questions, but the detainee is not obliged to respond and then a bunch of others.

So if he's not obliged to respond, he's not obliged to respond.

Now, what do we do about that case?

Mr. Hafen: Well, Your Honor, two responses.

First of all, I believe that reference in Berkemer is... is dicta by the Court.

The real holding in Berkemer was a Miranda issue.

Second, this Court has never specifically addressed this question.

Justice Breyer: All right.

So what you're saying is that there's a lot.

You know, they have like two pages here of different judges, Harlan, White, Berkemer, Davis, and each time the Court said, but they're not obliged to respond.

Now... now, I... what I thought... I guess I'm approaching this case quite differently, but I thought we're not talking about national ID cards.

What we're talking about are Terry stops.

And a Terry stop is a derogation from the ordinary situation where you can walk along and do what you want.

So if we're derogating from the person's ordinary freedom, what the Court did in carving out exception was to create a condition.

You can ask, but he doesn't have to answer.

Now, the virtue of that is simple.

Anyone can understand it and it doesn't get us into all these problems that were raised previously whether those problems are right, wrong, or indifferent.

So if I read three Supreme Court cases and it all says that, I think maybe there's some burden in saying on your part why we shouldn't just follow what it says.

Mr. Hafen: Well, in subsequent opinions that were cited by the petitioner, they discuss the... either a dissent or a concurring, and in those particular references, the Justice does say unsolved crimes, questions to unsolved crimes, or as Justice White said...

Justice Breyer: Then why complicate the matter?

That is, you've already said a name doesn't normally incriminate you, but it could.

Suppose his name is Killer Magee.

I don't know.

Unidentified Justice: [Laughter]

Justice Breyer: I mean, it's possible.

And then I guess you could have other questions, you know, that don't normally incriminate you.

Are you hungry?

Would you like to sit down?

But... so... so why get into this complicated thing of saying whether a question normally isn't or normally is or sometimes or sometimes?

Why don't we just follow what the Court said?

Mr. Hafen: Because again, Your Honor, I don't believe in this particular issue where it's a stop and identify statute, that the Court has specifically addressed that.

Justice Scalia: I thought your answer...

And there's another answer that...

is because the Court said it in dictum.

Right?

Mr. Hafen: That... that's correct.

Chief Justice Rehnquist: What case are you referring to when we said it in dictum?

Mr. Hafen: In Berkemer v. McCarty.

Justice Kennedy: But even there, we did not say it was a Fifth Amendment violation.

Right.

A Fifth Amendment privilege, and that's what you're... you're here to argue.

You're here to say that this is just not covered by the Fifth Amendment and it is not testimonial.

It's a neutral fact.

Justice Breyer: I... I agree with you about that.

I'm talking about a Terry stop and I'm simply...

Justice O'Connor: Which is a Fourth Amendment issue.

Justice Breyer: That's right.

Justice O'Connor: We have both issues here, do we not?

Right, right, right.

Fourth Amendment and Fifth Amendment?

Even if it doesn't violate the Fifth Amendment, we're still going to have to answer the Fourth Amendment question I guess.

Mr. Hafen: That's correct, Your Honor, and that's when the Court would engage in a balancing test.

And the Court traditionally has balanced...

Justice O'Connor: But we have not expressly said that Nevada can require identification, or any other State.

We haven't said that in a holding.

Mr. Hafen: That's correct.

Justice Breyer: And the language is...

Chief Justice Rehnquist: Nor... nor have we said otherwise.

Mr. Hafen: That's correct.

Justice Breyer: It is correct?

I'm sorry.

Not in a holding, but I mean, there are about four cases where they say, of course... and of course, it's that.

Now, I grant you that dicta, which of course this is, is... varies in its strength and so forth, but if we have a repeated series of cases that say it, doesn't there have to be a pretty good reason for departing from it?

And that's what I'm listening for: a pretty good reason

Chief Justice Rehnquist: Well, do all those cases that you're referring to hypothesize the existence of reasonable suspicion or are some of them just confrontation without reasonable suspicion?

Mr. Hafen: Well, are you... in regard to Berkemer?

Chief Justice Rehnquist: Yes.

Mr. Hafen: In regard to Berkemer, again that went back to a Miranda issue, whether an individual... whether an officer would have to read Miranda to a... during a traffic stop.

And...

Justice Breyer: But he says this while discussing Terry stops.

That they said this while discussing Terry stops.

Is that so in respect to Berkemer?

I'm just reading the brief.

The... the language I quoted was while discussing Terry stops.

Mr. Hafen: That... that's correct.

The Court ultimately decided that a traffic stop was akin to a Terry stop.

But the Court also addressed it in the situation of a Fifth Amendment issue under a... a Miranda concept.

Justice Stevens: Well, I...

Could you... could you explain to us why you think the Nevada Supreme Court didn't mention the Fifth Amendment in its opinion?

Mr. Hafen: Your Honor, I... I don't know.

I am of the opinion that the... the opinion simply addresses the Fourth Amendment issue.

Why they didn't address the... the Fifth Amendment I don't know.

Those... those issues were certainly presented to that court.

Justice Stevens: Because they're quite different, and certainly the Fifth Amendment issue is important and perhaps even harder than the other issue.

Mr. Hafen: To... to some extent, Your Honor.

But again, our position is that it is not testimonial and it's not incriminating.

It's simply...

Justice Stevens: But it... but it is the... the odd thing about this case is that the inquiry is made and it's significant only in the context of a criminal investigation.

That's the only time the statute applies, when you've got a Terry stop.

Mr. Hafen: That... that's correct.

And in regard to the Fourth Amendment, again it gets back to this balancing issue.

This Court is going to have to balance the... any apparent personal security interests of Mr. Hiibel against the important legitimate interests that the government has in this case.

And again, it gets back to officer safety.

It gets back to the prevention and detection of crime.

And again...

Justice Stevens: Well, I understand all the arguments on the Fourth Amendment, but for me the more difficult issue, frankly, is the Fifth Amendment.

And it's really strange that they didn't... they didn't discuss it at all and it is strange that... we're all concerned about identification cards and national and all this sort of stuff.

But this case is very, very narrow.

It's just a case where somebody gets stopped.

He doesn't realize there's a statute on the books that said, if you don't answer, you can go to jail or get... get arrested.

The funny thing about it is there are no warnings required here.

Mr. Hafen: Well, in this particular case, the deputy did warn him.

In fact, the evidence is clear in the joint appendix on page 4 that the finding of fact by the justice court was that Deputy Dove did tell Mr. Hiibel if you don't give me identification, I'm going to have to arrest you.

Justice Scalia: Yes.

Mr. Hafen: And so in this particular case, he was placed on notice...

Justice Stevens: Of course, the statute... but the statute didn't require that.

Mr. Hafen: That... that's correct.

The statute does say, shall identify yourself.

Chief Justice Rehnquist: Well, ignorance of the law is generally no excuse, is it?

Mr. Hafen: That's correct.

That's correct.

Justice Kennedy: Well, I agree that the Fifth Amendment is... is the hard... harder question in this case, especially given the convoluted opinions in Byers.

It does seem to me that because the statute really focuses on what we might call Terry stops, that you have a class of persons who are within the zone of the commission of a crime, and so the Fifth Amendment becomes... it becomes slightly more of a suspect class.

I don't know how that could take care of the witness hypothetical.

But this person was certainly under suspicion of... of criminal activity.

Mr. Hafen: Well, to some extent, but going back to the videotape that... that the Court has, after Deputy Dove asked the... or informed Mr. Hiibel, I'm here because of a fight between the two of you, he indicates, I know nothing about that.

So that may very well take him somewhat out of the class of a suspect now to a potential witness.

At that time, Deputy Dove, based on that response, doesn't know now, well, is this the man that was reported hitting the woman in the truck or did that person leave and this is simply another passenger in the truck.

So viewed objectively, he has every right or... to... to ask the question and because it wouldn't constitute a Fifth Amendment violation in that context if Mr. Hiibel truly was a witness, then he would be obligated to answer the question.

Justice Kennedy: What... what's the closest case you have for us?

The Nevada court doesn't address this issue.

What's the closest case you have for us to show that this is not a Fifth Amendment violation?

Mr. Hafen: It would be Byers, and we rely upon Byers.

And again, granted, it's a plurality decision but with a strong concurrence by Justice Harlan.

Justice Souter: I... I thought your... you were saying earlier that your strongest reason would be that he had already, in effect, taken himself out of Fifth Amendment protection by saying I know nothing about that.

Mr. Hafen: In... in that context, yes, because now he, according to Deputy Dove, viewed objectively, is potentially a... a witness.

Justice Stevens: Yes, but then your rationale for the arrest should be that you're a potential witness, and for that reason, we have a right to... we have a right to apprehend the witness to make him testify to the crime.

You don't need the... the Terry stop rationale for that.

If you think he's a witness to a crime, the Terry stop is really irrelevant.

Mr. Hafen: Well, but the reasonable suspicion was formed prior to meeting with... with Mr. Hiibel.

So he had every... at least he had the reasonable suspicion for initially detaining.

Justice Kennedy: From the standpoint of the Fifth Amendment, what rule do you want us to adopt?

When can the police require persons to give their identity in your view under the Fifth Amendment constitutionally?

Mr. Hafen: During... first of all, you have to make sure that there's reasonable suspicion to detain the person and at that point then when the officer asks the person for identification or what his name is, then if the person doesn't respond, then the person can be arrested.

Justice Kennedy: What about our witness hypothetical where... the Chief Justice's hypothetical of... of the murder with five people standing there and my hypothetical... you don't... you don't think the police can demand identification at that point from witnesses?

Mr. Hafen: Oh, they... they certainly could demand at that point.

Justice Kennedy: What... could they be criminalized if they fail to give the answer?

Mr. Hafen: Well, it depends if at that time there's reasonable suspicion to believe that one of those individuals may have committed a crime.

Justice Kennedy: Oh, so then you're abandoning the witness rationale.

Justice Stevens: Well, but the statute doesn't apply to pure witness.

That's the point.

This... this statute does not apply to the... to the witness of the bank robbery who's not suspected of doing the robbery.

Mr. Hafen: Well, again, it's... it's going to depend on the... the search... the situation.

Justice Stevens: No.

The... the hypothetical situation is purely a witness.

They've been standing in line at the counter.

He saw somebody rob the bank.

But he's not suspected at all.

All... our hypothetical... you could make him give his name because you want his testimony at the trial.

But that's not a... that's not this statute.

Mr. Hafen: Right.

The statute is specifically tied into reasonable suspicion and whether that person may have committed a crime.

I agree, yes.

Justice Kennedy: Well, it would be rather odd that you could ask innocent people to give their name and not... and not a person under criminal suspicion.

Mr. Hafen: Well, again, let... let me back up.

Justice Scalia: Do you think that maybe when he's invoking the Fifth Amendment, he has to invoke the Fifth Amendment?

Mr. Hafen: Yes.

Justice Scalia: Do you think maybe... if he just can't say I won't answer... he can be arrested if he just says I won't answer, but if he says I won't answer on the ground that it might tend to incriminate me, then the policeman would probably have probable cause.

Justice Kennedy: Wouldn't he?

Unidentified Justice: [Laughter]

Justice Scalia: But it seems to me sort of... you know, sort of sneaky to invoke the Fifth Amendment without invoking the Fifth Amendment.

He... he didn't... that wasn't the reason he gave for not answering.

I thought people usually invoke the Fifth Amendment.

They say, I refuse to answer that question... you know, they have their lawyer next to them... on the ground that it might tend to incriminate me.

Mr. Hafen: Well, they do...

Justice Scalia: Can they... can they just say I don't want to answer that question?

Mr. Hafen: I don't believe so.

I think that's a very vague response, and I think they'd have to specifically invoke the Fifth Amendment.

And as... Justice Scalia, as you pointed out, typically when they do that, they do that in the context of maybe a grand jury hearing or... or a criminal trial.

And so, again, the State's position in... in regard to this particular case is that as it relates to the Fifth Amendment, is the name itself is a neutral act.

It simply doesn't implicate an individual in any criminal conduct.

It doesn't say in this particular case in regard to Mr. Hiibel, that he struck the woman.

It doesn't even imply that he may have been driving the car.

It doesn't go to any...

Justice Souter: May... may I interrupt?

How do you distinguish this so-called neutral fact from a billion other neutral facts which have evidentiary significance in a criminal trial?

It's a neutral fact that I'm wearing a pinstripe suit, but if the evidence was that the bank robber was wearing a pinstripe suit, this... this would be relevant evidence and it might tip the scale in... in proof.

Justice Scalia: It's neutral.

Mr. Hafen: Well, that would certainly go to the Wade and the Gilbert cases that talk about voice analysis, lineup...

Justice Souter: But this is... this is...

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Hafen.

Mr. Hafen: Thank you.

Argument of Sri Srinivasan

Chief Justice Rehnquist: Mr. Srinivasan, we'll hear from you.

Mr. Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court:

A person detained, based on reasonable suspicion of crime, may be required to provide his name to officers because that requirement contributes significantly to the ability of law enforcement officers to ensure their own safety and that of the public while imposing only a minimal burden on an individual's protected interests in privacy.

The question under the Fourth Amendment would be whether an otherwise...

Justice Stevens: Would you... may I just interrupt there?

How does it help the officer's safety if... he's made the patdown.

He finds he is or not armed.

If he's armed, of course, he arrests him.

He's not armed.

And he... now, how does it help the officer's safety at this point to find out whether he should just let him go away or he should call a station and ask... do something when he knows his name?

Mr. Srinivasan: Justice Stevens, it's true that a patdown authority provides a measure of protection for an officers, and it's... it's an important one, but the authority to determine a person's name and thereby run a background check is a highly significant, complementary measure.

Justice Scalia: Do officers always pat down before they ask questions?

I've had officers ask me questions often without telling me to spread my legs, put my arms up against the wall, and they... they frisk me.

Mr. Srinivasan: No.

And... and...

Justice Scalia: We certainly want to encourage that kind of activity, would we?

Unidentified Justice: [Laughter]

Mr. Srinivasan: No, and a patdown authority is conditioned...

Justice Stevens: I think the Terry case does encourage that kind of activity.

If you have reasonable suspicion, that's the first thing you do is... is pat them down.

Mr. Srinivasan: Well, the authority to conduct a patdown search, first of all, is conditioned on there being reason... a reasonable basis for believing that the person is armed and dangerous.

And so obtaining a person's name...

Justice Stevens: And my question is once he finds he's not armed, why is his officer... why is his safety implicated by not deciding to let him go instead of calling the station and detaining him further?

Mr. Srinivasan: Because a patdown isn't foolproof.

The... the officer might be assaulted in a physical assault rather than through the use of arms...

Justice Breyer: Well, and a patdown would not...

Mr. Srinivasan: and in addition...

Justice Scalia: A patdown would not occur unless he had reason to believe the person was armed, which in most cases he will not have.

And he... if he finds out that the guy he's confronting with is, you know, Machine Gun Harry, he's going to have a... a different approach to that individual.

I don't see how there's any question that it... it can help the... the officer's safety unless you expect the officer always to pat down people, which they... they can't do unless they have reason to believe that the person is armed...

Mr. Srinivasan: That's...

Justice Scalia: which usually they don't I assume.

Mr. Srinivasan: That's right, Justice Scalia.

The first response to Justice Stevens' question is that the patdown authority is conditioned on there being a reasonable basis for believing that the person is armed and dangerous.

Justice Stevens: There has to be a reasonable suspicion, but there doesn't have to be reasonable suspicion that he's armed.

Mr. Srinivasan: There has...

Justice Stevens: That's not part of the inquiry.

Mr. Srinivasan: There has to be a reasonable basis for believing that the person is armed and dangerous before the authority to conduct a patdown frisk kicks in.

And what the... what the authority to determine a person's name and thereby determine their criminal history does is to afford the officer with information that may lead him to believe that he's dealing with a dangerous individual.

Justice Stevens: Well, is it your position they should get the answer to the identity question before they pat him down?

Mr. Srinivasan: No.

I don't think it's a... it's a question of sequence.

Justice Stevens: Which comes first in your view in the normal police procedure where there is reasonable suspicion under Terry?

Mr. Srinivasan: Well, it would... first of all, it would depend on whether there's a reasonable basis for believing that the person is armed and dangerous because if there is not that reasonable basis, the authority doesn't have the authority to conduct a patdown at all.

Justice Souter: All right, but on your reasoning that he can ask for the... for the name for reasons of safety... and that's why it should be allowed without anything more... why doesn't exactly that same reason support an authority to... to patdown even in the absence of any reason to believe that the person may be armed and dangerous?

It would contribute to officer safety.

Mr. Srinivasan: No, it would, but the... the reason why the Fourth Amendment requires a showing a reasonable basis to believe that they're armed and dangerous before conducting a patdown is because, as the Court described the patdown in Terry, it represents a severe intrusion on the person's personal security.

And that's not the case for the question, what is your name.

That doesn't represent any sort of physical intrusion on the person whatsoever.

Justice Souter: So... so your argument really boils down to the... I mean, the... the crucial part of your argument is... is the... is the relatively... relative insignificance of the intrusion.

Mr. Srinivasan: That's...

Justice Souter: But for that, we'd be in the same boat with name and patdown.

Mr. Srinivasan: Well, that's critical to explaining why in all cases the officer should have an authority to compel the person to disclose his name.

Justice Souter: The insignificance of the intrusion.

Mr. Srinivasan: That's correct.

Justice O'Connor: Now, I thought... I thought under Terry we've held that a police officer may detain someone briefly without probable cause on a reasonable suspicion the person has committed or is about to commit a crime and during that process may ask all kinds of questions of the person, although, as far as I can find out, this Court has said the person does not have to respond to the questions.

Mr. Srinivasan: What you're pointing to, Justice O'Connor, I believe is the dictum that was discussed early in Berkemer v.... in Berkemer v. McCarty.

And that, first of all, is dictum, but not only is it dictum, it's ambiguous dictum because the language that the Court used was that the officer is entitled to ask a moderate number of questions, first, to determine the person's identity and, second, to obtain information with which to confirm or dispel the officer's suspicions.

And then the Court goes on to say that, of course, the detainee is not required to respond.

It's unclear whether that statement concerning that the detainee is not required to respond relates to the initial basis for asking questions which is determinative of his identity.

Justice O'Connor: But we've just never said that the officer may require the identification.

That's what this case asks us to determine.

Mr. Srinivasan: That's right, Justice O'Connor, but the Court specifically left the... the question open, at least on two occasions, both in Brown v. Texas and in Kolender v. Lawson.

So I don't think the Court is in any way inhibited by its precedents.

Justice O'Connor: And the right to do a patdown is something you do after the officer has made the initial decision to detain and ask some questions presumably.

Mr. Srinivasan: That's right.

That's right.

It comes after the officer has made a determination to detain.

That's correct.

The issue under the Fifth Amendment I think is... is...

Justice Breyer: Can we go back to... would you go back to the Fourth because I... I suppose the... the officer can ask, you know, and he doesn't get an answer, so he pats him down.

What's wrong with that?

Mr. Srinivasan: Well, if he has a reason to believe...

Justice Breyer: I mean, it's very, very unlikely I would think, unless you have some evidence to the contrary, that the officer who's in a Terry stop situation.

Are there... a lot of instances where they look... he said what's your name and then the person... and by the way, you have to answer or you're going to be in more trouble so therefore the person gives him his real name, which happens to turn out to be one of the worst criminals in the country, and then he pats him down.

I grant you that could happen.

But contrast that with a situation where you take Berkemer literally, and now you say if he doesn't answer, sure you can pat him down.

What's wrong... I... I don't see it.

I'm back to my point which you heard me ask, and I... I'd really like an answer in terms of... I mean, Berkemer cites Davis and Davis refers to the settled principle... settled... that you can't... you can ask what you want, but they don't have to answer.

Justice O'Connor: Okay?

Justice Breyer: So there are a lot of circumstances where it may be national ID cards or whatever, which are not Terry stop situations.

But why should we retreat from that dictum?

Now, I hear your answer about the... about the danger and I think that's an important point.

But I... I sort of canceled that by thinking not answering would also give the policeman a justification for the patdown.

And... and now, if that's right, what other reason is there for retreating from the rather strong dictum?

Mr. Srinivasan: No, but Justice Breyer, I don't think the patdown eliminates the danger.

The patdown is important in addressing the possibility that the person might use arms that are on their person against the officer, but it does... it in no way eliminates the danger to the officer.

And that's why...

Justice Scalia: And... and you don't believe that the failure to give a name gives the officer reason to believe that the person is armed, do you?

I mean, simply because he refuses to give you a name, do you have justification to do a patdown?

Mr. Srinivasan: No.

We're not... we're not taking that position and the courts...

Justice Scalia: No, I wouldn't think so.

I... I know a lot of people that might not want to give their names...

Justice Breyer: Well, it would be pretty odd to say that you can force a person to give his name in order to protect the policeman, but the far lesser restriction of just taking it into account as evidence you can't do.

That would be an unusual position.

I mean, taking it into account is a factor suggesting danger, you can't do, but of course you can require him to answer under penalty of a crime.

Mr. Srinivasan: Well, I think...

Justice Breyer: So, I mean, everybody is in a false position here because you're... you're being put in a slightly false position.

Mr. Srinivasan: I don't know that it's a false position.

Chief Justice Rehnquist: All right.

Justice Breyer: Yes, all right.

I'll... I'll take your answer.

Danger.

Is there anything else?

Mr. Srinivasan: Well, it's not only danger to the officer's safety, but it also could provide crucial information for the officer to... to assess the individual's conduct because if the officer learns that the person has previously been convicted of a crime that fits that pattern that he observed in deciding to detain the person, then that could go a long ways towards officer's determination that there's probable cause for an arrest.

And of course, that would be crucial in... in terms of public safety because it could prevent commission of an imminent offense or the ongoing commission of a continuing offense.

Justice Souter: Then why... why do you stop at the name?

Answers to any questions would have that effect.

Mr. Srinivasan: No, that's true.

And... and as... from the perspective of the Fourth Amendment, I'm not sure that there's a limitation related to answers to questions.

I think the limitation would arise under the Fifth Amendment, and what the Fifth...

Justice Souter: So... so far as the... so far as Terry and the Fourth Amendment are concerned, I'm... I'm not sure I understand you.

Are you saying that there is an obligation to answer all questions, not just names?

Mr. Srinivasan: No.

I... no.

The Court hasn't specifically spoken to that question, but we don't challenge the dictum...

Justice Souter: No, but I... I thought... is that... is that the position that you're taking?

Mr. Srinivasan: No.

We don't take the... we don't take that position because we don't challenge the dictum in Berkemer and other cases insofar as...

Justice Souter: Okay.

Then why do you stop... why do you stop at the name?

Is it again the... the minimal intrusion, that that is a more minimal intrusion than other information?

Mr. Srinivasan: That's correct.

Rebuttal of Robert E. Dolan

Chief Justice Rehnquist: Thank you, Mr. Srinivasan.

Mr. Dolan, you have 4 minutes remaining.

Mr. Dolan: Thank you, Mr. Chief Justice.

Within the... within the Fourth Amendment balancing construct, we believe that the government's argument that officer safety is served by requiring a person to utter their name is a false assumption.

Truly if the officer is stopping Machine Gun Harry and he says, oh, I'm John Smith, and... and if you follow the government's position, then the officer at that time can relax his guard, thereby increasing the... the possibility of danger.

So we think that as the Court engages in the analysis of what is appropriate under the balancing...

Justice Kennedy: Well, you're... you're saying people can disobey the law to make it ineffective.

That's not usually an argument we accept.

Mr. Dolan: I'm saying that the... what... the government's argument is based upon the assumption that everyone will tell the truth during a Terry stop, and I don't believe that corresponds with common sense, especially if Machine Gun Harry is there.

He doesn't want to be identified and it's in his interest to say my name is Tom Smith.

And if you follow the government's conclusion... rather, it's position, then the officer then relaxes his guard, doesn't take appropriate steps.

We believe that officers must protect themselves but do so in a way that is consistent with the Constitution.

When the Court established the Terry rule, it created an exception to the previous rule was that seizures could only occur on probable cause, which was a greater evidentiary standard.

And the Court was very careful to suggest that there was a limited right, not a general exploratory search, that now we will be involved when... excuse me... because a name, the government suggests, will be the key to unlock data that is endless, given the modern age of technology, that the government can learn about that person.

It is a general exploratory search which the government ultimately is asking this Court to approve of.

And then privacy is a... a nice principle to talk about as a part of history.

Going forward, it will not be part of American citizens' natural relationship by right that they can count on.

There are related freedoms that this Court also looks to in the balancing.

Justice O'Connor: Well, but if there's reasonable suspicion to believe the person is committing a crime, it doesn't shock me that they'd use the identification mechanisms to check it out.

I mean, we're... we're on the assumption that the person has been stopped on the basis of reasonable suspicion...

Mr. Dolan: And... and...

Justice O'Connor: of committing a crime.

Mr. Dolan: I would agree, Your Honor.

Justice O'Connor: So why not let them check in the computer records to see if this is the worst prior offender they've ever had?

Mr. Dolan: Well... well, with respect to the Terry stop itself, it is for investigation related to whether or not a crime may occur or is about to occur.

And the officer has available to them tools to inquire.

They can temporarily detain the person to see if there are witnesses around who could identify the person as having engaged in criminal conduct and the like.

But the... the notion that a person has to affirmatively provided a ticket to terminate that Terry encounter really tips the balance too much in favor of the State and risks a lot of benefits to our society that accrue through freely being able to move, to be let alone, to engage in protected activity without being subjected to the accosting that one is subjected to during a Terry stop.

Suspicious behavior is not easily or usefully quantified, so this Court has found.

And because what is suspicious to an officer...

Chief Justice Rehnquist: Thank you, Mr. Dolan.

The case is submitted.

Justice O'Connor: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The Oyez Project

Featured:

Chavez v. Martinez - Oral Argument

Fri, 09 Jan 2009 14:50:37 +0000

Case:

Chavez v. Martinez

Media File:

01-1444_20021204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Lawrence S. Robbins

Justice Stevens: We'll hear argument in Number 01-1444, Chavez against Martinez.

Mr. Robbins, whenever you're prepared, you may proceed.

Mr. Robbins: Thank you, Justice Stevens, and may it please the Court:

The Ninth Circuit held in this case that petitioner Ben Chavez could not assert a qualified immunity defense to a section 1983 lawsuit alleging that his interrogation of respondent violated the Fifth and Fourteenth Amendments.

We believe that ruling to be mistaken.

First, there was no constitutional violation at all on these facts.

But second, if there was a constitutional right implicated, that right was not clearly established in the particularized sense required by this Court's qualified immunity cases.

Officer Chavez could not reasonably have known that what he was doing violated that right, and the judgment of the Ninth Circuit should, therefore, be reversed.

Justice Stevens: May I ask this question on that point that you addressed before you get through?

Supposing he thought at the time of the questioning that the material... the answers would be used in evidence later on, and he knew that it would have been a violation of the Constitution to use those answers later on.

Would he be entitled to qualified immunity then?

Mr. Robbins: Yes, because the Constitution... well, because the first inquiry would be has the Constitution been violated.

Whether he thought--

Justice Stevens: But your... I'm just directing my question at... you sort of said even assuming a constitutional violation, he nevertheless is entitled to good faith immunity.

And I'm saying, well, assume the... the facts I've just granted, including an assumption that the... it would have been a constitutional violation to use the evidence.

Mr. Robbins: --Well, I think... I think the... the answer is that while... while he might have believed that the Constitution would in time be violated, because he could not himself violate it, he couldn't... he couldn't be liable under section 1983 for committing a Fifth Amendment violation.

So the point is you don't even get to the question of clearly established if there's no established constitutional violation at all.

Justice Scalia: But we... we do somehow extend the Fifth Amendment protection to the period before the actual introduction of the evidence in a criminal trial.

That is to say, we... we permit a witness to refuse to answer unless the witness is given... is given immunity from prosecution.

Now, how do you explain that, unless somehow the Fifth Amendment has some antecedent application before the evidence is actually--

Mr. Robbins: Well--

Justice Scalia: --introduced at trial?

Mr. Robbins: --I... I think you've put it exactly right.

It has some antecedent application.

That is to say, it applies prior to the moment at which it's actually violated.

The premise is we need to ensure against... in a way it's a prophylactic protection much like Miranda is.

That is to say, we will let you assert it in what is concededly, for example, a civil litigation setting, a simple deposition.

No one would suggest that that is a use in a criminal case.

But we allow you to assert it because if we didn't, it would compromise your ability to ensure that the right is protected later.

Justice Kennedy: Well, suppose in a civil case, the judge orders the witness confined to custody until he testifies in violation of what we can say in common parlance is his Fifth Amendment right to self-incrimination.

Is that not a violation then and there to... to confine the... the defendant until he testifies?

Mr. Robbins: I think it is consistent with a body of well... well-developed law that to penalize someone, particularly through that kind of a sanction, for the assertion of a right is in the nature of a... sort of an unconstitutional condition.

And there's a well-established body of law that says--

Justice Kennedy: I... I don't know that we usually talk about a violation as an unconstitutional condition.

We... we would say, Your Honor, I want my client released because you are violating his Fifth Amendment rights.

Mr. Robbins: --But I... I--

Justice Kennedy: And I think in a very realistic... real sense you are.

Mr. Robbins: --Yes.

I... I think there is a body of case law that says that if you are punished for the assertion of a right, then under the Constitution you can be relieved of that coercion.

However... but let me be clear... the actual violation of the Fifth Amendment is exactly what the text of the Fifth Amendment says.

It says that your right is not to be a witness against yourself in a criminal case.

I suggest, Justice Kennedy, that the result... that the holding in Murphy against the Waterfront Commission is inexplicable if you believe, as the Ninth Circuit does, that it is sufficient simply to coerce an otherwise incriminating statement because in Murphy against the Waterfront Commission, the holding of that case is that the State court was correct in requiring the witness to testify even though there wasn't a statute that protected him against incrimination because the Fifth Amendment itself provides the fail-safe that if you are coerced into giving an otherwise incriminating statement, it cannot be used against you.

And my central submission on the Fifth Amendment point... and of course, this is before we even get to the question whether Office Chavez could have... you know, has qualified immunity.

Our central submission on this is that you don't even have to get to that point because the fail-safe of the Fifth Amendment ensures that Mr. Martinez's statements could not be used against him in a criminal case if they were indeed legally compelled--

Justice Breyer: What... what in your opinion in the Constitution prevents a policeman from going and beating up a witness?

Mr. Robbins: --The Fourteenth Amendment.

Justice Breyer: So, the Fourteenth Amendment means that you could... in other words, your... your client could have violated the Fourteenth Amendment if... other things being equal--

Mr. Robbins: Well--

Justice Breyer: --because he was a witness.

He gets at least... at least the suspect--

Mr. Robbins: --Yes.

Justice Breyer: --gets the same pre-trial protection as a witness would, and the Fourteenth Amendment prevents coercion being used against a witness who doesn't want to testify.

Mr. Robbins: Well, let's be clear.

It doesn't prevent all coercion.

It prevents a subset of coercion that shocks the conscience for purposes of the... the substantive component of due process.

Unknown Speaker: The substantive due process.

Justice O'Connor: Yes, Justice O'Connor.

Mr. Robbins: That's correct.

But... but I think it is important that we not torture the language of the Fifth Amendment to accommodate the worry that police officers will torture witnesses because that concern is completely... can be completely accommodated, and routinely is in the courts of appeals, under the aegis of the--

Justice Breyer: You're not saying... those things that would violate the Fifth Amendment weren't introduced into trial do violate the Fourteenth Amendment for the similar reasons.

Mr. Robbins: --I'm sorry.

Justice Breyer: Well, I mean, could you say--

Mr. Robbins: Yes.

Justice Breyer: --that those things... you could say that.

Mr. Robbins: Yes.

You... you could say--

Justice Breyer: All right.

Then why didn't he violate the Fourteenth Amendment?

Mr. Robbins: --Well, he... well, again, let me... I... I want to answer that, but I... I... because this is a qualified immunity case, I always want to drop the footnote that we have an extra layer of protection here arising from the fact that none of these propositions could have been... none of the propositions adverse to us could plausibly be said to be clearly established within the right sense of the term.

Getting to your question, Justice Breyer, he did not violate the substantive component of the Due Process Clause because that inquiry turns on a set of concerns, including did the acts shock the conscience.

Were they committed with the intent to harm the witness in the sense required by Sacramento against Lewis?

The failure of the Ninth Circuit in this case with respect to the substantive due process analysis was that it thought that any interrogation which would render a statement involuntary and therefore inadmissible at trial must, therefore, give rise to a freestanding substantive due process claim, actionable and enforceable under section 1983.

That's just wrong.

Justice Ginsburg: Mr. Robbins, going back to the Fifth Amendment self-incrimination privilege, I take it the thrust of your argument is that a police officer who fails to give Miranda warnings quite deliberately, doesn't say you have a right to remain silent, doesn't say any of the rest of it, never commits a violation of 1983 unless and until there's attempt to use the information in court.

So you can say, police officer, you're not required to give Miranda warnings if we're not going to use this testimony in court.

Mr. Robbins: I am saying... I think the answer to that is yes.

The... the--

Justice Ginsburg: So that the Miranda is... is not an obligation of the police officer.

Mr. Robbins: --I... I respectfully beg to differ, and I... I also think... I must say, given the prominence of the Miranda discussion in the respondent's brief and in the green... green brief supporting respondent, I believe the Miranda concerns in this case are an utter red herring, and let me say why.

The sanction for the violation of Miranda is, in fact, that the statements taken in violation of Miranda cannot be used in the direct case of the government.

That's the penalty for Miranda, and if that happens, you get the statement struck in the direct case for the government.

Justice Ginsburg: But there... you're saying there is no 1983 penalty.

The penalty is you can't--

Mr. Robbins: I... I think there is no 1983 penalty, but the suggestion that as a consequence, because you don't have a freestanding section 1983 claim when the evidence never comes in, when the statement is never offered, the suggestion that that is therefore going to be... send a signal to police officers that they should violate Miranda, you know, at their... at their discretion I think is terribly mistaken, and for a very important reason and it's this: If you don't give Miranda warnings, you run a serious risk that the failure to give those warnings will be taken as part of the calculus under the Fifth Amendment voluntariness inquiry.

And a statement which is involuntary for Fifth Amendment purposes is unusable for any purpose at all, direct case, impeachment, derivative use.

The government then has to put on a Kastigar hearing to show that all of its evidence was independently derived, which is, as the Court said in Kastigar, a heavy burden for the government to meet.

It is a fool's errand I suggest, Justice Ginsburg... a fool's errand... to go about deliberately violating Miranda simply because the violation will not cause... give rise to a section 1983 violation.

Justice Kennedy: --I... I just have to tell you, I... I can see your... your point on Miranda.

Miranda is an exclusionary rule.

But I'm not sure that all of the Fifth Amendment is... is treated in that way because of the questions we've initially covered.

Mr. Robbins: Well--

Justice Kennedy: If... if you beat the defendant to get the defendant... to get the confession, it seems to me there's a very strong argument that that is a Fifth Amendment violation--

Mr. Robbins: --I think--

Justice Kennedy: --A Self-incrimination Clause violation.

Mr. Robbins: --I think... respectfully, Justice Kennedy, I think there is a wealth of this Court... this Court's cases that cannot be reconciled with the proposition that coercing a statement is enough by itself to constitute a Fifth Amendment violation.

Justice Breyer: All right.

You... I think you could say after... after 30 years or 50 years of... of jurisprudence, policemen know they're not supposed to beat up suspects or the... the equivalent.

And... and you can say, all right, at this point, I would think that does shock the conscience for a policeman to beat a confession out of somebody, and so I don't care if you call it Fourteenth or Fifth.

But then the question here would be, why in heaven's name, when the person is undergoing serious pain, or he thinks he's dying, where the doctors are saying, get out of here, et cetera, whatever they're saying, and he continues to press and then says, well, you're going to get your treatment after you confess... not confess... after... after you answer my question.

What were you doing?

Then we'll treat you.

He says, you want your treatment, you'd better... you better say something, et cetera, et cetera.

Why isn't that the equivalent of beating somebody up?

Mr. Robbins: Well, let me attempt, if... if I might, Justice Breyer, to... to very quickly answer Justice Kennedy's question.

I... I think the belief that the Ninth Circuit held that it's enough under the Fifth Amendment simply to coerce a statement that would otherwise be incriminating cannot be reconciled with Murphy and with the... with Balsys, with the immunity cases, with all the cases that stand for the proposition that so long as the use immunity has not been compromised, you do not yet have a substantive Fifth Amendment violation.

To turn, Justice Breyer, to your question, I acknowledge that there is coercion in this case.

We don't... we don't blanch on that.

There was coercion and the facts of this case are tragic, but the... but the reality is this.

This officer was there to find out a very important piece of information under extraordinarily exigent circumstances.

Justice Ginsburg: Well, was this tried below with a Fourteenth Amendment substantive due process claim?

Mr. Robbins: I don't know that it was denominated substantive due process.

I think--

Justice Ginsburg: Is that in the case?

Mr. Robbins: --I--

Justice Ginsburg: I mean, is it open to resolution on that basis?

Mr. Robbins: --There's... there's no question that the Ninth Circuit decided a Fourteenth Amendment due process question.

I don't think they... they labeled it substantive versus procedure.

And indeed, as we suggest--

Justice Ginsburg: Well, if--

Mr. Robbins: --they conflated the two.

Justice Ginsburg: --if... if we think the facts here show sufficient coercion to rise to the level of a violation of substantive due process under the Fourteenth Amendment, should the judgment be affirmed--

Mr. Robbins: No.

Justice Ginsburg: --but on a different basis?

Mr. Robbins: The judgment must be reversed, first, because there is not even a suggestion that the intent to harm requirement under Sacramento against Lewis has been satisfied.

And under this... in this kind of a case, you cannot have a substantive due... due process violation without that.

No one before you today has argued that that Sacramento against Lewis--

Chief Justice Rehnquist: What is... what is the source of the substantive... of the intentional harm requirement?

Mr. Robbins: --Is that... the source I... I suggest is the... the principles this Court articulated in Sacramento against Lewis for police conduct that's taken in enormous haste where... where there is not the opportunity for a second chance.

But let me go... there's a terribly important thing, Justice O'Connor, I have not yet gotten to say in answer to your question.

The further and perhaps most fundamental reason why it would be a mistake, I respectfully suggest, to affirm this judgment, even on the due process argument, is that this is a qualified immunity case.

So you must conclude not only that on balance this rises to the shock-the-conscience standard, but that it does so with such remarkable clarity that it must have been surely apparent to this officer that he was violating that standard.

You cannot find that on this record.

The Ninth Circuit thought so because of Mincey, which is a fair trial and admissibility of evidence case, not a freestanding substantive due process case and which had all manner of important differences from the facts of this case, including an absence... a total absence... of exigency.

With the Court's permission--

Justice Ginsburg: Exigency.

May I ask you a question about that?

You said the man was dying.

This was the only... only chance.

But there was an eyewitness, Flores, to this entire thing.

Why wasn't it enough for the police, if they wanted some view other than the police officers who engaged in the... in the shooting, just to interview Flores?

Mr. Robbins: --Well, I... I think the record suggests that he was not a completely clear... did not have a completely clear view of the facts.

But he's just one witness.

This is the man who was there.

Justice Ginsburg: Wouldn't he be a lot clearer than a man who... who is... who has been blinded, who has... was paralyzed, who's under heavy medication?

Mr. Robbins: Well, he... he was the most important non-police witness to these events, and I suggest that the officer would have been derelict not to have found out what happened from him, which is what he was trying to do.

And with the Court's permission, I'd like to reserve the balance of my time.

Argument of Paul D. Clement

Chief Justice Rehnquist: Yes, you may do so, Mr. Robbins.

Mr. Clement, we'll hear from you.

Mr. Clement: Thank you, Justice Stevens, and may it please the Court:

The Fifth Amendment privilege against self-incrimination safeguards the integrity of the criminal trial process and ensures that an individual is not convicted on the basis of a coerced confession.

But the privilege against self-incrimination is not a direct limit on the primary conduct of the law enforcement officers.

This is not to say that there are no substantive constitutional limits on what law officers may do to obtain information or to secure a confession.

But those limits are to be found in the Fourth Amendment and in the law of substantive due process, not in the Fifth Amendment self-incrimination privilege--

Justice Kennedy: So beating a prisoner to compel a... a statement is not a Fifth Amendment violation.

Mr. Clement: --That's right, Justice Kennedy.

It's not a Fifth Amendment violation.

It very well might be--

Justice Ginsburg: But it could be a Fourteenth Amendment violation.

Mr. Clement: --It very well... Justice O'Connor, it very well could be a Fourteenth--

Justice Ginsburg: And very likely would be.

Is there some intent element in that for the shocks-the-conscience--

Mr. Clement: --Well, I think generally, at least as I understand this Court's decision in... in Sacramento against Lewis, in these kind of executive action contexts where things are ongoing, I think there is some kind of intent element.

I think that--

Justice Ginsburg: --It's not enough, you think, to find that the officer should have known that you couldn't ask questions in the manner that was done here under these circumstances, and that to proceed gives rise to an inference of intent.

Mr. Clement: --Well, I'm not sure how intent would need to be proven in any particular case, but I would say the critical difference between the Fifth Amendment inquiry and the Fourteenth Amendment inquiry, when it's... when it's done in the context of the admissibility of a coerced confession, is in that context, what the courts are taking into account is the effect on the integrity of the trial process of using a coerced confession.

It's a different calculus, though, when you're trying to regulate primary law enforcement conduct because it strikes me that not everything that a law enforcement officer could do to coerce a confession... there... there may be some acts that may be sufficiently problematic that you'd certainly want to keep the confession out of the trial.

Justice Kennedy: What about the order of a trial judge in a civil case who orders the witness held in contempt and confined unless he testifies, and... and there's a valid Fifth Amendment privilege that the judge is overlooking?

No Fifth Amendment violation there?

Mr. Clement: No.

I don't think there's a Fifth Amendment... I don't think there's a complete Fifth Amendment violation.

The courts intervene there to protect the privilege.

Justice Kennedy: So, if you go in and you want a writ of habeas corpus and you don't mention the Fifth Amendment.

Mr. Clement: You mention the Fifth Amendment, but I think the important thing is the Fifth Amendment in this context works a... a bit like the takings clause.

And Justice Souter, for the opinion for the Court in Balsys, noted that the self-incrimination privilege is unusual because it's not purely and simply binding on the government.

It doesn't say that in all contexts, the government cannot coerce confessions.

What it says--

Justice Kennedy: Well, if there's a 1983 suit against a judge in... in this hypothetical case, what's... what's the violation?

Mr. Clement: --Well, typically those cases have been dealt with on... on habeas.

And what I would say is--

Justice Kennedy: Suppose it's a 1983 suit.

Mr. Clement: --If there's a 1983 suit in that context, I actually don't think a 1983 suit would lie in that context.

Justice Souter: Why wouldn't there be a 1983 suit provided that... and I think this is the assumption of Justice Kennedy's question... provided that the witness had invoked the Fifth Amendment?

There would be a 1983 action there because that is one at least of two instances in which we allow the Fifth Amendment to have an application in anticipation.

We say if he raises it, and they don't come forward with immunity, we're not going to let this entire process go forward to no avail since nothing can ever be admitted in evidence anyway.

The fact is we... the... the rule allowing it to be raised in anticipation I suppose would be the predicate for 1983 liability here.

That's not this case, but that... that would be true in the... in the case of the... the civil example that Justice Kennedy gave, wouldn't it?

Mr. Clement: I think that's a very good point, Justice Souter, and the Court has also treated in the penalty context--

Justice Souter: Well, is it good enough so that you concede there would be 1983 liability there; i.e., that there would be a violation of the Fifth Amendment in that case?

Mr. Clement: --I don't think so, but I think it would--

Justice Souter: Not that good.

Mr. Clement: --at least be a better case.

But as I was trying to say--

Justice Kennedy: Is there any violation in the case that I put, any constitutional violation?

I mean, that's... that's extraordinary.

Mr. Clement: --There is a... there is a... there... what there is is there is an ongoing interference with the Fifth Amendment right that the courts will vindicate, but there isn't a complete constitutional violation.

And I think the critical distinction is that, as... as Justice Souter said for the Court in Balsys, the privilege against self-incrimination is not purely and simply binding on the government.

The government can compel testimony in exchange for a valid grant of immunity.

What it can't do is compel testimony and attempt to use it in a criminal case.

And--

Justice Breyer: Well, maybe the... the point where it would make a difference I guess... nobody is talking about weakening or overruling Miranda.

We have Miranda on the books, and Miranda set some technical requirements.

You have to give a warning.

Now, a failure to give a warning, pure and simple, is not going to hurt anybody if that's never used in trial, so there isn't 1983 damages, unless you beat the person up.

Then there is.

And that comes under the Fourteenth.

But there are a set of cases where it will hurt people.

The set of cases where it will hurt people is where because they violated Miranda but didn't beat him up, and got a statement, they kept him in jail.

That's rather like the case Justice Kennedy's thinking of.

Unknown Speaker: So there he is in jail for a week or a month and he's been hurt, all right.

And the question I guess is... it's really not this case, but the question is, is there going to be a 1983 action in that kind of case?

Justice Breyer: And if you say it comes under the Fifth Amendment, the answer is going to be yes.

And if you say it comes under the Fourteenth Amendment, the answer is going to be no.

I don't know if we should... it seems to me what we're going to decide in this case is effectively going to decide that.

Mr. Clement: --No.

I don't think that's true.

I think that, for one thing, if the person is imprisoned on some basis, that may raise an independent Fourth Amendment violation.

There may be other--

Justice Breyer: Then he goes under the Fourth, and he claims he's wrongly seized and imprisoned because they got this statement out of him in violation of the Fifth.

That's... I mean, this is... this is what's... what's worrying me is not so much this case, but what we're going to write and the implications of it.

Mr. Clement: --And... and I think that this Court has already clarified in Balsys that what you need for a self-incrimination violation is both the coercion of the testimony and the use of it in a criminal case.

Justice Kennedy: But may I just interrupt, Mr. Clement?

Supposing there's a witness, a reporter or somebody, who claims a... a privilege against divulging information, and that... and the court holds him in contempt and locks him up for 30 days or something, and he claims he... his Fifth Amendment right was violated, you'd say there's no Fifth Amendment violation.

Mr. Clement: I would say there's no... there's no damages action.

Of course, he could get--

Justice Kennedy: So how could he get out of jail then?

Mr. Clement: --Well, he could get a habeas action to get out because the court would be granting relief--

Justice Kennedy: Well, I... I think--

Mr. Clement: --to protect the Fifth Amendment--

Justice Kennedy: --With all respect, I think you're evading the point that there... let's assume there's damage.

He's... he's locked up, as Justice Breyer says, for 5 days for not testifying, and you say there's no Fifth Amendment violation.

I can't understand that.

Mr. Clement: --Well, in any event, let me just say that the privilege works quite differently in the custodial context.

The reason that hypo even comes up is that in the context of a civil trial, the individual has to raise the... the Self-incrimination Clause themselves.

And we have a different rule that operates in the context of police custodial interrogation.

In that context, the privilege is self-executing.

The individual doesn't have to raise it.

And... as... the other thing that's different about the custodial context is that in the custodial context, this Court has not insisted on a pre-testimony grant of immunity.

They've always held that the exclusionary rules prevent a constitutional violation from occurring.

And if I could resort to the analogy to the takings clause.

In that context, it's not enough for the government to take property.

It's only a constitutional violation if the... if the government simultaneously takes property and refuses to grant just compensation.

In the same way, there's no self--

Justice Kennedy: But are you saying that... to go back to a question that was asked earlier, that if there... if the police just take somebody into custody and beat him up in order to get... get him to talk with no intention of using the evidence at all... they're just trying to investigate a crime... is there any constitutional protection against that kind of conduct?

Mr. Clement: --Yes, and it's the substantive due process protection.

Justice Kennedy: Okay.

Mr. Clement: And I think to get back to that point, what's important is in the context of trying to protect the integrity of the criminal trial process, I would think the courts would want to be quite careful about what they let into evidence.

But in the context of law enforcement officers, they're dealing with other objectives than simply trying to get a confession to secure a guilty verdict.

Justice Ginsburg: Well, on the facts of this case, should it be analyzed then under the Fourteenth Amendment for coercion--

Mr. Clement: It--

Justice Ginsburg: --an activity that might violate the Fourteenth Amendment?

Mr. Clement: --I think it should, Justice O'Connor, and I would respectfully suggest that that's best done on remand--

Yes.

--because, although there is a due process argument in this case, it's nobody's fault that in light of the... the governing precedent in the Ninth Circuit, the Cooper decision, that nobody thought that they had to prove shocks-the-conscience, or any of the factors relevant to a substantive due process inquiry.

Again, that's not the way respondents briefed the case, but one can hardly blame them for briefing the case they did, given that the Ninth Circuit had held under Cooper that as long as the conduct was sufficiently egregious to have the evidence be inadmissible, therefore you have a full substantive due process violation.

And I think it's--

Justice Ginsburg: And you disagree with Mr. Robbins who said, but because of the qualified immunity, you wouldn't send this back in any case.

Mr. Clement: --Well, I... I don't really disagree with him.

I think this Court could reach the qualified immunity issue if it wanted to, but I think perhaps the path of least resistance would be to just note that there is a substantive due process limit, and that's something that's best to be resolved on... on remand.

I think the important... oh, sorry.

Justice Kennedy: That's all right.

You can make that sentence, if you want to.

Mr. Clement: No.

Justice Kennedy: Okay.

Mr. Clement: Thank you very much.

Argument of Richard S. Paz

Chief Justice Rehnquist: Mr. Paz.

Mr. Paz: Justice Stevens, and if it pleases the Court:

I... I would start with simply the simple observation that the district court made a finding of fact in this case at page... it's 28a and 29 of the petition for writ of certiorari in the... in the appendix.

And it goes directly to the issue of what we've been discussing and that is the... the intent.

And just if I can back up a little bit procedurally, in argument today, for the first time I heard counsel say that they acknowledge there's no quarrel that there was coercion in this case.

In the district court, the entire argument was there was no coercion.

At the court of appeals, the entire argument was there was no coercion.

At the court of appeals and the district court, the... there was never a discussion or... or even was the case of Urquidez... Verdugo Urquidez cited for the fact of... that this was... the Fifth and the Fourteenth Amendments were only a trial right.

Those issues are being heard here for the first time.

They were briefed for the first time in the opening brief.

Cert was granted in this case on whether there was a violation of the Fifth Amendment, not... the Fourteenth Amendment wasn't even discussed on cert.--

So we've gone through this journey of ever-changing theories of... of liability in this case, but I think we have to go back to the beginning.

The district court found at page 28, finally defendants argued that Chavez was not attempting to abridge the right against self-incrimination to... to exact... extract self-inculpatory data or leads.

And the court goes on to then describe what was argued by the defense, that Mr. Chavez was there simply to find out what happened.

The court directly rejected that.

Justice Stevens: Mr. Paz, I'm sorry.

I don't... your page 28 in the cert petition?

Mr. Paz: It's 28a in the appendix of the... of the petition for cert, yes, Justice Stevens.

Justice Stevens: And where?

I didn't... I don't find it on that page.

Mr. Paz: It starts at the... at approximately the... the bottom of the page.

Justice Stevens: "Finally defendants argue #"?

Mr. Paz: Yes.

Justice Stevens: Okay.

I'm with you.

Mr. Paz: Yes.

So the district court carefully looked at the evidence that had been presented, and the district court decided the case really because the testimony of Chavez at the time the tape recordings that he made on the day of the incident and his deposition testimony... he said simply, I'm investigating the crime.

I was there to investigate what... the crime had been committed, the crime of attempted murder on two police officers on the theory that somehow or other this farm worker had taken away the officer's gun and was going to use it on the officers when they shot him.

That was the core of the case.

That was all of the evidence in the case.

The subsequent declarations that were submitted were only submitted after... after Mr. Martinez submitted a motion for summary judgment that as a matter of law, using all of the evidence provided by the defense and giving them the benefit of the doubt on all the evidence, that there was a violation of the Fifth and the Fourteenth Amendment.

Justice Scalia: Mr. Paz, let me... let me tell you why I have difficulty with the proposition which you're urging, which is that any coercion that would suffice to require the confession to be excluded from... from trial is also a coercion that violates the Fifth Amendment, not... leaving substantive due process aside.

Suppose you have a situation in which a... a felon has taken a hostage and buried the hostage somewhere, and suppose that it is possible for the police official to use a degree of coercion which would not shock the conscience.

It isn't beating the person with a rubber hose, but let's say failing to give a Miranda warning, or using a... a sort of trickery that... that would amount to coercion, threatening perhaps, you know, if you don't confess, your brother will be prosecuted or something like that.

It would be sufficient to exclude the testimony from the confession from the trial, but the policeman doesn't care about that.

Unknown Speaker: He wants to save the life of the... of the hostage who's been... who's been buried.

Justice Scalia: Now, you would say that that... that policeman by extracting that confession has violated the Fifth Amendment.

Mr. Paz: There may be a violation, and... and I would agree that most likely if... if it was in violation of Miranda, there would be... there would be no... it would not be admitted into a criminal case.

Maybe... it may be under the Quarles exception.

Justice Scalia: What... you'd say that the person would... would have a... a 1983 action against the policeman?

Mr. Paz: No.

No, I think clearly that's the kind of a case in which qualified immunity was designed to prevent.

Qualified immunity gives as... as it did in... in--

Justice Scalia: Only because of qualified immunity?

Justice Kennedy: Well... well, let... let's assume that we decide the case, and then this happens a second time.

Mr. Paz: --Then... then clearly--

Justice Kennedy: You have to answer Justice Scalia's question.

You can't get away on qualified immunity.

Mr. Paz: --Oh, no, no.

I would say--

[Laughter]

I... I would say Quarles gives us the direction.

When there is an immediate danger, when there's a danger to the public, then clearly there would be no constitutional violation.

The Court has already made that decision.

I... I don't think that that's really an issue that we have to struggle with.

Justice Scalia: You can violate the Fifth Amendment when there's a danger to the public?

Mr. Paz: That's what Quarles, I believe, says.

Quarles says that... that the Miranda violation was not... was not sufficient.

And I... as I... as I recall in Quarles, the evidence was admitted against him.

He... he said, the gun is over there, and that evidence came in to prove the violation of... of possession of a weapon.

So I think that the Court implicitly said that we're... in this emergency situation, that there is no... no Fifth Amendment--

Justice Scalia: You... you think this applies not only to the... the unique aspect of the Fifth Amendment that... that Miranda constitutes, but to all Fifth Amendment violations.

Mr. Paz: --No.

What I... I think once it becomes coercive, once it becomes physical, once it becomes... then I think that you would interfere with the core values of... of the Fifth Amendment.

Justice Kennedy: Justice Scalia's hypothetical asked about coercion.

There was no coercion in Quarles.

There was just an absence of Miranda warning.

Forget Miranda.

Let's just talk about coercion.

Is there a Fifth Amendment violation in the case that he put where there was... there's an element... there's a... there's a degree of coercion?

There's no Miranda warning.

That's out of the case.

There's no sovereign... qualified immunity.

That's out of the case.

Justice Scalia: Coercion to keep it out of trial.

Mr. Paz: I... I would say yes that there is a Fifth Amendment violation.

The question then would be, what is the remedy?

Under those--

Justice Scalia: --section 1983.

Mr. Paz: --No.

Justice Scalia: I mean, if it's a Fifth Amendment violation, you can sue the policeman.

Mr. Paz: Under those circumstances--

Justice Scalia: Well, this person who goes to prison for... for putting this person in a... in a grave begins a suit when he's in prison suing the... suing the policeman.

Mr. Paz: --And I don't believe that's... that would be the conclusion because the remedy would not be appropriate because there had been, as we saw in... in Saucier versus Katz, there's a situation in which the police have to act, and so the police act if it's reasonable, even if it's a reasonable mistake, even if they have the wrong guy and they try to coerce the wrong person, it may be reasonable under an emergency circumstance.

Justice Scalia: I see.

So let's assume somebody is... you think he's going to blow up the World Trade Center.

I suppose if... if we have this necessity... this necessity exception, you... you could beat him with a rubber hose.

Mr. Paz: I would hope not, Your Honor.

Justice Scalia: Oh, it's necessary.

Mr. Paz: No.

I think--

Justice Scalia: Since when is... is necessity a... you know, a justification for ignoring the Fifth Amendment?

Mr. Paz: --Your Honor, only in the limited situation.

I think the first hypothetical you gave me... gave us was you simply were going to ask him questions repeatedly.

Now, I... I don't think the rubber hose example was before me.

Justice Scalia: Do you know... okay.

Do you know any of our... any of our cases that... other than Miranda which, you know, is... is in a field by itself, do you know any of our cases that say that there is a necessity exception to the coercion prohibition of the Fifth Amendment?

Mr. Paz: Not at all, Your Honor.

Justice Breyer: So maybe the answer would be that... that it's not... the Fifth Amendment... the... the Miranda rules are methods of enforcing the Fifth Amendment so that if all is violated in... in Justice Scalia's hypothetical is a Miranda rule and the person is not proceeded against in court and the person has not been physically injured in any way and has not suffered any real harm except not being read a right that didn't matter anyway, he would have no damages.

Mr. Paz: That would be correct.

Justice Breyer: So he could bring his lawsuit, but he'd gain nothing.

Mr. Paz: I would agree with that analysis.

Justice Scalia: Except that my hypothetical was not Miranda.

My hypothetical was that he was coerced in some fashion other than the failure to give a Miranda warning, and short of beating with a rubber hose.

Justice Kennedy: Yes.

Mr. Paz: The distinct... the distinct difference in this case is... and I understand that the exigence is... the exigent... the... the terrorist situation is a difficult one.

It's not our case.

Mr. Martinez was riding a bicycle home.

Justice Breyer: It's not your case.

That's right.

Mr. Paz: There was no call.

There was no crime.

There was nothing that had happened except he was riding his bicycle home.

So we really can't... I don't think that this is an appropriate vehicle.

There may be such a case that will at some time--

Justice Ginsburg: Well, maybe this is a Fourteenth Amendment case, not a Fifth Amendment case at all.

Mr. Paz: --I did... I did consider that.

And... and I think clearly it is a Fourteenth Amendment violation under all the cases--

Justice Ginsburg: Was it tried on that basis--

Mr. Paz: --Yes.

Justice Ginsburg: --presented on that basis?

Mr. Paz: Yes, Justice O'Connor, it was.

It was... it was... that was the allegations from... from the beginning.

But... but--

Justice Breyer: I don't see why the Fourteenth.

I mean, the Fourteenth... the Fifth applies to the States because it's incorporated in the Fourteenth.

Mr. Paz: --Correct.

Justice Breyer: And... and therefore, if in fact you violate the Fifth in... in a way that's significant, not just... I mean, causes significant harm, not just you didn't read a Miranda right, but you hurt somebody, then why wouldn't the Fourteenth carry that through to the--

Justice Ginsburg: --By way of the Fourth Amendment.

Mr. Paz: Yes.

I believe it does.

I believe the history... and the history... the early cases, the... the Bram case in 1897 began with the concept of the... of the Fifth Amendment protecting all of the rights.

And of course, Bram was a case in which... it was against the United States.

But as... as... there's an evolution that I've... I've seen through our cases that... that show that the Fourteenth Amendment, once it was incorporated, it actually incorporated the Fifth Amendment privileges.

It actually... the Fifth Amendment was really the... the core values of what the Constitution meant to embody.

It goes back to... Bram cites the early... early cases in England where, although the right against self-incrimination was an evidentiary rule, in Bram they... they laud the fact that it became a constitutional rule, that it became immutable so that no act of Congress... as we decided in Dickerson not too long ago, no act of Congress could change that.

So--

Justice Ginsburg: But isn't it clear by now in our cases that if a policeman uses excessive force that rises to the level of a Fourth Amendment violation, that we will address it under that amendment, that the Fifth Amendment, the language of it refers to use in trial of the testimony?

And... and you don't have that limitation--

Mr. Paz: --I would--

Justice Ginsburg: --under a substantive due process claim.

Mr. Paz: --I would disagree with you on one point, and that is the... the language of the amendment talks about a criminal case, and in our brief, we did talk about the meaning, the distinction between a criminal trial and a criminal case.

And all of the... all of the language... the most recent is in Hubbell.

There's the discussion about the fact that the Fifth Amendment covers... the values of the Fifth Amendment covers everything from civil to administrative to bankruptcy cases.

The Arnstein case in 1923 talked about the Fifth Amendment protecting a bankrupt person in a bankruptcy proceeding, not even involving a criminal proceeding at all.

So the extension of the Fifth Amendment goes to really the core values.

We just don't force people to talk, and the State can't do it.

And--

Justice Scalia: Excuse me.

I... you... you mean... you say it extends to a bankruptcy proceeding.

You mean you can refuse to provide testimony that can be used against you in a bankruptcy proceeding?

Mr. Paz: --That was the holding in Arnstein in... in 1923, and a bankrupt person who was under the bankruptcy proceeding simply said, I have a right to remain silent.

I don't want to answer these questions.

The court upheld that right in the bankruptcy proceeding.

So early law certainly didn't... didn't say it had--

Justice Scalia: Simply because he didn't want to answer the questions, or because--

Mr. Paz: --They may--

Justice Scalia: --the... the questions would incriminate him--

Mr. Paz: --That's correct.

Justice Scalia: --in a criminal proceeding.

Mr. Paz: That's correct.

Justice Scalia: Well--

Mr. Paz: But... but there was no criminal proceeding--

Justice Scalia: --Well... yes.

There wasn't any yet pending.

I mean, I think we all understand that you... that you acquire some pre-trial Fifth Amendment rights to... to remain silent, but whether that means that there has been a Fifth Amendment violation before the entrance is... evidence is introduced in trial is... is a separate question.

Mr. Paz: --I--

Justice Scalia: Nobody questions that... that there are some aspects of our Fifth Amendment law which... which allow you to plead the Fifth Amendment before the evidence has been introduced in trial.

Mr. Paz: --And... and once the... the right has been given to the... to the American people to plead the Fifth Amendment in any pre-trial proceeding, including an... an interrogation at... after a... after a shooting such as this, and after the person is the sole suspect of a horrible crime, then obviously that is part of the criminal case.

That is part of the entire criminal process.

If we would say we only have a Fifth Amendment right to remain silent if we introduce it into a court... into a court proceeding, then Mr.... persons like Mr. Martinez who were never charged with a crime would have no remedy.

Justice Scalia: But it doesn't have to be part of the criminal case.

I mean, as... as your bankruptcy example indicates.

Mr. Paz: I agree.

I agree, Justice Scalia.

I think it's important that we try to focus on what really are the bright lines here.

We have three bright lines that were violated by... by Sergeant Chavez in this case.

The first is clearly coercion that goes back to... to the early cases.

The second bright line is that there was... there was an invocation in this case.

Mr. Martinez twice said, I don't want to talk.

Leave me alone until they give me medical treatment.

There was invocations implicitly.

When he first opened his mouth, he says, leave me alone.

Leave me alone.

I'm dying.

Those are the first words out of his mouth.

That's an invocation.

No reasonable police officer, no... no basically trained police officer could believe that questioning a fellow in his condition was permissible.

Justice Kennedy: This... this question is somewhat like Justice Scalia's question.

Suppose the same facts so far as the hospital was concerned, but that the... that the incident involved a kidnapping and the injured person, your client, was a witness to the kidnapping.

Chief Justice Rehnquist: We wanted to know what the kidnapper looked like so we could get the child back.

Mr. Paz: Then it's clearly... he's not a suspect.

Clearly, it... questioning is... is obviously needed.

It's necessary.

Of course.

But... but--

Justice Kennedy: Well, if... if the questioning... and suppose he says, go away, I'm sick, I'm sick.

And they said, no, no, we want your answer.

Why is there coercion in... no coercion in that case--

Mr. Paz: --Because he's--

Justice Kennedy: --but coercion in your case?

Mr. Paz: --Because he's not a suspect.

Because he's... he isn't the sole--

Justice Kennedy: But that's... that's a Miranda question.

Mr. Paz: --I think not.

Justice Kennedy: And... and it's a... well, it's also a basic Fifth Amendment question.

Mr. Paz: It is.

Justice Kennedy: But why isn't... why isn't the element of coercion the same in each case?

Mr. Paz: Because the... the constitutional obligation.

When the person is a suspect, the constitutional obligation rises above.

That's the difference.

Justice Breyer: Well, that... for purposes of a damage action, not for purposes of Miranda, or what's admissible.

But for purposes of a Miranda action, should a suspect be in a better position than a totally innocent witness insofar as the police beating him up is concerned?

Mr. Paz: No, I would think not.

Justice Breyer: No.

All right.

Unknown Speaker: Well, if they're... if they're the same, then I... I guess it would be... you'd get to the same result.

Justice Breyer: If they had beaten him up or been coercive, it should be the same problem whether he's the witness or the suspect.

And if they've gone past whatever point is reasonable, I guess there should be damages.

And if they're doing it for a good reason because they want to stop an attack or something, well, that's just the way it is.

And... and that's... I'm trying to figure out if that's what the law is and what the right words are to get to that place and how you deal with this mass of... of constitutional rules, if... if that's the proper result.

Mr. Paz: I think the proper result is... is given... given Justice Kennedy's hypothetical, the proper result is if this is a... a witness who has information about some exigent circumstance, then there... the Fifth Amendment doesn't attach at all.

And obviously the officer is not going to use leading questions, coercive questions to get information.

The basic concept of getting information under those circumstances is you want it to be trustworthy.

You don't want the officer putting words into the person's mouth and brow-beating them to come up with something that's a bad lead.

So obviously we want to have the kind of questioning that would be, in fact, seeking the truth as opposed to putting words into someone's mouth as what occurred in this case.

The... I'd like to address a point that's been raised, and... and it may not be totally necessary.

I'd just like to make the distinction that the... the basis, the entire heart of the discussion that coercion is somehow permissible unless the cases are introduced into a criminal case or into a criminal trial are... are the... the immunity cases.

In the immunity cases, they... they... I believe that the defense has... or that the petitioners have totally confused the grant of immunity and coercion in a public trial after a grant of immunity where a person is told, you must answer the questions.

And... and the distinctions is one is an inquisitional situation where if the officer has a person alone and they're forcing them to answer questions, there is no public trial, there is no judge there to make sure that they're... they're not being... there is no overreaching, there is no brow-beating.

The person who was even under a grant of immunity can say, I'm not going to talk, and face the consequences of going to jail and sit in jail with dignity and say, I'm not going to talk.

I believe that it's more important to assert my right not to speak than to be... than... than sitting in jail.

Our law still doesn't allow the court or the jailers to use coercion to extract their statement.

A person in this country still could have the dignity to say I don't want to speak and I'll take the punishment, and if it's just punishment, that it's been done by a court, then that is not coercion, the kind of inquisitional coercion that this... that this Court and the United States has always said we don't tolerate.

Are there any other questions?

Justice Ginsburg: Going back to your earlier distinction between the suspect and a witness, if someone is suspected of kidnapping a child, and that child is not going to live without some medication... I believe this example was brought up in one of the briefs... and the suspect, whatever answer, will certainly be incriminating, the police may not exercise any coercion to get the suspected kidnapper to tell where the child is so the child could get life-saving medication?

Mr. Paz: I believe that there can be some questioning, and I think that the questioning has to be... even if it's forceful questioning, there must be limits.

And it's... certainly it's a balance because it has to take into account what is the circumstance of this person.

The danger in saying I agree with that hypothetical, Your Honor, is that what if the person is the wrong person.

What if the suspect really isn't the person who kidnapped the person?

What if they're just wrong and they got the wrong person?

That's the danger, and that's why we have to--

Justice Ginsburg: And on the other side is... is the life of a child.

Mr. Paz: --That's correct.

And it's... it's always a difficult choice, but we have... we have to--

Justice Scalia: --it's difficult at all if they know that this is the fellow that did the... they have all sorts of evidence.

They know this is the guy that... that buried the child, or deprived the child of medication or whatever.

It's not a hard question at all.

Mr. Paz: --Then I think... I think that there is... we have to look at Quarles for guidance and, again, it has to be the degree of the... the degree of coercion that is permissible.

It's difficult to say that any coercion is permissible.

But again, given... with the limited hypothetical and limited facts, it's... it's difficult to make a judgment at this point.

Justice Scalia: Mr. Paz, what do you... what do you do with the Murphy case that's relied upon so extensively by... by Mr. Robbins?

As I understand that case, it was a State legislative commission which accorded immunity to the witness under State law, but of course could not accord immunity under Federal law.

And we held that the witness, nonetheless, had to testify, and we said, of course, if the feds try to use the evidence, it will not be admissible because it was... it was obtained under coercion.

But we, nonetheless, allowed the State to compel the testimony.

Now, were we allowing a Fifth Amendment violation?

Mr. Paz: No, Your Honor.

That... that was, as I understood, that the... the use immunity that was granted in... in Waterfront was extensive with the privilege.

It was allowed... that is, as I understand the reading of the case, was that the privilege that... that the... the immunity that was granted was sufficient to cover both any State prosecution as well as Federal prosecution.

Justice Scalia: No, no, no.

That wasn't the case.

That was the whole problem.

The State could not grant immunity from Federal prosecution.

It... it granted immunity only from State prosecution.

And we said, nonetheless, the State could... could lock the person up until he testified.

And the only consequence would be that if he did testify, it would not be introducible in Federal trial because it... it had been coerced.

Now, I... you know, it's a bizarre case, but it does seem to stand for the principle that Mr. Robbins asserts, which is that there's no Fifth Amendment violation until the evidence is introduced.

Mr. Paz: We all make mistakes, Your Honor.

[Laughter]

Justice Scalia: You think... you think that was one of our mistakes.

Unknown Speaker: [Laughter]

Justice Breyer: Did you... did you come up anywhere in your... in your research on this with anything that suggests that... that once the person is a suspect, and once he's in custody of the police, that the criminal case has begun?

Mr. Paz: Yes.

Justice Breyer: Or is it clear that that isn't?

Is it clear that the criminal case that the Constitution refers to is... is not really begun until it's what we'd call technically is a criminal case, the filing, you know, indictment, or... et cetera?

Mr. Paz: I... I think there was good language in... in Colorado versus Connelly.

Justice O'Connor wrote a concurring opinion I think that covers the point quite well that said that... and there was also the--

Justice Breyer: It says that... what?

That the criminal case had begun at the time he was in custody?

Mr. Paz: --As I recall, the... the discussion was that there had been an argument that the... that Mosley's statement... that that by using Mosley's statement, because there had been no police coercion, that it was permissible because the purpose of the... of the rights, the Fifth Amendment, was to prevent police misconduct and coercion.

And... and in that context there was a... there was a discussion about... that the... that the... that there was... that because the rights protect outside of the criminal case and outside of the trial, that there was no... there would be no deterrence.

There would be no reason to enforce it at that point.

Also there was Michigan versus Tucker.

Both Michigan and... and Colorado versus Colony... Connelly both discuss about a two-part inquiry.

Should... should we... and the Court indicates in both of those cases that there's an analysis of whether the police officer conduct violated the Fifth Amendment, and then secondly, what is the remedy.

So really, those two cases talk about the difference between the right pre-trial in the custodial interrogation setting, as well as... as does Miranda, and the difference between the remedies that the court considered.

Any further questions?

Thank you.

Rebuttal of Lawrence S. Robbins

Chief Justice Rehnquist: Thank you, Mr. Paz.

Mr. Robbins, you have, I think it's, 3 minutes.

Mr. Robbins: Thank you, Mr.... Justice Stevens.

Let me just quickly make a couple of points.

It seems to me that petitioner can win this case the hard way or the easy way.

The easy way is recognizing that this body of law is, as one of the members said this morning, a complex of constitutional issues with cross currents that cut in a variety of directions, that in light of Verdugo Urquidez, in light of Sacramento against Lewis, it cannot be said that any of these constitutional principles was sufficiently clearly established to warrant the rejection of qualified immunity.

But I want to win it the hard way.

First, because under Sacramento against Lewis, the standard for substantive due process is intent to harm.

That wasn't pled.

That wasn't tried.

There's no such argument before you today.

No one thinks that if Sacramento against Lewis applies, there can be a substantive due process claim at all.

That's why it wasn't in the complaint.

And no one here before you is suggesting intent to harm.

Now, on the Fifth Amendment, Justice Kennedy, I'd like to take one more crack at the concern that you've articulated because I think it is... it is in fact possible to square those concerns with the holding in Murphy against Waterfront Commission which, as far as I can tell, is perfectly good law and consistent with what this Court said in footnote 8 of Balsys about the fail-safe of use immunity provided directly by the Fifth Amendment.

So long as the government has not compromised the availability of use immunity under the Fifth Amendment, there hasn't been a Fifth Amendment violation.

In each of the penalty cases that are suggested by your hypothetical, that's what the government has done.

They have said to the witness, you may not have immunity.

You may not assert your Fifth Amendment.

If you assert your Fifth Amendment right, we're going to put you in lock-up right now.

The Court has consistently said, you know, if you forfeit the use immunity and actually put a guy in jail because he insists on it, that's as good as use.

That's a protection that stems from the Fifth Amendment itself.

And that's... that explains all of the so-called penalty cases.

The police... the Garrity case in New Jersey, the two Lefkowitz cases out of New York.

That explains... what is, in fact, going on there is someone is being punished or penalized for the assertion of a privilege, including the right against use.

But as long as the fail-safe in the words... Justice Souter, that you used in... in footnote 8 of Balsys, as long as the fail-safe of use immunity has not been compromised, as it has not been in this case, there is not yet a full Fifth Amendment violation, which can only happen when there's a use in a criminal case.

And that is exactly the point that this Court in Verdugo Urquidez said in the passage that the Ninth Circuit decided to call dictum and ignore.

That was a big mistake.

And on that ground alone, it's the Fifth Amendment portion of its decision--

Justice Stevens: But, Mr. Robbins, why couldn't... why couldn't--

Mr. Robbins: --that should be reversed at the first threshold.

Justice Stevens: --Why couldn't you view the continued questioning under the circumstances of this case as tantamount to punishment when you have locked somebody up who won't answer questions?

Mr. Robbins: Well, I... I think because... well, for one thing, the availability of use immunity is still there.

What you... what I think it would... what I think... what I think it would amount to is continued coercion of a statement which arguably at some threshold, once you cross it, does indeed become too coercive to render the statement admissible.

But that's when the Fifth Amendment fail-safe steps in and says, you may not use it.

That would violate the Fifth Amendment.

But because the fail-safe wasn't compromised in this case, as it was in the line of cases suggested by Justice Kennedy's hypothetical, there cannot be a Fifth Amendment, and we don't even have to reach the question of qualified immunity.

Justice Stevens: Thank you very much, Mr. Robbins.

The case is submitted.

Attribution:

The Oyez Project

Featured:

McKune v. Lile - Oral Argument

Fri, 09 Jan 2009 14:50:23 +0000

Case:

McKune v. Lile

Media File:

00-1187_20011128-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF STEPHEN R. McALLISTER ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument next in Number 00-1187, David R. McKune v. Robert G. Lile.

Mr. McAllister.

Mr. McAllister: Mr. Chief Justice, and may it please the Court:

Choices have consequences, but they nonetheless remain choices.

The mere withdrawal of prison privileges such as a personal television or how much an inmate may spend at the canteen, privileges which are not part of an inmate's sentence and to which an inmate has no legal entitlement, does not amount to constitutional compulsion in violation of the Fifth Amendment, certainly not when the reason for the withdrawal of those privileges is the inmate's failure to comply with an unquestionably legitimate treatment requirement that he accept responsibility for his offenses.

Unidentified Justice: The problem, though, is he's forced, in effect, to confront the treatment possibility.

It's not an option.

I mean, the tough part of the case for me, I think, is the fact that this is not a scheme, as I understand the Federal scheme, in which the inmate says, I want to take advantage of this treatment program.

This is a scheme in which the State says, you're going to take advantage of it, and if you don't take advantage of it, including the admissions in the reports of other offenses, and so on, you're going to lose substantial privileges.

That, to me, is the tough part of the case.

Mr. McAllister: That's true, Justice Souter, and our program does differ from the Federal program in that respect, but it is still a choice for Mr. Lile.

He does not have to incriminate himself in any way.

His refusal to participate is not at all incriminating, and what we're talking about in terms of what he may lose here are really relatively mild incentives within the prison--

Unidentified Justice: I thought that the participation required the prisoner to describe previous offenses that he may have been--

Mr. McAllister: --If he participates.

Unidentified Justice: --committed.

Mr. McAllister: If he participates.

Unidentified Justice: That he may have committed if he participates.

Mr. McAllister: Right, but what I'm saying is, if he simply refuses to participate, there's no incrimination whatsoever, nothing drawn from that.

He simply--

Unidentified Justice: But what happens if he refuses?

Is he put in a different type of confinement with different terms and conditions?

Mr. McAllister: --He can be, yes, and he will certainly, with our privilege incentive level system, as the inmates work their way through they have more privileges, and they're in the nature of how much they can spend at the canteen--

Unidentified Justice: Well, everybody goes in presumably at the same level.

Mr. McAllister: --They start at intake.

Unidentified Justice: You're screened, and you start at the same level of control.

Mr. McAllister: Yes.

Unidentified Justice: Now, the prisoner says no, I don't want to participate in that program.

Does that mean that he stays in that opening level, or is he then potentially put in something even more severe than that?

Mr. McAllister: The Kansas regulations say, if an inmate is recommended for this treatment program and he refuses, he goes from level 3 to level 1.

Mr. Lile is at level 3 because when we adopted this incentive scheme several years ago we grandfathered in all the inmates at the highest level, so we started them out with the level 3 privileges, which is the highest they can achieve in prison, and it was then theirs to lose by not complying with rules and committing disciplinary infractions, and so forth, so he was at level 3, and when he refused to participate he then comes down to level 1.

Unidentified Justice: Is that where he is today?

Mr. McAllister: Well, he's actually not, because he got an injunction against... in this case against actually carrying out this program.

Unidentified Justice: In the future--

--So is he still incarcerated?

Mr. McAllister: Yes, he is.

Unidentified Justice: And he's at level 3?

Mr. McAllister: Level 3, yes.

Unidentified Justice: In the future, what's at issue is not being deprived a benefit you already have, but of not giving you benefits that you don't have?

Mr. McAllister: Well, I--

Unidentified Justice: I mean, the reason he's being chopped down from 3 to 1 was that he was grandfathered.

Mr. McAllister: --He was grandfathered in.

Unidentified Justice: But in the future, he would simply not make it from 1 to 2 and from 2 to 3, if he didn't go into the program?

Mr. McAllister: Very possibly.

I mean, very possibly.

Unidentified Justice: Because there's been some dispute between you and the other side as to whether this is simply the denial of a benefit or a punishment, and I'm not sure there's a whole lot of difference, but--

Mr. McAllister: And in the context of the prison--

Unidentified Justice: --for the grandfathered people it looks more like a punishment, chopping him down to 1, but in the future, at least, he just doesn't get promoted from 1 to 2 to 3.

Mr. McAllister: --That's certainly a possibility, and one thing about--

Unidentified Justice: You say it's a possibility.

I mean, I suppose it's always a possibility, but does the scheme for those who are not grandfathered provide that they will never yet be on the intake level if they are a sex offender and so on, unless they agree to this?

Mr. McAllister: --No.

They will progress, unless they have other reasons that they're not, because what happens with this program, it's an 18-month program.

Our inmates are not even evaluated, typically, for release until they're 2 years from their scheduled release date, so anybody with a sentence of any length will go several years in the system, working their way up if they're complying with what they're supposed to do.

Unidentified Justice: Well then, the only person that's going to be in the position that Justice Scalia described is the person who's been getting in trouble along the way and never does progress.

The person, I take it, like this petitioner here is going to be in the same position as this petitioner.

Mr. McAllister: Yes, potentially, but in our view it doesn't matter in the prison, should not matter in the prison context whether you view it as taking away a benefit or not bestowing a benefit, because none of these inmates come in with an expectation to any of these privileges.

Unidentified Justice: Could the... Kansas do that... this with respect to a prisoner who's writing letters to the editor, to the newspaper, complaining about prison conditions?

They say, well, this... all this is privileged.

We don't have to give you anything.

You have no--

Mr. McAllister: I think that's a different case, and that probably takes the Court quickly to Turner, where the Court has addressed the--

Unidentified Justice: --But why is the First Amendment different from the Self-Incrimination Clause?

I mean, if in the one case you can't disadvantage the person for exercising that constitutional right, why in the other case can you?

I mean--

Mr. McAllister: --Two--

Unidentified Justice: --you have the First Amendment--

Mr. McAllister: --Two things, Justice Ginsburg.

One, we don't think we are disadvantaging here in terms of actually compelling him.

Unidentified Justice: --But then you should say the same thing about the First Amendment.

You're not taking away anything you're entitled to.

You've no liberty interest, property interest, all that.

If that follows, then what's wrong with saying--

Mr. McAllister: But in the First Amendment context he has a right, a free speech right or a right of access to the courts that may be at issue.

In this context, all the Fifth Amendment says is, no person shall be compelled, so--

Unidentified Justice: --As I recall it, the First Amendment says... speaks of abridgement--

Mr. McAllister: --Yes.

Unidentified Justice: --right, and Fifth Amendment speaks of compulsion.

Mr. McAllister: Compulsion, that's the language in the amendment.

Unidentified Justice: I'm concerned about the same thing Justice Ginsburg is concerned... I have to say I can't find in our cases a statement that a burden on your... or an unconstitutional condition which involves the Fifth Amendment is barred, but I'm wondering if it oughtn't to be.

Is it your... it seems to me to follow from your position that every prisoner in Kansas could be told, either you confess to the crime for which you've been convicted and all other crimes you've committed or you go to maximum security for the rest of your time here.

Mr. McAllister: Not necessarily, Justice Kennedy.

Unidentified Justice: Because I think the State does have an interest in saying, we want to rehabilitate you, and it's best for you to confront your wrong.

Would you say the statute, or the rule I've proposed is problematic?

Is it different from what you're proposing?

Mr. McAllister: I think it's potentially different, although it is potentially permissible constitutionally, but the question would become, what sort of legitimate valid penological interest do we have?

Do we have such an interest in having every inmate do that from the day they enter prison?

This is very different.

Unidentified Justice: I think you can make a better argument.

Mr. McAllister: We could make that argument.

Unidentified Justice: It's better for people to confront the consequences of what they've done.

Mr. McAllister: We could make that argument, and in this case it's critical, actually--

Unidentified Justice: I'd be very troubled by that.

Mr. McAllister: --Well, it's much more than that in this case, because here the therapists are clear that denial is a big problem with sex offenders, and to overcome that denial we need a meaningful acceptance of responsibility, not an immunity that simply allows the inmate to talk with no consequence whatsoever, potentially.

We need a meaningful acceptance, and that's what we're after here, and Mr. Lile has not questioned that's a legitimate--

Unidentified Justice: Well, you think it can only be meaningful if you compel them to admit to a new crime for which they could be prosecuted?

Mr. McAllister: --Except with all due respect, Justice O'Connor, we would not say we're compelling them.

We're simply giving them a choice that has some real consequences.

We want people in this program who really want to participate.

We have a waiting list to get into this program, so we don't need inmates in this program who are not serious about this.

We have plenty who are willing to take advantage of the program as it's done, right now, and it's full, and there's a waiting list.

Unidentified Justice: Then why isn't your penalogical interest satisfied in confining the program to those who want to be in it, who will not be subject to this compulsion, if that's what it is?

I mean, your argument is that we have a penalogical interest, in effect, that justifies these consequences.

Mr. McAllister: Yes, we do.

Unidentified Justice: But if you could fill your program without even having to raise the issue that involves these consequences, why do you have a penalogical interest in the insistence that gives rise to this case?

Mr. McAllister: Because these fellows have proven that most... or, not most, but many of them will not voluntarily engage in this program, even though they need--

Unidentified Justice: I'm assuming that is so, but if you can fill the program with people who will, why is there an interest in effect in forcing the issue for those who do not want to do it voluntarily?

Mr. McAllister: --Because we still have an interest in rehabilitating all of these sex offenders.

Just because some of them are more willing to be rehabilitated doesn't mean the State does not have an interest--

Unidentified Justice: Well, if the program is full, then is your interest in simply getting statements of guilt or something from people who will never go into the program?

Mr. McAllister: --No, and that's why he has the choice.

He can simply refuse.

He could refuse, and there's no incrimination if he refuses to participate, but what he's doing is taking up a bed in the medium part of the facility, which is overcrowded at this point, in essence double-celled everyone, and the medium unit is a working unit.

The medium unit is for people who are actively involved in prison programs, and so we just don't have the space.

If you're not going to work at your programs, we'll move you.

That's what we're trying to do with Mr. Lile.

Unidentified Justice: But it's not a voluntary program, it's a conscription system.

What you... first, I'd like you to go back to the rehabilitation thing, because that is an aim, an aspiration for every prisoner, and you made very strongly the point that the first step in rehabilitation is acceptance of responsibility.

If that's so, I don't see why you... this... you could not do this with every prisoner who enters.

You could say, take responsibility by confessing that you did what you were accused of doing, no matter what your defense was.

Two, tell us about all your other nefarious deeds.

You apply this to sex offenders, but the reasons that you did seem to me to be across the board.

Is there any distinction, any constitutional distinction that you would make, or are you saying yes, we could do this in the case of every prisoner?

Mr. McAllister: If there's... as long as there's a deter... a legitimate penalogical interest, yes, potentially we could.

We don't.

We're only focused on the sex offenders here, but if there's a legitimate reason to do it, potentially--

Unidentified Justice: Well, let's take out the if, because is there or isn't there?

Is it... in the case of everyone that you incarcerate there is an interest in rehabilitating that person.

Mr. McAllister: --Absolutely.

Unidentified Justice: And you have said that the first step in rehabilitation is acceptance of responsibility for the wrong that you've done.

Mr. McAllister: Yes.

Unidentified Justice: But you also rely, don't you, Mr. McAllister, on the fact that the therapists for this particular type of crime have come down very hard on the idea, and I take it perhaps there may not be the same body of support for that sort of treatment for other offenders.

Mr. McAllister: And there's certainly not, for example, treatment programs necessarily for burglars or robbers or other categories.

The sex offender program is somewhat special in that respect.

Unidentified Justice: But constitutionally, if suddenly somebody got a good idea here and a psychiatrist came forward saying yes, you can reform property criminals too, we'd be in exactly the same boat.

Mr. McAllister: Yes, potentially, and that's not, in our view, a constitutional problem, because this Court has long said none of the things we're talking about here are atypical in prison.

The inmates have no particular expectation of a particular set of living conditions within prison.

Meachum v. Fano is very clear.

They could be transferred from one prison to another for whatever reason or no reason at all, without violating the Constitution.

This is a very mild incentive program to try to get these fellows to meaningfully participate in the program.

Unidentified Justice: The kind of conundrum that puzzles me that I don't have an answer to is illustrated by the trial process itself.

I suppose the Government couldn't possibly say, if you insist on your right to a jury trial, and insist on your right to remain silent, we're going to sentence you to 10 more years in jail.

But the Government can say, if you confess, and don't go to trial, and show true contrition, we'll give you 10 years less.

That's written into the guidelines.

But they seem to come to the same thing.

Well, that seems to be true of this case, and if I could understand how to analyze the first, I might be able to understand how to analyze the second.

Mr. McAllister: Well, Justice Breyer, to say the first is different, or in essence we're different, because all of our... this takes place inside the prison.

The expectations are quite different.

That's why we discuss Sandin in the briefs, not because it is necessarily transportable to the Fifth Amendment, but what Sandin recognizes is prisons are very different, and what the expectations are, what the hardships are is just a very different situation than free citizens, and what they may be confronted within the way of choices.

Unidentified Justice: You are saying you can have two classes of prisoners, those who have confessed to their crimes and those who haven't, and you can treat them differently, no TV, no meat at lunch, no recreation, no softball, and it seems to me the necessary consequence of that for a prisoner facing a long term is that it's going to induce confessions from innocent people.

Mr. McAllister: Except, Justice Kennedy... it may do that, but our program, just like the Federal program, has pretty strict confidentiality limits.

Basically there's a patient-therapist privilege that operates here, and the only reason... they're given a form right up front that says the only reasons the therapist will disclose anything that's disclosed to the therapist, very limited, things that deal with safety within the prison, threats to other inmates--

Unidentified Justice: Mr.--

--I thought you conceded... you conceded that a prosecutor, say, in the sexual history... he says, I committed X, Y, Z rapes... that a prosecutor, as long as there's no statute of limitations problem, in Kansas... unlike, as I understand the Federal program is, a prosecutor could say, okay, now we're going to indict you for that.

Mr. McAllister: --My understanding is they could do that in the Federal program as well, because there's no immunity granted under the Federal program either, so if they actually made a statement, the Federal program could prosecute them just like we could.

We have not, in 13 years of this program.

Unidentified Justice: Yes, but under the Federal program they don't suffer any loss of anything if they don't make the statement and under yours, they do.

Mr. McAllister: That's true, but--

Unidentified Justice: But under yours, in any case, whether the Feds do it or not, under yours the prosecutor could use that information, couldn't he?

Mr. McAllister: --Could.

We never have, but could, yes, theoretically could.

Unidentified Justice: May I ask you, Mr. McAllister, do you know... there's similar programs in a lot of States, as I understand it.

Do any of them give the inmate immunity if he participates in the program?

Mr. McAllister: Justice Stevens, it's my understanding that some may, although I don't know the exact number, and I do know from the State amicus brief the 18 States that signed onto that obviously think immunity is a bad idea and, as I said, the Federal Government does not immunize the inmates who participate in the Federal program.

Unidentified Justice: I understand the Federal Government does not, yes.

Mr. McAllister: Yes.

Unidentified Justice: Of those, how many are like Kansas?

That is, it isn't a voluntary thing?

Mr. McAllister: Justice Ginsburg, I don't know the answer to that.

I don't know exactly what their programs are like.

Ours was the first of its kind in some sense when we implemented this program, so some may have followed our model, but I don't know for sure.

With the Court's permission, I'd like to remain... reserve the remainder of my time.

Unidentified Justice: Very well, Mr. McAllister.

Mr. Garre, we'll hear from you.

Mr. Garre, why does the Federal Government not think it a good idea to grant immunity?

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Garre: Justice Scalia, the Federal Government has a very limited program that applies in only one facility Nation-wide, and it has made a determination to allow for voluntary participation among convicted sexual offenders in that program.

Now, in our view that is a judgment that this Court's decisions clearly enable the Federal Bureau of Prisons to make, and we think that the Kansas prison officials have acted within their judgment to adopt a different kind of program.

As the therapists all acknowledge, denial is one of the biggest obstacles to receiving treatment in these kinds of programs, and I think it's important for the Court to recognize--

Unidentified Justice: Are you going to get around the answering my question?

Why did the Federal Government think it not a good idea to grant immunity in its program?

Mr. Garre: --Oh, the Federal Government reserves the right of the same confidentiality limits that the State does, that is, to deal with offenses that threatens institutional security, to deal with suspected cases of child abuse, to deal with suspected cases of harm to individuals within the prison or outside of the prisons.

Those confidentiality limits are clearly related to legitimate penalogical interests, and we think that the Federal Government--

Unidentified Justice: Only those things can be prosecuted?

I thought that it... that prosecution was available for anything that was disclosed, although there was confidentiality.

Mr. Garre: --That's right.

The confidentiality limits work in conjunction--

Unidentified Justice: Those are confidentiality limits, not immunity limits, right?

Mr. Garre: --That's right.

Unidentified Justice: So the Federal Government has not given use immunity for anybody in the program.

Mr. Garre: And that's absolutely clear from the waiver of the confidentiality statement that inmates sign before they enrol in the program, and we think that particularly where you're dealing with a program that does clearly promote legitimate penalogical interests in rehabilitating a class of offenders that poses a unique risk of recidivism upon their release, that States, the mere fact that the State doesn't grant immunity to inmates who participate does not provide an answer to the constitutional problem.

Unidentified Justice: The Feds--

--Well, does the Federal Government deprive the prisoner of any benefits or programs if he refuses to engage in the program?

Mr. Garre: The Federal Government doesn't apply the same incentive schemes that the State of Kansas does for participation.

Unidentified Justice: Are there any?

What are the incentives in the Federal program?

Mr. Garre: The incentives... the overriding incentive is, of course, the value of the treatment that the inmate receives.

Now, once a--

Unidentified Justice: But not... nothing is threatened or carried out in the Federal program to deprive the nonconsenting prisoner of any privilege, is that right?

Mr. Garre: --Well, that's true up front in terms of the incentive scheme.

Now, once an inmate is in the program, and if he chooses not to comply with the acceptance of responsibility goals, the inmate can be transferred back to his parent facility and that can be something on its record, but certainly up front--

Unidentified Justice: The choice to go into the program is strictly the inmates.

There's no coercion or inducement.

He loses nothing if he chooses not to go in, is that correct?

Mr. Garre: --That's the way the Federal Bureau of Prisons--

Unidentified Justice: Is it a more desirable facility?

Mr. Garre: --It is at a more desirable facility.

Unidentified Justice: So what he loses is, he doesn't... he isn't... he doesn't get out of the rotten place he's in to a better facility, right?

Mr. Garre: I think that's right, and I think it's important--

Unidentified Justice: But he doesn't lose a benefit that he currently has?

Mr. Garre: --Well, we don't... we think that the privileges that we're talking about in the case of Kansas, TV ownership, personal TV in the cell, visitation privileges beyond immediate family, and lawyers, canteen expenditures, these aren't the sorts of things--

Unidentified Justice: The right to work, the right to take other programs in the prison?

Mr. Garre: --The privileges are reduced.

I think that the chart that's on page 27 of the joint appendix explains how they're reduced.

Unidentified Justice: Substantial reduction in how much you can earn in prison, what jobs you can do in prison, isn't that so?

Mr. Garre: There is a definite reduction, and the flip side of that is Kansas reserves the higher privileges, the more modern facilities to those inmates who choose to take the constructive steps towards reentering society.

Unidentified Justice: Okay, but there's no--

--Mr. Garre--

--There's no reduction in the Federal system, is that correct?

Mr. Garre: There's no... the Federal system currently doesn't employ the same earnable privilege scheme that the Kansas prison does.

Unidentified Justice: We're trying to be specific about it.

As I think we think we understand it, the inmate cannot lose privileges that the inmate currently enjoys simply by exercising the option not to enter the program.

Are we correct?

Mr. Garre: That's correct, except that the inmate can be sent back to his parent facility.

Unidentified Justice: Yes, but you have said... you said in your opening statement, and you seem to be backing away from it, you said the Federal program is a voluntary program.

Mr. Garre: As is--

Unidentified Justice: It's not a voluntary program, at least not for the people like--

Mr. Garre: --Well--

Unidentified Justice: --That's sort of the issue here, isn't it?

Mr. Garre: --With respect, we think that that is the issue.

I mean, we're not talking about losing someone's job, or means of livelihood, the consequence faced by free individuals in the penalty cases that respondents relied upon.

We're talking about loss of institutional privileges that inmates have no expectation of enjoying once they enter the prison.

We think that the prison context is key to evaluating the Fifth Amendment claim in this case.

Unidentified Justice: Let me ask you this, Mr. Garre.

Maybe you can give me some help with the larger question that's bothering me and I think underlies Justice Ginsburg's first question.

The rule of unconstitutional conditions doesn't seem to apply in our cases, or hasn't been applied in the Fifth Amendment context.

Why is that?

Mr. Garre: Well, foremost because the Fifth Amendment says, compelled self-incrimination.

The amendment therefore recognizes that there are some sorts of pressures or conditions short of compulsion which would not meet the Fifth Amendment standard, and this Court's cases--

Unidentified Justice: Anything short of compulsion does not meet it?

That is to say, you can have two classes of inmates, those who've confessed and those who haven't, for all of prison life?

Mr. Garre: --Well--

Unidentified Justice: And isn't there a danger, then, of inducing innocent people to confess?

Mr. Garre: --I think that type of hypothetical is much different, much further afield than the program in this case.

Unidentified Justice: Well, the Fifth Amendment doesn't say inducing, does it, it says compelling.

Mr. Garre: It says compelling, that's exactly right, and that's supported by the text and history and purpose of the amendment.

Unidentified Justice: Mr. Garre, don't we in fact have two classes in all prison systems, those who have pleaded guilty and have gotten a relatively short sentence by reason of their guilty plea for a particular crime, and those who have refused to plead guilty and have gotten a longer sentence because of their refusal to do so, for the same crime?

Mr. Garre: That's--

Unidentified Justice: You have two classes in prison.

Mr. Garre: --That's absolutely--

Unidentified Justice: I mean, not just not being able to spend as much at the PX, but they're there for another 15 years.

Mr. Garre: --That's correct, and I think it's important for the Court to recognize that these sorts of earnable daily privileges like TV ownership, canteen expenditures, and housing in preferred facilities are among the most common tools the prison administrators use to manage order in the prison environment and to encourage inmates to take socially constructive steps.

This Court's cases like Sandin and Meachum and Bell v. Wolfish recognize that once someone is lawfully incarcerated, that brings about a necessary withdrawal of many rights and privileges consistent with the needs of day-to-day management.

Unidentified Justice: So is compulsion anything other than physical, or psychological?

Mr. Garre: Oh, sure.

Sure.

Unidentified Justice: So what would be... I mean, in... outside prison we know, at least this Court's precedent has said losing your membership in the bar, losing your job, that counts as compulsion, even though no one is putting you on the rack and screw.

Mr. Garre: And we think... we agree with Judge Friendly and others who have suggested that those cases lie at the outer reaches of this Court's Fifth Amendment jurisprudence, and we think that the denial of the sorts of common, routine privileges at issue in this case, TV privileges, canteen expenditures, don't even come close.

Unidentified Justice: How about loss of visiting privileges?

That could be crucial to a prisoner.

Mr. Garre: Well, it's not a complete loss of this case.

Again, the chart on page 27 of the joint appendix in the case that--

Unidentified Justice: Suppose it were.

I mean, there are some of these things that must mean all the difference in the world to someone who's incarcerated.

Mr. Garre: --Well, I mean, the further the Court goes out in that direction, then obviously at some point that program would be more difficult to defend under the Turner v.--

Unidentified Justice: That's the Kansas program--

Mr. Garre: --analysis.

Unidentified Justice: --They want to offer no limit on what they can do here.

They can prosecute for a new crime that might be disclosed, and they can deprive the prisoner of all visiting privileges and all kinds of things.

Mr. Garre: Well, with respect, we don't think that that's the Kansas program.

The Kansas program offers incentives by withholding privileges from those inmates who choose not to take socially constructive steps.

It's important to recognize that no one disputes that the rehabilitation program in this case is designed to serve legitimate penalogical interests.

There's widespread agreement the sexual offender treatment programs benefits inmates and society alike by enabling convicted offenders--

Unidentified Justice: But it just sounds like a basic difference.

As I understand your description in the one Federal program, it sounds like if the prisoner says no, I won't participate, the prisoner goes back to the facility of origin and can still, over time, earn various privileges, and Kansas is telling us in their scheme no, they reserve the right to deprive the prisoner of any privilege thereafter during his term in prison, and to put him in a more severe condition of incarceration.

Mr. Garre: --Well, again, I would disagree with the characterization of the Kansas program, but more importantly we think that the judgment made by the Federal Bureau of Prison and the judgment made by the Kansas prison officials are well within the range of decisions that this Court's prison decision--

Unidentified Justice: Even if I'm correct in my description?

Mr. Garre: --Your description presents a different situation.

Unidentified Justice: Thank you, Mr. Garre.

Mr. Wiltanger, we'll hear from... is it Wiltanger, or Wiltanger.

It's Wiltanger, Your Honor--

--Wiltanger.

Mr. Wiltanger, we'll hear from you.

ORAL ARGUMENT OF MATTHEW J. WILTANGER ON BEHALF OF THE RESPONDENT

Mr. Wiltanger: Mr. Chief Justice, and may it please the Court:

If you're a prisoner in Kansas and you commit a rape while in prison, you get the same penalties that Mr. Lile gets.

If you're a prisoner in Kansas and you commit arson in your cell or somewhere in the prison, you get the same penalties that Mr. Lile gets.

If you commit a theft, you get the same penalties.

Unidentified Justice: You mean, someone who commits arson in prison gets only those penalties?

He isn't prosecuted for committing arson?

Mr. Wiltanger: There could be a potential prosection if they turn him over--

Unidentified Justice: That might--

--Like a number more years in jail.

Mr. Wiltanger: --That could be, Your Honor.

Unidentified Justice: That's quite different.

Mr. Wiltanger: But under the State system they get moved down to the same level that Mr. Lile is, and in fact their punishment could be worse, because--

Unidentified Justice: And I expect the arsonist considers that he least of his worries.

When you say punishment, you assume your answer in your favor.

What I'd like to know is, the way they characterize it, basically, is that you come in without anything.

Indeed, your client went... he started off in a maximum security part of the prison with a medium security bed, or at least he could have done, and then what happens is, people who participate in treatment programs get bonuses, privileges, and if you don't participate in the treatment program, well, obviously you don't get the privilege.

Now, that's their characterization of it, basically.

Yours is, well, if you start treatment and you stop, you get punished.

Now, you're both describing the same thing, but it sounds as if it has very different consequences, and how are we supposed to say which is the correct description, the appropriate characterization?

Mr. Wiltanger: --I think the difference, Your Honor, is somewhat illustrated by the Government's attorney in that this is not voluntary, and that once you achieve a level... the State has set up a structure, Your Honor, under which if you're good, you do your job, you get to a certain level, and that's for everybody.

They have rules on this, and Mr. Lile did that.

He got to that level.

He had achieved something.

And what the State does is, it comes along and says, well, if you don't give up your Fifth Amendment rights, and if you don't tell us about all these other uncharged crimes, we're taking that away from you.

You'll no longer have it.

You'll lose your job.

Unidentified Justice: Is that true, or is it true that their system is, you will be awarded privileges as long as you participate in treatment, but our privileges are open only to people who participate in treatment?

Mr. Wiltanger: I would disagree with that, Your Honor.

Unidentified Justice: All right, because?

Mr. Wiltanger: Because people in the prison system who do not participate in treatment get the same privileges.

They get to get to that level, not just--

Unidentified Justice: Why did he lose his?

Mr. Wiltanger: --Why did he lose his privileges?

Well, he hasn't, technically, Your Honor, lost his privileges--

Unidentified Justice: No, no--

--What about non sex offenders--

Mr. Wiltanger: --Non sex offenders--

Unidentified Justice: --who have no ability to go into the program?

Mr. Wiltanger: --Have no ability, but other--

Unidentified Justice: That's a different category of prisoner.

Mr. Wiltanger: --But there could be other sex offenders in the prison who are not required to take SATP, for example, if there was a... if for some reason there was a statutory rape penalty they may not be required to take SATP, but yes, all prisoners in the system, sex offenders, murderers, arsonists, get a chance to get--

Unidentified Justice: What case from our Court, or what cases do you think most strongly support your position?

Mr. Wiltanger: --Your Honor, I think the cases of Garrity, Gardner, Cunningham support--

Unidentified Justice: We're talking about loss of job in a civilian society.

Do you think the denials here are of that consequence?

Mr. Wiltanger: --I do, Your Honor.

Unidentified Justice: Why?

Mr. Wiltanger: Specifically as to the job, Mr. Lile, if... any inmate in the prison system in Kansas, if they were, for example, in minimum security can work an outside job.

They obviously can't leave, but they could go pick up trash along the road and they could make whatever the employer is going to pay them.

Say... assume it's $7 an hour.

Maybe it's not that much.

They can keep that money.

If they don't keep all of it, they pay some to the prison, they pay some to victims' restitution, but if they lose their job, under the Kansas structure they will never get to work a job that is even equivalent to that.

Unidentified Justice: You're talking about a situation where in civilian life the person who loses his job loses his livelihood, basically.

Certainly that's not true in a prison.

This man is going to eat whether he does it or not.

Mr. Wiltanger: He will eat, Your Honor, but at the same time a policeman on guard or a policeman on duty could go out and get another job and earn something, an equivalent wage, or possibly even a better wage.

Mr. Lile can't.

Unidentified Justice: Mr. McAllister, I am very, very--

--Mr. Wiltanger.

Oh, I'm sorry, Mr. Wiltanger... I am very reluctant to extend our expansive notion of what constitutes compulsion to the area of criminal law and penology for this simple reason.

Why does the situation of your client differ from the situation of the person who's been arrested for first degree order, and the case is put to him by the prosecutor, you know, I'll go ahead with this prosecution for first degree murder.

You will be in prison for life.

On the other hand, if you confess that you are guilty of voluntary manslaughter, you'll get a 15-year term.

Now, has that person been compelled to plead guilty to voluntary manslaughter?

Mr. Wiltanger: No, they haven't, Your Honor.

Unidentified Justice: But that's... you know, either you do it, or you're going to get life.

Mr. Wiltanger: I don't... Your Honor, our view is not... is that that is not compulsion, because what is being extended to the murder suspect is a benefit, some way to improve your lot.

In this situation, for example, if the State wanted to... what they're doing... it's not Mr. Lile's case, because he was convicted before 1995, but if you're convicted after 1995 you can be stripped of your good-time credit.

They take it away from you.

If, on the other hand, the State decided that what we're going to do for those inmates who are participating in the program is extend their good-time credit or make their situation better, or give them a benefit, I don't think that's... I don't think that would be--

Unidentified Justice: It's almost a play on words, then.

Well, yes, just start them off in the worst situation and just say, you know--

--That certainly doesn't benefit prisoners as a class.

The Constitution surely can't turn on that, whether you characterize it as giving them a benefit or depriving them of a benefit they--

Mr. Wiltanger: --Well, the Constitution obviously prohibits any kind of sanction for the invocation of your Fifth Amendment rights.

Unidentified Justice: --Mr. Wiltanger, you said it in your brief, and I wanted to make sure that it really is your position.

You said, here is a man with a certain set of privileges.

They take that away, and that's compulsion, but if you started everyone... you didn't say everyone, you said every sex offender goes in at level 1, the lowest level, and never gets out of that unless he signs up for this program with all its terms and conditions.

That person you say is not being compelled because for him it's not achieving privileges rather than having privileges taken away.

Is that... do you adhere to that distinction, that the State of Kansas could do exactly what it's doing now if it said, Mr. Wiltanger and all sexual offenders, you go in at level 1 and you never get out of it unless you take this program?

Mr. Wiltanger: Your Honor, I do think that's certainly closer to the... that would be closer to a constitutional law.

That wouldn't be unconstitutional.

Unidentified Justice: Would be, or wouldn't?

Mr. Wiltanger: It would not be, Your Honor.

Unidentified Justice: It would not be.

Mr. Wiltanger: It would not be unconstitutional.

Unidentified Justice: That's what you said in your brief.

Mr. Wiltanger: It would not be unconstitutional.

That is our position.

Unidentified Justice: So the whole thing, then, it comes down to, subtraction is no good.

That doesn't work, but addition is okay.

I mean, you could give the person nothing in the beginning, and then the carrot is okay.

But you can't once... so this really says to Kansas, what you're doing, the whole program is fine.

The only thing is, you take this category of offender and you don't give them anything until they take this program.

Mr. Wiltanger: If they could set up a system or a structure or fashion some rules... obviously, they don't have that now... I don't think that would be unconstitutional.

Again, I do think there is... if the Court doesn't want to draw a hypertechnical distinction, that's fine, but the Court... the Fifth Amendment doesn't prohibit benefiting somebody or making their life better.

Unidentified Justice: So you think the Sentencing Guidelines would be invalid if, instead of the current provision, which gives you good points for acceptance of responsibility, it rather gave you bad points for refusing to accept responsibility.

Mr. Wiltanger: I do, Your Honor.

I do.

Unidentified Justice: If that's so--

--It's a constitutional distinction.

Mr. Wiltanger: I do believe so, Your Honor.

Unidentified Justice: If that's so, does this case... my understanding of it is that the prison created a new policy, and that policy was that everybody was at level 1 unless you participate in a recommended program, that that was their new policy, but that your client was grandfathered in at level 3 because he was in prison at the time, and so this case in your opinion turns on the fact that we're dealing with one of the few prisoners who was grandfathered in, and therefore it's a taking away rather than being a new prisoner who would have started at level 1, in which case it would have been added on.

Mr. Wiltanger: Not exactly, Your Honor.

Unidentified Justice: Because?

Mr. Wiltanger: Because all inmates... there were not just inmates at level 3 who were grandfathered in.

Every single inmate who enters the prison system can get to level 3, and as opposing counsel--

Unidentified Justice: Even without participating in a recommended program?

Mr. Wiltanger: --Absolutely.

Absolutely.

Unidentified Justice: But then they changed the rule and said, if you don't participate in the recommended program, you can't get to level 3.

Is that right?

Mr. Wiltanger: If... they have not changed the rule.

That is not the current rule.

The current rule is... and the way that SATP, or the sex offender treatment is structured is, you don't really become eligible to take it or forced to take it until about 2 years before your first parole date, so by that time... especially in Mr. Lile's case.

He's been in prison for 15 years... most inmates are going to be at that level 3, so while he was grandfathered in, most inmates, when they get eligible or are forced to take it are going to be at level 3.

There has been no change in policy.

The State is now not saying that you don't get from level 1 to level 2 unless you participate in SATP.

The law still is, if you're at level 3, you're going to level 1, and you're going to go to maximum security, and you're going to stay there forever.

Again, the reference I was making at the first is, the arsonist--

Unidentified Justice: That's... this is a product of the... they don't have the facility to give this course to everyone, so they say, when you're getting closer to release time, you get it, so most people who were in as sexual offenders don't have the opportunity.

Mr. Wiltanger: --Well, the State wants all... wants their sex offenders to take it.

There is a little bit of a concern response, but what they do is, they move people around to make sure that those people who are coming out--

Unidentified Justice: But not their first year, from what I understand.

Mr. Wiltanger: --No, Your Honor.

I apologize if I misspoke.

You would not be entering into sex offender treatment your first year, typically.

Unidentified Justice: But your brief described a system where, suppose we had all sex offenders, they go in at level 1 unless they take the program.

That's something that doesn't exist in the current world only because of a lack of resources, that Kansas can't give this program to all the people who would qualify, so it concentrates on the people who have served a substantial part of their sentence already.

Mr. Wiltanger: That is correct, and please understand, Your Honor, that that is only one possible solution that would allow the State to continue to run its SATP.

Obviously, another solution, as set forth by the Tenth Circuit, would be immunity.

Another thing, to follow the program that the Federal Government runs, make it voluntary.

Extract no penalties, and punish no one if they don't want to participate in the program, or take away the admission of responsibility, or take away the need--

Unidentified Justice: The second one is no solution.

The State wants people to take it.

They think it's important for the rehabilitation of the people and for the safety of society.

They do want to exert some pressure for people to go into it.

The question is whether this pressure is somehow unconstitutional when you deprive the person of nothing to which he's entitled, nothing to which he had any expectation of receiving when he goes into prison.

He could have been kept at level 1 for his whole period there.

Mr. Wiltanger: --Your Honor, I agree with that.

The one distinction I would make is, the State has set up a system by which prisoners understand that if they do certain things they get to levels.

While there may not be a constitutional liberty interest in it, they do know that if they follow the rules they're going to get to this level.

But as far as addressing your first point, immunity would be the result then.

If you had to have everybody in the program, if there was no other option, then you would extend them immunity, or the other solution could be, if you wanted everyone in the program, don't make them admit guilt to their crime.

Don't make them catalogue every offense that they've never been charged with.

Don't then use a polygraph test to sit down and ferret out and make sure that you've got every single past crime.

That would be one solution beyond simple immunity.

Unidentified Justice: But that's a solution that isn't consistent with the therapist's idea that this is how it should be done.

Mr. Wiltanger: Potentially, Your Honor.

I mean, the State has not always required a written admission of responsibility.

It's only been within the past 10 years that they've required that.

But you're correct, the therapists apparently believe that you have to have an admission of responsibility.

I'm not sure why it has to be a written statement where you fess everything up.

Unidentified Justice: But certainly the Constitution can't turn on whether or not a written statement is required.

Mr. Wiltanger: I... Your Honor, I agree, that is correct.

Unidentified Justice: Do you know... I asked your opponent this question... the extent to which other States have granted immunity to solve this problem?

Mr. Wiltanger: There are a couple of States that I know off-hand, Your Honor.

California and Kentucky have confidentiality provisions, privileges that keep all of this stuff kept within.

I don't believe it's a majority of the States that do that.

I wish I had a better answer.

I do believe Kansas is the only State that requires all this additional ferreting out of additional information.

Unidentified Justice: Well, if the... the programs are important, I take it, really important, and they're thinking that this is a very important way to run them, I give them that, all right.

Now, if I take your approach... and I find this very difficult.

I take your approach, and I try to distinguish between what's the add-on as a privilege and the subtraction as a penalty, now my concern would be, I'm now facing a nightmare of varying situations in prisons across the country, and varying efforts to say what's the status quo in respect to a particular prisoner, what is an add-on as opposed to a subtraction, and the arguments are infinite.

Now, what could you say that would relieve me of that concern?

Mr. Wiltanger: Well, first, Your Honor, if this Court doesn't want to get drawn into a benefit versus a punishment distinction, you don't have to follow that for this rule.

That is the position that we mentioned in the brief, that there is... that we feel there is a difference between a benefit and a punishment.

But I also don't think that there will be a rash of litigation.

The Supreme Court law, obviously, as you know, speaks to sanctions, speak to penalty, anything that makes your indication of your Fifth Amendment rights costly, and we've have that rule for quite sometime, and certainly there have been cases that have come down since then where you look at it and decide, well, is he being penalized, so again I'm... I apologize if I'm sticking to a hypertechnical distinction, but I do believe that the law would not really complicate matters, and that there is not going to be a rash of litigation where--

Unidentified Justice: Well, you didn't answer the question, though, and I have the same problem Justice Breyer does.

I don't know that we can distinguish between a benefit and a sanction.

I don't know that that's a line that at the end of the day is going to be a good line, so what other line do you offer?

Mr. Wiltanger: --Well, I do believe that sanction... or what you can look at is, you could look at this Court's ruling as to what is a voluntary statement in the Colman case, whether or not he's being able to make an unconstrained choice.

Now--

Unidentified Justice: Why not look to what Sandin looked to in... true, not in the context of the Fifth Amendment, but in another context, and that is whether you have been deprived of in prison is beyond what is the normal expectation of prison life.

Mr. Wiltanger: --Your Honor, I think that does a couple of things, and why we disagree with Sandin.

One is, I think you're creating a new rule, whereas I think we already have a fine rule that works in the Fifth Amendment arena, and if we're concerned about applying a Fifth Amendment rule in the prison system--

Unidentified Justice: No, no, we don't have a rule that applies in the Fifth Amendment arena with regard to depriving people of things to which they are not entitled as free citizens.

When you deprive someone of a job, he isn't entitled to that job.

You are depriving him of some liberty that he, in fact, possessed.

Your client has been deprived of no liberty to which he was entitled, not a single liberty to which he was entitled.

He could have been kept in level 1 for his entire period in prison.

He would have had no complaint at all, so I don't think it's parallel to the out-of-prison cases, so it seems to me we need a new rule for in-prison cases.

We could have a rule that so long as you haven't been deprived of a liberty to which you're entitled, there has been no compulsion.

That goes pretty far.

We don't have to go that far.

We could use a line that Sandin uses, so long as what's been done to you doesn't go below the normal expectation of prison life.

I mean, if they said, you either enter this program or you're going to be in solitary for the rest of your 15 years, you know, that's beyond the normal expectation of prison life.

But what your client has suffered is not that, it seems to me.

Mr. Wiltanger: --Your Honor, I would agree with you that Mr. Lile has no liberty interest at play here, but I would also suggest that there is no liberty interest in an at-will employment.

This Court has previously found that if you're an at-will employee, you have no protected property or liberty interest, and yet in those cases like the Gardner case and the Garrity case there has been found a Fifth Amendment violation.

There certainly is no liberty interest in being a political party officer in the Cunningham case, and yet we still have a Fifth Amendment violation.

Unidentified Justice: Don't call it liberty, call it a right.

Call it a right.

Mr. Wiltanger: That's--

Unidentified Justice: He's entitled as a free citizen to have that.

Your client is not entitled to be in level 3.

Mr. Wiltanger: --But the way that the State has set up its structure, they have made rules that they want everybody working.

He's entitled to have a job.

They want him to have a job.

The other reason I think Sandin doesn't work, Your Honor, is I do share some of the concern that was previously expressed by some of the other justices, is that there would seem to be no reason why the State couldn't walk up and down the hall, or up and down the cells with a note pad and suggest, well, what's your crime, did you do it?

I'm not really concerned at whether you have an appeal ongoing or not, I just want to know whether you did it, and oh, by the way, please let me know everything else you've done.

Unidentified Justice: Okay, so we'll add to it, there has to be... and the State of Kansas is perfectly willing to add to it, it has to be for a legitimate penalogical purpose.

Mr. Wiltanger: And certainly I would agree with what's previously said, that there could be a legitimate penalogical purpose in confessing, in coming clean, and that you will not be a model prisoner unless you take responsibility for your crime, whether it be a sex offense or whether it be a murder.

The other reason I think Sandin is not applicable to this case, and should not be extended to this case, is that this Court actually said in Sandin, while you don't have a due process right in a particular level of confinement, you do retain other protections such as the First and the Eighth Amendment, that if we move you, you get moved from one place to another, you still may be able to bring a constitutional claim, and that's what Mr. Lile's done.

He's been moved in response to a proper indication of his Fifth Amendment rights, and he has brought a lawsuit against the State.

He his actually following some of the dicta in Sandin.

I don't think Sandin should be extended.

I do think there is a potential for abuse.

Why would Sandin, if you extend it, why would it necessarily be limited to the Fifth Amendment?

Is it possible that a State, if it wanted, to go around and abridge First Amendment rights and suggest that that's--

Unidentified Justice: That's... you see, I was thinking about that, and the trouble with analogies, if you get one that's very close, you become uncertain again.

I mean, suppose that the actual analogy was, there is a treatment program, and the treatment program requires the prisoner to be isolated and not get any mail and not write any letters to the newspapers for a couple of months, and they say as part of this... and it's totally legitimate, and they say as part of this legitimate treatment program that you can't write your letter to the newspaper, that's part of the treatment, and moreover, we'll give you a privilege if you do it.

And now what happens is, they grandfather one person in.

Now I'm back in the same... you see, I'm back in the same dilemma.

Maybe it's not quite as bad, because you don't have the word compelled there, but--

Mr. Wiltanger: --Your Honor, I agree with the concern over the technical distinction between benefit and penalty, but I would say in that instance, again, keep in mind that Mr. Lile's not just the sole person who's been grandfathered in.

He's one of many who were grandfathered in, but--

Unidentified Justice: --It's not the grandfather... I mean, it is the grandfather, isn't it, in this case that makes him... you said there were some other things, and I'd like to be sure to have them in mind, that make it a penalty and not just the withholding of a privilege.

Mr. Wiltanger: --Assume for the moment Mr. Lile were not grandfathered in.

Unidentified Justice: Yes.

Mr. Wiltanger: Assume for the moment he arrives... assume he committed his crime last year, and he gets sentenced to 20 years to life tomorrow.

If he were to enter the prison system at intake level 1, in about 18 years from now the State will ask him to take the sex offender treatment.

That's how it's typically planned.

Mr. Lile will follow the rules that the State has set out, will follow the regulations, will be a model prisoner, as Mr. Lile actually has been, and he will get all the way to level 3.

Unidentified Justice: I see.

Mr. Wiltanger: He will get all the way.

He will be there, and then--

Unidentified Justice: And crash--

Mr. Wiltanger: --in 2019 they say to him, please take SATP.

Unidentified Justice: --Well, one difference, certainly between the First Amendment and its cases and the Fifth Amendment is that there is a compulsion requirement in order to invoke the Fifth Amendment, where the First Amendment doesn't have anything like that.

Mr. Wiltanger: I agree.

They are different.

They are different standards.

The only point that I was trying to raise, Your Honor, is that I think Sandin is a little bit of a dangerous--

Unidentified Justice: I suppose--

--That's what distinguishes the detriment and the benefit.

There's a compulsion, but then it's a detriment.

The First... Fifth Amendment doesn't say it shall be unlawful to bribe a witness to get him to testify.

The Fifth Amendment draws the line between benefits and detriments, doesn't it?

Mr. Wiltanger: --It does, and that's again... I'm sorry.

Unidentified Justice: So the Kansas program would be perfectly okay, in your estimation, if it provided that at the end of 18 years of 20-year sentences, or 2 years before the end of their sentence, all sex offenders shall be reduced, all sex offenders shall be reduced to prison level 1.

Mr. Wiltanger: No, Your Honor, I... I'm--

Unidentified Justice: Why not, because then... then if they choose to come in this program they will be getting the benefit of going back up to 3, but all of them go down to 1.

Mr. Wiltanger: --I don't think that would be constitutional, Your Honor.

Unidentified Justice: Why not?

Mr. Wiltanger: I think it would be set up as a way to get around SATP and a way to get around the invocation of your Fifth Amendment rights.

Unidentified Justice: Well, any--

Mr. Wiltanger: It would be an artifice.

Unidentified Justice: --Well, of course it's an artifice, but so is the whole thing, benefit versus punishment.

I mean--

Mr. Wiltanger: The one thing I would encourage this Court to look at is, look at how it affects itself on the prisoner, and again, if you're going to look at the Colman case, which is... again, is his choice an unconstrained one?

Look at what is done to the inmate here.

He's never going to get back to level 3.

The arsonist will get back to level 3.

The arsonist will not be moved to maximum security.

Mr. Lile is there forever.

Unidentified Justice: --It's the same in my hypothetical, though.

There's no compulsion on him.

After his 18 years in prison he's been knocked back down to 1.

There's no compulsion on him.

He gets a benefit if he joins this program.

Mr. Wiltanger: If it's entirely divorced from the program or the Fifth Amendment, Your Honor, then that potentially would be constitutional.

I would agree with that.

But unfortunately for Mr. Lile's case, it's not how the State has set up the structure if you get to a point, you follow the rules, you become a model prisoner, and then you get broken down.

That's what they're doing here.

And again the point I was trying to make earlier is, the punishment's more severe.

The Court calls... or, excuse me, the State calls this punishment.

They call it punishment.

When we're dealing with arsonists, when we're dealing with rapists, when we're dealing with somebody who steals something, they call that punishment, but they're unwilling to call that punishment here.

It's an incentive.

It's a benefit, or an extension of a privilege, but it's not.

Unidentified Justice: You're saying to decide what is compulsion you've got to look at how other people are treated, in effect.

The... in your answer to Justice Scalia you said, you know, if everybody got knocked down within 2 years, no matter what the crime, there wouldn't be the constitutional problem, but if only these people are, even though it's written into the scheme the moment they go in, there still would be a constitutional problem, and it's a comparative treatment criterion among prisoners in different classes of offenses that you're relying on, isn't it?

Mr. Wiltanger: Somewhat, Your Honor.

Unidentified Justice: Yes.

Mr. Wiltanger: Somewhat, and I agree, if the State had set up a strict--

Unidentified Justice: Then let me ask you to concentrate on that question a little harder, because you did say in your brief that if all sex offenders... not all prisoners, all sex offenders on day 1 were put in class 1, they could stay there, and never get out unless the carrot that was dangled was taken.

You did say sex offenders.

You didn't say all prisoners.

Mr. Wiltanger: --That is correct.

Unidentified Justice: So apparently you are not objecting to a distinction between classes of prisoners.

Mr. Wiltanger: No, Your Honor, you're correct, and again that's consistent with the view that we took between the benefit and the sanction.

Unidentified Justice: So there isn't a comparative analysis as between classes of prisoners depending on their offense.

Mr. Wiltanger: No, Your Honor, there isn't.

Unidentified Justice: Okay.

Mr. Wiltanger: I apologize if I misspoke.

Unidentified Justice: Now, I understood you the other way.

That is, that you agree it would be an artifice, but if the State did not knock down all sex offenders to level 1 2 years before they get out, then you acknowledge your client wouldn't have a case.

Mr. Wiltanger: Essentially, yes, that is correct.

Again, that is not what we have in place here, but that is correct.

That is correct.

The Fifth Amendment's a bedrock principle.

This Court says it's the mainstay of the criminal justice system, and there's no more powerful piece of evidence than someone's confession.

They ask a lot of Mr. Lile and other sex offenders.

They not only ask for the admission of guilt, they ask for everything, catalogue and give me everything you want, and despite what the State says, there really isn't a great deal of confidentiality.

These records can be subpoenaed.

They have to turn these records over if someone were to make an admission about a child sexual offense.

Further, these inmates are forced to discuss this stuff in group therapy session.

There's no confidentiality, and also to point out, the State has not appealed or contested that what it seeks is incriminating information.

This information, the Fifth Amendment itself, is far too valuable that the State can go around and force people to give it up and to extract penalties and punishment for that.

Thank you for your time.

Unidentified Justice: Thank you, Mr. Wiltanger.

Mr. McAllister, you have 3 minutes.

REBUTTAL ARGUMENT OF STEPHEN R. McALLISTER ON BEHALF OF THE PETITIONERS

Mr. McAllister: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to start, Justice O'Connor, by answering a question you raised.

Can the State simply take away all the privileges?

Absolutely not.

We recognize at some point it becomes compulsive, that this Court has always treated the Fifth Amendment compulsion inquiry as contextual.

We're simply arguing that in prison that's a very different context from being on the outside and losing a job or losing your law license.

At some point a court could decide, if we took away everything from Mr. Lile, that maybe that would be compulsive, so we're not saying we can take away everything, but what we're saying is, what we're using here is mild in the way of incentives in a prison.

We haven't taken away his right to spend money at the canteen, his right to have visitors, his right to earn money.

We've limited them, but none of that has been taken away from him completely.

That--

Unidentified Justice: They're saying with the cohort of prisoners you'll go along for 10 years, all of them earning points and credits, and then after 10 years, they're all up to level 3, and then because he won't go in the program, he alone is pushed back to level 1, and that's a big change, and he says that's taking away--

Mr. McAllister: --Yes.

Unidentified Justice: --something.

Mr. McAllister: Yes, but I mean, in our view there's an important penalogical reason for doing that, and it doesn't rise to the level of compulsion because we're in the prison setting.

That's why we think Sandin is helpful here.

Unidentified Justice: But why wouldn't the same penalogical reason justify taking away all privileges?

In other words, why did you make the concession you made at the beginning of your rebuttal?

Mr. McAllister: Because, all I'm saying is at some point even Sandin recognizes at some point things are atypical and they exceed the line, so although he could be moved to disciplinary segregation without a due process hearing, if he was put in solitary confinement, that might have been different.

There is a line at which it becomes too much.

Unidentified Justice: No, but if he were put in solitary confinement it would be justifiable, if at all, because of a penalogical reason for the way he had behaved in prison, creating dangerous conditions, et cetera.

Why isn't the rehabilitation of sex offenders who, if unrehabilitated will go out in the community and repeat their crimes, just as important a penalogical reason, and why wouldn't it justify taking away all privileges?

Mr. McAllister: Because the text of the Fifth Amendment says no person shall be compelled, and the question is compulsion, and at some point, if we took away everything, or we make him work 20 hours a day or... we could do things to him that I think the Court would have to say--

Unidentified Justice: No, but you're saying... if I understand your argument, you're saying, one reason why you should not characterize this as compulsion is the valid penalogical reason for doing it.

Mr. McAllister: --That's part of it.

Unidentified Justice: And my suggestion is, if there... if the State should say, look, the protection of these victims on the outside, who are going to be preyed upon by this person if not rehabilitated, is just as important as preventing people from setting fires in their cells, and therefore, if we take all privileges to the fire-setters, we've got an equally good penalogical reason to take away all privileges from the person who won't go into the program.

Mr. McAllister: And that I agree with.

We do have potentially--

Unidentified Justice: Then you could take away all the privileges.

Mr. McAllister: --Not all the privileges, because it has to rise to the level of compulsion, and if they are entitled to nothing in prison--

Unidentified Justice: That's the question.

Mr. McAllister: --That's the question, and--

Unidentified Justice: Give him some rebuttal time.

Go ahead.

Mr. McAllister: --That's all right.

I mean, that is the question, and again, the point that was drawn out here on the distinction between--

Unidentified Justice: --extended your time for 2 minutes, Mr. McAllister, because you really didn't have a chance to say much of anything, I'm afraid.

Mr. McAllister: --All right.

[Laughter]

Unidentified Justice: Thank you, Mr. Chief Justice.

The distinction here between a loss of privilege and the granting of a benefit in the State's view is simply a semantic game.

There really... I mean, from the inmate's perspective it just can't be any different, and if the notion is what we should have done is, we should all treat them as... we should treat them all when they come in as poorly as we can as long as we satisfy constitutional minimum, treat them as poorly as we can, and then make them earn everything, if that's all it takes, we can go back and do that, but that certainly doesn't benefit inmates as a class, and it's certainly not how prisons are run at this time in this country.

It would be a vast shift in the way prisons are administered.

So that's really a semantic game, and the key inquiry here is, are we compelling them, are we doing something sufficiently substantial to these inmates to override their will and really force them to make these admissions, again which are in a treatment context, not to law enforcement officials, confidentiality guidelines, we've never prosecuted someone for anything they've said in this program--

Chief Justice Rehnquist: Thank you, Mr. McAllister.

Mr. McAllister: Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Hubbell - Oral Argument

Fri, 09 Jan 2009 14:50:18 +0000

Case:

United States v. Hubbell

Media File:

99-166_20000222-argument.mp3

Related Transcript:

1999_99_166_argument.xml

Transcript:

Argument of Ronald J. Mann

Chief Justice Rehnquist: We'll hear argument now in No. 99-166, United States v. Webster Hubbell.

Mr. Mann.

Mr. Mann: Thank you, Mr. Chief Justice, and may it please the Court:

This case presents a question about the privilege against self-incrimination in the context of the compelled production of documents.

Specifically, does the privilege extend not only to the compelled testimonial communications, the witness' admissions that the documents exist, that they're in his position... possession and that that they respond to the subpoena, but also to other voluntarily recorded information that is contained in the documents?

Now, it's common ground that the contents of the documents were not privileged before the compulsion.

Although they would have been privileged under Boyd, your decision in Fisher rejected that view.

The issue before the Court today then is whether the way in which the Government obtained those documents through a compelled act of production taints what otherwise would not be privileged.

Now, respondent gives us a categorical answer that in any compelled testimonial admission of existence always automatically taints the contents of the produced documents.

Justice Kennedy: How... how long was the witness before the grand jury to explain all these documents?

Mr. Mann: It would have been a matter of just a few minutes.

And the... the questions that were asked in the grand jury are the questions that we ask typically pursuant to the U.S. Attorney's manual.

It's basically restating the things that are the implicit testimonial admissions that the Court identified in Fisher.

Justice Kennedy: He... he was there for just a few minutes?

Mr. Mann: The testimony was... was for just a few minutes.

I really don't know how long he was actually, you know, in the grand jury.

Justice Kennedy: I thought that he had to identify each document.

Obviously, what I'm concerned with is if you have a witness before a grand jury for any length of period, some grand jury would say, oh, he looks shifty or he's not looking me in the eye, all the things jurors think about.

And... and it seems to me there is a high degree of risk involved when you have a subpoena of this scope and of this sort, a risk of incriminating the person... person through his testimony.

Mr. Mann: Well, I think that that's true, but I think that in this particular case and I think in most cases where you have a production of documents, you have to distinguish between the things that the witness is forced to say, implicitly or explicitly... and in this case, I think those things were much the same... and the contents of the documents.

And in this case... and I think in many cases... we don't have to use and we didn't use in any way any of the things that he said.

I mean, all we're using is the information that was in the documents.

I think the... the key for us to this case is that it's not relevant that we got the documents from respondent.

Justice O'Connor: Well, but did you... did the Government know about the contents of the documents ahead of time?

Mr. Mann: No.

We absolutely did not know about the contents of the documents, but...

Justice O'Connor: You had... you had no idea what... what you were going to find.

Mr. Mann: Well, I mean, I think no idea is probably something of a stretch, but we certainly are not in a position to prove that we knew with reasonable particularity what the documents contained.

Justice O'Connor: And it was only by virtue of the production of the documents that you learned the facts that enabled you to then carry out a prosecution.

Mr. Mann: That's absolutely right, but I think it's important to... to remember that it's clear, in the cases that the Court has had since Kastigar, in Fisher and in the other cases interpreting the statute, that it's not a problem for the Government to show that we would not have the incriminating information but for the compelled act of production.

It's perfectly clear that there are circumstances in which we can force a witness to speak...

Justice O'Connor: What do you have to show?

That you had an independent source of the information or what?

What is it?

Mr. Mann: Well, I think... I think analytically that's a good way to put it.

Kastigar, of course, does say that the Fifth Amendment permits the Government to use things it gets from an independent source.

We look at Fisher as explaining that the act of production has a twofold nature, that the act of production itself is physical, non-testimonial conduct.

Justice Stevens: Mr. Mann, you didn't answer Justice O'Connor's question.

What do you have to show?

Mr. Mann: Well, I think what we have to...

Justice Stevens: Do you have to show anything?

Mr. Mann: I think what we... I don't think we have to show anything about our quantum of knowledge of the contents of the documents.

Justice Stevens: What do you have to show?

Mr. Mann: I think we have to show, once... under Kastigar, once a defendant shows that he's been compelled to testify, the burden shifts to us to show that we did not use any of his compelled testimonial communications.

And in this context...

Justice Stevens: No.

I meant do you have to show anything before you served the subpoena or to get the subpoena?

Mr. Mann: Oh, well, to get the subpoena, we have to satisfy the regular standard under R. Enterprises and then the regular standard under the Federal Rules of Criminal Procedure to show that we have a basis for issuing a subpoena.

Now, that standard is... is not difficult for grand juries to satisfy.

Justice Kennedy: Well, do you have to show anything in addition in order to satisfy the Fifth Amendment, that you had... that... that these are documents or... or items that everyone knows exists, something like that?

Mr. Mann: No, I... I think we do not.

I mean, if we don't... if we don't know anything about the contents of the documents, that does not in any way, it seems to me, affect the logical relation between the things he says when he's under compulsion...

Justice Kennedy: So, if everybody knows that the defendant, the target, has guns in his house, you can have a subpoena say bring all guns that are in your house to the grand jury.

Mr. Mann: I think that that's perfectly permissible under the Court's decisions in Schmerber.

I mean...

Justice Scalia: Well, how... how do you distinguish... what is magical about documents?

Let's... let's use a gun.

Suppose... suppose there's a murder.

You... you have the bullet that caused the death, and you... you also know that the defendant has purchased a gun of the same caliber.

You serve a subpoena on the defendant saying, turn over this gun which... which you... you are shown... we know you own it.

Are you entitled to get that gun?

Mr. Mann: Yes.

Now, let me explain.

See, that's exactly the point.

Justice Scalia: And then you get the gun.

You do a ballistics test on it.

You find that that is, indeed, the bullet that... that caused the murder, and... and this has...

Mr. Mann: Well...

Justice Scalia: not been compelled testimony?

Mr. Mann: The difficulty, of course, in that case is it might be that we would have difficulty in proving that the gun had been in the possession of the defendant, if that was relevant to us.

But if we independently can match up the gun to the defendant...

Justice Scalia: It's registered.

He bought it from a... you know, in a State where all handguns purchases have to be registered.

Mr. Mann: But, see, that goes to your initial thing.

You said, what's special about documents?

I think that what Fisher establishes is there's nothing special about documents.

What the Constitution does is it breaks up production of evidence into two classes of cases.

Justice Scalia: You're... you're accepting my gun hypothetical, and you say that the Government is entitled to demand of the defendant, who has squirreled away the gun... he's actually the murderer.

He's hidden the gun somewhere.

Mr. Mann: Well now, of course...

Justice Scalia: The Government can come to him and say, turn over the gun with which you committed the murder.

Mr. Mann: Well, I guess I'm...

Justice O'Connor: And then you can introduce it in evidence and use it against him at trial.

Right?

Mr. Mann: It's obviously more difficult for the Government if the Government subpoena says turn over the gun with which you committed the murder because they're going to have a heavier...

Justice Scalia: Well, they don't say that...

Mr. Mann: If we say...

Justice Scalia: turn over the gun.

Unidentified Justice: [Laughter]

Mr. Mann: Suppose that the subpoena says, turn over all guns in your possession.

Justice Scalia: Not all guns.

Just... just this gun.

Mr. Mann: This particular gun.

Justice Scalia: The .38 caliber automatic that you are shown to have purchased.

Mr. Mann: Okay.

I would respond to you with the hypothetical that Justice Stevens has in his dissent in the second Doe case where he... in... which the Court accepted as being the line that you've drawn in your cases past Schmerber.

If what we do is we tell the defendant give us the key to the strong box, it's full of incriminating documents, the answer is he has to give us the key.

If we tell him, tell us the combination to the safe, we can't make him do that.

What the Constitution says is it doesn't care what we get, it doesn't care where we get it, it doesn't matter if we get it from the defendant.

The Government has a right to every man's evidence, the Court in Kastigar emphasized.

What it cares about is how we get it.

If we get the evidence by forcing the defendant to tell it to us, if we force him to restate, repeat, or affirm the information, well, then we lose.

And so, if we make him tell us the combination to the safe, if we make him tell us the information we want, well, then we lose.

But if what we do is we force him to the physical act of handing it to us, that's permissible.

Justice Scalia: You can't make him tell you where the gun is.

You can only make him go get the gun and give it to you.

Mr. Mann: Absolutely.

The...

Justice Scalia: And you... you think that... that is a sensible distinction.

Mr. Mann: I think it's a distinction that the Court has had to draw.

If you look at the opinions in Schmerber and Kastigar, the Court looks at two important policies founded in our history.

One policy is the principle that the Government has the right to every man's evidence, and the Court talks about at great length about how important this is.

At the same time...

Justice Souter: Well, that's your... that's your Schmerber point, but I don't see how Schmerber is... is helpful to you here because Schmerber... the instance in which the individual, in effect, makes his bodily... body available for the drawing of the blood sample and so on, Schmerber does not involve the implicit representations that are made, for example, in this case when the documents are produced or in Justice Scalia's hypothetical when the individual implicitly indicates that, yes, the gun is in his possession by... by turning it over.

I... I don't see Schmerber as being help to you at all.

Mr. Mann: Well, Schmerber involves I think a unitary act of production, and according to the Court in Schmerber, it... that one was analyzed as wholly non-testimonial.

So, what we have today is an act of production that under Fisher has two natures to it.

It's a physical, non-testimonial act of production.

At the same time, it has implicit within it a testimonial communication.

So, the question for the Court is to decide, although the act is not privileged, the communications are.

And so what you have to decide is do the contents of the documents come from the testimonial portion of the act or do they come from the conduct.

Chief Justice Rehnquist: Well, I... I think the documents that were subpoenaed here may be an easier case for you than Justice Scalia's gun hypothesis because presumably virtually anyone has tax records and accounting records.

It's no confession to say that... to say that those exist and that they're in the person's possession.

Mr. Mann: And I... I think that goes to our... the second question presented, which the second question presented suggests that if the quantum of evidence that we have about the documents reaches a certain level, then... then it's... then it's a foregone conclusion that he has them.

And our view as to what Fisher says is that if we're asking for simple business records, the Fifth Amendment simply isn't implicated in the same way...

Justice Ginsburg: Mr. Mann, aren't you stretching Fisher?

Fisher was specific documents that had been in the hands of the accountant, specific documents that the accountant used to file tax returns, and says, turn those documents, lawyer, over to the grand jury.

They went from the client to the accountant to the lawyer.

But that was documents used by the accountant to file tax returns.

This subpoena is far more sweeping and seems to resemble the one in Doe I much more than the one in Fisher.

So, if we're just going by what the Court held in those two cases, Fisher, particular documents; Doe, broader documentary disclosure, generically described, as in this case, then one would say, well, if we just go on how the Court came out at the end of the line, in Fisher the... the Government lost... the Government won, and in Doe I the Government lost.

This case is more like Doe I.

End of the case.

Mr. Mann: Well, on the foregone conclusion point, that may be true if you look... if you look at it that way, but I think one problem with that analysis is that in Doe I, the Court, of course, did not itself examine the subpoena.

The Court's opinion says that it's accepting the factual findings of the lower court and accepting the lower court's view on that.

And that's not really the question that the Court addresses.

But in any event, in...

Justice Ginsburg: But the Court had the subpoena before it and it was one of these sweeping subpoenas that asked for all kinds of documents.

Mr. Mann: Well, with all due respect, I don't think it... I don't think that the subpoena here is significantly broader than the subpoena in Fisher.

But I think the most important point is to emphasize the relation between the foregone conclusion doctrine that's at the heart of Justice O'Connor's question and your question, and the principal question that... that's presented in this case because our... our main submission is that even if we would not prevail on the foregone conclusion doctrine, so even if this production includes a testimonial incriminating admission, the... the important point in the case is to decide whether the contents of the documents are derived from that communication.

And on that point, I think we're on very solid ground under Fisher and Doe.

Justice Kennedy: Let... going just back to the gun hypothetical, I give you two hypotheticals.

Subpoena A: produce all the guns that are in your possession and it's generally known that the man has lots of guns

Subpoena B: produce the Smith and Wesson .38 with ivory handles and the initial K

Difference in those two cases?

Mr. Mann: No.

Our view is that in either case we can get him to produce... in either case he's required to provide the guns to us.

Now, we have obtained from him a slightly different testimonial admission in the two cases, but in most prosecutions, it strikes me that... that neither of those will be...

Justice Breyer: No, no.

There's a big difference.

Justice O'Connor: Well, Mr. Mann, let... let me ask you this in relation to the gun.

If you were to get a search warrant and go out and search the residence for a gun, what would you have to show the magistrate to get that warrant?

Mr. Mann: Well, I think we probably would have to show... well, we obviously would have to show probable cause, and the question is what would probable cause require.

And I think in most cases probable cause would require considerably less than... than...

Justice O'Connor: Some reason to think that he has something that you might find that's relevant to the crime.

Mr. Mann: Absolutely.

Justice O'Connor: And do you think you have to show more or less to issue a subpoena to say, give me all your guns?

Mr. Mann: We obviously have to show less to get a subpoena, but the reason for that is because when you get a search warrant, you're going out into somebody's house.

You're intruding in somebody's reasonable expectation of privacy in their home, and so the Court has articulated a relatively high standard for that relatively intrusive method of obtaining information from citizens.

Justice Souter: Yes, but what the... what the person being searched really cares about is the fact that you are intruding for the purpose of getting evidence.

The concern of the person who objects insofar as the criminal courts are concerned is exactly the same in each instance.

Mr. Mann: But the concern of the Constitution is entirely different.

The Constitution is not the least bit concerned if we prosecute and convict somebody by evidence that we compulsorily obtain from him.

That is completely legitimate.

That is emphasized repeatedly...

Justice Stevens: Mr. Mann, could I just supplement the question Justice Kennedy asked about a specific gun and all guns in your house?

What if you don't have any idea that a person ever owned a gun or had it?

Could you serve him with a subpoena and say, please produce all the guns in your possession...

Mr. Mann: I... I think it's...

Justice Stevens: just because he's a suspect in the case?

Mr. Mann: Well now, see, once you say that he's a suspect in the case, I think at that point you're saying that we had some reason to suspect him, which probably is enough reason to issue a subpoena.

You can't say...

Justice Stevens: Would you have to prove that you had some... what does it take to be a suspect in the case?

Mr. Mann: Well, it takes...

Justice Stevens: You just have a hunch.

This fellow... he's a bad guy.

He might have some guns.

Can you go out and serve a subpoena on him?

Mr. Mann: Well, yes.

I mean, I think... I think the hunch is the R. Enterprises standard.

Justice Stevens: And ask for all his guns?

Mr. Mann: Under the R. Enterprises standard, I think that having a hunch is more of less what the standard is.

I mean, the Court... the Court looks at this and says grand juries traditionally have had very broad investigatory powers, and the... the requirements of knowledge up front to get to issue subpoenas are relatively small.

The... the key for us is this is not a testimony of communication.

The act might include one...

Justice Stevens: But if... if it's that broad, why has it been so rarely used in the past?

Mr. Mann: Well, it's not at all clear I think that it's been rarely used.

I mean, for one thing, in your own decisions you'll see that we've been up here several times since Fisher presenting more or less the same question to you.

It's the... the implications of it, compelled production of documents, have been up here several times.

Another problem you would see, to the extent that it's not used as frequently as you might expect, is of course the law is really quite uncertain, and anytime you do this, you're likely to be faced with what the Court discussed in Braswell, which is once we force him to say something that includes any compelled testimonial admission, we're faced with a Kastigar hearing which is going to slow down a prosecution.

If we can obtain evidence in a way that we know is completely permissible, which we can't do in this area ever at the moment, then we don't have to worry about a Kastigar hearing.

I mean, I think the real problem is that the law is very uncertain, but even with the uncertainty, there have been enough prosecutions that this issue has been coming up to the Court repeatedly since Fisher.

Justice Ginsburg: Mr. Mann, may I ask a question about the... initially the Fifth Amendment privilege was claimed.

You said, okay, we give you immunity.

We give you use immunity.

If I understand your position, what you gave... the immunity that you gave immunized nothing, and if that's the case, wasn't there a certain deception involved in saying, okay, yes, he's got Fifth Amendment privilege?

We give him immunity, and then the immunity shields nothing.

Mr. Mann: Well, I don't think that that's right.

I think that the immunity we gave is the immunity that the statute grants, and the genius of the statute is that it avoids the necessity to litigate at the time of a production over the...

Justice Ginsburg: What did... what did the immunity give to Hubbell?

Mr. Mann: I mean, in this particular case, the immunity would prevent us from introducing into evidence or using in our investigation the fact that Mr. Hubbell possessed these documents.

It would prevent us from using in the investigation...

Justice Ginsburg: Well, isn't it obvious they're the papers that were used to... to bill, to make tax records, that... his phone records, his... his schedule, that they obviously came from him?

Mr. Mann: Well, if it's evident... if it's evident on their face that they came from him, then that might mean we don't need to use his testimonial communication against him.

But that's a harder question that's not presented here because here we have no need to establish that these documents came from him.

These are not offenses as for which his possession of these documents has the least bit of relevance.

If we had to establish his possession of these pieces of paper, we would have something of a Kastigar problem, and...

Chief Justice Rehnquist: for his production of them.

If... if his production of them is incriminating, he...

Mr. Mann: That would be... that would be a problem for us.

I mean, my general theory would be we would lose.

If we had to prove that he possessed these documents and his production was the best way to do it, we would lose.

I mean, assume, for example...

Justice Souter: The very fact that you were using these documents rests upon the fact that... or... strike that.

The very fact that you were using the information that you gained from these documents rests upon the fact that, on the production of the documents, their existence and authenticity were represented to you.

You are not directly proving possession, and you are not directly proving the authenticity by use of the production.

But what you do use you are using as a result of the production which has these implications.

And so, it seems to me it's very difficult for you to argue that the use that you are making is not a use which is dependent upon the representational aspect of the production.

Mr. Mann: I think it's actually quite easy for us to argue, and I think it's easy for the reason that you said.

We're using these things because he produced them to us.

He produced them to us in the same way he would produce a handwriting exemplar or something else.

I think what... that the heart of the case is just a judgment call.

Did we force him to give us the documents, which is perfectly permissible?

Or did we force him to tell us the information?

We didn't force him to tell us anything of value.

Everything of value in the documents is information that was voluntarily recorded long before we brought compulsion to bear.

Chief Justice Rehnquist: Your position then is basically that your... this situation is no different for you than if you had found the documents on the doorstep of the Justice Department.

Mr. Mann: Yes, that's exactly right.

If I may reserve the rest of my time.

Argument of Michael R. Dreeben

Chief Justice Rehnquist: Very well, Mr. Mann.

Mr. Dreeben, we'll hear from you.

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:

To properly assess the effect of a grant of use immunity in a documentary subpoena context, it's necessary to separate out the two components of what is compelled by the subpoena.

First, the subpoena compels a physical act, the transfer of documents from the witness to the Government.

Second, the subpoena also compels the witness to make certain implicit testimonial admissions about that the responsive documents exist, that they are in his possession, and that the production to the Government will transfer the documents to the Government.

Now, the witness is protected by the Fifth Amendment only with respect to the testimonial components of the act of production, not with respect to the physical act itself that transfers the documents.

Justice Scalia: Mr. Dreeben, I... I gather that means that your answer to my hypothetical earlier would be that there is no Fifth Amendment problem in requiring a person to turn over the handgun which... which was used in the commission of a murder.

Mr. Dreeben: No, Justice Scalia.

I think that there's a substantial Fifth Amendment claim that the witness has, that possession of that handgun is highly incriminating, and as a result, the witness can assert the Fifth Amendment and require the Government to give the witness act of production immunity if the Government wishes to enforce the subpoena.

The question then becomes...

Justice Scalia: But the only thing the Government can't use is the fact that he turned it over to prove that he possessed it.

The Government could come in and show the record that he purchased it and... and leave it to the jury to surmise that he still continued to have it at the time of the murder.

Right?

Mr. Dreeben: Well, the Government has to show that it does not use anything testimonial in the investigation that leads up to the prosecution.

Justice Scalia: But the Government could show at the trial that the murder was committed with a handgun that had been purchased by Mr. X.

Mr. Dreeben: It would need to do at least that, and it would also need to show that it did not make use, as an investigatory lead, of its knowledge that this witness possessed the particular item.

Justice Breyer: Could we go to the other part of Justice Kennedy's hypothetical?

I understand and will assume you're right on two things.

I assume that the problem of knowing that these... there's a reasonable possibility that the person has material like this is a kind of Fourth Amendment problem that may be in rule 17 and some cases of the Court, but don't concern us here.

I put it to the side.

I'm also putting to the side and assuming you're absolutely right that you can get the single gun that you know exists and just give him the production immunity.

But there's a second assertion here.

One is the assertion I have the thing.

Okay?

We give him use immunity for that.

The other is the assertion the thing exists.

Now, in respect to that statement, the thing exists, it creates a problem only where you are subpoenaing hundreds of things because if you ask for a year's worth of tax checks, it's certainly very possible that four of those checks, unbeknownst to you, turn out to be pure gold.

That's why they have a subpoena, and you didn't know before he brought these into the room that those four checks existed.

All you asked for were all his tax records.

Now, every case that we've had, including Doe I, which is what Justice Ginsburg pointed out, suggests that there is a Fifth Amendment problem in that statement, the thing exists.

And where the Government doesn't independently know that the thing exists, they are using the testimonial response to the question, does that thing exist.

Now, that seems to me to be the problem that the Second Circuit, this circuit, that Doe I, that our Fisher use of the word existence, et cetera is... is focusing on.

And I'd like you to focus on that.

Mr. Dreeben: Justice Breyer, I think, first of all, the... the notion that the subpoena respondent says, the thing exists, is not a meaningful statement and is not one that the Court's cases actually contemplate as being the testimonial statement.

I realize the Court has said that, but the only meaningful statement that a respondent can make is that responsive documents exist, which is a way of correlating what the subpoena calls for with what the documents actually say.

And the Government may not use... make use of the mental act that the witness uses to correlate documents with a subpoena.

That is most significant and most important when the document itself is, for example, a list of numbers and the witness produces it under a subpoena specification that calls for give me all itemizations of your income.

In such a case, we cannot interpret the document or make use of it without taking advantage of the witness' mental faculties.

Justice Kennedy: Do you know how long the defendant was before the grand jury?

Mr. Dreeben: I don't.

This was not our prosecution, Justice Kennedy.

Justice Kennedy: Well, I... I understand that, but I... I can't seem to get an answer.

We were told, oh, just a few minutes, but it takes me more than a few minutes just to read through the whole subpoena on page 47 and 49.

And I understood that they asked him with reference to each paragraph of the subpoena, have you produced these documents, which means that there's a very high risk that you're going to be probing the perception, the cognition, the memory, the knowledge of this witness.

And we're talking about risk here, it seems to me, in large part.

Mr. Dreeben: Well, I think the case comes to the Court, Justice Kennedy, on the assumption that the... the actions of Mr. Hubbell, sitting in a grand jury, do not change the essential testimonial representations that were made.

Justice Kennedy: The case comes before the Court on the assumption that you can use this subpoena of this breadth in every drug prosecution that the Government brings, as I understand it.

Mr. Dreeben: And the result of that is that we would be...

Justice Kennedy: And I think there's a very serious problem of prosecutorial overreaching with that.

Mr. Dreeben: The problem exists if we make use of what is testimonial and what the witness is compelled to do.

If we do not make use of what is testimony, we are not trenching on Fifth Amendment values.

Justice Kennedy: It's very odd to me, in response to Justice O'Connor, that... the counsel has conceded, as he must, that you have to have probable cause... you can now have a witness come live, a target of investigation, before a grand jury with less than probable cause.

That's astounding to me.

Mr. Dreeben: Well, we can bring witnesses before the grand jury with less than probable cause.

The very purpose of the grand jury is to determine whether probable cause exists.

Justice Kennedy: Well, I... I understand that, but with reference to requiring him as well to bring documents covering a tremendously broad description.

Mr. Dreeben: I think that the essential position that we have taken responds to the fact that in Fisher and in Doe this Court overruled the doctrine of Boyd under which the notion was that the contents of the documents themselves were testimonial and that a witness was being compelled to testify by producing those contents.

What Fisher and Doe require the Court to do is separate out that which is testimonial in an act of production from that which is not.

Justice Kennedy: Would your argument change if the defendant were before the grand jury for 3 hours responding to every paragraph of this subpoena to see if he complied with it?

Mr. Dreeben: The argument would change only insofar as there is a greater chance that more testimony that is protected would go before the grand jury and potentially influence...

Justice Kennedy: So, we are concerned with risk.

Mr. Dreeben: Yes.

Justice O'Connor: Mr. Dreeben, I... I had the... have been making the assumption that the Government makes use of section 6002 immunity provisions to compel testimony from witnesses largely in a third party context, in other words, getting evidence that way from a third party to use against another criminal defendant.

How often does the Government turn around and prosecute the very person who is given the immunity under section 6002?

Is that unusual at all?

Mr. Dreeben: It is relatively unusual, but far from unheard of.

And one of the principal reasons why it is not done is that under our view of the law, there is still a significant Kastigar issue that the Government has to get over.

If we show that we made no use whatsoever of any of the act of production, but only the contents of the records, that's fine.

But it may be difficult to show that if the witness produces records that take on their meaning only from being correlated with the subpoena or would suggest that he had knowledge of their contents.

The witness...

Justice O'Connor: Well, and... and the language of section 6002 itself is sort of broad: No other information compelled under the order or information directly or indirectly derived from it may be used against the witness

I mean, that's pretty broad.

Mr. Dreeben: This Court said in Kastigar and also in United States v. Apfelbaum, which is at 445 U.S. 115, that 6002 was intended to go as far as but no further than the Fifth Amendment.

What the...

Justice O'Connor: Well, certainly that language goes pretty far, doesn't it?

Mr. Dreeben: Well, the language I think was written against a backdrop of Boyd in which the contents of the records were protected, and so if the witness were compelled to produce private papers that he had created, that created a Fifth Amendment issue.

But the intent of the statute and this Court's construction of it has been to make it coextensive with the Fifth Amendment.

Argument of John W. Nields, Jr.

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

Mr. Nields, we'll hear from you.

Mr. Nields: Thank you, Mr. Chief Justice, and may it please the Court:

My client was indicted in this case at least in part as a result of the fact that under immunity he told the truth.

The thing that he told the truth about was what documents he had that were responsive to the subpoena.

If he had been untruthful and withheld those documents, the independent counsel wouldn't have had them, but instead he told the truth, turned them over, and the independent counsel used those documents to bring this case.

Chief Justice Rehnquist: Well, he didn't have much choice except to tell the truth, did he, when he was before the grand jury?

Mr. Nields: No, and that was because he had asserted his Fifth Amendment privilege respectfully declining to state whether he had any documents, and he was compelled to state whether he had any by the immunity order.

And then, Your Honor, that's absolutely right, but... but with an immunity order, the Government is required to hold the defendant harmless from the truth that he tells.

And in this case, instead of holding him harmless, they used the documents that he revealed to them, truthfully revealed to them, to bring this indictment.

And, Justice Kennedy, in response to your question, he... he was in front of the grand jury for 17 minutes.

And the reason he was there for that length of time is that they needed him to tell them what documents he had that were responsive.

Chief Justice Rehnquist: Mr. Nields, what... what is your position with respect to your client's production?

What... what was the incriminating aspect of it?

Mr. Nields: The incriminating aspect of it was that he told them what documents existed and were in his possession...

Chief Justice Rehnquist: You mean he... he told them by speaking not just by producing?

Mr. Nields: Both.

In all cases a witness will answer the question, the effective question, what documents do you have?

What incriminating documents do you have that are responsive?

He answers that question by producing or not producing documents.

Chief Justice Rehnquist: And how did... how did that incriminate him?

Mr. Nields: It led the Government to get incriminating documents.

Chief Justice Rehnquist: Well, but is that the test?

I don't think that's the test laid down in Fisher.

Mr. Nields: Fisher doesn't deal, of course, with immunity, but what Fisher says is that the... the testimony that is involved... and the first thing that it says is the testimony involved is that the documents exist and are in the witness' possession because everybody who responds to a subpoena is required to say... tell the Government what documents he has.

Justice O'Connor: What if the Government subpoenas income tax... copies of income tax forms and records?

They don't ask for incriminating anything.

Give me your income tax forms and records for years 5 and 6.

Mr. Nields: I would have to answer that in two parts.

The first question is whether there's testimony, and that depends on whether possession of income tax returns is a foregone conclusion.

Justice O'Connor: Well, for most people it is.

Is it or isn't it?

Mr. Nields: It may be.

The case... the only case I'm aware of, decided in the courts of appeals, has held that it's not a foregone conclusion that the person has kept a copy because there is no legal obligation to keep a copy.

But... but that is a close question I would submit.

But in answer to, I think, Mr. Chief Justice's question, the point is this, that the Fifth Amendment since 1892 has protected a person from making disclosures or statements that...

Chief Justice Rehnquist: The Fifth Amendment was adopted in 1791 I think.

What happened in 1892 to change it?

Mr. Nields: Counselman against Hitchcock was decided, Your Honor, and this Court...

Chief Justice Rehnquist: Well, that presumably interpreted the...

Mr. Nields: Yes.

Chief Justice Rehnquist: the law...

Mr. Nields: Yes.

Chief Justice Rehnquist: rather than changed it I trust.

Mr. Nields: You're correct.

I believe since the adoption of the Bill of Rights.

But this Court pronounced in Counselman that a witness is privileged from giving testimony that is innocuous in itself that will lead the Government to obtain other incriminating evidence.

And... and what... what happens in these document subpoena cases or the gun subpoena case, is that it may or may not be incriminating for the witness to say this document exists, but if the document is one which will cause him to lose his liberty and if the Government only gets it from him because he truthfully discloses in response to the subpoena that it exists, then that is privileged...

Justice Kennedy: Well, why doesn't that apply to your... to the income tax question that Justice O'Connor said?

Give me your income tax return for the year X.

Mr. Nields: It does.

Justice Kennedy: The Government says, we've lost ours.

Give us yours.

Mr. Nields: It does.

The reasoning applies perfectly unless...

Justice Kennedy: Well, but then...

Mr. Nields: the Court holds that it's a foregone conclusion that he possessed it, in which case Fisher...

Justice Kennedy: The Court holds... I stipulate to that.

It's a foregone conclusion you've got a copy of your tax return.

Mr. Nields: Then there's no testimony involved at all, so we don't even get to the question of incrimination.

Justice Kennedy: Well, but that... that just didn't fit your... your nice summary that you gave, it seemed to me.

He is being convicted because he truthfully complied with a subpoena and they wouldn't have had the information otherwise.

So, then your... your test doesn't quite work.

Mr. Nields: It... I believe it does, but it needs a little more explanation.

The Court in Fisher says that the key question is are you relying on the witness' truth-telling to get the document, and Fisher says if it's a foregone conclusion that he has it... in Fisher, the... the parties had admitted that they had it... if it's a foregone conclusion, then you're not relying on the witness' truth-telling.

Justice Breyer: All right, but in any case where it's not a foregone conclusion, that this particular document... I mean, why stop there?

That the words on this particular document are precisely what they are.

In any case where it isn't a foregone conclusion... i.e., where the prosecutor doesn't already know... on the line that is being taken with this word existence, it becomes testimonial and the... the Fifth Amendment privilege applies.

Mr. Nields: Correct.

Justice Breyer: All right.

Well, then we're back overruling Fisher...

Chief Justice Rehnquist: Yes.

Justice Breyer: back to Boyd, and not only Boyd, well beyond Boyd because exactly... as Justice Scalia pointed out, it's exactly the same thing whether it's a document or not.

It's exactly the same thing with any piece of evidence whatsoever.

The only time that you would be able to compel a person to produce that evidence in court is when it is a foregone conclusion that he already has precisely that thing.

Mr. Nields: Yes.

Justice Breyer: That's very far-reaching and... and seems... is there a... I mean, suppose the Court decides we're not going to overrule Fisher.

I agree that the logic of it is right in that word existence in Fisher, but you can't sort of assume Fisher intends to blow itself up.

Mr. Nields: Well, Fisher... Fisher is I believe quite clear, that the... the relevant language in Fisher is... is the language that says that the existence and possession of the documents are a foregone conclusion.

Justice Breyer: Yes, that's right.

Mr. Nields: And therefore... but it's the therefore... we're not relying...

Justice Breyer: Good, but we're on exactly the same track.

Mr. Nields: Okay.

Justice Breyer: And what I'm searching for and have been unable to find... we're absolutely eye to eye as far as the logic is concerned.

And I'm searching.

Is there some kind of test in respect to existence that isn't as weak as the possible... reasonable possibility test which may be a rule 17 or Fourth Amendment test under the Fourth Amendment or something like that, but isn't as strong as foregone conclusion and gives some meaning to these cases?

That's what she's... that's what they're driving at by reasonable particularity.

Mr. Nields: Yes.

Justice Breyer: But... but that's a sort of illogical compromise.

I mean, what do we do?

Mr. Nields: I think what you do is... I would do two things.

One, the principle is whether you're relying on the truth-telling of the witness to find out that the document exists.

That's the principle.

Are you relying on the truth-telling of the... that's testimony.

That's Fifth Amendment language: testimony, truth-telling

That's the issue.

And if you are, if you're compelling a person to tell the truth with the consequence that he loses his liberty, you have a Fifth Amendment problem.

Chief Justice Rehnquist: Well, why do you emphasize truth-telling, Mr. Nields?

I mean, a witness can speak falsely and still comply with the subpoena, and the... the remedy is perjury not some immunity.

Mr. Nields: The... the reason I emphasize truth-telling, Your Honor, is that the Court has done so in Doe II.

It specifically talks about the question of whether you are relying on the witness' truth-telling to... to gain the evidence you seek.

And if the answer is no, the Fifth Amendment doesn't apply; if the answer is yes, it does.

It's also in Pennsylvania against Muniz.

Both majority and dissent said the Fifth Amendment applies if the witness is confronted with the options of truth, falsity, or silence.

And...

Chief Justice Rehnquist: Well, that's the cruel trilemma, which I think we've paid little attention to in the last few years.

Mr. Nields: It was absolutely adopted as the standard in Pennsylvania against Muniz.

And, indeed, I believe the dissent also referred to the truth-falsity-silence predicament.

And our fundamental position under the Fifth Amendment is this, that where the Government puts a person to two choices... one, tell the truth and risk losing your liberty; and two, commit the crime of falsification and maybe go free... the Fifth Amendment applies and extends to privilege of silence.

Justice Kennedy: What... what was the document involved in this case that's the least ordinary sort of document?

Was there a diary or something like that or?

Mr. Nields: I'm not sure I could pick out the least one, Your Honor.

Justice Kennedy: The... the subpoena...

Mr. Nields: There was an enormous...

Justice Kennedy: is... is enormous.

Mr. Nields: quantity.

There were retainer agreements.

They weren't regular.

For some clients there were some, for some there weren't.

There were documents reflecting the receipt of fees.

They were also not regular, but... but there were a... a number of those.

There was work product.

The Government was trying to find out whether he did work for various clients, so they wanted to know if there was work product.

Chief Justice Rehnquist: Well, supposing this is an... perhaps it wasn't... an ordinary income tax fraud prosecution.

I mean, are... are you saying that the Government cannot subpoena tax returns and accounting returns and check records from... from someone who it suspects of committing fraud?

Mr. Nields: It absolutely can serve the subpoena, but if the witness claims the Fifth Amendment privilege, and... and he is... he is compelled to disclose the existence under immunity...

Chief Justice Rehnquist: Then... then Fisher becomes almost meaningless.

I... I had thought that Fisher was a... a very significant repudiation of Boyd.

It says that these documents are not incriminating.

But by your test you simply come around by another door and achieve the same result as Boyd.

Mr. Nields: I think the answer is no, Your Honor, and this is the reason.

I agree Fisher is a very significant case.

And what it does, by holding that the contents of the documents are not privileged, is it means that the Government can get them from a variety of other sources, and the owner and the person who's writing is on the document has no objection.

And that's what the Government usually does.

In a small business...

Justice Souter: Well, when you're... you're saying contents, you mean the information contained, in other words, the information does not become immunized.

Mr. Nields: Correct.

Justice Souter: Okay.

Mr. Nields: Correct, so that the Government... this is what they usually do.

They'll... they'll go to a small business and they'll give a subpoena to a bookkeeper or a secretary or a... a document custodian or... or they will go to the other... if it's a... if it's a communication, they go to the other party to the communication and get the letter.

If it's a financial transaction, they go to a bank.

They get it from there.

If it's another financial transaction, they go to a credit card company.

Justice Souter: But the fact that the information is in the document subpoenaed, that remains subject to privilege.

Mr. Nields: No.

Justice Souter: No.

You can use the information when you get it from all of these other sources.

Mr. Nields: Yes.

Justice Souter: But you can't use the information as a result of its being contained in the subpoenaed document subject to the immunity grant.

Mr. Nields: Yes, but I would put it a slightly different way.

You can't compel over an immunity claim.

You can't compel the subject of the investigation to tell you what documents exist and what documents...

Justice Souter: Yes, I... I understand.

Justice Breyer: You couldn't require a handwriting example, I guess, could you?

Mr. Nields: You can command a handwriting example because this Court has said so.

Justice Breyer: Well, but I mean... no.

But you're pushing the logic of it.

Unidentified Justice: [Laughter]

Justice Breyer: I mean, really your truth-telling test is simply the obverse side of the foregone conclusion coin.

Mr. Nields: Yes.

Justice Breyer: I mean, they're both the same.

Mr. Nields: Yes.

Justice Breyer: And... and so, is there any fall-back position?

That is to say, you... you pushed the logic for what it's worth.

I... I see that.

And is there any position that would reconcile these cases?

Like I'm almost tempted to say you couldn't force people into lineups on that.

Mr. Nields: Well, but...

Justice Breyer: Maybe you... maybe you could force them into lineups.

Mr. Nields: Yes, let me address that.

I think it's important.

Justice Breyer: Lineups might be... yes.

Mr. Nields: Let me talk about that whole line of cases, and of course, we know Schmerber is the beginning of it.

The point about Schmerber is that the witness there could be the biggest liar or the biggest truth-teller in the world, and the Government will get the same blood.

It is not relying on the truth-telling of the person at all.

Justice Kennedy: How about a voice exemplar?

Give me all of the money.

This is a robbery.

And then he can't disguise his voice.

Mr. Nields: That's the assumption I believe.

It's not stated, but the assumption is they can't disguise their voice.

And therefore, a voice... a voice exemplar works regardless of the truth-telling of... of the witness.

Justice Scalia: And handwriting...

Mr. Nields: And handwriting.

That's the hardest case in this line in... in my opinion, but... and the Court doesn't explain the handwriting decision.

It... it states in one... in one sentence, a mere handwriting exemplar, in contrast to the content of what is written, like the voice or the body itself, is an identifying physical characteristic.

Justice Souter: But if the handwriting can be disguised, then the handwriting example would not be in the Schmerber line and it would be in the document...

Mr. Nields: It's the hardest case.

However, I believe most handwriting experts will tell you they think they can... they think they can identify even an attempted disguise, that there's...

Justice O'Connor: Well, what about business records, Mr. Nields?

Mr. Nields: Yes.

Justice O'Connor: Everyone knows that a business or a law firm keeps records.

It keeps records of who the clients are and what the billings were and what was paid.

It's a foregone conclusion that they do.

Can the Government subpoena those business records and fall within the bounds of Fisher?

Mr. Nields: I think the answer is no, and I'd like to give two reasons.

The simple, easy one I think is that Doe I held no.

And reason number two is the one that Justice Breyer proffered which is you may know that a person has records, but let's just assume there is one out-of-place, smoking gun document in there.

The Government will only get it if the witness tells the truth and produces not only all the others, but that one too.

And, you know, we... we civil litigators run up against this all the time.

Responding to a subpoena is a truth-telling process, as Wigmore said.

It relies on the witness' moral obligation to tell the truth.

When we have a big civil document demand, you... you get all these documents from the company and you have to hold the specs of the subpoena up against the documents and you have to answer the question for every document, and it's a true/ false question.

Is this document called for by this subpoena?

That's truth-telling.

In a civil context...

Justice O'Connor: Well, but in the context of a law firm's records of clients and billings and payments, I don't... I don't see that that necessarily follows.

Mr. Nields: Well, in a law firm, first of all, the Fifth Amendment privilege doesn't apply at all.

That's Bellis I believe.

And... and second, in any large business of any size at all, whether it's incorporated, unincorporated, partner, it is almost 100 percent of the time going to be easy for the Government to... to find a document custodian, someone who has access to the documents who deals with them on a regularized basis from whom they can be subpoenaed.

It's...

Justice O'Connor: So, you're saying the Government should have called in some file clerks from the law firm and gotten them.

Mr. Nields: Well, in this case they didn't have that option because in this case my client's business had terminated over a year earlier.

It was a very... there's no real facts in the record on this, Your Honor, but it was a... essentially a one-person business.

But in any event, it was over.

He was incarcerated at the time and the Government simply had no idea whether he had any records or not.

Justice O'Connor: Did the Government have enough here to get a search warrant?

Mr. Nields: No, and they said so on the record.

Justice Breyer: Could... could... suppose you were to say hypothetically, I see the logic, I see it's there in the cases, I see it's there in the purposes of the Fifth Amendment, but still, wouldn't it work a revolution in what prosecutors and defense lawyers alike have come to expect that the Fifth Amendment stands for?

And revolutions don't take place ordinarily in the law even if the... without them it's a little illogical, at least... et cetera.

Could you expand a little on that theme?

Mr. Nields: Yes.

I'd like to make two points in response to that.

One is it wouldn't do a revolution at all.

It would leave things virtually exactly the way they've been for the last century.

There has been no time at which, over a Fifth Amendment claim, unincorporated business records have been routinely obtained by the Government.

The only time they've been obtained... and they've virtually never been obtained under immunity.

The only time...

Chief Justice Rehnquist: Mr. Nields, let me interrupt.

You're saying then that Fisher really didn't amount to much of anything in overruling Boyd if the thing has been the same for the last century.

Mr. Nields: Fisher made a... a very important clarification that so-called private documents, unincorporated... documents of an unincorporated entity, documents which might have the subject's writing on them... Fisher made it very clear that those documents were obtainable in any one of a variety of ways not involved compelling self-incrimination, including a search warrant.

And Andresen was a... a decision this Court handed down the same term as Fisher which relied on Fisher that said a search warrant can be issued for a person's documents even though they may have private writings on them.

So, Fisher was an important case, but if the question is, has the Justice Department or... or anyone been routinely subpoenaing from the subject business records, the answer is no.

Justice Kennedy: Well, that's... I took Justice Breyer's question as... as being susceptible of that answer as well, that the revolution is... is if we sustain a subpoena of... of this breadth.

But the question is what's the rationale we have for drawing the line between something that's very specific and something that's this broad?

I... I'm not sure what the rationale is.

Mr. Nields: Well, the rationale again gets back to... you asked the question are you relying on the witness' truth-telling to get the evidence that you seek, and if the answer is yes, then the Fifth Amendment applies.

Justice Breyer: I see that.

Now, apply that to outside the business record context, and is there a revolution there?

I mean, after all, the same principle will apply whether it's a business record or any other kind of evidence that the... the person asserting the amendment has in his possession.

Mr. Nields: I mean, pardon me for saying so, but I think that prosecutors all over the country would fall down dead if they thought they could subpoena guns or... or incriminating bloody underwear or... or...

Justice Breyer: Booty from hijacking or something.

Mr. Nields: Yes.

I mean, it just... it's completely unthinkable.

And I would say this, too, while we're on the law enforcement topic.

One of the things... not only is this immunity that they have issued here, according to their understanding of it... not only is it ineffective from my client's point of view, ineffective to meet the constitutional requirements, but it's ineffective from their point of view.

It's... it's ineffective for law enforcement purposes.

The wonderful thing about immunity for... for law enforcement is that it removes the witness' incentive to lie because it holds him harmless.

It promises him he won't be prosecuted because of anything that turns up.

Justice O'Connor: Well, but... but in... in the first Doe case, it was business records, and the Court said, fine, you can compel those and use the contents against the producer.

Mr. Nields: I don't think so.

I think in the first Doe case the Court held that the act of production is privileged, and the Government, therefore, didn't get the documents.

Justice O'Connor: But it went on to say the contents of voluntarily prepared private papers enjoy no privilege.

Mr. Nields: Yes, and... and that was also said in Fisher, and it's a very important and very true thing.

But it doesn't answer the question of... of what do you do if the testimony you do compel leads you to documents.

And... and in the example analogous to a gun where the... the crucial document is some smoking gun document, is possessed by the witness, if the witness is asked orally in the grand jury, is there such a document, where is it located, and the Government goes and gets it, the document isn't privileged, but it's absolutely tainted and couldn't possibly be used.

But getting back to the point I was making before, this kind of immunity says to a witness, witness, you are obligated to turn over all your documents and if there are incriminating ones in them, I will use them to indict you.

That is a terrible kind of immunity.

It's not only ineffective for the Fifth Amendment, but it's ineffective law enforcement, that you want to be able to tell the witness, now that you're under immunity, you should give me all your documents because the only way you can get into trouble is... is to respond falsely.

Justice Breyer: Well, you can do that.

I mean, if they want to give him that immunity, they will.

Mr. Nields: Well, they can do it but not from State prosecutors I believe.

Justice Souter: You're saying it does convert law enforcement into an essentially inquisitorial system...

Mr. Nields: It does that too.

Justice Souter: if you can do that.

Would you explain the foregone conclusion doctrine to me?

And the reason I... I ask is this, to focus the question.

Even in the case in which it is a foregone conclusion that some document exists, when the Government subpoenas it and the subject of the subpoena hands it over, there at least is implicit testimony there that the... the witness agrees the document exists.

But... but more precisely, it... there's always implicit testimony that the witness has the document under his control and... and that's why he's able to... to hand it over.

So that even in the case of the foregone conclusion, there is some testimonial aspect, and I suppose it's a testimonial aspect to which the... the later use of the... of the document can... can be traced.

And yet, under the foregone conclusion doctrine, we say, well, it can be used anyway.

The reason I guess is not that there is no conceivable use of testimony, but that because of the foregone conclusion, it's understood that the Government could get it anyway by a different means, e.g., a Fourth Amendment search warrant.

Am I right that it's kind a... a harmlessness analysis?

Mr. Nields: I think it has a harmlessness element to it.

And I understand Your Honor's point that there is, of course, nonetheless, some implicit testimony.

But I think the point of it is that the Government isn't relying upon the witness' truth-telling.

Justice Scalia: Well, then in... in the gun case, you really think the gun case comes out differently if, you know, the... the suspected murderer has shown the gun to somebody and then he runs off to a cabin in the woods?

He has been surrounded ever since there... then.

You know that the gun exists.

You know that he has it somewhere in the cabin in the woods.

He could have buried it somewhere.

Search and seizure.

You're never going to dig it up.

In that case, since it's a foregone conclusion, you can require him to turn over the gun?

Mr. Nields: I'm not sure, Your Honor.

Justice Scalia: It seems very strange to me.

Justice Breyer: Why not?

Why not?

Mr. Nields: It does seem strange.

Justice Breyer: Sorry.

Just in answering it, why not?

Mr. Nields: Well, the... the only case in this Court in which the foregone conclusion doctrine has been applied is one in which the parties conceded the existence and location of the documents and argued only about their contents.

The... the... in Doe, the Court said existence and location was not conceded, and they held the Fifth Amendment applied.

In this case my client went in front of the grand jury and expressly stated I decline to say whether or not there are any documents responsive...

Justice Scalia: So, you have some doubts about the foregone conclusion qualification.

Mr. Nields: It may only...

Justice Scalia: It may be an admission qualification rather than...

Mr. Nields: It might but I would suggest this.

This is not a very good case to try to figure out exactly and announce exactly what the rule is, exactly where you draw the line.

Fisher said these cases should be decided on their own facts.

And here we have no facts.

The Government did not even argue foregone conclusion in the lower court.

There's no factual record about what they knew, and there won't ever be one because, as the Court knows, the case is essentially over.

Justice Souter: But had there not been that stipulation, I take it the court of appeals left it subject to a... a remand to get into that very issue.

Mr. Nields: Get into that.

And they... they adopted a test which had previously been adopted by the Second Circuit, which is the Government had to know the documents' existence and possession with reasonable particularity.

That is a test that two courts of appeals have adopted.

It strikes me as a more relaxed test than foregone conclusion which is a pretty extreme sounding phrase.

Justice Souter: It sounds more like the Fourth Amendment.

Mr. Nields: It does sound more like Fourth Amendment.

But what I would suggest here is that... that this isn't the case to lay down the exact standard, only to say that the analysis has to be are you relying on the witness' truth-telling to get the document.

And if you are, it's testimony and the Fifth Amendment applies.

And if you only got an incriminating document because the witness told the truth and you got it under immunity, you got to hold the witness harmless.

You have to leave him... as Kastigar said, as emphatically as Kastigar could say, you must leave him after immunity in just as good a position as he would have been if he had been left to his Fifth Amendment privilege.

And under Doe, Mr. Hubbell had a Fifth Amendment privilege not to tell whether he had any of these documents.

Justice Souter: Well, you would... you would... I guess it would be sufficient for you if we said if the Government is relying, then the Government has a... if it still claims that it can use, it has a burden to come forward and show something.

And maybe it would be enough for the Government to say, in fact, it's not relying that... to... to rebut that conclusion.

But it might also be enough if the Government came forward... and this was the suggestion I was making... and said we don't have to rely because we could have gotten it by Fourth Amendment means.

Mr. Nields: Yes.

Justice Souter: But we don't... we don't choose between those possibilities.

Mr. Nields: That's correct.

The problem with the second one here is that the Government... I expected, frankly, in the district court that we would get an inevitable discovery position or legitimate independent source position, but they didn't proffer either.

They simply conceded that they had used the information compelled under immunity to bring this indictment.

Chief Justice Rehnquist: Thank you, Mr. Nields.

Mr. Nields: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Portuondo v. Agard - Oral Argument

Fri, 09 Jan 2009 14:50:16 +0000

Case:

Portuondo v. Agard

Media File:

98-1170_19991101-argument.mp3

Related Transcript:

1999_98_1170_argument.xml

Transcript:

Argument of Andrew Zwerling

Chief Justice Rehnquist: We'll hear argument first this morning in Number 98-1170, Leonard Portuondo v Ray Agard.

Mr. Zwerling.

Mr. Zwerling: Mr. Chief Justice, may it please the Court:

A prosecutor should be permitted, even for the first time on summation, to ask the jury to consider the credibility-influencing factor of a defendant's nonsequestered status as a witness, particularly where, as here, it's conceded that such status creates a risk of truth-distortion.

Allowing this would be consistent with the century-old principle articulated by this Court that for impeachment purposes, when a defendant takes the stand, he's to be treated like any other witness.

This rule materially advances the fundamental goal of truth-seeking that this Court has often spoken about.

Justice O'Connor: Mr. Zwerling, would the prosecutor have been entitled to a jury instruction that the jury could draw an adverse inference by virtue of the fact... as to guilt by virtue of the fact that the defendant had sat in the courtroom the whole time?

Mr. Zwerling: The prosecutor would be entitled to a jury instruction that as for impeachment purposes the jury could consider the effects, if any, of the defendant's status as a nonsequestered witness.

I mean, this Court has recognized since biblical times... or, not this Court has recognized since biblical times.

[Laughter]

Justice Stevens: May I just interrupt?

I'm not sure you answered Justice O'Connor's question.

You said he could get a different question, but could... would the prosecutor be entitled to the instruction that she suggested, that they may draw an adverse inference from the fact?

Mr. Zwerling: The short answer is no, Your Honor, the prosecutor would not be entitled to an instruction that as to guilt the jury could consider the effects, if any, of the defendant's nonsequestered status.

It would solely be for impeachment purposes.

Justice Kennedy: Could the prosecutor make that remark without correction from the district... from the trial judge if the defendant's testimony on the stand was in all respects consistent with the testimony... with his previous statements that he'd given to the police, et cetera?

Mr. Zwerling: Could the prosecutor still make that remark?

Justice Kennedy: Yes.

He said, now, ladies and gentlemen, you know, this man's been here, and so his testimony is pretty well rehearsed.

If... would it be proper for the trial judge to say, ladies and gentlemen of the jury, I just want you to know that the testimony he's given has been consistent with his previous testimony.

Could the trial judge interrupt to that effect?

Mr. Zwerling: The prosecutor in the first instance, judge, would not be able to stand up without any factual predicate whatsoever, make the argument to the jury that the defendant's testimony is in some way tailored, simply by virtue of the...

Justice Kennedy: It has to be a factual predicate?

Mr. Zwerling: To make an affirmative claim of tailoring, Your Honor, but I just want to state as a threshold principle that just, much in the way that a jury can consider a defendant's interest in the outcome, you do not need a factual predicate, other than the defendant's exposure to the testimony of the witnesses, to throw out that question to the jury for its consideration as the trier of fact to determine what, if any, impact that exposure had.

Chief Justice Rehnquist: The prosecutor wouldn't have much incentive in the case proposed by Justice Kennedy.

I mean, that argument is not going to go over with the jury if you say, look, this guy was sitting here all the time and was able to tailor his testimony, and yet his testimony is entirely consistent with all the other witnesses.

Mr. Zwerling: It simply wouldn't be a rational argument, Your Honor.

Justice Scalia: What if it is... I'm going to give you a really hard one, Mr. Zwerling.

What if the prosecutor knows that his testimony, that the defendant's testimony is entirely consistent with a confession that was given earlier and that has been excluded?

Mr. Zwerling: If the prosecutor, under those circumstances, stood up and said to the jury that a statement, or... well, this is assuming that the prosecutor relied upon that confession at trial.

Justice Scalia: No, I'm saying it was excluded and...

Mr. Zwerling: If it's excluded, Your Honor, and the prosecutor stood up as an officer of the court and told the jury that the testimony at trial was the first time that the defendant has stood up to give this particular version, then it would be error.

It wouldn't be error under Griffin analysis.

It would be another form of prosecutorial...

Justice Ginsburg: But that wasn't the question, Mr. Zwerling.

As I understand your position, you seem to be qualifying it, but I'm not sure, that in any case where the defendant takes the stand, so he's putting his credibility in issue, in any such case... you said something about the peculiar facts of this case, but I thought your position was, defendant takes the stand, the prosecutor legitimately in summation can say, ladies and gentlemen of the jury, please take into account that defendant was the only witness who sat through this entire trial and therefore could conform his testimony to what others said.

Mr. Zwerling: Yes, Your Honor.

In every case where the defendant has been exposed to the testimony of other witnesses, like any other witness, he's subject to the ills of nonsequestration, and therefore it is proper for the prosecutor in every case to throw that question of fact out to the jury in much the same way as a prosecutor is permitted, as this Court has sanctioned, to make the argument that a defendant's interest in the outcome may have affected his credibility as a witness.

Justice O'Connor: Mr. Zwerling, in New York I take it there's a statute that requires the defendant to be present at his trial.

Mr. Zwerling: That is true, Your Honor.

Justice O'Connor: That isn't true in every State, I assume.

Mr. Zwerling: I can't speak for every State, but it's certainly true in Your Honor...

Justice O'Connor: Well, then, how do you deal with the Doyle case?

Mr. Zwerling: A couple of ways, Your Honor.

First of all, this particular issue is not properly before the Court.

It wasn't raised in the trial court, wasn't raised in any State appellate litigation, or even in the Federal courts below.

It was raised for the first time in respondent's brief before this Court.

Justice Scalia: It's not a different issue.

It's just an additional argument.

I mean, he has raised the issue of the improper comment by the prosecutor.

Mr. Zwerling: Well, in New York, Your Honor, a defendant can waive his presence at trial upon application to the court.

Now, while it's in the discretion of the trial court to grant that application, nonetheless that's an application that could be made by a defendant, and we're not in this particular case in a position to know what the trial court would have done, because no such request was made.

If such a request was made and even denied, then perhaps a defendant could request a jury instruction to alert the jury...

Justice O'Connor: But your argument is a little extreme in the situation where, by State law, the defendant has to be there, and any time the defendant testifies, even if it's totally consistent with his prior but excluded confession, you say the prosecutor can nonetheless get up in summation and try to use his presence at the trial against him.

Mr. Zwerling: Well...

Justice O'Connor: I mean, that's... how do you justify...

Mr. Zwerling: Your Honor, for the reason that it's not possible to detect how a witness' testimony might have been affected by the nonsequestered status.

Ironically, the Second Circuit in the Jackson case, which we cite in our brief, stated that it's virtually impossible to say how a person's testimony would have been affected, and consistency with pretrial statements is just one factor that can go into discerning whether or not some confabulation took place, or some alteration, intentional alteration took place.

Chief Justice Rehnquist: You say it's pretty much like... I think you've already said, like the trial judge's charge, you may take into consideration the interest of every witness in the outcome of the proceedings, and that would apply to the defendant as well as to any other witness.

Mr. Zwerling: In the interested witness context, Your Honor, there may very well be defendants whose testimony is unaffected by their interest in the outcome.

Nonetheless, they are subjected to an interested witness charge and it's up to the jury, as a trier of fact, to determine what effect, if any, that individual's interest had on their reliability as a witness.

Similarly, here...

Justice Ginsburg: Mr. Zwerling, there was an interested witness charge in this case, wasn't there?

Mr. Zwerling: Yes, there was, Your Honor.

Justice Ginsburg: So this is doubling, underscoring, or putting it in bold face, for one witness only.

The interested witness charge in this case covered the defendant, as it might have covered other witnesses.

Mr. Zwerling: They cover different subjects, Your Honor.

The interested witness charge goes to a motive to lie.

Exposure to the testimony of other witnesses goes to an opportunity to lie and, even not just lie, there's an issue of confabulation, innocent alterations in testimony, replacing facts...

Justice Ginsburg: Yes, but in answer to the Chief's question you equated the two, and now you're telling us, well, they are indeed different, and you are entitled, rightly, to both.

Mr. Zwerling: I'm not... I'm saying, Your Honor, I'm using the interested witness charge scenario by analogy.

Just as a prosecutor doesn't have to prove or lay a factual predicate that the defendant's interest actually affected his testimony in order to get a charge, a prosecutor doesn't have to actually prove that a defendant's testimony was altered, either innocently or purposefully, as a predicate for getting...

Chief Justice Rehnquist: Were there witnesses other than the defendant in fact sequestered in this case?

Mr. Zwerling: In this case, all of the other witnesses was sequestered, Your Honor.

Chief Justice Rehnquist: Were sequestered, yes.

Mr. Zwerling: But again, similar to an interested witness scenario, in most cases, or in many cases the defendant is the only witness who has an interest in the outcome.

A charge, an interested witness charge isn't singling the defendant out because under the facts of that particular case he happens to be the only one with an interest in the outcome.

They're singling out the defendant in that context, and in the context before the Court, because there's some external factor, either a defendant's interest in the outcome, or his exposure to the testimony of witnesses that may affect his credibility.

Justice Souter: Well, with respect to the exposure to the others, I'd like you just to go back to Doyle for a minute.

One of the strands of reasoning in Doyle was that the defendant's post Miranda silence was... I think it was ambiguous.

I forget what adjective was... insolubly ambiguous, I think was the phrase that the court used.

Don't we have an insoluble ambiguity problem in the predicate for the comment in issue here, because to the extent that the testimony of the defendant is, in fact, congruent with that of other witnesses save at some, you know, crucial exculpatory point, we don't know, and I presume in the absence of some affirmative evidence going to the truth or falsity of particular statements, there's no way for a jury to know whether in fact that congruence is the result of truth or the result of tailoring.

So that if a comment like this, let alone an instruction on this point, is given in the absence of some affirmative reason in the evidence to think that there was particular tailoring on a particular point, it sounds to me as though the ambiguity, as in Doyle, would simply give the jury kind of a wild card.

What's your answer to that?

Mr. Zwerling: It's two-pronged, Your Honor, one specifically dealing with the facts in Doyle, and then a more general response.

In response to the Doyle prong of the question, in Doyle in both footnote number 10 of that decision and in the dissenting opinion written by Justice Stevens, it was pointed out that the prosecutor in that case used the defendant's, or the apparent inconsistency between the defendant's testifying at trial and his silence after receiving Miranda warnings as proof of guilt.

It was referred to in footnote 10 that the prosecutor implied guilt, and it was dealt with more specifically in the dissenting opinion that the prosecutor asked the jury, or suggested to the jury that the testimony, or that inconsistency was inconsistent with innocence.

Justice Souter: Well, that's true, but whether we're dealing with something that goes to impeachment or whether we're dealing with something that goes to guilt, there is the problem of ambiguity, and it's the ambiguity that's bothering me.

Mr. Zwerling: Yes, Your Honor.

In terms of the ambiguity, however, in this particular... with this particular credibility influencing factor, it's been recognized that it does have effect, have an effect on a witness who's exposed to the testimony of other witnesses, and...

Justice Breyer: I don't understand why... maybe I've got the assumption wrong, but are you conceding that there was no cause on the part of the prosecutor to mention this?

I mean, I counted six or seven times in which the defense attorney emphasized the word consistency, three times in which he said... or maybe it was two or three, the defense attorney says, the defendant told a totally consistent story.

He didn't use the word totally, he says a consistent story, and about three or four times in which he said the prosecuting witness' story was inconsistent, so the prosecutor gets up and says, sure it was consistent, he heard all the witnesses.

I mean, is this... are we supposed to decide this case on the assumption there was no cause for the prosecutor to say, well, he heard the witnesses, that's why he was consistent.

He just heard the defense attorney say he was inconsistent.

Well, you know, how are we supposed to decide this case?

I don't understand.

Mr. Zwerling: If Your Honor is referring to the specifics of this case, the...

Justice Breyer: I mean, am I not supposed to look at the specifics of the case when I decide the legal question?

Mr. Zwerling: In terms of the particular facts of this case, the prosecutor's remarks were entirely proper.

Justice Breyer: All right.

Is that... then why aren't you arguing that?

Mr. Zwerling: They're proper for two reasons, Your Honor.

a) they were invited by the remarks of defense counsel, which resounded from the outset of the trial in his opening statement, through his summation, where he argued that the mere fact that the prosecution witnesses were exposed to one another, therefore they tailored their testimony, therefore they fabricated this story against the defendant, and under the particular facts of this case, it was proper for the prosecutor to stand up and say, well, they may have been exposed to one another, but the defendant was exposed to everybody.

Those remarks were invited by the remarks of defense counsel, and the prosecutor's remarks in this case were a reasonable response, and she didn't...

Justice Ginsburg: But on that point the Second Circuit disagreed with you and said, if there had been in this case an attempt to show that particular pieces of information were tailored, so be it.

But you were making a generic claim, and you answered in response to me that that is your position, that in every case where the defendant takes the stand, that is the rule the prosecutor can bring out in summation, and now you seem again to be retreating from that.

But I got from your brief, I got from your arguments up until now that you are taking that position, defendant testifies, it's legitimate for the prosecutor to bring out that he heard all the witnesses.

Mr. Zwerling: Your Honor, to make myself clear, for the prosecutor to make the generic argument, to throw the question of fact out to the jury you should consider the effects of the defendant's exposure to testimony.

You don't need a factual predicate more than his exposure to the testimony of others.

In this particular case...

Justice Scalia: He doesn't have to be invited, you're saying.

Mr. Zwerling: Yes, Your Honor.

In this particular case, the prosecutor did more than throw out that question of fact to the jury.

The prosecutor made an affirmative statement that the defendant tailored, he altered purposefully his testimony, and where a prosecutor is going to do that, there has to be some factual predicate.

Either the remarks have to be invited, or as she also did, she laid out a factual predicate.

Justice Ginsburg: Am I right that in New York a defendant has no right to bring out on rebuttal prior consistent statements that the defendant made before he heard the witnesses?

Mr. Zwerling: If they are made after the motive to lie arose.

Justice Ginsburg: Well, when would that be in a case like this?

Mr. Zwerling: In this particular case, the defendant could not have brought out his prior consistent statements, Your Honor.

Chief Justice Rehnquist: Well, is there any reason why the constitutional doctrine here should follow the niceties of the law of evidence on when you can impeach witnesses?

Mr. Zwerling: No, Your Honor.

I think a clear distinction should be drawn.

There's the constitutional analysis which the respondent in the Second Circuit had been relying upon, and then there are rules of evidence.

The line should be drawn, and it has been drawn by this Court in the past, and I just want to point out that under the facts...

Justice Stevens: This is not a rule of evidence.

This is prosecutorial misconduct in his comments, in argument.

No evidentiary question is presented, is it?

Mr. Zwerling: But the question is whether or not Griffin penalty analysis is implicated by virtue of such comments, and the answer is no, because the prosecutor's comments in no way created the suggestion that the jury should take those comments and rely upon them as proof of guilt in this particular case.

Justice Stevens: I'm not sure.

Mr. Zwerling: I see the white light has gone on.

I'd like to reserve some time for rebuttal if there are no questions from the Court.

Argument of Jonathan A. Nuechterlein

Chief Justice Rehnquist: Very well, Mr. Zwerling.

Mr. Nuechterlein.

Do you pronounce your name Nuechterlein, or Nuechterlein.

Mr. Nuechterlein: It's Nuechterlein, that's correct.

Chief Justice Rehnquist: Nuechterlein, okay.

Mr. Nuechterlein: Mr. Chief Justice, and may it please the Court:

Like any other witness, a criminal defendant who elects to take the stand is subject to fair comment on his credibility as a witness.

Here, the prosecutor's comments restated a basic principle of the common law.

That principle is this.

If a witness has the opportunity to listen to the testimony of other witnesses before he gives his own, it will be more difficult for the fact-finder to detect any falsity in the story he tells.

That factor is, of course, not dispositive to the witness' credibility, but it is certainly a relevant factor as the common law...

Justice O'Connor: Well, Mr. Nuechterlein, do you take the position that there's just a per se rule, that in every case where a defendant testifies, that it's all right for the prosecutor to make this kind of comment?

Mr. Nuechterlein: I think as a general matter this kind of comment is appropriate.

There may be special circumstances in which there are unusual indicia of consistency.

Justice O'Connor: Well, is there a... but you take the position that it would be proper in every case.

Is this something that is commonly done by Federal prosecutors, to your knowledge?

Mr. Nuechterlein: The issue has come up in a handful of Federal cases.

It has not come up in a large number of Federal cases.

That could be the result of one of two factors.

One is, either the prosecutors don't make this argument that much, or it could also be that defendants recognize the argument as often being fair comment.

Justice O'Connor: Do you think that an instruction to the jury would be appropriate...

Mr. Nuechterlein: I...

Justice O'Connor: reinforcing this statement?

Mr. Nuechterlein: Probably yes, but that would be a closer case, because there are many contexts in which we permit prosecutors to make arguments to the jury in their role as advocates that we do not permit judges to make to the jury in their role as neutral arbiter of the proceedings.

Justice Kennedy: My concern is, is that if we adopt your position, which is not without some strong reasons to recommend it, that although that's... this comment is not usually made now, a year hence it will be standard.

It will be in every prosecutor's manual, and then the trial judge will have to say, now, ladies and gentlemen of the jury, it would be an extraordinary occurrence were the defendant not present at all phases of the trial.

He must be present in order to assist his counsel and be apprised of the charges against him, and therefore you cannot hold that against... and so we go back and forth.

Mr. Nuechterlein: Actually, this comment, Justice Kennedy, is made in a number... has been made in a number of cases.

The court of appeals opinion, for example, cites about a dozen State court cases in which it's come up.

The comments in those cases were very similar to the comments in these, and after the Second Circuit issued its original opinion in this case, there has been a handful of cases in that jurisdiction in which defendants have raised precisely this sort of argument.

Justice Scalia: Well, excuse me, I don't understand the defendant here to be asserting what those... that judge's instruction would have told the jury, that you therefore can't take it into account.

Mr. Nuechterlein: I had understood Justice Kennedy's question to relate to arguments the prosecutor...

Justice Scalia: I mean, that's not at issue in this case.

Mr. Nuechterlein: That's correct.

Justice Scalia: Isn't it agreed by both sides that the jury can take account of the fact that he's been sitting in court during the entire argument?

Mr. Nuechterlein: That's certainly correct.

Justice Scalia: And the jury is not entitled to an instruction, as it is with regard to the right, of the Fifth Amendment right of nonincrimination.

The jury is not entitled to an instruction that you should not take... you should not take the defendant's refusal to testify to be an admission of guilt.

Mr. Nuechterlein: That's correct.

Justice Kennedy: Well, I suppose a trial judge could go on and say, if you find he altered his testimony by reason of his presence you can take that...

Chief Justice Rehnquist: Well, but...

Justice Kennedy: into account.

But the whole point is, it just seems to me that this is a new area in which we're going to have comment, countercomment, instructions...

Mr. Nuechterlein: Justice Kennedy, this is not a new area.

In fact, for hundreds of years it has been a principle of the common law that if a witness is exposed to the testimony of other witnesses before giving his own, that gives him an advantage, and it is the sort of advantage that a lawyer has a right to bring to the attention of the jury.

Chief Justice Rehnquist: Well, when you get into the area of instructions by the trial court, you also get into the question of whether a defendant would request a particular instruction.

I know when I practiced, long ago, the defense attorney, criminal defense attorneys were split on the question of whether it was an advantage to the defendant to have the judge charge that he was not required to take the stand and they weren't to hold it against him.

That was certainly the constitutional law, but it also called the jury's attention to the fact that the defendant hadn't taken the stand, and maybe made it worse.

So I don't think you should think in terms of automatic charges by the judge.

Often, they have to be requested or could... if a defendant didn't request them, they wouldn't be given.

Mr. Nuechterlein: That is correct, and again I just want to reemphasize the point that I believe that a trial judge would have the discretion to give that kind of instruction, but you don't have to agree with me on that in order to reverse the judgment below, because there really are a variety of contexts in which we want to give prosecutors leeway to make effective arguments where we would not permit a judge to make an analogous comment.

Justice O'Connor: Don't you think the Doyle case cuts against your position somewhat?

Mr. Nuechterlein: I do not, for two reasons.

One, Doyle was significantly limited by subsequent precedent, namely Jenkins v. Anderson and Fletcher v. Weir.

In both of those cases this Court observed that Doyle was based on an estoppel principle.

The Miranda warning was construed as an implicit assurance that the suspect's silence would not then be used against him.

There is no analogous estoppel issue that arises here.

Secondly, in the Doyle context there is some risk that the jury will view the defendant's prior silence as substantive evidence of guilt.

Here, that concern is...

Chief Justice Rehnquist: On the other hand, in the Doyle facts there is some inconsistency as a practical matter between the silence at the time of questioning and the contrived story at the time of trial, but here there's no inconsistency, there's just an opportunity, so it seems to me this case is a fortiori from Doyle, and I didn't agree with Doyle, as you may know.

Mr. Nuechterlein: What do you mean, Justice Stevens, when you say it's a fortiori...

Justice Stevens: Well, here the prosecutor can make this comment even though there's no... nothing in the record that would imply that there's some inconsistency between the testimony and the actual fact, whereas in Doyle, the fact that he was silent is in itself somewhat inconsistent with his having come up with a story later.

Mr. Nuechterlein: There are a variety of reasons why a lawyer should have discretion to make comments about the credibility of the witness.

One of those is inconsistency, but another one would also be the common law rule that if a defendant is exposed to the testimony of other witnesses before giving his own, that makes it more difficult for the fact-finder to discern whether there's any falsity in this story.

Justice Souter: Well...

Justice Scalia: Mr. Nuechterlein, if we applied Doyle here, we would again have to instruct the jury not to take account of the fact that he has heard all the testimony.

It wouldn't be just a question of whether... whether the prosecutor can invite the jury's attention to that fact.

The jury would be entitled, if we are... as I understand Doyle, if we are following Doyle, the jury... the defendant would be entitled to an instruction that you shall not take into account the fact that he's heard all the testimony.

Mr. Nuechterlein: If Doyle were the basis of an opinion affirming the judgment below, I imagine there would be arguments analogous to Carter v. Kentucky in which defendants would claim a right to a jury instruction of that kind.

Justice Souter: Mr. Nuechterlein...

Justice Stevens: May I ask one other verify brief question?

You refer to all the State cases that's arisen.

Am I correct in thinking all of those cases came to the view that this was improper comment?

Mr. Nuechterlein: No, that is incorrect, Justice Stevens.

Justice Stevens: They didn't.

Mr. Nuechterlein: At least four of them cited in the court of appeals opinion upheld the comments as fair comment.

Justice Stevens: I see.

Justice Souter: Mr. Nuechterlein, you mentioned in distinguishing Doyle the risk there of the jury's confusing impeachment with proof of guilt.

Isn't that risk equally great here?

Mr. Nuechterlein: I don't think so.

Here is why.

In Doyle, a jury might well view a defendant's silence in the face of accusation as substantive evidence of guilt in itself.

Here, there is no risk that the jury could conceivably view the defendant's mere presence in the courtroom as evidence of guilt.

Justice Souter: No, but the jury is going to go from mere presence to a suspicion of tailoring.

Tailoring is lying, and as the old saw has it, a man who will lie will steal, or whatever.

I mean, isn't that the risk, that the jury will sort of follow that sequence of reasoning?

Mr. Nuechterlein: Justice Souter, I think that reasoning proves too much, because it would eviscerate the line this Court has always drawn between impeachment that goes to credibility and evidence that goes to guilt.

Justice Souter: Well maybe it would, but does it also eviscerate the line between Doyle and this case?

Mr. Nuechterlein: No, I don't think it does, because the primary basis for this Court's holding in Doyle, as the Court stressed later in Fletcher...

Justice Souter: Is the estoppel point.

Mr. Nuechterlein: and Jenkins is the estoppel point, and there is no analogous problem here.

Justice Ginsburg: Mr. Nuechterlein, may I ask a question about your position on brief that Chief Judge Winters' distinction was unworkable, because it seemed to me the Second Circuit worked it out very well in U.S. v. Chako the next time the issue came before them, when they said, look, it's different here.

Here, there was a showing of tailoring, not merely opportunity to tailor.

Mr. Nuechterlein: Well, I'm not sure whether in Chako there was any actual proof of tailoring, and it's extremely difficult ever to prove tailoring, and I guess our central point is that just as the common law doesn't require a lawyer in other settings to give evidence that a particular witness would have given different testimony had he not been exposed to the testimony of other witnesses, so, too, is it inappropriate here to require the prosecutor to make that sort of showing about a defendant.

Argument of Beverly Van Ness

Chief Justice Rehnquist: Thank you, Mr. Nuechterlein.

Ms. Van Ness, we'll hear from you.

Mr. Ness: Mr. Chief Justice, and may it please the Court:

I just would like to focus, if I can, on what happened in this case.

I think petitioner has made concessions in their briefs that are really dispositive of the issues in respondent's favor.

First of all, the petitioner has conceded many times in their main brief, which I think they properly did, that an affirmative accusation of tailoring was, in fact, made in this case.

In their reply brief and again here at oral argument they've also conceded, as I think they must, that unless you have actual evidence to support a affirmative accusation of tailoring, that you can't use the exercise of this...

Chief Justice Rehnquist: I don't understand them to concede that, Ms. Van Ness.

Mr. Ness: Your Honor, I think that on pages 2 and 3 of their reply brief...

Chief Justice Rehnquist: Yes.

Mr. Ness: If I may, they say, nor has petitioner alleged that a tailoring argument may be predicated merely on an accused's presence during the testimony of other witnesses, and on page 3 on the first full paragraph, at no time has petitioner argued that a tailoring argument may be built on nothing more than a defendant's mere presence at trial during the taking of testimony.

Chief Justice Rehnquist: Well, I should add, we don't decide cases on the basis of concessions by the parties.

Mr. Ness: I understand that, Your Honor, but I...

Justice Scalia: Ms.... more than that, Ms. Van Ness.

If that is what this case is about, just a fight over whether in fact the prosecutor made an accusation of tailoring that had no possible basis in fact, you should have made that point, it seems to me, in your opposition to the petition for certiorari.

If I had known that's all the case is about, I don't think I would have taken it.

We're not interested in deciding that factual question.

The question presented makes it very clear that it's talking about a much more broader, much broader and more important issue.

Mr. Ness: Well, regrettably, Your Honor, I did not put that in my...

Justice Scalia: Well, it's a little late to put it now.

Mr. Ness: But it is an alternate ground for affirmance, Your Honor, and I think these concessions are...

Chief Justice Rehnquist: We rarely go off on alternate grounds for affirmance unless there's some very obvious reason why we can't decide the issue that is presented in the question presented, which is whether Griffin should be applied to this case.

Mr. Ness: Your Honor, going to the opportunity to tailor argument, I would like to make a particular point on that, which is that the opportunity to tailor argument, the quote, mere opportunity to consider the defendant's ability to do this, is really an invitation to the jury to speculate.

You have at best, for the State, you have two inferences that could be drawn from a consistent story by the defendant.

One would be that he has tailored his testimony for a number of different... in a number of different ways, only one of which might be the presence at trial.

Justice Scalia: But you're always speculating as to whether the witness is telling the truth or not, and you speculate on the basis of various considerations, and you're usually allowed to call those considerations to the jury's... what if the witness' eyes are shifting all around the courtroom during the testimony.

He looks very much like a person who's lying.

Can the prosecutor call attention to that?

Mr. Ness: Certainly, Your Honor, but...

Justice Scalia: Of course he can.

Mr. Ness: you're calling attention to evidence.

What my point is, that this is not evidence.

At best, this is a possible explanation.

If there is evidence that the defendant tailored his testimony...

Justice Kennedy: Well, but it's an important possible explanation.

Suppose in this case the prosecutor did not make this argument and, after an hour of deliberation, the jury sends a note to the judge and they say, dear judge, we know the defendant probably should be present at the trial, maybe he has a constitutional right to be at trial, but we think that in this case his presence enabled him to tailor his testimony, can we hold that tailoring against him.

What's the judge supposed to do?

Mr. Ness: My... the answer to that would be, if you find that there's evidence of tailoring in the record, jury, you are free to consider that evidence, but not that you are free to consider...

Justice Kennedy: Well, I'm not sure why the prosecutor really argued anything different here.

Mr. Ness: Because the prosecutor was using... the only evidence was that the defendant was there.

That evidence... that's not evidence that he in fact used the opportunity.

Justice Scalia: So your position is really... is really, I was erroneous when I said I didn't think either side, that you were making... you are making the contention that the jury... not only may the prosecutor not call the jury's attention to it, the jury may not consider it, and presumably you would be entitled to an instruction, ladies and gentlemen of the jury, you should take no account of the fact that the defendant has been sitting here listening to all the testimony, because I don't see any other evidence of tailoring.

Mr. Ness: I do think there's a danger in asking the jury to speculate, because the State has the burden of proof, but if a line is to be crossed here, Your Honor, then at the very least this subject must be raised during the defendant's cross-examination to give him the chance to address it.

Justice Kennedy: You're saying in effect that a juror cannot sit in the jury room and say, you know, this guy was very smooth, and the reason he was is because he was there, and that's the way I think.

You don't think the jury could do that.

Mr. Ness: Well, I don't think it would be...

Justice Kennedy: That's astounding.

Mr. Ness: I don't think it would be appropriate for them to do it, Your Honor, because I don't think they have any proof that that's what happened.

Justice Souter: No, but isn't the point, when the question... when Justice Kennedy's question says, this guy was very smooth, wouldn't that be, in fact, an evidentiary basis?

I mean, the suggestion is, sounds a little too smooth, and I don't know that your position requires you to say that that would be inappropriate.

Why do you say that is inappropriate?

Mr. Ness: Well, Your Honor, I just... I believe that that's in the nature of an adjective.

I don't think that's evidence...

Justice Souter: So you're in effect saying that if the testimony is, shall we say, unrealistically smooth, that that may not be considered?

He's a very good witness, therefore he must be lying.

I mean...

Mr. Ness: I think it's...

[Laughter]

Justice Souter: That... I really don't think that facing that issue is what you necessarily have to do in this case, but maybe I misunderstand you.

Mr. Ness: Well, but going back to the Doyle point, Your Honor, the... another explanation for why a defendant's story is consistent and he can't be shaken is that he's telling the truth, and that's why this...

Justice Souter: Oh, that...

Mr. Ness: That's why...

Justice Souter: You know, that goes to the, you know, the insoluble ambiguity point, but when you start talking about sort of unusual smoothness, I think we are outside... or at least as I'm using the term, I think we're outside of the kind of testimony which is insolubly ambiguous, and don't you... isn't that a distinction that can be drawn?

It may be a fine line to draw, but isn't that a distinction that can be drawn?

Mr. Ness: Maybe I'm misunderstanding Your Honor, but certainly if the... the prosecutor is free to use anything in the evidence to ask the jury to make... to draw reasonable inferences from, but what they can't do, what I'm arguing they can't do is to ask the jury to speculate, so if you want to use the...

Justice Souter: All right, so all you're saying I think is that it would be... put it this way.

Put it in terms of instructions.

You're saying that it would be improper for the court, or you're implying that it would be improper for the court to say, because the defendant in any criminal case has the greatest interest of anyone in the courtroom, or any witness in the courtroom, you should devalue the defendant's testimony for interest greater than you'd devalue the testimony of other witnesses who may be interested.

You're...

Mr. Ness: No, I'm certainly not advocating that position.

Justice Souter: Okay.

What about the position in which the court gives this instruction.

People who are in the courtroom and hear other witnesses can tailor their testimony.

The defendant has a right to be in the courtroom, as he has done.

Therefore, you should devalue the defendant's testimony for that reason, period.

Mr. Ness: Well, certainly, I...

Justice Souter: You would say that was a wrong instruction.

Mr. Ness: Yes, I would.

Justice Souter: And you would say it was a wrong instruction because, as I've given the hypothesis, there's no particularized basis in any evidence for applying that rule of devaluation, isn't that your point?

Mr. Ness: That's correct.

Justice Souter: All right.

If there is a particularized basis, whether the eyes are going back and forth in Justice Scalia's example, or whether there is an impression of oily smoothness in Justice Kennedy's example, then it seems to me we are outside the realm of pure speculation.

Wouldn't you agree?

Mr. Ness: Oh, I... yes, Your Honor.

Justice Scalia: Certainly, and the court of appeals would decide whether the Constitution has been violated or not presumably, under what you've accepted, by deciding whether, in fact, the defendant was smooth or too smooth.

Is that going to be the critical constitutional fault line, whether he was just smooth smooth or oily smooth?

Unidentified Justice: [Laughter]

Justice Scalia: Is that seriously the distinction?

Mr. Ness: No, Your Honor, because I think...

Justice Scalia: And are you accepting the premise that what is wrong in a judge's instruction is also wrong in a prosecutor's argument?

Is everything that a prosecutor says in final argument appropriate for a judge to say in instruction?

Mr. Ness: No.

No.

Chief Justice Rehnquist: The prosecutor surely has greater latitude than a judge.

Mr. Ness: Yes, the prosecutor certainly has greater... he has greater latitude, but circumscribed latitude.

The arguments that are made must be fair arguments based on the record.

Chief Justice Rehnquist: But what about the traditional charge about the interested... interested party?

Now, it seems to me in your answers to Justice Souter's questions, some of your other statements, would you allow that to be given in the absence of any showing that the defendant was not telling the truth?

Mr. Ness: Well, I think there's a fundamental difference between that charge and the issue in this case, because the motive to lie, it's not... a motive to lie based on interest has not been presented as a tool that the defendant has which gives him any kind of advantage.

It's a charge which applies... and this is also makes a difference.

It's a charge that applies to all witnesses at trial, not simply to the defendant, and it has nothing to do with the exercise of a constitutional right.

It's not using the defendant's exercise of his right to testify against him.

Chief Justice Rehnquist: Well, supposing that the defendant had been sitting through all the trial but there were two other witnesses, two, for some reason, who had also sat all through the trial and had not been sequestered... all the other witnesses had been sequestered... so that the charge, the prosecutor's comment could then be directed to two witnesses as well as the defendant.

Would that make any difference?

Mr. Ness: Well, I think that comments on other witnesses, depending on the facts of the case, may... might be appropriate.

Those other witnesses...

Chief Justice Rehnquist: But how about the generic comment?

It no longer singles out just the defendant.

It singles out the defendant and other witnesses who have sat there through the proceedings and not been sequestered.

Mr. Ness: Well, as a practical matter, Your Honor, there aren't any, going to be any such witnesses, but if there are...

Chief Justice Rehnquist: I've certainly sat in cases where there was some reason for a particular witness not to be sequestered, and it wasn't the defendant.

Mr. Ness: Well, all right, Your Honor, but I still wouldn't approve that kind of generic construction, because I think it is fundamentally unfair to the defendant to use his exercise of a right against him without any basis in the record.

Chief Justice Rehnquist: Okay, but...

Justice Stevens: May I ask on that question whether you think it would be fundamentally unfair for the prosecutor at the end of his cross-examination of the defendant, who's the last witness in the case, say, to ask questions... you were sitting in the courtroom throughout the trial, weren't you, you heard all the testimony, make the point through cross-examination?

Would that be permissible?

Mr. Ness: Well, certain... yes.

I do believe that.

I think if the subject comes up on cross-examination at least it gives the witness an opportunity to address the issue, and to proffer any kind of evidence that they might have that they have not used this opportunity to their advantage.

I think...

Justice Souter: You've... I'm sorry.

Justice Stevens: Well, that wouldn't authorize him to use prior consistent statements though, I don't think, if they were after he'd been arrested.

Mr. Ness: I'm sorry, Your Honor, are you talking about the defendant or ordinary witnesses?

Justice Stevens: I'm talking about the defendant.

I'm just asking you if you think, instead of saving the point for argument, closing argument, the prosecutor makes the point at the end of his cross-examination of the witness, of the defendant who's the last witness in the trial, would that create the same constitutional problem?

Mr. Ness: Oh, I think it would, because if that's all that's being asked...

Justice Stevens: Yes.

Mr. Ness: Mr. Defendant, you were here and listened to A, B, C, and D, right, did you... did that give you an opportunity to change your testimony, that that's the same problem as...

Justice Scalia: Well, he doesn't add the latter part.

He just says, you've been sitting here in the courtroom during this whole trial, and you listened to all the prior witnesses as they were testifying before you came up here to tell this story, is that right.

Mr. Ness: Well, that's not... that's not...

Justice Scalia: That's all he says.

Mr. Ness: That's not directly assailing his exercise of his constitutional right.

It's not...

Justice Scalia: Oh, so that... all right.

Mr. Ness: It's not saying that the defendant got an advantage out of that, out of being able to hear that testimony.

Justice Scalia: Now, I don't understand the directly assailing your constitutional right.

If... you cannot put any burden upon the assertion of the constitutional right?

Mr. Ness: Well, I think... I think in some situations you could, but I don't think you can in this situation, because I think that the value that the State could get out of such an argument is extremely slight compared to the very severe burdens that are placed on a defendant by the... by being... them being given permission to raise this argument.

Justice Kennedy: I just want to understand your answer.

So you're saying that the question Justice Scalia proposes is proper.

The counsel's very sarcastic.

It was, now you've been here for 3 days, and you've heard all of these witness... that's why you're telling the story you're telling.

Mr. Ness: I don't...

Justice Kennedy: That's improper?

Mr. Ness: I think that it's... to me, that question shouldn't be asked, because I think it has...

Justice Kennedy: Well, in other words, it's objectionable.

You can raise an objection to that question.

Mr. Ness: Yes.

Chief Justice Rehnquist: Under the Constitution.

Mr. Ness: I think it's doing... it has the same difficulties as the argument that was made on summation in this case.

It's exactly the same.

Justice O'Connor: Ms. Van Ness...

Justice Scalia: Because it impedes his constitutional right.

What about his constitutional right to testify.

Is that constitutional right impeded by cross-examining him?

Mr. Ness: Certainly not.

Justice Scalia: So you pay the price for exercising that constitutional right.

If you testify, you're subject to cross-examination.

Mr. Ness: But that goes back to...

Justice Scalia: If you're present at your trial, you're subject to having the fact that you're present at your trial being pointed out.

Mr. Ness: Your Honor, that goes back to a point I was trying to make earlier, which is that this... the fact that the defendant was there is not evidence that he tailored.

The opportunity...

Justice Scalia: Of course it isn't.

Mr. Ness: The question of whether he used that...

Justice Scalia: Of course it isn't, but that's a question for the jury.

It... you know, it's a factor...

Mr. Ness: So...

Justice Scalia: that would enable him to tailor, and the prosecutor's just telling the jury, this is a factor that would enable him to tailor, but take that into account along with everything else.

Mr. Ness: If the prosecutor has evidence that the defendant has tailored his testimony, I am not saying that he should not be allowed to use evidence.

He can use it on cross, and...

Chief Justice Rehnquist: What sort of evidence would one ever get that the person had tailored their testimony?

Mr. Ness: Well, for example, if he'd made a prior inconsistent statement, and he changed his story at trial.

Now, again, this goes back to the fact that a change in story could be based on a variety of explanations.

One such explanation could be the defendant heard the witnesses at trial.

Another explanation could be that he was given broad discovery rights, knew the State's evidence very well before he got in there, and used that.

Another possibility is that he is... well, so there are several explanations for why he could have changed his testimony, and listening to the witnesses is only one explanation, and if you don't have evidence that that's why he changed his story, I think it's unfair to ask the jury to assume that he did.

Chief Justice Rehnquist: So the mere fact... even the mere fact that he changes his testimony is not adequate in your view.

You'd have to show that he... somehow the prosecutor during the trial would have to show that he changed his testimony because he was sitting... he was sitting there and heard the witnesses?

Mr. Ness: I think... yes, because this explanation doesn't advance their case.

It's the evidence of the change that advances their case, not the explanation for it, so to not risk them drawing an unfair conclusion, and to not burden the defendant's exercise of his constitutional right, I think this argument should be forbidden.

Justice Breyer: What's the constitutional right?

I'm having a problem to know how to decide this.

I counted the word consistent appearing 11 times in a rather short summation by the defense about half divided between my client's story is consistent, the complaining witness' story is not consistent.

The State of New York said that under those circumstances, no rule of evidence in New York is violated.

Now, what in the Constitution of the United States says New York's rule of evidence there is wrong?

I mean, don't we have to decide this on the basis of 11 appearances of the word consistency in a short closing argument, and don't we have to take into account the fact that under New York law of evidence, under those circumstances, no rule of evidence is violated?

Mr. Ness: I'm not certain I follow your question, Your Honor.

Justice Breyer: Well, my question is, what is the question before us?

If New York's law says it is not a violation of the law of evidence to make this comment, of course his story's consistent, he sat there and heard the witnesses... that's the law in New York, all right.

Now, what part of the Constitution does that violate?

Why?

Mr. Ness: Well, I don't believe that is the law in New York.

Justice Breyer: Ah.

I have... I couldn't find... New York apparently just didn't say.

They didn't discuss it.

Mr. Ness: Well, I don't think this constitutional issue has been addressed...

Justice Breyer: No, no, the law of evidence, not...

Mr. Ness: Well...

Justice Breyer: The law of evidence in New York is that under these circumstances no law of evidence is violated.

Mr. Ness: Well, I think it is... I think under the law of New York there was a violation.

Justice Breyer: All right, then they made a mistake about that.

Well, why did the New York courts affirm this conviction?

Mr. Ness: Well, there were many, many, many issues raised in the appellate division, and this one was not specific...

Justice Kennedy: Well, let's assume Justice Breyer is right.

Let's assume Justice Breyer is right that this is permitted under the law of New York.

Then what is the answer to his question about the constitutional issue as you would put it, precisely?

Mr. Ness: Well, if this is permitted by the law of evidence in the State of New York, then I think that's an unconstitutional principle that this Court can address.

Justice Breyer: Because?

Look, I mean, what I'm driving at is fairly simple.

I'm sure that the prosecution would like a universal law that you could make this comment even no matter what, just make it out of the clear blue sky, and what I'm driving at is, the record before us is not the clear blue sky, at least as I read it, and I'm not using a doctrine of invited error, I'm using a doctrine of no error.

Mr. Ness: Well, in this particular case, Your Honor, the prosecutor, as was specifically found by the court of appeals, actually made an accusation of tailoring against the defendant on the basis of the exercise of the right without any evidentiary foundation whatsoever.

Justice Breyer: Good.

I've read the record.

I think they're wrong about that.

I found 11 instances in which it uses the word consistent.

I won't repeat myself.

You heard what I said.

Mr. Ness: Well, that the defendant's story is consistent doesn't necessarily mean he used his opportunity to hear the other witnesses...

Justice Scalia: Yes, I thought that was what you were going to say.

I haven't been understanding Justice Breyer's question.

You seem to understand it.

I don't see what telling a consistent story has anything to do with whether you've heard the prior witnesses and tailored.

You can have a consistent story that contradicts the prior witnesses, or you can have a consistent story that is in accord with prior witnesses.

Consistency has nothing to do with whether you're tailoring, does it?

Mr. Ness: No, because I think that's not...

Justice Breyer: He didn't say... they didn't use the word tailoring.

I thought what they said was, in a very complicated factual story the lawyer says, look, my client's been consistent, the complaining witness wasn't, and what the prosecutor says is, sure, he sat here, why wouldn't he be consistent?

Mr. Ness: Well, the prosecutor went much farther than that, Your Honor.

He went on to say that my client received a great benefit and advantage the other witnesses didn't have, and attributed his consistency to the exercise of his right to be present.

Justice Scalia: I suppose he would be consistent if he had listened to himself testify.

Unidentified Justice: [Laughter]

Justice Scalia: That would enable him to be consistent.

Justice Breyer: She didn't use the word...

Justice Scalia: But I didn't understand that he was listening to himself testify while he...

Justice Breyer: What she actually said was, use your common sense.

You know, ladies and gentlemen, unlike the other witnesses, he has a benefit, the benefit he has is, he gets to sit here and listen to the testimony of the other witnesses.

That's... all right.

Now, she said that in response, I gather, to the defense lawyer saying nonstop, my client's story was consistent, the complaining witness wasn't.

I'll stop, because...

Justice Ginsburg: May I add one thing to that, because it seems to me we're losing what the Second Circuit decided.

As I understand Judge... Chief Judge Winters' dispositive opinion, it isn't a question of whether, but when.

He narrowed his decision, the Second Circuit's decision to the prosecutor's springing this for the very first time on summation and distinguished and left unanswered.

Had it been brought up on cross, when the defendant would have a possibility of rebuttal... but there was no such statement made in the cross-examination.

It was reserved for when the prosecutor spoke last, and that was all that the Second Circuit addressed, is this proper to make on summation, and we're getting into cross-examine.

That was an issue that the Second Circuit explicitly did not decide.

Mr. Ness: Precisely, Your Honor.

I was addressing cross-examination, but I did want to... I do want to focus back on...

Chief Justice Rehnquist: Why does the constitutionality of this conduct in... under the Griffin analysis depend on whether it was brought up on cross-examination or whether it was urged on closing argument?

Mr. Ness: Because if it's raised for the first time in closing argument it's not... it's mere speculation, it's not evidence.

I can't...

Chief Justice Rehnquist: But that doesn't sound like a constitutional argument.

That sounds like something you say, the prosecutor shouldn't do that because it's unfair, and Griffin isn't based on unfairness.

Mr. Ness: Well, it's based on burdening a constitutional right with no legitimate State interest advanced by that.

Justice Scalia: What about shifty eyes?

Chief Justice Rehnquist: Why couldn't your...

Justice Scalia: What about shifty eyes?

Can you bring that up in final argument, or you have to give him a chance to respond to that by bringing it up in cross-examination?

I mean, he might say, you know, I have nervous tick or something.

Mr. Ness: Well...

Justice Scalia: Does the prosecutor have to bring that up in cross-examine, or can he just say, ladies and gentlemen of the jury, you saw the defendant testify here, did you see the way his eyes darted around the room?

Mr. Ness: The State...

Justice Scalia: This looked like a man who was not telling the truth.

Can he not say that?

Justice Kennedy: I mean, he has to bring it up...

Mr. Ness: Your Honor, I think it's fundamentally different.

The State here is seeking to use the defendant's presence as evidence, just... they're saying, because he was there, you, jury, can infer that he lied.

That... if... at least...

Justice Scalia: Not as evidence.

It goes to his credibility.

It doesn't go to the substance of the crime.

Mr. Ness: Well, it...

Justice Scalia: It goes to whether he was an honest witness, just as shifty eyes do.

Mr. Ness: Well, what is the jury supposed to consider in the deliberations room under those circumstances if there's no supporting evidence?

The prosecutor...

Justice Kennedy: Well, I think... why aren't you entitled... why aren't you fully protected by an instruction from the court, if you want to ask for it, say ladies and gentlemen of the jury, this defendant has an absolute right to be at the counsel table.

He must be there to assist in the prosecution of his case.

The mere fact that he's present alone you cannot hold against him.

Now, if you think he tailored his testimony, if you find that, then that is relevant to determining his credibility.

What's wrong with that instruction?

Mr. Ness: Well, I don't think that effectively cures the problem, because the prosecutor is not merely commenting on his presence.

They're commenting on the fact that he used his presence as a tool with which to fabricate, and if there's no evidence...

Justice Kennedy: Suppose he did.

Mr. Ness: Well, then... then, if there's proof of that, like any other impeachment evidence, then the prosecutor is free to use that.

Justice Kennedy: All right.

Then there is nothing wrong with the instruction as I gave it to you, that he has a right to be present, the mere fact that he is present cannot be held against him, if you think that he used his presence in order to tailor his testimony, then that... then you may consider that.

Now, if you want that instruction, then I suppose you can get it.

I'm not sure you'd want it, according...

Mr. Ness: I still don't think that the jury is equipped to deal with this situation, because there is no... there's no... if there's no evidence before them, but they're being told that if you consider that the evidence, that the defendant has used his opportunity to be here to tailor, then you consider that.

It's still asking them to consider the...

Justice O'Connor: Well, don't you think that a jury is entitled to consider the interest of every witness who testifies, and the fact that certainly the defendant is always an interested witness.

The defendant wants off the hook, and don't you think the jury can say, gosh, we listened to what the defendant said, but after all, the defendant doesn't want to be convicted, and can't the jury say to itself, and also, the defendant sat there the whole time and listened to everybody else.

I think the jury can maybe reason from that in deciding which witness' testimony they want to give the greatest credibility.

Mr. Ness: Well, how could the defendant ever rebut that kind of speculation, though.

With the interested witness charge, at least...

Justice O'Connor: Well, the defendant has to... if the defendant chooses to testify, and many don't, but if the defendant does, the defendant has to try to be as credible as possible on the facts during the testimony, but I would have thought that a jury could consider all of these things in weighing who to believe.

Mr. Ness: Well, again, the interest of the witness is neutral in a sense, because not only does it apply to everybody, but it is not perceived as a tool that the defendant has in order to enable him to tell a better lie.

A defendant's interested or not, and if he's interested you can't disbelieve him simply because of that fact.

Justice Scalia: Ms. Van Ness, it seems to me what your principle boils down to is, it's okay for the prosecutor to do it if there is some... enough evidence to think that there was tailoring, but he can't make this statement if there was not any evidence.

This is a very dangerous constitutional principle, that the prosecutor cannot in his closing statement invite the jury to make any factual determinations, or credibility determinations that the evidence will not support.

Is that a constitutional principle, that if the prosecutor goes beyond what the evidence will support, the whole case can be reversed?

Mr. Ness: Well, that...

Justice Scalia: Don't we give the jury a certain amount of discretion to reject stupid arguments?

Mr. Ness: Well, that would be a... that could be a due process violation which I am alleging occurred here, and as the court of appeals found, but the... I'm sorry.

Justice Scalia: I mean, you're just saying there's not enough evidence in toto to prove that this defendant was tailoring.

Therefore, the prosecutor could not suggest the possibility of tailoring.

Mr. Ness: I am suggesting that a prosecutor can always make a tailoring argument in summation, a tailoring argument in summation, if there is evidence to support it.

Justice Scalia: Ah, if there is evidence to support it.

You condition it on that.

Mr. Ness: Well, but what I'm getting at, Your Honor, is I don't believe it's appropriate ever for the prosecutor to tie that tailoring argument, which has an evidentiary foundation, with the defendant's exercise of his right to be present.

Justice Souter: So going back to Judge Winters' point that Justice Ginsburg raised, if there had been a prior inconsistent statement here and that had been brought out, I take it you would agree that it would have been perfectly proper, even only at the last minute, in closing argument, for the prosecutor to make the tailoring argument here.

The timing is not crucial to you, Judge Winters' seeming suggestion that it was the fact that this didn't surface...

Mr. Ness: Well...

Justice Souter: this tailoring claim didn't surface until the last minute in the prosecutor's closing argument, when it was too late for them to respond, that is not crucial, I take it, in your view.

Mr. Ness: Well...

Justice Souter: If there had been a prior inconsistent statement, the word tailoring and the tailoring argument had never come up until the prosecutor's closing argument, I take it on your view the argument would have been proper for the prosecutor, is that correct?

Mr. Ness: Well, that would be a due process violation, Your Honor.

Rebuttal of Andrew Zwerling

Chief Justice Rehnquist: Thank you, Ms. Van Ness.

Mr. Zwerling, you have 3 minutes left.

Mr. Zwerling: Addressing the issue of the insoluble ambiguity, or that in the absence of a particularized showing of actual tailoring, that that gives rise to an invitation to speculate, if the witness in question who was not sequestered is not a defendant, the court can give a jury instruction that they can consider that fact, and to consider the effects, if any, that that nonsequestration had on that particular witness.

So what respondent in the Second Circuit are positing is a possible scenario in which there is more than one nonsequestered witness in addition to the defendant, and that a jury instruction can be given that the jury can consider as to those witnesses the effects, if any, nonsequestration had on their reliability, but no such instruction would be given as to a defendant, and that under those circumstances the jury's going to go into that deliberations room saying, well, I guess we can't hold that against the defendant, we can only hold that against the credibility...

Justice Ginsburg: Mr. Zwerling, we're going so far beyond what the Second Circuit decided.

They didn't talk about instructions at all.

They spoke only about what was proper for the prosecutor to do in light of the Sixth Amendment and Fifth Amendment.

Mr. Zwerling: Addressing particularly summation comment, the same parallel holds true.

That would mean that there would be a scenario in which a defense attorney can stand up, as was done in this particular case, blister the credibility of the prosecution witnesses based upon their exposure to one another, or if they were nonsequestered witness, could blister the credibility of that witness based upon the fact that they weren't sequestered, and then a prosecutor would have to stand up and would be handcuffed and not be able to say anything based upon the fact that another nonsequestered witness, the defendant, was also sitting in that courtroom, and I also want to...

Justice Ginsburg: Well, I'm not...

Justice Souter: Well, do you...

Justice Ginsburg: I'm not sure that that's right, given the Second Circuit's follow-up decision, in which they pointed out that when that happened the judge repeatedly offered to give a curative instruction simply informing the jury that the defendant had not only a right but an obligation to be there.

Defendant rejected that curative instruction, and the Second Circuit said, too bad, but then the distinction between the defendant, who has a constitutional right to be there and a statutory obligation under New York law to be there, that distinction is presented to the jury, so they get the whole picture of the difference between the defendant, his right and obligation, and other witnesses.

Mr. Zwerling: But so long as the jury is informed that they can consider that fact as it bears upon the defendant's credibility, clearly, you know, additional language in an instruction alerting to the jury that the defendant must be there, for example, under New York law...

Chief Justice Rehnquist: Thank you, Mr. Zwerling.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Mitchell v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:12 +0000

Case:

Mitchell v. United States

Media File:

97-7541_19981209-argument.mp3

Related Transcript:

1998_97_7541_argument.xml

Transcript:

Argument of Steven A. Morley

Chief Justice Rehnquist: We'll hear argument next in Number 97-7541, Amanda Mitchell v. the United States.

Mr. Morley.

Mr. Morley: Mr. Chief Justice, and may it please the Court:

The Fifth Amendment is clear in its language.

No person shall be compelled in any criminal case to be a witness against himself, and yet in this criminal case the district court used the defendant's silence, invoked to protect her from risking an increase in her own sentence, as a basis to fashion a sentence.

In doing so, the court fundamentally altered the sentencing proceedings from that which had been specifically promised to this defendant at the time of her colloquy, and from that which is generally applicable in criminal process.

Justice Kennedy: Are there cases that tell us what the authority and discretion of the trial court is in inquiring as to the basis for the... the factual basis for the plea?

At the plea stage, can the trial judge say, now, I want you to tell me... I'm not going to accept your plea.

I want you to tell me everything that you did, all of the transactions, and if you don't I'm not going to accept your plea.

Can the trial judge say that?

Mr. Morley: The trial judge has discretion to make certain that there's a foundation for the guilty plea, and certainly the trial judge can say to the defendant, I'm not going to take your plea unless you tell me everything, but then the trial judge has the opportunity to say, I'm not going to take your plea, and the defendant would also be given the opportunity to say, judge, I'm willing to tell you enough that admits to the essential elements of this offense, but I'm not getting into any sentencing factors.

Justice Kennedy: I'm surprised you can say... suppose you have three police officers, uncontradicted testimony, overwhelming proof of the guilt, and they testified, and the criminal defendant says, based on what you've heard I plead guilty.

Does the trial judge still have the discretion to say, I want you to tell me everything that happened or I won't accept the plea?

Does he have that... I would...

Mr. Morley: I think the judge has a... I'm not sure the cases say that he can't accept the plea.

I think the... the cases seem to say that the trial judge has the authority to make sure that there's a factual foundation, a factual statement, and that...

Justice Kennedy: But once he does that, doesn't his discretion end?

Mr. Morley: Yes, it does, and I think under...

Justice Kennedy: Because if it does, it seems to me to make your case easier, although I haven't seen cases on this.

Mr. Morley: I haven't seen cases on that, but think Libretti...

Chief Justice Rehnquist: In a plea colloquy you're typically told you're waiving a privilege against self-incrimination.

Mr. Morley: Typically that's true.

Chief Justice Rehnquist: In this case, Judge Cahn told the defendant that, I think.

Mr. Morley: Well, Your Honor, actually what Judge Cahn said... and I refer to page 45 of the joint appendix toward the top... Judge Cahn said, you have the right at trial to remain silent under the Fifth Amendment or at your option you can take the stand and tell the jury your side of the controversy, so Judge Cahn specifically limited the waiver of the Fifth Amendment to the right at trial.

Chief Justice Rehnquist: Well, you know, I don't know that one would parse it quite that strictly, but I... that's a permissible point of view, certainly.

Mr. Morley: But even beyond that, I still believe that the cases point to the fact that one does have a Fifth Amendment right at sentencing.

This comes really from two sources.

Justice Souter: May I... I'm sorry, I want to go back to the plea colloquy before we get to the sentence.

Would you explain to me your understanding of the difference between the waiver that is involved in speaking to the judge during the plea colloquy and the waiver, if there is a difference in the waiver that a defendant makes on taking the stand at trial?

Is there any difference?

Mr. Morley: Yes, there would be a difference in that way.

Chief Justice Rehnquist: What is it?

Mr. Morley: In a plea colloquy the defendant is really giving his or her admission to the essential elements of the offense so that a legal conclusion can be drawn right at that time to the effect that individual is guilty.

That is all that it's involved in.

At a trial, when a defendant takes the witness stand...

Justice O'Connor: Well now, just a minute.

I think you have to ask enough at the plea colloquy to satisfy yourself as the trial judge that the facts that occurred amount to a commission of the alleged offense.

Mr. Morley: Precisely, and...

Justice O'Connor: And presumably the judge could have asked about the quantity of drugs.

Mr. Morley: Well, this Court in Libretti made clear that forfeiture is a sentencing issue, and therefore need not be part of the factual understanding, the factual statement under Rule 11.

Justice O'Connor: What was the statute under which the petitioner was charged here?

Mr. Morley: This was a drug statute, 8... it was the conspiracy statute.

It was the 846 statute in which drug quantities are not part of the... not an element of the offense, but they are part of the sentencing.

Justice O'Connor: And you conceive that the quantity of the drugs is not an element of the offense here.

Mr. Morley: Absolutely, it is not an element of the offense.

Justice Kennedy: And would it be an abuse of discretion for the judge to say, I'm not going to take the guilty plea if I have to go through all this thing on sentencing.

You have to tell me how much drugs were involved.

Mr. Morley: I would be willing to give a judge that discretion.

I'm not sure that it's an abuse of discretion.

I think our district court judges are by and large well-founded in the...

Justice Kennedy: Well then, the privilege you're talking about is not as important as I thought it was from your brief.

Mr. Morley: Well, I... perhaps I've conceded too much, Justice Kennedy, but at any rate...

Justice Breyer: But then you're just making it a later...

Justice Ginsburg: Well, let me...

You just said you can make the person tell sooner but you can't make them tell later, and that doesn't make a whole lot of sense.

Justice Stevens: Well, you haven't agreed that he could make him tell.

Mr. Morley: No.

Justice Stevens: You're just saying he may not enter the plea unless you...

Mr. Morley: Right.

The judge, as far as... I mean, the judge can always say, I won't take this plea, the defendant must go to trial.

Justice Souter: Well, are you taking the... going back to the question that I started with or, it seems to me what you're saying is that the essential difference between the waiver and when the individual stands up at the Boykin hearing and the waiver when the individual takes the stand is that the only waiver that's being given in the Boykin hearing is the waiver that in fact is made with each individual representation of fact by the defendant for purposes of entering the plea, and that's as far as the waiver goes.

Mr. Morley: That's as... exactly, that's as far as the waiver goes, and...

Justice Scalia: And you're saying that the judge can condition his acceptance of the plea upon the defendant's yielding a constitutional right that the judge has no power to demand that he yield.

Doesn't this violate the doctrine of unconstitutional conditions?

I'll accept this plea, but only if you give up your constitutional right not to tell me this.

Justice Stevens: Well, you give up the constitutional right to trial, the constitutional right to... you give up a lot of constitutional rights when you plead guilty, don't you?

Mr. Morley: Yes, precisely.

But if I could get back to Mr. Justice Souter's question about the difference at a trial, at a trial, the waiver concept there is where a defendant would testify, and in that sense would be giving up his entire right because he is testifying, and that the... and the Government would have the opportunity to cross-examine him on that testimony, and really what underlies that waiver is a rule of fairness.

We're not going to let a defendant get up in front of a jury, testify as to facts, and then cut off cross-examination to matters that are relevant at trial.

In the guilty plea context the sentencing issue is simply not relevant.

Sentencing factors are not relevant to the waiver of the...

Justice Souter: Well, suppose... suppose the...

Chief Justice Rehnquist: Well...

Mr. Morley: of that... of the rights that... for the... because they do not relate to the essential elements of the offense.

Justice Souter: No, but they can.

It seems to me that it... and I... this doesn't happen in every case, of course, but it seems to me that it may very well be open to a judge to say the following at the Boykin hearing.

Number 1, this is not an Alford plea.

You're not standing here saying, look, I really didn't do it, but you know, there's a reason for pleading and so on, so your... the premise of your plea is that you really did do the things that were charged.

I, the judge, sort of believe that truth inheres in the details, and I'm not going to be satisfied that the basis is being given for this upon which I'm going to premise a knowing and voluntary waiver unless you go beyond conclusory details saying yes, I had drugs, or what-not.

I want the details to assure me that you're really telling me the truth, something that's worthy of my belief.

Certainly that is within a judge's discretion at the plea hearing.

Mr. Morley: I don't believe so, Your Honor.

I think what's important at the plea hearing...

Justice Souter: Then it would be a... I don't want to cut you off, but you then say, it would be an abuse of discretion for him...

Mr. Morley: Yes.

I would...

Justice Souter: to refuse to accept the plea under those circumstances?

Mr. Morley: I would say it would be an abuse of discretion in that sense.

What I think happens... what's important at the plea hearing is that the defendant understand the consequences.

That's what the cases say, and in that sense what the judge can do is say...

Justice Souter: Well, but he's got to understand the consequences to which he is legitimately open by virtue of his conduct, and that involves an appreciation not only of theoretical legal consequences but of the actual conduct, too, so that's the justification for the judge's inquiry.

Mr. Morley: Except the judge can achieve that, as Judge Cahn did in this case, by engaging in a colloquy that lays out, you've reserved for sentencing the drug quantity analysis which will drive your sentence.

The Government says it's more than 5 kilograms, and if they are able to prove it you'll be subject to this kind of sentence.

Justice Breyer: But...

Mr. Morley: On the other hand, you've saying...

Justice Breyer: If you say, Mr. Morley, that what happens at sentencing is not really an element of the offense at all, then why is it subject to the privilege against self-incrimination?

Mr. Morley: I would say two things.

Well, first... first, it's subject to the rules of the constitutional privilege of self-incrimination because of the language of the Constitution itself.

No person shall be compelled in any criminal case to be a witness against himself.

Sentencing is part of the criminal case, and it is an accusatorial, adversarial proceeding in which the Government has the burden of proof.

What we're saying here is that the Government can come into a court armed with a lower standard of proof.

They can take hearsay, they can take all sort and manner of evidence, but the one place they cannot take it is from the mouth of the defendant.

Chief Justice Rehnquist: But when the defendant has pleaded guilty in a case and actually been sentenced, there's no question that particular defendant could not again invoke the privilege against self-incrimination.

Mr. Morley: As to this... as to that individual, incriminatory... exactly.

Chief Justice Rehnquist: That particular element.

Mr. Morley: Yes.

Chief Justice Rehnquist: And what do you do in your analysis, if you say this is subject to the privilege against self-incrimination, with cases like Brown v. Walker and Blau v. United States, which says, once you've started to say something, once you've started to tell your story that would incriminate you, you can't stop wherever you want to?

Mr. Morley: Those cases really derive from a factual setting, a hearing, an evidentiary hearing of some manner or form.

They are really... what's grounded behind those rules of, once you start talking you cannot stop, is a sense of fairness.

We're not going to let a witness cut off inquiry, at a guilty plea colloquy defendant is frequently a monosyllabic response, yes I agree that that...

Chief Justice Rehnquist: I don't think Blau, the language in Blau doesn't say sense of fairness.

Mr. Morley: No, it doesn't, but it's what under underlies Blau.

Justice Souter: Well, how do you know that?

Chief Justice Rehnquist: Are you doing some mind-reading?

Mr. Morley: No, Your Honor.

Chief Justice Rehnquist: Well then, how do you know it?

Mr. Morley: I think that that's what... well, that's the way I read Blau and read Brown v. Walker.

Justice Kennedy: Well, let's assume there's a general principle that you can't testify as to part of a subject and then refuse to answer further questions on that subject.

Let's assume that's a general rule, which I thought it was under Rogers and cases that the Chief Justice cited.

Suppose at the sentencing hearing the defendant said, well, I did some drugs, or whatever this statement was, would that be a waiver?

Mr. Morley: No, Your Honor.

That was a... that... that statement...

Justice Kennedy: So you can make a self-serving statement?

Mr. Morley: That statement is...

Justice Kennedy: And then rely on the Fifth Amendment to refuse to answer questions to explore the accuracy of that statement?

Mr. Morley: Judge, that statement that Ms. Mitchell made was her right of allocution, which the judge specifically granted to her.

It was just a final statement to the court not meant to... not meant to be testimonial in that sense.

Justice Stevens: May I ask, was the defendant sworn either at the sentencing... at the plea colloquy or at the sentencing hearing, either one?

Mr. Morley: She was sworn at the plea colloquy.

I believe she was sworn at the sentencing.

Justice Kennedy: And at the plea colloquy was when she said, I did some of those things?

Mr. Morley: No.

That was at... when she said I did some drugs...

Justice Scalia: Yes.

Mr. Morley: but I couldn't do everything they said I did, that was her right of allocution at the conclusion of the sentencing hearing.

Justice Kennedy: At the conclusion of the sentencing.

Justice Souter: You were appealing a little earlier to what you saw as a kind of a judicial fairness rationale.

I would suppose that would work against your position here, because when someone accepts... makes a plea agreement the defendant is making the agreement because it's a good deal.

The... supposedly the sentencing risk is at least reduced to something that the individual can accept, and the individual avoids, in fact, the very messy details of trial which can affect a judge a great deal in the discretionary sentence.

If the defendant is going to get what we presume is a comparatively good deal by making the... by entering the plea on the fairness criterion and I suppose the person ought to be forthcoming about the specific facts that might bear on sentence when you get to the sentencing hearing.

Mr. Morley: That might be true if there were a plea agreement, but in this case this is a... this was an open... open plea.

Justice Scalia: Oh, was this a... this was an open plea...

Mr. Morley: There was no plea agreement.

My client pled guilty, open to the court, specifically reserving for sentence purpose the drug quantity analysis, and that was a condition of a... it was a conditional guilty plea, in that sense.

Justice Breyer: In a typical case, not necessarily yours, where there was a specific reservation, but in a typical case the judge has to satisfy himself that there is a factual basis for the plea and, in doing that, I guess the defendant either might specifically or through an admission to someone else's recitation of the facts either state or imply that it was a small amount of drugs and, in fact, when we get to the sentencing hearing there's... the pre-sentence report says, no, no, it was a large amount.

Now, the defendant there would have really made a suggestion of the sort that in a trial you would permit cross-examination about and I guess the Government's concern here is that it would present one side of the argument in any such case, and there may be quite a few such cases, and so it's simpler and clearer to just say, a waiver is a waiver.

Now, I want...

Mr. Morley: That certainly would be simpler.

the problem is, we have an accusatorial system of justice, not an inquisitional one.

That's what our Fifth Amendment cases tell us.

Chief Justice Rehnquist: Right, I...

Mr. Morley: And given that, what happens at a sentencing hearing, where the Government has the burden of proof, is that they will start calling defendants as witnesses to extract from them what it is, in fact, they did, if this court deems a guilty plea to be a waiver.

Justice Breyer: Do you think defendants, by and large, would be ill-advised to go in and testify if the judge suggests I would like to know what happened here?

Mr. Morley: I think it's a case-by-case basis.

I think...

Justice Breyer: I mean, I'd just be surprised...

Mr. Morley: I think...

Justice Breyer: that this would be invoked very often.

Mr. Morley: Well, I think that...

Chief Justice Rehnquist: It might be.

Mr. Morley: I think that... I think that there...

Justice Breyer: What happens, in fact?

You probably know.

Justice Scalia: I don't.

Justice Breyer: What... are there many cases where, when we're trying to sentence, the defendant says, by the way, judge, I'm not going to tell you my side of the story.

Mr. Morley: I think in cases, in drug cases particularly, where the Government is relying heavily upon the testimony of cooperating individuals whose credibility is suspect, as it was in this case, it is very... it is not unusual for a defendant to say, I'm not going to testify.

I'm going to rely upon whether or not the Government has established, by a preponderance of the evidence, extrapolating the drug quantities from the testimony as to whether or not he's... that they've established sufficient drug quantities to meet the various sentencing guidelines and mandatory minimums.

Justice O'Connor: Mr. Morley, how often would there be a reservation such as occurred here concerning the testimony of the defendant at sentencing.

Mr. Morley: I think this happens quite frequently because of the nature of drug... particularly in drug prosecutions.

Because of the nature of the drug prosecution, with its extrapolation, with its reliance upon informants, and witnesses who are subject to questionable credibility, it's not at all unusual for defendant to take...

Justice O'Connor: Well, there are any number of statements in cases from this Court to the effect that if someone enters a plea of guilty they've waived any Fifth Amendment protections.

Mr. Morley: Those statements, taken at face value, certainly support the Government's position, but if you look behind those statements a little bit more and look more closely, they really go to the elements of the offense, the fact of incrimination of an offense.

In Estelle, this Court... in Estelle v. Smith, this Court ruled...

Justice O'Connor: But that was a death penalty case.

Mr. Morley: That was a death penalty case.

Justice O'Connor: And we have distinguished the sentencing proceedings in death penalty cases.

Mr. Morley: Frequently this Court has done so.

However...

Justice O'Connor: We have, and I... and we held it to that, I think.

Mr. Morley: Well, Estelle first of all...

Justice Souter: There was no guilty plea in Estelle, was there?

Mr. Morley: There was no guilty plea in Estelle.

If I might address the capital sentencing aspect, Your Honor, because I think it's important, while Estelle was a capital sentencing case, it did not ground itself on the fact that it was a capital case.

It rose out of that factual setting in the same way one might say Miranda rose out of a death penalty case.

Justice O'Connor: Yes, but I think this Court in subsequent cases has made a point of that.

Mr. Morley: I don't read the subsequent cases as limiting Estelle in that way and, in fact, Estelle's based upon the broad principles of the Fifth Amendment, Gault, which is a juvenile case.

And if you look closely at some of the death penalty cases, this Court is looking at... when it says death is different, looking at the sense of... searching for more reliability in those cases, permitting a more flexible sense of due process, saying we're going to have a higher standard of due process in a death penalty case.

We want to be more reliable.

We want to be more sure, because of the different nature of the death penalty.

The Fifth Amendment compulsion against self-incrimination does not go to issues of reliability.

It goes to issues of... that... it goes to issues that ensure a particular form of justice, an accusatorial versus an inquisitional form of justice.

Justice Scalia: Are you saying that...

Mr. Morley, can I agree with you that there's no right to compel a person who's made a guilty plea to testify concerning the details of the crime, but yet not agree with you that if the person does not testify about the details at sentencing, the judge can draw a negative inference from failure to testify?

Mr. Morley: No, judge, I think... no, Your Honor.

I don't think that that can be done.

Justice Scalia: Why?

Mr. Morley: The negative inference language is... is a way that this Court has given voice to violations of the Self-Incrimination Clause of the Fifth Amendment.

Justice Scalia: How recent is that line of our jurisprudence?

Does that go way back, or is that relatively new?

Mr. Morley: Well, Griffin is a 1967 decision, so it's about 30 years.

Justice Scalia: Do I have to extend that demand that the jury do what it is very difficult for any reasonable person to do, do I have to extend that to the sentencing proceeding as well?

Mr. Morley: The cases that address... I don't think it's so much a matter of extension, but I think if you want to look at it that way, yes, you do, because this Court's cases that have looked at the right of a judge or prosecutor to take a negative inference from the invocation of the Fifth Amendment have done so along a particular divide, and that divide is a civil-criminal divide.

One looks at Ward, U.S. v. Ward.

That's a civil penalty case, a negative inference is permitted there.

Chief Justice Rehnquist: But we have... certainly in analogous situations we have drawn a different kind of line.

In Callandra, for example, we said we're not going to apply some of the exclusionary rules to grand jury proceedings, even though they would be applied to court proceedings.

Mr. Morley: Your Honors...

Chief Justice Rehnquist: One could draw a dichotomy between the actual trial, where the elements are proved, and the sentencing proceeding.

Mr. Morley: One could do that, except here, to do that would do violence to the basic principle here of, in any criminal case, and we still have...

Justice Scalia: Only if you think it's so much of a coercion that it violates the Fifth Amendment, and it really doesn't seem to be that much of a coercion.

It's certainly reasonable for the sentencing judge to say, my goodness, I don't know how much of the drug she had, but she's unwilling to tell me how much she had.

You know, that makes me think she had the maximum amount that they assert she had.

That's perfectly reasonable...

Mr. Morley: The...

Justice Scalia: and I find it frankly quite fanciful to think that this is a coercion of her... drawing this rational inference is a coercion of her Fifth Amendment right.

Mr. Morley: The problem with doing that, Your Honor, is that it burdens the Fifth Amendment right, and Griffin and its line of cases don't rest upon the fact that there are jury trials.

They rest upon the fact that it's an impermissible burden on the Fifth Amendment.

Justice Kennedy: Well, can the judge say, I'm not going to draw the inference, but I am going to increase the sentence for noncooperation?

Mr. Morley: In that case, Your Honor...

Justice Breyer: Noncooperation being defined as nontestifying.

Mr. Morley: As nontestifying.

That would be an impermissible burden on the defendant.

Justice Kennedy: Same question as Justice Scalia's.

Mr. Morley: It would be an impermissible burden on the Fifth Amendment for him to increase the sentence.

Justice Ginsburg: How about acceptance of responsibility?

A judge can give credit, as I understand it, at sentencing for a person...

Mr. Morley: Certainly.

Justice Ginsburg: who says, Your Honor, I did it, and I was really bad, boy, am I sorry, and this is what I'm going to do.

The person who stands silent is not accepting responsibility.

So my question is very similar to Justice Kennedy's, but putting it in terms of something affirmative that a defendant must do to get acceptance of responsibility for...

Mr. Morley: I think a judge could deny acceptance of responsibility in those terms because of the breadth of the sentencing guideline on acceptance of responsibility, which includes all the conduct within the offense.

Justice Scalia: Well, that's a burden on...

Mr. Morley: That's a burden on the Fifth Amendment, but it's not in the same sense, because the defendant in that case is required to make an affirmative choice.

He is to come forward and say, I want something from this Court.

I want acceptance of responsibility.

Justice Breyer: That's a hard issue...

Mr. Morley: Yes.

Justice Breyer: but can I ask a practical question I'm not clear on yet?

You're now at the sentencing stage.

Mr. Morley: Yes.

Justice Breyer: And the judge is reading the pre-sentence report, and it gives an account of the amount of the drugs, et cetera, it really is at variance with what the plea colloquy suggested, implied, said, et cetera.

Justice O'Connor: All right.

Justice Breyer: Now... so the judge now... is the... what's the judge supposed to do about what the judge has learned previously in the plea colloquy?

Is he supposed to just put that out of his mind?

What's he supposed to do about that?

Mr. Morley: He's supposed to take the evidence.

Justice Breyer: Well, does that count as part of the evidence or not?

After all, that's the factual basis for the plea.

Mr. Morley: Well, the pre-sentence report is done subsequent to the...

Justice Breyer: I know that, but he's sitting there, and he's also heard what is called the factual basis for the plea, and so my question is, what is the judge supposed to do about that set of facts which he heard earlier during the Rule 11 proceeding, and it was called the factual basis for the plea, and it may well be that the defendant had a little bit to contribute there.

What's the judge supposed to do about that when he's considering what happened?

He has the pre-sentence report, and it's different in respect to drugs than what was earlier implied.

What's he supposed to do?

Mr. Morley: He's supposed to evaluate the evidence that comes before him.

Justice Breyer: Does that include the Rule 11 part, or not?

Mr. Morley: It can.

Justice Scalia: Fine.

Mr. Morley: It can include that.

Justice Breyer: I thought so, too.

Mr. Morley: I think he has the discretion to do that.

Justice Breyer: And as soon as you say that... as soon as you say that, you suddenly realize that he may be hearing one side of the story from the defendant during that Rule 11 colloquy, when it was just barely relevant, so we didn't go into it, and now it becomes relevant, and he's not going to be able to get the other side out of the defendant, or he's not going to be able to look into it in any depth because the defendant won't testify.

Mr. Morley: Can I retract my answer?

Justice Breyer: Yes.

Unidentified Justice: [Laughter]

Justice Breyer: You know what is the true...

Mr. Morley: I think the true answer is, at a sentencing hearing is a separate stand-apart hearing, and the sentencing...

Justice Breyer: All right, so your answer is, he should not take into account...

Mr. Morley: He should not take into account what he heard at the plea.

He should take into account the evidence that's presented to him as a separate stand-apart sentencing hearing.

Chief Justice Rehnquist: Okay, but it seems to me...

A judge can certainly at a sentencing hearing decide on the basis of a defendant's conduct and testimony at the trial that he has perjured himself, can't he, or that he's lied?

Mr. Morley: Yes, a judge can take that into consideration.

Justice Souter: And can't the judge also say, look, I've heard from these people at the sentencing hearing who say that the quantity was so much.

You haven't taken the stand, and I therefore am forced to decide on the basis of the only evidence that I have, and naturally I find the evidence of the people who have testified more persuasive than silence.

I mean, that's... I can't help that.

That would have been permissible.

So that if that's permissible, then the only thing that we're dealing with here is the judge's form of words when he said, well, I'm going to hold that against you.

Mr. Morley: Well, in that sense we are taking... we are taking that differently.

In that sense that in this case what the judge said is, I'm taking this against you, I'm drawing a negative inference, and if I'm wrong, the appellate courts will send it back to me and I'll take another look at the credibility of the witnesses who testified against you.

Justice Souter: But he could have said, I'm simply going to draw a positive inference from the testimony that I did receive.

Mr. Morley: He could certainly have done that, and said based on what's before me, the Government has met its burden of proof.

Justice Souter: Pretty fine line.

Mr. Morley: It is a fine line, but in this case, what the court did was, take a negative inference against my client, use that and fashion it as part of her sentence, and expressly say, I'll reevaluate the credibility of those witnesses if I'm wrong.

Justice Souter: Let me ask you one question that may or may not go to something peculiar in this case.

You pointed out that at the rule 11 colloquy the judge referred to the waiver of the Fifth Amendment right as being the waiver of the right to silence at trial.

I think the word, at trial, was used.

Is it fair to say that once, then, the defendant says yes, is it fair to say that once the plea is taken, the waiver is as complete as the waiver would have been if the individual had, in fact, waived at trial?

Mr. Morley: If the waiver was...

Justice Souter: He says, look, your waiving the same right you would have to waive at trial.

Defendant says yes, I know that.

Judge finishes the question, says, you know, I make the appropriate findings, I accept the plea.

At that point, isn't the waiver as complete as it would have been if the individual had, in fact, taken the stand at trial?

It wasn't earlier in the plea colloquy, but once the plea is taken, isn't it complete then?

Mr. Morley: It's complete... yes, it is complete at that point.

Argument of Michael R. Dreeben

Chief Justice Rehnquist: Thank you, Mr. Morley.

Mr. Dreeben, we'll hear from you.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

A plea of guilty is an admission of a crime, and therefore inherently constitutes self-incrimination.

The effect of a guilty plea that has been entered by a court is therefore to waive the privilege against self-incrimination with respect to the conduct underlying the charge to which the defendant has admitted, and it follows from that that a court may at sentencing draw an adverse inference from the defendant's failure to amplify and explain the conduct in which she engaged that underlies the crime.

Justice Kennedy: Could the court at sentencing say, I'm calling the defendant to the stand, and then just examine the defendant?

Mr. Dreeben: Yes, Justice Kennedy, under the principle...

Justice Kennedy: I think you'd have to say that.

Mr. Dreeben: I think that under the waiver analysis of a guilty plea the judge could do that at least as to the events that underlie the very count of conviction to which the defendant has admitted guilt.

That...

Justice Kennedy: I take it that... and this is just to explore the separate proceeding, stand-alone proceeding effort.

I take it that I'm right... correct me if I'm wrong... if the target of the investigation testifies at the grand jury, that's not a waiver if there's a subsequent indictment and a trial.

Mr. Dreeben: That's the majority rule.

There is at least one decision of this...

Justice Kennedy: And I take it what the petitioner is doing here is to say that same sort of analogy applies between the plea stage Rule 11 proceeding and the sentencing.

Mr. Dreeben: That's right.

The petitioner is attempting to construct two wholly separate proceedings and apply a rule that has developed in the lower courts that says that a waiver of the Fifth Amendment is applicable only for one proceeding.

Justice O'Connor: Well, Mr. Dreeben, here we have a special circumstance, because in addition to the guilty plea this defendant expressly reserved the right to contest the amount of cocaine that she was responsible for.

Mr. Dreeben: She did.

And that...

Justice O'Connor: And the judge said, fine, I'll take your plea, and that's the deal we're going to make.

Mr. Dreeben: That's true, but that's not...

Justice O'Connor: Does that change the situation, then, on the waiver, because there was an express reservation that the judge apparently went along with.

Mr. Dreeben: No, I don't think that it changes it, Justice O'Connor.

She didn't reserve any privilege against self-incrimination with respect to the conduct that she admitted to committing in the charged conspiracy.

What she reserved was the right to challenge the Government's proof at sentencing.

Justice Kennedy: The question is not whether she reserved it, but whether she waived it.

Mr. Dreeben: Well, our position is that she inherently waives it when she stands before the court and says, I am guilty of this charged offense.

I admit that what the Government has alleged is a violation of the law that I committed.

Justice Scalia: That's all she admitted.

She didn't admit, you know, how much of the drug she had.

She violated this statute, but she didn't admit all of the sentencing elements.

Mr. Dreeben: She did not.

Justice Scalia: So why must she admit it now?

I do not see the parallel that you seek to draw between taking the stand in a criminal trial at the guilt stage, and whereupon you can be examined about anything related to the crime, and this situation, because where a person takes a stand in a criminal trial, that person is using his or her testimony as a sword, attacking the Government with it.

Whereas, where the person has pleaded guilty, the person is not using his testimony... in fact, he's using... not only is it a shield, he's using it as a sword against himself, and you're saying he has to push the sword in further than he has agreed to.

It seems to me they're totally different situations, and I do understand why when a person takes the stand the prosecution ought to be able to get everything out of them, but where the person has pleaded guilty, I don't know why the prosecution must have a right to insist that that person plunge the sword in still further.

The two situations are not parallel.

Mr. Dreeben: They are not exactly parallel, Justice Scalia, and I'm not suggesting to the Court that they are exactly parallel.

What occurs when this Court has examined the question of what is the scope of a waiver when a defendant takes the stand is, the Court asks, what is reasonably going to be furthered as a policy matter by saying the privilege either goes this far or it ends, and it's concluded that in a criminal trial, or in any trial, when a witness testifies, the fairness of the proceeding requires that all matters that are relevant to cross-examination be deemed to be waived.

In this context, there are also very strong reasons to consider the scope of the waiver to be at the minimum all of the conduct that is bound up in the offense to which the defendant pleads guilty.

Let me highlight two of the reasons, apart from the generic reason that the plea of guilty itself is an admission that the defendant has engaged in conduct that violates the law.

The first is that, at the Rule 11 colloquy, the judge does have a obligation to make sure that the defendant is fully aware of the facts that are alleged to constitute a violation of the law, and agrees that his conduct constitutes that violation.

To perform that responsibility adequately, the judge must have the authority to say, look, you know, I've heard what this charge is, it's, for example, murder, but I want to hear you tell me in your own words what you did.

Now, the defendant may have killed a person with a gun, and the defendant may also be a felon, and thereby admitting that the defendant had a gun would also implicate the defendant in an independent crime, a section 922 violation.

Now, the defendant can't realistically say, I'm going to tell you, judge...

Justice Stevens: Oh, he can't realistically, but legally he has the right to say to the judge, the reason I'm not going to tell you more is, it may incriminate me in another offense.

He could legally do that.

Mr. Dreeben: Well, I think that...

Justice Ginsburg: Could he not?

Mr. Dreeben: Yes, and the judge at that point could say, thank you, but the rule 11 colloquy is over.

Justice Stevens: I'm going to take... accept your plea.

Mr. Dreeben: That's right.

Justice O'Connor: That's right.

Mr. Dreeben: And that's why our position is, it's the entry and acceptance of the plea that effectuates the waiver with respect to the conduct underlying the plea.

The defendant who wants to plead guilty and spare society the burden of a trial, and perhaps obtain whatever sentencing benefits flow from it, must be prepared to come and tell the court exactly what he did with respect to the charged offense.

Now, the first distortion is therefore... it's going to undercut the judge's ability to carry out the Rule 11 colloquy.

Justice Kennedy: Wait.

Justice Scalia: I haven't followed you this far.

You want to go further.

I haven't followed you this far.

I understand why the judge can insist that the defendant say this or else not enter the Rule 11 order, but I don't understand why, if he hasn't asked the defendant to come out with it and enters the Rule 11 order, it amounts to a voluntary agreement to give up this information by the defendant.

Mr. Dreeben: I think the question that the Court has to answer is, what are the necessary and inherent consequences of the guilty plea, and I think that in answering that question, the Court ought to look at the consequences of going with either petitioner's rule or with our rule.

Justice Scalia: And that has nothing to do with the Rule 11 situation, it seems to me.

All we have to ask ourselves are, what are the necessary consequences of the guilty plea, and it seems to be perfectly reasonable to say, I agree that I'm guilty of the crime, and I say nothing about what the various sentencing factors happen to be.

Justice Stevens: And your position, Mr. Dreeben, would be exactly the same no matter what happened at the Rule 11 proceeding...

Mr. Dreeben: It is.

That's right.

Justice Stevens: as I understand it.

You'd say it's inherent in the guilty plea.

Mr. Dreeben: That's right, because it has the effect of prescribing to a rule that all the defendant has to do is come up and to say, bare bones, I'm going to say each element, yes, I agree to that.

I did a minimal act that amounts...

Justice Stevens: May I ask in that connection, Mr.... either in this Rule 11 colloquy where the judge is very careful on page 45 to state the nature of the waiver... you give up your right at trial to remain silent.

He did not go on and say, you also will not have a right to remain silent if there's a controversy about amount at the sentencing hearing.

In your experience, has there ever been a Rule 11 colloquy when the judge explained to him the theory the Government is now espousing?

Mr. Dreeben: I doubt it, Justice Stevens.

Justice Stevens: I do, too.

Mr. Dreeben: But the judge also doesn't explain to the defendant that upon entry of a final judgment of conviction you may be subpoenaed to testify at a grand jury with respect to all of the facts and details surrounding the offense to which you pleaded guilty.

Justice Stevens: No, but this is a routine sequence.

You first have the Rule 11, and later you have a sentencing hearing, and if your position is correct, it would seem to me that the ordinary colloquy ought to include an explanation of this consequence, which it doesn't.

Mr. Dreeben: It does not, because the purpose of the colloquy is to determine whether the defendant is pleading guilty voluntarily.

Justice Stevens: And knows what rights he's waiving, because that's why you have this paragraph in here.

Mr. Dreeben: Well, he knows... he knows certain of the rights that he's waiving, and certain of the consequences of the plea...

Justice Kennedy: Well, suppose you have this sequence, Rule 11 hearing, guilty plea.

Then the defendant is subpoenaed by the Government to testify in another related criminal case.

His sentencing hasn't occurred yet, and at sentencing there's going to be a big problem with contesting the amount of drugs.

Under your view, I take it the Government can require the defendant to testify about everything relating to the transaction, even though his sentencing is pending.

Mr. Dreeben: Justice Kennedy, we have not taken the position that the defendant can be required to testify in some other case.

There... that is not a question...

Justice Kennedy: Well, if there... if he has no Fifth Amendment right...

Mr. Dreeben: Well...

Justice Kennedy: and if it's waived, what's the basis for his declining?

Mr. Dreeben: Well, the normal rule that has been evolving in the lower courts... this Court has never squarely addressed it... is that waivers of Fifth Amendment rights are specific to the case in which they're entered.

Justice Kennedy: Ah, so now this is just a limited waiver we're talking about that's implied from your guilty plea.

Mr. Dreeben: That's right, and I don't think that that's inconsistent with the rule that in your own criminal case, when you have come forward and stood before the court and said, I'm guilty, you've effectuated a full waiver of the conduct underlying that transaction in your own case.

Now, the other distortion that can occur besides the distortion of the Rule 11 colloquy is that it gives the defendant who is supposed to be coming forward into court and admitting his guilt a tremendous incentive to minimize his culpability, to conceal facts, and otherwise to hope to skate by during the Rule 11 colloquy with an absolutely bare bones admission of what he has done, and that consequence will similarly undermine one of the societal functions of a guilty plea, which is to get somebody who's willing to come into court and acknowledge what they did to...

Justice Ginsburg: But Mr. Dreeben, that's so far from this case, where she said, I don't... I do want to contest the amount of drugs, and the judge said, fine, we'll leave that over.

I think from what she was told, one is, you are waiving any right that you would have had if you stood trial, and fine, you can contest at sentencing the amount.

There seems to be close to an element of a trap for the unwary there, and if the purpose of the Rule 11 colloquy... I thought the purpose of it was to make sure the defendant is informed and uncoerced.

Here, she is certainly not informed, because from what was told to her the reasonable inference is, okay, the judge told me I can contest the amount of drugs at sentencing, and all he said about the Fifth Amendment was, trial.

Mr. Dreeben: Justice Ginsburg, there is a potentially separate concern that I think your question goes to about adequacy of notice, and whether you were required to legally be given notice of every right that would be waived by your guilty plea before the waiver can be complete.

I don't think that this Court's cases have ever said that any right that might be waived or affected by a guilty plea beyond those rights that are specified in Rule 11 needs to be spelled out.

If there were a case-specific claim of entrapment, as Your Honor put it, that would be a separate kind of due process claim.

It does not go to the fundamental question of what the legal effect and consequence of the guilty plea is with respect to Fifth Amendment rights.

Justice Scalia: Well, frankly, if I were the trial judge and I heard her say, I reserve the right to contest the amount of the drugs, I would have thought she intended to come up and testify at the sentencing proceeding and say, no, I only had, you know, the lesser amount of the drugs.

I don't know that he was put on notice that she reserved the right not to say anything.

To the contrary.

Mr. Dreeben: Well, I think that that's right.

I think that what she reserved was the right to say, there weren't so many drugs.

Justice Breyer: But as long as she reserved it, as long as... we're talking about something, a fact that she says is in dispute, and she... it's not an element of the crime, so it really doesn't have to do with the factual basis for the plea, and I take it it's also the case that in the later sentencing hearing what she said about this at the plea, since it didn't concern an element of the crime, is really beside the point.

Justice Kennedy: I mean... all right.

Justice Breyer: So given that, you were about to list, and maybe you were doing it, the bad consequences that would flow from accepting petitioner's view, what are they?

So far I've heard you say, well, we couldn't go into the sentence in great detail, we wouldn't find out all the facts, and that's true.

Of course that's true.

That's also true when he goes to trial and doesn't waive anything.

I mean, it's always true if you have a Fifth Amendment right, so is there any other bad consequence that would flow from accepting his view?

I mean, I absolutely agree with you that a judge couldn't go into... by definition couldn't go and find out from the person who's asserting the right what happened, but I think that's true whether they plead guilty or not.

Mr. Dreeben: Well, I think that that is a sufficiently...

Justice Breyer: Is there any other... is there any other bad thing that would flow from accepting his view of the case?

Mr. Dreeben: I think there are really three.

One... and I have tried to cover them, Justice Breyer, so I'm not suggesting I have a new one.

One is that I think it's inherently inconsistent with what society expects in a guilty plea, that a defendant will come forward, acknowledge the conduct that they did, and admit that it's a violation of the law, and society can accept that as a method of resolution of a criminal case rather than a trial because there is a value to having somebody acknowledge it.

Second is that it will distort Rule 11 proceedings by limiting the judge's ability to find out what the defendant exactly did.

Justice Breyer: Right.

He says, you know, you'd better tell me what you did.

I don't know that there's a factual basis for this plea.

Please tell me.

Well, I can't imagine a defendant under those circumstances who wants to plead guilty not telling him.

Mr. Dreeben: Well, a defendant...

Justice Breyer: I mean, the defendant might say, okay, forget it, I'll go to trial, but...

Mr. Dreeben: Well, if the defendant had the...

Justice Breyer: if the judge says please tell me, I mean, she's going to tell him.

Mr. Dreeben: Justice Breyer, if the defendant has a Fifth Amendment right, as petitioner contends, then the defendant will say, well, I don't have to tell you those kinds of details.

Justice Breyer: Fine, he says, and I don't have to accept your... I don't have to accept your guilty plea.

Mr. Dreeben: Well, it's not clear to me on what basis he would have to reject it.

Justice Breyer: I don't have the adequate factual basis here under (f), 11(f) or whatever, 11... you know.

11(f), is it, whatever.

Justice Stevens: May I ask you, on the facts of this case, where the woman said, I want to contest the amount, and that implied to the judge she probably would be going to get on the stand and testify, supposing at the sentencing hearing the probation... the pre-sentence report said, we've looked at the evidence as best we can, we thought we had some reliable witnesses who would testify to X amount of drugs, but our witnesses don't stand up, we don't know what the amount was.

Now, is it your view that the prosecutor could say, well, we can't prove it, but we'd like to put her on the stand and cross-examine her and see if we can't get her to admit it?

Justice Breyer: I think that's your view.

Mr. Dreeben: Yes.

That... the waiver analysis that we have put forward suggests that at least as to the facts surrounding the conspiracy to which she admitted, the Government could do that, or... and the court could ask her to testify.

There is, of course, a narrower basis for looking at this particular case, because that did not happen here.

What happened here is that the judge had a substantial amount of very credible evidence before him, and he concluded, the Government has given me this much, you have given me nothing.

Justice Stevens: And of course, as Justice Souter said, it's a very fine line.

The judge could very well have said, the evidence is uncontradicted, I'll accept it, and I'll enter a sentence accordingly.

Mr. Dreeben: Well, that's right.

Justice Stevens: So the Government... you don't lose a lot if you don't... if you are not able to draw the negative inference, because you still have the affirmative evidence of amount on which you can still rely.

Mr. Dreeben: That's true.

I... the Government came to this sentencing prepared to prove up the facts that supported the sentence.

Chief Justice Rehnquist: Well, one senses that Judge Cahn actually wanted to raise an issue that would go up to the Third Circuit and perhaps here.

Unidentified Justice: [Laughter]

Mr. Dreeben: I think, Chief Justice Rehnquist, that he perceived accurately that this would be a novel question of law.

Justice Kennedy: You had a third... you said, number 1, it distorts the societal expectations, number 2 it distorts the Rule 11 hearing, and number 3...

Mr. Dreeben: It gives the defendant an incentive to conceal and minimize his own criminal conduct, so instead of the defendant coming into court and being willing to make a fair statement of what he actually did, you can envision a defendant thinking quite carefully with counsel about what to admit and what to attempt to get by.

Justice Breyer: All right, you know... you may or may not know this.

It's just a factual, empirical matter, but it still comes as a little bit of a surprise to me that many defendants, when asked by the judge at the sentencing hearing as to a contested matter what their side of the story was, would say, I'm not going to tell you.

I mean, does that happen very often?

Mr. Dreeben: No.

No, it does not, Justice Breyer, but I think that that's consistent with our view that...

Justice Breyer: All right.

So this might be a tempest in a teapot.

Mr. Dreeben: Well, if this Court holds that there's a Fifth Amendment right with respect to sentencing facts that do not relate strictly to the elements of the offense in the closest way, I think a great many defendants may...

Justice Scalia: Why?

Mr. Dreeben: seek to exploit that.

Justice Breyer: You know, but the... exploit it.

They would be losing the opportunity, as here, the woman seemed to say, which I think Justice Scalia said, that maybe she's going to present some evidence later on.

Mr. Dreeben: Well...

Justice Breyer: She wants to deny what the pre-sentence report's saying.

Do you think they will?

Why do you think that?

Mr. Dreeben: Well, simply because it will deprive the sentencing court and the Government of just that particular piece of evidence that may be relevant both to the crime and sentencing.

Justice Souter: Yes, but why isn't the answer to that and the answer to the distortion of the Rule 11 argument that the judge simply has to make it clear at the time that the plea is taken that if the plea is accepted the right is being waived not only with respect to testimony at trial, which was the term he used here, I guess, but at sentencing?

All he's got to do is add a couple of words, and there will then be no question about the scope of the waiver.

It's true we might have a question later whether, when the person said, well, I won't waive it as to sentencing, whether the judge can then refuse to take the plea, but that's unlikely, too, so why isn't that fairly simple answer dispositive of your concerns?

Mr. Dreeben: I don't have any objection, Justice Souter, to a judge accurately informing a defendant of more consequences of a guilty plea than are required by the current version of Rule 11.

Justice Souter: Well, he's simply making explicit to a lay person what in fact is being done.

I mean, the reason for the Boykin hearing is to make sure the defendant who is not a lawyer knows what the consequences will be, and all you're doing if you add the reference to waiver as to sentencing hearing is just being complete, whereas under the colloquy that took place in this case it was not totally complete on your view.

Mr. Dreeben: Well, Justice Souter, that amendment of Rule 11, or the Rule 11 colloquy, is consistent with our position that that's the effect of the guilty plea.

The Rule 11 in its... colloquy in its current form should not drive the constitutional conclusion that this Court reaches.

If the guilty plea constitutes a waiver of the privilege with respect to at least the conduct that is subsumed in the count of conviction, then there's nothing wrong...

Justice O'Connor: Well, but if we take the view that all the guilty plea does under a colloquy like this is deal with the elements of the crime, not something that's purely a sentencing factor, I can envision a statute where the quantity is an element.

But that wasn't this one, apparently, and under those circumstances, I guess a prosecutor could say to the defendant, we're not going to take a plea unless the plea makes clear that at sentencing it's a waiver of any Fifth Amendment privilege that you might want to assert at sentencing as well.

Mr. Dreeben: That is true...

Justice O'Connor: I mean, a prosecutor could do that.

Mr. Dreeben: That's true, Justice O'Connor, and a defendant could similarly say, I want to enter a plea of guilty, but I want the Government to agree that it will shoulder the load at sentencing.

Justice O'Connor: Well...

Yes, but you could say, fine, then we won't agree.

Mr. Dreeben: That's right.

This then will establish...

Justice Ginsburg: End of story.

Mr. Dreeben: a baseline from which parties can enter into plea agreements.

Chief Justice Rehnquist: Is it entirely consensual?

I mean, if the petitioner is right that where you deal separately with the elements of a crime, you've pleaded guilty, you waive the plea there, but you don't with respect to sentencing, then can... could either the prosecutor or the judge simply condition their acceptance of a plea on a further waiver without being charged with burdening the privilege against self-incrimination such as we've said in some other cases?

Mr. Dreeben: Chief Justice Rehnquist, the claim would be made... my response would be that a prosecutor can exert considerable pressure on a defendant to waive all sorts of constitutional rights in the course of a guilty plea, and to give up statutory rights as well, and there's nothing inherently unconstitutional in a procedure in which there is that kind of give-and-take, so I don't think that affirming the view that petitioner has put forward would preclude the Government from trying to vary it by contract.

But by the same token, if I am correct that the plea does constitute a waiver, nothing would prohibit a defendant from coming in to the prosecutor and saying, I am willing to plead guilty and spare you a trial.

I do have a contest about the sentencing facts, and I think that if you've got the evidence you ought to put it on.

I don't want to have my client testify.

And at that point the Government can decide, is that an advantageous plea, or a disadvantageous plea agreement, and the parties can set that ground rule.

This case will not preclude parties from achieving legitimate goals that they might wish to achieve through plea agreements.

Justice Scalia: A prosecutor can agree that a certain witness will not appear before a Federal judge?

Mr. Dreeben: Justice Scalia...

Justice Scalia: A prosecutor can sort of arrange the witness list for a Federal court, then?

Mr. Dreeben: He can certainly agree that he is not going to call witnesses, or put on certain evidence.

Justice Scalia: If I were the judge, I would call that witness myself, the witness most knowledgeable.

If that witness has no constitutional right not to testify on the point, I just don't see how you could guarantee him that he wouldn't be called.

Mr. Dreeben: You can't, but it could be written into the plea agreement that if the court doesn't accept that plea agreement term, it will reject the plea agreement, and at which point the defendant has the option of withdrawing the guilty plea and can go back to ground zero with the prosecution and determine what the most advantageous arrangement really is.

I agree with you that a Federal court would not necessarily and inherently be bound to live within the terms of the parties' arrangement, but the Federal Rules of Criminal Procedure provide the outcome when the Federal court concludes that it will not do that.

Justice Stevens: May I ask one other question?

Supposing this was a capital case, rather than this kind of case, and the defendant wanted to make exactly the same arrangement.

He would plead guilty to the murder, but he wanted to contest the aggravating factors at sentencing, and the same colloquy you had here.

You take it he would not have a... he could be called to the stand and cross-examined about aggravating factors because he pleaded guilty to the crime?

Mr. Dreeben: Justice Stevens, presupposing that some of the aggravating factors were bound up in the very conduct.

Not all aggravating factors are.

Justice Kennedy: No.

Mr. Dreeben: But I... yes.

Justice Stevens: You would draw a distinction between those that were and those that were just prior criminal record, or something like that?

Mr. Dreeben: Yes.

I... that would ultimately depend on whether this Court wanted to create a special rule for capital cases that would be distinct.

Justice Stevens: The logic of your position would apply to that.

Mr. Dreeben: Yes.

The logic of my position is uniform as to the scope of the waiver that is achieved at sentencing.

There are various...

Justice Stevens: The waiver would just flow from the plea of guilty.

Mr. Dreeben: It would.

Justice Stevens: But not the nature of the colloquy, or anything like...

Mr. Dreeben: It would.

Hardly any... none to my knowledge... capital prosecutions are resolved by a plea of guilty to the offense and trial on sentencing.

It is theoretically possible, but most jurisdictions put the question to the trier of fact, and most capital defendants will take their chance at acquittal or conviction of a lesser offense rather than plead guilty and place all of their bets in the sentencing hearing.

Justice Stevens: Oh, we've seen a fair number of capital cases where they plead guilty and hope to get a life sentence.

Mr. Dreeben: Yes.

No, that's true, and at that point they've avoided the possibility of a capital hearing altogether, but if they plead guilty to a capital offense and then stand capital sentencing, that would be quite an extraordinary situation in my experience.

Justice Ginsburg: What would be the result if this had been an Alford plea?

Mr. Dreeben: That would depend, Justice Ginsburg, on how this Court ultimately resolved the question of what an Alford plea really is.

In the Federal system, Alford pleas are extraordinarily rare.

They are susceptible of being characterized as a plea of guilty, which the Court seems to have done in the Alford case itself, but they are also susceptible as being characterized as pleas of no contest in which the defendant is admitting that these charges have been made, the facts have been put before the court, and I believe that I'm innocent, but I'm going to allow the court to enter judgment against me.

If the Court categorized the Alford plea into the basket of guilty pleas, then my position would be the same.

It is the legal effect of the guilty plea to accomplish a waiver of the privilege within the zone of facts encompassed by the plea.

If the Court instead viewed this as no... it's really more like a plea of nolo contendere in the historical sense, then I don't think that it would necessarily amount to an admission of commission of a crime.

It's really consent to the imposition of criminal punishment.

Justice Ginsburg: So then the Fifth Amendment privilege would have been retained at the sentencing.

Mr. Dreeben: I think that it's possible to conclude that it would have been retained, at least on the theory that we have articulated before the Court today.

Alford pleas are so anomalous in the standard run of guilty pleas that it's tricky to say exactly what they are, but the normal guilty plea unquestionably is a full-fledged waiver of the privilege against compelled self-incrimination.

Indeed, it is self-incrimination, and we simply take the view that once one comes forward to the court to do that, you cannot withhold the details of the offense to which you have pleaded guilty.

Justice Ginsburg: Are you... is your position different from Judge Slovener, because as I recall she didn't put Rule 11 into her analysis at all.

Mr. Dreeben: I think, Justice Ginsburg, that the Third Circuit went back and forth between two different rationales.

One rationale begins with the guilty plea analysis that we have stretched out in this Court to articulate more factors.

The other part of the Third Circuit's rationale seems to be the notion that there is no privilege against self-incrimination with respect to facts that can serve to enhance your sentence.

The logical implication of that position is broader than the position that we've taken in this Court.

The logical implication of that position is that a defendant who goes to trial and does not take the stand and is convicted would then forfeit any Fifth Amendment privilege with respect to the criminal sentencing.

The Third Circuit didn't have to confront that situation, and I do not know what the Third Circuit would have answered to that question, but there are enough elements in the Third Circuit decision that are consistent with our position, so I think it's fair to say that this was and is a guilty plea case.

The essence... thank you.

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Balsys - Oral Argument

Fri, 09 Jan 2009 14:50:05 +0000

Case:

United States v. Balsys

Media File:

97-873_19980420-argument.mp3

Related Transcript:

1997_97_873_argument.xml

Transcript:

Argument of Michael R. Dreeben

Chief Justice Rehnquist: We'll hear argument now in Number 97-873, United States v. Balsys.

Mr. Dreeben.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

The question in this case is whether the Fifth Amendment privilege against compelled self-incrimination may be invoked based on a fear of foreign prosecution.

For three main reasons, we submit that it may not.

First, the prohibition against compelling a person to be a witness against himself applies only in a criminal case.

By that phrase, the Framers meant a Federal criminal case.

The Self-Incrimination Clause is one of a series of rights set forth in the Fifth and Sixth Amendments that are naturally read to govern criminal trials in this country, not foreign criminal cases.

Second, history teaches--

Unknown Speaker: Mr. Dreeben, in the Arndstein case the Court extended the privilege outside of the scope of a criminal trial, didn't it?

Mr. Dreeben: --That is correct, Mr. Chief Justice, in this respect.

The privilege may be claimed by a witness in any proceeding, regardless of whether the proceeding is civil, criminal, or administrative, so long as what the witness ultimately fears is incrimination in a criminal case.

The proper referent to determine whether the Self-Incrimination Clause may be invoked therefor is not the type of proceeding in which it is claimed in this country, but rather the type of proceeding in which the witness actually fears incrimination, and that point is borne out by the history of the clause.

Unknown Speaker: Mr. Dreeben, before you proceed further, would you tell me why 18 U.S.C. 1001 isn't in this picture?

It did involve a false statement to the United States, so why is it seemed to be conceded that there is no criminal case in the United States?

Mr. Dreeben: There could be, Justice Ginsburg, if these statements had been made within a period prosecutable under the statute of limitations, but the original statements that respondent made to gain entry to the United States were in 1963, and the general 5-year statute of limitations has long since run on any prosecution for false statements based on that event and, as a result, the witness is not in a position to claim a fear of domestic incrimination based on any contradiction with his prior statements and I think it's conceded in this case that the only claim of self-incrimination is based on what a foreign power might do if it had custody over respondent and instituted a case.

There is no claim in this case that there is a domestic fear of prosecution by either the State or the Federal Government based on the statements that he has made.

Now, the history of the Self-Incrimination Clause in this country points strongly to the conclusion that the words, any criminal case, in the Fifth Amendment refer only to a Federal criminal case.

In the era before this Court extended the--

Unknown Speaker: Wait.

You just told us that that refers to the case in which he is asked to testify, not the case in which he would presumably incriminate himself, right?

Mr. Dreeben: --I'm not sure, Justice Scalia, whether I was clear before, so let me try to make it clear.

Unknown Speaker: All right.

Mr. Dreeben: The case in which the incrimination must take place--

Unknown Speaker: Right.

Mr. Dreeben: --must be a criminal case, by which the Fifth Amendment in our view means a Federal criminal case.

The privilege can be claimed by a witness in any proceeding in which he is asked to give compelled testimony, not based on his concerns about what might happen to him in that proceeding, but based on concerns about what might happen to him in a criminal case down the road.

Unknown Speaker: I understand, but I don't understand how you read the phrase, in any criminal case.

No person shall be compelled in any criminal case to be a witness against himself.

Where is the compulsion?

Is the compulsion in the case in which I am summoned--

Mr. Dreeben: Yes.

Unknown Speaker: --to testify?

Mr. Dreeben: Yes.

The compulsion can be in the case in which you are compelled to give testimony under oath, as in this case, in our view, by a... backed by the contempt powers of the court if you decline to give testimony, so the compulsion can occur in any proceeding.

Unknown Speaker: All right.

Mr. Dreeben: But you need also to have incrimination.

The two interlinked requirements of the clause are compulsion and incrimination, and the question here is whether the incrimination can be in a case not brought in this country by the Federal Government or a State, but by a foreign Government.

That is the question before the Court in this case.

Unknown Speaker: And that's the implication in the latter part, to be a witness against himself, and a witness where is what we're debating.

Mr. Dreeben: That is exactly right.

The question is whether it can be triggered based on prosecution abroad.

Now, if you look at the text of the Fifth and the Sixth Amendments together, which is the logical way to read them because they contain the essential criminal procedure proscriptions that are applicable in trials in this country, the Fifth Amendment seems almost inevitably to be limited to criminal cases brought by the Federal Government.

There can be no dispute that the original intent of the Framers of the Bill of Rights was to impose limitations only on the Federal Government, not on the States, and this Court consistently held, in the era before the Fourteenth Amendment was ratified and thereby made certain constitutional protections applicable to the States, that none of the provisions in the original Bill of Rights govern State proceedings and, as a result, State witnesses could not claim the protection of the Fifth Amendment.

In that regime, in other words, State witnesses who feared incrimination by a State could not say that they feared incrimination in any criminal case, because State prosecutions were not deemed subsumed within the Fifth Amendment, and there are several textual references that make sense only if read that way.

The Sixth Amendment refers to all criminal prosecutions, yet it is quite clear that by that reference the Framers did not intend to refer to State criminal prosecutions, and far less sensible would it be to think that they were referring to foreign criminal prosecutions.

The only criminal prosecutions that were originally subsumed by the Sixth Amendment were domestic criminal prosecutions.

Unknown Speaker: But that goes to where the compulsion is, not to where the incrimination is, doesn't it?

Mr. Dreeben: No, Justice Scalia.

I think what it goes to is by what did the Framers mean the words, any criminal case, to refer to?

Originally they only meant them to refer to a Federal criminal case and, as a result, this Court held that if a Federal witness was compelled to testify, he said, look, I don't have any concern that I'm going to be incriminated in a Federal criminal case, but I am worried that in the State of Maryland I might be incriminated.

This Court held that is not a basis for declining to give testimony, because the criminal case in which you fear incrimination is not a Federal criminal case.

Unknown Speaker: That was before the Murphy decision.

Mr. Dreeben: That is correct, Justice Ginsburg.

Unknown Speaker: And why shouldn't it be that the concern is controlling the conduct of the Federal actor, whether a Federal agent, a police officer... if the amendment is directed against the compulsion, the action that is prohibited is compelling the testimony, why should it matter where the criminal case is instead of who is doing the compelling?

Mr. Dreeben: Well, Justice Ginsburg, it always has mattered where the criminal case is, and once this Court held in Malloy v. Hogan that the Fifth Amendment applied equally to the States and to the Federal Government, this Court in the Murphy decision changed the former Federal rule and held that the Fifth Amendment may now be claimed whether the prosecution that is feared would occur in a State or in the Federal Government.

The theory behind that is that any jurisdiction that is bound by the Fifth Amendment should not be able to receive testimony that was compelled by another jurisdiction, also bound by the Fifth Amendment, and use it to convict someone.

So under the Murphy decision two jurisdictions, each bound by the Fifth Amendment, cannot evade that constitutional guarantee by having one compel the testimony and the other one use it, but that is a value that primarily relates to the way we try criminal cases in this country.

Like the presumption of innocence and the requirement of proof beyond a reasonable doubt, the Fifth Amendment fits into a mosaic of rights that express the view that it is the Government that must prove the defendant's guilt without the assistance of compelling the defendant to incriminate himself out of his own mouth and thereby confess himself into a Federal or a State prison.

Unknown Speaker: Is there anything in our cases which would allow the respondent to make the argument that there is an additional protection in the Fifth Amendment Self-Incrimination Clause that it is simply degrading or destructive of the dignity of the person to be required to answer and to confess a crime?

Mr. Dreeben: I think that that is one of the components that this Court has identified as a value underlying the Fifth Amendment, but it again relates primarily to a value about how we prosecute individuals in this country.

It says nothing about whether another country might choose to adopt a different criminal law system.

Unknown Speaker: Well, but I'm not so sure, and do you get that out of Malloy or Murphy?

Where do you get this interest in individual dignity or autonomy?

Mr. Dreeben: Well, to the extent that one identifies an interest in individual dignity or autonomy, it does not extend so far as to say the Government cannot exert compulsion.

By granting immunity--

Unknown Speaker: Of course, because you can have immunity.

Mr. Dreeben: --That's correct.

The Government has always had the countervailing ability to grant immunity and then to compel an individual to say anything about himself that he knows honestly, no matter how offensive it is to him personally, no matter whether it would subject him to personal humiliation or jeopardy of life.

So long as it's not used against him, those words--

Unknown Speaker: Which leads me to think that there is no freestanding interest in just individual dignity, that it's... the only question is whether or not it can be used by the Government which is going to prosecute him.

Mr. Dreeben: --I think that that is exactly right, Justice Kennedy.

It is not a freestanding interest.

It's an interest that it is integrally interlinked with the potential for incrimination, and--

Unknown Speaker: Mr. Dreeben, can the Federal Government compel testimony that would incriminate someone in a State proceeding by giving him immunity from the State prosecution?

Mr. Dreeben: --Yes.

It's settled that the Federal Government has the authority under the Supremacy Clause to declare that testimony that is compelled will not be used against an individual in a State proceeding.

Unknown Speaker: In a State proceeding as well.

What case--

--What case settles that?

Mr. Dreeben: That I think is settled by the Kastigar decision, by the Murphy decision, by Brown v. Walker, and by Adams v. Maryland.

I believe we cited all of these cases in our brief that specifically address the Federal Government's power to do that.

Unknown Speaker: Mr. Dreeben, is it possible that the Federal Government, for example in this case the OSI, might want to cooperate with a foreign nation to see the individual prosecuted elsewhere and have a motive to--

Mr. Dreeben: Certainly--

Unknown Speaker: --secure the testimony to help the foreign prosecution?

Mr. Dreeben: --Well, I think in a case like this the Justice Department has dual interests.

There is a Federal law that provides for the deportation of an individual who lied to get into this country and who assisted the Nazis in persecuting Jews during World War II, and that is a distinct Federal interest that is being enforced by OSI.

It is also true that OSI regards it as a proper component of its mission to see to it that information that may be relevant to a foreign Government's consideration of prosecution is provided.

Unknown Speaker: Well, should that make any difference in our concerns about this case, if it's that kind of a situation?

Mr. Dreeben: I don't think it should make any difference whatsoever, Justice O'Connor, because the underlying question here is not whether it would be fair in a United States prosecution to use this information.

The question is whether the United States Constitution has something to say about the way foreign Governments conduct their prosecutions.

There is no country that I'm aware of that has a Fifth Amendment right, or a mirror image of the Fifth Amendment right that looks just like ours.

Unknown Speaker: Do foreign countries scratch our backs, too?

I mean, do we get people to testify before the courts of foreign countries that don't have Fifth Amendment protections, knowing that what they say can be used in a Federal criminal prosecution?

Mr. Dreeben: We don't, Justice Scalia.

My understanding is that we provide sufficient information to the foreign Government and ask them to provide information to a witness when we are seeking testimony from overseas about applicable privileges.

Now, the traditional rule about how the privileges are supposed to be applied when countries cooperate in securing testimony is that the foreign country will take the testimony subject to any claim of privilege, and then the privilege is adjudicated in the home country where the privilege actually derives from, but it is not--

Unknown Speaker: After the testimony is already taken.

Mr. Dreeben: --Right, but it is not the--

Unknown Speaker: After the cat is out of the bag.

Mr. Dreeben: --That is true, Justice Ginsburg.

It's not the policy of the United States Government to seek to... that that happen in every case and, as a result, I'm not aware of instances where we did have a foreign Government act as our agent, compelling testimony that would be prohibited if the United States were acting alone.

Obviously, that raises a somewhat separate question from the question here, which is whether the United States may use an agent or an intermediary to accomplish something that it cannot accomplish acting directly, but that is an entirely separate question from whether a witness in this country in a domestic U.S. proceeding may claim the Fifth Amendment based not on a fear of prosecution here, but by a fear of what might happen to him if he is... finds himself in a foreign country and the testimony ends up there.

Unknown Speaker: I take it, then, to your argument it makes no difference whether the foreign country is a country that has a comparable privilege, perhaps, or strata, or whether it's a country that's typical of a civil law system that would not?

Mr. Dreeben: It does make no difference, Justice Ginsburg, because again, I think that the fundamental concern of the Fifth Amendment and as applied to the States through the Fourteenth Amendment is how we conduct our criminal prosecutions here.

Unknown Speaker: Why is that?

That is, if... I'm thinking only of the Fourteenth.

I agree with you that, let's say hypothetically the Fifth is Federal.

They're talking about a Federal trial, but the Fourteenth uses the word liberty, and it protects a person's liberties.

So if there's a person in Ohio who would be deprived of a liberty by having his testimony taken and used in an Ohio proceeding, it would deprive that person of a liberty, so he must have a liberty not to have his testimony forced from him for Ohio.

Why is it different from Lithuania?

Mr. Dreeben: It's--

Unknown Speaker: I mean, the Fourteenth Amendment doesn't talk about what Ohio can do.

The Fourteenth Amendment talks about the liberty that a person enjoys.

Mr. Dreeben: --It's different because Ohio, unlike Lithuania, is bound by the Fifth Amendment privilege against compelled--

Unknown Speaker: Where does it say that in the Constitution?

I thought all that it says in the Constitution is that you cannot deprive a person of a liberty.

It says no State shall deprive a person of a liberty.

We're talking about a liberty.

What's the liberty?

Mr. Dreeben: --The liberty, I think, in your hypothetical is ultimately freedom from incarceration.

The question is whether Ohio may use the information that Illinois has extracted for purposes of prosecution, and this Court in the Murphy decision attempted to make sense out of our Federal system in which all jurisdictions are bound by the Fifth Amendment by saying that two jurisdictions who are equally bound by the Fifth Amendment cannot team up--

Unknown Speaker: Mr. Dreeben, may I just interrupt?

It isn't technically and strictly correct to say that the State is bound by the Fifth Amendment.

Mr. Dreeben: --No.

Unknown Speaker: It's bound by the Fourteenth Amendment--

Mr. Dreeben: That's correct.

Unknown Speaker: --which has a liberty protection which is somewhat comparable, or is comparable to the Fifth.

Mr. Dreeben: Well, I think--

Unknown Speaker: But strictly speaking the State is not bound by the Fifth Amendment.

Mr. Dreeben: --That is correct, strictly speaking it's not, but the Court in Malloy v. Hogan said, we are going to apply the Fifth Amendment to the States just as we apply it to the Federal Government.

Unknown Speaker: And when we say just as we apply it to the Federal Government, there is no case, with reference to the Fourth Amendment search rules, the Fifth Amendment self-incrimination or double jeopardy rules, or the jury trial rules in which the State protection is any greater or any less than is granted to... under the Federal... than is applicable to the Federal Government, is that not correct?

Mr. Dreeben: Once the Court has made the decision to extend the right in question to the States through the Fourteenth Amendment, that's correct.

Unknown Speaker: They are coterminous in each case.

Mr. Dreeben: They're coextensive, and the fundamental premise of the Murphy decision is that we do have cooperative federalism in this country when it comes to law enforcement, and it makes very little sense to say that once the States are no longer free to compel testimony under the Federal Constitution, that they may then operate together and achieve results that they couldn't achieve--

Unknown Speaker: Can I ask you about that, because I was just testing out the linguistic argument, that's why I was... Justice Stevens made the point linguistically, but I have a practical question, which is why... how specifically would extension of the protection that you oppose interfere with Government law enforcement efforts?

In particular, I'm thinking that it must be perhaps a fairly unusual case where, say, as here, the statute of limitations has run, 5 years, so there's no risk of domestic protection.

I'm guessing that in most cases anybody who can assert a Fifth Amendment privilege in respect to a foreign country probably could here, too, so I'm interested in... I'm raising that so you'll respond to the real practicality, how would extension really interfere with law enforcement efforts?

Mr. Dreeben: --The extension of the privilege to foreign prosecutions would seriously interfere with domestic investigations, because we cannot grant immunity from a fear of foreign prosecutions.

Unknown Speaker: Why don't you just say to the person you wouldn't deport him?

Mr. Dreeben: That has not been considered by most courts an adequate answer to concerns about the Fifth Amendment.

The Fifth Amendment is not... does not stand as a guarantee that depends on whether later events bear it out.

Unknown Speaker: But doesn't there have to be a realistic threat of prosecution, and if you say you're not going to deport him, then there's no realistic threat.

Mr. Dreeben: No, there may well be a realistic threat of prosecution because a foreign country may issue an extradition order to us, so we then have the discretion to say, well, we're not going to comply with the terms of our extradition treaty, but we then have to answer to the world community for our decision not to do that.

In a case in which, for example, an act of terrorism occurs abroad that involves citizens of foreign States, we may apprehend some of them, bring them to this country, learn that they fear domestic prosecution, and issue an immunity order which would ordinarily require them to testify, but they may say no, I'm sorry, I'm not going to testify because I still fear prosecution abroad.

Unknown Speaker: Well, isn't there considerable administrative difficulty in applying the rule sought by the respondent here?

Courts in this country are going to have to analyze whether the fear is realistic or not and really familiarize themselves with a number of different kinds of foreign law.

Mr. Dreeben: There are a number of practical implementation questions, Chief Justice Rehnquist, as you raise.

In the jurisdictions where a claim like this could be raised, courts will have to go through, as they did in this case, several bodies of foreign law and try to make appraisal of the realistic ability of a foreign government to prosecute, and that stands quite a bit in contrast to the domestic regime in which, once the privilege is raised, it stands as an absolute, except that the Government has immunity power, and the immunity power has always been viewed as essentially coextensive with the reach of the Fifth Amendment.

Unknown Speaker: Outside of a witness who is a defendant in a criminal trial, you have to show that there is a likelihood of incrimination in the answer.

You can't just say, I plead the Fifth Amendment, period, and automatically get off.

Mr. Dreeben: That is certainly true, but the way that the test is applied in the lower courts is not terribly demanding.

Normally, if a witness can identify a body of law under which he contends it's conceivable that he might be incriminated, he's not required to go much further than that.

Courts don't typically take in camera testimony to determine whether the answers would really be incriminating, and they don't typically ask whether the State or Government prosecution that is feared is really likely to happen.

It's generally enough simply to assert that there is testimony that would incriminate the individual and to identify a law under which that might happen, and the Government's next step is ordinarily immunity if it wants the testimony.

But immunity orders aren't going to work in this context, because we rarely are going to be able to guarantee that the immunity order will actually be coextensive with the scope of the privilege and prevent the use of the testimony overseas and, as a result, we may well be in situations where we're investigating serious terrorist activity, or interstate... international drug trafficking, money laundering, white collar crime, and we are helpless to attain our prosecutorial objectives because an immunity order simply doesn't work.

Unknown Speaker: Suppose that in this case or a similar case there were three grounds for deportation, each of them fairly substantial, so that you're going... you know you're going to be able to deport this man anyway.

If ground number 1 were lying on the application, could the Government say, we don't really need your testimony because we're going to be able to deport you anyway, but we want it in order to help Lithuania, or Israel, or some other foreign country?

Would that be a legitimate basis for the Government to compel the testimony?

Mr. Dreeben: As long as the Government has a law that it's seeking to enforce in that circumstance, I don't see any reason why the Fifth Amendment question would change.

Now, it is conceivable that if the Court were to hold that the United States were somehow completely in control of a foreign prosecution so that some foreign Government's prosecution were really nothing but a sham, a cover under which the United States were really the prosecuting entity, then the analysis might be different.

This Court had suggested that there might be an exemption to the traditional dual sovereignty rule under the Double Jeopardy Clause, which allows the States and the Federal Government each to prosecute.

If in a particular case a defendant could show that in reality the State prosecution was simply a cover for the Federal Government to take over and do it as a tool, the--

Unknown Speaker: Well, the hypothetical I put is a little different.

It's not that the foreign prosecution is a cover, but that the United States is very eager to assist the foreign prosecution.

That makes no difference in your view?

Mr. Dreeben: --I... no, that makes no difference, because the ultimate constitutional question is whether the criminal case in which incrimination is feared is a criminal case within the meaning of the Fifth Amendment.

Our essential position is that no foreign criminal case fits within the language of the Fifth Amendment, construed in light of its history and its policies and, as a result, it simply doesn't matter that the witness may say, I fear incrimination overseas because the United States may cooperate with a foreign government.

Now, again, the role of immunity statutes here, in our view, is key, because there has never been a time in this country in which a claim of the Fifth Amendment privilege could not be met by the Government seeking to get the testimony through granting immunity, but if this rule proposed by the respondent and accepted by the Second Circuit were adopted, it would mean that the United States would no longer be able to obtain needed testimony and it would put a witness who feared foreign prosecution in a better position than a witness who fears domestic prosecution.

Unknown Speaker: Of course, the Constitution would have had the same meaning, I suppose, if the Congress had never passed any immunity statutes.

Mr. Dreeben: The Constitution would have, and it would have meant that immunity statutes would be permissible if a legislature wished to pass them.

The historical fact is that, as the Fifth Amendment right developed in the common law in England, simultaneously it was recognized that testimony could be compelled if immunity was granted and, in the colonies in this country which adopted precursors of the Fifth Amendment privilege, immunity statutes were also enacted.

Now, the Federal Government didn't get into the business of enacting immunity statutes until about 1857, but I think that's largely explicable by the very small role of the Federal Government in prosecuting criminal cases in the early years of this Nation.

Unknown Speaker: Yes, but the Second Circuit's suggestion was that the Congress could pass statutes in the extradition and deportation area that are analogous to the immunity statutes in the domestic area.

It could thereby do just what the immunity statutes have done.

Mr. Dreeben: No.

Unknown Speaker: Why not?

Mr. Dreeben: It would do far more--

Unknown Speaker: Yes.

Mr. Dreeben: --Justice Breyer, because an immunity statute in this country grants the witness freedom from having his words used against him or the fruits of those words used against him.

It doesn't foreclose a prosecution altogether.

This Court in the Kastigar decision overruled the view that transactional immunity is required.

Unknown Speaker: No, no, but I mean, why couldn't Congress... what's wrong with the Second Circuit's suggestion?

Mr. Dreeben: Because the Second Circuit's suggestion in effect would grant transactional immunity.

Not only would the witness be free from having his words used against him, he would be free from any prosecution altogether, because if the theory of the immunity statute that the Second Circuit posited is correct, that witness can never be sent to the foreign country where he might be prosecuted, and that grants the witness something far more than he would have in the United States, puts him in a much better position than a similarly situated U.S. witness would be, and thwarts the foreign country's interest in prosecuting if it could do it without the defendant's words at all.

It is also anomalous because the Second Circuit's holding would grant a witness greater protection than he might have in the country to which he ultimately goes if he faces prosecution.

That country might not recognize a Fifth Amendment privilege in the same way or to the same extent as this country, and thus we have the anomaly that here the witness says, I don't want my words to be used against me because I fear prosecution in a foreign country, and then when he gets there that foreign country says, we'd now like your testimony.

There's no basis for using the Fifth Amendment to internationalize U.S. self-incrimination rules when foreign countries themselves may treat the same issues quite differently.

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

Unknown Speaker: Very well, Mr. Dreeben.

Mr. Berzins, we'll hear from you.

Argument of Ivars Berzins

Mr. Berzins: Mr. Chief Justice, may it please the Court:

What the Government advocates defeats the policies and purposes of the privilege, as this Court has repeatedly said in all the cases that followed Murphy.

The Government wants to extract from my client testimony that is designed to impose criminal penalties on him.

They are trying to get him to testify without any grant of immunity, under naked compulsion, to extract out of him, out of his mouth the testimony that will inflict criminal penalties on him.

Unknown Speaker: Mr. Berzins, could the United States constitutionally compel your client to do something which would be criminal under the law of another country?

If it wanted to, could the United States pass a statute that says, if you do not do this you are committing a crime in the United States and will be put in jail, even though, under the law of another country, if he did what the Federal statute says, he would be subject to criminal punishment?

Mr. Berzins: Yes, Your Honor, the United States could pass such a law.

Unknown Speaker: Well, this is much less than that, it seems to me.

Here, what the United States would be compelling would not automatically subject him to criminal punishment somewhere else.

It would just allow in evidence somewhere else that might subject him to criminal punishment.

It seems to me that the greater includes the lesser.

It's a very strange system in which we say we can compel you to do something that will enable a foreign country to send you to jail, but we cannot compel you to say something which might be used as part of a criminal prosecution in a foreign country that might send you to jail.

Mr. Berzins: That is quite so, Your Honor, but I invite you to consider the cruel trilemma that faces the claimant to the privilege.

It is the cruel trilemma that I submit to you the Constitution prohibits.

Unknown Speaker: Well, Mr. Berzins, you know, we're bound under stare decisis by the holding of the Murphy case.

We're not bound to just accept every sentence in the opinion.

Mr. Berzins: Your Honor, Mr. Chief Justice, I submit to you that the Self-Incrimination Clause prohibits compulsion, and that the Framers had in mind precisely the compulsion that is about to be visited upon my client.

Unknown Speaker: No.

Well--

--It prohibits compulsion which incriminates.

That's the other half, and I think the Government... you have to agree, don't you... maybe you don't.

Don't you agree that the Government is correct that you're asking, really, for a superprivilege, because the Government is powerless to grant immunity in this case, and we know of... I know of no other case where the Federal Government is powerless to give an immunity when we have simply a State or a Federal prosecution under the Kastigar rule.

Mr. Berzins: Your Honor, I submit that the Government is not powerless to help itself if it really wants my client's testimony.

They certainly have the means of getting... either not deporting him or getting pardons or immunity from the States to which the Government wants to--

Unknown Speaker: Well, but a U.S. citizen can't ask for immunity in a civil action, which is the immunity you're suggesting that the Government must give your client.

Mr. Berzins: --Your Honor, my client is not asking for immunity.

My client is merely asking that he not be compelled to, out of his own mouth to admit to criminal... to admit to acts that will inflict criminal penalties upon him.

Unknown Speaker: You recognize, don't you, that if he does successfully plead self-incrimination, that could be used.

His refusal to answer could be used against him in the deportation proceeding, so his risk of deportation is enhanced if he refuses to testify, is that not so?

Mr. Berzins: Yes, Your Honor, that is quite so.

An inference can be drawn from his mere exercise of the privilege.

The cases have so held.

Unknown Speaker: I wanted... your client is now 85 years old, is that... is that right?

Mr. Berzins: He's very old, Your Honor.

My math fails me right now.

Unknown Speaker: But he's still with us.

Mr. Berzins: Yes, Your Honor.

The Government claims that it has no effective way to grant immunity.

I'd like to address that, if I may.

It seems to me that the Government has the means to address foreign governments and it has the means to enter into treaties and other arrangements that might be coextensive with the privilege, and also I submit to you that the compulsion is precisely what the Framers wanted to preclude by the very plain language of the amendment.

And the crux of this case, I submit to you, is on page 13 of the Government's reply brief where, in footnote 4, I believe, they very plainly admit... and I certainly thank them for this admission... that they do not have sufficient evidence to charge my client with anything, that they have to compel him to incriminate himself, that they have to compel him to confess before they can proceed.

Well, it seems to me that this is exactly what the Framers wanted to preclude.

Unknown Speaker: Well, they're not proceeding in a criminal action against him and apparently there's no prospect of that in the United States, isn't that correct?

Mr. Berzins: Your Honor, the cruel trilemma--

Unknown Speaker: Well, before we get back to the cruel trilemma, I mean, what's the answer to my question?

The... as I understand it they want to use this in a civil proceeding and so far as I can tell from anything you have said there is no prospect of a domestic criminal proceeding.

Are those two points correct?

Mr. Berzins: --Yes, Your Honor.

There is no prospect of a criminal proceeding in the United States, but I submit to you that it makes no difference where the criminal proceeding takes place.

The compulsion doesn't become any different whether the compulsion takes place in California and the criminal trial takes place in Calcutta.

Unknown Speaker: Well, you say it makes--

Mr. Berzins: It makes no difference to the claimant.

Unknown Speaker: --You say it makes no difference.

I don't have Kastigar in front of me, but my recollection is that Kastigar explained Murphy as being the result of the decision in Malloy, so that the theory, if I understand the Kastigar explanation, was in effect that we will recognize the privilege in order, in effect, to guarantee enforcement of Fifth Amendment rights in any jurisdiction in which Fifth Amendment rights apply.

Originally they just applied with respect to Federal prosecutions.

After Malloy they apply with respect to State prosecutions.

But the theory, as I understand it, after Kastigar remains that the enforcement was geared to preserving the right in a jurisdiction in which the Fifth Amendment applied and, if that's the case, then it seems to me we would have to modify the theory of the Fifth Amendment in order to recognize your position.

Am I wrong in my reading of Kastigar and in inferring the theory behind it that I just stated?

Mr. Berzins: No, Your Honor.

The theory in Kastigar, though, should be read in the context of Kastigar, where there was no claim of a foreign criminal prosecution raised.

It dealt with the State prosecution.

Unknown Speaker: Well, that's right.

I'm talking about Kastigar's explanation of Murphy in light of Malloy.

Do you think that was an incorrect explanation, an incorrect reconciliation of our cases, where we had gone from a regime in which the, a State... use in a State prosecution didn't count, to a regime after Malloy in which use in a State prosecution did count, and Kastigar explained it.

Do you think that the explanation was correct?

Mr. Berzins: Yes, Your Honor, I do in the context in which it was given, but I submit to you that Murphy can stand independent of the application of the Fifth Amendment through the Fourteenth Amendment to the States.

Unknown Speaker: But if it does, I guess, we've got to read criminal case in a very different way from the way we have read it before.

It's got to go... a criminal case has gone from Federal criminal case to State criminal case and on your theory it's got to go a step further, or we would have to adopt a compulsion theory, but that seems out of the question, because we routinely compel testimony if, in fact, the immunity can be granted.

So it seems to me we've got to come up with a brand-new theory of what a criminal case is, and we're going to have to reject the prior explanation in order for the case to come out your way.

Mr. Berzins: Your Honor, I submit that the case could come out as I advocate it if the Court adopts the view that the personal liberties component as explained in Murphy is a very important one, and that it cannot be brushed aside merely because the infliction of criminal penalties will take place elsewhere.

The fear is here.

The Article III compelling court is here.

The claimant is here.

All of this takes place in the United States.

It is just a coincidence that the criminal penalties will be inflicted elsewhere.

Unknown Speaker: Mr. Berzins, if the testimony were taken under seal would you have any... would you still object?

Mr. Berzins: Your Honor, I would, and I would object for the reasons stated by the district court in this case as well as in the Gecas case and, as I recall, the reasons were the sealing order really cannot be made coextensive with the privilege.

That has been recognized as a very difficult prospect in light of all the newspaper articles we read about grand jury leaks, et cetera.

And even more concern to me is what would happen if there is a sealing order, my client gets deported overseas, and then the leaks come out overseas.

Obviously there is no way that that situation can be remedied.

It's too late.

Unknown Speaker: But once your client is overseas... I don't know what the Lithuanian legal system is, but most systems have at best a muted self-incrimination guarantee compared to ours, so once he's over there the likelihood is that his testimony could be compelled, is that not so?

Mr. Berzins: Yes, Your Honor, but I submit we ought not be concerned with what the procedural systems are that might compel it.

I submit to you that we should be concerned with the compulsion here, not with what happens to the compulsion overseas.

We cannot help the compulsion that may occur in some other country.

The Fifth Amendment does not, I submit, protect against other compulsions and other disabilities and other harms, only against infliction of criminal penalties, and that, I submit, is what ought to be guarded against, and I submit that is a liberty interest that should be recognized as a very important one.

As I submit, the Murphy court in its explanation highlighted it very prominently, and on that basis I ask you to recognize it when the obvious fear of infliction of criminal penalties is real.

Mr. Chief Justice raised the question about administrative difficulties.

Thus far I do not believe administrative difficulties have been encountered in these cases, because the burden has always been upon the claimant to establish precisely what it is that he fears and what are the realistic chances of him winding up before a criminal court where the criminal penalties will be inflicted.

Unknown Speaker: Was this tried as an issue of fact in the district court, Mr. Berzins?

Mr. Berzins: Mr. Chief Justice, that was extensively handled in the district court, and it was... in each case it is a claimant's burden and it's a heavy one under the Flanigan case in the Second Circuit.

It's a whole litany of things that the claimant has to prove before he can have any chance of having the privilege recognized.

Unknown Speaker: Well, if there is a whole litany of things, it seems to me that that would make for administrative difficulties.

Mr. Berzins: But I submit to you that the difficulty is upon the claimant, not upon the courts.

Unknown Speaker: Well, but the fact that it may be a hard row for the claimant to hoe doesn't mean that that fact shouldn't be taken into consideration, because it's also going to be something that the district court probably has to spend a fair amount of time on.

Mr. Berzins: Admittedly, the district court may have to spend some time on it, but it's up to the claimant to bring to the district court every last piece of evidence on which he relies and which will establish his claim as being a legitimate claim as distinguished from a fanciful or contrived claim, and that burden is upon the claimant, and once the claimant establishes it, I submit the privilege ought to be permitted to be invoked, because the alternative is the cruel trilemma to which I must again return and urge you to recognize it from the standpoint of the claimant.

It makes no difference to him where he will spend his time in jail.

If the jail is overseas, or if the gallows are overseas, it's a criminal penalty from his point of view, and from his point of view the liberty interest is definitely infringed upon.

Unknown Speaker: Well, if it makes no difference I suppose he can just refuse to answer, and then he can spend his time in jail here.

Mr. Berzins: Well, Your Honor, I think you hit the nail on the head.

[Laughter]

But that does not minimize the constitutional claim that we're advocating.

We're advocating that this Court recognize the individual liberties component as it was so eloquently explained in Murphy, and I submit to you that individual liberties component, if it is recognized, as being a very important component of the privilege.

Unknown Speaker: Well, calling it an individual liberty doesn't make it any... doesn't change the wording of the Fifth Amendment, which is a privilege against self-incrimination, and I think... you know, worldwide, as Justice Ginsburg has suggested, that is not a universal... universally valued as highly as it is in this country.

So to call it individual liberty I think is perhaps an overstatement.

It's something that is in our Constitution.

It's a guarantee that we enforce in our courts, but to call it a liberty doesn't change what the Constitution says.

Mr. Berzins: Yes, Mr. Chief Justice, that is so, but this Court has in a long line of cases since Murphy reiterated this liberty aspect and used very, very strong language in saying that the liberty aspect of the privilege is important.

It's not--

Unknown Speaker: Of course, it's a liberty that he has while he's in this country.

If as Justice Kennedy suggested, a case in which the Government has two grounds for deportation, one that doesn't incriminate him and one that does, and say he's silent about the one that does but he gets deported on the other ground and he gets sent to Lithuania, and if Lithuania doesn't recognize this liberty, he would there be forced to testify against himself, wouldn't he?

Mr. Berzins: --That may very well come to pass, Your Honor, but nevertheless, while he is here, and while he is subject to an Article III court, that Article III court ought not compel him to convict himself out of his own mouth, not here in this country.

What happens in Lithuania, we can't control, but we can control--

Unknown Speaker: Well, he hasn't convicted himself out of his own mouth in our courts because he hasn't violated any United States criminal statute.

He has given testimony that may be useful abroad in a country that does not provide that particular liberty protection that we provide.

Mr. Berzins: --That is quite so, but the incrimination, the testimony coming out of the claimant's own mouth, that I submit violates the privilege, because he's being compelled here without a grant of immunity.

Every case where immunity has been granted, and the claimant has been forced to testify, the fear of the criminal penalties has been eliminated.

But if the fear of the criminal penalties is not eliminated, I submit that the violation is there regardless of where the infliction takes place.

It is the--

Unknown Speaker: You do acknowledge that it is kind of a superprivilege that he would have because of the absence of the immunity, the absence of the United States' ability to give... to immunize the testimony?

Mr. Berzins: --Your Honor, characterizing it as a superprivilege, I don't want to join in that characterization.

I would prefer to characterize it as giving full application to the privilege, not super.

It's really not super.

He is not... he is not... the claimant is not being given anything that he shouldn't have, because if his fear is legitimate, if the criminal penalties are there, I really don't see that it is superprotection.

I think it is the protection that the Framers had in mind.

Unknown Speaker: The Government is saying that, imagine ordinary drug dealers who somehow get into this country and if, in fact, it's a drug dealer from New York who's in Ohio, and Ohio wants to compel the testimony, Ohio can simply give use immunity, or... and it's possible that... and that person can't be prosecuted for what flows from that particular testimony.

But suppose the person, instead of coming from New York to Ohio, comes from some foreign country to Ohio, and now the Government is saying, well, we don't know what to do.

I mean, we'll never be able to get this testimony.

There's no way to deal with the foreign country.

The best we could ever do is not deport him, and if we don't deport him, that means he can never be prosecuted there for anything, though he might have been the worst murderer in this other country that anybody's ever seen.

Now, what's your response?

Is there a response to that claim of the Government?

Mr. Berzins: Your Honor, my response is that obviously there will be cases where the Government will not be able to either grant immunity or get the foreign government to cooperate in granting a pardon, or issuing its own immunity, or whatever.

There obviously will be cases, but I submit to you that those cases will be far and few, and they really ought not be what turns this issue.

Unknown Speaker: Why will they be few and far between, given, let's say, current international criminal behaviors which, you know, are all over the place?

Why won't it come up every day of the week?

Mr. Berzins: Well, Your Honor, I am... I am really prefacing my answer based on the past.

I have not seen that in the past it has arisen that often.

Maybe in the future it will, but in the past, these claimants who have made claim to the privilege under similar circumstances, the majority of them have lost.

Unknown Speaker: All right.

So in your view the Government can compel your client's testimony provided it says what?

A) We won't deport him.

B) We will deport him but not to this particular country.

C) We will get a promise from the foreign country that they won't use the testimony.

D) We'll get a promise from the foreign country that they will pardon him.

All right.

Any of those four would be sufficient, in your view?

Mr. Berzins: It seems to me that they would be if they are coextensive with what we would consider equivalent to immunity that can be granted here.

Unknown Speaker: Mm-hmm.

So then in your view there is no obstacle of a practical nature for the Government to getting any of those four things, or is there?

What are the natures of the obstacles?

Mr. Berzins: Your Honor, the obstacles will be practical and diplomatic, but I have a lot of faith in our Government.

They can do miracles, and if they have to they will accomplish them here also.

Unknown Speaker: I don't think you're going to rely on it being a miracle, because that would weaken your case considerably.

[Laughter]

Mr. Berzins: Is there anything else that I can be of assistance to this Court with?

Unknown Speaker: Apparently not, Mr. Berzins.

Thank you.

Mr. Berzins: Thank you.

Unknown Speaker: Mr. Dreeben, you have 2 minutes remaining.

Rebuttal of Michael R. Dreeben

Mr. Dreeben: Unless the Court has any questions, the Government waives rebuttal.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

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Baltimore City Dept. of Social Servs. v. Bouknight - Oral Argument

Fri, 09 Jan 2009 14:49:19 +0000

Case:

Baltimore City Dept. of Social Servs. v. Bouknight

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88-1182_19891107-argument.mp3

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Argument of Ralph S. Tyler, III

Chief Justice Rehnquist: We'll hear argument next in No. 88-1182, Baltimore City Department of Social Services v. Jacqueline Bouknight.

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

Mr. Tyler: Mr. Chief Justice, and may it please the Court:

This case presents two questions.

First, whether a court order directing a parent to produce her child compels incriminating testimony in violation of the Fifth Amendment and, secondly, whether in this case the mother's privilege claim is overcome by the important societal interest in protecting a child plainly at risk.

I will address the first of these issues and the child's counsel will address the second.

The child who is the subject of this case was born in October 1986.

As of four months of age he had been hospitalized twice with confirmed fractures of major bones.

During his second hospitalization his mother was observed shaking him and dropping him into his crib while he was in a cast.

The Baltimore City Department of Social Services filed a petition with the juvenile court in Baltimore asserting that Maurice was a child in need of assistance, as defined by Maryland law.

A court hearing was held on that petition at which all parties were represented by counsel and the parties stipulated to the facts of the petition.

Maurice was placed in foster care, where he remained for some months when the order was modified to return physical custody to the mother.

Unknown Speaker: Why was that done?

This is another "Poor Joshua" case, isn't it?

Mr. Tyler: It certainly has absolutely the same tragic facts, Your Honor.

Unknown Speaker: Can you defend that action?

Mr. Tyler: I think... certainly with benefit of hindsight it was a great error to return the child.

The record reflects that the agency opposed that before the Master, but did not take an appeal.

Unknown Speaker: Why do we need hindsight?

Wasn't it apparent at the time?

Mr. Tyler: Well, I would have to respectfully answer no, it wasn't apparent.

The parties determined and the court concurred that the child should be returned.

At a further hearing in the case in August, the parties, again all represented by counsel, agreed to an order of protective supervision finding Maurice to be a child in need of supervision under the supervision of the Department of Social Services and the mother had physical custody.

Importantly, that order provided, among other things, that the mother was required to cooperate with the Department.

She, represented by counsel, agreed to that order.

Agency personnel have last seen this child in December... in September of 1987.

In April of '88, after making repeated efforts to locate the child, the Agency filed a petition in the juvenile court in Baltimore seeking a review of the court order and ordered a show of cause and a petition for contempt.

After arrest, the mother, with counsel at her side, told the juvenile court that the child was with the mother's sister in Dallas.

This proved to be false and she gave other information as to the child's whereabouts, which similarly proved to be false.

The court held her in contempt and sent her to jail providing that she could purge herself of contempt by either producing the child before the court or revealing his exact whereabouts.

Unknown Speaker: Where is she now?

Mr. Tyler: She is in the jail in Baltimore City, Your Honor.

Unknown Speaker: Mr. Tyler, does... would the act of production of the child be a testimonial statement of some kind?

Mr. Tyler: Not in our view, Your Honor.

The--

Unknown Speaker: Well, in cases where orders have been entered to require turning over some kind of paper, this Court has indicated in its opinions that to do so has testimonial aspects.

Why wouldn't turning over the child have some testimonial aspects as to her possession or control, or something of that sort?

Mr. Tyler: --Because, Justice O'Connor, in the cases where the Court has said that there would be testimonial content to an act of production, the identified variables have been existence, possession, authentication.

And if those items are foregone conclusions or not in dispute, which we submit is this case, then the act of production has no testimonial effect.

Unknown Speaker: Well, is that strictly speaking true?

You don't know where the child is.

She has apparently given untrue statements.

And so it isn't known.

And I assume the state would want to use the testimonial aspects if it were ever to file criminal proceedings against her.

Mr. Tyler: It is, of course, true that we do not know where the child is.

But what we do now and what has never been disputed in the case is that the mother has custody of the child.

Unknown Speaker: Physical custody?

Mr. Tyler: She... she certainly had physical custody.

She affirmatively asserted that she had custody before the juvenile court.

But for the juvenile court's--

Unknown Speaker: Well, but the custody... she has not conceded... correct me if I'm wrong, perhaps she has... that she now has physical custody of the child.

She couldn't while she's in jail.

And she hasn't conceded, I take it, that she had physical custody of the child the day before she went before the court.

Mr. Tyler: --Well, what she... what she did concede, Justice Kennedy, at the hearings in the juvenile court in April of '88 is, first, her counsel on her behalf represented that the child was fine and that there was no basis for concern.

Secondly, she was then arrested and brought before the court and gave the court an address in Dallas where the child was to be found.

She gave other officials information about the child being with a relative in Baltimore or... and relatives elsewhere.

At no point has she asserted an inability to comply with the order and... nor has she ever claimed that there has been an intervening custodial relationship which somehow relieved her of her undisputed custody.

Rather--

Unknown Speaker: Well, certainly there may not be any question about her legal custody.

But the fact of physical possession and control would seem to me to be testimonial aspects of compliance with the production.

Mr. Tyler: --Well--

Unknown Speaker: I just don't understand why it wouldn't be.

Mr. Tyler: --Well, it wouldn't be in our view, Justice O'Connor, because this is the only living parent of a child who at the time the case was in the juvenile court was 19 months old.

There is no one else that the state can look to and, indeed, she has pointed us to no one else.

So--

Unknown Speaker: Well, that may be an argument for an exception.

It seems to me, to make it even more testimonial significant.

Let me ask you this.

Would you have any objection to giving use immunity?

I understand use immunity is available under Maryland law.

Mr. Tyler: --Your Honor, the status of immunity under Maryland law has changed dramatically while this case has been pending and as of April... as of July of '89 there is a broader immunity statute in Maryland.

But--

Unknown Speaker: Well, wouldn't use immunity suffice for your concerns and the concerns of... of others in this very important case?

If you say it's not testimonial, then you can have no objection to use immunity.

Mr. Tyler: --Well, our objection, Your Honor, is that she has asserted a Fifth Amendment privilege which we claim does not exist.

If she were asked to stand in a lineup, she could not say to the State of Maryland, I will not do so until give me immunity, because that Fifth Amendment privilege she does not have.

It is our view that that is this case.

Unknown Speaker: Well, if we thought she did, is Maryland now in a position to grant limited use immunity for the testimonial aspects of the compliance with the production order?

Mr. Tyler: Yes.

As a matter of law, that would now be possible, Your Honor.

It was not possible at the time the case was pending in the juvenile court.

But I would stress that the state that the state--

Unknown Speaker: And the state could make it a laser-like limited immunity so that just the testimonial aspects of production could be protected, I gather.

Mr. Tyler: --Yes.

But, again, I would stress that first we should not be put to that choice until she prevails entirely in this Court as would any person who was asked to perform an act if it is not protected by the Fifth Amendment.

The state should not be required to provide immunity because, for example, as the court noted in Braswell, there are costs to doing so.

The costs of granting immunity should be considered and the state should not be required to grant it until she absolutely prevails here.

But the state's position, we believe, is supported really by two lines of authority in this court.

First, the Schmerber line of authority and then the Fisher and act of production cases.

The Schmerber line certainly established that the general rule is that the Fifth Amendment does not relieve a person of the obligation to produce incriminating evidence.

And we submit that the great flaw in the decision below, and a flaw which is largely conceded in the brief of the Respondent, is to put all the weight in the case on the potential incrimination of producing the child when in fact that is only half the test and that we do not dispute that it may have some incriminating effect.

But that does not make it testimonial any more than a person is relieved of the obligation to provide a blood sample, a handwriting exemplar, stand in a lineup, and so on.

Further, the elements in the act of production cases of existence, possession, authentication are here not in dispute.

Maurice was with his mother.

She has never claimed to the contrary.

She has never claimed that she cannot comply with the court order.

Her sole defense in this case and the holding of the Maryland court was not that she could not comply, but that she need not comply.

That the order was... was void the moment it was entered.

And that, in our view, is a dangerous and unwarranted extension of the Fifth Amendment privilege.

To hold as a matter of federal constitutional law that a parent cannot be required to produce her child in court because to do so would constitute testimony, would ultimately remove from the juvenile court the single most important power it must have, and that is the minimal power to require a parent to bring her child before the court so that the court can satisfy itself that the child is safe or if not safe, to provide protection.

And that is what is at issue in this case.

It is the power of the court to command the parent to bring her child into court.

Thank you.

I reserve the balance of my time.

Unknown Speaker: Thank you, Mr. Tyler.

Mr. Mirviss.

Argument of Mitchell Y. Mirviss

Mr. Mirviss: Mr. Chief Justice, and may it please the Court:

The second question in this case considers whether the important societal interest in protecting children at risk of serious injury can overcome the privilege against self-incrimination.

At two levels, this issue has extreme ramifications.

First, this Court must decide whether the needs of my client, an infant who is defenseless, who has been previously abused and whose whereabouts have been unknown for the past 18 months, must be abandoned in favor of an unprecedented extension of the... of the Fifth Amendment.

Second, if this Court decides against Maurice, family courts and juvenile courts across the country will lose their parens patriae authority to protect thousands upon thousands of children from serious abuse.

Unknown Speaker: Well, why is that so if limited use immunity is available for just the act of production?

Mr. Mirviss: Your Honor, limited use immunity is available only upon the consent or the request of the state's attorney.

The state's attorney was not a party to the juvenile court proceeding.

The state's attorney has discretion whether his or her law enforcement interests outweigh the needs of the juvenile court.

The juvenile court does not have the power to confer use immunity nor did any of the other parties in the juvenile court proceeding.

Similarly, in other states where use immunity may not be available, that solution... would not assist the juvenile court at all.

In this particular case, however, limited use immunity would satisfy the need for Maurice's production, but it is a speculative assumption.

And if we look at the availability of immunity for every conflict which arises between civil regulatory systems and potential incriminations, then the entire line of cases of this court, dating from United States v. Sullivan in the income tax reporting system through wartime price regulation in Shapiro v. United States, on through deterrence of drunk driving and traffic accident reporting in Byers v. California, would automatically fall out.

Immunity is not the answer that this Court has held to those fundamental clashes between civil regulation and potential incriminating disclosures.

Unknown Speaker: Mr. Mirviss, straighten me out on one thing.

Had she not given assurance that the child would be produced to the court?

Mr. Mirviss: Justice Blackmun, the mother, through her counsel, informed the court that the child would be produced and that the mother was on her way.

Unfortunately, the mother never appeared in court and the mother never produced the child.

Unknown Speaker: But counsel gave that assurance?

Mr. Mirviss: That is correct, Your Honor.

Unknown Speaker: Her counsel?

Mr. Mirviss: Her counsel.

In the view of the court below, the mother was lying to the court and to her counsel.

Your Honor, the impact of this case is dramatic.

In every state juvenile courts would lose the power to compel parents who are suspected of maltreating their children to bring their children to court.

Any element of suspicion would be enough to block the juvenile court's inherent or statutory powers.

Unknown Speaker: Is that... is that the way it usually works or does the social welfare worker simply have the authority to go out and investigate the home and take the child?

I take it... would the social welfare worker need some kind of warrant in order to do that or--

Mr. Mirviss: Ordinarily, and in Maryland, the statute governing child protective services investigations has a probable cause requirement written into it such that a social worker with a police officer can go into a home when there is probable cause to believe that a child is in danger.

Unknown Speaker: --There's a... as I say, it would be an exigent circumstances so no warrant is required?

Mr. Mirviss: That's correct, Your Honor.

However--

Unknown Speaker: Isn't this the way it usually happens?

Mr. Mirviss: --That is the ordinary course in emergencies.

However, there are cases where reports of abuse... of possible abuse or neglect come in through other methods.

In other words, independent agencies, such as a school or a hospital, may phone in a report.

The social worker or the police go out to investigate but no one is home, they're not let in, they're not able to find the child.

But those cases arise and produce the need to go to court to compel the parent to produce the child.

One can imagine a sexual abuse case where a report comes from the school of extreme behavioral problems and possible statements of sexual abuse.

The social worker goes out to the home and not gained access to the child.

In that situation, the only other authority which can assist is the juvenile court or the family court.

Unknown Speaker: Mr. Mirviss, it seems to me the record is silent about a father.

Is there a father in this picture at all?

Mr. Mirviss: Your Honor, my client's father was killed approximately a year and a half ago to two years ago... I believe in March of 1988... in a drug-related shooting incident.

Unknown Speaker: Were they married?

Not that it makes any difference, I guess.

Mr. Mirviss: No, Your Honor, they were not married.

Unknown Speaker: But just to conclude the point, you're saying that there are scores, hundreds, many cases in which courts today routinely issue subpoenas to parents requiring the parents to come to the court with the child?

Mr. Mirviss: No, Your Honor.

What we believe will happen is if the juvenile court loses its power to compel parents to produce children, then--

Unknown Speaker: Well, but I mean, does it now exercise that power on a wide scale?

Mr. Mirviss: --Not on that scale, but that power is the authority underlying social worker access to children and into parents' homes.

If in fact social workers cannot tell parents that if they do not cooperate, they can be arrested and brought to court to bring their children, then parents will have a much greater incentive to not cooperate.

They will essentially be immunized by the Fifth Amendment.

There will be no power from the juvenile court to compel, and the social worker will be resigned to finding the child through the social worker's own wiles.

That's met that--

Unknown Speaker: Well, I take it then that in most cases the only testimonial implications of producing the child are something that's known already through independent evidence that the child was living at the house and that the child has injuries.

That's... that's not something that's protected by the Fifth Amendment.

The testimonial aspect is, in this case, where the link between the parent and the child could provide a very important chain in a criminal prosecution.

Mr. Mirviss: --Your Honor, the testimonial inferences that could be drawn from the production of this child are slight, just as they would be in that situation.

In both cases there is a legal order of custody.

In both cases there is a presumption of continuing custody as a matter of state law.

In both cases there is... there are avenues for the parent to comply with the request that the child be produced for inspection without in any way involving the parent directly in the child's production.

Ms. Bouknight has alternatives available to her which she has not chosen to exercise.

And those alternatives do not involve any testimonial incrimination.

She could use her lawyers to produce the child.

She could arrange for the child's production anonymously.

She could use another privileged confidante.

Those have not been utilized by her, and yet none would involve any type of testimonial incrimination.

Unknown Speaker: Mr. Byers... I mean, Mr. Mirviss, are you going to address the California v. Byers aspect of the case?

Mr. Mirviss: Yes, Your Honor.

This case squarely falls within California v. Byers.

In that case, the court upheld a less vital state interest, the adjudication of civil property damage claims against appreciably stronger Fifth Amendment interests.

Byers held that neutral noncriminal statutes can compel incriminating information if they are part of a civil regulatory system which in no way targets criminal activity.

That was a plurality opinion, and Justice Harlan joined that opinion to create a majority by establishing a balancing test when valid civil governmental interests are asserted against possible Fifth Amendment incrimination.

Justice Harlan phrased the balance test by looking at the nature of the governmental interest, the nature of the type... or the type of incrimination which would incur, and, finally, the necessity for the information which would be produced.

Under either approach, the plurality approach, or Justice Harlan's approach, this case amply satisfies those tests.

In this case we have a specific neutral court which is acting not to further any type of criminal prosecution but only to serve one purpose, and that's to ensure my client's safety.

And, second, a court exercising authority specifically granted to it by a neutral statue within an entire regime--

Unknown Speaker: Well, it's a little different, isn't it, because here the operation of the contempt order is particularly individualized and based on specific showings that also lead to criminal prosecution probably.

And so it's not really exactly like Byers is it?

Mr. Mirviss: --Your Honor--

Unknown Speaker: Much more individualized.

Mr. Mirviss: --Your Honor, Byers focused on the general risk or the general degree of incrimination.

Byers, the defendant in that case, had a tremendous personal fear of incrimination.

He was already under indictment for two counts.

There is no doubt that the information he was required to provide, his name and address, would be vital elements within any prosecution against him.

Nevertheless, both the plurality and Justice Harlan's approach looked at the statutory--

Unknown Speaker: Well, but in Byers you have a system whereby everybody involved in an accident has to file a report.

Mr. Mirviss: --That's correct.

Unknown Speaker: Here it's only the person whose conduct is such to give rise to concern for the physical safety of the child that would lead to the imposition of a contempt order that would give rise to your suggested Byers exception.

Mr. Mirviss: Your Honor, the concerns that could prompt this juvenile court to exercise its statutory authority are not limited to instances of extreme abuse.

They could extend to the whole host of issues which the juvenile court addresses on a regular basis.

Delinquency cases, truancy cases, runaway cases, neglect cases, are all part and parcel of the juvenile court's docket.

All of those cases could invoke or could require a child's production to court.

And a child's production to court is not necessarily to prove that the child has been abused.

It could be to facilitate the child's placement into substitute care which in fact was part of the reason for the court's order here.

Unknown Speaker: Mr.--

Mr. Mirviss: The court divested the mother of custody in order that the child, the infant, be placed in emergent foster care.

Unknown Speaker: --May I ask you a question?

You've suggested the various ways in which compliance with the order would be possible without giving incriminating testimony.

But you haven't considered... and I don't know quite what the answer is... the possibility that the child may not be alive.

And if that's the fact and that's suggested in your opponent's brief, that there's a homicide investigation going on and so forth, how can compliance with the order be had without giving incriminating testimony?

Mr. Mirviss: Your Honor, if in fact the Respondent is not able to comply with the court order, it is her duty to inform the court that she is no longer able to comply.

Essentially she is required to plead impossibility.

This Court, in the case of--

Unknown Speaker: Would that be incriminating?

Mr. Mirviss: --Your Honor, the mere statement that she is unable to comply would not necessarily be incriminating.

Unknown Speaker: But do you think the judge would take that?

Mr. Mirviss: That, of course, would be up to the judge's discretion.

Under the United States v. Rylander--

Unknown Speaker: She is obviously unable to comply while she's in jail.

Mr. Mirviss: --Well, Your Honor, she still has privileged intermediaries she could utilize.

But if we look at the scenario of the child being dead--

Unknown Speaker: Right.

Mr. Mirviss: --her explanation for why she cannot comply is not a violation of the Fifth Amendment.

Under United States v. Rylander this Court specifically held that a party unable to comply with a valid unappealed court order is not able to assert the Fifth Amendment as an excuse for explaining to the court why she cannot comply with its valid court order.

And that principle extends back for decades and decades for the burden that any individual must face when confronted with a court order or even a burden of persuasion that an individual bears in this civil or criminal proceeding.

The Fifth Amendment does not shift the burden of proof upon the state or the burden of persuasion away from her.

I would like to also point out that in addition to the alternatives the mother has in this case, the actual order of the court is very limited in terms of its incursion upon the Fifth Amendment.

The mother is not required to testify.

The mother is not required to make any type of oral disclosure.

She need not provide records or documents which convey the thoughts, beliefs, or feelings of her.

Those are all the fundamental principles that this Court has upheld in looking at acts of production.

Your Honor, my time is up.

That will conclude my remarks.

Unknown Speaker: Thank you, Mr, Mirviss.

Mr. Burns.

Argument of George E. Burns, Jr.

Mr. Burns: Mr. Chief Justice, may it please the Court:

Turning to issue number one is... there is no question about where legal custody is.

In terms of physical custody, I think Mr. Mirviss answered Mr. Tyler's contention when he said, and I quote,

"The child's whereabouts have been unknown for the last 18 months. "

Obviously, we know who has legal custody.

We don't know physical custody after that.

So I think in that case obviously is... producing the child would be incriminating.

The state also--

Unknown Speaker: Well, stop--

--In what... in what respect?

Mr. Burns: --Well, if, for example, the child is injured, if the child were unfortunately dead, then admitting that you had custody of that is certainly a reasonable conclusion that you're responsible for the injuries or the death of the child.

Physical custody at that moment, as opposed to sometime in the past that you had legal custody and physical custody.

Obviously there could have been intervening circumstances that you had no control over that caused this condition to occur.

But if you produce the child, it's difficult to see how you can draw any conclusion except that you have now current physical--

Unknown Speaker: I don't follow that.

If I may interrupt.

The production of the child on November 7th, 1989 admits physical custody on November 7th, 1989.

The child might have been killed or injured on August 1st, 1989.

How does the later fact necessarily prove the former?

Mr. Burns: --I... I'm not sure I follow, Justice Stevens.

What I think I'm saying is this, if I say I produce the child today, there is some injury... if I'm the defendant... it seems to me that doesn't necessarily prove... I'm not suggesting that that proves beyond a reasonable doubt.

I'm suggesting it is incriminating... is that I have the child, I have this child who's injured and I'm admitting physical custody right now.

I mean, I think it's, for example, a byword of police offers... is whoever you find next to the body there's a 50 percent chance they're the person that did it.

So, while it wouldn't prove beyond a reasonable doubt certainly, I think it certainly is incriminating and certainly could be used by the state if they had other evidence for prosecution.

Well, then, any... any mother who is given custody by a juvenile court and ordered to appear every so often perhaps or for reason, can always defend by saying I'm not going to produce the child I have custody of because it might incriminate me.

Mr. Chief Justice, I think that's incorrect for two reasons.

One, obviously in many cases there is no question... in this case it's conceded by the state that you have this reasonable possibility of incrimination in terms of the ongoing homicide investigation.

Obviously if that doesn't exist, if no one thinks anything happened to the child, there is going to be no problem.

Second, I--

Unknown Speaker: Well, but our cases say, you know, that the court can't inquire in any detail once the claim of privilege is invoke.

That it... it... it's almost up to the witness to--

Mr. Burns: --I think that's to some extent, Mr. Chief Justice.

But I think the court can say, is this reasonable?

Is there something to suggest that, the mere fact that someone says it.

But I think the second part may be more important.

It's been contended that the court of appeals has said mothers don't have to comply with orders.

Well, the court of appeals didn't say that.

The court of appeals said the way to proceed is under the Maryland statute 3-831 which is a neglect statute, which, if you're under order, it seems to me and it seemed to the court of appeals, to bring the child in to comply with the order, you have violated the neglect as a matter of law.

And--

Unknown Speaker: --Why can't you raise the same privilege when you're ordered to bring it in under that statute?

Mr. Burns: --Because under... no, you wouldn't be ordering him to bring it under that statute, your Honor, you would be prosecuting him for the failure to bring it in.

So I don't think there is a privilege there.

Obviously a prosecutor, any prosecutor, can go to the person and say we're going to prosecute under the statute.

If indeed you produce the child in good health, we won't prosecute or this will be a mitigation factor.

So there is no question that the state still has the power in this case.

In that case there would be nothing to do with the privilege against self-incrimination.

Unknown Speaker: But it would be by a criminal prosecution rather than by a juvenile proceeding?

Mr. Burns: Well, it... it... it's a funny statute.

It's literally criminal but it's in our court's article 3-831.

Unknown Speaker: Yeah, you put them in jail under the neglect statute but you can't put them in jail for refusal to produce.

Mr. Burns: Well, I think the key difference... as a practical matter I have to agree with that, Justice White.

But I think the key difference is this.

Under the 3-831 there are two possibilities obviously.

If the child is unharmed, that acts as a good reason for the mother to bring her in.

If it is not unharmed, and the mother isn't going to comply, it's a means of punishing her for not following this court order.

Unknown Speaker: Putting her in jail.

Mr. Burns: But when we're talking about civil contempt, however, we're looking at two problems.

Not just putting her in jail for that order.

We're also looking at the problem of we're going to have you do something that may be testimonial for some future prosecution, another unrelated criminal act--

Unknown Speaker: Like for a--

Mr. Burns: --which I think gives the distinction.

Unknown Speaker: --Like for a neglect prosecution.

Mr. Burns: No, Your... no, Justice White.

I was thinking, for example, child abuse, assault, or even unfortunately homicide.

I think that's the distinction.

Unknown Speaker: Mr. Burns, let's talk about homicide.

Suppose you have a very nasty divorce and the husband gets custody of the child and let's assume it's conceded that the husband has locked the child in a cellar with three days' worth of food and everybody knows that.

And the mother brings the husband in the court and gets the court to demand from the husband where the child is.

The child is starving to death.

It's two and a half days now, right?

Mr. Burns: Well, Justice--

Unknown Speaker: And the court cannot compel the husband to--

Mr. Burns: --Well, Justice Scalia, I think as this case shows, that the court being able to say bring it in three days and these cases, if they are determined, is not going to have any effect, if indeed... if indeed everything--

Unknown Speaker: --That's not going to have an effect?

Mr. Burns: --Well, Your Honor, with--

Unknown Speaker: We say you're going to stay in jail until you produce the child.

Mr. Burns: --Well, Your Honor, I think the same thing.

You can say under 3-831 there may be a duty.

Obviously, if this child is being held in a room without food and that's what you're saying, this is certainly a neglect statute and you can be held in jail.

But I think the other problem is if indeed... and that's certainly a terrible hypothetical... but if indeed--

Unknown Speaker: I'm not worried about neglect.

I'm worried about saving the child.

Okay?

Mr. Burns: --That's certainly true, Justice Scalia.

Unknown Speaker: And prosecuting him for murder if the child dies.

Mr. Burns: Certainly true, Justice Scalia.

But if indeed we're going to say all that matters is that, then I don't see why the obvious solution is not to torture the person to get the information because that's the only sure way we have in this three-day time limit.

As the Morgan case shows, there are people that are willing to stay a lot longer than three days in jail.

So if the only thing we're going to focus on and we're going to ignore all constitutional rights, then we also have to ignore that.

Unknown Speaker: I suppose for the same reason that we don't torture people after they've been convicted of murder.

Mr. Burns: Well, Your Honor, I agree we shouldn't.

But I don't see how--

Unknown Speaker: Well, no.

To say... to say you can impose imprisonment for a coercive purpose that does not... that does not offend the Fifth Amendment because it's a coercive purpose that has some other societal end than convicting the individual of a crime, the end of saving the life of the child... to say that you can't use torture for that is... is no more extraordinary than saying that you can't use torture for purposes of punishing him after he's been convicted of--

Mr. Burns: --And I agree.

Unknown Speaker: --a crime.

But it's an entirely different question--

Mr. Burns: Well, Justice--

Unknown Speaker: --whether you can use normal means of punishment to... to fulfill an important societal end such as--

Mr. Burns: --Sure, Justice--

Unknown Speaker: --saving the life of the child.

Mr. Burns: --Scalia.

But I think the problem, the underlying premise there is that if you say we're holding you for civil contempt, the person will immediately say this is where the child is.

If we're holding you under 3-831, although we're holding you in the same jail, the person will not say.

I think the problem here is... is... I agree with your hypothetical if there were a real need for it.

Unknown Speaker: There is no child abuse statute in existence.

All right?

Mr. Burns: You mean as a hypothetical, I assume.

Unknown Speaker: Yes.

Mr. Burns: Well, the difficulty there--

Unknown Speaker: Then, tough luck, kid, you're going to have to die, huh?

Mr. Burns: --Justice Scalia, I think there the question is, is can the legislature say, well, we don't like the Fifth Amendment very much so we won't provide any statutes to protect against these circumstances and get rid of the Fifth Amendment.

Unknown Speaker: Well, it seems to me you're begging the question.

Mr. Burns: I'm sorry, Your Honor--

Unknown Speaker: It seems to me... or, I could think of another hypothetical.

But you have to fall back on the position that if there is no other way to prevent the social harm, even if it's a social harm as... as severe as the death of an individual... if there's no other way to prevent that other than to punish the person who doesn't give you the information to prevent it, that's too bad; you must let the harm occur.

Mr. Burns: --The difficulty, Justice Scalia, is I may in the abstract agree with that.

The problem I'm pointing out is here in the real world, in Maryland, that problem does not and cannot exist.

And so the state is not saying that this is the situation.

The state is simply saying we don't want to proceed the other way.

We have to do it because.

There's no reason.

If you're--

Unknown Speaker: But they're entirely... they're free to do that if there is no problem in doing it that way.

Mr. Burns: --Well, I think then--

Unknown Speaker: What do you do with the income tax cases where... where you have to go in and say what your gambling earnings were?

Mr. Burns: --Well, for example, Justice Scalia, certainly you have a duty.

You have a duty to file an income tax return.

But the question is--

Unknown Speaker: And this woman has a duty to produce the child.

Mr. Burns: --Yes, Justice Scalia.

But the question is, can the state say, well, we're not going to prosecute Burns for not filing his income tax return.

We're going to hold him civil contempt until he files it because we're very interested in him filing an income tax return.

So, the state's using the option... in fact, in this case it seems to me if the state can use that option, we really don't have much need of criminal laws.

For example, let's suppose we know someone has illegal narcotics.

Instead of going to the trouble of prosecuting them, we bring them in, say, you come in, bring us the narcotics, or you stay in jail.

It's a much simpler procedure and we don't have to worry about things like proving beyond a reasonable doubt--

Unknown Speaker: That ignores the context here, which is a civil... civil proceeding which has many other ends in view than the enforcement of the criminal law, which is what Byers and the Holmes opinion in the Sullivan case are about.

Mr. Burns: --Well, I think, Mr. Chief Justice, the problem with Byers is that we're talking about a statute.

We're not contending any statute is unconstitutional in this case.

What we're contending... in Byers I might point out... and in page 14 of our brief we quote... says the Fifth Amendment does protect what may be incriminating specific inquiries.

So, Byers isn't saying that the Fifth Amendment doesn't apply in any case.

They're saying in a general statute where there's nothing on its face that looks incriminating, it may be okay.

Unknown Speaker: It may be okay to require the production of statements by someone who has a very substantial claim that those statements incriminate him.

Mr. Burns: Well, Byers of course... in... in Byers, it seems to me, that when you... if you look at the statute and you look at the conduct, there may be by chance that case.

But when we're looking at thousands of motorists, it's hard to say that this statute is aimed at any motorist.

This particular order is aimed at precisely one person who the state at the same time... and there's been something made of this distinction between the state's attorney and others... but, of course, the attorney general is part of the state, indeed, represents on appeal cases from the state's attorney.

So I don't think you can say because the state's attorney is involved it's easy enough to contact the state's attorney and get them involved.

Unknown Speaker: Well, what does that point go to?

Mr. Burns: I think that point goes to this whole question that we can't do anything because it's a civil matter.

Because obviously it does have criminal ramifications, and there is something that can be done.

Unknown Speaker: If there were not this investigation of the possible murder, you wouldn't have any case, would you?

Mr. Burns: I think if there were no evidence that there's some risk, yes--

Unknown Speaker: Is that the only point you have?

Mr. Burns: --Well, I think that goes to that there's a reasonable... a reasonable opportunity--

Unknown Speaker: That's the only thing that you have?

Mr. Burns: --I think that's true, that it goes to reasons... if there were no reasonable, I would agree--

Unknown Speaker: So anybody that's ordered to produce the child, all they have to do is start a rumor that the child is dead?

Mr. Burns: --I don't think so, Justice Marshall.

Unknown Speaker: No?

Mr. Burns: I think the police--

Unknown Speaker: Well, why not?

Mr. Burns: --I think the police are more sophisticated than that.

What I mean by that is, in this case... and we've set out... is you have the records of the social workers talking to the police, giving their opinions, not giving their opinions for any reason except they obviously are conducting the investigation.

You have an extensive homicide investigation in this case.

I think it's a far different thing, the mere fact that I may ask a police officer to drop by and see if everything is okay.

Well, that doesn't necessarily mean that there's any real risk of... of prosecution.

In this case I think the state has throughout quite rightly conceded that under all the facts and circumstances it would be unreasonable to conclude that there wasn't a risk of prosecution.

Unknown Speaker: [inaudible]

Mr. Burns: I... I agree, Justice Marshall, and I think that was one of my earlier case... my earlier points.

In many of these cases if no one is concerned that there is any criminal prosecution possibility, then you don't have the problem.

But, of course, the other thing turns around.

if you're not concerned with that, then you're not concerned either with use immunity because the simple point is if there is no... if the state... no matter what the defendant may say, if the state doesn't believe there is a serious risk of this being involved in criminal prosecution, you simply give use immunity and that resolves the entire problem.

So I think our point is that this doesn't really present a balancing case because there are reasonable alternatives which the state can utilize if--

Unknown Speaker: The only way to save the kid who is dying with two and a half days food is to say, okay, you tell us where he is, and if he's dead, you can walk free.

That seems rather an extreme... an extreme price for the state--

Mr. Burns: --I don't think so--

Unknown Speaker: --to pay.

Mr. Burns: --Justice Scalia.

What I'm saying is, if you really believe that... if those facts are known to the state, obviously you do have this case.

What I'm saying, in a case where the state is going to argue... and that was my answer to Justice Marshall... in a case where the state is going to say the defendant may say this... there is a concern with prosecution but we know better, we know perfectly well the child is in great health with another family member.

Well, the state can call that bluff very easily.

All I'm saying is, in a case where the state is not concerned with that, there is no problem.

Unknown Speaker: Well, Counsel, correct me if I'm wrong.

As I understand the case, although there is a possibility of a homicide here, there is also the very real possibility that while we sit here this morning that child is in need of care.

Mr. Burns: I suppose--

Unknown Speaker: And... and... is that a possibility, a significant possibility in this case?

Mr. Burns: --I think it's... I can't say it's not a possibility.

I think under all the facts and circumstances whether it's significant is... to be frank, your judgment is as good as mine under these facts where the child is--

Unknown Speaker: Well, on... on this--

Mr. Burns: --gone for 18 months.

Unknown Speaker: --this record of previous demonstrated serious abuse, let's stipulate, if we can, that it's a serious possibility.

I just want to make very clear that your answers to Justice Scalia's question is that the Fifth Amendment overrides any interest we have in the welfare of that child in ordering her production.

Mr. Burns: Well, I think, if I may, give two answers to that.

First, I think the answer would be, yes.

And, of course, the factual problem here is, although you have this history of abuse of the mother, we know for a fact in recent times the mother has not abused anyone, she's been in jail.

But the second point is, I think, Justice Kennedy... and I think equally important... is... is the... Justice Scalia's hypothetical is built on the premise that the state can do nothing.

And I think the court of appeals as a matter of law found that to be contrary.

As a matter of Maryland law the state can do something without forfeiting any right under 3-831.

And if that's true, we don't have a true balancing case because all we have is the state saying we're going to resist doing it this way for whatever reason.

I don't know what that reason is.

It's not a matter of we can't do it; we just won't do it.

Because it seems to me the court of appeals is in Maryland law the final decider of Maryland law.

They concluded this was the applicable statute.

And as I said, I think a prosecutor certainly--

Unknown Speaker: What statute is that?

Mr. Burns: --3-831 court's article.

It's cited... it's been reproduced in 6(a) of petitioner Maurice's brief.

Unknown Speaker: And so how precisely is the state supposed to proceed now?

Mr. Burns: Well, I think the state simply can say, we're going to prosecute you; you... we're charging under this.

If the state is concerned that what we have--

Unknown Speaker: But that... but that is just... still avoids Justice Scalia's hypothetical and my concern that we're interested in the welfare of the child.

Mr. Burns: --Exactly, Judge Kennedy... Justice Kennedy.

Unknown Speaker: And so you're saying that there is nothing that can be done for the welfare of the child.

Mr. Burns: I'm not saying that because what I'm saying... and I'd be willing to say that I'm sure at this very moment there is somewhere some prosecutor saying to a defendant that, if you do what I want... in this case, if you comply, if you tell me where the child is, if you produce it, we'll either not prosecute you under this; there's going to be a mitigating factor under this.

That is, all the things that basically you can do with civil contempt you can do with 3-831.

And it has a three-year penalty on it.

So we're not talking about some minor regulatory thing.

Unknown Speaker: Well, let me ask you, while we're talking about prosecutors.

I take it... or, correct me if you disagree... that in a case where the court awards custody to a mother but with a warning that the mother is to cooperate with social service workers, I take it the court could require a waiver of the Fifth Amendment as a condition to remitting the child to the custody of the--

Mr. Burns: My view, Justice Kennedy, is, assuming all the proper forms going through, the answer would be yes.

There wasn't anything in this case.

I think that's certainly another.

Obviously you can't use it in retrospect, but certainly in future cases that's a perfectly reasonable explanation.

You have the mother, you have the lawyer, and you simply make it clear that you can't use the Fifth Amendment for this limited thing, for producing the baby.

So, although I don't know of a case where that's actually happened, I haven't seen any, I see in principle no reason why it isn't a perfectly suitable basis for avoiding all of these problems.

Unknown Speaker: --Oh, but wait a minute on that.

Supposing there is no history like you have here, which is fights between parents and so a mother says she's entitled to custody and they say, well, in order to get custody you've got to waive your Fifth Amendment privilege and she says, why should I waive my Fifth Amendment privilege, I never did any--

Mr. Burns: Well--

Unknown Speaker: --do you just think you could you could routinely require waivers of constitutional--

Mr. Burns: --Justice Stevens--

Unknown Speaker: --rights?

Mr. Burns: --I think the question of whether it would be proper would be looked in a particular case.

If you're just doing it as a matter of routine, I think a mother--

Unknown Speaker: All right.

If you do it on a particular case... supposing you've got a case, maybe a divorce proceeding that seems normal as it starts but later on it gets acrimonious, and then there is a dispute about custody and somewhere along the line the court says, I think the mother should surrender custody by such and such a date.

She refuses to do it.

He orders her, bring the child in, and she refuses.

You don't know the details of it.

Could she claim the Fifth Amendment privilege?

And she had no reason to waive her Fifth Amendment rights before.

Mr. Burns: --But the problem... I don't think... I may have misunderstood your hypothetical, Justice Stevens.

But I don't think there was any... suggested any criminality involved or anything happening to the child.

Unknown Speaker: No, but when she comes in, she... maybe the husband's allegations are rather extreme.

There could be all sorts of variations in the facts.

But does she have a Fifth Amendment privilege just like this--

Mr. Burns: I think only if, again, there is a reasonable prospect of this prosecution.

And, again, I think the state in many cases is going to be sure, despite allegations of husband and wives which are made... that's not the case.

And you do have the example saying limited immunity; you have no rights whatsoever.

Going back to Justice Kennedy's with the waiver, I think it might be a problem in the routine case, but it seems to me in any case where you're taking what I would call a high-risk placement, and certainly you are if there is some prior history of abuse, I see nothing wrong either in law or principle with saying that we're going to condition this custody which, after all, is some risk to the child, on a waiver of exercising your Fifth Amendment privilege in these circumstances.

Unknown Speaker: --Maybe you'd also--

--If you can require that... but only in certain circumstances.

I take it you say you can't require the waiver unless there is some previous element of criminality.

Then it's going to be litigated in every case whether the waiver was any good.

Mr. Burns: No, Mr. Chief Justice.

No, I don't think the matter of waiver would be any good.

The litigation would come if social services said, we're not going to give you the child because you didn't waive.

Then I think the burden would be on the parent to say, well, it was an unreasonable thing.

I don't think that goes to whether the waiver is good or not.

Unknown Speaker: Well, supposing that Mrs. Bouknight here had waived and then the time comes for her to bring her child into court and she says, no, I'm going to claim my Fifth Amendment.

The court says, well, you waived it.

And she says, well, they have no business exacting that requirement of me.

Mr. Burns: I think, Mr. Chief Justice, it's too late then.

I think if she wanted to litigate it, she had to litigate it at the time when you were exacting--

Unknown Speaker: Well, who knows... who knows... that may be what you think but who knows what courts are going to say?

[Laughter]

Mr. Burns: --Of course, Mr. Chief Justice, I can't be responsible for what courts might do.

However, the problem here to some extent, I think, is we're working in a vacuum because, as I pointed out, I don't know of any specific case where this has been done although... I'm not saying there will never be any difficulties, but I suspect that every rule of law there is provides--

Unknown Speaker: Mr. Burns, the rule that you're urging upon us is full of these difficulties.

For example, you say that it's no good in this case because you could have done it a different way.

There is this other statute that you say is after all a big deal statute which requires a three-year term.

Now, what if... what if the child is so badly injured that the incrimination she's worried about will get her a jail term much more than three years?

So she says, it is still worth it for me to serve three years.

Are we supposed to weigh in each case whether the other available means that the state has is really going to be effective enough to save the child's life or to achieve whatever other the state is legitimately seeking?

Mr. Burns: --No, Justice Scalia, because I think what you're doing there is you're saying that... exactly what we think is the concern here, is we really think something's happened to the child and we want to prosecute.

Now, obviously, if you want to do that--

Unknown Speaker: I want to save the child.

Mr. Burns: --then you have to collect evidence.

Unknown Speaker: I don't want to... I want to save the child.

Mr. Burns: Well, then I'd--

Unknown Speaker: And you're saying, well, three years... a three-year term ought to be enough to coerce her into producing the child.

And I say maybe not.

Maybe the only thing that will coerce her into producing the child is to say you sit there until you produce him.

Mr. Burns: --Well, of course... well, it hasn't come up in this case, I think... and I don't think this Court has actually ruled on it... is there are limitations, I think, on whether civil contempt can be, for example, turned into a life sentence because then it no longer has the purpose of coercing you to do this, but it's becoming essentially punitive.

To my knowledge, there's no case where someone has been held even three years under civil contempt.

Unknown Speaker: Well, I would think if the state moved to this other procedure, this 3-831, or whatever it is, you would be making the same argument.

Mr. Burns: I wouldn't--

Unknown Speaker: Why not?

Mr. Burns: --Justice White.

Unknown Speaker: Why not?

Mr. Burns: Because I think--

Unknown Speaker: She exercises her Fifth Amendment privilege and the court puts her in jail under civil contempt and they say, well, now, we're going to prosecute you for... for disobeying this order to produce.

And she says, well you can't prosecute me for exercising my Fifth Amendment privilege.

Mr. Burns: --Justice White, you're not prosecuting for exercising that Fifth Amendment privilege.

You're prosecuting for not complying with the order which requires you to keep the child from being... neglectful to submit to this supervision.

It's like any other criminal case.

A defendant certainly can come forth and say something, but he doesn't have to, and the fact that he doesn't say anything has nothing to do with the Fifth Amendment.

Unknown Speaker: Well, what the state is going to prosecute her for is not producing the child.

Mr. Burns: That's true, Justice White.

Unknown Speaker: Which is a... you say is a testimonial act.

Mr. Burns: No.

What we're saying... we're saying is she that she has no right not to comply with this order as a matter of criminal law.

What we're saying is you can't use the civil proceeding contempt to force her to incriminate herself for some other crime.

The 3-831 prosecution--

Unknown Speaker: I know, but you're not... I didn't know the state could penalize somebody for exercising a--

Mr. Burns: --They're not penalizing them for that, Justice White.

All our suggestion is... totally in those circumstances is you're penalizing them not for exercising any right and you're not trying to necessarily collect evidence for some other crime.

All you're saying is this was a valid order--

Unknown Speaker: --Well, if you're right in this case, I would suggest that if your client is prosecuted under this other statute, you ought to think twice about not making this argument.

[Laughter]

Mr. Burns: --Well, Justice White, lots of arguments are made, but I think--

Unknown Speaker: And vice versa.

Mr. Burns: --In any event, I think is... there is nothing to suggest at this stage of the proceedings, at least, that this isn't a viable means of prosecuting and accomplishing precisely the same factor.

Rylander was cited by the state.

Rylander concerned a prior enforcement proceeding, a subsequent contempt proceeding.

Here the prior proceeding that we would be talking about is when the child is given to the mother.

It's difficult for me to understand what it is she'd be contesting or talking about in the Fifth Amendment at that time.

Unknown Speaker: And how about the Byers-type exception to the Fifth Amendment requirement?

Mr. Burns: I think the problem with the Byers is, again, the specific order.

Again, we're not attacking the statute.

As I think I've suggested many times here today, there are certainly many cases where the content would be perfectly proper, and in the ordinary course of events, there would be no problem.

But here we have a judge acting with all these facts before him knowing precisely that we're after one individual and knowing at the same time, as the state concedes, that there is a real significant problem with the threat of criminal prosecution.

Unknown Speaker: May I just clarify one thing, Mr. Burns.

Is your attack on the order or on the contempt?

Mr. Burns: Order or the... the order... if I may say one thing, I would refer the Court to 72 and 74... pages 74 of the Joint Appendix, where the judge talks about, in reference to one of your earlier questions... that he requires there be verification of whatever the petitioner says.

Unknown Speaker: Is that... again, are you saying the order violated the Fifth Amendment or the order holding her in contempt violated the Fifth Amendment?

Mr. Burns: Which... I don't--

Unknown Speaker: The order to produce the child.

Mr. Burns: --Oh, I'm saying the contempt.

I'm sorry.

I misunderstood you.

Yes.

Unknown Speaker: So you... do you concede the order to produce the child was valid?

Mr. Burns: I think you can... I don't have any problems with that.

Unknown Speaker: Oh, okay.

Mr. Burns: No, that's purely contempt.

I'm sorry.

I misunderstood.

But I did want to refer back to 72 and 74(a) in reference to one of your earlier questions to the other side... is that where the judge makes it clear not only do I want someone to say I can't do it; it has to be verified and I have to accept it.

So the judge is making perfectly clear in the hypothetical where you can't produce it... just saying or telling your lawyer to say, "I can't produce it", is simply not going to be enough.

Thank you.

Unknown Speaker: Thank you, Mr. Burns.

Mr. Tyler, you have three minutes remaining.

Rebuttal of Ralph S. Tyler, III

Mr. Tyler: Without any doubt, the interests in this case are the most fundamental and important interests that the state has to protect and that we as a people have to protect, and none of the arguments advanced today or in the brief or in the opinion of the Court of Appeals of Maryland meet either half of this case.

With respect to the testimonial issue, on page 10 of Respondent's brief they say this case need not be decided on the narrow ground of whether the effect of producing the child is testimonial.

Were that proposition to be accepted, it would largely reverse a vast body of this Court's decisions, and it should be rejected.

If it is not testimonial, she has no Fifth Amendment privilege.

I think they've largely conceded that it's not testimonial.

The order... judgment below should be reversed on that ground alone.

Unknown Speaker: Mr. Tyler, do you agree... I thought the question presented was whether the order directing a parent to produce a child and so forth violated the Fifth Amendment.

And he's just said to me that that order is conceded to be valid.

The only issue is the contempt.

Is that your understanding of the case?

Mr. Tyler: Well, I think the sequence, your Honor... really the one followed the other quite quickly.

The order--

Unknown Speaker: Yeah, I know, but they are legally distinct.

Mr. Tyler: --I'm not disputing that.

The order to produce was given by the judge.

That led to some information being provided.

She was held in jail overnight.

Then the following day the information is verified as false.

He asks her, do you want to produce the child?

She says, no.

Judge Mitchell then cites her in contempt and the contempt order is entered.

So, I--

Unknown Speaker: So you agree the issue is the validity of the contempt order, not the order to produce.

Mr. Tyler: --Yes, and that the... the order... the contempt order plainly is an order to enforce the order to produce.

And I think that it is... it is incorrect to look at this case only from the point of view of well, that specific order is directed at one person as to whom there is some risk of incrimination.

The fact is that order grows out of a plainly neutral state regulatory system which exists for an entirely legitimate, non-prosecutorial purpose, namely, child protection, and no answer that has been given today can meet the problem of where will we be if the state cannot require a parent to produce her child in court.

The idea that criminal--

Unknown Speaker: You're saying that the order to produce is the... which is not contested, is the equivalent of the income tax statute, and the contempt for failure to obey it is the equivalent of the prosecution for not filing--

Mr. Tyler: --Right.

Unknown Speaker: --as the statute required?

Mr. Tyler: I would not concede that it's prosecution, Your Honor.

Unknown Speaker: Well,--

Mr. Tyler: It is... it is enforcement, and it is enforcement in this case, as it is really in any civil case.

I mean, the judicial arsenal is limited.

What's at stake in this case is will the most effective remedy that's been identified in literally centuries of cases be taken away from the only court that exists in our system to protect children.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Tyler.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Doe v. United States - Oral Argument

Wed, 13 Apr 2011 20:10:24 +0000

Case:

Doe v. United States

Media File:

86-1753_19880302-argument.mp3

Related Transcript:

86-1753_19880302-argument.xml

Transcript:

ORAL ARGUMENT OF RICHARD E. TIMBIE, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument first this morning in Number 86-1753, John Doe against the United States.

Mr. Timbie, you may begin whenever you wish.

Mr. Timbie: Mr. Chief Justice, and may it please the Court:

This case involves the Fifth Amendment implications of a court order requiring a Grand Jury target to waive foreign bank secrecy requirements.

The facts can be stated simply.

John Doe is under Grand Jury investigation for tax offenses.

The Grand Jury knows that Doe has bank accounts in the Cayman Islands and Bermuda and believes that the records of those accounts would provide evidence sufficient to bring an indictment.

The Grand Jury has tried to get those records by serving subpoenas on the U.S. branches of those foreign banks, but has been unsuccessful because the banks have objected on the ground of foreign bank secrecy laws that prohibit disclosure of bank information without the consent of the customer.

The United States Attorney, therefore, filed this action in the District Court.

Unidentified Justice: Excuse me.

Is that binding on the United States authorities?

Mr. Timbie: The--

Unidentified Justice: The foreign bank secrecy laws?

Mr. Timbie: --No, Your Honor, it's not binding, and, in fact, it may not even be pertinent, but the Government feels that it would be helpful in obtaining the records in a show cause proceeding against the banks in the United States.

Unidentified Justice: But you could seek to compel the banks to do it despite those foreign laws and take some action against the domestic subsidiaries of the bank?

Mr. Timbie: Yes, Justice Scalia.

That is precisely what was done in the Bank of Nova Scotia case, and it is what the Government acknowledges in a footnote in its brief.

It proposes to do in this case.

It simply wants this consent as a sort of thumb on the scale in that balancing test that will be used in that proceeding.

The District Court originally denied the Government's motion for an order requiring John Doe to sign the consent directive, and the U.S. Attorney appealed the denial to the Fifth Circuit which reversed and remanded.

On remand, Doe was ordered to sign the document and refused to do so, was held in civil contempt, and sanctions were stayed pending this appeal.

The directive that Doe has been ordered to sign by the court below makes four statements.

It says that Doe directs any bank to disclose records of accounts over which he has signatory authority.

Excuse me.

Over which he has the right of withdrawal.

That that direction is irrevocable.

That that direction is given pursuant to a court order, and that that direction is intended to constitute consent for purposes of Bermuda and Cayman law.

We contend that that order below violates Doe's Fifth Amendment rights because the consent directive, once signed, would be a compelled communication and its contents would be used to incriminate Doe.

Now, the Government concedes compulsion and incrimination, and we feel there is no serious doubt that what we are dealing with here is a communication.

After all, once signed, the document will be a statement by Doe to the banks that he directs them to disclose records, that he won't revoke his direction, and that he will not later argue that it's not a valid consent.

Unidentified Justice: But what's the testimonial about that?

Mr. Timbie: Mr. Chief Justice, our contention is that the Fifth Amendment test is not whether the statement is testimonial in the narrow sense that the Government argues; that is, that it gives the Government information that is directly relevant to the case or could be used as leads; but the test that this Court has used in every case and that is the rational in every case is whether the compelled statement is testimonial or communicative as opposed to a non-communicative act or, in the case of a handwriting exemplar or voice print, a statement that isn't intended to be used for its content in any way.

Unidentified Justice: Mr. Timbie, if the scene were changed, say, to the State of Colorado, would these records be available?

Mr. Timbie: Absolutely, Your Honor.

Unidentified Justice: Suppose Colorado passed a law saying they passed a bank secrecy act, would it be constitutional?

Mr. Timbie: I would assume not.

I simply don't know.

I would assume there would be a supremacy problem.

Unidentified Justice: So, it's foreign venue that really is the sticker here.

What was the... does the record disclose any business reasons for having accounts in the Cayman Islands?

Mr. Timbie: The record discloses that Doe was involved in international oil trading business.

Unidentified Justice: If one walks down the streets of Nassau, which is foreign bank after foreign bank, and I haven't been in the Cayman Islands, but I suppose it's the same reason, is... are they there because they are refugees for what, tainted money?

Mr. Timbie: Mr. Justice Blackmun, they are there for all sorts of reasons, of course, but we feel that the problem... there is obviously a concern that the Government has in this case that it is unable under certain circumstances to obtain records of those foreign accounts.

We feel that the pertinent issue here is whether the means that they've chosen in this case to obtain the records offends the Fifth Amendment.

That is, whether when they want to obtain those records, they can compel an unwilling, unimmunized defendant or accused to speak on the Government's behalf and then use the content of that speech to obtain the records.

I would point out that there's no question that, as Justice Scalia mentioned, there's no question that the Government has an alternative means of getting these records that would involve no Fifth Amendment problem, which would simply be a show cause order against the banks that have already been served subpoenas, and then a contempt hearing in which the banks can be made to provide the records, unless they could persuade the judge that the Cayman Islands interest in the enforcement of its bank secrecy laws outweighs the U.S. interest in the enforcement of its criminal tax laws.

And so far, very few banks have been able to win that balance of test.

Unidentified Justice: Mr. Timbie, taking Justice Blackmun's question about a Colorado bank one step further, supposing your client had a safe deposit box in the Colorado bank and the Government wanted the key, could they get it from him?

Mr. Timbie: That's an interesting question.

I would argue that the act of producing the key might have testimonial aspects--

Unidentified Justice: Very similar to this case.

Mr. Timbie: --in John Doe, but setting that aside, yes, they could, and they could because they were using a means--

Unidentified Justice: But would you set that aside?

Would you set aside the testimonial significance of delivering the key?

Mr. Timbie: --Oh, no, I certainly wouldn't, but I thought you were asking a more general question as to--

Unidentified Justice: Whether they could require him to deliver the key.

Mr. Timbie: --They could certainly give him acts of production immunity and require delivery.

Unidentified Justice: No, no.

Mr. Timbie: Or if they knew--

Unidentified Justice: Without giving any kind of immunity.

Mr. Timbie: --If they knew to a certainty that the key existed and they had it, they could make him give it and that's because he would not be required to communicate in any way in order to fulfill the order of the court.

Unidentified Justice: They could just subpoena the key and he'd have to respond to the subpoena by delivering it?

Mr. Timbie: Unless he could establish in a Huffman hearing that the Government would be learning of the existence of the key or of his possession of it and that fact would be incriminating under the Fisher rational.

He would have to give it.

Unidentified Justice: Well, don't we assume here the Government already knows about the accounts?

Mr. Timbie: Yes.

Unidentified Justice: Yeah.

Okay.

Mr. Timbie: Excuse me, Your Honor.

May I clarify that answer?

Unidentified Justice: Yes.

Mr. Timbie: The Government knows about eleven accounts.

It has told the court below that it knows of a twelfth account that is not in John Doe's name, but that it believes was controlled by Doe and used in connection with these illegal activities, and that one of the purposes of this consent procedure is to obtain the records of that account, assuming that they are, in fact, controlled by Doe.

The Government also wants records of any accounts of which it knows nothing that would fall within the scope of the consent.

Unidentified Justice: What if the Government... let's say nothing is as esoteric as this situation, it's a murder investigation, the Government issues a subpoena to a prospective indictee, subpoena all the guns in your possession, now can he defend against that on the grounds that producing guns might incriminate him?

Mr. Timbie: The answer to your question lies not in... I don't think lies in the issue before the Court today, but in the extent to which the Court would extend Fisher and how the court views the act of production rational, I could argue that if the Government didn't know to a certainty that he possessed any guns, and the fact that he possessed any gun would be incriminating under the circumstances, that Fisher should be extended to that.

Unidentified Justice: But Fisher didn't hold that there was any significance to the act of production.

It was debated in Fisher, but it wasn't decided.

Mr. Timbie: Excuse me.

It was in Doe that it was--

Unidentified Justice: And Doe devoted about one paragraph to it.

Mr. Timbie: --My reading of Doe... I'm not sure I understand the point that you're making.

Unidentified Justice: Well, my question is that the idea you're pumping for may not be as well established as you think it is.

Mr. Timbie: We don't feel that it's established by Fisher and Doe.

We simply don't feel it's been taken away by Fisher and Doe.

We--

Unidentified Justice: Prior to Fisher, where did it exist?

Mr. Timbie: --It existed in the so-called physical evidence cases in which, beginning with the Holt case back in 1910, Justice Holmes announced a boundary to the Fifth Amendment in terms of a requirement that the Government not compel a witness or an accused to provide any form of testimony or conduct that would be testimonial or communicative, and, in fact, Justice Holmes' word was "communicative conduct" as opposed to a demonstration of physical characteristics, and subsequent cases, like Schmerber and Dionisio, Gilbert and Wade, have all applied that line and, in fact, have described protected conduct as conduct that is testimonial or communicative in any way.

Unidentified Justice: Don't you think they mean communicative to the fact-finder at the trial and not communicative to anyone in the world?

If I may pursue Justice Stevens' hypothetical, you think that the difference between this case and the key case, where you say he can... the Government can compel the production of the key to the safe deposit box, assuming they give immunity for the fact of the production of the key, right?

Mr. Timbie: Right.

Unidentified Justice: But you would say that even if they gave immunity, they could not require him to tell the guard it's all right to let these investigators in to get into my safe deposit box.

If he has a private guard who will only let people in with his consent, he can give the key but he can't tell the guard, let these people in.

That's the line you're drawing here.

Mr. Timbie: The line I'm drawing--

Unidentified Justice: Because that's communicative.

Mr. Timbie: --is that he cannot be made to speak such that the Government would use the content of his speech to obtain incriminating evidence unless that compelled speech is, in fact, immunized.

That is the line, and--

Unidentified Justice: You think that's a reasonable line between giving the key and telling the guard, let these people in?

Mr. Timbie: --The key hypothetical is an extraordinary one.

I should think that the genuine analogy in this case would be to sign a directive instructing anyone, if they have custody of the key that will allow access to incriminating evidence, to turn it over to the U.S. Attorney and if the Government feels that it could use that document somehow to cause a third party to release the key to--

Unidentified Justice: No, not to use at trial.

Not to use at a trial anyway.

Mr. Timbie: --Well, no, not to use at a trial, but if there's a potential for using it at trial, obviously that's an independent basis for finding Fifth Amendment violations.

If I may, there has not been a case, and we don't contend there's been a case, in which this Court has directly addressed a communication that was not testimonial in the sense that the Government asserts.

We acknowledge that.

On the other side, there has never been a case in which this Court has drawn the line that the Government suggests and that line has somehow been relative to the holding.

That is, there is no case in which this Court has allowed a compelled communication on the ground that it did not communicate facts about an offense or disclose information that might lead directly or indirectly--

Unidentified Justice: Well, may I ask another question then?

Supposing the Grand Jury subpoenaed somebody and asked them to provide them with a handwriting sample of the person's signature, which I guess they can do if they are just trying to compare it with the pre-existing signature, but are you saying that they could not take that signature and go to other parties and say, have you ever seen a signature like this one?

Mr. Timbie: --Oh, absolutely.

There's no question they could do that.

The reason they could do that is set forth in Gilbert.

The reason they could do that is that it is the physical characteristics of the signature and not the content of the words that they're after.

Therefore, there's no Fifth Amendment issue.

They can use it against him in any way they choose.

Unidentified Justice: Not only... they could use it to gather evidence that might incriminate him.

That's what I'm saying.

Take that signature around and ask people, have you seen--

Mr. Timbie: That's what Gilbert... that's what Schmerber says, certainly.

Schmerber says that although the logic of the underlying principles of the Fifth Amendment would suggest that you can't even compel assistance from a defendant in the form of turning over physical evidence, this Court declines to extend the Fifth Amendment beyond testimony or communication, and, therefore, in Gilbert, the Court said the handwriting exemplar could be compelled specifically because it was not the content, it was not any form of testimony or communication out of the defendant's mouth that was the purpose or use of the exemplar.

And, in fact, I would certainly argue that if, in the guise of taking a handwriting exemplar, the Government were to make Joe write out a document, write these words, I consent to disclosure of my foreign bank records, and they were then to take that handwriting exemplar to the bank and attempt to pass it off as a consent, I would certainly argue that it would be a communication.

Unidentified Justice: --Mr. Timbie, what actual potential use of the form do you say is testimonial here?

Mr. Timbie: There are two uses and, in fact, there are principal and alternative arguments in the case.

The first use is taking the form to the bank and presenting it to the bank as a communication of Doe's consent and an assurance from Doe that he won't revoke that consent and won't later argue that it was invalidly granted.

Unidentified Justice: Well, why isn't that much like taking blood or getting the handwriting sample?

Mr. Timbie: In the words of Schmerber, blood and handwriting samples are sought for their physical characteristics, not for any compelled communication they might entail, whereas that is sought for a compelled communication, and I recognize that there's no direct authority that can be cited that would cause the Court to choose between the Government's line and our line, but I would--

Unidentified Justice: Direct authority meaning physical evidence in a sense?

Mr. Timbie: --Surely.

Unidentified Justice: Mr. Timbie, in the absence of any direct authority, maybe we're compelled to fall back upon the language of the Fifth Amendment.

That's a drastic step.

Yes.

I hate to suggest it, but the... it does not read that no one shall be compelled to communicate in such fashion as to harm his case.

It says no one shall be compelled to be a witness against himself.

Now, how is this action here causing this individual to be a witness against himself?

Mr. Timbie: Justice Scalia, I would submit, respectfully, that if this Court were to fall back on the language of the Fifth Amendment, it would have to overrule a great deal of precedent in addition to not following--

Unidentified Justice: Why is that?

Mr. Timbie: --Because the language of the Fifth Amendment suggests that what we're concerned about here is compelled confessions, and the reason... the initial reason that compelled-confessions were considered inappropriate was that they're untrustworthy and unseemingly.

Unidentified Justice: But it's easy to extend it to any testimonial utterance by the defendant that can be used against him at trial.

That can be used for its truth against him at trial.

Mr. Timbie: Well, and then the Court has then gone on to say that under Kastigar, the Fifth Amendment would require that in addition, any leads that came out of the testimony would have to be protected and any evidence derived directly or indirectly from it.

Perhaps I could come at your question from the other direction.

Unidentified Justice: Once you establish the violation, there are all sorts of fruits of the tree that also fall out.

Why isn't it enough to say the violation has to be some testimony, some assertion of a fact or the truth that he makes which is used at trial against him?

Mr. Timbie: I can't argue that there is a compelling logical reason why the line has to be drawn where we suggest.

I would like, if I may, to come at the answer to your argument from the other direction and suggest some types of compelled communication that would apparently be allowable under the Government's rule that I feel would not be within the spirit of the Fifth Amendment and certainly would not be within the traditional scope of the Fifth Amendment as it has been applied over the last hundreds of years.

Let me take, if I may, the Government's own rational for why, in their words, the document Doe is being asked to sign is a non-assertive document and, therefore, the Government would divide the universe of communications, of course, into assertive communications that continue to be protected and so-called non-assertive communications that aren't protected, and the rational for putting this consent directive in the non-assertive title under the Government's view, there are three of them offered.

One is that it is an imperative statement issued to a third party and should be simply treated as a verbal act.

Now, the corollary it seems to me of that rational is that any imperative statement is outside the Fifth Amendment, so long as the Government is not using it as an admission of fact.

Does that mean that in a bank robbery investigation, the Government could get a court order that the first suspect arrested call up or write to an alleged accomplice and tell him, bring the loot to the corner of Fifth and Main, we'll go some place and divide it up and then wait and see what happens?

I would contend that that is not faithful to the command of the Fifth Amendment or the policy of the Fifth Amendment, that the Government will shoulder the entire load in an investigation and not--

Unidentified Justice: Well, Mr. Timbie, don't you suppose the due process clause addresses some of your concerns about other potential uses to which the Government's logic might lead?

Mr. Timbie: --There may well be an overlap between due process--

Unidentified Justice: Yeah.

There may be some protection there, and I would appreciate it if you'd answer my question.

Mr. Timbie: --Pardon me, ma'am.

I'm sorry.

Unidentified Justice: I wanted to know what testimonial use of the consent form you're relying on here.

Mr. Timbie: I am very sorry.

Unidentified Justice: Well, you were interrupted.

It's not your fault, but I would like to know.

You said--

Mr. Timbie: I said, in our view, the mere presentation of the document to the bank is a testimonial use because it's a use of content.

In the alternative, if the Government... if the Court adopts the Government's view that this is... that there is a difference between assertive and non-assertive communications then I think it would still be a testimonial use and it is the use identified in Ranauro which, in the First Circuit's decision in Ranauro, which held this procedure to be unconstitutional, Ranauro presented a hypothetical that framed the issue in which a consent directive was signed and presented to a foreign bank and the bank produced records of an account that wasn't in the name of the person who signed the consent directive, and it seems clear that under those circumstances, the statement in the consent, I authorize disclosure of records of accounts over which I have the right of withdrawal, becomes testimonial evidence that he has the right of withdrawal, and it would be evidence that could be used in a criminal trial against him unless he were given immunity from the act of signing the document.

Unidentified Justice: --Well, I assume the Government could take care of that by simply redrafting the order.

Mr. Timbie: I am not sure how that would be possible.

Unidentified Justice: Well, we could play around with the words, I suppose, but it would say without acknowledging that I have control, you are authorized to release any accounts over which I do have control.

Mr. Timbie: No.

I believe the document was redrafted once in order to do exactly what you're suggesting.

That is, make it at the time it is signed not an acknowledgement of control of ready accounts, but what the Ranauro court said is that no matter how hypothetically it's drafted and vaguely it's drafted, the process server who went to the bank could then get on the stand,... the Brown decision in the Second Circuit says that you can authenticate and get admission of records by putting on the process server who served the subpoena and say this is what I asked for and here's what I got, and that's authentication.

In this case, the process server could say or the Government attorney or an agent who delivered the consent could say, I went to the bank and demanded the records, they said no because the customer has to consent.

I went to the bank with Doe's consent, this is what they gave me.

I'm not sure that would be adequate to authenticate the records, but it would be some evidence of a link between Doe and those accounts, and the Government explicitly refuses or at least does not deny that that document would be usable in a trial for that purpose.

Their argument at the end of their brief on the last page simply--

Unidentified Justice: Well, we can argue about that.

Mr. Timbie: --says it wouldn't have probative value.

Unidentified Justice: It seems to me that that's the act of the bank.

Let me ask you just one other question.

You've argued the case so far in order to show that there's a testimonial component to this statement.

Does your case rise or fall on that?

If we were to rule that there is no testimonial component, does your case necessarily fail?

Mr. Timbie: That is--

Unidentified Justice: That's another way of asking whether or not the Fifth Amendment has another ingredient and that is that the accused simply can't be asked to do too much to make the case against him.

Mr. Timbie: --I would have to say that in our view, the traditional Fifth Amendment rule is that too much and communication are the same thing, that the Court has said too much in terms of production of physical evidence, giving blood samples, being forced to speak in your own voice in a line-up and repeat what was said, that's a lot.

But the bright line the Court has drawn in case after case is, between physical evidence, acts that have no communicative content, and communication, and I think that in my view, too much and that line are the same thing.

Having already given the hypothetical... excuse me.

I only ended up giving one of the explanations that the Government uses to show that this is a non-assertive two others that suggest two other categories of communications that it would view as unprotected.

One is the Government argues in its brief that this is a non-assertive communication because the Government put the words in Doe's mouth, and the Court ordered him to say it, and, therefore, it wouldn't be right to treat them as words of Doe or as communications from Doe.

Now, the Government is clearly trying to have it both ways there.

It wants to take this document to the bank and say to the bank, this is Doe's consent, only he can give it, there's his signature.

On the other hand, it comes to this Court and says, you should treat it as an act devoid of content because we told him what to say.

If the Government's right there, then presumably unimmunized witnesses could be made to cooperate in an investigation so long as the Government told them what to say.

For example, if you imagine a complex conspiracy investigation in which, as is often true, the prosecutor knows what went on and knows who the players were, but can't because it doesn't have a cooperating witnesses establish these conspiratorial links that are necessary for the conspiracy indictment, it would theoretically under the Government's view be proper to have a court order an unimmunized alleged coconspirator to call up other parties and make statements calculated to cause t other parties to incriminate themselves and if that were to work, then the incriminating statements might equally well incriminate the person doing the calling out of his own mouth.

Unidentified Justice: I'm not sure the Government... that it would be all right to do that.

I think they would argue that that order might not itself violate the Fifth Amendment.

Mr. Timbie: That's correct, and then they would order that the defendants in the ultimate indictment would have to come up with some trickery rational to preclude it.

My point is that it seems to me that is making him convict himself out of his own mouth and if it's a question of what is too much, that that should be too much.

Unidentified Justice: It seems to me that, too, Mr. Timbie, but are you sure it's the Fifth Amendment that makes it bad?

I don't think the Government could ask John Doe out on the street to do that either.

Mr. Timbie: You're suggesting there's a jurisdiction problem?

Unidentified Justice: I am saying there's some limit to what the Government can do to enlist anybody in its investigations.

I don't think the reason it can't do it is necessarily that this person is under indictment.

I don't think you could ask anybody to go and assist... compel anybody to assist this investigation in that fashion.

Mr. Timbie: If you're suggesting that there would be a jurisdiction problem in a District Court issuing such an order, I would agree and we made that argument below and the Fifth Circuit ruled there was jurisdiction for this prosecutor or John Doe to assist the Government in its investigation in that way, even though the controversy was between the banks and the Government.

If you're suggesting that setting aside jurisdiction, there's some per se rule why that is improper, I don't know what the rule is.

I think in order to police that kind of conduct, you need a Fifth Amendment rule that encompasses all communications.

Unidentified Justice: Mr. Timbie, do you have any comment on the amicus brief that was filed by Rex Lee?

Mr. Timbie: My only comment is, as I said earlier in the argument, the issue... there's a sham quality to what's going on here, and I think that that is pointed out in the amicus brief.

The Cayman Islands have ruled, the high court of the Cayman Islands has ruled that a compelled consent is not a consent for purposes of its law.

So, what the Government is trying to obtain is on its face an invalid document, and the Government has said we want to use that document nonetheless in a U.S. court in the balancing test in hopes that it will be thrown on our side of the scale, notwithstanding its patent invalidity in the Cayman Islands.

I don't think the issue of it is a valid document is determinative of the Fifth Amendment question in this case, and I believe what the Cayman Islands were saying is that that's an issue that ought not be addressed in this proceeding because it hasn't been framed in the record below.

I'd like to reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Timbie.

We'll hear now from you, Mr. Rothfeld.

ORAL ARGUMENT OF CHARLES A. ROTHFELD, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court:

I think it's helpful at the outset to make clear exactly what is not controverted in this case.

Both sides agree that the bank records sought by the Government are not themselves privileged under the Fifth Amendment.

Both sides agree that the banks that hold the documents can't assert the Fifth Amendment in declining to turn them over.

Both sides agree that the Petitioner has no Fifth Amendment right to keep the banks from disclosing the documents.

Both sides agree the Government has to find the banks where Petitioner has his accounts through its own investigation and once the Government does find those accounts, both sides agree that the only thing that will keep the banks from surrendering the account records are foreign bank secrecy bank laws that have no force in the United States.

I think Mr. Timbie acknowledged all these points in his argument.

Nonetheless, Petitioner insists that the Fifth Amendment somehow gives him a constitutional right to continue to enjoy the protection of the foreign bank secrecy laws, even though the act of waiving that protection, the consent form itself, concededly does not give the Government any information that will advance its investigation.

Unidentified Justice: It really doesn't waive the protection as was just pointed out.

I mean, and even if the amicus brief had not been filed, it's obviously the simplest thing in the world for any foreign country who has these bank laws and, indeed, it would be idiotic if they didn't, once this case is decided the way you want it decided, for them to simply say, moreover, compelled consent is not sufficient.

That will be in the bank contract and then you can do these proceedings forever and it will never get you the information you want.

Mr. Rothfeld: Well, let me say several things in response to that, Justice Scalia.

Idiotic or not, the fact does have some effect.

It is true that a court in the Cayman Islands has concluded that as a matter of Cayman laws, these consent forms are in effect if that decision was not appealed.

So, Cayman law, I think, is not settled.

But there are other jurisdictions that have, even assuming that that settles Cayman law for all time, there are other jurisdictions that have bank secrecy provisions either by statute or by common law, including Bermuda and the United Kingdom, Bermuda is involved in this case, and my understanding is although there are no reported cases from those jurisdictions, in fact, banks in those jurisdictions comply with these compel consents because they interpret their common law bank secrecy protections as having an exception for when compel consent forms of this kind are used.

So, I think that they are useful and, of course, there are a great many other jurisdictions that have widely varying kinds of bank secrecy laws.

So, this is not a sham proceeding, and I should say, in addition, to the extent that a consent form won't be useful for us, that's our problem.

That is not a solution to the Petitioner's case here.

It doesn't have any bearing on the Fifth Amendment question of whether it can be compelled to execute the consent, which we can then try to use in a foreign jurisdiction.

So, I think it is extremely useful proceeding.

I should add one additional practical point.

To the extent that Mr. Timbie suggested that we can simply obtain these records easily enough by serving subpoenas on the domestic branches of foreign banks, that's not entirely true because those banks can contests subpoenas and argue that under comity principles, they should not be required to surrender the records, and I'm sure that the banks, and Mr. Timbie if he were in a position to do so, would argue that they should not surrender those records.

So far as banks that don't have branches in the United States are concerned, in which you must attempt to obtain records by going to foreign nations, under comity principles, foreign courts are often reluctant to help other countries enforce their revenue laws.

So, these consent forms may be the only way for us to obtain this information.

Unidentified Justice: Mr. Rothfeld, do you take the position that the Government can introduce into evidence for any purpose whatever the consent form?

Mr. Rothfeld: Let me answer that question in two parts, Justice O'Connor.

We think, first of all, if the Government--

Unidentified Justice: Against the person signing it?

Mr. Rothfeld: --We think that if the Government were to do so, it would not present any Fifth Amendment problem, and I'll explain that later on.

My short answer to your question is we do not think that this would be admissible.

We think, as we explained in our briefs, that--

Unidentified Justice: You take the position that it could not--

Mr. Rothfeld: --Not for Fifth Amendment reasons.

We think that it doesn't have any significant evidentiary value.

Unidentified Justice: --But the Fifth Amendment doesn't prohibit introduction--

Mr. Rothfeld: That's right.

Unidentified Justice: --in your view?

Mr. Rothfeld: That's correct.

Unidentified Justice: Even for authentication?

Mr. Rothfeld: Well, as I suggest, we don't think it would happen, but, no, we do not think the Fifth Amendment would prohibit if someone could possibly imagine a situation in which the bank consent form were introduced, and I think that that comes clear from the nature of the Fifth Amendment guarantee that the Petitioner is trying to call upon here.

We think the Court has already settled the principles that control this case and has settled them against the Petitioner.

The Court has made it very clear, we think, that, and I'll return to your question and address it in detail when I set out the background which I think provides the answer to your question, but the Court has made it quite clear that the Fifth Amendment can be asserted only when the Government tries to compel someone to do something that is incriminating and testimonial, and we think the Court has made equally clear time and again that something is testimonial only as that word suggests, it has the nature of testimony.

That is, when it tells the Government something about the crime.

The only question in this case is whether the consent form, that is at issue here, and requiring the Petitioner to put his signature on a consent form, requires him to, perform a testimonial act within the meaning of this Court's decisions, and we think that it quite clearly does not.

There should not be any controversy about the meaning of the word testimony in the Fifth Amendment setting.

The Court, in its opinion in Fisher, we think, made it quite clear that something is testimonial when it involves, in the Court's words, "truth telling" by the witness, by the suspect, and the Court has made it quite clear, made it quite clear the kinds of things that are not testimony.

Unidentified Justice: But if the consent form were to be offered to establish that these are the records, the bank records, belonging to the Defendant, I find it hard to understand why that wouldn't be testimonial.

Mr. Rothfeld: Well, if a bank produces records in response to a subpoena accompanied by a consent form, the bank may be making an implicit statement that it thinks the records, as Justice Kennedy suggested, that it thinks the records belong to the suspect.

But the suspect himself isn't making any statement and he has no right to keep the bank silent.

The suspect in that case is--

Unidentified Justice: But if the Government introduces the consent form, then perhaps it is the suspect who is making the statement.

Mr. Rothfeld: --Well, I don't think so, Justice O'Connor.

The Court has made quite clear the kinds of things that are not testimonial.

Something is not testimonial simply because it makes the suspect the source of incriminating evidence.

That was the holding in Schmerber, where a suspect was required to provide incriminating blood samples.

The Court has made quite clear that something is not testimonial, a witness' act is not testimonial, but simply because it may lead to the production of incriminating evidence by the third party, that was the holding in Holt and in Wade, where suspects were required to put on clothing worn by the perpetrator of the crime to facilitate witness identification.

Unidentified Justice: Do you have to resort then to saying this is a verbal act to say it isn't testimonial?

Mr. Rothfeld: We don't think we have to resort to it.

We think it is quite clear that it is a verbal act.

We certainly acknowledge... if the consent form set out information, if it said I have accounts in the Bank of Nova Scotia in account number XYZ, and I'm telling you this, and you can now take this information and go get my records, certainly that would be testimonial.

It would be telling the Government something and providing information.

The consent form doesn't do that.

Unidentified Justice: Supposing that instead of getting a court order, you'd lock him up for long enough to persuade... the police had locked him up long enough to persuade him to sign this document, didn't beat him up, but used a course of tactics to get him to sign it, would that violate the Fifth Amendment?

Mr. Rothfeld: Well, I don't think it would violate the Fifth Amendment, Justice Stevens.

Unidentified Justice: Could they do it?

Mr. Rothfeld: Probably not.

Unidentified Justice: Why not?

Mr. Rothfeld: I think that one of the problems--

Unidentified Justice: Why couldn't they do it?

Mr. Rothfeld: --Well, I would thank that there would be potentially due process problems.

I'm not sure precisely.

Unidentified Justice: I didn't hear your answer.

You think there are?

Mr. Rothfeld: I think there may be due process problems in locking someone up until they--

Unidentified Justice: Well, it's done all the time.

Mr. Rothfeld: --If the Government were to take someone without any court process whatsoever and simply throw them in jail for months on end until they did sign it.

Unidentified Justice: No.

Justice Stevens is correct, it seems to me, in what he suggests because this is done all the time.

If it's a valid court order, it can be enforced.

If it's invalid, it can't be.

Mr. Rothfeld: That's--

Unidentified Justice: You're saying it's valid, So, we can enforce it.

Mr. Rothfeld: --That's quite right.

Maybe I misunderstood Justice Stevens' question.

My... let me take a step back.

Petitioner has offered this parade of horribles of the various things the Government might do if it prevails in this case, and I think that those are really red herrings.

They're not horribles.

The only issue in this case is what the Fifth Amendment prevents the Government from doing, and that's the only question presented in the petition.

Unidentified Justice: Well, what would prevent the Government from doing the parade of horribles suggested?

Mr. Rothfeld: Well, there are a variety of things.

One horrible that they suggest that the Government might compel people to consent to searches of their homes.

Well, obviously, the Fourth Amendment would prevent that.

One horrible they suggest is the Government might compel people to direct their attorneys to disclose confidential communications.

Well, the attorney-client privilege, which is recognized by American law, unlike the bank secrecy privilege, would prevent the Government from doing that.

Various other things might be prevented by the due process clause, and even apart from that, the Government, before it compels someone to do something or, more particularly, the District Court, before it compels somebody to do something on pain of contempt which is what's going on here, must have jurisdiction and authority to do it.

Must have a grant of jurisdiction from somewhere.

The lower courts in this case held correctly that the All Writs Act provides jurisdiction for the entry of due order here, but there are limits to the extent to which the statutes like the All Writs Act can provide jurisdiction.

Unidentified Justice: Let me ask you this question, counsel, and then I hesitate to introduce a new hypothetical, but suppose in the routine criminal misdemeanor case involving a traffic offense, where the ownership of the vehicle is clearly established and admitted, and the defendant's custody of the key is admitted, the court says that tomorrow, on the second day of the trial, you drive your car down here so we can inspect it, is that permissible?

Mr. Rothfeld: I would think so.

I mean,--

Unidentified Justice: Have you ever heard of an order such as that?

Mr. Rothfeld: --Well, I think this is harking back to the Justice Stevens safe deposit box hypothetical, and I think that if the possession of the material, the evidence, whatever, in the suspect's hands is a foregone conclusion in the words of Fisher, requiring the suspect to perform the act of it is not incriminating.

I think that a better... to introduce yet another hypothetical, a better--

Unidentified Justice: Just stick with so far as the one I gave you.

You see nothing wrong with that and you want us to write an opinion to say that that is correct procedure?

That there's no constitutional privilege?

Mr. Rothfeld: --It may be that I'm not understanding.

Unidentified Justice: And we're assuming that there's no issue of his ownership, there's no issue of his possession of the key.

Mr. Rothfeld: Our position is compelling someone to produce something when there is leaving aside of the testimonial aspects attendant upon the act of production.

There is no Fifth Amendment problem.

And to the extent that Petitioner had in his possession a bit of evidence and it was conceded that the evidence was in his possession, he was not disputing... he was not saying there will be any testimonial component to his turning over to the Government, there is no Fifth Amendment privilege because the Fifth Amendment, the Court has said time and again, can be asserted only when the suspect is compelled to do something which has a testimonial and the quite clear that the simple fact that the suspect is required to manufacture incriminating evidence does not by itself make it testimonial.

That was the holding in Gilbert and in Wade and in Dionisio.

Suspects were required to produce incriminating--

Unidentified Justice: Would you acknowledge that orders such as the one I have hypothesized are not routine and, in fact, are almost unknown in our jurisprudence in the United States?

Mr. Rothfeld: --Orders requiring the accused to produce--

Unidentified Justice: Orders requiring the accused to produce evidence over which he has control where his control and ownership is not disputed.

Mr. Rothfeld: --Well, I think typically there are disputes as to whether or not the act of production will lead to courts drawing... will have any testimonial component that is incriminating.

I think that people typically don't stipulate that they have possession of stolen property and that may be an explanation as to why this sort of thing typically doesn't happen.

Now, I should take a step back from that hypothetical, if I can, and say that this case doesn't present any problems such as that because there is no testimonial component to what the Petitioner is being asked to do, concede or otherwise.

He is not being asked to turn over anything in his possession.

He is simply being asked to sign a piece of paper which may or may not have a legal effect in the Cayman Islands and Bermuda and will allow banks to turn over documents in their possession permitting the banks to make their implicit statements that they believe these records to belong to the Petitioner.

Unidentified Justice: Well, Mr. Rothfeld, if there is no testimonial component and you're satisfied that the Government would not offer it for any testimonial purpose, why not give limited use immunity to protect against any testimonial component that might be thought to be present?

Mr. Rothfeld: Well, I am not sure that I can give you a compelling answer to that, Justice O'Connor.

I think that our view has been that this is simply not the testimonial sort of thing which is going to appear in evidence.

Therefore, the issue of whether or not immunity has to be provided against use of the consent form in evidence, whether or not that should be granted.

I think that there may be concerns of granting immunity and if that is imagined to be a concession that there is a testimonial component may lead to fruits arguments when records are produced.

We think that there is no necessity for the grant of immunity because there is no testimonial component.

There is no Fifth Amendment--

Unidentified Justice: On that point, let me be sure I understand your position.

Supposing instead of the document he was asked to sign, there was a document that said To Whom It May Concern, if there are any bank accounts controlled by Mr. Doe under your control, please reveal the contents to them, you don't claim that would be permissible or do you?

I mean, here you know in advance which accounts... I guess there's a twelfth account, but assume you really weren't sure, you wanted a kind of broad document like that and then you take it around to all the different banks in the Cayman Islands until you found the right one?

Could you do that?

Mr. Rothfeld: --Well, we have to... in any investigation of this sort, we have to have some idea of where those records are.

We have to serve the banks with subpoenas which lead to the production.

Unidentified Justice: Well, what about my hypothetical?

Mr. Rothfeld: Well, if we just simply had a general idea--

Unidentified Justice: You know he has a bank account in the Cayman Islands and there are fourteen banks there, so you ask him to sign a general consent that would be given authority to go in any one of the fourteen.

Mr. Rothfeld: --Well, I don't think that would be a Fifth Amendment problem in that.

Again, whether or not the court would have jurisdiction to enter that order--

Unidentified Justice: Well, his execution of that document would certainly lead to the discovery of evidence he couldn't otherwise get.

Mr. Rothfeld: --That's true, but I don't think... t court has made quite clear that is not the problem under the Fifth Amendment.

It--

Unidentified Justice: Tell us what it's a problem with because I'm troubled with some of these hypotheticals, too.

I'm troubled with Justice Kennedy's hypothetical.

You wouldn't feel any better about Justice Kennedy's hypothetical if you got... if you granted him immunity before you told him drive the car down to the courthouse, would you?

It would still give you trouble.

So, it seems to me there's something wrong with it, but it may not be the Fifth Amendment.

Do you have any idea what makes us feel bad about it?

Mr. Rothfeld: --Well, I'm not sure why you feel bad about it, Justice Scalia.

I think that there are a variety of protections in the law against either arbitrary use of the court's power to compel people to do things or against government intrusion.

The Fourth Amendment provides protections.

The due process clause provides protection.

Unidentified Justice: Yes, but the objection that the man would make in Justice Kennedy's example, you go get the car yourself, I don't have to make... you cannot compel me to help try your lawsuit.

Mr. Rothfeld: Well,--

Unidentified Justice: That's basically what he's saying, I don't want to drive it down for you.

I don't want to produce my car.

Mr. Rothfeld: --Well, again,--

Unidentified Justice: That's a Fifth Amendment kind of argument.

Mr. Rothfeld: --Well, I don't think so, Justice Stevens.

The other... and let me give you two answers to that.

The one immediate answer is the other limitation on government power and the power of the District Court to compel people to do things is that there must be a grant of authority somewhere.

Clearly, here, to effectuate a properly-issued subpoena, the court under the All Writs Act, we think, effectuated the enforcement of the subpoena by requiring this compulsion, this signing of the compelled consent.

But that is not necessarily going to be the case where the District Court simply says I want you to do something, suspect, that will assist the Government.

Unidentified Justice: Could a court compel his aunt to drive his car down?

Can his aunt have the car?

Mr. Rothfeld: Well--

Unidentified Justice: Issue an order compelling his aunt to drive the car.

His aunt isn't under indictment or anything.

Do you think that that would be--

Mr. Rothfeld: --Well, all--

Unidentified Justice: --You don't have to admit it's bad.

Would you feel funny about it if it was his aunt or aunt, however you say it?

Mr. Rothfeld: --Whether or not I would feel funny about it, Justice Scalia, I don't think provides the answer to the Fifth Amendment question in this case.

Now, in answering Justice Kennedy, all I meant to suggest is there is no Fifth Amendment--

Unidentified Justice: The real testimony, all you want is for the bank to testify that the Petitioner has blank dollars on deposit.

Mr. Rothfeld: --All we want is for the bank to give us something, Justice.

Unidentified Justice: Is that testimony?

Mr. Rothfeld: If--

Unidentified Justice: That is testimony.

Mr. Rothfeld: --That is testimony, but that is the bank's testimony.

Unidentified Justice: Sir?

Mr. Rothfeld: It is the bank's testimony, if anyone's.

Unidentified Justice: But it is testimony.

That is what you want.

Mr. Rothfeld: Well, whether or not the bank records--

Unidentified Justice: Tell me the difference in effectiveness before a jury as to whether the bank says it or he says it.

Mr. Rothfeld: --Well, there is a profound difference in the Fifth Amendment.

The Fifth Amendment only--

Unidentified Justice: Would the jury have any trouble if it was the bank's statement and not his?

Mr. Rothfeld: --Well,--

Unidentified Justice: Would you have any trouble as the prosecutor?

Mr. Rothfeld: --The Court has made clear, Justice Marshall, that the crucial point is whether or not the witness is compelled to do something that is testimonial in nature.

If the bank produces these records and the bank makes its statement that these are the records that belong to the Petitioner, that is the bank statement and we are free to use it.

The fact that the Petitioner has done something that allows us to obtain the evidence, and I think this answers questions that were posed by Justice Scalia and Justice Kennedy and Justice Stevens, that does not raise a Fifth Amendment problem.

It is quite clear in a case where the suspect provides a handwriting exemplar or voice exemplar.

The suspect is required to do something that would lead other parties to produce very incriminating evidence.

The suspect provides a handwriting exemplar and the Government obtains handwriting experts who develop complex analyses and produce evidence and testify themselves.

The suspect has been required to do something that facilitates the Government's case, that allows the Government to produce incriminating evidence from third parties, but that not raise the Fifth Amendment problem.

The Court made that clear eighty years ago in Holt and has repeatedly reaffirmed that principle.

It is only when the suspect is required to do something himself that is testimonial that Justice Scalia pointed out in some sense makes him a witness against himself.

A witness does not take the stand and as Petitioner has been ordered to do in this case, ask a third party to produce evidence.

A witness takes the stand and testifies.

He tells a story.

He explains what happened, and the suspect here is not being required to do anything like that.

Now, to return very briefly to the hypothetical, I'm not sure which number hypothetical it is, but one of the hypotheticals offered by Justice Stevens or Justice Scalia, if the aunt is ordered to drive a car in, that may offend us but that is not a Fifth Amendment problem.

Whether or not the Court's power under the All Writs Act, even assuming it had the power to compel the suspect to drive the car, extends to the aunt may be a difficult question, but it's not presented here.

The only issue raised by the Petitioner is the Fifth Amendment.

Unidentified Justice: On the aunt question, I'm not sure it would offend.

If she had custody of the vehicle and you subpoenaed the vehicle and ordered her to produce it, I don't know why that would offend me.

Maybe if she has to hire somebody else to do the driving, but I think she'd have to bring it into court.

Mr. Rothfeld: Well, I think that involves a meeting of the All Writs Act or other jurisdictional provisions that I don't want to get into.

It may turn on whether or not the Government had other means of effectuating the subpoena.

But that is not a question here.

The question here is the Fifth Amendment problem, and Petitioner has not offered any reason to believe that what he is required to do here implicates the language, the policies of the Fifth Amendment or any decision of this Court.

Now, the Court, as I said before, has made very clear that it's only when there is a testimonial component to the compelled action, compelled statement, that there's a Fifth Amendment problem.

Unidentified Justice: We have also said that the Fifth Amendment stands for the fact that we have an accusatorial system and not an inquisitorial system, but you think that's all dictum and there must be a testimonial component to the Act.

Mr. Rothfeld: Well, I don't think... I wouldn't characterize it as dictum.

I think that that is the rational for the line the Court has drawn in requiring testimonial component.

The Court has taken the view that when a suspect is required to speak his guilt and disclose the contents of his mind to the Government, that becomes an inquisitorial type of proceeding.

Unidentified Justice: Yes, but you know, it's a very interesting question.

I'm not sure we've focused on it very often.

Say the police beat some prisoner up and force him to give a confession, then they never produce it into evidence, they just put it in the file somewhere, have they violated the Fifth Amendment or haven't they?

No testimonial use.

They made him talk against himself.

Mr. Rothfeld: Well, offhand, I'm not aware of any authority directly addressing that question, Justice Stevens.

Unfortunately, that is certainly not anything close to the issue in this case.

I mean, there is no doubt in the case, in your hypothetical, the witness has been... the suspect has been compelled to say something testimonial, to disclose what he knows about the crime, to make factual assertions that are true or false.

That is not true here.

Unidentified Justice: Mr. Rothfeld, are you asserting on behalf of the Government the power to get this individual to do because he's a defendant anything that you couldn't get the private individual to do who is not a defendant?

That is, to put it in the context of this case, could you have made... could you have gotten a similar order directed against someone who is not a defendant in the case?

Suppose the bank accounts were held in the name of a third party, totally innocent third party, who is not implicated in the conspiracy at all, could you have gotten this order against that third party?

Mr. Rothfeld: Well, once again, I have to fall back on the proposition that that is not a question that's presented in this case because we think that in that situation, there would not be a Fifth Amendment problem.

Unidentified Justice: I want some limitation upon what you can do to this defendant.

Mr. Rothfeld: Excuse me, Justice Marshall.

Unidentified Justice: Isn't one of these accounts in this case in another party's name?

Mr. Rothfeld: They may be in the names of other parties, but we believe that they are controlled by the Petitioner and that's an important point.

I think to answer your question, Justice--

Unidentified Justice: You don't understand the point of my question.

I'm looking for some limitation on what we can get, what we can allow you to do to a defendant.

If all you're coming in and saying, we can ask this defendant to produce anything we can ask anyone else to produce, so long as it is not testimonial, that's one position.

If what you're arguing on the other hand is some broader proposition, we can ask defendants to do things that we couldn't ask non-defendants to do, that's something quite different.

Now, which of the two is your position here?

Mr. Rothfeld: --It is the first.

We are not saying that his status as a target of... he's not a defendant, he's a target of the Grand Jury, puts him in any different position so far as the Fifth Amendment is concerned.

We think the limitation on... the Fifth Amendment limitation on what we can do is the same in either case, whether or not someone is compelled to incriminate themselves.

Now, there are distinctions in the All Writs Act, for example, in grants of authority to the courts, as to the relationship between the person who is being compelled to produce something at the proceeding.

The court in the New York Telephone case talks about whether or not that makes any difference.

So, it may be, Justice Scalia, that there are things that the District Courts have authority to do.

Unidentified Justice: You have gotten this order issued to someone who is not a defendant, yes or no, do you think?

Mr. Rothfeld: I'm not sure that I can answer that question, Justice Scalia, because that involves the meaning, I think, of the All Writs Act, which grants the Court jurisdiction to enter orders of this sort, which simply has not been addressed by the parties to this point.

I would think that it would be a closer question under that statute than the case in which--

Unidentified Justice: Can't you get an order for a landlady to open the door that has property belonging to the defendant, and if this much different from that, getting someone who controls the bank account to issue, if you think that there are illegal funds in the account?

Mr. Rothfeld: --In Fifth Amendment terms, I don't think that there is any distinction between... I understand the problem you are having, Justice Scalia, is that we concede there are all sorts of limitations on what the Government can do that are found elsewhere in the Constitution, elsewhere in the statutes and by negative implications, the lack of authority granted to the District Courts to compel people to do things, and it may be that in all of the hypotheticals that are presented by the Court, the Government won't be able to do it because it has no authority to do it or because some other constitutional provision keeps us from doing it.

Unidentified Justice: I am not inclined to say that you can do more to this defendant than you can do to an innocent third party by reason of the fact that he's a defendant.

Maybe you can do less, but I'm certainly not going to say that you can make him do it if you can't make his aunt do it.

Yes, but your problem is... I didn't catch this before, but the jurisdictional foundation of this order is the All Writs Act, isn't it?

Mr. Rothfeld: That was--

Unidentified Justice: And that's really a little different than it might be if it were a state case.

The state court might have general jurisdiction to do this sort of thing, whether it's a defendant or not.

But a federal court has to find a jurisdictional basis and the jurisdictional foundation here is the All Writs Act.

Mr. Rothfeld: --That was the foundation.

Unidentified Justice: And that's not before us.

Mr. Rothfeld: That is not presented in this case.

Unidentified Justice: It may mean that the federal court has less authority in this area than the state court of general jurisdiction.

Mr. Rothfeld: That may well be the case, Justice Stevens.

So far... once again, to return to the question that concerns Justice Scalia, so far as the Fifth Amendment is concerned, it creates a general bar, a limited but general bar on what the Government can do to people and compel them to do, whether or not they are defendants or targets or whatever.

So far as grants of authority to the District Court can exercise jurisdiction over people, there may or may not be distinctions granted in the jurisdictional statute, but that is not the question here.

The Petitioner has chosen to present only one question and that is the Fifth Amendment question, and as I said before, he offers no reason to believe that the Fifth Amendment prohibits the Government from doing what it did in this case.

All he says is this is a communication and, therefore, it must be testimonial, but that is clearly not true.

The Court has used the word "communication" in its opinions as a synonym for factual assertion for communication of evidence to the Government.

The Court's actual language in Schmerber, which Petitioner relies upon, is that the Fifth Amendment only prohibits accused when compelled to testify against himself or provide evidence of a testimonial or communicative nature.

Petitioner has not provided any evidence of any sort to the Government.

He has simply authorized other people to provide evidence.

He is in no different situation than a suspect who is linked to a handwriting... to a ransom note in the Government's possession by a handwriting exemplar that he was forced to produce and that was then analyzed by a Government expert.

He allowed for the production of evidence by other people, but the Court has said that does not create an inquisitorial system.

Inquisitorial is when the suspect is required to disclose the contents of his own mind.

Petitioner has suggested that this form does somehow disclose his own mind because it reveals that he actually consents to the release of his documents.

That is simply not the case.

The form says on its face that it was entered pursuant to a court order.

It doesn't say anything about whether Petitioner actually wants his banks to release his bank records.

Once again, in that situation, in that sense, the Petitioner is in no different situation than a suspect or defendant who is required to write out a ransom note to produce a handwriting exemplar for the Government.

The suspect simply has not done anything that is testimonial, and the Court has said again and again that having a testimonial component is the essence of the sort of thing that is prohibited by the Fifth Amendment.

The Government obtains bank records, uses them against the Petitioner, it will not relieve its burden of establishing its own case because he has spoken his guilt in some sense because he hasn't said anything about his guilt or about what went on in this case.

It would not be a situation in the language by the Court thirty years ago in its Ullmann decision in which the accused was convicted because of disclosures from his own mouth.

He hasn't made any disclosures.

All he has done is permit the Government to obtain evidence from a third party and to return to Justice Stevens'... one of the many hypotheticals Justice Stevens' safe deposit hypothetical, it's simply a situation similar to the one that would be presented if a suspect required not to lock his safe deposit box, so that people could get into it.

This is simply permitting the Government to obtain evidence that can be used against him at trial.

The evidence that will be provided by third parties.

Now, there's nothing in the language, certainly in the purposes of the Fifth Amendment, or in any of this Court's decision as Petitioner concedes that requires the Court to rule for him in this case.

The Court of Appeals recognized that and we think this Court should affirm its decision.

If there are no further questions, thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Rothfeld.

Mr. Timbie, you have two minutes remaining.

ORAL ARGUMENT OF RICHARD E. TIMBIE, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Timbie: Thank you, Mr. Chief Justice.

Mr. Rothfeld took issue with our waiver of the attorney-client privilege hypothetical, saying that, of course, the attorney-client privilege is self-policing because any lawyer in his right mind isn't going to accept the compelled consent directive as a valid waiver.

But the Government offers a broader rational here, even in the waiver area.

What it is saying there is that it can force an unwilling, unimmunized witness to sign any waiver that would merely be... would allow it to overcome a non-constitutional impediment to access the third party records.

There are other statutory privileges that this procedure could be used for that would not give rise to self-policing mechanisms through--

Unidentified Justice: Immunity wouldn't be any... you wouldn't say if the Government were to compel him to consent to a waiver of his attorney-client privilege, that would be all right if he were immunized?

I mean, that is bad, but for a reason quite apart from the Fifth Amendment.

Mr. Timbie: --I wholeheartedly agree, but what the Government is saying in this case is that you shouldn't look at this through a Fifth Amendment lens because it will be policed elsewhere.

What we're saying is the Government shouldn't be able to give it a try by forcing you to sign that document.

Think of, for example, a state evidentiary privilege.

The accountant-client privilege.

Spousal privilege, for example.

It may well be the Government could get a consent directive, get a spouse or accountant to go into a Grand Jury and talk to the police, never introduce the testimony in evidence, so there would never be a suppression hearing, but use the fruits.

We contend that the only way to police that is with the Fifth Amendment, not with some Fourth Amendment notion.

Getting back to Justice O'Connor's question, she asked the Government whether they felt they could use this document in evidence, and the Government said yes.

No Fifth Amendment problem, and we don't... but we wouldn't try.

We state that that is constructive use immunity which is not allowed in this Court.

Chief Justice William H. Rehnquist: Thank you, Mr. Timbie.

The case is submitted.

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Featured:

Braswell v. United States - Oral Argument

Wed, 13 Apr 2011 20:12:58 +0000

Case:

Braswell v. United States

Media File:

87-3_19880301-argument.mp3

Related Transcript:

87-3_19880301-argument.xml

Transcript:

ORAL ARGUMENT BY ROY T. ENGLERT, JR., ESQ. ON BEHALF OF RESPONDENT

Chief Justice William H. Rehnquist: You may proceed whenever you are ready, Mr. Fawer.

Mr. Fawer: Mr. Chief Justice, and may it please the Court:

The issue in this case, stated simply, is whether the principal of a one-man corporation, simply by virtue of the fact that his status as its records custodian, can be compelled to make self-incriminatory, tacitly testimonial disclosures; or is he, like the custodian in U.S. v. Doe, to be afforded the limited act of production privilege secured to all natural persons under the Fifth Amendment?

The facts of the case are quite simple: the Internal Revenue Service and the United States Attorney in the Southern District of Mississippi began a grand jury investigation, criminal tax investigation, of Randy Braswell.

He was the target of that investigation, and there is no issue as to that.

In August 1986, during the course of that investigation, the subpoena duces tecum was served upon Mr. Braswell as President of his corporation, of the one-man corporation that he has called Worldwide Purchasing.

It was a broad-based subpoena virtually identical to the one that is before Your Honors in U.S. v. Doe.

It is found at pages 6 and 7 ver batem in our Joint Appendix.

In response, we filed a Motion to Quash, asserting our act of production privilege.

The Government opposed, stating that no corporate custodian has any act of production privilege; with that issue joined, there was a brief evidentiary hearing before the court in that district, and the court found that Mr. Braswell did, in fact, conduct his business as close to a sole-proprietorship, as one could see.

Nevertheless the court held, as the Government had contended, that the act of production was not available to any corporate custodian under the Fifth Amendment; and that they relied on the case, the Lincoln case in the Fifth Circuit, which so-held.

We, at that time refused to produce before the grand jury... we had a contempt citation against us; there was a stay of the commitment under the contempt citation; and the Fifth Circuit affirmed on the same grounds as had the ruling of the D.C. Circuit... a D.C. court, excuse me.

They did, of course, note in that context that there was a split in the circuits as to whether or not the Bellis decision of this Court was limited to the contents of records of a corporation; as opposed to the testimonial... the tacitly testimonial aspects of the act of production.

Our position is quite simple.

We feel that we are entitled... that Mr. Braswell is entitled to the same production with respect to his records, the corporate records, as is the records custodian in Doe.

The only distinction between the two is Braswell, Inc. chose to do business under the corporate framework.

Unidentified Justice: Well, that distinction has been recognized since the time of Hale v. Henkel, hasn't it, in 1906.

The Court said it is a distinction of constitutional significance.

Mr. Fawer: It is true, Your Honor, I think it is fair to say, as this Court has said on... at least, I believe this Court has said, that they were addressing the question of whether or not the contents of corporate records, as opposed to the testimonial aspects of the Fifth Amendment, were in fact to be privileged?

We do not dispute, nor did we dispute below, that the Government has an absolute right to the contents of the records of Mr. Braswell's corporation.

We do not in any way deny that, nor do we think it would be proper.

That proposition has been established at least as early as Hale right through the Bellis decision.

And I believe Fisher and Doe do nothing to undercut it.

Our position is simply that, as to anything testimonial, of whatever nature it may be; whatever form it may take, this Court has always protected that type of disclosure.

And Mr. Braswell, although he is a representative of corporation, is at the same time a person of flesh-and-blood, and he has the right with respect to his testimony to claim protection of the Fifth Amendment.

Unidentified Justice: And your claim here is that, by the act of producing the records, the fact that he was the one who produced them and not someone else would have had a tendency to incriminate him?

Mr. Fawer: That is correct.

Unidentified Justice: I would suppose your position would apply to any corporation... or to any person who is the custodian of the corporate records of anybody?

Mr. Fawer: That is correct.

Unidentified Justice: Of any corporation?

Mr. Fawer: That is exactly our position.

To put it another way--

Unidentified Justice: So it's the one-man corporation has nothing to do with this case?

Mr. Fawer: --That is true, Your Honor.

We happened to be a one-man corporation; and in fact, below we candidly made the argument that a one-man corporation should not under the doctrine of Bellis and--

Unidentified Justice: Well, let me... your client was forced to produce these records?

Mr. Fawer: --Yes.

Unidentified Justice: And if he hadn't... and if he hadn't produced them, but a third person had, the fact that they were corporate records and had been authenticated, could be used against him?

Mr. Fawer: Yes, in fact--

Unidentified Justice: If he hadn't produced them; if somebody else had?

Mr. Fawer: --Yes, if he was not involved in any way in making those records available.

And they had somebody... if the records, for example were... if they had issued that--

Unidentified Justice: Well, I know, but all the... authentication does is to authenticate the fact that they are corporate records?

Mr. Fawer: --Other people could authenticate... well, theoretically, could authenticate corporate records.

Unidentified Justice: Well, he isn't any worse off if he has to authenticate them.

All that's been authenticated is that these are corporate records.

Mr. Fawer: It seems to me, Your Honor--

Unidentified Justice: These are corporate records?

Mr. Fawer: --Yes.

But we are not... I don't think the Court should look to whether or not the test under the Fifth Amendment is not whether or not the Government to have an independent means of being able to do it here to prove this fact; in this instance, if you make him produce, then he will be using his tacit admission against him.

And that this Court has always condemned.

Unidentified Justice: Well, you're going to be using the fact that these are corporate records against him?

Mr. Fawer: We're going to be using the fact that he produced a particular record.

We don't know which record this would apply to, because in the court below, we did not have a hearing on the particular applicability of the act of production doctrine in this case.

Because once the Government... excuse me, Judge Barber ruled that it was not available to a corporate custodian, that was the end of the matter.

We have asserted, and nobody has denied, that we are... we would be, incriminated by the production in this case.

Unidentified Justice: You're asking us to overrule a case that's some 80 years old, and I'm interested in just what sort of incriminating... to get into how a corporate custodian of a one-man corporation would incriminate himself by producing, or simply authenticating corporate records?

Mr. Fawer: Two points on that, Your Honor.

I must... just might first point out... I assume the case you are referring to is Hale v. Henkel, when you said a case that is--

Unidentified Justice: Hale v. Henkel; Wilson in 1911; White in 1943--

Mr. Fawer: --But it is important to note when you look at Hale that technically what was done in Hale--

Unidentified Justice: --I'm not so much interested in the hypothesis; that is, the introduction of my question itself; and that is, how in this case, does a corporate custodian incriminate himself by simply authenticating corporate records?

Mr. Fawer: --When Randy... if Randy Braswell... the direct response to your question is, if Randy Braswell didn't bring in records, when he turns those records over he is representing these are the records that you've asked for.

That is in itself a representation which has testimonial implications: he has... this man has no financial records other than the corporate records.

Unidentified Justice: So he might incriminate himself because he's lying about whether those are all the corporate records--

Mr. Fawer: That's one possibility.

Unidentified Justice: --That would be a defense to anyone responding to a subpoena: I may incriminate myself because I may not be producing everything the subpoena calls for.

Mr. Fawer: That's true.

Unidentified Justice: That would be an astounding doctrine.

Mr. Fawer: Well, I don't know.

It seems to me, Your Honor, that everybody... the only individual that I know of right now where there is an issue as to whether or not there is an act... there is an exception, with respect to the act of production privilege, is the corporate custodian.

The inferences that can flow, in a Tax Court case particularly, from the fact that you possess certain records; that you don't produce all the records; or that you have possession... or that certain records do or do not exist; are the kind of facts that are used every day in a tax court prosecution.

Unidentified Justice: How would the Tax Court get these records?

Mr. Fawer: How would the... excuse me.

Your Honor?

Unidentified Justice: How could they get it other than the way in this case?

Mr. Fawer: Very simply.

The way you get records any time there is a privilege raised: you immunize, statutorily immunize the man who has the privilege.

Unidentified Justice: Why should he be immunized?

Mr. Fawer: Why you're immunized, remember--

Unidentified Justice: Why?

Mr. Fawer: Because the Fifth Amendment protects him from not incriminating himself testimonially.

Unidentified Justice: Would that apply to any secretary of any corporation?

Mr. Fawer: If that is to whom the subpoena--

Unidentified Justice: Well, how would you get them otherwise if you didn't want to immunize?

Mr. Fawer: --You still get the records.

Unidentified Justice: How?

Mr. Fawer: You can get somebody else.

Unidentified Justice: Who?

Mr. Fawer: Somebody else in the corporation who would not--

Unidentified Justice: Who?

Who?

Mr. Fawer: In this corporation, I don't know that there is anybody else.

Unidentified Justice: That's what I thought.

Well, all right, that's what I thought.

Mr. Fawer: But the same is true in Doe.

The exact same question would be raised by Your Honor in Doe.

Unidentified Justice: Well, what would be about General Motors?

Mr. Fawer: General Motors--

Unidentified Justice: The same rule would apply?

Mr. Fawer: If you use the direct--

Unidentified Justice: Would you want the same rule apply?

Mr. Fawer: --Yes.

Unidentified Justice: To General Motors?

Mr. Fawer: If you think--

Unidentified Justice: So you couldn't get the records intact?

How would you get any corporate records?

Mr. Fawer: --So we understand... you have a right to those records; the Government has a right to the contents of those records.

Unidentified Justice: But you can't get them.

Mr. Fawer: You can get them in two ways: you can get them either by immunizing... that narrow immunization as to the testimonial implications of the production on the person you served your subpoena on; if that's who you insist produces them, or you find somebody else who does not have such a claim.

And you analyze it.

In the Doe case, it wasn't a corporation.

One man happened to have a larger business entity than does Randy Braswell.

Unidentified Justice: Why, that isn't even interesting.

Mr. Fawer: Excuse me?

Unidentified Justice: You don't even interest me at all.

Mr. Fawer: The point, I think, Your Honor, that we're talking about, in Fifth Amendment protection, it is not limited to solely someone who has a sole proprietorship.

I would think that someone like Randy Braswell would be of interest to Your Honor in the sense that he has a Fifth Amendment privilege with respect to any kind of testimony, no matter what type it may be.

And we all acknowledge... I think this Court has acknowledged clearly in Doe; in Fisher; in Curcio; and you would go back into any... way before that... that the cases make clear that testimonial, tacit testimonial admission is protected under the Fifth Amendment.

And the only real question here is why should we not afford that same privilege to someone who happens to be doing business or holding corporate records.

That's all.

That's the very narrow focus here.

And what we're saying is, if you don't afford Randy Braswell the privilege, then you are going to deny him the right to say,

"I shouldn't have to incriminate myself by producing these records. "

And we are not asking in any way, in any doctrine or revision of what the Court has done.

Unidentified Justice: You are, in a sense.

Because Doe would cover your case if this weren't a corporation.

At least I take it that is what you say.

Mr. Fawer: That is correct.

Unidentified Justice: The Court has in the privilege against self-incrimination has always drawn a line between an individual and a corporation.

Mr. Fawer: It has always drawn that line, but I believe, I think it was Justice Brennan has indicated in a number of cases, the line was always drawn with respect to access to contents, not testimony.

The line was drawn because of what Boyd had to say, and the unhappiness of the Court over the past century of Boyd's protection... potential protection, of contents.

And then everything... the collective entity doctrine was a response to the contents, the privacy rationale underlying Boyd.

From Hale to Bellis, that's what you have: consistent attacks; or a consistent doctrine that says,

"If it's corporate, we are not going to protect the contents. "

"The Government has a right to them. "

What Fisher and Doe, but basically Fisher, does, it says,

"The nature of the entity makes no difference. "

We are not going to protect the contents of business records at any rate.

Unidentified Justice: Well, Mr. Fawer, Fisher specifically made reference to the collective entity rule, and I thought in a way which indicated an attempt to preserve it.

The Government says to us that it may not make evidentiary use of the fact that a particular individual within the corporation performed the physical act of production.

If that's true, I don't see how you should be concerned about any testimonial aspect; the Government says it has a right to use the corporation's act of production to incriminate the individual; but not to use the fact that a particular individual responded to the subpoena.

So why do you have a problem?

Mr. Fawer: I have a problem because I think that what the Government is asking you to do is to engage in a pure fiction.

We have no problem that in a--

Unidentified Justice: Well, the use of the corporations is a legal fiction--

Mr. Fawer: --Truly.

Unidentified Justice: --and this is a result of that.

Mr. Fawer: But I do not know why this Court should want to be party to using a patent fiction to deny a natural person his rights under the Fifth Amendment.

Now why do I say it's a fiction?

Unidentified Justice: The problem really is that the contents of these records may be very incriminating.

Mr. Fawer: We suggest to Your Honor, they may be.

But we have no right to hide behind those contents.

You have a right to... I say, the Government has a right to those contents.

Unidentified Justice: I take it that part of the immunity you would want is that it is unlawful for the Government to use the act of production to show that he knew the documents existed?

Mr. Fawer: That is part of it, Your Honor, yes.

Unidentified Justice: So in the case of any corporation, the officer who produces the documents, under your rule, cannot be charged with knowledge of their existence in any prosecution?

Mr. Fawer: He cannot be charged with knowledge of the existence of the document, but what the document contains can be used against him.

Unidentified Justice: Well, not until they're authenticated.

Mr. Fawer: Authenticated by him or someone else?

Unidentified Justice: But knowledge of the documents is highly relevant in most criminal prosecutions, we know that.

Mr. Fawer: Yes, it is.

Unidentified Justice: And that would apply to General Motors, because some officers may have confidential knowledge of a very secret transaction, and the only people that know about the transaction are the ones that are producing the documents, and your rule would require immunity from the use of the production of the documents to show they knew they existed.

Mr. Fawer: My rule--

Unidentified Justice: That's your rule, isn't it?

Mr. Fawer: --If he is the only person... if you need to have him produce it.

Unidentified Justice: Now, wait.

If he's the only one or not.

All your rule would exclude is showing that he knew of it from the fact of his production of it.

Mr. Fawer: Exactly.

Unidentified Justice: You would still be able to show that he knew of it in other fashions.

Mr. Fawer: Exactly.

Wouldn't you?

You'd be able to show... what about your being able to show that his signature was on it?

That you could show by the testimony of other people that they were kept in his home; all sorts of things, right?

Every other inference; every other piece of direct proof would be available.

All you would be limiting it to, the only thing you couldn't do is from the mere fact that this person had brought them into court, that brought them into the grand jury, that fact couldn't be used against him.

Unidentified Justice: But until they're properly authenticated by somebody the records are not admissible against him at all.

Mr. Fawer: That is true, but they're are very--

Unidentified Justice: Contents or otherwise, they have to be authenticated.

Mr. Fawer: --Someone has to authenticate them.

But to take the typical case, I mean, surely in General Motors, we really shouldn't be worried that in General Motors there's not going to be anyone else but one person who could authenticate the documents?

Unidentified Justice: Yes, but--

Mr. Fawer: But in Tax Court--

Unidentified Justice: --maybe only the representatives of corporations know which ones they are and can pick out the one who needs the immunity best.

And how does the Government know before they see the documents?

Mr. Fawer: --I do not think--

Unidentified Justice: And in this case, you talk about alternates, why couldn't your client have designated somebody else to produce the documents on behalf of the corporation and gotten the same protection?

Mr. Fawer: --We would have no problem should all--

Unidentified Justice: Shouldn't the Government have accepted that?

Mr. Fawer: --The Government, I think, would have accepted that; but they might not have accepted at this point.

They have insisted that he produce.

Do I know whether they would have accepted the third party bringing them in?

I don't know.

But I would suggest, Your Honor, that if a third party were to... if you were to follow that mechanism, you'd still have to afford him the protection.

Unidentified Justice: Well, but say he hired his lawyer and his lawyer produced the documents, says,

"I represent the corporation; I made the search commanded by the subpoena; and here are the documents. "

Why wouldn't that protect your client?

Mr. Fawer: Justice Stevens, if I were Mr. Braswell's private attorney at that point, and some other lawyer, I would tell Mr. Braswell he should still assert his privilege and not rely on the possibility that that other lawyer would assert an attorney-client privilege of some sort to protect Mr. Braswell.

Unidentified Justice: You mean you assume the attorney would not act in his proper--

Mr. Fawer: I don't assume that, but I don't want to assume the contrary either.

I have a right not to incriminate myself, and if the Government can bring that attorney in, and if that attorney decides for one reason or another, that he is free to make that disclosure--

Unidentified Justice: --Well--

Mr. Fawer: --then I have lost.

Unidentified Justice: --I don't buy that.

I think I presume lawyers act as professionals.

They're not going to run around violating their client's confidences.

Mr. Fawer: But I do not... I normally... and do at this point make the same assumption that Your Honor does.

But we're dealing here with a constitutional privilege of some magnitude in this case.

There is no question from our perspective that the records that the tacit testimonial implications of production could be meaningful to putting Randy Braswell in jail.

That's what's at stake here.

And because of that, I'm not going to make any assumptions such as,

"if there is an attorney, he may not be called to the witness stand to testify. "

Or if a third party surrogate should be appointed by the court, all we ask is that very narrow ability to be able to assert the Fifth Amendment, preferably by means of a grant of immunity, because that's... then we don't have to rest on anyone's assurances that they won't use it.

Unidentified Justice: Does your grant of immunity say that the Government will not be able to use this Defendant's production of the fact of the production for any purpose, is that it?

Mr. Fawer: The fact of the act of production, and that any fact or any inference growing from the act of production cannot be used against him in the court.

Unidentified Justice: So to the extent that the act of production amounts to authentication, it may not be used against him.

They're going to have to authenticate by some other way.

Mr. Fawer: Absolutely.

Absolutely, Your Honor.

Unidentified Justice: Well, why does the Government's concession that it cannot use it, in sum, why does that fall short in your view?

Mr. Fawer: Your Honor, if you look at it, if you read pages... I ask the Court to carefully read pages 34 and 35 of the Government's brief.

I don't know.

It's a cross between Alice in Wonderland and Kafka.

They are saying... and they admit they can't use... they cannot... when Randy brings them in, if he should bring them in... they could not go into court in the prosecution and prove that Randy Braswell produced them.

But they say,

"Aha, he acted in a representative capacity; and therefore, we can introduce that a nameless individual brought them in... wait, a nameless individual... because he acted in a representative capacity, we can still use it against him individually. "

I don't understand the distinction.

The potential incriminating aspect of it is the same.

Unidentified Justice: In a corporation, would you be making the same argument if the subpoena had run against the corporation?

Mr. Fawer: I would make the--

Unidentified Justice: And the corporation sent up a representative and the representative said,

"This is going to violate my Fifth Amendment? "

Mr. Fawer: --What, the representative said that?

If the representative had a right for whatever reason to claim the Fifth Amendment--

Unidentified Justice: Well, he's a custodian.

Mr. Fawer: --I have no problem with that custodian making that assertion and claiming the Fifth Amendment.

Unidentified Justice: Well, you subpoenaed the corporation and the corporation says,

"Well, anybody that we send up has a Fifth Amendment claim. "

Mr. Fawer: I don't think the corporation can simply say that.

The corporation... one thing is clear... the corporation does not have the Fifth Amendment privilege.

Unidentified Justice: Oh?

But anybody they send up will?

Mr. Fawer: Well, that's for them to say.

I don't think a court should simply accept a corporation.

Unidentified Justice: Well, if they send up somebody... what if, in response to this subpoena a man arrives... a hooded man arrives with a mask on?

And no name or anything else?

And he says,

"Here are the corporate records. "

"The corporation has sent me up to deliver these records in response to the subpoena. "

Mr. Fawer: And the Government takes them?

Unidentified Justice: Sure.

Mr. Fawer: I have no problem, because I cannot see--

Unidentified Justice: Are they authenticated?

Mr. Fawer: --No.

At that point?

By whom?

I mean a hooded... some hooded... if they can subpoena, they know who that name is.

Unidentified Justice: The corporation has sent up the records.

And everybody agrees that the corporation did it.

They set up their records.

Mr. Fawer: Two things: one, in a prosecution of the corporation, it would make no difference whether... it would not affect Randy Braswell.

The corporation has no Fifth Amendment privilege.

Secondly, I don't see how that hypothetical, how under those facts, anything could be used testimonially against Mr. Braswell.

I mean, I'd be happy if some faceless person brought them into court, how is the Government... what courtroom is the Government going to be able to ask a judge or a jury to infer anything testimonial against Mr. Braswell?

Unidentified Justice: How can they use it?

How can they use it if they subpoena Mr. Braswell, and he brings up... he just comes and delivers the records?

He's just responding to a subpoena; he isn't testifying.

Mr. Fawer: But this Court has always said that that is testimony.

Unidentified Justice: All right, but that's all he's done.

Now how's the Government going to use those records?

They're going to come into court and say, "These are the corporate records"?

Mr. Fawer: No, they're going to have the records.

He, they cannot authenticate it through him.

There's an accountant... the Government happens in this case to know that there was an account.

Unidentified Justice: I thought you said that the act of production may authenticate the records?

Mr. Fawer: But I... I assumed, I thought we were operating on the assumption that we would not... we were giving him... we would assert the privilege and that you would have an immunity as to that.

If not, then it could not be used against him.

I thought you were saying--

Unidentified Justice: Well, the one-man corporation, how are you going to get anybody to produce records if this doctrine is applied?

Mr. Fawer: --Your Honor, my position is, this case on its facts, in terms of its practical difficulties, is no different than Doe, none whatsoever.

Unidentified Justice: Well then, maybe Doe was wrong?

Mr. Fawer: I think Doe was right in that sense.

I mean, I think the act of production--

Unidentified Justice: If you can't explain... I'm only one of nine, but if you can't explain how a corporation... how a one-man corporation's documents can be subpoenaed and authenticated under this doctrine, you know, and I daresay, you'll lose more than one person.

Mr. Fawer: --Well, let me explain it to you and still keep some rebuttal time at the same time, Your Honor.

There is an accountant in this case.

It's not on the record.

I'm representing, as in almost every corporation, even a one-man corporation... has an accountant.

Randy Braswell brings him in and he's immunized so that we can't use the act of production against him; the contents can be used against him; they get the accountant to say,

"Are these the records you saw during the years in question? "

"Yes, these are the records were shown to me in the corporation's office. "

And there's your authentication.

End of story.

Unidentified Justice: Maybe the accountant doesn't have authority to produce them if he's--

Mr. Fawer: He only has to authenticate.

Unidentified Justice: --No, no, no.

See, what I'm saying, they're subpoenaing the records.

What if the accountant doesn't have custody of the records?

Mr. Fawer: No, I'm saying you subpoena it from Randy Braswell.

Unidentified Justice: With immunity?

Mr. Fawer: With immunity.

Unidentified Justice: Oh, oh, oh.

Mr. Fawer: With immunity... you gave him the immunity.

Unidentified Justice: You don't know that he didn't even look at the records.

Mr. Fawer: Look, he has the immunity, and he's still prosecuted a week later; a month later.

Within the year, he's indicted.

He's now in court in Southern Mississippi, and they called, you know, CPAX... and they say

"CPAX, you handled... your name is on the tax returns for the years 1982 through 1985; did you look at the general ledger? "

"Yes".

"I show you Exhibit A. "

"Is this the general ledger? "

"Yes it is".

Your Honor, I submit that it's authenticated.

End of story.

And you have protected Randy Braswell, at least in terms of the authentication issue that's been raised.

I would like at this point to preserve at least a few minutes for rebuttal.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Fawer.

We will now hear from you, Mr Elglert.

Roy T Englert Jr: Thank you, Mr. Chief Justice, and may it please the Court:

This case does involve corporate documents, not the documents of an individual or a sole proprietorship.

The law, with respect to corporate documents, has been settled for more than 75 years.

Not only Hale v. Henkel in 1906, but more important for our purposes, the Wilson and Dreier cases, decided in 1911, made it clear that an individual may not interpose his personal Fifth Amendment privilege as a basis for resisting a subpoena for corporate documents.

That holding has been reaffirmed by this Court in case after case in succeeding years.

Unidentified Justice: Is that true even if production of the documents would incriminate the person in a trial against that person without reference to the corporation?

Roy T Englert Jr: Yes, Your Honor.

The Court has so-stated regularly.

Unidentified Justice: So that you are willing to try the case on the assumption that Braswell might well incriminate himself by reference to the knowledge or the existence of the documents?

Roy T Englert Jr: We're willing to submit the case to this Court on that assumption.

Unidentified Justice: And you can use the fact that he produced these documents against him to prove those matters?

Roy T Englert Jr: Yes and no.

That's what page 34 of your brief says: "yes and no".

Unidentified Justice: And I can't understand it.

Roy T Englert Jr: All right: I think Justice White's rather colorful hypothetical is helpful in understanding the difference between what we say cannot be used, and what we say can be used.

The corporation produces these records; we are entitled, and we think this Court's case is quite clear that we are entitled, to make evidentiary use of the fact that worldwide Purchasing Corporation; and Worldwide Machinery Corporation produced these records, for whatever evidentiary significance that may have for authentication or anything else, we can use that fact.

What we can't do is say

"Not only did Worldwide Corporation... Worldwide Purchasing and Worldwide Machinery produced these records; but Randy Braswell was the person who handed them over. "

Now it may be that we can infer on that basis--

Unidentified Justice: What is it that prevents you from using that?

You haven't given him statutory immunity.

Roy T Englert Jr: --It's not an immunity question, Your Honor.

It flows, we think, logically--

Unidentified Justice: You're saying you can't use it.

Why can't you use it, what protection can you offer to Braswell's counsel that you will not introduce that fact?

Roy T Englert Jr: --We think it flows logically from the rationale of the White case decided in 1944, a rationale that's been reiterated many times.

Unidentified Justice: You mean you're telling us that if Mr. Braswell's attorney in a subsequent prosecution objects to this evidence, that it will be... the objection must be sustained?

Roy T Englert Jr: If he objects to the evidence that it was Randy Braswell who personally produced the records, yes.

Unidentified Justice: So that he does have the Fifth Amendment privilege?

Roy T Englert Jr: I don't think it's a Fifth Amendment privilege, Your Honor.

Unidentified Justice: What kind of privilege is it, then?

Roy T Englert Jr: I think it's simply a question of holding the Government to the underlying theory on which it gets these documents.

Unidentified Justice: What case do you cite for that proposition?

Roy T Englert Jr: For the underlying theory, I cite primarily the White case decided in 1944.

Well, since it's quoted at pages 21-22 of our brief, that's a passage that was repeated in the Curcio case; in the Bellis case; it's the underlying theory, Your Honor... the individual acts as agent of the corporation, and not as an individual when he produces the documents... that's what the Court has said over and over.

And to the extent we're conceding anything, we're conceding what we think is the logical consequence of that underlying theory.

Unidentified Justice: Well, I just want to make it clear: you are conceding that he does have a privilege against his own incrimination; and you are conceding that these documents may not be used against him for that purpose?

Roy T Englert Jr: Your Honor, I wouldn't phrase it that way, no.

Unidentified Justice: Well, what protection does he have?

Roy T Englert Jr: If the Government at trial asked the question,

"Isn't it true, Mr. Process-server, that Randy Braswell was the man who handed you these documents? "

And defense counsel objected, I think the Court would have to sustain that objection.

It's a ground derived from this Court's Fifth Amendment decisions, to be sure, but it's simply, Justice White, it's simply holding the Government to the underlying theory that this Court--

Unidentified Justice: But that... I don't really see your point.

It's... how is the Government held to its underlying theory by doing that?

Roy T Englert Jr: --Well, I think the best I can do is to ask the Court to look at the quotation on pages 21 and 22 of our brief from the White case.

In that case, the Court said,

"Individuals acting as a representative of a collective group cannot be said to be exercising their personal rights and duties; nor to be entitled to their purely personal privileges, et cetera, in their official capacity where they have no privilege against self-incrimination. "

The point of that passage--

Unidentified Justice: But this is the constructive immunity doctrine that we declined to adopt in Doe.

Roy T Englert Jr: --I don't think so, Your Honor.

I think this is considerably less than constructive immunity.

Constructive immunity would mean that we couldn't use the act of production... anyone's act of production; the corporation's act of production.

What we're conceding is something much more limited.

We want to use the corporation's act of for whatever it's worth.

We think we're entitled to it.

Unidentified Justice: But you haven't followed the statutory procedures for immunity.

That's an extra statutory immunity that you're now offering us... or offering Braswell.

Roy T Englert Jr: Your Honor, I must respectfully disagree.

I simply don't think it's the same thing as immunity.

I think it's like the cases in which the Court has said the violations of the Fifth Amendment can't be exploited.

It's something that flows from the underlying doctrine.

Unidentified Justice: What case from this Court... you've just cited us to this language from White and now I've read it over again.

It seems to me it says, the individual producing records may incriminate himself personally, but if it's corporate records, it doesn't make any difference.

I mean, that's in favor of the Government; not against it.

You're saying something, the Government has to concede.

What case is it from this Court that requires that concession by the Government?

What specific case?

Roy T Englert Jr: No case, Your Honor.

Unidentified Justice: Well then, why do you concede it?

Roy T Englert Jr: We think it flows logically.

If we're mistaken, I'm sure the Court will tell us so.

Unidentified Justice: But it seems to me it flows logically because Braswell has a privilege.

Suppose the issue in the case is whether or not Braswell has ever seen the invoice?

"Mr. Braswell, have you ever seen this invoice? "

Can he decline to answer that?

Or can you use the fact that he produced the documents against him; and if not, why not?

Roy T Englert Jr: Again, our position, Your Honor, is that we can use against Braswell the fact that Worldwide Purchasing and Worldwide Machinery--

Unidentified Justice: No.

You stick with my hypothetical:

"Mr. Braswell, have you seen this document? "

"Are you aware of its existence? "

"Have you ever seen it before? "

Can you use the fact that he produced that document to impeach him in the answer to that question?

And if not, why not?

Roy T Englert Jr: --The fact that he personally produced the documents, the answer, I believe, is "no".

I believe--

Unidentified Justice: But on what theory?

Roy T Englert Jr: --On the theory that--

Unidentified Justice: That he has a Fifth Amendment privilege: that must be your only theory.

Roy T Englert Jr: --Well, Your Honor, again, I would respectfully disagree.

The theory is that it is not Randy Braswell who performed that act of production; that it is the corporation that performed that act of production.

Unidentified Justice: How do you verify it?

I mean, you have to get some warm body up there to establish that the corporation produced it; and who is going to say these are the corporation's records if you don't put Braswell up there?

I don't understand how you prove it?

Roy T Englert Jr: The process server can verify that.

Unidentified Justice: I don't know how you get Braswell on the stand.

Can't you claim the Fifth Amendment privilege to just not get on the witness stand?

Roy T Englert Jr: Sure.

Unidentified Justice: Is he a defendant in this action?

Roy T Englert Jr: Well, of course, this is a grand jury matter, Your Honor.

Unidentified Justice: I mean, you're assuming he's going to be indicted, but I don't think you can put him on the witness stand if he doesn't voluntarily go on the witness stand, he waives his Fifth Amendment privileges.

Roy T Englert Jr: That's correct.

If, in Justice Kennedy's hypothetical, he were on the witness stand, we might well be able to ask those questions.

Unidentified Justice: Yes, but what if he decides, "I'm not going to testify", he says, "Under the Fifth Amendment".

Then how do you authenticate?

Roy T Englert Jr: The process-server, certainly.

Unidentified Justice: Well, there was a response to the subpoena... there was a response to the subpoena that the corporation sent its records up in the response to the subpoena.

That's exactly right.

That's the testimony we can put on.

Can you use that to show that he knew of the documents?

Roy T Englert Jr: To the extent that's a fair inference from the fact that the corporation produced the records, yes.

Unidentified Justice: Suppose he's on trial, and the question is whether he knew of the documents?

Can you use that?

Can you introduce the process-server?

Roy T Englert Jr: Yes, as long as what the process-server says is only that the corporation produced them.

That is the typical situation, Justice Kennedy, in which this Court has addressed the precise question whether we can compel an individual to produce these documents.

In part of the Bellis opinion, I believe it was in a footnote, the Court, responding to Justice Douglas' dissent, said

"Justice Douglas says this is the target. "

"That's typical. "

"It is the usual situation in which the documents are subpoenaed from a target of the investigation. "

He may or may not end up a defendant, but there is obviously some contemplation that he may end up a defendant, and the longstanding doctrine is that the Government is entitled to those records.

Unidentified Justice: Well, if what you've said is true, I don't see that there is very much ground between you and the Petitioner here.

Why are you so reluctant to give a grant of immunity, which sounds to me is going no further than what you say ensues anyway by operation of law?

Roy T Englert Jr: Justice Scalia, I think there's a world of difference between our position and the Petitioner's position.

I think Mr. Fawer would not agree with me that we could use the corporation's act of production and any fair inferences therefrom against Randy Braswell.

He would want Randy Braswell to turn over these documents and then have complete immunity from our taking any inferences from the testimonial content, if any, of that act of production.

And that can make all the difference in the world.

Unidentified Justice: He wouldn't allow you to say even that the corporation had produced it, if by the corporation, you mean Braswell.

Whereas you would say you can go and say the corporation had produced it; show by process-server that the corporation responded to the process in this way?

He would not allow that?

Roy T Englert Jr: That's how I understand his position.

Justice Kennedy also mentioned the problem of constructive use in that I understand the Petitioner's position, they would want us to be required to give constructive use immunity.

I'm sorry, not constructive use immunity... statutory use immunity, before we could get these documents.

A long line of cases has allowed us to get documents like these without statutory use immunity and we think the Court should reaffirm those cases.

Unidentified Justice: If these were private records, you wouldn't be able to get them by a subpoena, right?

If he was unincorporated?

Roy T Englert Jr: If he was a sole-proprietorship, for example; and he made an adequate showing of self-incrimination, then we would have to grant statutory use immunity to get them; that is the Doe case.

Unidentified Justice: It seems very strange, doesn't it?

Don't you think that seems strange?

Roy T Englert Jr: Well, Your Honor, we made the argument in Doe that that was strange; that we should be able to get those records as easily as corporate documents, and the Court rejected it.

There really has been a bright line drawn by the Court's cases.

Unidentified Justice: Well, the question is whether or not there is a testimonial incident to the production, isn't it?

In some cases their testimony incidents that are relevant and others that are not.

Roy T Englert Jr: Well, Your Honor, we're submitting this case on the assumption... not the concession... but the assumption, that there could be a testimonial incident to this act of production, as the Court held there was in Doe.

We think we win this case anyway.

The lower courts said we win this case anyway.

Bellis and Fisher and Curcio and Wilson and Dreier, all say we win this case anyway, in my view.

That is what the Court has said, is that, notwithstanding--

Unidentified Justice: But if that's true, then your answer to Justice Scalia's question would be there is no testimonial compulsion when a private person is forced to produce the documents?

Roy T Englert Jr: --No, Your Honor, I don't think the doctrine turns on the lack of testimonial compulsion.

The doctrine, again, as we understand it, was best stated in the White case, not saying that the individual... not saying that there is no act of compulsion; not saying that there is no testimony; saying that individuals, when they act as corporate agents, are not exercising their personal rights.

Unidentified Justice: So the Fifth Amendment is essentially... your argument reads

"Not simply shall be... nor simply compelled in any criminal case to be a witness against himself. "

There's really a gloss on it;

"Nor shall be compelled in any criminal case as a witness against himself, except when he is testifying in his capacity as an agent of a corporation? "

Roy T Englert Jr: I wouldn't put it that way, Your Honor.

A corporation--

Unidentified Justice: But that's essentially what your doctrine comes down to, right?

He can't testify against himself when he's acting as a secretary of the corporation.

Roy T Englert Jr: --One could put it that way, but as Justice O'Connor pointed out, corporations are fictional entities.

Somebody... we know from Hale v. Henkel that a corporation--

Unidentified Justice: Well, Braswell is not a corporate entity and he doesn't want to testify against himself.

Roy T Englert Jr: --No, but he wants Worldwide Purchasing Corporation and Worldwide Machinery Corporation to not testify against him by their act of producing documents.

Unidentified Justice: He's perfectly content to let them do it if they can do it through some other agent.

He just doesn't want them to do it through him.

Could you tell me once more why the Government is unwilling to grant use immunity just to the extent of the authentication... production and authentication of the records?

In the typical case?

Roy T Englert Jr: We're unwilling to do that, Your Honor, because in some cases at least, there are components to the act of production that are very important to us that we want to use against the individual, not necessarily that Randy Braswell produced the documents; but that the corporation had possession and control of these documents; that they are the corporate records.

Unidentified Justice: Of course in most cases, I suppose, you could always just subpoena the corporation?

Roy T Englert Jr: Well Your Honor, that's very problematic.

It really is.

In small corporations, often the targets will be the only people who know where the records are.

Unidentified Justice: All right, suppose you subpoena a small corporation and you just get no response?

Roy T Englert Jr: That's the problem.

Unidentified Justice: And then what are you going to do?

Roy T Englert Jr: That's the problem.

We can try to hold the corporation in contempt; which may or may not work; they can always just disband the corporation; which would make it awfully hard to hold it in contempt.

We could try to hold the individual in contempt for not cooperating; but of course, his response, if Petitioner prevailed in this case, would be,

"Well, I was just exercising my Fifth Amendment rights. "

"I don't have any duty to participate in this. "

Unidentified Justice: But that's perfectly all right when it's his diary you're trying to get.

You just say,

"Well, gee, I guess we just can't get the diary. "

And it's also perfectly all right if he hasn't incorporated.

You just shrug your shoulders and say,

"Well, that's what the Fifth Amendment says: we can't make this guy turn it over. "

"We have to find some other way to get it. "

But here, when it's a corporation... certainly the larger the corporation is, the less likely this problem is to arise, isn't it?

For General Motors, it's no real problem.

Roy T Englert Jr: No, I can't agree completely with that.

Let's suppose, just as an hypothetical example, that the president of General Motors, and the president of Chrysler agree to engage in price fixing.

They would surely keep any documentation of that to a minimum and keep it under lock and key... keep it secret from the rest of the corporation.

If we issued a subpoena to General Motors:

"Please give us all records that document discussions of prices with Chrysler Corporation. "

I don't think the president would give up those records.

He knows we can't prove that they exist if we don't get them.

Unidentified Justice: Well, on that basis, it wouldn't do any good to subpoena him.

He'd just say... he would just wouldn't produce them.

You don't know that they're there.

Nobody knows it.

Roy T Englert Jr: At least we have the threat of contempt against him, Your Honor, in that case.

Unidentified Justice: Would you want us to go so far as to say that, by becoming an officer in a corporation, you simply waive your Fifth Amendment rights as to anything you might ever be asked to produce?

Roy T Englert Jr: As to any corporate records you may ever be asked to produce?

Unidentified Justice: Yes.

Roy T Englert Jr: I think the Court has gone that far many times.

Unidentified Justice: So you think the law is that Braswell has no Fifth Amendment rights because he formed a corporation, as to any documents he might be asked to produce as a corporate officer, even though there may be some testimonial incidents to that production?

Roy T Englert Jr: Yes, and if Your Honor will indulge me, I'd just like to read a couple of things this Court said in the Curcio case, a case primarily relied on by my opponents, to see just whether the Court has said that.

Their quote in page 17 of our brief at the bottom of page 24,

"The Court said that the books and records of corporations cannot be insulated from reasonable demands of governmental authorities by a claim of personal privilege on the part of their custodian. "

On the next page we quote the passage from page 128 of the Curcio decision,

"A compulsory production... a corporate or association records, by their custodian, is readily justifiable, even though the custodian protests against it for personal reasons. "

Unidentified Justice: Well, if that's true, then to go back to the beginning, I don't understand why you make the concession that you do on page 34 that for some purposes you cant' use the information?

Roy T Englert Jr: Well, Your Honor, again, if the concession is unwise, I'm sure the Court will tell us so.

But we do think the concession flows logically from the underlying agency rationale of the doctrine, that the individual, although waiver is one doctrine that's been invoked, all of the undesirability of a de facto privilege for the corporation has also been invoked, out of practical necessity, has been invoked... the Court has, we think primarily rested on the agency rationale that in individual simply is not acting as an individual when he produces documents.

Corporations have to act through human beings.

That's what was pointed out by the Court in the opinion in Bellis.

And it is because corporations have to act through human beings, that we have to use what is admittedly a fiction; that Randy Braswell is not "Randy Braswell" when he produces--

Unidentified Justice: May I interrupt at this point?

Your subpoena was addressed to "Randy Braswell, President", then the name of the corporation.

The subpoena was served on him in his capacity as a corporate officer rather than as an individual, is that correct?

Roy T Englert Jr: --Yes.

Unidentified Justice: Would it have been in compliance with the subpoena for the secretary of the corporation to have brought the documents to court and got on the witness stand and said,

"I've made a diligent search of the documents, and I speak on behalf of the corporation, these are what you subpoenaed? "

Roy T Englert Jr: I don't think that would have constituted technical compliance.

Unidentified Justice: Why not?

If basically you're saying that he is merely an agent of the corporation and the corporation has responded through a different, duly-authorized agent, who is willing to testify under oath that everything commanded by the subpoena has been produced.

Why wouldn't that be in compliance with the subpoena?

Roy T Englert Jr: Because the problems of who, within corporations can actually lay his hands on documents?

Unidentified Justice: Well, he's prepared to testify that he had the authority.

He's the custodian.

It's not often true that the president is the actual custodian of corporate documents.

Usually it's the secretary.

Roy T Englert Jr: Justice Stevens, if that actually happened, I think the Government would shout "Hurrah".

Unidentified Justice: Well, it happens all the time, I mean, I think often, very often, corporations respond to subpoenas by bringing in some officer other than the particular one that was designated in the subpoena.

Roy T Englert Jr: Sure and we regularly accept that.

I was only trying to respond to your question.

Unidentified Justice: And I'm really asking whether you have a duty to accept that?

Roy T Englert Jr: I think not, Your Honor, because there is a problem with subpoenaing documents from one individual--

Unidentified Justice: But he's not an individual under your submission.

Roy T Englert Jr: --from one corporate officer who may know of documents that are squirreled away somewhere; and as a ploy, has somebody else respond, and truthfully respond that he's made a diligent search of every place in the corporation where he knows that--

Unidentified Justice: In other words, what you're saying is you want to be able to ask the individual whether he has in fact disclosed everything he knows about the corporate documents?

That's asking an individual rather than an officer of the corporation when you put it that way.

Roy T Englert Jr: --Well, Your Honor, there we do run into the Curcio case.

We want the right to issue the subpoena to the individual.

We want the right to make that individual comply with the subpoena.

Unidentified Justice: On behalf of the corporation?

Roy T Englert Jr: On behalf of the corporation, We have that right under prior cases.

Unidentified Justice: Why don't you call him to the stand on behalf of the corporation: you know, just have the bailiff say,

"Call to the stand the president of Braswell Corporation. "

+ And you put him under oath, " Do you swear to tell the truth?

You're not cross-examining Braswell; you're cross-examining the president of Braswell Corporation.

Roy T Englert Jr: Well, Your Honor, we tried that in 1957.

Unidentified Justice: It didn't work, did it?

Roy T Englert Jr: Didn't work.

The Court drew the line.

Unidentified Justice: Why is that a rational line, I mean... if you think that people have this bifurcated personality: there is Braswell the person and Braswell the corporation?

Roy T Englert Jr: Well, Your Honor, as I read the Curcio case, in which we were trying to make the argument that that was not a rational line and the Court disagreed with us, there are pragmatic concerns at work in this area.

Everything flows from Hale v. Henkel; everything flows from the fact that Mr. Fawer admitted many times, that we have a right to these records.

The agency rationale that has built up... the other underlying rationales, which are reiterated throughout the opinion in the Bellis case, all flow from the fact that we have to be able to effectively get these documents.

That has been the Court's concern in case after case, is making the Government's power to get these documents effective.

The Government, if you will, got "piggy" in the Curcio case, it didn't try to make it's power to get the documents effective; it tried to put somebody on the stand, before the grand jury and disclosure the contents of his own mind, and the Court put its foot down.

Unidentified Justice: The Fifth Amendment doesn't strike me as a very effective provision.

I mean, it doesn't seem to be designed to allow the Government to get effectively all the information it needs.

I mean, you may, to be effective, need to have the testimony of the individual, too.

And what the Fifth Amendment says, is "That's too bad".

Roy T Englert Jr: Well, of course, Your Honor, constitutional doctrines often impede Government effectiveness; limitations on constitutional doctrines regularly aid Government effectiveness.

It's a pragmatic world out there; and this Court has recognized that in its cases.

And that, I think, is what is going on in the Curcio case and in the various other cases in which the Court has reiterated this well-established doctrine.

Unidentified Justice: Mr. Englert, what is the significance at the end of the subpoena where it stated that,

"In the alternative, you are commanded to deliver the subpoena documents to the agent. "

and you don't have to do any more than that?

Roy T Englert Jr: Well, that's of course, very significant, Justice Marshall.

That's very significant, because it serves to--

Unidentified Justice: Well, that's why you haven't mentioned it?

That's why you haven't mentioned it?

Roy T Englert Jr: --Well, I'm sorry about that, but the point is, that we're not seeking to get testimony before the grand jury the way the Government tried to get testimony before the grand jury in Curcio.

We're trying to get these documents; we're trying to make sure that we can get these documents in an effective way, and our underlying worry in these cases, and the underlying worry that the Court has recognized, is that just addressing a subpoena to a corporation isn't an effective way.

Again, the argument to which there is force... we'll admit that.

That there's nothing different about making the person act as agent when he produces documents, and making the person act as agent before the grand jury, has force; but it's one that this Court has rejected.

The Court rejected it in Curcio when we advanced that argument, because of pragmatic concerns.

Those pragmatic concerns always had a place in the development of the doctrine in this area; and we think properly so.

A long line of very distinguished Justices have signed on to all these opinions... in 1911; in 1923; in 1944; in 1957; in 1974.

It's those decisions that we think conclusively settle the issue in the Government's favor.

And we would ask the Court to reaffirm those decisions once again.

Unidentified Justice: Let me ask you one more question before you sit down?

In the Doe case, as I remember, there was a district court finding that the act of production would have been incriminating, and the court of appeals agreed with it.

There's a two court finding and in this Court basically we accept those findings.

Were there any similar findings either way by the district court in this case?

Roy T Englert Jr: No, Your Honor.

I might say on that subject, Mr. Fawer I think may have misspoken.

He said

"No one has disputed that the act of production would be incriminatory in this case. "

That's not true.

We dispute that.

But as I said to Justice Kennedy, for purposes of submission to this Court, we're happy to have the Court assume that there would be incrimination in this case, because we think the issue is, "Does that matter"?

And we think the decisions of the Court say it doesn't.

Unidentified Justice: Well, if the question becomes incrimination in this case, the Government won't fare well, I suspect, because, you know, you don't have evidence as to whether or not it will incriminate.

If there's a colorable claim of incrimination under our cases, the Court has to sustain it.

Roy T Englert Jr: Well, Your Honor, the Fisher case indicated a fairly narrow scope, I think, for this act of production doctrine.

The claim of privilege was defeated in that case.

And I think much of the underlying logic of Fisher applies here, especially in light of what I understand to be a concession by Mr. Fawer that we could authenticate these records though an accountant or through other means than the act of production.

Of course, that would be an issue to be addressed by the courts below.

Unidentified Justice: Let me ask one other question, if I may?

There are two ways in which the act of production might be incriminated: one is just the fact of the act of producing; secondly, by what the producing representative of the corporation says when he gets on the witness stand:

"Yes, I made a diligent search. "

and so forth.

Do you contend... concede that both of those are equally incriminating?

Both aspects of the act of production?

You don't concede it either.

Roy T Englert Jr: I think that both can be incriminating.

Unidentified Justice: You concede just the mere physical act of delivering the documents can be incriminating, even if he took them in the office; says, as a note that, as Justice Marshall called your attention to, say you just delivered the documents; just dumped them off in the process-server's office; and left them.

Didn't sign anything or no receipt.

Would that be incriminating in your view?

Roy T Englert Jr: On those facts alone, no.

But it could be with some additional facts.

Unidentified Justice: I thought it was only the act of production that we're talking about in this case.

We're not talking about testimony on the stand?

Roy T Englert Jr: That's correct.

Unidentified Justice: You never--

--No, we're talking about authentication, though, aren't we?

We're at least--

--By the act of production.

--that.

By the act of production?

Roy T Englert Jr: Yes.

Unidentified Justice: And we're talking also about the fact--

--You're not saying anything about being on the witness stand.

We're talking also about the fact that he obviously knows of the existence of the document if he produces them, aren't we?

What if he brings a whole--

Roy T Englert Jr: Yes, to Justice Kennedy, although with the same kinds of limitations I've given in previous answers.

Unidentified Justice: --What if he brings a whole batch of documents; a whole batch of sets of corporate records and he just plunks them down and he says,

"Among these is the response to your subpoena? "

Roy T Englert Jr: That's a typical response and we get that we delighted.

Unidentified Justice: It's not much use for authentication, is it?

Chief Justice William H. Rehnquist: Thank you, Mr. Englert.

Mr. Fawer, you have three minutes remaining.

ORAL ARGUMENT BY CHARLES FRIED, ESQUIRE, ON BEHALF OF PETITIONERS

Mr. Fawer: Very briefly, Your Honor, thank you.

Justice Marshall, in response to one thing you said, the Government is not perhaps being totally candid about how it would use that footnote.

They say and maintain that no matter who Randy produces them to, they can call that person to the stand to say that he... that buffer, I will call it; that surrogate; got them from Randy and used that inference against him.

Why do I say that's their inference?

Because Mr. Englert said they would do it in the Sealed case, the case you took this issue on and then the case was mooted and then our Cert petition was granted.

Look at footnote No. 20 in the Government's brief in the Sealed case: they say just that; that they feel free to use the testimony to put on the stand the surrogate; say,

"Who did you get the records from? "

The surrogate would say, "Randy Braswell"; they could use the testimonial inferences from that against him.

In addition--

Unidentified Justice: Did you disagree with that?

Mr. Fawer: --Yes, I disagree... I think they should not be permitted to do that.

Unidentified Justice: They deny that in their brief right here.

Mr. Fawer: Well, I don't know where they deny that.

I have yet to see a denial in this brief that they could not use the production by Mr. Braswell.

Unidentified Justice: The fact that it was Braswell who produced them.

I thought they say they couldn't use them.

Mr. Fawer: There's... we're going back to page 34.

What they say there is that, if Braswell produces, that he's simply producing with his other act, called "representative capacity", that they can use that act against him although they cannot say on the record that the person, the flesh and blood that walked in with the records, was the... the content was Randy Braswell.

I have tremendous problems understanding why they can't, except we all know why they can't.

It's what Justice Kennedy was asking: the Fifth Amendment says they can't.

And what you really have here, they are somewhat... it is an unrealistic approach to the realities of what goes on in the courtroom.

Unidentified Justice: You're saying if the Fifth Amendment prohibits it, then when Randy Braswell tells his lawyer or other agent to produce the document, he is testifying against himself?

Mr. Fawer: If they can put that person on the stand to say that, yes they are doing that.

And... I mean, Randy Braswell wants to voluntarily say to his lawyer, without raising any privilege,

"Here the documents bring them up. "

Then there's nothing.

There's been no assertion of the Fifth Amendment claim.

He needs to assert the privilege.

Randy Braswell in this case has asserted that privilege.

Now, I might point out something the Government doesn't point out: the Federal Rules of Evidence Rule 801(d)(2)... you know that that rule says that it is not hearsay for somebody to testify in a representative capacity and that representative capacity can be used against him in his individual capacity.

How do we deal with that?

What does that do to the fiction that the Government wants to palm off on the Court?

The answer is simple: statutory immunity in this case.

And by the way, it's not going to... I don't know of a single... the history... I guess my time is up.

Chief Justice William H. Rehnquist: Thank you, Mr. Fawer.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Robinson - Oral Argument

Wed, 13 Apr 2011 20:12:05 +0000

Case:

United States v. Robinson

Media File:

86-937_19871103-argument.mp3

Related Transcript:

86-937_19871103-argument.xml

Transcript:

ORAL ARGUMENT OF LAWRENCE S. ROBBINS, ESQ. ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument in Number 86-937, United States against Thomas O. Robinson, Jr.--

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

Mr. Robbins: Good morning, Mr. Chief Justice, and may it please the Court:

The decision of the 6th Circuit in this case reversing the two mail fraud convictions of Thomas Robinson flounders, we submit, on two central misconceptions.

First, the Court of Appeals misread this Court's decision in Griffin against California when it held that the prosecutor's rebuttal summation was an impermissible comment on Mr. Robinson's failure to testify.

The rule in Griffin, we suggests, forbids only those comments that serve no proper purpose but, rather, invite the jury to treat the defendant's silence as evidence of his guilt.

The rebuttal remarks under that standard were not impermissible.

Secondly, the Court of Appeals erroneously supposed that it was freer to find plain error in this case because the prosecutor's remarks never objected to at trial implicated Robinson's constitutional rights.

We believe that there is no basis to distinguish between constitutional and non-constitutional errors in applying the plain error doctrine.

Let me begin, if I might, with the Griffin issue.

The Court of Appeals discerned the violation of Griffin in the prosecutor's rebuttal summation.

Defense counsel, for his part, had summed up prior to the rebuttal and proclaimed at the outset that his theme in the summation would be the Government's failure to play fair with the jury.

After claiming that the Government had unfairly filtered the evidence in its presentation and that it had consistently denied Robinson a chance to explain his actions, defense counsel then posed this rhetorical question to the jury:

"Now, would you like to get indicted for that without the Government being fair and being able to explain before you, members of your own community, rather than before the agents? "

After the defense lawyer completed his remarks, the prosecutor asked for a side bar and both attorneys approached the trial court.

At that point, the Government lawyer objected to the remarks and asked for leave to respond.

The court granted that motion, agreeing with the prosecutor that defense counsel had wrongfully asserted that the Government was responsible for Mr. Robinson's failure to testify.

Defense counsel, for his part, registered no objection at this time nor did he quarrel with the trial court and the Government's construction of his summation remarks and, therefore, acting pursuant to the trial court's ruling, the prosecutor stated in rebuttal that defense counsel

"has made comments to the extent the Government has not allowed the defendants an opportunity to explain. "

"It is totally unacceptable. "

And he stated further, "He", that is the defendant,

"could have taken the stand and explained it to you. "

"Anything he wanted to. "

"The United States of America has given him throughout the opportunity to explain. "

And, again, the defense counsel made no objection.

Now, the Court of Appeals for the 6th Circuit found in these remarks a clear violation of the Defendant's constitutional right not to testify under Griffin.

We disagree.

Griffin does not prohibit each and every reference to a defendant's failure to testify.

Rather, Griffin forbids those comments but only those comments that serve no proper purpose and simply invite the jury to treat the defendant's silence as evidence of guilt.

The Griffin case itself, we suggest, confirms this limiting principle.

In Griffin, after all, the prosecutor and the trial court told the jury that from the failure of the defendant to testify, it could infer that each and every fact that he could have but failed to explain was more likely than not to be true and that they could use those findings as evidence against the defendant.

This Court, reviewing that record, found that the comments of the prosecutor and the trial court in Griffin

"tendered to the jury for its consideration the failure of the accused to testify. "

Thus, the Court explained, the comments of the prosecutor and trial court in Griffin

"solemnized the silence of the accused into evidence against him. "

The Griffin court reasoned that it is simply improper to infer from the failure to testify that the defendant is guilty of the crime charged and it discerned a number of reasons wholly apart from the defendant's guilt that could account for the defendant's failure to testify.

The court in Griffin reasoned that when a prosecutor or trial judge invites the jury to find a defendant guilty based on his failure to testify, it has, in effect, imposed a penalty on the defendant's exercise of a Fifth Amendment privilege.

But surely not every comment pertaining or alluding to the failure to testify

"solemnizes the silence of the accused into evidence against him. "

and this case, for example, does not fit that profile at all.

Here, the prosecutor did not urge the jury to treat the Defendant's silence as evidence against him.

When he advised the jury that the Government cannot be blamed for Mr. Robinson's decision not to testify, the prosecutor simply dispelled a mistaken impression, indeed, a misleading impression, left in their minds by the defense lawyer in his summation.

The rebuttal remarks thus had an entirely lawful purpose unrelated to the evidentiary use and evidentiary significance of the Defendant's failure to testify.

The rule that we suggest should govern Griffin claims in this case and in general is this: when a prosecutor has a lawful purpose in making his comments, a purpose that is unrelated to the Defendant's failure to testify, he does not violate the rule in Griffin.

That's true for two reasons.

First, the rule in Griffin--

Unidentified Justice: Can't I adopt that in the rule against you?

Mr. Robbins: --I'm sorry?

Unidentified Justice: Can't I adopt that in the rule against you?

Mr. Robbins: I don't see how, Justice Marshall.

It seems pretty clear to us that, first of all, the prosecutor's remarks in this case did, indeed, have a lawful purpose, and that was to dispel--

Unidentified Justice: The lawful purpose was to convict the man.

Mr. Robbins: --Well, no.

I think it had a lawful... I'm sorry.

Unidentified Justice: What other lawful... what is "lawful"?

Mr. Robbins: Well,--

Unidentified Justice: He was there to convict.

Mr. Robbins: --His overall purpose--

Unidentified Justice: Do you dispute that?

Mr. Robbins: --I don't dispute that the Government is charged in a prosecution it has brought to try and persuade the jury beyond a reasonable doubt of a defendant's guilt or else they wouldn't be there.

But I do very much believe that there were proper purposes short of that that can account and do account for what the prosecutor did in his rebuttal in this case.

Specifically, the defense lawyer had left the clear and misleading impression that the Government was somehow responsible for Mr. Robinson's failure to testify.

Unidentified Justice: Could that have been corrected by instruction?

Mr. Robbins: It could have been corrected by instruction, but we don't think that it must be corrected by instruction.

We don't think that in a case where the Government has a proper response that can correct a misleading impression, it must forego its opportunity to correct the impression itself, and certainly none of this Court's cases, including its decision in Young, suggest that the Government must forego the opportunity to give perfectly permissible response.

Unidentified Justice: The difference between us is I don't think comment on failure to take stand is "permissible".

Mr. Robbins: Neither do, but I don't--

Unidentified Justice: You just said so.

Mr. Robbins: --I respectfully must disagree, Your Honor.

It seems to me that what I have said and what I say again is that the kind of comment that took place in this case was not a comment on the failure to testify in the Griffin sense.

It was, of course, a comment pertaining, relating and alluding to the failure to testify, but not remotely in the sense that the Griffin court was concerned about.

The Griffin court, we submit, was faced with a situation--

Unidentified Justice: You say the Government said, oh, by the way, he failed to take the stand?

Mr. Robbins: --No.

Unidentified Justice: You know, just in passing?

Mr. Robbins: No, I don't think it was a remark in passing.

I think it was a remark very deliberately made, but for a lawful and permissible purpose, that has nothing whatever to do with the concerns that moved the Griffin court.

It seems to us, for example, that this remark was no more a comment on silence than was the instruction given over the Defendant's objection in Lakeside against Oregon.

There, too, there was a comment in that case by the trial court pertaining to the failure to testify.

Specifically, telling the jury that it may draw no adverse inference from the failure to testify.

In that case, the defendant made much the same kind of argument that appealed to the 6th Circuit in this case.

He said, well, that's a comment on my silence because it is, of course, related to my failure to testify.

But this Court flatly rejected that argument.

It said that not every comment is a Griffin impermissible comment, and the mere fact that it reminds the jury that the defendant didn't take the stand, a fact which we suggest they rarely need to be reminded about, nevertheless doesn't put it within the Griffin proscriptions, and we think this is no more prohibitive in Griffin than the comments in Lakeside.

For the same reason that the Lakeside comment was not impermissible, because it did not invite the jury to draw an inference of guilt from the failure to take the stand.

That is not what the prosecutor said to the jury in this case.

What he said is that, in effect, do not be misled into thinking that we are responsible for the defendant's failure to testify, and that's, indeed, just exactly what the defense lawyer had said in his prior remarks.

It seems to us that when, as here, there is a proper purpose for the remarks, unrelated to asking the jury to draw an adverse inference of guilt, it promotes and not undermines the truth-finding function of the trial to permit that statement to be made.

That, we take it, is the clear lesson of this Court's decision in Rafael against The United States, in which this Court held that a defendant's failure to testify at an earlier trial may be used to impeach his credibility when he testifies upon retrial.

It is likewise the lesson, we think, of a broader line of cases, like Harris against New York and Walder against The United States, that make clear that prosecutors must have considerable latitude during impeachment and rebuttal precisely because the demands of the truth-finding function require it.

Now, there's a second reason why we suggest that the rule of Griffin as we have urged it makes a good deal of sense, and that's this: where prosecutor's remarks serve a lawful and proper purpose unrelated to asking the jury to infer guilt from silence, there's no reason to suppose that the jury will understand it in the impermissible way.

As this Court explained in Donnelly against DeChristoforo, remarks by a prosecutor should not be interpreted in their worst possible way, and when a prosecutor's remarks serve, as we suggest they do in this case, an important truth-finding function, courts should not presume that the jury will take those remarks as forbidden comment.

Indeed, that is a particularly appropriate rule to apply in this case because the jury was instructed by the trial court in instructions that were similarly not objected to, to draw no inference or guilt from the failure to take the stand.

In short, we believe the rule in Griffin ought not to be construed to stifle argument that serves a legitimate truth-finding purpose.

In this case, the trial court concluded that the prosecutor's remarks would ensure that the jury was not misled by defense counsel's summation.

That judgment was plainly correct and should not have been reversed, least of all on the authority of Griffin.

Unidentified Justice: May I ask one question, Mr. Robbins?

If the defense counsel's summation had merely said, and it's somewhat ambiguous, that at the time the defendant was interviewed by claims agents and FBI agents and so forth, conditions were very... were such that he didn't really have an opportunity to explain, they didn't give him an opportunity to explain, clearly he did not have the opportunity to explain at that time before he was indicted, before the case started, if that's all he said, would the rebuttal argument have been proper?

Mr. Robbins: The rebuttal argument may have been improper, but not because it violates Griffin.

The rebuttal argument would still not have been one calculated or on its face likely to have the effect of asking the jury to infer guilt from silence, but it would have been improper for a different reason, and that is because it was not proper rebuttal.

It was not responsive to anything that the defense lawyer had said.

Unidentified Justice: Well, supposing the prosecutor said, my opponent made the argument that my client or that the defendant didn't have an opportunity to explain during the claims adjustment process, and maybe that's right, but he has had an opportunity at the trial here to come up with the explanation, he hasn't done so, would that be proper rebuttal?

He hasn't done so when he could have gotten on the stand.

Mr. Robbins: My inclination is to think not.

Again, for the reason that it is not calculated to respond to precisely the argument made.

It is, I think, a bit of analytical overkill and because it's not narrowly--

Unidentified Justice: And it emphasizes before the jury that the man didn't get on the witness stand.

Mr. Robbins: --That's correct.

But it does seem to me that there are--

Unidentified Justice: Well, to put it another way, would you not agree that the rule of Griffin can be violated by some indirect... by emphasizing the failure to testify in the sort of pre-textual way that you don't affirmatively argue as they did in Griffin, that you can draw this inference, but they just kind of emphasize... would you not agree that some kinds of emphasis on the failure to get on the stand violate the basic rule of Griffin?

Mr. Robbins: --I think I am not willing to defend pre-textual arguments, and I think they can happen.

In one of this Court's cases, there's a rather lengthy quotation from an instruction that the jury may draw no inference from the failure to testify, and it was repeated about thirty-five times, until the jury finally got the message that perhaps they should have drawn an inference.

Unidentified Justice: Lakeside against Oregon.

Mr. Robbins: But let me suggest, Justice Stevens, that there is a danger on the other side of the ledger as well with these indirect references to silence.

We think, frankly, that the lower courts have gone a little bit overboard in what constitutes indirect comment.

At a point of indirection, there's no good reason to think that the jury is going to take those comments in an impermissible way.

I have in mind the legions of cases dealing... in which the prosecutor says, the evidence is uncontradicted, is unrefuted, and in which the Courts of Appeals nevertheless feel constrained to struggle with that as a Griffin problem.

It isn't, and it isn't for a variety of reasons, and the rule that we have urged today, we think, will settle a great many of those and reduce disputes that have nothing to do with the meaning of Griffin.

It will not solve cases of pretext and we're not prepared to defend cases of pretext.

Where it's clear that the prosecutor is trying to get through the back door what the law prohibits through the front door, we don't defend it, and it ought to be impermissible.

But those are rather a small class of cases compared to cases that Griffin simply doesn't control.

Unidentified Justice: If the prosecutor here had not asked for the judge's permission in advance, it seems to me this would be rather close on the factual question that I give you, because I can read some of the comment.

I'm not really sure there's ever an unambiguous statement in defense counsel's argument that he's referring to the fact... suggesting that he didn't have a chance to get on the witness stand.

He seems to be talking about the adjustment process.

Mr. Robbins: I am, Justice Stevens, not prepared to assert that the defense counsel's remarks are a model of clarity.

I think there is a good deal of ambiguity to them, which is exactly why the law insists that the participants in the trial make their views known to the trial court.

In this case, there's every good reason to indulge the presumption that the trial judge understood these remarks as inviting the response that were made, the response that was made.

The language that was used is one that we still don't have an accounting for, except in the way that the trial court understood it.

After all, the defense lawyer said, used the words,

"being able to explain, have him explain before you, members of your own community. "

At a minimum, those can be understood the way the trial judge understood them.

Beyond that, of course, the fact that the trial judge understood them that way is a pretty good, indeed, in our view, the best barometer that that's the way they want to be understood.

We refer in this connection to the Court's remarks in a different context in Patent against Young, in which the Court said that demeanor, inflection, the flow of the questions and answers can make confused and conflicting utterances incomprehensible and, therefore, went on to hold that the trial court's understanding, the trial judge's interpretation is the best barometer for making sense of what happens during a trial proceeding.

And, of course, here was a case where the defense lawyer stood at side bar with the other participants, heard what the trial judge and the Government lawyer thought his remarks meant, and said nothing, and it's not just that he said nothing, but he objected to some other claim that the Government wished to make in rebuttal.

He objected to that, but conspicuously said nothing about the claim that brings us to court today.

It seems to me that that goes beyond inadvertence and calls to mind Justice Frankfurter's remarks in Johnson against The United States that sometimes the failure to object should be understood as acquiescence that nothing is objectionable at all.

Unidentified Justice: Is there now some rule prevailing in the federal courts that the United States Attorney has to clear his closing argument with the trial judge?

Mr. Robbins: No, there is not, Mr. Chief Justice, and we don't think our position would be any different had he not done so in this case.

We do think, however, that the fact that he did so bears on the analysis to this extent: it gave the defense lawyer a chance to give his side of the story, to give his interpretation.

If he believed then as respondent's counsel states now that his remarks should have a different meaning, there was his opportunity to say so.

No, I think in answer to Your Honor's question, the Government could have proceeded to rebuttal and said exactly what he said without any clearance from the trial court.

It is, however, good procedure to do so.

It does give the people a chance to air the views and the trial court has an opportunity to rule.

Unidentified Justice: I'd like to place some emphasis on it.

Not only is it a good procedure, but it also gives the trial judge a chance to clear up something by instruction that would avoid a significant risk of error.

I'm not suggesting that there's error here, but certainly, I think, he was to be commended for raising this with the trial judge.

Mr. Robbins: We agree.

The Court of Appeals compounded its misreading of Griffin, we think, by its flawed application of the plain error doctrine.

Now, once before in this litigation, this Court granted certiorari to the 6th Circuit and remanded the case in light of The United States against Young.

In Young, the Court had reiterated the bed rock principle that contemporaneous objections are the rule and plain error a narrow exception.

The plain error exception, the Court explained, is available only to correct particularly egregious errors and, more specifically, those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings.

On remand, however, the Court of Appeals adhered to its earlier judgment and it did so, at least in part, because it believed it was freer to find plain error where, as in this case, the error implicated constitutional rights.

Four reasons counsel against adopting such a distinction.

First, the text of Rule 52(b) of the Federal Rules of Criminal Procedure and the accompanying Advisory Committee Notes offer no basis for making that distinction.

Neither the rule nor the notes treat constitutional claims in any special way.

Second, directing a distinction of this sort violates what we think is the contemporaneous objection rule which is the governing rule to which the plain error doctrine is, as the Court noted in Young, a narrow exception.

Objections, after all, alert the trial judge to the fact that a party actually disapproves of something that happened at trial.

It permits the trial court to rectify that error before it irrevocably taints the verdict, and it frames the issue on appeal.

None of those purposes, we suggest, is well served by distinguishing between constitutional and non-constitutional claims.

To the contrary, this issue, this case, rather, illustrates why any such distinction would be terribly counterproductive.

Unidentified Justice: Well, Mr. Robbins, I suppose if you're right, that it wasn't error in the first place, we wouldn't reach the plainer problem.

Mr. Robbins: Exactly.

It is only because the Court of Appeals thought that this was a Griffin violation that it felt constrained in the first place to treat it as a harmless error and then, on remand, in light of Young, it went on to consider what it took to be the plain error rule.

As I say, in this case is a terrific illustration of why you need objections.

Had an objection been made after all in this case, the trial court would have been alerted to defense counsel's view, at least his presently-held view, that the summation remarks had a different meaning.

An objection here, had it been made, would have allowed the trial court to refuse to permit the rebuttal just as he refused a second request made by the prosecutor to make a different argument in the rebuttal.

Third, this Court's cases construing the plain error doctrine do not stand for any distinction between constitutional and non-constitutional claims.

Now, Respondent has suggested otherwise in his brief, but that's only because he is taking every claim, every case that the Court has decided under the plain error doctrine, and recharacterized them as constitutional cases.

In some instances, by calling them fair trial cases or due process cases.

In any event, we think that that misreads the cases which did not, in fact, turn on any constitutional claim, but in a larger sense, Respondent's position illustrates precisely why no such distinction should be made.

Because the fact that these kinds of claims can be so easily restyled in constitutional terms suggests that trial courts need to hear objections no matter what we label the claim, constitutional or otherwise.

Unidentified Justice: But you would agree, wouldn't you, Mr. Robbins, that the test for harmless error is different, depending on whether it's a constitutional error or non-constitutional error?

Mr. Robbins: No question about it.

We believe--

Unidentified Justice: Doesn't that sound like one of them's maybe a little more important than the other?

Mr. Robbins: --Well, we don't think, Justice Stevens, that the Court is required to treat plain error distinctions in the same way, primarily because the plain error doctrine serves a different function in the trial system than the harmless error doctrine does.

Second of all, we are not entirely persuaded that Chapman and Kotteakus should have different rules and, therefore, we are not certain that the analysis that has developed in the harmless error should be made in the context of plain error.

This much we are sure of, however, that this Court's cases--

Unidentified Justice: Which rule would you change?

Kotteakus or Chapman?

Do you think they should be the same?

Mr. Robbins: --I am inclined to change Chapman and make it much more like Kotteakus, but I am sure of this much, there's no good reason to apply the same distinction in this case.

After all, what would the distinction look like?

If the plain error rule requires that constitution... if non-constitutional errors must be egregious to apply the plain error rule, may constitutional errors be almost egregious or really awful but not quite egregious?

The problem is the rule is incapable of rational application.

It leads to inconsistencies, additional layers of review, and is subject to terribly inexplicable results.

Take this case, for example.

Believing itself free to relax the plain error rule, the Court of Appeals held that the prosecutor's rebuttal remarks in this case violated its conception of the plain error doctrine.

The Court so held despite the fact that the prosecutor explicitly was responding to defense counsel's remarks, despite the fact that the trial court gave the jury an instruction on drawing no inference from the failure to testify, despite the overwhelming evidence of guilt, we suggest, and despite the fact that the jury's split verdict indicate their ability to parcel the evidence fairly.

The Court, this Court, should not approve a novel standard for plain error that is capable of producing a judgment like this one.

We believe, in short, that the Court of Appeals decision in this case is flawed at every turn.

It over-reads Griffin and under-reads Young, and in the context of a trial with enough evidence to convict Mr. Robinson ten times over, the Court of Appeals relied upon a purported defect so abstract that it escaped even defense counsel's notice at the time.

I'd like to reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Robbins.

We'll hear now from you, Ms. Durham.

ORAL ARGUMENT OF CAROLOU PERRY DURHAM, ESQ. ON BEHALF OF RESPONDENT

Mr. Durham: Mr. Chief Justice, and may it please the Court:

I respectfully submit that the question presented is a fascinating question.

Question Number 1.

But that it is hypothetical and it does not apply to the facts in this case.

The question presented assumes that the defense counsel argues that the Government prevented defense... the defendant from explaining his side of the case.

In fact, no where in defense counsel's argument is there any claim that the Government prevented the defendant from explaining his side of the case.

You have heard read aloud to you an excerpt--

Unidentified Justice: Were you counsel below?

Mr. Durham: --No, sir, I was not.

Unidentified Justice: Were you counsel at trial?

Well, if what you just said is true, it would have been so easy for defense counsel to make that point to the trial judge.

I mean, that would be a good argument if there hadn't been the side bar conference before this rebuttal was made.

But, surely, the time to make that argument would have been... if defense counsel agreed with you, he would have said to the judge, what are you talking about.

We didn't urge the jury that he hasn't had a chance to testify here.

Why didn't counsel say that?

Your partner was defense counsel?

Mr. Durham: Yes, sir.

Unidentified Justice: Are you husband and wife?

Mr. Durham: No, sir.

We are not.

In fact, Mr. Durham, I don't want to mislead you, is not a partner.

A junior member of the first at best.

To respond to your comment, at the side bar, defense counsel heard the prosecutor say, I object to defense arguing about the defendant not getting a chance to explain, and the court sustained that objection and in sustaining that objection, the court went on and gave a speech, as it were, covering the constitutional issue, the Fifth Amendment privilege, not to testify and not to have that taken as an inference of guilt, and the trial court further dealt with the legal question of whether or not under the invited response doctrine it would be permissible to comment on the defendant's silence.

The trial court ruled on an objection.

A little later on in that same bench conference, at another objection that the prosecutor presented to the trial judge, the trial judge turned to Mr. Durham and said,

"What do you have to say for that? "

, and Mr. Durham said,

"I appreciate the opportunity of being heard before I am condemned. "

I contend that in that record, without any testimony from defense counsel at this point, in that reference, he's referring back to the comment that the judge had just said he would allow the prosecutor to make.

When an objection is made in a trial court and that objection is sustained, as a practical matter, as an advocate in the trial procedure, it would be tremendously impossible, really, to object again to each ruling of the court that's adverse to my side.

If that were the case, then what we have done is re-established the rule that exceptions be taken to rulings which are adverse and which you would have the court have an opportunity to correct contemporaneous with the alleged error, so that, later, you could appeal it.

Unidentified Justice: I am not going to the point of whether there's an objection or not.

It's really much more basic than that.

One would have expected him not merely to object, but assuming he objected, to say what are you talking about, I didn't make any comment about his being prevented from testifying here.

That's the reading of this language that you're urging upon us, and if that was the reading that defense counsel took of it, it seems to me he would have been outraged at the suggestion that the Government should be able to reply to a comment that he never made and there's nothing in the transcript that suggests anything like that.

Mr. Durham: If the Court please, it's the Solicitor General's Office who has framed the question presented, that the Government prevented the defendant from explaining his side of the story.

It is the Solicitor General's Office on appeal in this Court that gives rise to my objection to that really hypothetical situation that doesn't apply to this Court.

Unidentified Justice: Trial judge understood defense counsel's argument to... like the Government.

Mr. Durham: I'm sorry?

I don't understand.

Unidentified Justice: Didn't the trial judge understand defense counsel's argument like the Government did?

Mr. Durham: If--

Unidentified Justice: At least he permitted the Government to answer it.

Mr. Durham: --If I may quote the prosecutor at the side bench conference, he said,

"Several things in that argument I took quite a bit of offense to. "

Unidentified Justice: Where are you reading from, Ms. Durham?

Mr. Durham: I beg your pardon.

Page 24 of the Joint Appendix.

Unidentified Justice: Thank you.

Mr. Durham: At the bottom of the page.

"Several things in that argument I took quite a bit of offense to. "

"He comes up and starts going to the jury and he, as in his ethics, said they tried to bring proof of other claims that they submitted were false and he stands as an attorney and he knows darn well that the Government fully intended to bring other claims that were false. "

"Mr. Durham, I think, has stepped beyond the bounds of good argument when he's talked about the defendant's were not given by the Government the right to explain. "

"I think he has opened the door and has, in fact, allowed me to comment. "

If I may further quote the paragraph which has been pointed out by the Solicitor General as being the paragraph in which defense counsel is said to have told the jury that the Government prevented the defendant from explaining, if I may refer you to page 19 of the Joint Appendix, it comes immediately after discussing the large difference between the value in the inventory list of a $106,000 to offer as proof on a $30,000 insurance claim; that is, to get $30,000 worth of money from the insurance company, the defendant offered an inventory list of burned furnishings that amounted to $106,000 and on that basis of that large difference between the amount of money claimed and the value of the furniture listed on an inventory list that was headed by the defendant at the time it was submitted to the insurance company,--

Unidentified Justice: Well, Ms. Durham, to get back a moment from what the trial court understood, if you go back to page 25 of the transcript, right after that section that you just read about where the prosecutor, Mr. Washko, says,

"Mr. Durham, I think, has stepped beyond the bounds of good argument, that defense was not given by the Government the right to explain. "

then the Court says,

"That is the part that bothers me. "

Mr. Washko says,

"That bothers me. "

"I think he opened the door. "

The Court,

"Yes, Mr. Washko, I will tell you what, the Fifth Amendment ties the Government's hands in terms of commenting on the defense failure to testify, but tying his hands is not putting you into a boxing match with your hands tied behind your back. "

It seems to me it's very difficult to argue from that transcript that the trial judge didn't understand the defense summation just as the Government says it should be understood.

Do you disagree with that?

Mr. Durham: --Yes, Your Honor, I do.

Unidentified Justice: Why?

Mr. Durham: Because immediately before this paragraph in the defense counsel's argument on page 19 of the Joint Appendix, what led up to this statement--

Unidentified Justice: But you are just asking us to interpret in the abstract what do these bunch of words mean that defense counsel said.

Now, that may be a perfectly proper part of your argument, but insofar as the point as to how the trial judge, who is sitting right there and heard it, goes, it seems to me that you can't just go back to another section of the argument because the trial judge indicates he understood it the way the prosecutor understood it.

Mr. Durham: --Well, I submit to you, Your Honor, that the trial judge was mistaken in his interpretation.

I submit that he took the worst possible interpretation to the defense counsel's entire argument, and that if the prosecutor is allowed some leeway in the mixture of syntax and the disjointed statements that occur in the extemporaneous nature of the closing arguments, that certainly it should be allowed to the defense counsel.

In the defense counsel's argument, he said to the jury,

"In trying to address the evidence given by thirty-eight witnesses who offered, for the most part, very circumstantial incidents, almost all of which could in the record be explained by an innocent interpretation of the circumstances-- "

Unidentified Justice: Ms. Durham, assume you can't persuade us on that and that we sort of think it was to be understood the way the trial court understood it, all right, that's not the end of your case.

You would still say, you would still say that we should affirm you, right?

Mr. Durham: --Your Honor, I would say that if I assumed arguendo that, in fact, the question presented did occur and there was some case in which the defense counsel argued to an American jury that the Government prevented the defendant from taking the witness stand and explaining his side of the story, I submit to you that a group of American jurors already know that.

In fact, this Court has long recognized in a long tradition of cases that were reiterated and cited in the Griffin case that juries have a natural inclination to be suspicious of a defendant who does not take the witness stand and deny the allegations and the charges.

It's one thing for the jurors to have a natural suspicion of someone who doesn't deny charges, but it's quite another for the United States Attorney to reinforce those suspicions by commenting on the defendant's silence.

Unidentified Justice: Well, now, I'm giving you a situation in which, if you accept the trial judge's interpretation of it, defense counsel has said the Government has prevented my client from testifying and explaining to you what really happened here, now what could have been done to remedy that, if he had said that?

You're saying nothing, nothing need to be done at all?

What the Government says is all we want to do is come up and say that's not true.

Mr. Durham: Certainly, Your Honor, if the defense... under the Young decision, if the defense counsel were standing there saying that to the jury, the Government has prevented this defendant from explaining his side of the story, at that point, ideally, under the Young decision, the court should interrupt and take jurative measures in the form of instructions to the jury and admonishments to the--

Unidentified Justice: This is what your case hangs on.

You would rather have the judge tell the jury this man could have taken the stand himself if he wanted to.

It wasn't the Government that prevented him.

It was his own decision.

You'd rather have the judge tell that to the jury than have the United States Attorney tell it to the jury?

Wouldn't you much rather have the United States Attorney tell it?

They might be inclined to disbelieve it.

Mr. Durham: --I do not believe--

Unidentified Justice: If the judge tells them,--

Mr. Durham: --I believe there is more than the two alternatives you suggest.

If the defense counsel is saying or if the trial judge is interpreting the defense counsel as saying that the Government is preventing his client from taking the stand, then, at that point, the trial judge can interrupt the defense counsel and say, I believe you are misleading the jury.

It is the Government, in fact, who is keeping the defendant from explaining his side of the story now.

Unidentified Justice: --Why is it okay for the trial judge to do that, but not okay for the United States Attorney to do that?

Certainly, the trial judge cannot comment upon the defendant's failure to take the stand, can he?

The trial judge can't say, by the way, ladies and gentlemen, you may have noticed that the defendant didn't take the stand.

The U.S. Attorney can't do that nor can the trial judge, but somehow, in this case, you're telling us it would have been all right for the trial judge to do it, but it's not all right for the United States Attorney.

I don't understand how that can be.

Mr. Durham: If the trial judge should interrupt defense counsel's argument and call him to the bench and tell them that he's misstating the law or if he simply said it in the presence of the jury, you are misstating the law, counsel, and then counsel, if he doesn't understand, if the judge has interpreted what he's saying as meaning that the defendant wasn't allowed to take the stand, counsel can say, may I approach the bench, and then find out that the judge is interpreting what he's saying in that way.

Unidentified Justice: To a violation here is that the United States Attorney said what the... the very thing that the trial judge should have said, and that's a constitutional violation.

Mr. Durham: Sir, I am not suggesting that either the judge or the United States Attorney should say in the presence of the jury that the defendant could have taken the witness stand and testified and explained himself.

I am not saying that.

There are other ways that a court can deal with such a statement if it should occur.

Even to the extent of declaring a mistrial according to the Young decision.

Crucially, though, an essential question here in this and in any question about a comment on the defendant's failure to take the witness stand is the context in which it was heard by the jury, and the ultimate question is whether or not it injected into the jury deliberations something outside of the lawfully, validly-offered evidence.

I submit to this Court that this jury, in fact, was prejudiced in arriving at its decision that Mr. Robinson was guilty as charged.

If there are no further questions, then I will rest.

Chief Justice William H. Rehnquist: Thank you, Ms. Durham.

Mr. Robbins, you have two minutes remaining.

Mr. Robbins: I have no rebuttal, Your Honor.

Chief Justice William H. Rehnquist: Very well.

The case is submitted.

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