# Griffin v. United States (336 U.S. 704)/Dissent Murphy

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* Opinion of the Court
* Dissenting Opinion Murphy
United States Supreme Court
336 U.S. 704
Griffin v. United States (336 U.S. 704)
Argued: Dec. 15, 16, 1948. --- Decided: April 25, 1949
Mr. Justice MURPHY, dissenting.
Baxter Griffin has been sentenced to die for the murder of Lee Hunter. His justification for the killing was self defense. He has found that Hunter had an open knife in his pocket when he was shot. He seeks a new trial on the basis of that newly-discovered evidence. The first question is whether that evidence would be admissible at a new trial.
It is clear to me that it is admissible. Uncommunicated threats and designs on the defendant cannot show his motive in killing, but they may demonstrate that a design on the defendant did in fact exist. This is the rule in 'virtually all Courts.' 1 Wigmore, Evidence (3d Ed., 1940), § 111, p. 547. It is certainly the federal rule. Wiggins v. People in Territory of Utah, 93 U.S. 465, 23 L.Ed. 941; Trapp v. Territory of New Mexico, 8 Cir., 225 F. 968. And it is a thoroughly desirable rule. A defendant should be entitled to present the jury with evidence lending credence to his theory of the case. Griffin's case is a good example of the policy behind the rule: for the open knife is the only supporting evidence of his self-defense testimony.
There can be little question that the open knife is an element in the proof of a design on the defendant, and is admissible under the rule stated above. But some Courts have made exceptions to this rule, three of which might be considered relevant in this case. Wigmore, supra, § 111, (3). The exceptions have a central foundation: distrust of the jury's ability to evaluate this kind of evidence. Many rules of exclusion are bottomed on this distrust, of course. But it is clearly misplaced when directed at the jury's capability in weighing the value of uncommunicated threats in a murder trial. The evidence is simple; it is not calculated to inflame; it is far more difficult to fabricate than are communicated threats; the prosecution can easily question its importance; and it provides solid support for a defendant's self-defense theory. While in Griffin's case the evidence is stronger for the prosecution than it was in Wiggins,' supra, that difference is not a distinction. The very plea of self-defense raises doubt on that question. Defendant's testimony, supporting his plea, raises further doubt.
It is clear that this evidence might change the jury's verdict. To make admissibility depend upon mechanical and often illogical variations in the size of the doubt in a judge's mind is an invasion of the jury's function. 'It is pertinent here to remark, that both the effect of (the witnesses') testimony and (their) credibility was to be weighed by the jury.' Wiggins v. People in Territory of Utah, supra, 93 U.S. at page 469.
The Court makes little attempt to justify the exclusion of this evidence. Instead, it cites Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382, 166 A.L.R. 1176. The Fisher case declined to upset an evidence rule that had 'long been the law of the District of Columbia': that 'mental deficiency which does not show legal irresponsibility' is not 'a relevant factor in determining whether an accused is guilty of murder in the first or second degree.' The Court stated the general rule that 'matters relating to law enforcement in the District are entrusted to the courts of the District' in a case in which a reversal would have been a 'radical departure from common law concepts' and thus 'more properly a subject for the exercise of legislative power or at least for the discretion of the courts of the District.' 328 U.S. at pages 471, 473, 476, 66 S.Ct. at page 1322.
In Fisher, the Court considered the judiciary's case by case method ill suited for the sweeping changes which were and are necessary in the law of insanity. It recognized that an indirect attack on the problem, by admitting evidence of one's past life as relevant in premeditation, might lead to the trial of one's whole life rather than of the specific offense charged.
Despite the radical nature of the change, three members of this Court thought that the judiciary should make an attempt to correct the injustice of the common-law rules. Those arguments were rejected. But they were rejected only upon the limited basis to which I have referred.
Today the Court extends the Fisher rule. It calls Fisher a holding that no District of Columbia rules of evidence are reviewable in this Court. The Fisher case is no authority for such a proposition. There is no warrant for it in statute. And our denial of thirteen petitions for certiorari in death cases in the District in the last ten years cannot establish such a proposition. In the last ten complete Terms of Court, only 5.1% of all petitions for certiorari in forma pauperis have been granted. And the percentage of petitions for certiorari, other than in forma pauperis, granted in the same period has fluctuated between 14.9 and 22.7. When we deny nineteen out of twenty petitions in forma pauperis, and four out of five of the other petitions, the denial of petitions in thirteen capital cases in ten years reflects no greater policy in those cases than it does in any other class of cases. This is particularly true when the sample fifteen cases-is so small compared to the number of cases we are asked to review, and when the sample considers only murder cases. 'Nothing § so fallacious as facts, except figures.' For figures which do not reveal the peculiar facts of each case cannot reflect a policy of any kind.
Self-limitation of our appellate powers may be a worthy thing, but it is not attractive to me when the behest of Congress is otherwise. Congress has given this Court the ultimate power to review District of Columbia trials. No matter how the decision is phrased, the Court's power in the premises is such that it is responsible for the evidence rule it asks the Court of Appeals to expound. There is no 'radical departure from common law rules' in Griffin's case, as there was in Fisher's. We should declare the evidence admissible.
If the evidence is admissible, a motion for a new trial should be granted. A contrary determination would be an abuse of discretion, for there is manifestly a reasonable possibility that the jury would lessen the verdict of first degree murder.
The CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice RUTLEDGE join in this opinion.

## Notes

* ↑ Annual Report of the Director of the Administrative Office of the United States Courts 1948, Table A1.
* ↑ See United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562.
* ↑ The Government concedes that the 'reasonable possibility' standard is proper, at least in a capital case. Compare Wagner v. United States, 9 Cir., 118 F.2d 801; Evans v. United States, 10 Cir., 122 F.2d 461; Weiss v. United States, 5 Cir., 122 F.2d 675; Berry v. State of Georgia, 10 Ga. 511.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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