# Carnley v. Cochran/Concurrence Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Harlan Black Douglas
United States Supreme Court
369 U.S. 506
Carnley v. Cochran
Argued: Feb. 20 and 21, 1962. --- Decided: April 30, 1962
Mr. Justice DOUGLAS, concurring.
While I join the opinion of the Court and the separate opinion of Mr. Justice BLACK, I wish to add a word to the reasons Mr. Justice BRENNAN and I gave in McNeal v. Culver, 365 U.S. 109, 117-119, 81 S.Ct. 413, 5 L.Ed.2d 445, for overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595.
Petitioner, an admitted illiterate, was forced to try his case to a six-man jury. There is no record of the proceedings at which the jury was impaneled. There is nothing to show that petitioner was told of his right to challenge individual veniremen, or the panel as a whole, or that he challenged anyone for cause or exercised any of the six peremptory challenges granted him by Florida law. Fla.Stat., 1959, § 913.08, F.S.A.
It is certain that he could have made no challenge to the panel as a whole. Such challenge must be in writing. Fla.Stats., 1959, § 913.01, F.S.A., and the Florida Supreme Court tells us he could not write. But even if he could, it is doubtful that he would have been able to show an improper method of selection or even discrimination, because he was confined for a lengthy period prior to trial, five months of which were alleged to have been spent in solitary confinement. He did not have an opportunity, therefore, to gather the factual evidence necessary to sustain a possible challenge to the panel. The Florida statute, moreover, explicitly requires that the written challenge specify the facts on which it is based. Ibid.
Had petitioner been able to write, and had he access to the facts, he still would not, in all probability, have been able to build a legal argument sufficient to challenge the panel. He is a man of low intelligence. Some of the grounds for challenging the panel that might have been invoked by petitioner turn on difficult questions of state law, as where it is alleged that the legislature has passed a special, or local, law providing for the summoning and impaneling of grand and petit jurors. Article III, § 20, of the Florida Constitution, F.S.A. prohibits such 'special' laws. It is not always clear, though, whether a particular law is 'special' or 'general.' See, e.g., Hysler v. State, 132 Fla. 200, 181 So. 350; 132 Fla. 209, 181 So. 354; State ex rel. Green v. Pearson, 153 Fla. 314, 14 So.2d 565. The sophisticated nature of the arguments necessary to attack a law as 'special' would almost always be beyond the comprehension of one unlearned in the law.
In Florida, a plea of abatement is the usual manner of testing the legality of a jury list. In some cases, a proceeding in mandamus has been deemed a proper remedy, as where it is claimed that the county commissioners have erred in the manner in which they selected the panel. State ex rel. Jackson v. Jordan, 101 Fla. 616, 135 So. 138. Often a simple oral challenge to an individual juror can achieve just as much, as where an accused contends a venireman does not have the 'qualifications required by law.' Fla.Stat., 1959, § 913.03(1), F.S.A. Yet obviously an illiterate cannot be expected to know these niceties of criminal procedure.
Assuming that an accused does decide to challenge prospective veniremen, either peremptorily or for cause, he must then decide how to secure the maximum benefit from his peremptory challenges. Florida statutes provide at least 12 independent grounds for a challenge for cause. Fla.Stat., 1959, § 913.03, F.S.A. Ignorance of a ground for challenge is no defense. Denmark v. State, 43 Fla. 182, 31 So. 269; McNish v. State, 47 Fla. 69, 36 So. 176; Webster v. State, 47 Fla. 108, 36 So. 584. Objections to qualifications of jurors not raised at the trial will not be considered on appeal. McNish v. State, supra; Crosby v. State, 90 Fla. 381, 106 So. 741.
Where the trial court excuses a juror on its own motion, the accused has a right to object. The objection must be timely made, and the grounds therefor clearly stated. It is too late to object once the juror has been excused. Ellis v. State, 25 Fla. 702, 6 So. 768. On appeal, the accused must be able to show that the action of the court was prejudicial, or constituted an abuse of discretion. Williams v. State, 45 Fla. 128, 34 So. 279; Peadon v. State, 46 Fla. 124, 35 So. 204.
The special difficulties facing an accused in a jury trial do not end with challenges to the panel or individual jurors. Florida prohibits the trial judge from commenting on the weight of the evidence, Lester v. State, 37 Fla. 382, 20 So. 232; Leavine v. State, 109 Fla. 447, 147 So. 897; Seward v. State, Fla., 59 So.2d 529, or from expressing an opinion that the accused should be convicted, Wood v. State, 31 Fla. 221, 12 So. 539, lest he influence the jury in its decision. But if he did make such comment, and the accused took no exception, the error will be deemed waived on appeal (Surrency v. State, 48 Fla. 59, 37 So. 575; Smith v. State, 65 Fla. 56, 61 So. 120), except where the interests of justice would not be served. Kellum v. State 104 So.2d 99 (Fla.Ct.App.3d Dist.).
Hearsay evidence takes on added importance in jury trials. It is excluded if prejudicial. Owens v. State, 65 Fla. 483, 62 So. 651; Alvarez v. State, 75 Fla. 286, 78 So. 272. But if admitted without objection, it is generally regarded as having been received by consent. Sims v. State, 59 Fla. 38, 52 So. 198. An objection after a question has been answered is sometimes held to come too late. Schley v. State, 48 Fla. 53, 37 So. 518; Williams v. State, 58 Fla. 138, 50 So. 749; Sims v. State, supra. Yet a motion to strike may achieve the same result. Dickens v. State, 50 Fla. 17, 38 So. 909. In a rapid-fire exchange of questions and answers by the prosecution and a witness, a defendant without the assistance of counsel will oftentime find himself helpless to object or even to conceive grounds on which an objection to hearsay will lie. Indeed, what constitutes hearsay is itself a difficult question, on which judges may not always agree. See, e.g., Royal v. State, 127 Fla. 320, 170 So. 450.
Once the evidence is in, an accused in Florida has the right to have the jury instructed on the law of the case before any final arguments are made. 'The Judge's charge following immediately upon the conclusion of the evidence may enable the jury to obtain a clearer and more accurate conception of their duties in the particular case than if they were required to wait until after the argument of counsel to hear the law of the case from the judge.' Smithie v. State, 88 Fla. 70, 76, 101 So. 276, 278. This right is waived by a failure to take exception to the procedure adopted by the court. Defects in the instructions of the court will likewise be deemed waived, where the accused fails to make timely objection. White v. State, 122 So.2d 340 (Fla.Ct.App.2d Dist.); Williams v. State, Fla., 117 So.2d 473.
Intricate procedural rules are not restricted to criminal trials in Florida. Similar rules, equally as complex and confusing to the layman, may be found in the criminal statutes of the other States. I assume that they might not be applied with the same vigor against a layman defending himself, as they would against one represented by a lawyer. Yet even so, the rule of Betts v. Brady projected in a jury trial faces a layman with a labyrinth he can never understand nor negotiate.
As a result, the jury system-pride of the English-speaking world-becomes a trap for the layman because he is utterly without ability to make it serve the ends of justice.

## Notes

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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