# Harris v. Nelson/Dissent Black

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Stewart
United States Supreme Court
394 U.S. 286
Harris v. Nelson
Argued: Dec. 9, 1968. --- Decided: March 24, 1969
Mr. Justice BLACK, dissenting.
I would affirm the Court of Appeals' holding in this case, Wilson v. Harris, 378 F.2d 141, that 28 U.S.C. § 2246 does not authorize discovery in habeas corpus proceedings. Upon affirmance I would not go further and write what appears to me to be in effect an advisory opinion directing the trial court t formulate some kind of new legal system for discovery in this kind of case. Fully agreeing with the Court's statement that '(w)e have no power to rewrite the Rules by judicial interpretations.' I go further and doubt that we have power to direct lower courts to write new laws providing for discovery in habeas corpus cases. This is a complicated field of law making and I think we should not enter this field in the absence of some valid delegation of legislative power by the Congress. Since I cannot agree that Congress has granted us such power, I am unable to go along with the Court's opinion.
There have been many complaints among members of the bar about many Court-made rules of procedure and I would venture the suggestion that in no field have the number of those complaints exceeded the complaints in this particular field of discovery. I regret that I cannot 'assume,' with the Court, that given blanket authority, 'courts in the exercise of their discretion will (not) pursue or authorize pursuit of all allegations presented to them.' This case makes me skeptical about such an assumption. Here Walker was convicted in a state court of having marihuana in his possession. After exhausting all state remedies he asked the federal courts to let him out of jail. He apparently did not allege his innocence, does not now do so, and this Court apparently does not now consider the question of guilt or innocence in this case. What he does allege is that the trial court made an error in admitting certain evidence against him. It is not alleged that the evidence was not relevant against him or that the verdict resting on that evidence was not a truthful, honest verdict. We must, therefore, assume that he was and is guilty of the crime of which he was convicted. See my dissent in Kaufman v. United States, 394 U.S. 217, 231, 89 S.Ct. 1068, 1076, 22 L.Ed.2d 227, decided today. What is relevant, however, and all that is alleged, is that the evidence used against him, presumably the marihuana, was found on his premises as the result of a search made after a statement by a person to a policeman, which statement the allegations now charge 'was not shown to have been reliable' and which was made by a person 'who was in fact unreliable.' It may be possible that a new trial over this issue can establish that the person telling the officer that marihuana could be found on Walker's premises was an 'unreliable' person and that the statement he made was also 'unreliable.' But the fact remains that the marihuana was found where the unreliable person's unreliable statement told the officer it would be found. Consequently it appears to me that the present case against a defendant whose guilt has been proved to a jury beyond a reasonable doubt should not be taken as an appropriate one on which this Court lays the groundwork for a new and vast judicial legislative rule-making program.
Perhaps it might not be considered amiss mildly to suggest that in cases like this, where records contain no question at all about guilt, some convictions should at some time be treated as final and no longer subject to challenge, at least by collateral attack. Although I admit that Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), go a long way, I had not previously thought that even these cases could support what the Court is doing in this case.
Mr. Justice HARLAN, whom Mr. Justice WHITE joins, dissenting.
I agree that neither Rule 33 of the Federal Rules of Civil Procedure nor any statute authorizes the interrogatories sought in this case. I further agree that district courts do have power to require discovery when essential to render a habeas corpus proceeding effective. But I would make it explicit that such power is narrow and should be exercised sparingly, and would not set the district courts 'at large,' as I fear today's opinion may be taken to do.
This case furnishes an apt illustration of th differences between my viewpoint and what seems to be that of the majority. As stated more fully in the Court's opinion ante, at 288-289, Walker claimed that marihuana admitted at his trial was seized incident to an arrest which was based upon information supplied by an unreliable informant. After the District Court had ordered an evidentiary hearing, Walker directed to the respondent warden a series of interrogatories designed to establish the unreliabilty of the informant. The interrogatories asked whether the officer who arrested Walker had made previous arrests or searches on the basis of information given by the same informant; if so, whether such arrests or searches resulted in convictions; and whether the informant had ever supplied information which the officer considered unreliable.
It seems apparent that this discovery was not essential to an adequate habeas proceeding. All of the information sought was known to the arresting officer. Walker knew the officer's identity; in fact, the officer had testified at the preliminary hearing and at trial on the very issue of the informant's reliability. Hence, there is no reason to believe that all of the information could not have been obtained by calling the officer as a witness at the habeas hearing. Although I realize that the parties have not directed their arguments to this precise question. I am satisfied that on the face of things Walker cannot possibly show that this discovery is essential to a fair proceeding. Accordingly, I would affirm outright the judgment of the Court of Appeals.
The more troublesome aspect of the Court's opinion is its long-run implications. For it can be taken as suggesting that the best solution to the problem of discovery in habeas corpus proceedings is to permit each district court to devise 'appropriate modes of procedure' on a case-by-case basis. As regards the immediate future, a case-by-case approach may be unavoidable, since there is at present no body of applicable discovery rules and the district courts must have power to order discovery which is essential to effective disposition of habeas applications. But I consider that from a broader standpoint the problem of habeas discovery should be dealt with not case by case but through exercise of our rule-making power. See 28 U.S.C. § 2072.
There are several reasons for believing that a case-by-case approach will be unsatisfactory in the long range. It seems to me that in fairness both to habeas petitioners and to their adversaries, the discovery procedures which are available in such actions should be uniform throughout the federal system and not dependent upon the varying 'discovery attitudes' of particular district judges. If discovery procedures are developed case by case, there will at the least be a very long period during which procedures will differ from distri t to district. Even assuming that a coherent body of rules finally will emerge because of the unifying influence of appellate decisions, it is unlikely that the rules thus generated will be the best that could have been devised. Appellate courts, including this one, are imperfectly informed both about the extent of the need for additional discovery in habeas corpus and about the procedures best suited to meet those needs and to achieve prompt dispatch of habeas proceedings. They are, therefore, poorly situated to lay down guidelines for the district courts. Moreover, discovery rules fashioned in the course of day-to-day adjudication are likely to suffer from the limitations which accompany that process.
Such considerations lead me to think that, in the longer view, the formulation of discovery rules can best be accomplished through use of the power which Congress has conferred upon us to establish general rules governing civil procedure in the federal district courts. By using this method of rule making, the advice of the Judicial Conference of the United States and its appropriate advisory committees could be obtained. These bodies are well equipped to assess the dimensions of the discovery problem and devise apt solutions. Their deliberations would be free from the time pressures and piecemeal character of case-by-case adjudication. And the resulting rules would be uniform throughout the federal system.
My conviction that this would be the best course is strengthened by recollection of our decision in Miner v. Atlas, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960), and the events which followed. In Miner we held that a District Court sitting in admiralty had no power to order the taking of an oral discovery deposition. Responding to a suggestion in our opinion, see 363 U.S., at 651, 80 S.Ct. 1300, and to earlier stirrings at the bar, the Judicial Conference and the Advisory Committee on General Admiralty Rules swiftly proposed new Admiralty Rules authorizing certain additional kinds of discovery, including oral depositions. After approval by this Court and submission to Congress, as required by statute, the new Admiralty Rules went into effect a little more than a year after our decision. There is no reason to think that the Judicial Conference and the advisory committees would not be equally cooperative in this instance.
For the reasons stated in Part I of this opinion, I would affirm the judgment of the Court of Appeals in this case.

## Notes

* ↑ My Brother STEWART bases his dissent in this case upon my own dissenting opinion in Kaufman v. United States, 394 U.S. 217, 242, 89 S.Ct. 1068, 1082, 22 L.Ed.2d 227, in which I have taken the position that in actions brought by federal prisoners under 28 U.S.C. § 2255 Fourth Amendment claims should be entertained only upon a showing of 'special circumstances.' I prefer to rest my disagreement with the result in this case upon other grounds, for two reasons. First, this case is not on all fours with Kaufman, since this was a federal habeas action by a state prisoner rather than an action by a federal prisoner under § 2255. The Kaufman question has not been briefed or argued in this case, and there may conceivably be significant distinctions between the two types of proceedings. See, e.g., Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378 (1964). Second, although this case happens, like Kaufman, to involve a search-and-seizure issue, the Court's reasoning here plainly applies to all claims cognizable on federal habeas corpus. Hence, it seems appropriate to rest my dissent upon broader grounds, which also appeal to my Brother WHITE.
* ↑ For a brief account of the role played by these bodies in the making of civil rules, see Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 357-358 (1967).
* ↑ See 28 U.S.C. § 2072, which also specifies that the proposed rules shall not take effect for 90 days after they have been reported to Congress.
* ↑ See Admiralty Rules 30A-30G, 32, 32B-32D, which were either added or amended effective July 19, 1961.
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