Richard F. Watt: Mr. Justice Black, if the Court please. This matter is before the Court in a writ of certiorari to the Court of Appeals for the Seventh Circuit, which in March of 1965 affirmed the dismissal of a stockholder's derivative suit which had been filed in the District Court for the Northern District of Illinois. Very briefly stated, and I will come back in a moment to give more detail. The ground for dismissal was that the plaintiff shareholder had filed a false verification required by Rule 23 (b) of the Federal Rule of Civil Procedure. Federal Rule 23 (b) specifies that in derivative suits, the complaint shall be verified and it also specifies certain matters which shall be set out in the complaint. The petitioner's view that this raises an important issue under the Federal Rules and one that goes far beyond the outcome of this particular case because it poses directly the question as to whether a procedural Rule can be used to impose upon admittedly a poorly educated and ignorant stockholder, a very substantial obstacles to her bringing a derivative suit where alleging misconduct on the part of officers and directors of the corporation in which she own stock. The record is clear that the petitioner here is a foreign-born, ill-educated seamstress in her mid 60s. As a matter of fact, the record on the deposition below indicate that she had difficulty in spelling her son-in-law's name, his name is Irving Brilliant. The complaint here was filed in December of 1963. It consists of 11 counts, eight of which alleged violations under the Securities Act of 1933 and the Securities of Exchange Act of 1934. Very briefly, it charges that the officers and directors who are named as defendants, wrongfully and in violation of the Securities Act made used of the corporation for the purpose of purchasing shares of stock of the corporation and also, Hilton Credit Corporation and that included in the shares of stock which were purchased were very large amounts of shares from the officers and directors themselves with the result that approximately $12 million of Hilton Hotels Corporation funds that were used for this purchases. Approximately $4,800,000, were used to purchase the shares of the officers and directors, and those funds were paid to those officers and directors for the purchase of their stock. The complaint is filed, was signed by three attorneys and it was verified by Mrs. Surowitz in accordance with the provisions of Rule 23 (b). She verified as true and correct, certain facts, very largely the facts of her stock ownership and the other facts which would indicate that she has standing or status to sue as a stockholder. The balance that is the charges of wrongdoings were verified by her on information and belief. Before answer was filed, the defendant moved to take Mrs. Surowitz's deposition. Upon receipt of that notice, we appeared in Court and asked the District Court to postpone the taking of the deposition until the defendants had filed some pleadings or answers so that we would have a better idea as to what issues might be raised. The District Court declined to postpone the deposition, and therefore, the deposition was taken in February of 1964 prior to any pleading having been filed by the defendants. The deposition was concluded and on the same afternoon, at approximately 3:30, as counsel for the petitioner, we were served with notice that on the next morning, the defendants would appear before the district judge and present a written motion. Now, the motion appears in the transcript of record at page 117. In that motion, two grounds were asserted for dismissal. One, that the pleading was a sham pleading; and secondly, that Mrs. Surowitz was not a proper party plaintiff. The following morning, when we appeared in Court, the defendants filed an affidavit which indicated that the records of the corporation showed that she had not become a stockholder of record until October of 1963 and this was presumably the basis for asserting that she was not a proper party plaintiff because she did not have the contemporaneous stock ownership required by Rule 23 (b). The district judge at that time initially was inclined to have the matter argued immediately but at our request, he gave us 15 days in which to file affidavits. In response to the motion therefore, we filed two affidavits, the affidavit of Irving Brilliant, Mrs. Surowitz's son-in-law, and the affidavit of Walter Rockler, one of the attorneys. The matter was argued later on March and the Court at the end argument announced the order would be one of dismissal. Thereafter, at the Court's request, counsel for the defendants' prepared detailed and lengthy findings of fact and conclusions of law which were discussed in Court on March the 27th and the order of dismissal was actually entered on March 30, 1964. In Mrs. Surowitz's deposition, she was able to testify that her son-in-law had purchased stock for her with her money and at one point, she indicated the stock was purchased in 1957. That in late 1962 or early 1963, she received certain communications from Hilton Hotels Corporation turned them over to her son-in-law and in effect asked him what they were all about. Now, later in March after a further discussion between Mrs. Surowitz and her son-in-law, he brought to her a letter of protest which is a document attached to the deposition. And in that letter of protest which she signed, stated that she opposed as improper the two stock purchase transactions which I have mentioned. In the summer of 1963, the dividend on Hilton Hotels Corporation was passed. She again spoke to her son-in-law. He advised her that he was looking into the matter and it was of the opinion that certain officers and directors had acted improperly. Subsequently, in December, the son-in-law brought the complaint to her which had been prepared by counsel in Chicago. He read and explained it to her, and following that, she signed the verification. The deposition also indicates and we do not dispute this at all that so far as her ability to explain or answer the basis for the complaint in the sense of articulating the facts or the basis for certain allegations, she was unable to do that. She answered repeatedly that she did not know. She could not say it on her own words. She did not understand. She didn't know. She left it to her son-in-law. She also stated, however, that she knew that her stock was not right and that she indicated that when the complaint was brought to her after these previous discussions that I've indicated following her son-in-law's explanation, she signed it. The affidavits of Mr. Brilliant and Mr. Rockler indicate, it seem to me beyond question that before this complaint was prepared and filed, a very substantial amount of investigatory in research work had been done both by Mr. Brilliant and by Mr. Rockler and his associates in Chicago. A great deal of effort was made to go to records, to track down transactions, to look at financial statements and so on, and those are set out in some detail. Mr. Brilliant also states in his affidavit that when he presented the complaint to his mother-in-law, Mrs. Surowitz, he told her that it represented the result of work that he had done and that the attorney in Chicago had done, and that it was his opinion that it was soundly based. I think it is important to note in this connection that Mr. Brilliant himself has legal training. He has acted as an investment counselor for a number of years and it is quite clear from the record, that since 1957 in connection with the small investment she has made, Mrs. Surowitz has relied upon her son-in-law for his recommendations and for his judgment. Now, the Court of Appeals in affirming, held at the verification was false and it held that it was false because in her deposition, Mrs. Surowitz indicated that she lacked requisite knowledge and understanding to know what she was verified. The actual words of the Court which I think are significant for purposes of the issue now here at the -- at record 237, the Court said, she lacked completely -- she completely lacked any knowledge of the basis of the complaint at the time when she signed the same and swore to the verity thereof. At the bottom of 235 and 36, the Court said that the verification requirement, that is Rule 23 (b), is designed to compel a plaintiff to begin such suit with sufficient knowledge of facts and information to show by his verification that there is a substantial basis to support the complaint which she made. It is our view that this is not a proper interpretation of Rule 23 (b) and that the decision of the Court of Appeals should be reversed, primarily for two reasons. Rule 23 (b) is a procedural Rule. We believe that should be liberally construed particularly in light of the important public policy considerations where it's in -- where -- which is in -- which are involved in causes of action arising under the Securities Act and the intent of Congress that stockholders would act in effect as ancillary enforcers of those Acts. Secondly, we believe that if one studies the history of Rule 23 (b). It is quite clear that its principle purpose was to prevent collusive resort to the federal courts and that it was not intended and no Court has held that it was intended to impose a kind of comprehension test upon a plaintiff stockholder before that stockholder would have a right as the instigator to bring a corporate cause of action to Court. Very briefly, let me indicate why in the context of the facts here, we believe the public policy considerations are significant. It is no longer the case in this country that stocks are held only by a relatively limited class of persons. All the statistics indicate that stock ownership is becoming much more widespread. Significantly enough, the largest single group of stockowners in the United States today are housewives and unemployed women. Elderly women, in particular, hold substantial bodies and quantities of stock. The Securities Act, if one looks to the legislative history, were particularly designed to protect unknowledgeable, and gullible, and uninformed, and uneducated individuals who might invest in the stock market. Consequently to Rule -- to construe Rule 23 (b), as a qualification upon the comprehension of a stockholder before that stockholder can bring a derivative suit is very likely to bar the very individual sought to be protected by the Securities Act. Now, from coming to the courts at all with complaints based upon alleged wrongdoing by corporate officers and directors.
Abe Fortas: Does 23 (b) require verification by the plaintiff?
Richard F. Watt: It does not in so many words, Your Honor. There is no definitive holding on that point by this Court and as a matter of fact, there is a decision by the Court of Appeals for the Seventh Circuit which we did not cite in our brief which cast serious doubt upon the right of anyone other than the plaintiff himself could verify. That is Consumers Gas Trust Company versus Quimby, it's found at 137 Federal 882.
Abe Fortas: So, you did not cite that in here?
Richard F. Watt: We did not sir.
Abe Fortas: What?
Richard F. Watt: 882, 137 Federal 882 but we would say to do that question --
Abe Fortas: 137 Federal?
Richard F. Watt: Federal.
Abe Fortas: That's a second?
Richard F. Watt: No, sir. This is a 1905 case.
Abe Fortas: But apart from that 1905 decision, you know of anything else that --
Richard F. Watt: There has been some District Court cases which have held that in attorney may verify.
Abe Fortas: A 1905 decision wouldn't be construing this Rule?
Richard F. Watt: It was construing the old Equity Rule 94 which was the predecessor of Rule 23 (b). 94 became Equity Rule 27 and Rule 23 (b) is modeled very closely after that. We would say in response to that that since the principle purpose of Rule 23 (b) and old Equity Rule 94 was to guarantee to the federal courts that their jurisdiction was not being invoked collusively by an arrangement between the corporation and the stockholder in order to obtain the requisite diversity of citizenship that the plaintiff himself, the stockholder, is the individual most likely to have knowledge of specific facts which would demonstrate the facts non-collusive character at present. He would know best when he acquired the stock.
Abe Fortas: We have verification by counsel that might have some meaning even in the context of this Rule, don't you agree with that?
Richard F. Watt: Yes, it might, Your Honor, but under those circumstances, that if in any case counsel might verify then Rule 23 (b) and the derivative case would add absolutely nothing to Rule 11. Because under Rule 11, counsel is required to certify to the best of his knowledge information and belief, the case is soundly grounded.
Abe Fortas: Well, it's a little more to 23 (b) than that as I read it. The other thing if you have the time, I wish you would help -- help me, if you will too, by pointing out in what respects the affidavit of Mrs. Surowitz is in conflict with her deposition. I don't want to interrupt your argument but I would like to know that and I take it from what you do, I correctly understand in what you said earlier that her deposition is not in conflict with the -- the specific affirmations and after being made under 23 (b) subparagraphs 1 and 2?
Richard F. Watt: Only in one respect and that is when she was asked whether what fact she had supporting the allegation that this was not a collusive suit. She indicated that she did not understand the question. However, she did testify that she did not know any of the defendants, had not had any conversations with any of the defendants, and no conversations with any of the defendants had been reported to her which would the facts justifying the collusion -- a conclusion of lack of collusion but she stated she did not understand the question. That is not so novel, as a matter of fact, because there's one of the early Rule 94 cases in which the largest single stockholder, The People's Gas Light and Coke Company in Chicago, when asked on deposition whether the suit was collusive, initially, said that he understood but it was not and then stated that he did not understand the question.
Abe Fortas: Sometimes we have difficulty within ourselves.
Richard F. Watt: I think it is rather difficult concept to understand as a matter of fact.
Abe Fortas: But if you do get time, I'd like to know --
Richard F. Watt: I shall, Your Honor.
Abe Fortas: -- the specs generally in which the affidavit is contradicted.
Richard F. Watt: It would be our position that the problem, a plaintiff stockholder and particularly a small plaintiff stockholder faces in bringing a derivative suit are sufficiently difficult without imposing in a further test which we do not believe is required by the history and purpose of Rule 23 (b).
Hugo L. Black: (Inaudible)
Richard F. Watt: I think the case is hold, in effect, Mr. Justice Black, that a derivative suit by a stockholder is by that circumstance on behalf of all similarly situated stockholders who might have a right to assert that the corporation should have sued against wrongdoing on the part of officers and directors.
Hugo L. Black: (Inaudible)
Richard F. Watt: I can't specifically point any at the moment but I know that there are indications that where at one stockholder brings a derivative suit, it has a class suit aspect to it.
Hugo L. Black: (Inaudible)
Richard F. Watt: That's --
Hugo L. Black: (Inaudible)
Richard F. Watt: I don't believe there is, Your Honor.
Hugo L. Black: (Inaudible)
Byron R. White: For the class for the corporation?
Richard F. Watt: It is for the corporation and the cases hold that the corporation is an indispensable party because any recovery will accrue to the corporation. That is correct.
Hugo L. Black: Where the (Inaudible) affidavit relates to class action?
Richard F. Watt: No, it does not, Your Honor. Rule 23 (b) is a derivative or secondary cause of action by a stockholder where the corporation itself has not asserted the cause of action. And that must be verified according to Rule 23 (b) and that prove back to --
Hugo L. Black: I look at the Rule (Inaudible) statute?
Richard F. Watt: We held our Rule 23 (b) Your Honor set out at the end of our brief at page 58 and it is described as an action brought to enforce a secondary right on the part of one or more shareholders in an association and so on because the association refuses to enforce the rights which may properly be asserted by it. We have argued in our brief that the principal purpose of Rule 23 (b) was to prevent collusive resort to the federal court. And if one reads Hawes versus Oakland which was decided in 1882, it is quite clear that the Court felt that many corporations not desiring for one reason or another to go into the state courts and not wishing to have their causes of action tried as ordinary actions at law would seek out a friendly stockholder, have that stockholder who have the requisite diversity of citizenship, initiate a proceeding in the federal court which by that circumstance would be a suit in equity. The doctrine goes back to an 1856 decision of this Court, Dodge versus Woolsey and in Dodge versus Woolsey, the concept of the derivative suit by a stockholder asserting a cause of action which the corporation would not assert was established. But when one reads Dodge versus Woolsey, it is clear that the argument was made there that collusion existed and the Court decided that there was not evidence of collusion. But the dissenting justices stated quite clearly in Dodge versus Woolsey that this practice would open up the federal courts two collusively sought jurisdiction. And that apparently is what happened because when the Court reviewed the matter in Hawes versus Oakland, it said that the Dodge versus Woolsey doctrine had been abused in this fashion and it therefore sought to close the door. The corporations are ranging through friendly stockholders to obtain federal jurisdiction in this fashion. We say that it is -- that is its principal purpose.
Speaker: I think --
Richard F. Watt: There were --
Speaker: -- the language goes beyond that, isn't it?
Richard F. Watt: The language goes beyond that Mr. Justice Harlan in the sense that I think there are certain basic elements of equity which are also in the Rule. The concept that someone should not bring a suit of this kind if he did not have stock at the time of the transactions complained of, that has a thrust against the collusive suit problem but it probably goes beyond that. We would conceive that certainly. There are decisions since then in which it is asserted that one of the purpose of the Rule was to bar strike suits, to bar speculation and litigation, to bar purchase claimants from being brought into the courts. But even if one assumes that there are these additional reasons beyond the principle one which I have asserted, I cannot see how those reasons justify the interpretation of Rule 23 (b) as it is been made by the Court of Appeals below. It's obvious that if someone is a professional strike suiter or if an attorney is a specialist in what might be described the bringing of strike suit. All he needs to do is to find the stockholder who can recite well what the stockholder is told. Now, the fact that a stockholder can be posed well and articulate what the attorney has told him is certainly no guarantee that that individual is not a strike suiter.
Abe Fortas: Well --
Richard F. Watt: On the other side of the coin, the fact that a person is unable to articulate certain things does not remember what was told to him or her is no sign that that individual is a strike suiter.
Abe Fortas: Well, let's -- let's assume now that the this is -- that the plaintiff here had verified this compliant and without qualification and let -- let assume that from deposition, it appears that the plaintiff had no knowledge whatsoever of the facts to its plaintiffs for. Now, and -- now, what is the remedy for that or is it your position that that should be overlooked completely?
Richard F. Watt: No.
Abe Fortas: Is there any remedy other than striking the complaint?
Richard F. Watt: I think the clearest example of the kind of situation that you have reference to Mr. Justice Fortas is in Freeman versus Kirby which is one of the cases that we cited on our brief. And there were two cases that arose out of the same general Alleghany Corporation litigation in the Southern District of New York, Murchison versus Kirby which we believe sustains the position that we assert here, and it's the other case Freeman versus Kirby in which it was clear that the stockholder had no contact whatsoever with the lawyer at all. All that the lawyer had sought out a stockholder and in which the lawyer himself had virtually no information except a memorandum on which to base the facts which he set forth in the pleading and under those circumstances, it would held that the attorney had violated the Rule 11. Now, the Murchison case which we contend is extremely close to the situation here.Mr. Murchison, the plaintiff on deposition was asked questions endeavoring to ascertain what facts he had supporting certain allegation, questions which from the decision appeared within quite similar to questions posed to Mrs. Surowitz here. Obviously, a man with many investment experiences so he was able to answer it but what is significant is that he stated that this information was general that he relied upon his attorneys that he asked his attorneys whether they thought they could make a case out of this and they assured him that they could. It was asserted there that the violation of Rule 11 was due to the fact that the attorneys had knowingly procured a false verification by their client, Mr. Murchison. As a matter of fact, when this motion was first presented in the District Court when it was asserted that this was a sham pleading that Mrs. Surowitz's was pleading with the sham pleading, it certainly appeared to us now that this was a Rule 11 charge because there is no other place than the Federal Rules where the term sham pleading appears except in Rule 11. It is now been turned about by the District Court and the Court of Appeals always though the thrust of the motion was it -- it was the motion to dismiss for a false verification.
Abe Fortas: What about that? It is a motion that dismissed the false verification that what -- assuming that the deposition demonstrates that the verification was false. What is the remedy for that other than dismissal?
Richard F. Watt: If a party in litigation has in that fashion abused the processes of the Court, that party should be punished but I do not think that here, the remedy is dismissal of the case where it is used for purposes of punishment and we would go back to the line of cases that beginning with Hobby versus Elliot and down to the more recent cases in this Court which indicate that there is a real due process problem. If dismissal under Rule 41 (b) is used as it needs in punishing a litigant. There must be a basis for assuming that the misconduct by the litigant justifies the presumption that the merits are against the litigant and that instance accordingly dismissed under Rule 41 (b). But if it is a means of punishment for wrongdoing, then it is depriving the litigant of substantive rights and this Court has indicated that the -- that ordinarily, that will not be permitted.
Abe Fortas: Is there anything in the record to indicate like counsel for Mrs. Surowitz did not -- after the ruling he had file another complaint, was a statute verified by counsel. Was there a statute of limitation is problem or something of that sort?
Richard F. Watt: No, there was not, Your Honor. Now the problem quite succinctly was this. We obviously could not seek out another plaintiff. Mr. Brilliant owned shares only in a fiduciary capacity. His wife who own shares was a chronically ill woman. It was our position that an important issue was raised. We were not completely certain that any difect -- defect might be cured by somebody else's verifying to the reason that I have stated. And furthermore, the District Court was inclined to dismiss by charging the counsel had violated the Rule -- a local rule, Rule 39. But we were therefore in a position in which an appeal from our standpoint was essential. We felt that this issue mainly the use of Rule 23 (b) in the fashion that was used here was one that should be brought up and determined. And that was the reason that we acted as we get through. Now, finally if I might very briefly call the Court's attention to one argument made which I would like to comment on. Namely, that Mr. Rockler's affidavit cannot be possibly suffice us a verification, because of the reservation at the end of it which appears at the record 143. I think it is quite clear that that reservation is an order to safeguard the attorney client privilege and the work product of the attorney but Mr. Rockler clearly states, under oath, in that affidavit that in his view the case is soundly grounded and that the proof will establish the essential veracity of the facts alleged. If there is a defect in the verification, It would be our position that the Court is entitled to search the record to see if the defect is made up anywhere in the same as the Court may search the record to see at a possible defect and allegation of citizenship is made elsewhere -- made up elsewhere in the record. So that whether Mr. Rockler's ver -- affidavit was labeled a verification or not, it serves the essential purpose of assuring to the Court that there is a basis for the allegation.
Abe Fortas: And you assume there that 23 (b) can be satisfied by verification counsel, don't you?
Richard F. Watt: We are in dilemma. If it cannot be satisfied by the verification of counsel, obviously, then the suggestions that have been made elsewhere during the course of this case would not have enabled us to remedy the defect. If it can be made up or if it can be verified by someone else then we believe that the affidavit of Mr. Rockler served the purpose. I would like to call the Court's attention to one comment that has appeared on the decision in the Court of Appeals. It should appear after our brief was filed in Volume 40 of the New York University Law Review at page 978. My knowledge that is the only comment it has appeared.
Speaker: (Inaudible)
Richard F. Watt: 40 New York University Law Review, 978.
Hugo L. Black: Mr. Block.
Samuel W. Block: Mr. Justice Black, may it please the Court. The action of the Court of Appeals in affirming the order of dismissal entered by the district judge, does not affect the vitality of the cause of action which the plaintiff here sought to enforce. For that cause of action belongs to the corporation. Any corporate cause of action still exists and in fact is the subject of a suit which is presently pending in the State of Delaware which is referred to at footnote at page 61of our brief, the blue brief which was filed on behalf of the individual respondents. As a matter of fact, the action of the Court of Appeals does not affect even the right of the plaintiff here, Mrs. Surowitz, to participate in any judgment which might be recovered in said other action as a shareholder. The only result of the order which is here appealable is the action of the verifier of this derivative complaint who filed the false affidavit in purported compliance with Rule 23 (b), perpetrated a fraud on the Court and failed to comply with the Rules of -- Federal Rules of Civil Procedure governing derivative action and then refused to take advantage of the invitations to cure those defects and comply with the rules.
Speaker: What were the invitations?
Samuel W. Block: Your Honor, starting with the 15 days which were provided by the original order of the Court to file any documents which were considered necessary. Then there are references in our brief to the specific suggestions of the court below of the District Court at -- to the plaintiffs, then plaintiffs, now, petitioner's counsel to file a proper affidavit and a verification sought by someone who knew the facts which were being verified or obtain another plaintiff because by that time it was clear that Mr. Brilliant who had filed this affidavit without in any way verifying by oath the truth of the allegation, but that Mr. Brilliant was a shareholder in his own right or as a trustee or represented family members of his family who were stockholders. Now, the specific statements of the Court are set forth at pages 19 and 20 of the blue brief of -- the brief of the individual respondents. It was further pointed out at the time of the argument on the findings and conclusions that the petitioner -- that the plaintiff had not asked for leave to file a substitute verification for an amended complaint. That was the finding and there was a conclusion that the verification of this complaint is false and sham and the compliant must be strict since the plaintiff has not sought leave to substitute any other verification or filed an amended complaint, the action will be dismissed and the counsel for the plaintiff did not accept in any way to that finding or to that conclusion.
Hugo L. Black: What is the proof that the complaint was false?
Samuel W. Block: The -- there is no evidence that the compliant is false, Your Honor, because that was not before the Court. The verification was false --
Hugo L. Black: What did he (Inaudible)
Samuel W. Block: Your Honor, I think that she had to swear to the complaint, to the allegations of the complaint. Now, --
Hugo L. Black: That's (Inaudible) shareholder under the Rule.
Samuel W. Block: That's contemporaneous shareholder.
Hugo L. Black: (Inaudible)
Samuel W. Block: That's correct Your Honor.
Hugo L. Black: The Court find it (Inaudible)
Samuel W. Block: No, Your Honor.
Hugo L. Black: Has there been any indication of a collusive action?
Samuel W. Block: No, Your Honor.
Hugo L. Black: And what's false with that?
Samuel W. Block: Because the --
Hugo L. Black: But was she required to swear?
Samuel W. Block: The Rule 23 (b) goes on to say after those two statements or let's say rather, it begins I saying the complaint in a derivative action shall be verified by oath and shall avert the two specific allegations to which are --
Hugo L. Black: It was verified by oath if the plaintiff will avert?
Samuel W. Block: The complaint was verified by oath and it contained other and necessary averment, Your Honor.It would be essential --
Hugo L. Black: But the rule said (Inaudible)
Samuel W. Block: No, it goes beyond that and says the complaint shall set forth with particularity and then the demands for corporate redress. Then acceptance, I believe.
Hugo L. Black: The plaintiff was set forth with particularities but that's the compliant?
Samuel W. Block: That's right, Your Honor.
Hugo L. Black: The Rule imposed it on the present facts (Inaudible) that that person is incompetent and if the complaint is not collusive and if those two things are those that sworn it, how can it be dismissed without showing that it follows in saying it was not collusive?
Samuel W. Block: Because, Your Honor, the affidavit went on and as the respondents here --
Hugo L. Black: Affidavit went on but all that was required were those two things.
Samuel W. Block: No, Your Honor. If the affidavit had been limited to just the two allegations, the contemporaneous shareholding and lack of collusion, there would not have been -- first of all, there would not have been the necessary averment of attempt to obtain corporate redress which the Rule goes on to say, must be set forth at particular --
Hugo L. Black: Wasn't there a finding that she did not assume to get corporate redress?
Samuel W. Block: No, Your Honor. There was no finding to that effect and --
Hugo L. Black: Was there any evidence on that?
Samuel W. Block: Her -- she was asked what protest she had made and she was unable to answer anything about that.
Hugo L. Black: Any other affidavit shows?
Samuel W. Block: Whether there been a protest with a letter which had been presented to her by her son-in-law, Mr. Brilliant, to -- in which she protested against the --
Hugo L. Black: Who did she protested to?
Samuel W. Block: To the corporation.
Hugo L. Black: So that so far as what the rules require is three things if you say is clear there's no evidence that anyone of them was false?
Samuel W. Block: Well, Your Honor, there is the --
Hugo L. Black: (Voice Overlap)
Samuel W. Block: No! There is no evidence that those three things were false. But if those three had been the only allegations of the compliant, it still would have not be a satisfaction --
Hugo L. Black: But the Rule doesn't say anymore than that if you're just going all the rules, don't you have to be governed by the Rule and keep within its boundaries?
Samuel W. Block: No, Your Honor. That the Rules says it must be --
Hugo L. Black: Unless you're going on some kind of (Inaudible) trial in the Court to punish her for some kind of affidavit?
Samuel W. Block: Well, I think there is basic -- the right and I suggest to this Court, the duty of a Court to take action where there has been this attempted fraud where a woman has been induced to sign an affidavit about which she knew nothing. But we --
Hugo L. Black: We knew she had thought, that she had been told that she's going to lose the money on that stock. It's nothing going to happen but why would she do it?
Samuel W. Block: You can't go -- you really can't go much beyond the fact that she knew she had stock, Your Honor. And she said the stock wasn't right. But the wrong which are set forth in this complaint were absolutely essential in order to state a cause of action. If a complaint was filed and all it stated Your Honor was contemporaneous stock ownership, lack of collusion, and attempts to obtain corporate redress without alleging the wrong. It would not be a complaint. The --
Hugo L. Black: But it wasn't dismissed for being an inadequate complaint?
Samuel W. Block: It was dismissed because the affidavit which went to the entire complaint, she listed 33 specific paragraphs which she said she knew of her own knowledge to be true and all of the risk of these -- I -- almost a hundred pages I think the complaint is. Complaint, she knew to be true on information which she believes to be true.
Abe Fortas: Although, may I ask you a question about that Mr. Block. The affidavit is divided into two parts for any medical purposes. One is the plaintiffs are consistent with the plaintiff averments without the qualification and those are specifically enumerated paragraphs. Two is a -- the clarification relating to the balance of the complaint which is on information and belief, am I correct?
Samuel W. Block: That's right.
Abe Fortas: Now, my question I had hoped your -- that Mr. Watt could get around of the defendant because of shortness of time. My question to you is this, is it or is it not true that all of the provisions in the complaint which plaintiff verified of our own knowledge were linked to the statutory and rather formal matters?
Samuel W. Block: I think Your Honor that it can be so argued --
Abe Fortas: I'm not arguing. I'm trying to find out the fact.
Samuel W. Block: Well --
Abe Fortas: I'm not interested in making an argument one way or the other.
Samuel W. Block: I think that the question of control which is directly contained in the formal allegation with respect to attempts to obtain corporate redress, although, she said she had knowledge of that, she did not.
Abe Fortas: That she had what?
Samuel W. Block: She did not -- I'm sorry. That she did not know this of her own knowledge. The fact that the corporation was under the control --
Abe Fortas: Let me ask you the question in different way. As to each of these specific matters in the verification to which plaintiff had tested of her knowledge as to each of those or as to any of those, is there a contradiction in the deposition taken from Mrs. Surowitz or does the -- or does the contradictory matter relate in turning to the matters as to which -- which she verified on information and belief?
Samuel W. Block: The allegation with respect to corporate control in the -- being in the hands of these defendants is something she testified she -- she forted and with which she testified to she didn't know anything about it.
Abe Fortas: Is there anything else?
Samuel W. Block: I don't recall any at this moment, Your Honor.
Abe Fortas: Generally speaking plaintiffs can't really testify as to matters of control of corporation on the basis of their own information, isn't that right?
Samuel W. Block: Well --
Abe Fortas: Right now.
Samuel W. Block: -- I think that's correct.
Abe Fortas: Now second, so where we are now is that the contradiction between the deposition and the affidavit relates to matters which are set forth in the affidavit on information and belief, alright. Now, did I correctly remember that the Court of Appeals said that those matters which the plaintiffs had tested on information and belief were false or improper because the deposition shows that the plaintiff did not have a general understanding of the foundation of the complaint? Is that the basis of the decision below?
Samuel W. Block: Your Honor, I -- I submit that the basis of the decision is that the affidavit which was filed here was false. Not that this plaintiff had to have knowledge of any specific fact but that she sworn under oath that she had information as to certain facts and belief in those facts which she did not have.
Abe Fortas: Now, do you have any on the brief, any references to cases which construe the meaning and the -- of an attestation on information and belief?
Samuel W. Block: No, Your Honor.
Abe Fortas: And the degree of knowledge that a -- an affiant has to have to support a -- an attestation on information and belief?
Samuel W. Block: No. No, we do not because there was no degree of knowledge whatsoever.
Abe Fortas: But if --
Samuel W. Block: Absolutely not.
Abe Fortas: Well, the cases might exist regardless of that. I don't know of cases on that and I was wondering whether you could help me. So that what we have here, one view of the case of this case is a question as to the degree of information necessary in a plaintiff who brings a representative action at the purposes of Rule 23 (b), degree of the information if the plaintiff has to have in order to support a verification of the complaint under 23 (b).
Samuel W. Block: I respectfully suggest that the issue is, if I may change it slightly the question of whether the verifier must have that degree of information and the degree of legal.
Byron R. White: (Inaudible)
William J. Brennan, Jr.: Just that.
Byron R. White: (Inaudible) Do you say that did not (Inaudible)
Samuel W. Block: No, Your Honor. No, I think that that --
Byron R. White: Would you accept that?
Samuel W. Block: We would accept that verification if when you went to the plaintiff and if she signed the verification.
Byron R. White: At least she knows as to the very fact itself and she doesn't understand (Inaudible) or have been through? (Inaudible)
Samuel W. Block: No, I don't think that would be sufficient, Your Honor. No, I don't. I think that if the lawyer --
Byron R. White: (Inaudible)
Samuel W. Block: Well, Your Honor, I don't think we need to go nearly that far.
Byron R. White: So do you think we're wrong?
Samuel W. Block: You still have it.
Byron R. White: (Inaudible)
Samuel W. Block: This case stops far short of that. I think anyone of these instances when you have a rule some cases are one side of a line and some on the other. In this case, it was not an affidavit that this is what my lawyer told me. This was an affidavit of what I knew for 33 paragraphs, what I, the plaintiffs, knew and --
Byron R. White: (Inaudible)
Samuel W. Block: Well, I think that -- that the counsel for the petitioner is quite correct when he says that the Rule 11, after the Rule 11 certification covers what the lawyer said. The lawyer must go beyond that Your Honor and provide that degree of verification by vote which Rule 23 required. And I would like to point --
Byron R. White: (Inaudible) that any part of (Inaudible)
Samuel W. Block: No, Your Honor.
Byron R. White: Doesn't he -- (Inaudible)
Samuel W. Block: And we --
Byron R. White: (Inaudible)
Samuel W. Block: -- and we have the same set of facts that we -- here have where she had no knowledge, information, and belief or knowledge at all.
Byron R. White: Did you ask her, did the government asked her or her lawyers (Inaudible)
Samuel W. Block: You cannot tell that from the deposition, Your Honor. She -- she said --
Byron R. White: Oh! You can't but how can (Inaudible) allegation at all?
Samuel W. Block: Because she said she did have knowledge in one and information and belief as to the rest.
Byron R. White: (Inaudible)
Samuel W. Block: No, Your Honor. Because we had a rule --
Byron R. White: (Inaudible)
Samuel W. Block: Well, there is a rule of law which we cite in our brief that if you state under oath something to be true which you do not know to be true, that is in law fault.
Byron R. White: (Inaudible)
Samuel W. Block: No, Your Honor. That would be equally applicable to those where she has said I have information and belief as to these allegations and had not --
Byron R. White: (Inaudible)
Abe Fortas: Mr. Block, I don't what to press this beyond reason but I think that it may be helpful to us. If you would turn on to page 236 of the transcript of record, that is the opinion of the Court of Appeals, in the last sentence of the first full paragraph containing, But if the verification provision of the Rule has have any real meaning? As the Court of Appeals goes on to say it requires that a plaintiff etcetera must have general knowledge of the wrongful acts which he alleges as a foundation for his complaint. Do you see where I'm reading?
Samuel W. Block: No, I don't, Your Honor.
Abe Fortas: Page 236 of the record. The record, page 236 of the transcript of record, that's your brief.
Samuel W. Block: I have. Now, if I can't -- I have the page Your Honor. I just don't have exactly where you're reading from.
Abe Fortas: It's page 236 of the transcript of record in this case.
Samuel W. Block: The last sentence of the first full paragraph. Would Your Honor read it again?
Abe Fortas: I'll read it perhaps you could follow verbally. This is from the Court of Appeals' opinion. But if the verification provision of the Rule is to have any real meaning, it requires that a plaintiff must have knowledge of his own position and relationship to the suit, of the official identity of the parties against whom suit is brought. And in this is what I want to ask you about, And that the plaintiff must have a general knowledge of the wrongful acts which he alleges as a foundation for his complaint. Now, is that the summon substance of the position that you would take in response to Justice White's questions.
Samuel W. Block: When --
Abe Fortas: And where a plaintiff makes an allegation on information -- makes clarification on information and belief that the plaintiff must have general knowledge of wrongful acts which she alleges as a foundation for the complaint.
Samuel W. Block: Where the plaintiff has verified, yes.
Abe Fortas: Now, suppose plaintiff does not verify but his counsel verifies. Do you concede that that is a verification that satisfies 23 (b)?
Samuel W. Block: If it is verification without any qualification.
Abe Fortas: By counsel?
Samuel W. Block: By counsel.
Abe Fortas: Well, counsel -- you know as -- as I know, do you probably know better than I do that can make the verification without any qualification, do you mean that?
Samuel W. Block: I mean without the qualification that was in Mr. Rockler's affidavit here but in which he said, I make this solely for the purpose of meeting a mid state under something like that and I reserve all the attorney client privileges and the --
Abe Fortas: I get your point. But in the case then where the plaintiff for good reason or bad reason the error or misadventure verifies that, you're saying that there would be an inquiry under plaintiff's knowledge of the substance of the complaint even if it's an accounting case or what not and that unless the plaintiff can show a general knowledge of the wrongful acts, if the plaintiff has made verification on information and belief, the complaint is to restrict her. That's the position.
Samuel W. Block: That's right. And Your Honor, there is -- the very good reason for that. The derivative action in which these verifications are required has been referred to as having peculiarities by this Court. It is a -- it's a different breed really of lawsuits because it requires the individual to take over as it were the control from the Court -- from the elected corporate managers. Now, there must be, we respectfully suggests, some assurance that that kind of taking over of corporate control is based upon the allegations of wrongdoing which someone, some person, responsible is willing to verify under oath. And that is why the answer to the question about whether if it's a verification must there be that general knowledge. You -- the person who is saying, I'm going to take over this cause of action, must be willing to say, I feel these are responsible allegation.
Speaker: I'd like to follow up just to make sure I understood your answer to Justice Fortas. If this -- if this verification as she made it, modified only by it being all on information and beliefs been cited by Mr. Brilliant or Mr. Rockler without any other qualification, you would say that satisfied 23 (b)?
Samuel W. Block: Yes. Because I think that that you would have a responsible person who would make the affidavit and it would not be the basic fraud on the Court. There would not be the concern for what here appears, I respectfully suggest, to be a kind of trafficking in litigation which is deprived by the earliest of the cases.
Speaker: I mean what the thing in reverse which is perhaps like Justice White was asking you. Suppose in this verification by period said, I have no personal knowledge leading out to stock ownership. I have no personal knowledge or any of these facts. I do not understand that anything about the basis of my cause of action except that everything I have said here has been given me by my lawyer and in my own confidence with my understanding with the investigation. Would that --
Samuel W. Block: I think --
Speaker: Would that have been alright?
Samuel W. Block: No, Your Honor. I think once again, you would not have had the degree of responsibility for the charges that is required. There is no restriction as has been suggested by counsel for the petition on the use of a procedural rule to impose on an uneducated plaintiff a very substantial obstacle to bringing a derivative suit. This could have been verified by anyone with knowledge of the facts that were -- that were alleged on knowledge to be in the knowledge of affiant or on information and belief as to those others. The legal flow here is that someone procured this plaintiff to execute this false affidavit.
Abe Fortas: It's the third time you said that sir, and I wonder if you really want to use those words.
Samuel W. Block: The false affidavit?
Abe Fortas: No, the procurement.
Samuel W. Block: Well, we don't know. All you can --
Abe Fortas: Well, there's nothing in this record on to that --
Samuel W. Block: Well, there's an affidavit by Mr. Brilliant that he -- and I want to -- want to be sure I have the exact, that he would look into the facts and decide what should be done.
Abe Fortas: Oh.
Samuel W. Block: And then there the steps from that point forward.
Hugo L. Black: I notice that it have been, you may say that two people came to -- I told them -- gone into this matter first and then one of them read the complaint to the alleged, Brilliant, who's Brilliant?
Samuel W. Block: Brilliant was her son-in-law who was a lawyer, graduate lawyer. He had master's --
Hugo L. Black: But he owns stock?
Samuel W. Block: He own stocks. Yes, Your Honor.
Hugo L. Black: Who's the other man?
Samuel W. Block: The other man was her attorney -- one of her attorneys, Mr. Rockler.
Hugo L. Black: May I ask you, you've read what is the matter here and I got a good deal of idea out of it, (Inaudible) picture of this opinion, how long do you think it would take him to educate her up to the position (Inaudible) that she could have understood all of these things and you say you have the (Inaudible)
Samuel W. Block: No, Your Honor. I don't know how long it would have taken. It may have taken -- it may have been impossible but it --
Hugo L. Black: Suppose it was impossible.
Samuel W. Block: Then Mr. Brilliant could have executed an honest affidavit.
Hugo L. Black: Do you think that it had been alright for someone else to decide for her to make her affidavit?
Samuel W. Block: Yes, sir. Yes, Mr. Justice Black.
Speaker: How long (Inaudible)
Samuel W. Block: Because his affidavit is -- it's absolutely without mention of the truth of the allegations of the complaint any of them. The only fact he swears to is that, I told Mrs. Surowitz that we have done this. He -- and I don't -- whether it is clarified, I can't tell but at least it appears to me that they drawn so that he does not say under the necessary oath that these facts are either true or I believed to be true.
Hugo L. Black: (Inaudible)
Samuel W. Block: No, but the paragraph in which that appears Your Honor reads, I told her that the charges in the complaint reflected the investigation and study of Mr. Rockler and myself and that in my opinion, the charges of wrong doing was soundly based. He is swearing that he told her this and I don't question it. I have no way of questioning that that is true or is not true. But he does not say that under oath, he says that the charges were true. He merely says under oath, I told her, that in my opinion, the charges of wrong doing was soundly based.
Hugo L. Black: All of this was based on -- on the conclusion of the Court, she was guilty of perjury, isn't it?
Samuel W. Block: I don't know that we go that far, Your Honor.
Hugo L. Black: That this is false --
Samuel W. Block: Its a false affidavit, yes.
Hugo L. Black: And if I assume by that -- does it show or does it have enough to get the jury to convict her of perjury? That would be by a state prosecution?
Samuel W. Block: I don't know that sir. I can't answer that question. Thank you.
Speaker: May I ask you a question before you sit down. Among the invitations that you suggested -- that you stated that the District Court had given you a remedy, this which you claim as a defect, was it specifically suggested that the -- a new complaints with an affidavit by counsel would suffice to cure this alleged defect?
Samuel W. Block: The --
Speaker: I did --
Samuel W. Block: -- questions were made at the trial level that the -- that Mr. Brilliant who was himself have substantial stockholder could have executed the complaint as a duly qualified --
Speaker: Now, that's a different question. That's a different question. I'm not asking you that. The concession that you made now or at least to your -- I don't call it a concession, your agreement that if this affidavit that this verification had been made by Mr. Brilliant without qualification as it other than information and belief that that would suffice, was that opportunity given by the District Court? I didn't see it in the record and I rather assume it was not because the Court of Appeals seems to say in its opinion that it doesn't pass on the question as to whether or not an affidavit by counsel would have suffice?
Samuel W. Block: I don't think that there was ever --
Speaker: That your position is clear on that now as what I was anxious to get that that would suffice.
Samuel W. Block: Yes, because as the trial court said, all I want is an affiant or a plaintiff who knows what she said she knew.
Speaker: Yes. That's not quite for something that as I assume in the colloquy we've had.
Samuel W. Block: Well, if there's no limitation on who the affiant might be, Mr. Justice Harlan. It doesn't say that it has to be --
Speaker: Now, the Court of Appeals didn't read it that way as supporting an opportunity that it did not pass. It is expressly reserved, did it not, the question that whether an affidavit by counsel satisfied 23 (b)?
Samuel W. Block: Yes, because that was never presented to her. There was never an opportunity for that issue because they kept the false affidavit before the Court.
Hugo L. Black: They did present the affidavit.
Samuel W. Block: Limited in each instance, Your Honor -- Mr. Justice Black.
Hugo L. Black: Limited, though saying what they believe those bases were truth?
Samuel W. Block: Not Mr. Brilliant. Mr. Brilliant does not say that.
Hugo L. Black: What about the others?
Samuel W. Block: Mr. Rockler said he believed that it would be true but he made it for a limited purpose and without --
Hugo L. Black: Whatever (Voice Overlap) or had if before him, and in the face of it, if he hadn't found that punishable by something, he gave the maximum punishment possible, didn't he? He dismissed the case with perjury.
Samuel W. Block: Well, Your Honor I think that raises another question which will -- have not reached.What (Voice Overlap) --
Hugo L. Black: That's in this case.
Samuel W. Block: That the -- the order of dismissal is with perjury but it does not affect the cause of action.
Hugo L. Black: Just to think their right to (Inaudible)
Samuel W. Block: That's right.
Hugo L. Black: I believe your time is up.


Warren E. Burger: We’ll hear arguments next in 74-635, United States against Rose Wong. Mr. Sheehan, I think you may proceed whenever you are ready.
William F. Sheehan, III: Mr. Chief Justice and may it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit. That court affirmed the order of United States District Court, suppressing for use in evidence in respondent’s perjury prosecution, the testimony that she previously gave before the Grand Jury. This case and the next one following it both involve the broad question whether the constitution requires that the government give any sort of warnings to Grand Jury witnesses when the government has reason to believe that the witness maybe indicted on the basis of the testimony that is sought from them. This case, however, can be decided, and indeed, we think that it should be decided on a more narrow ground, for this is a perjury case and there are special policies applicable in such cases as this Court recognized last term in United States against Mandujano. Those policies in our view apply here and they warrant a reversal without consideration of whether warnings are required. The facts were these. On September 7, 1973 the respondent Rose Wong appeared pursuant to a subpoena before a Grand Jury in the Northern District of California. She was called to testify as part of the government’s investigation into gambling and bribery in the China Town section of San Francisco. The government already had evidence that she had paid bribes to certain police officers who were cooperating with the FBI. It was thought that she or other persons unknown to the Grand Jury might also have paid bribes to other police officers who were not cooperating with the government and it was in part to learn the identity of these other officers that she was called to testify. When she appeared before the Grand Jury, the Grand Jury formally administered the oath and right after that, the government attorney told her what the nature of the Grand Jury investigation was and what its purpose was, that it was investigating bribery and gambling in China Town. She was told the she had been called because it was thought the she had information that might be helpful to the government’s investigation. At that point, the government attorney gave her a series of warnings. She was never told that she was required to answer all the questions that were put to her. She was told instead that she could refuse to answer any question that she felt might tend to incriminate her. This advice was repeated twice. She was told this was a constitutional privilege of hers. She was asked if she understood and she said that she did. She was then told that anything that she said could be used against her in a subsequent prosecution and she said she understood. She was told that she had the right to consult with an Attorney before answering any questions. She said she understood. She was asked if she had already consulted with a Lawyer, she said she had not. She was told that she could stop the questioning at any time that she felt necessary to do so. She said she understood that.
John Paul Stevens: Mr. Sheehan, I’m just wondering why you’re going through these specs? Didn't the Lower Court find specifically that she did not understand and though we have to accept that as a finding for purposes of appeal?
William F. Sheehan, III: Well, the Lower Court found specifically that she did not understand the warnings regarding the privilege. The Lower Court found that she did understand the warnings regarding perjury which I was about to say that she did receive. That was explained to her that she would be liable to a prosecution for perjury.
John Paul Stevens: Does the case involve any issue with respect to the adequacy of the warnings pertaining to perjury?
William F. Sheehan, III: No, it does not. I go through this recitation principally because there is a due process claim here that in some manner, the government’s conduct in this particular case was offensive to notions of due process and it seems to me important that the Court --
John Paul Stevens: You think it's important as to whether or not the prosecutor deliberately misled her of simply that she was misled? Is that critical to the Due Process Act?
William F. Sheehan, III: Well, we think that the proper --
John Paul Stevens: She did not understand is the point, I guess rather than --
William F. Sheehan, III: We think that the proper analysis is under the self Incrimination Clause as I will come to. I think the government’s conduct here is really beyond reproach. In fact, her attorney at the hearing on our motion to suppress said that he was calling the government’s conduct into question in this case. The District Court found that the government’s conduct was not to be criticized in this case, the conduct of the government attorney and indeed, the Court of Appeals found that the government had acted in good faith.
John Paul Stevens: I just didn’t quite understand the relevance of the details of the testimony. It's only we have two very simple clear cut findings as I understood the record?
Potter Stewart: Mr. Sheehan, in view of the District Court’s findings that she didn’t understand these warnings that analysis in this case has to proceed upon the premise that the situation here was tantamount to the situation that would exist if no warnings had been given.
William F. Sheehan, III: Yes, that is correct. We do not contend otherwise.
Potter Stewart: And that is -- so you accept that premise?
William F. Sheehan, III: Yes, yes. We do not contend -- we do not contest the fining of the District Court that she was unable to understand the warnings regarding the privilege and she was then in effect in the position of one who had received no warnings.
Warren E. Burger: Is that the predicate for your suggestion that the case could be decided on a narrow ground?
William F. Sheehan, III: The predicate for our suggestion that the case can be decided on a narrow ground is because we think that it does not matter whether or not she had received warnings, effective or otherwise. We think that this case is controlled entirely by United States against Mandujano which was decided last term. In that case as in this case, the Court of Appeals had held that the government’s failure to advise a potential defendant of the privilege against self incrimination was a bar to the use of the witnesses’ testimony and a subsequent prosecution for perjury. This Court reversed, although there were several opinions, all of the justices who participated agreed that whether or not warnings were required, a witness could not commit perjury and thereafter claim that the privilege self incrimination was a protection from prosecution for perjury. And indeed, all of the justices were in agreement that on the facts of the case in Mandujano, there was no due process violation. The facts here are in all relevant respects the same and we believe the results should be as well. Now, although the Court of Appeals' rule that its result could not be sustained under the Self Incrimination Clause, respondent has argued that indeed, her position is supported by the Self Incrimination Clause and accordingly, I will take that matter up first. It is well settled that that constitutional provision does not protect against the crime of perjury. The opinions in Mandujano to that effect did not state a new doctrine. In the Glickstein case and the Knox case and the Bryson case, this Court said that coercion may not avoided by perjury. One central rational behind those cases applies squarely here. In making the statements that are the subject of the indictment in this case, the respondent was not indeed incriminating herself in regard to a past crime. She was instead committing a new crime. However, broad the protection afforded by the privilege, it is not a license to commit perjury. The respondent argues that this case is not the same as Mandujano, and that the use of her testimony in the prosecution for perjury would violate her privilege. She says that it was important to the result in Mandujano that in that case, the witness had received warnings and understood warnings apparently, and that she not having understood them and having been in the position therefore of one who had not received warnings will somehow compelled against her will to lie in response to the questions put by the government attorney. In our view, it was entirely irrelevant in Mandujano that the witness there had received warnings. And the reason that it was irrelevant is because even if the witness had been compelled to testify in Mandujano, that would not have protected him from a prosecution for perjury. In support of this proposition, I rely upon the cases that the Court in Mandujano relied upon. The first of those was the Glickstein case. There, the defendant testified under the compulsion of the statute that granted him immunity. This Court said that as a constitutional matter, the privilege against self incrimination could be overborne and the government could compel testimony, even incriminating testimony, provided that it granted an immunity co-extensive with the privilege. The Court then said that as a corollary to the power, to the government’s power to compel testimony, it must also have the power to assure that whatever the testimony is given in response to that compulsion would be truthful. In that case, the statute in question was held to confer an immunity no broader than the constitution and the use of the defendant’s testimony was upheld not withstanding that he had given it under compulsion. The Knox case and the Bryson cases are both much the same. In Knox, the federal statute made it criminal for certain persons to fail to file a certain form. In response to this compulsion, Knox filed a form that contained falsehoods, and he was then prosecuted under another statute forbidding false statements. Even though under Marchetti and Grosso, under those subsequent cases, Knox would have been protected by his privilege from filing any form at all, his filing of a false form was held unprotected. The court noted that the prosecution was not based on any incriminatory information that was given in submission to compulsion. Neither was the prosecution in Mandujano, neither is the prosecution here. When each of these witnesses responded to any pressure that they may have felt that they were under by giving false testimony, that as the court said in Knox was simply not testimonial compulsion. In Bryson, the Court put the matter quite simply. There is no privilege to answer fraudulently a question that the government should not have asked. There is therefore no meaningful difference between this case and Knox, and Bryson and Glickstein, whether or not the witnesses in those case knew that they had a privilege was whether or not they knew that they had a privilege was not important since they cannot realistically have exercised it anyway. Whether or not the respondent here knew that she had a privilege also did not matter. Even assuming then that somehow, her failure to know of her privilege resulted in a situation where the government was compelling her to give answers against her will. There is nothing in the Self Incrimination Clause that requires that her false testimony be suppressed in the prosecution for perjury. We turn now to the Due Process Clause which was relied upon by the court below.
Potter Stewart: May I just ask you this before you proceed to that point? Am I correct in my recollection that in the Mandujano case, Mr. Mandujano was advised and informed of his constitutional privilege against compulsory self incrimination?
William F. Sheehan, III: You are correct.
Potter Stewart: That is correct and that is --
William F. Sheehan, III: Yes sir, that is correct.
Potter Stewart: And here, we proceed on the premise that Mrs. Wong was not?
William F. Sheehan, III: That’s correct. And our position is that even though the defendant in Mandujano received warnings, whether he understood them or not, whether he received the warnings or not was entirely irrelevant to that decision which was another in a long line of cases in this Court saying that a response to compulsion by perjury is not protected by the privilege. Now, the Court of Appeals I think agreed pretty much with so much of what I’ve just said, and they rested their result instead on the Due Process Clause. We think that the due process analysis adds very little to the problem. To the degree that any constitutional policies would appear to be implicated in questioning witnesses in circumstances like those here, those policies in our view are fully accounted for by the privilege. And indeed, the court below did acknowledge as much when it said that the procedure followed here by the government was unfair because of what the court perceived as the threats that it posed to the value protected by the privilege, the values protected by the privilege. There is a quotation from the court’s opinion at page 2a of our appendix. Since there have been no values protected by the privilege that have been violated here, in our view, that should end the case. But assuming that there are some values having nothing to do with the Self Incrimination Clause that are somehow implicated in this case, we submit that the government’s conduct did not violate the Due Process Clause. We think it is not automatically unfair to call before the Grand Jury a witness whom the government has reason to believe is involved in a crime under investigation. As this Court said in Michigan against Tucker, subject to applicable constitutional limitations, the court has not forbidden all resort to the defendant to make out its case and indeed, we find support for that proposition in the Schmerber case and the handwriting and voice exemplar cases. It is important to the Grand Jury’s task to be able to call before it witnesses who have some knowledge of the crime. The facts in this case are illustrative. When the Grand Jury called the respondent to testify, so far is it knew, it was facing a wide spread system of police corruption in San Francisco. In fulfilling its responsibilities of determining whether crimes had been committed and if so by whom, the testimony of witnesses like respondent who by virtue of their involvement in the crime are in the position to know something about it, is essential to the Grand Jury’s task. Thus, we say that without more it could not have been a violation of due process simply to call the witness in front of the Grand Jury. Once she appeared, as I pointed out earlier, the governments conduct was beyond reproach. Her counsel said at the hearing on the motion to suppress, I want to make it clear that no criticism is intended here of the prosecutor who appeared before the Grand Jury.
Warren E. Burger: What page of the appendix was that?
William F. Sheehan, III: That was page 9 Mr. Chief Justice. On the following page, the District Court said there couldn’t possibly be any question as far as the conduct of the United States Attorney is concerned and indeed, the Court of Appeals said that there was no question as to the good faith of the government. The facts here then are quite similar to those in United States against Mandujano. In that case, all of the justices were agreed that the government’s conduct had not violated the Due Process Clause. We think here the government’s conduct has not violated the Due Process Clause. Mr. Chief Justice, I’ll reserve any time I may have remaining.
Warren E. Burger: Very well. Mr. Brotsky?
Allan Brotsky: Mr. Chief Justice and may it please the Court. I would assume from the argument of the government that the government would concede that effective warnings concerning the Fifth Amendment privilege must be given to a putative defendant Grand Jury witness. Although, this Court reserved that question specifically in Mandujano, I think it has to meet that issue squarely here and I think that after cases like Beckwith and Goner last term, there can hardly be any doubt that the Fifth Amendment requires that an uninformed ignorant witness, that is ignorant of the Fifth Amendment privilege, be effectively informed of his rights to decline to answer questions, the answers to which would incriminate him, or else, the Fifth Amendment would virtually be rendered meaningless before Grand Juries.
Harry A. Blackmun: Well, isn’t that the issue in the next case?
Allan Brotsky: I believe it is, but I think before we can complain of what happened to Mrs. Wong, it has to be held that she had a right to be warned. Now, whether you consider that a formula to ensure the infective enforcement of the Fifth Amendment, or a right compelled by the Fifth Amendment. I think it must be clear to this Court by now that such effective information to an ignorant witness, subpoenaed before a Grand Jury is necessary in order that the Fifth Amendment have any meaning. Now that being the case, I think it also important for this Court to understand that we also rely on the Due Process Clause here for our contention that the Court of Appeals must correct in affirming the order of the District Court suppressing her testimony. Our position is that Mrs. Wong was placed in a cruel Trilemma to use the language of Murphy versus Waterfront and other cases, without knowing that she had a right to decline to answer, she had the option only of incriminating herself or of perjuring herself. And what the Court of Appeals for the Ninth Circuit said and what the government, I think fails to understand is that very Trilemma or dilemma as it's been called, is so unfair, is so essentially wrong that it in and of itself violates due process, and this is true whether the dilemma that the witness faces is created by intentional activity on the part of the government, declining to inform witness of the privilege or whether in this case, it comes about despite what I felt was a good faith effort to do so. In short, the dilemma, the cruelty, the unfairness does not depend on government misconduct, and I think that government misconceives the meaning of due process when it says that an essential ingredient of a violation of due process is that there must be some affirmative misconduct on the part of the government.
Warren E. Burger: Isn’t there possibly another choice? Even given all of your predicates, namely, to decline to answer -- to decline to answer without attributing any reason for it, to decline to answer as an alternative to lying under oath?
Allan Brotsky: That is available to a witness that knows that that can be done, but when the prosecutor in this case asked Mrs. Wong, rather when he was asked at the hearing on the motion to suppress, what the situation was in that regard and when she was asked and he asked her, she said she thought that she had to answer every question. Now, I would agree with you sir that if she had done that, ignorant as she was, that a chain of events would have been set in sequence that might well have resulted in her becoming educated because she would then have been subjected to the contempt part of the court. In exerting that contempt part, the court would have appointed counsel to represent her and counsel could then have effectively informed her of her privilege, but she didn’t know she had that alternative Mr. Chief Justice. She answered Mr. Ward when he asked her at the hearing to the effect that I thought I had to answer every question. So in that respect, I think she had the alternative, but she did not exercise it.
Warren E. Burger: And the District Court elected to accept her understanding at that stage as against her understanding in the questions that appear earlier in -- for the Grand Jury?
Allan Brotsky: Her understanding at what stage sir?
Warren E. Burger: The scope of understanding that as he relied on her without an interpreter (Voice Overlap).
Allan Brotsky: There was an interpreter in the hearing before the District Court, clearly there was. And her answers were given through the interpreter as well as the questions put to her with the interpreter.
Warren E. Burger: But your position is that the questions and answers set forth on pages 3 and 4 of the appendix are now all foreclosed because the District Court may define it which has been affirmed by the Court of Appeals?
Allan Brotsky: Yes. I believe the case is uphold as in that position. Now, if it is true that the violation is one of due process, then it seems to me clear that the testimony whether it’s exculpatory as was the case here or inculpatory that a self incriminatory must be suppressed. And the reason for that I think stems from cases like Lisenba versus California where the Court pointed out that the aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false. In short, to vindicate the violation of the due process amendment which occurred here, to correct it, to deter future instances, it is essential that whether the testimony given as the result of this dilemma, or this unfair position in which the witness is placed, be suppressed whether it exculpates or inculpates the witness. Now in that respect, I think that there is no question that the reason --
Speaker: Red light is on.
Warren E. Burger: We’ll resume at 1 o’clock. Mr. Brotsky, you may continue.
Allan Brotsky: Mr. Chief Justice and may it please the Court. A few words I think are in order concerning the critical distinction between this case and the Mandujano case. I think the distinction that Your Honors have recognized by denying that government’s motion for summary disposition of this case following the Mandujano opinion. Mandujano was aware of his privilege. He could have claimed his privilege as the Chief Justice pointed out in the plurality opinion. Having that ability, he did not do so.
Warren E. Burger: But we have no occasion to decide in that case whether any warning was required, did we?
Allan Brotsky: That’s correct.
Warren E. Burger: Because it is clearly given on the record?
Allan Brotsky: Correct. So in Mandujano, there was no either dilemma or Trilemma. There was no subjecting of the witness to this unfair cruel, if you will, situation.
William H. Rehnquist: Mr. Brotsky, in connection with your due process argument, would you think that a warning as to other privileges other than the self incrimination privilege might be required, say such as the Attorney/Client privilege?
Allan Brotsky: I personally think that such a warning is equally, perhaps not equally but it is essential as well. I think that if you warn of the -- or advice of the Fifth Amendment privilege because of the intricacies of the privilege, it would be appropriate and consistent with the purposes of the amendment and particularly to avoid distinctions between those who can afford counsel and those who cannot.
William H. Rehnquist: If your due process argument stands on the separate ground from the privilege, it pretty well has to include any privilege that might be availed of, isn’t it?
Allan Brotsky: I think so. I think, however, that I should say this. This is an illustration of how one violation is inextricably linked with another. The right to be advised of the privilege flows from the self incrimination aspect of the Fifth Amendment, but it is the failure to advice that brings into play the due process violation because only where there is a failure to advice, do you have this dilemma. So, I would say then that when a witness, a putative of defendant witness comes before a Grand Jury and he is not advised, effectively informed of the privilege, you have a violation of the Fifth Amendment self incrimination right. That violation, once you ask a question and subject the witness to the dilemma or Trilemma that we’re talking about, then becomes a violation of due process.
Byron R. White: Do you think the same analysis would apply when witness the government does not expect it might indict?
Allan Brotsky: No. I think that --
Byron R. White: But why not? I thought you really weren't relying on the conduct of the government?
Allan Brotsky: I think I am distinguishing Mr. Justice White between the conduct of the government and the objective reality which the government has before it. In this case, --
Byron R. White: Well, what about the ordinary witness that the government doesn’t really know about, but they just call him as a witness, but as a matter of fact, he does have some problems about self incrimination, and he is not advised or warned and he’s asked some questions. And here in his own mind, his choices either to refuse to answer, to incriminate himself or to perjure himself? That’s the way it is as a matter of fact?
Allan Brotsky: I think that I would have to answer you with what Mr. Justice Brennan said in the Mandujano case. That presents the most difficult situation, but I don’t think we have to reach that here at all. I think we can define what we mean by a putative defendant in terms of what the government knows when it calls the witness.
Byron R. White: So, you do -- so you think there is a substantial dimension to your case based on the government’s conduct, namely, its knowledge and its calling him as the witness and not informing him clearly?
Allan Brotsky: Yes. I think that is an ingredient, an essential ingredient of our case.
William J. Brennan, Jr.: Mr. Brotsky, precisely what do you think the witness should have been told? What was the information of that the witness should have been told?
Allan Brotsky: I think, she should have been told either through an interpreter or in language that would have effectively told her that she had a right to decline to answer questions based on her Fifth Amendment privilege. Now, did she -- how could he bit -- excuse me, done that?
William J. Brennan, Jr.: Nothing more than that, in other words, you do not suggest that she should have been told that maybe a possibility that this Grand Jury is going to indict her?
Allan Brotsky: Let me leave that to the case that follows Mr. Justice Brennan. I don’t think I have to reach it in this case and I had rather not be philosophical. I am concerned about Rose Wong, and as a matter of academic interest, yes, I believe that more than that is required. As a matter of fact, I personally believe and concur with your position that knowing and intelligent waiver of an informed -- by an informed defendant is essential of way to preserve Fifth Amendment values, but that doesn’t arise in this case.
Warren E. Burger: I take it then you are equating this as a parallel to the Miranda type of situation?
Allan Brotsky: Only in this respect Mr. Chief Justice. I agree completely that the Grand Jury setting is different, wholly different from the custodial interrogation of the police.
Warren E. Burger: I didn’t mean as to the setting. I mean, as to the concept of the right and the waiver aspect?
Allan Brotsky: Yes, I think that without reaching the waiver problem because it isn’t presented here, I think that the coercion inherent in custodial interrogation which forces -- which compels the suspect to talk is assumed before the Grand Jury. When you’re subpoenaed before the Grand Jury, you must talk, you got to answer every question. As the Mandujano makes very plain and as it reminds us, this has been the rule since this court was founded.
Warren E. Burger: That Mandujano also said -- the court said in Mandujano that the oath itself is a warning, isn’t that, didn't the court not say that?
Allan Brotsky: Yes and frankly --
Warren E. Burger: Now, in the Miranda setting, there is no oath and there is no anticipation one way or the other that the subject will tell the truth or tell falsehood, is there?
Allan Brotsky: That’s right.
Warren E. Burger: And the person in the Miranda setting could tell falsehoods without perhaps becoming incriminated, certainly not in a perjury sense, could they?
Allan Brotsky: That’s right. But Miranda also teaches Mr. Chief Justice that whether the statements made following the failure to observe the Miranda ritual, whether exculpatory or inculpatory may not be used. Now, I would agree with you that the oath makes a substantial difference in the sense that the witness, had the witness been informed with no that perjury was -- the oath itself is adequate warning that they must tell the truth. But the difference between -- Mrs. Wong situation and Mandujano situation was that he knew he could decline to answer and she did not. She had no other alternative than to either incriminate herself or perjure herself. To either exculpate her or inculpate herself.
Thurgood Marshall: Mr. Brotsky, was she a pauper?
Allan Brotsky: She is not a pauper.
Thurgood Marshall: She was when she was called?
Allan Brotsky: Well, I can’t say that. She did not have an attorney when she was called and when she retained me, she paid a modest fee.
Thurgood Marshall: What significance is it if a person who was not a pauper, does not have a lawyer?
Allan Brotsky: I think that --
Thurgood Marshall: What is the significance?
Allan Brotsky: The significance --
Thurgood Marshall: If a person can hire a lawyer and doesn’t hire one, then who’s to be blamed for that?
Allan Brotsky: I think that may well be true. On the other hand as I said, until you’re informed of your privilege under the Fifth Amendment, you are in a position of having to answer incriminatory questions and, that’s a situation of Mrs. Wong.
Thurgood Marshall: (Inaudible) advice of counsel?
Allan Brotsky: You could. There’s no doubt that --
Thurgood Marshall: (Inaudible)
Allan Brotsky: That’s right and perhaps it could be said that she could be criticized for not having consulted an Attorney before going to the Grand Jury.
Warren E. Burger: Is there anything to be said at all Mr. Brotsky for the notion that any citizen, any person called before an official body, even without understanding as you argue there was a lack of understanding here, should understand that they must tell the truth, if they -- in terms of whatever they tell?
Allan Brotsky: No question about that. The thing that I think, this Court has to confront is whether when the choice is between the truth or incriminating one self, or as in this case since she did come from China Town and since there is a tradition in China Town that informers are physically retaliated against, she had even more of a subjective reason to fear inculpatory statements. She feared physical harm to herself or her family. There is no question Mr. Chief Justice that it is essential that people tell the truth. But, I don’t think that our constitution fails to distinguish between those who knowing of their rights, knowing they can keep quite, then deliberately tell falsehoods and those who have no such option, I think there is a real distinction.
Warren E. Burger: That argument would carry greater weight perhaps if you were talking about a person testifying in public, in the trial of the case. Here the testimony was in secrecy of the Grand Jury room which is protected?
Allan Brotsky: Of course, had she told the prosecuting Attorney what he wanted to hear, she would inevitably have been called. His purpose was to find out what she knew so that he could utilize her testimony in a trial against the officers that he claimed --
Warren E. Burger: But when you say what the prosecutor wanted to hear, you mean that he was seeking to have her say that she had indeed bribed the policemen?
Allan Brotsky: That’s correct. That’s what he wanted.
Warren E. Burger: And that that would expose her to retaliations, is that your suggestion?
Allan Brotsky: I think that this was a subject factor, but I don’t think it’s necessary to the decision in this case. I think the dilemma of course is simply by incriminating one self versus perjuring one self is sufficiently unfair dilemma to call into play the due process guarantee. Now, I just want to make a few more points. As I say, there is this connection between the Fifth Amendment privilege against self incrimination and the due process violation. Now, when the witness is affectively not informed and you have both violations, then the question arises what is the remedy? I think the remedy and here again you have a distinction between the situation posed by Knox, by Bryson where you did not have this dilemma in the same sense. Where in Bryson’s case, he could have resigned as an officer or declined to answer, he knew of his privilege; Mrs. Wong did not know of hers. I think the appropriate remedy is to restore the witness to the position, the witness would have been in, had the witness known of the privilege and exercise that namely to suppress all the testimony whether it’s exculpatory.
Byron R. White: Again, these arguments put almost any witness rather than just one who is a putative defendant?
Allan Brotsky: I don’t think so Mr. Justice White for this reason.
Byron R. White: It doesn’t as a matter of fact, the answers might incriminate?
Allan Brotsky: If the answers might incriminate, then I think you are reaching the point where that is true. But --
Byron R. White: Whether the government knows it or not?
Allan Brotsky: Alright, I agree you’re posing the most difficult question, administratively and philosophically, but that’s not the problem we have in this case.
Byron R. White: Can ordinary witness called than an ordinary -- in any lawsuit or in any criminal case in an open court room?
Allan Brotsky: No doubt about it, but I know that as a practical matter and in real life things don’t happen that way. The U.S. Attorney generally knows whether the witness that he’s calling, generally knows.
Byron R. White: He hopes he does?
Allan Brotsky: Alright, I agree. But I think that this is not the situation we have here nor is it necessary to decide that question because you have clearly here a putative defendant. The finding was to that effect and certainly the government has not denied it.
Warren E. Burger: Going back to Justice White’s illustration which we eluded to in the Mandujano opinions, you’re not suggesting that a warning is required if a person is called in out of the cold to come in to the court room and testify?
Allan Brotsky: No.
Warren E. Burger: Civil case, criminal case, whatever?
Allan Brotsky: I am not --
Warren E. Burger: Are they not confronted often with the precisely the same dilemma or Trilemma that you mentioned here, retaliation, indictment, what not?
Allan Brotsky: No, I don’t think so. I think --
Warren E. Burger: They could not be?
Allan Brotsky: It’s possible. But, we are talking probabilities now.
Warren E. Burger: We’re only dealing with the rare cases. Those are the only ones that come up here, you got the rare case?
Byron R. White: What about the government, who thinks that co-conspirators would testify against somebody who’s on trial, and they call him, put him on the stand?
Allan Brotsky: Usually, that person has an attorney to represent them or the attorney for the defendant will make sure they do.
Byron R. White: All I’m asking is whether you think that government has to warn them?
Allan Brotsky: I would say that --
Byron R. White: They know, you say implicated?
Allan Brotsky: I would say wherever there is ignorance, wherever there’s reason with ground --
Byron R. White: So, your answer is yes. The same rule would apply as you are dealing with this case?
Allan Brotsky: No, it’s not yes. It’s only if the situation is one in which the government knows there is ignorance or has reasonable cause to believe there is ignorance. For example, if the person shows up with an attorney, obviously, there is no cost to believe that the witness is ignorant. We are talking about ignorance here, that’s really what I think we’re addressing ourselves to because while Mr. Justice --
John Paul Stevens: Mr. Brotsky, if you put it on the government ignorance, they were ignorant here as the fact that she didn’t understand the warning?
Allan Brotsky: I understand that.
John Paul Stevens: But then haven’t you give them your case solely?
Allan Brotsky: No, I am talking about ignorance on the part of the witness. If you have a situation where the witness is in fact ignorant, now when must the government do it? I think if you think of the situation here, clearly the government has to do it here, where they know that the witness, according to the police officers has offered bribes, paid bribes is implicated in the gambling establishment. And where they call her precisely to implicate her self and others, clearly then it seems to me you have to have a warning to that kind of witness. Now, this other cases are harder. There is no question about that, but in this case, you don’t have those difficult problems.
John Paul Stevens: What Mr. Justice White was asking you supposing at the same facts about Mrs. Wong that she were called in a trial of Mr. X, why is it the same situation?
Allan Brotsky: Well, if that’s what Mr. Justice White meant, then I misunderstood. If the government has no knowledge that the witness is involved (Voice Overlap)
John Paul Stevens: No, no, no.
Allan Brotsky: Oh, I think that the government would have to. Yes, I think that government would have to advice that --
John Paul Stevens: Even though she is not a putative defendant?
Allan Brotsky: That’s right. I think --
Byron R. White: And the government calls a co-conspirator or someone who thinks that on their side of the case to prove a case against the defendant, you must give him the warning?
Allan Brotsky: Well --
Byron R. White: The government is frankly surprised. They think they are going to get some testimony out of somebody that certain line of some and it turns out they don’t get it and let’s assume they then prosecute him for perjury?
Allan Brotsky: Alright.
Byron R. White: You think it’s because they thought they suspected and/or thought they knew he was implicated in the crime that they had to give him warnings, that they cannot prosecute him for perjury?
Allan Brotsky: No, I don’t think so. I think that had they given them -- first, my reply would be what harm does it do to the government to give the warnings?
Byron R. White: But the question is whether it’s constitutionally required (Voice Overlap)
Allan Brotsky: I understand. I think the government is giving the very warnings here that we’re talking about. They haven’t told us why they do it, but they uniformally do it. I think it’s because they recognize that it is essentially unfair not to. Now, if you have a situation you postulated, then, I think the government has an equal duty where the government knows that the person is implicated and calls that person with an intent and design to extract incriminatory information, and I think the government should advise the person of that person’s rights. In a minute or two that I have left, I do want to say something about the perjury question. I think this Court does have and must have a legitimate concern that perjury violations be punished. But I think again here, there is a difference between the kind of perjury you have where one is aware of the privilege and instead of exercising it, remaining silent, affirmatively misstates or lies. To suppress false testimony that is induced by a cruel dilemma, and that’s what I think happened here is, not the licensed perjury.
William H. Rehnquist: Well, you are not just talking about suppressing false testimony. You are talking about washing out what would otherwise be a perjury charge, aren’t you?
Allan Brotsky: That’s right, but I am saying, you are merely restoring that person to the position they would be in had they known of the privilege.
William H. Rehnquist: Before they lied?
Allan Brotsky: That’s right, had Mrs. Wong, I can assure this Court that had Mrs. Wong known of her privilege, she would have exercised it. She would have given no answers to the questions which are the subject to the perjury prosecution. What I’m saying therefore is that if that is the case and if she faced the dilemma she did, I think this Court’s legitimate concern for perjury is not appropriately addressed to her situation. I think to as a Court of Appeals said, to suppress testimony which in this case exculpated her and which the prosecutor thereby then promptly indicted her for perjury because it was contrary to the information he had for her to do that.
John Paul Stevens: M. Brotsky, how can you be so positive that she would not committed perjury if she knew of her privilege? Lots of people know their privilege and still decide it would be better not to act guilty by claiming the privilege and it would try and get away with a false story and how do we know she didn’t simply do that?
Allan Brotsky: Mr. Justice Stevens, if you knew Rose Wong, you would be sure as I am.
John Paul Stevens: Well, we would not be able to deal with, but there is no reason on the record to believe that’s the fact, isn’t it, to say (Voice Overlap)?
Allan Brotsky: I don’t see how they could on the record, I don’t see how they could. As a matter of fact in the hearing, there was a question that the judge raised, now the final question would be if she had known of her privilege which he has claimed it and he didn’t ask it because I think he assumed after seeing Mrs. Wong that should would have --
Thurgood Marshall: Mr. Brotsky, if she had been called to the regular trial and these policemen had asked those questions, would somebody been advised -- would have to advise her of her rights?
Allan Brotsky: I think so.
Thurgood Marshall: Why?
Allan Brotsky: Because I think the government knowing that, it is eliciting from her by its questions, incriminatory answers is fording the purposes of the Fifth Amendment and is taking our system of justice and ignoring the mandate of the Fifth Amendment when one does so. I think that --
Thurgood Marshall: I thought the Fifth Amendment was something you had to claim?
Allan Brotsky: If you know about it. I think ignorance of the Fifth Amendment which is the situation here presents an entirely --
Thurgood Marshall: Do you think that court would have to appoint a lawyer’s for her?
Allan Brotsky: I didn’t hear you.
Thurgood Marshall: You think the court would have to appoint to a lawyer to advise her?
Allan Brotsky: I think if the government new the questions were -- Yes, I think I she were indigent --
Thurgood Marshall: Even if she had a million dollars.
Allan Brotsky: No, no.
Thurgood Marshall: She wasn’t an indigent. She said she wasn’t.
Allan Brotsky: No, well, I’m saying that --
Thurgood Marshall: You said she was.
Allan Brotsky: That they have to advise her. I am not saying that they have --
Thurgood Marshall: Why would they have to advise a person capable of hiring a lawyer to advising her of her rights?
Allan Brotsky: Because I don’t think that the fact that she was an indigent really is relevant here since when she appeared, she was given the option of having an Attorney.
Thurgood Marshall: And she could have then said, I’d like to get one?
Allan Brotsky: I suppose that’s true. But in any event, what happened is --
Thurgood Marshall: Well, did she understand that question?
Allan Brotsky: The judge indicated she did not. Judge Zirpoly said -- found in effect that she did not understand, none advising her of her rights except to perjury.
Warren E. Burger: Now that we’re on the Court’s time, let me ask you one question and try to give a brief answer. What was there at the second hearing, at the suppression here which alerted someone to the idea that she did not understand English in the face of the perfectly clear unequivocal answers which she gave before the Grand Jury. What was the change, after a long lapse of time that her English became little fuzzy or what?
Allan Brotsky: Mr. Chief Justice, I think you may have misconceived what happened at the second hearing. We made a motion to suppress based on the claim the she did not understand the warnings.
Warren E. Burger: Like everyone concedes that there was nothing to have alerted to the Grand Jury foreman or the United States Attorney to the notion that she did not understand the questions when she gave the rather clear answers which appear in the record on pages 3 and 4. Now, what alerted someone between that time and the hearing on the suppression motion to the idea that she did not understand English quite a well?
Allan Brotsky: When she came to me and talked to me, I could see that she didn’t understand English very well. I had a different view than the United States Attorney. I immediately -- I have more familiarity with China Town, San Francisco than he did, and he admitted in the record that he had no such familiarity. The Judge pointed out at the hearing that there was several times when she answered questions that might well have alerted him that she needed an interpreter.
Warren E. Burger: Very well, thank you.
Allan Brotsky: Thank you.
Warren E. Burger: You have anything further Mr. Sheehan?
William F. Sheehan, III: I do not Mr. Chief Justice.
Warren E. Burger: Very well, thank you gentlemen. The case is submitted.