Earl Warren: Number 843, Paul V. Case, Petitioner, versus Nebraska. Mr. Meador.
Daniel J. Meador: Mr. Chief Justice, may it please the Court. This is a state post-conviction proceeding here on certiorari to the Supreme Court of Nebraska. The state court has refused to hear the petitioner's claim that he is incarcerated in violation of his constitutional rights to counsel. The merits of the right to counsel claim were not before the Court in this case. The question which is presented, however, is one of pressing current importance in the administration of state criminal justice. And that question is whether this Court should require a state to comply with its constitutional duty so-called a hearing to the petitioner. The facts are quite brief. The petitioner was arrested one night in April of 1963 while he was walking along the streets in Lincoln, Nebraska. He was taken to the jail and as he puts it he was booked on an open charge. He was hailed incommunicado for four days the a jail, and incidentally, I might say, all the facts here come from the petition of habeas corpus filed in this state trial court, the allegations of which are uncontradicted at this point. He had said he was held incommunicado for four days, on the fourth day in information was filed against him in the trial court charging him with burglary, which is a felony on Nebraska law carrying a sentence of 10 years in the penitentiary. On the same day the information was filed, the petitioner was taken before the prosecuting attorney where he was threatened with prosecution under the habitual criminal law unless he would agree to waive a preliminary hearing, agree to waive his right to counsel, and agree to plead guilty. The Nebraska Habitual Criminal Law carries a penalty from 10 to 20 years in the penitentiary for two prior convictions, a penalty in addition to the sentences that would be imposed for the principal offense. As a result of this prosecutorial coercion, the petitioner did waive a preliminary hearing. He was taken before the Court the same day, four days after he had been arrested, at which time still as a result of the coercion, he did waive counsel and plead guilty. The trial judge found him guilty of burglary and thereafter sentenced him to five years in the penitentiary. At no time from arrest through the sentencing did the petitioner have the assistance of counsel. Apparently, no appeal was taken, and a few months later in September 1963, the present proceeding was initiated in the same court which had convicted and sentenced the petitioner. The trial court dismissed the petition, the petition is now before the Court here in this case, the petition alleging the facts which I have summarized, dismissed this petition without any response from the State and without holding any hearing. The petitioner thereupon appealed to the Supreme Court of Nebraska, and that Court in its opinion in effect acknowledged that the petitioner's allegations showed the violation of the Constitution which required an evidentiary hearing. And yet the Court affirmed the dismissal on the ground that this was a habeas corpus petition and that under Nebraska law, habeas corpus will reach only jurisdictional defects in the conviction and that this claim of denial of counsel is not of that sort.
William J. Brennan, Jr.: Are there any suggesting that there might be some other state post-conviction remedy to which the matter devoted?
Daniel J. Meador: No sir, the opinion is completely silent about any other possible remedy at all. It addresses itself solely to habeas corpus.
William J. Brennan, Jr.: Well, I suppose we should consider this on the premise of -- that is the only state post-conviction?
Daniel J. Meador: No sir, we need not to consider it now because the new statute which has just been enacted in Nebraska, which does appear to provide a post-conviction procedure which I would like to discuss in just a moment in somewhat greater length.
William J. Brennan, Jr.: Before getting at it. Before this statute, is there anything like coram nobis, or any other?
Daniel J. Meador: No sir, the law -- and it's perfectly clear and in fact the State conceded in its response filed through the certiorari petition in this Court, that there was no other remedy under Nebraska law, and certainly the Nebraska law will quite clearly reveal that. The time the judgment was entered by the Supreme Court of Nebraska there was no remedy at all it explained. Certiorari was then sought here and as I said, the State responded with this concession of no remedy. Certiorari was then granted. Some two weeks ago, after the grant of certiorari here, and after of briefs both sides have been filed, the Nebraska legislature enacted the new statute I just mentioned. My understanding, the copies of this had been supplied to the members of the Court by the Attorney General's office. That's precisely the point I proposed to discuss at the moment and my proposition is that the effect of that statute on this case is to strengthen the petitioner's case. It shows now that there is a way, a possible way in which the State can carry out its constitutional duty of according the hearing. And by doing that, it touched the ground from under, one of the major arguments made in the brief of the State. As I read the brief state of the State's brief, one of the reason it gives for this Court not entering the kind of mandate the petitioner seeks is that there is no way under Nebraska law that a hearing can be given the petition. The argument seems to be that simply there is no state machinery available, whereby the State can meet its constitutional obligation. That argument is gone, the statute wipes it out.
Potter Stewart: Your whole case is that the State is required to give post-conviction remedy.
Daniel J. Meador: Yes sir.
Potter Stewart: And Nebraska has now done so.
Daniel J. Meador: No sir.
Potter Stewart: So is that the end of your case?
Daniel J. Meador: No sir, that's where I would disagree strongly. Nebraska has not yet accorded this petition of the hearing that he's entitled to.
William J. Brennan, Jr.: (Inaudible)
Daniel J. Meador: Yes sir.
William J. Brennan, Jr.: (Inaudible)
Daniel J. Meador: No sir.
William J. Brennan, Jr.: No?
Daniel J. Meador: I would hold to the same mandate precisely. The statute has not changed the mandate I would seek and the mandate that I think is appropriate here.
William J. Brennan, Jr.: But I would just say -- do I state accurately the mandate that you did seek?
Daniel J. Meador: Yes, the mandate I seek is a remand of the case with direction to the petition of the accord of the hearing. That's the mandate I would still seek because while there is a statute sitting on the books of Nebraska, that statute does not guarantee the hearing petition is entitled to.
Speaker: (Inaudible) -- passing of the statute.
Daniel J. Meador: Well, this would be one of the questions. The Nebraska Court might take up and might resolve against the petitioner.
Speaker: Well, that's a question of state law.
Daniel J. Meador: Yes sir.
Speaker: Is there any such application?
Daniel J. Meador: An application by this petition for hearing under the statute?
Speaker: Yes.
Daniel J. Meador: Not to my knowledge.
Speaker: Why should this Court get into this difficult constitutional question before us now?
Daniel J. Meador: Well, in the first place I would say there is no difficult constitutional question presented here by this case. It seems to be quite clear for 30 more years that the Court has said again and again, the State has an obligation to find corrective process. It hasn't done so. The question that is before the Court, is whether the Court is going to continue to follow what might be called, with all deference, a policy of non-enforcement of a state prisoner his right to hearing in state courts.
William J. Brennan, Jr.: Wouldn't everything when you seek to accomplish that we would have vacated this judgment and remand to the Nebraska Supreme Court for further proceedings in light of its new statute?
Daniel J. Meador: That is the disposition I want with one additional item. And that is a direction that the hearing be given by some procedure. It's no concern of this Court, whether it's given under the new act or by enlargement of the existing habeas corpus or whatever. The Court is though, to cut this petitioner lose with simply that mandate, guarantees him nothing. It sends him back.
William J. Brennan, Jr.: Well, if he doesn't get any, he could come back, I suppose.
Daniel J. Meador: Yes sir he could and that's what the state prison is –-
William J. Brennan, Jr.: He might serve another year probably.
Daniel J. Meador: Yes, and that's what the state prisoners have been doing year after year coming back again and again through the state courts here to the federal District Court, and what Justice Rutlegde referred to as the merry-go-round. And that's --
Byron R. White: If you may, would you take the same – have the same position if the statute said “shall” instead of “may”?
Daniel J. Meador: Yes sir, I think I would because the statute leaves plenty of room for varying instructions and this is not simply a matter of imagination or surmise. We have solid experience. It can be drawn on the show what can happen. You look for example to Illinois and Maryland, two states which did adopt some years ago, a post-conviction act of this sort, quite similar to this and yet the state courts when it took the statute and construed it, construed it in such a manner as to frustrate litigation of many federal claims. On the 2255 in federal courts, this Court with no doubt really knows there have been many, many disagreements among the district judges and the Courts of Appeals, as to what kinds of claims can be asserted on the 2255 --
William J. Brennan, Jr.: And this new statute sort of redone 2255.
Daniel J. Meador: Yes, it's very similar, it's not identical but it's quite similar to 2255. There is plenty of room for example, if I might call the court's attention to the statute, it is in the appendix to the State's brief, the respondent's brief at page 17, that's a print of the bill, but the enacted statute is identical. In Section, 1 Paragraph 1, the provision is “The prisoner in custody claiming the right to be released where there was such a denial or infringement of the rights of the prisoner to render the judgment void or voidable under the Constitution.” Well right there is the question, what kind of denial, what is such a denial as will render the judgment void or voidable? There is abundant leeway for differing views about that.
William J. Brennan, Jr.: But can there be on the allegation to this complaint, this is out loud Gideon?
Daniel J. Meador: Yes sir there could be. I could envision with no great difficulty. As state court is saying this is not such a denial as it renders judgment. Void here under our view of voidance, the Court has already said that it doesn't affect the jurisdiction for example of the convicting court despite Johnson against Zerbst and Gideon as a matter of state law. This Court might reverse on the merits and so on, but as a matter of statutory construction in the first instance, I can imagine this. The second paragraph, for example under Section 1, provides that if the files and records in motion show that the petitioner is entitled to no relief, he'll get no hearing. 2255 shows for example the disagreements you can get about where the files and record show he's entitle to no relief. My point is that in this state of affairs, all we have here is a statute on the books that does provide a way, it clears the path for Nebraska to go ahead and carry out the constitutional mandate, but it doesn't guarantee that it will. When the petitioner goes back unless he has a mandate from this Court and the state court is practically free, if it goes on the assumption that it has no enforceable obligation to hear the constitutional claim, it's perfectly free to deny a hearing, force another appeal in the State Supreme Court, back up here or either into the Federal District Court, and we're perpetuating the same kind of labyrinthine groping that the Hawk went through 16 to 17 years, except this petitioner doesn't have 16 years, he has a five-year sentence as he asserts, it's unconstitutional, he should be given an effective hearing.
Byron R. White: -- (Inaudible) -- before it adopted the point of saying it had no remedy available? Isn't it – did it almost acknowledge or did it come close to acknowledging that this might not be a real waiver of his right to counsel?
Daniel J. Meador: It seems to me that that opinion is not as clear as it could be. But it seems to me they and in fact say, his allegations of coercion here are such that call for an evidentiary hearing. But there again, that is a fairly debatable question.
Byron R. White: You think that they left to debate about it if we are to agree it reached a constitutional question here or rather than just remand and enlighten the results?
Daniel J. Meador: It might be difficult doing that so. Yes, I'm a little puzzled over what the really difficult constitutional question is that the court has to reach to enter the mandate --
Byron R. White: Whether it's most difficult or not, you'd be reaching a constitutional question.
Daniel J. Meador: It seems to me that the only constitutional question here has long been settled, and that is that the State has an obligation to afford a hearing to a claim of unconstitutional imprisonment. There's a long series of cases in which this has been explicitly said, I acknowledge that there is debate as to whether this has been squarely held. What has not been held, I would freely acknowledge is, that it's never been held that this Court will direct the State to carry out that obligation. I think it's debatable that in some of the cases that are in petitioner's brief, the Court may have held debatably that there is an obligation on the State to accord the hearing, but it stopped short of directing that the obligation be carried out. But certainly by explicit dicta, time and again for 30 or more years the court has said, the obligation is there. The court has followed what, as I said a moment ago, you might call a policy of non-enforcement.
Speaker: A habeas corpus if that's --
Daniel J. Meador: No question.
Speaker: No question about that. But I'm surprised that you said that you didn't go that even the serious -- even a taint constitutional question.
Daniel J. Meador: It seems to me that the question, there is, the problem is essentially a problem of adjusting the administration of state criminal justice in the context of the federal system, are you going to require the states to furnish the remedy, which the Court has said they have an obligation to do? Or are we going to relegate the prisoner to a remedy over in the federal system in federal district courts. That's the question. However, if the characterized -- the State -- the State's position, as I read it, is this Court should continue to follow this policy of non-enforcement, in effect continue to allow the State with impunity to deny hearing. What the State is doing, it moves to imprison the man and at the same time shut this door on his face, when he claims that he is unconstitutionally imprisoned. And all that he's been is that the prisoner to go to the federal district court. But further, -- this is further reason why I would argue that the mandate is still appropriate in this case despite the new statute. The first reason of course is to protect this petition, to ensure that he within some reasonable expedition gets the hearing he's entitled to. But a second reason is this petition or situation is not unique. As this Court knows all too well there are prisoners all over the country seeking remedies, frustrations here and there through the state courts up here, and into the federal district courts, finally this kind of merry-go-round in their brief. And it seems to me the problem has reached such proportion, it's appropriate. Now, if the case is here, the issue is here too. But this Court simply could cut through this kind of Gordion knot and straighten the matter out, make it plain that the courts which condemn the man are the courts which was to hear his claim that he's being unconstitutionally condemned. And in light of that, the statute really doesn't affect the basic posture of the case.
Byron R. White: Well counsel, I would think that this is -- this remind well of a file that something that they have to -- the statute was signed by the governor and that he might have had his hearing already. But he's taken away.
Daniel J. Meador: I suppose that he could have done that but --
Byron R. White: I'm just answering you, you said plead at sometime --
Daniel J. Meador: My point, I suppose is that even if he files a petition today and tomorrow or any time, he has no guarantee of getting a hearing. Now, if he had no other case going, that would be just a fact of life we have to live with. But now that he brought his case for some two years already, out of the five of his sentence, now up to this level, the question is here, it seems to me the petitioner is entitled have the State rectify its constitutional violation. Judgment before the Court here isn't an unconstitutional judgment that denies all right to hearing, and therefore it cannot stand. The only question, it seems to me before the Court is a kind of mandate the case goes back on, whether it's a mandate hearing be given, or simply a mandate that for the state court to take another look at it and possibly deny him hearing. One further --
Arthur J. Goldberg: (Inaudible)
Daniel J. Meador: First, I would say that with all due respect to the Attorney General of Nebraska, I don't believe he can control the courts of Nebraska in how they handle the statute, what they do with it. There's enough experience to see that the court can go many different ways with the statute of this kind. So I would say that kind of oral representation here is really beside the point as far as guaranteeing the hearing.
Arthur J. Goldberg: (Inaudible)
Daniel J. Meador: Yes sir. Well, that would be alright with me so long as the mandate says a hearing is required by the State.
Potter Stewart: Or is it your claim that you emphasize this hearing business -- is it your claim that if the files in the records conclusively show that everything this -- or every allegation in this petition for habeas corpus is false and that this man was deprived of a lawyer from first to last, that a hearing is still required? That goes way beyond Section 2255 of the federal system.
Daniel J. Meador: No sir. I would not contend that that if upon the remand of the case when the State does come in and file its answer, we have no way of knowing what that will reveal, it's possible. It's highly possible just as the federal district court on habeas corpus might resolve and dismiss it without an evidential hearing. That would certainly be open to the State.
Potter Stewart: Not to give a hearing?
Daniel J. Meador: Yes sir, not to give a hearing. But my point is the State has made so far, no inquiry at all into the truth of the allegation.
Potter Stewart: I understand that.
Daniel J. Meador: Or even into whether there's been a waiver of the claim now I'll say. There's simply been no inquiry, and that's what the Constitution prohibits.
Potter Stewart: I understand that but you're -- and I now understand, I think, that you're not just saying this is a blanket rule and there has to be a full evidentiary hearing in every case regardless of what the client's records may show.
Daniel J. Meador: No sir. A better way to put it maybe there must be an inquiry.
Potter Stewart: Right.
Daniel J. Meador: Of some kind. Jennings against Illinois for example, in speaking of a state hearing, mentions an inquiry into the verity of the allegations or a finding that the claim has been waived in some fashion previously. Some such inquiry has to be made, and this is -- what we have here is a total refusal to make any inquiry at all.
Speaker: (Inaudible)
Daniel J. Meador: It might very well, yes sir. Assuming there had been somewhere a full and fair opportunity to litigate constitutional claims.
Speaker: (Inaudible)
Daniel J. Meador: Yes.
Speaker: (Inaudible)
Daniel J. Meador: That would satisfy the Constitution, it seems to me.
Speaker: (Inaudible)
Daniel J. Meador: Correct.
Potter Stewart: Now, let's take the case of a coerced plea of guilty. How could that possibly be ventilated at the crime?
Daniel J. Meador: I doubt that it could be. And if it hasn't been the Constitution requires that there'd be some opportunity somewhere somehow for it to be litigated.
Potter Stewart: Why do you say more on that? The Constitution requires that a state provide that.
Daniel J. Meador: Right. In the state courts, I certainly add that. I might add one further observation about why it is very important, desirable at this time to go up into this, the kind of mandate here and that is that it seems to me, we have here a circumstance, somewhat analogous it seems to me, what court faced in Mapp against Ohio when it looked at the exclusionary rule of the illegal evidence. We found that since Wolf against Colorado, the refusal of the Court here or the failure of the court to make that rule applicable in the state courts had really not worked well and that experience had exposed that it was necessary then in Mapp to bring the rule up in the state courts. We have a similar circumstance here, experience had shown, it seems to me, and time has shown that the non-enforcement so to speak or the failure of the court to require the state affirmatively to meet the obligation to hold a hearing is causing undesirable consequences tending to distort the federal system, feeding more and more cases over into the federal district court and drawing those courts into local criminal administration. To make the state itself correct its own constitutional violations would seem to me to be a healthy thing because it might -- a state court would be a little more attentive to whether those violations occurred in the first place. Not only that it's in the state's own interest that an effective and early hearing be held that prisoners not have to wander it through this labyrinth as they do now because if the conviction is invalid, the evidence is still around, and the State can retry. So it's an interest, it seems to me, every consideration points toward this, the interest in expeditious effective criminal administration, the state federal relationship in this field, as well as in this particularly the case guaranteeing the petitioner, some time within the span of this five-year sentence that he gets the hearing that he is constitutionally entitled to. So the new statute and all that is still the mandate petitioner asked for.
Earl Warren: Mr. Kammerlohr.
Melvin Kent Kammerlohr: Mr. Chief Justice, may it please the Court. I believe I can be quite brief here. I would like to point out Mr. Meador, counsel for petitioner, is really saying here, and it's in his brief. He wants a sanction on this remand even before the new statute was passed, that if Nebraska did not provide a remedy on remand that the petitioner be brought back up here and discharge without any evidentiary hearing. Now, that's the thing that I would primarily like to make an objection to that that doesn't get to the meat of the case, to that question involve of whether these allegations are true or not. That's just simply no way to solve the question, to bring it back up here supposing Nebraska did not have a remedy. Now, the question that Mr. Justice Stewart asked, I do believe that -- we believe that this does not provide a remedy for petitioner, this new statute.
Byron R. White: What?
Melvin Kent Kammerlohr: We do believe that this does provide a remedy. This new statute does provide a remedy for the petitioner but like Mr. Meador said, we can't guarantee that some court might or some county attorney who handles the case might object to retroactivity or something of that nature and some court say that the statute isn't retroactive.
William J. Brennan, Jr.: Well can the Attorney General make the representation that no opposition on that score would be interposed with the petitioner under the new statute by this person?
Melvin Kent Kammerlohr: No, Your Honor.
William J. Brennan, Jr.: You cannot make it.
Melvin Kent Kammerlohr: Because this will be handled back in the lower court -- trial court by the county attorney who --
Byron R. White: Do you object, you're at this level, put to a remand on this case, the vacating of the judgment in the remand for the Supreme Court of Nebraska to be considered the case in the light of the new statute? Do you object to that?
Melvin Kent Kammerlohr: No, Your Honor. The -- this Court, in Jennings versus Illinois, in this very similar situation where they had passed a new post-conviction remedy, remanded to determine if the case came within the new post-conviction remedy and if not, you could proceed to federal court. In a recent case passed a few months ago of Henry versus Mississippi --
Byron R. White: I would think the only reason that you might give this remedy or do a remand would be at some court decided -- that the Court decided that he has to file a new petition. Let's assume he filed a new petition in the lower court, let's assume he had last week filed a new petition to the lower court, do you think this new remedy is meant for this kind of a case?
Melvin Kent Kammerlohr: Yes, Your Honor.
Byron R. White: You think you could get a hearing on the allegations you made?
Melvin Kent Kammerlohr: Yes, I do.
Byron R. White: Well, you don't even got counsel.
Melvin Kent Kammerlohr: The only objection I have is attaching any statement on this remand that for future, if we want to talk about the future, for any kind of authority to say that we're going to bring a man back up here and discharge him without any evidentiary hearing at all if the State fail because you're not, it's not the state court that's then being punished, it's the public that's being punished because we have to assume that there's an interest in law enforcement and bringing these people to justice, as well as protecting their rights. And if we're going to discharge them merely on their allegations without an evidentiary hearing, I don't think we're solving any problem.
Arthur J. Goldberg: (Inaudible)
Melvin Kent Kammerlohr: No, Mr. Justice Goldberg I did not. I would only like to foresee -- I see no reason to not proceed along the lines of Jennings versus Illinois and Henry versus Mississippi where this Court said, if the Court could not do it or found it without proper subject that the man could then go to federal district court and get his hearing and I don't see why he should be discharged without a hearing that's all.
Arthur J. Goldberg: (Inaudible)
Melvin Kent Kammerlohr: Yes.
Arthur J. Goldberg: (Inaudible)
Melvin Kent Kammerlohr: To eliminate his –-
Arthur J. Goldberg: (Inaudible)
Melvin Kent Kammerlohr: Yes, we have no objection to that, Your Honor.
Earl Warren: Mr. Meador, I don't know why I started to call -- I'm sorry, I'm just wondering if it would.
Daniel J. Meador: That sounds to me to be the mandate for that one.
Melvin Kent Kammerlohr: One of the -- Mr. Meador's -- one his main contention in his brief has been because of the congestion in the federal district courts that we shouldn't continue saying well, if he's exhausted the state remedy, he can go to the federal district court. But I say that the Congress rightly established this right in federal district court, and if there is congestion there are undoubtedly many things that Congress can do to help this congestion problem. And that is really the question, and it's more important that the man get an evidentiary hearing rather than just discharge him on these allegations. That's really what I want to argue, so I wouldn't like to see any kind of a sanction that he would be discharged in -- if something should happen and he didn't get a hearing, I think you should go in federal district court. Thank you.
Speaker: In part of what was discussed here, Mr. Justice Goldberg's suggestion that he's not to remand the case whether there's a consideration under the statute and being urged in the state court directed the Court to get a remand under the new statutes foreclosing the state court from deciding whether or not under its law, state law the statute does apply retroactively, do you prefer to concede that?
Melvin Kent Kammerlohr: No, Your Honor. I don't believe I would be able to do that --
Speaker: I'm not sure that the question is understood on both sides but that's how I understood you.
Melvin Kent Kammerlohr: I didn't quite understand it and I'd like --
Earl Warren: How did you understand?
Melvin Kent Kammerlohr: That he would then have adjusted his state remedies, I don't think this would ever happen but if that should happen, then he then has exhausted his state remedies and may file petition on federal district court, and the same as has this Court had just done in Henry versus Mississippi a few months ago. Thank you.
Daniel J. Meador: May it please the Court. I'd like to clarify, I don't want to be in the position of conceding something I didn't concede. The mandate I would agree with is the one I understood to be proposed by Mr. Justice Goldberg and that is the case be remanded with directions that a hearing to be held. I'm not sure that it would be altogether appropriate for this Court to say that the hearing has to be held under this act although I would have no objections to that.
Speaker: (Inaudible)
Daniel J. Meador: Yes, you certainly would not do it if you disagree with me. One final point, I might clarify, the State's objection to the discharge without an evidentiary hearing I think is misleading. It confuses the constitutional violation that's before the Court. The question of right to counsel is not before the Court here, that's not the constitutional violation that he will be discharged for. The constitutional violation that he will be discharged for is the violation of his right to a hearing. No evidentiary hearing is required to establish that.That's clear on the record, it's conceded by the State if he hasn't had. That's what he would be discharged for, if the State continued to violate that constitutional right. I don't know if the Court has to abide.
Potter Stewart: By hearing you do mean an inquiry? I mean --
Daniel J. Meador: Yes sir. Perhaps the inquiry is the better word, some kind. Some kind of inquiry -- adequate play of inquiry into the constitutional claim.
Earl Warren: Mr. Meador, on behalf of the Court, I would like to express our appreciation to you for having undertaken the representation for this indigent prisoner. We're always -- always pleased and confident when lawyers are willing to do that as a public service. So we do thank you for it. And Mr. Kammerlohr, we appreciate your frankness and your representation of the interest of the State of Nebraska in this matter.
Daniel J. Meador: Thank you Your Honor.
Earl Warren: Very well.


William H. Rehnquist: We will hear arguments next in No. 85-1517, Colorado against Spring. Ms. Phelan, you may proceed whenever you're ready.
Maureen Phelan: Mr. Chief Justice, and may it please the Court: This case is here today on a petition... or for a writ, rather, of certiorari to the Colorado Supreme Court, which did suppress a statement made by the defendant. I will very briefly summarize the facts, and then I'll explain why the court below misconstrued this Court's decision in Miranda v. Arizona. And I would like to point out that in my opening brief in this Court I really did not go into all of the facts that supported the trial court's conclusion that this waiver was knowing and voluntary. So this is really my opportunity to get those facts out. Again, the case involves the validity of this Miranda waiver. The facts are that the defendant here agreed to sell some stolen guns to Federal agents. They were Alcohol, Tobacco and Firearms agents working undercover. He was arrested during the sale. He was put into a police car, and he was given his Miranda warnings at this time. In addition, he was also given an additional warning that he had the right to stop questioning at any time; and he also had the right to stop questioning for the purpose of obtaining counsel at any time. He was then driven down to the local ATF offices... this was in Kansas City... and he was again given the warnings, and again, given the additional warnings. At that time, he signed a written waiver, and this written waiver is included in the record. It's very specific. It states that he did not want an attorney at this time; that he was willing to answer questions; that he understood what he was doing; and that no promises, threats, pressure or force had been placed upon him. Some of the additional factors showing that this waiver was voluntary is the fact that this defendant was 23 years old, and at the time of this transaction, had quite a lot of prior involvement with the criminal justice system. He had murdered his aunt when he was 10 years old, and shot another aunt at the same time. And then when he was 18 and first released from his juvenile detention, he was convicted in Iowa of a robbery. About two weeks later, he was convicted also in Iowa of a forgery case. And a couple of years later, at the age of 20, convicted again in Iowa of robbery without aggravation. There's nothing in the record to show that this defendant was anything less than average intelligence. There's no indication of any sort of incompetence, no claim of any--
John Paul Stevens: I wonder about that last statement.
Maureen Phelan: --I'm sorry, Your Honor?
John Paul Stevens: Nothing in the record to show that he's less than average intelligence?
Maureen Phelan: Yes, Your Honor.
John Paul Stevens: Well... what was it he said, I shot some guy once? Was that what he said?
Maureen Phelan: Yes, Your Honor.
John Paul Stevens: That's a pretty brilliant statement.
Maureen Phelan: The fact... the other factors would also show there was no long, intensive interrogation in this case. He spoke quite readily and quite freely with the officers when he did agree to speak. This interrogation did occur during normal business hours. It was at 3:00 o'clock in the afternoon. He was asked during this interrogation about the gun charges, where he had obtained the guns, things of that nature. And at the end of it, he was asked several questions concerning a homicide in Colorado. The ATF agents knew about this homicide because the informant who had told them about the gun transactions had also told them that this defendant had admitted to them that... or had admitted to him, the informant, that he had murdered someone in Colorado. Based on all of these factors, the trial court found that the defendant here was properly advised; that he was aware of his rights; that he responded freely, voluntarily and intelligently; and specifically found that there was no element of duress or coercion used against him. The Colorado Supreme Court, however, agreed with the defendant that his waiver could not have been knowing and intelligent. What the Colorado Supreme Court did was apply the totality of the circumstances test, and they held that his awareness that they might question him... or rather, actually, his lack of awareness that they might question him about this Colorado murder was one factor to consider in the totality of the circumstances. However, then the Colorado Supreme Court took that one step further and held that this was a determinative factor, because if he didn't know all of the possible subjects of interrogation, then he couldn't be aware of the consequences of his waiver. And in fact, the Colorado Supreme Court took the entire analysis another step further and held that this factor, his lack of awareness of the possible subjects of interrogation, is such an important factor that the totality of the circumstances test has to actually be applied to that sole factor. And so it must be determined now, in Colorado, apparently in each case, whether or not the defendant understands all of the possible subjects that he could be interrogated upon after he agrees to speak with the police. So based upon this, the Colorado Supreme Court held that this waiver was not knowing, intelligent and voluntary. And I would insert at this time that the defense has tried to raise an issue here of voluntariness. And although the Colorado Supreme Court's opinion is written in that classic formula of, found to be... or not proven to be knowing, intelligent and voluntary, if we look back at the Colorado Supreme Court's opinion, it's written completely in terms of, and it discusses only, the knowing and intelligent aspects of this waiver. So it's clear that the Colorado Supreme Court confused this knowing and intelligent aspects with a wise waiver. They have found that--
William H. Rehnquist: With what kind of waiver?
Maureen Phelan: --I'm sorry, Your Honor?
William H. Rehnquist: They confused it with some kind of a waiver, you said. And I just didn't catch the adjective in front of waiver.
Maureen Phelan: It's a wise waiver, Your Honor. In other words, they have confused this issue of knowing and intelligent, or especially intelligent, I suspect; they think that in order to be an intelligent waiver, it has to be a wise waiver; and that the consequences that the defendant must be aware of go far beyond the consequence that his statement can and will be used against him. It has to... he has to be aware of far-reaching circumstances surrounding his circumstances. Miranda simply does not go so far by its terms. Miranda requires that the defendant makes his waiver knowing what his rights are. Miranda requires that he makes his waiver knowing the consequences of waiver. And Miranda specifically states what those consequences are. He must know that the State can, and will, use this statement against him. So we would simply submit that by its terms, the Colorado Supreme Court went way too far. Miranda has described traditional police methods. But Miranda did not, by its own terms, actually condemn those methods, as the defendant has tried to imply in his brief. What Miranda did was, describe certain traditional police interrogation methods, and then impose a balancing test on this; and has given to criminal suspects something of a shield against these traditional police interrogation methods.
William H. Rehnquist: We'll resume there at 1:00 o'clock, Ms. Phelan.
Maureen Phelan: Yes, Your Honor.
William H. Rehnquist: We'll resume argument where we left off, Ms. Phelan.
Maureen Phelan: May I proceed, Your Honor? Mr. Chief Justice, and may it please the Court;-- Before the break, I was discussing the Miranda rule, and the balance that that rule was trying to obtain. Of course the two competing societal concerns have been discussed many times now since Miranda. We have the very compelling societal interest in finding and punishing criminals. But we have, on the opposite end of that scale, the possible risk that police will go too far in their efforts and compel admissions in violation of the Fifth Amendment. So the Miranda case did try, despite this--
Sandra Day O'Connor: Ms. Phelan, may I ask you, if the respondent had told police that he was willing to talk to them about the firearms offense--
Maureen Phelan: --Yes, Your Honor.
Sandra Day O'Connor: --but nothing more--
Maureen Phelan: Yes.
Sandra Day O'Connor: --could the officers have then asked him about an unrelated offense, do you suppose?
Maureen Phelan: No, Your Honor, I think that that would be a partial waiver.
Sandra Day O'Connor: Do we have any concern that that was implicitly what the defendant did here, or at least his understanding?
Maureen Phelan: No, Your Honor.
Sandra Day O'Connor: And what if the trial court were to find, or to think, that implicitly the defendant understood and intended to waive his rights only as far as the firearms was concerned?
Maureen Phelan: Then I'm sure the trial court would find only a partial waiver, and suppress any statements concerning anything else.
Sandra Day O'Connor: And do you think that the mere fact that all he is told about and all that, as far as the circumstances indicate, he would think about was the firearms--
Maureen Phelan: Yes, Your Honor.
Sandra Day O'Connor: --offense, would not raise that kind of a question?
Maureen Phelan: No, Your Honor. And of course, he would always be free to ask the police, if he had any concern, if had a guilty conscience, for example, and was wondering what they might know about, he certainly has the option of asking them what they would like to discuss, and of making that partial waiver. But there is no indication in this record at all that he intended that--
Speaker: And he could always stop.
Maureen Phelan: --Yes, he could, Your Honor. Plus, the consequence which is spelled out to him in the warnings is that anything you say will be used against you. So that's pretty clear, that whatever we start talking about, if you say something that can be used against you, we will use it against you. The balance which was struck by Miranda was to give the defendant some control, as you pointed out, so that the defendant has the power to control somewhat the time of interrogation; the subjects of interrogation; whether or not an attorney will be present at interrogation. Therefore, the court held... and this was underscored recently in Moran v. Burbine... that traditional interrogation may continue, but only if the defendant does understand that he has the right to silence, right to counsel, and that anything he says will be used against him. The Colorado Supreme Court rule upsets this Miranda balance, and with no benefit. The rule harms legitimate law enforcement for the obvious reason that if we have to get into discussing things far beyond the rights, things that may go to his self-interest, then it will discourage confessions. There's the further possibility that it could actually danger... endanger, rather, police out in the field, because what they may know, which they wish to discuss with him further, may concern something like a continuing investigation out in the field concerning undercover agents. And in fact we know there were undercover agents involved in this case. On the other end, to balance it off, there is nothing to balance it off, because this doesn't protect the defendant's Fifth Amendment rights any more. It only protects him against himself. And there's no provision in the Constitution that a defendant has to be protected from himself; only from the police.
William H. Rehnquist: Well, the Fifth Amendment really protects you from yourself in a way in saying that you can't be required to compulsorily incriminate yourself.
Maureen Phelan: That's protecting you from the police, Your Honor. This rule adopted by the Colorado Supreme Court would completely destroy the bright line rule that Miranda has crafted. One of the obvious virtues of Miranda, mentioned by this Court over and over again, is that it is very clear. It's very easy to understand. It's very easy for the police to use. They know how to use it. They've all got little cards that they carry around in a pocket, and when they arrest someone, they pull out the little card, and they read the rights. It's very clear. The rule advocated, or found, by the Colorado Supreme Court is not clear at all. It would completely destroy this bright line test. It's not clear at all how specific the police would have to be in discussing all of the possible subjects of interrogation; it... it adds in a question of police judgment that Miranda was never designed to have. Because the police will have to use judgment in any interrogation situation in deciding whether or not the defendant has opened up possible new subjects of interrogation. They would have to use their judgment to decide at exactly what point they would have to stop and readvise him.
Antonin Scalia: What about a more narrow proposition that when the State, going into the interrogation, misleads the suspect into thinking that they want to question him about subject A, when at that time, when they're going in, they intend to question him about subject B, that's no good. Why would that be such a disaster?
Maureen Phelan: Well, that is a more difficult question, Your Honor. It--
Antonin Scalia: But isn't that the question we have here?
Maureen Phelan: --No, Your Honor. There's... there's no misleading here. There's just a lack of information.
Antonin Scalia: They arrested him on a firearms charge, right?
Maureen Phelan: Yes, Your Honor. And it certainly wasn't... was not a sham.
Antonin Scalia: Did he know he was arrested on a firearms charge?
Maureen Phelan: Under the circumstances, he should have.
Antonin Scalia: He knew that that's what the charge was that he was arrested on.
Maureen Phelan: Yes, Your Honor.
Antonin Scalia: And then they say, we want to ask you some questions.
Maureen Phelan: But they didn't specifically say, we want to ask you some questions about the firearms.
Antonin Scalia: Oh, he thought it was on, what, theology?
Maureen Phelan: Well, Your Honor, I would suspect that he should have known that it was anything--
Antonin Scalia: On the firearms charge, I would guess.
Maureen Phelan: --On anything that they might know about it.
Antonin Scalia: I wouldn't have guessed that.
Maureen Phelan: Well, for example, Your Honor, as part of the firearms charges, where he obtained the firearms was in Iowa in a residential burglary. And he would really have no way of knowing that the police might know about that. But should they specifically say, you may also be a suspect in a burglary? It would seem as though, if they give him the rights, he knows he doesn't have to speak to the police, then that is the actual information that he needs to know. I think to go back to your initial question--
Antonin Scalia: Well, that may be a good rule. But is, at least, not a disastrous confusion that we would be creating if we adopted the rule that if you arrest somebody on charge A, knowing at the time that you intend to question him not about charge A but about charge B, the waiver is ineffectual.
Maureen Phelan: --Well, Your Honor, this Court could, of course, adopt that rule, and add on that fifth Miranda requirement. But there would be... in a sense, the Court would then be opening up the floodgates. Because the theoretical underpinnings for that rule would have to be that the consequences that he would have to be aware of are all those consequences that go to his self-interest. The next hypothetical case I could see before this Court would be one where they told him the nature of the charges but they didn't tell him all the elements. The next one after that would be one where they didn't explain the possible severity of the punishment.
John Paul Stevens: Well, Ms. Phelan, is that really a fair treatment of Justice Scalia's suggestion? Because there is language in Miranda, and I think you've acknowledge this, that if there's trickery involved, or something like that, that then that would make waiver invalid. I suppose at least it'd be theoretically possible to say that in order to avoid trickery there is an obligation to give some information about the extent of the proposed interrogation. And I... I thought you suggested earlier, maybe I misunderstood you, that if they had said to him, we want to question you about the firearms charge, said nothing else, would that raise a question about what they did here?
Maureen Phelan: Do you mean is they specifically, quote, we want to talk to you about the firearms charges and nothing else, end quote.
John Paul Stevens: Well, I... all right, take that case. Supposing they said that.
Maureen Phelan: Okay. Then I think that that may go to his essential understanding of his rights. That may serve... we would have to get the real facts in a case to see that, but it may serve to undercut his understanding that anything he says can be used against him.
John Paul Stevens: Well, what if instead, they left the words, and nothing else, out?
Maureen Phelan: If they just said...?
John Paul Stevens: We would like to question you... we have probable cause to believe you're engaged in trafficking in illegal firearms. We want to question you about that subject, period.
Maureen Phelan: And of course, you have the right to remain silent, et cetera, et cetera.
John Paul Stevens: And all the rest, of course.
Maureen Phelan: Yes, Your Honor, I would say that was perfectly valid.
John Paul Stevens: But if they added the words, "and nothing else". "The only thing we want to ask you about is the firearms. " Then you say that might be different?
Maureen Phelan: "And nothing else". Well, I don't want to really take the position and say that that would be valid or invalid, because it's really not the case here. I think that that's one at those cases that will really depend on the facts as they end up showing up in the record. But it could serve to undercut--
Antonin Scalia: Why does it go to his... why does what Justice Stevens has been asking you go ta whether he understood his rights? Doesn't it go to what the scope of his waiver was? We just had a scope of waiver case... case before this. And isn't this... doesn't that question go to the scope of the waiver?
Maureen Phelan: --Yes, Your Honor.
Antonin Scalia: If somebody says, we want to question you about the firearms, and he says, okay. What is he saying okay to? He's saying okay to questioning about the firearms.
Maureen Phelan: Well, of course, it wouldn't be a vacuum. We want to question you about the firearms. You have the right to remain silent, et cetera, et cetera. Okay, I'll speak to you. And we have a very specific waiver in this case--
Antonin Scalia: About the firearms, I mean if that's the question, isn't it?
Maureen Phelan: --Yes, Your Honor. But we also have... for example, in this case, the very specific waiver saying, I'm willing to answer questions. It's not limited. It's not a limited waiver.
Antonin Scalia: It seems to me the issue is, whether, when he said that, he meant only, and could reasonably have meant, only questions about the firearms offense. But there's no indication in this record that that's how the question was put to him.
Maureen Phelan: No, Your Honor.
Antonin Scalia: He was arrested on the firearms charge, and simply asked, will you be willing to talk to us?
Maureen Phelan: He was arrested during this firearm sale. He was given the rights. There's no indication in the record that anybody mentioned anything about charges. From the circumstances, he would certainly assume that it had to do with the sale.
Sandra Day O'Connor: The Colorado Supreme Court suggested, though, that the agents acted deceptively. I think they... the court stated that the agents led the respondent to believe that he would be questioned about one crime, but then interrogated him about a totally unrelated offense.
Maureen Phelan: Your Honor, I think that reflects a less than careful reading of the trial court's specific findings of fact here. The trial court found no--
Sandra Day O'Connor: So you think that the Supreme Court was in error--
Maureen Phelan: --Yes, Your Honor.
Sandra Day O'Connor: --when it made that statement?
Maureen Phelan: Yes, Your Honor. And plus, I don't think that that's really the lynchpin of the Supreme Court's decision. I really think that they were intent on adding on this... this fifth warning requirement. I see that my white light is on. So if there are no further questions, I would save my further time for rebuttal.
William H. Rehnquist: Thank you, Ms. Phelan. You have no further time. We'll hear now from you, Mr. Robbins.
Lawrence S. Robbins: Mr. Chief Justice, and may it please the Court: I'd like to begin my remarks by addressing the questions regarding deception that were posed at the tail end of my co-counsel's argument a few moments ago. First, a factual question raised by Justice O'Connor about what it is exactly the Supreme Court of Colorado said. As I recollect the opinion, Your Honor, what they said was that there's some suggestion that the police may have told respondent that their questions would be in connection with a particular subject matter. The Colorado Supreme Court, I don't think, goes further than to say that that might be reflected in the record. My reading of the record suggests that there's no... not even a whisper of that. In point of fact, the written waiver executed by respondent on March the 30, 1979, is not even in the slightest tied in to a particular crime. And that written waiver, which acknowledged the receipt of the rights, the understanding of the rights, and the decision to waive the rights, which respondent signed, and which this Court in North Carolina v. Butler said is strong evidence that the waiver is valid, was in no respect... did in no respect incorporate any specific crime. There's no testimony that the agents, the ATF agents, in proposing the waiver to the respondent told him that it would be in connection with a particular crime. With all respect to the Colorado Supreme Court, I suggest that that is simply an invention that is in no respect reflected in anybody's testimony. Mr. Spring, by the way, did not testify at the suppression hearing, so that point couldn't have emerged from his testimony either. There's simply nothing to suggest that kind of trickery. More fundamentally, however... and this addresses, I think, the questions posed by Justices Scalia and Stevens... it does not seem to the United States that trickery and deception within the meaning of Miranda could possibly comprehend the kind of deception and trickery that the Supreme Court of Colorado may have been averting to. In point of fact, respondent suggests in his brief that the agents structured their questions in such a way as to enshroud their real agenda. As respondent sees it, the agents tricked him into believing that they were simply investigating a firearms case; not a homicide case; and so deceived, the respondent involuntarily waived his rights. Well, there's no disputing that under Miranda a waiver cannot be the product of trickery or deception. There's no quarrel about that. But even if the failure, the simple failure, to disclose the topics of interrogation were part of a calculated effort by the agents to deceive the respondent... a conclusion, by the way, which the trial court flatly rejected, and which neither appellate court disturbed in the slightest... that is simply not the kind of deception that Miranda is talking about. As this Court held last term in Moran v. Burbine the kind of trickery that can vitiate a waiver is conduct, "that deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. " I suggest that questions posed of a suspect, even if structured in such a way as to camouflage the officers' true agenda, cannot fit within this closely cabined rubric of deception as proscribed by Miranda.
Antonin Scalia: Why wouldn't it affect the consequence of abandoning his rights? He thinks the consequence is that he may give some information about the firearms offense, and it turns out he's giving information about a murder?
Lawrence S. Robbins: In a sense, it refers to the consequences. But I think as Moran against Burbine makes plain, Justice Scalia, consequence is a bounded concept. It doesn't refer to every consequence that may emanate from the choice a suspect makes. The only consequence... the only consequence... that Miranda is intended to inform the suspect about is the simple and single consequence that anything he says can be used against him. The respondent knew that much, and more than that, he's not entitled to know. It follows from this Court's explanation of the concept of deception in Moran, the kind... the limited concept of deception that Miranda forbids, that hiding the ball, as it were, in this fashion, could not be the kind of deception that Miranda forbids.
John Paul Stevens: Well, Mr. Robbins, does that mean that for example if the police officers falsely told him they had a lot of evidence that implicated him, and it was just totally contrived, that wouldn't affect his understanding of his Constitutional rights, but that would not be the kind of deception that would be implicated by Miranda?
Lawrence S. Robbins: It would not.
John Paul Stevens: And you think that would therefore be completely permissible?
Lawrence S. Robbins: That may be a different question, Justice Stevens. And I'd like--
John Paul Stevens: It seems to me it's this question, because it's outside the Constitutional right waiver category.
Lawrence S. Robbins: --Well, there are limits, mandated by the due process clause, that may arguably be implicated by police conduct. Miranda is a different set of rules. It is intended to engraft specific prophylactic rules.
John Paul Stevens: But my example wouldn't fit the trickery, so forth, language in Miranda. It would be--
Lawrence S. Robbins: I'm sorry?
John Paul Stevens: --The example I put would not fit the trickery language in Miranda; rather, it might be a due process violation--
Lawrence S. Robbins: It might in a proper case.
Speaker: --Yes, and that's--
Lawrence S. Robbins: Although it does seem to me that that particular case is foreclosed by certain of the decisions of this Court about misstating the nature of the evidence. And I think this Court catalogued some of those cases in deciding the issue of trickery in Moran v. Burbine. More fundamentally, it seems to me, the complaint that respondent suggests about trickery in this case, betrays an aversion to the very concept of interrogation that simply cannot be squared with what this Court has uniformly said about the necessity of conducting lawful interrogation. Simply to assert, as respondent does, that the agents played their cards close to the vest during the interrogation, says no more than that they did their job well. Police interrogation obviously may not take the coercive forms forbidden by this Court over the years. But neither, I suggest, is it to be governed by the rules of Victorian etiquette. Simply to describe police methods as deceptive substitutes metaphor for analysis. Indeed, a good deal of what constitutes effective and lawful police work is effective precisely because it is deceptive. Wire-tapping is deceptive. Using informants is deceptive. Consensual monitors are deceptive. Body recorders are deceptive. They are all deceptive. But when used appropriately and lawfully, there's nothing unconstitutional about them, and nothing forbidden by Miranda about them. Whereas here, the police did nothing that can be said to have obscured the meaning of the Miranda warnings, nor in any sense intimidated respondent into waiving them, a court has no authority, under the Constitution or under Miranda, to refuse, as the Colorado Supreme Court did, to enforce that waiver. If there are no further questions, thank you very much.
William H. Rehnquist: Thank you, Mr. Robbins. We'll hear now from you, Mr. Benezra.
Seth Jeremy Benezra: Mr. Chief Justice, and may it please the Court: The issue presented in this case is a narrow one. The issue is not whether police officers, prior to questioning, must inform a suspect of all the possible subjects of interrogation. Rather the issue is whether the Colorado Supreme Court, given the particular facts and circumstances of this case, where Mr. Spring was being investigated on weapons charges, and was then interrogated on a completely unrelated homicide, correctly concluded that in the totality of the circumstances, the prosecution had not met its burden of proving a valid waiver. The petitioner has given you its view of the facts in this case. I would make the following additions and corrections. Early in February of 1979, John Spring was involved in the shooting death of Donald Walker in Craig, Colorado. In mid-February of that year, Spring told George Dennison, of Kansas City, Missouri, about the shooting. In late February, Dennison contacted Harold Wactor, an agent with the Kansas City office of the Bureau of Alcohol, Tobacco and Firearms. Dennison informed Wactor that Spring was involved in a plan to steal firearms, transport them interstate, and sell them. Dennison also informed Wactor of Spring's involvement in the Walker homicide. On March 23rd, 1979, informant Dennison set up a telephone conversation with Spring which was tape recorded by ATF agents, and during which, Spring arguably implicated himself in the murder. On March 30th, Spring was arrested in Kansas City, Missouri, curing an actual hand-to-hand sale of stolen firearms to Federal agents. To reiterate, at the time of Spring's arrest on firearms charges, the Federal agents knew of the Colorado homicide; knew of Spring's involvement in the crime; and were in possession of a taped phone conversation in which Spring arguably implicated himself in the murder. Following his arrest, Spring was read his rights by Federal agents. Spring waived those rights. Spring was not advised that he was a murder suspect. And as the Colorado Supreme Court noted, there was no basis to conclude that Spring could reasonably have expected that the interrogation would extend to the to the Walker murder. Spring was questioned first about the firearms transaction. He was then asked if he had a criminal record; if he had shot anyone else; if he had been to Colorado; and finally, whether he had shot Donnie Walker west of Denver. As the Colorado Supreme Court noted, nothing about the interrogation, leading up to the final questions regarding Walker and Colorado, would have suggested to Spring that a topic of inquiry would be the Colorado homicide. The Colorado Supreme Court applied the totality of the circumstances test enunciated by this Court in North Carolina v. Butler, and Fare v. Michael C, in holding that Spring had not validly waived his rights with regard to the homicide. In reaching its conclusion, the court noted that at the time of the waiver on firearms charges, Spring was totally unaware, and had no reason to be aware, that he was to be questioned about the Colorado homicide. The court emphasized that the record offered little with regard to Spring's intelligence, or his acquaintance with the criminal justice system. And just to respond to some of the comments of the petitioner, nothing in the record of the suppression hearing... nothing in the transcript of the suppression hearing indicates anything about a prior criminal record, with the exception of a juvenile record for shooting his aunt. So that information was not before the trial court, and I'm not sure what the source of that information is. The court took into account the particular circumstances surrounding the interrogation, including the fact that the Federal agents had information about a much more serious crime; withheld that information from Spring; as well as the dramatic shift in the focus of the interrogation which occurred in a misleading fashion. It thus seems clear that the court was concerned with the impact of the interrogation techniques employed, on Spring's opportunity to exercise his rights with regard to the homicide. Given all these circumstances, the Colorado Supreme Court held that the prosecution had not met its burden of proving a valid waiver with regard to the homicide. In Miranda v. Arizona, this Court held that to protect the individual's privilege against self-incrimination, concrete Constitutional guidelines must be established for police officers and for courts to follow. The Court thus held that prior to custodial interrogation, a suspect must be advised of the now-familiar Miranda warnings. Like the warnings, a suspect's waiver of his rights is indispensable to the admissibility of his statements. This Court has held that a waiver must be knowing, intelligent and voluntary, and must be made with an understanding of the consequences of waiver. In deciding whether--
William H. Rehnquist: What do you think, though, the Miranda Court intended when it talked about knowing the consequences, Mr. Benezra? I've always thought that it was the fact that what you said could be used against you, and really nothing more. But I think the Colorado Supreme Court took a considerably broader approach, didn't it?
Seth Jeremy Benezra: --This Court, in Miranda, indicated that the consequence of waiving the rights was that the statement would be used against you. This Court did not indicate, however, that that was the only consequence a defendant needs to be aware of. The Colorado Supreme Court's analysis does not seem to turn on an evaluation of the consequences really facing the defendant in this case.
Byron R. White: Well, surely, he's supposed to know that he can remain silent.
Seth Jeremy Benezra: That's correct.
Byron R. White: And that he can have an attorney.
Seth Jeremy Benezra: That's correct.
Byron R. White: And isn't... isn't, as far as waiver is concerned, isn't there a new waiver everytime a question is asked and he answers it? Because at that time he can always refuse to answer, and say, I prefer to remain silent?
Seth Jeremy Benezra: That's correct.
Byron R. White: And if it's perfectly... suppose that all the questions that were asked here were very relevant to the firearms charge; just suppose that. The only thing is that the police had some suspicion about the fact that he might be implicated in a murder. And they really intended to ask him about the... I mean, they were driven to ask these questions not only on the firearms charge but on the murder. I don't suppose that there'd be anything wrong with that. Perfectly valid questions; perfectly relevant to the firearms charge.
Seth Jeremy Benezra: It also went to... also went to the murder, is that the question?
Byron R. White: Also went to the murder, but he never suspected that he was suspected of the murder.
Seth Jeremy Benezra: I don't think that would be a problem in Colorado.
Byron R. White: Yes. Well, suppose that the questions, however... it was perfectly clear, when they asked a certain question, that this has nothing to do with the firearms charge. They say, well now, we want to talk about this murder. And they ask him a question and he answers it. Now, why isn't that a valid waiver?
Seth Jeremy Benezra: That may very well be a valid waiver under the rule in Colorado.
Byron R. White: Well, why is that different from this? They got to the question, and you said that when they got to this... these two questions, it was perfectly plain they were leaving the firearms charge. Why wasn't that as plain to him? And he had refused to answer some earlier questions too, hadn't he?
Seth Jeremy Benezra: On this particular... on this particular day?
Antonin Scalia: Yes, I thought that he--
Seth Jeremy Benezra: I don't believe the record indicates that.
Antonin Scalia: --Not that day, but on another day?
Seth Jeremy Benezra: Yes, on another day.
Antonin Scalia: Well, he knew he could-- --He knew he didn't have to answer. He had previously declined to respond to some questions that they asked.
Seth Jeremy Benezra: That's correct. I think the... what the Colorado Supreme Court was considering in this case was that there was a subtle shift from these questions that bore no direct relation to the Colorado homicide to the questions that did. And I think the Court heavily weighed the fact that the record was silent with regard to his intelligence--
William H. Rehnquist: Well, does it make any difference whether it's a subtle shift or a dramatic shift? You now characterize it as a subtle shift. What if, in so many words, the agent had said, all right, now let's go back to several years before, go back to this canyon in Colorado and talk about what happened there? Not subtle at all. And he answers.
Seth Jeremy Benezra: --I think that would present a very different case. I think in that case the court may very well find that he's on sufficient notice at that point. The court was concerned here with the shift. The court was also concerned that there was very little in the record about the defendant's background and his experience with the criminal justice system. And I think what's implicit in this decision is the view that he may not have realized at that point that the subject matter was shifting; and he may not have therefore had the opportunity to exercise his Constitutional rights. And I think that's what's implicit from the discussion of all the circumstances that the court goes through in the case.
Antonin Scalia: Mr. Benezra, I'm not quite clear on what the argument here is. Is your argument one or the other of these, or both of these: that he didn't understand the scope of his waiver, he had been deceived so he didn't have the knowledge that was necessary; or is it rather that the scope of his waiver did not extend to these questions?
Seth Jeremy Benezra: I think it is that the scope of his waiver did not extend to these questions; that he... there was no evidence that he waived his rights with regard to the homicide. And that is the language that the Colorado Supreme Court used. In the instant case, the Colorado Supreme Court held that one factor to be assessed under the totality approach is the extent to which a suspect is aware, or reasonably should be aware, of the subject matter of the interrogation prior to its commencement. The court specifically rejected the per se rule, which had been adopted by the Colorado intermediate court for rendering invalid any waiver where a defendant is not specifically advised by the police of the nature of the offense prior to questioning. The court held that in all such cases the proper standard for determining the validity of a waiver is the totality of the circumstances. The Colorado Supreme Court's decision is correct. Under certain--
Antonin Scalia: xxx scope. It means the scope of the waiver, right?
Seth Jeremy Benezra: --Yes, it goes to the scope of the waiver. The Colorado Supreme Court's decision--
John Paul Stevens: I know, but may I just ask you, you've accepted Justice Scalia's suggestion that they just decided on the scope of the waiver. But I'm not sure you get that out of the Colorado Supreme Court opinion. Don't they say the waiver was invalid? At least I know that's how Justice Erickson read the majority opinion. He said the waiver was invalid. Or do I misread it?
Seth Jeremy Benezra: --The court, in its opinion, indicated that he had not made a knowing and intelligent and voluntary waiver with regard to the homicide.
John Paul Stevens: Oh, I see. Okay.
Seth Jeremy Benezra: The Colorado Supreme Court's decision is also supported by this Court's decision in Fare v. Michael C. In Fare, this Court, in upholding the validity of the respondent's Miranda waiver, noted that the respondent was aware that he was to be questioned about a murder. Fare suggests that a suspect's awareness of the nature of the offense is a relevant factor under the totality of the circumstances. Petitioner asserts that the ruling of the Colorado Supreme Court would, in practice, require the police to take on the role of counsel. According to petitioner, police officers would have to inform the suspect of possible charges, the evidence they have, the legal elements of the offense, possible defenses, likely penalties. Simply put, nothing about the Colorado Supreme Court's decision goes so far. Spring speaks only about the facts of this particular case, where Spring was led, by all the circumstances, to believe he would be questioned only about firearms, where ATF agents obtained a waiver with regard to that offense, but where Spring was then questioned about a totally unrelated homicide. It is also important to note that while a number of jurisdictions have adopted the totality of the circumstances approach employed by the Colorado Supreme Court in Spring, they have similarly rejected waiver challenges on the grounds suggested by petitioner. In Moran v. Burbine, this Court described Miranda as an attempt to reconcile society's interest in effective law enforcement with the coercive nature of the interrogation process by giving the defendant the power to exert some control over the course of the interrogation. The Colorado Supreme Court's decision in Spring recognized that on the particular facts here, where Spring was unaware that he was a homicide suspect, ATF agents were able to subtly manipulate the custodial process, and elicit incriminating information before Mr. Spring had the opportunity to make a knowing and intelligent decision to exercise his rights. The Colorado court assessed the totality of the circumstances in determining that Spring had not validly waived his rights with regard to the homicide. The court properly considered Spring's lack of awareness of the nature of the offense and its assessment. The court emphasized that the record offered little with regard to Spring's intelligence or acquaintance with the criminal justice system. The court took into account the particular interrogation techniques employed, and apparently, their impact on Spring's opportunity to exercise his rights with regard to the homicide. Spring reveals a careful and thorough analysis of the totality of the circumstances as is required by this Court's decisions, and its decision should therefore be affirmed. If this Court has no further questions--
William H. Rehnquist: Thank you, Mr. Benezra. The case is submitted.


Earl Warren: Number 54, United States, Petitioner, versus Dorothy Anne Stapf and B. T. Ware, Executors. Mr. Barnett.
Wayne G. Barnett: Mr. Chief Justice, may it please the Court. This is an estate tax case. It's here on certiorari to the United States Court of Appeals for the Fifth Circuit, involves two entirely separate questions and I will state the facts relevant to each in connection with the discussion of that question. Both questions are I think very simple one. The first question is whether the estate was entitled to a marital deduction and I think that question can be fairly stated as being whether it would be quest of property for surviving wife one condition that she conveys property of equal value to a testator's children qualified for marital deduction. Lowell H. Stapf, a resident of Texas died in 1953. He was survived by his wife. At the date of his death, he owned as in separate property real estate valued at $65,000. He and his wife together own as community property assets with the total value of $258,000. His will provided that all of his property, that is his separate property and his half of the community property were to go -- was to go to a trust for the children giving nothing to his wife unless she consented to allow all of the community property to pass according to the terms of the will. If she did so consent, she was then to receive one third of everything, one third of his separate property, plus one third of the community property.
Potter Stewart: Is she -- is she then to like to take under will what was (Inaudible)?
Wayne G. Barnett: She would take only her half of the community property and all of his property, his half of the community property plus his separate property would go to a trust for the children.
Potter Stewart: I think I understand. Under the Texas law, what statutory right to say a surviving spouse has?
Wayne G. Barnett: She is entitled to one-half of all the community property less one-half of the debts.
Potter Stewart: That --
Wayne G. Barnett: Of the community, yes.
Potter Stewart: And -- and --
Wayne G. Barnett: She would have taken -- let me give you the figures. In this case, had she not taken under the will, had she just stood on her rights, her ownership of community property, she would receive net $111,000 with the property.
William O. Douglas: As result of Texas law?
Wayne G. Barnett: As result Texas law, that is correct.
Arthur J. Goldberg: (Inaudible) --
Wayne G. Barnett: No, no. She would get only her half of community property less one-half of the community debts and that would net out to be $111,000. She, in fact, elected to comply with the will and to allow the property to pass under the will. Under the will, she received one-third of his separate property which is worth $22,000 and kept one-third of the community property which is worth $85,000, which totaled $107,000. That is by electing to take under the will, she in fact received $4000 less than she already owned by virtue of her half interest in the community property. So, in order to receive $22,000 worth of the decedent's separate property, she had to sacrifice $26,000 worth of property that she owned in her own right. The question is whether --
Potter Stewart: That is -- that is half of the community property?
Wayne G. Barnett: Well, she kept --
Potter Stewart: 26 --
Wayne G. Barnett: -- she -- under the will, she kept at 30 of the property--
Potter Stewart: Yes.
Wayne G. Barnett: -- which is $85,000. Otherwise, she would have $111,000.
Potter Stewart: Right.
Wayne G. Barnett: -- the difference between (Voice Overlap)
Potter Stewart: -- there's been a third and a half of the community property
Wayne G. Barnett: Which is $26,000.
Arthur J. Goldberg: Well, what happened to the debts?
Wayne G. Barnett: The debts really don't enter in to this part of the case. That's really the second question and I will develop that separately. So, the question is whether the gift to the spouse of $22,000 worth of separate property only on condition that she give $26,000 worth of her property to the trust for the children qualifies for the marital deduction. The Court of Appeals held that it did over vigorous dissent by Judge Wisdom and I think on reflection, it's evident that has very drastic implications because what it means really is that a gift to anyone including remote decedents can be made to qualify to the marital deduction by the simple device of its first exchanging properties with the surviving wife -- surviving spouse. All its necessary is to precede that its positive provisions of the will with a provision giving the property to the wife on condition that she convey property of equal value in accordance with the remaining terms of the will.
William O. Douglas: But the purpose of the election I suppose is to give her a choice of one situation as more advantageous than the other.
Wayne G. Barnett: Well, the election really amounts nothing more than offer made in the will, an offer that I will trade you $122,000 worth of separate my property --
William O. Douglas: (Voice Overlap) position that all elections, widow's elections are --
Wayne G. Barnett: No, not an election, not an election that is an election between two alternative ways of receiving property by descent i.e. between dower and a statutory right, knew of dower. This isn't that kind of election between two alternative kinds of inheritance. She owe -- under Texas law she independently owned one half of the community property, so she is conveying her owned property in exchange for his transfer to her under his will of a share of his separate property.
William O. Douglas: And that's not permissible?
Wayne G. Barnett: It's permissible to do but the consequence cannot be that the estate is entitled to marital deduction. I hope to prove by giving the wife less than she must give to receive it because she has to give up $26,000 to receive the $22,000. Now, I think that would be clear enough even if the statute were silent on the question. In fact, I've --
Speaker: (Inaudible)
Wayne G. Barnett: The limitation on the marital deduction is 50% on just the gross estate.
William O. Douglas: Of the gross?
Wayne G. Barnett: But the full bequest would part of their argument, that limitation is not applicable here. So, anything which qualifies as a deductible bequest to the widow would be fully deducted. We don't reach the limitation in this case.
Arthur J. Goldberg: What if they were even trade?
Wayne G. Barnett: They were even trade. They would amount in our view simply to a -- an exchange of properties not a gift of anything to the wife and it's only for gifts to the wife that you get a deduction.
Speaker: (Inaudible)?
Wayne G. Barnett: A testamentary gift. I'd like to turn to the statute because I think quite surprisingly the statute addresses itself to the very question.
Arthur J. Goldberg: (Inaudible)
Wayne G. Barnett: That is correct.
Arthur J. Goldberg: (Inaudible)
Wayne G. Barnett: That is correct. As a matter of fact in these circumstances, the widow since she gave up more than she got, she would be liable for gift tax on the excess that she conveyed.
William J. Brennan, Jr.: Mr. Barnett, can either of these problems arise from the acceptance of the community property aspect?
Wayne G. Barnett: Oh yes, yes. This question is not at all dependent from a community property aspect. The -- exactly identical --
William J. Brennan, Jr.: Which one, do you mean the marital deduction?
Wayne G. Barnett: -- the question -- it's not a marital deduction question.
William J. Brennan, Jr.: Yes, but the other question which is the --
Wayne G. Barnett: Is I think peculiar to community property.
William J. Brennan, Jr.: Peculiar?
Wayne G. Barnett: I think it is. Well, it depends on what implications you read in to the Court of Appeals' opinion. If you read it in a broadest way, you might find that applicable in common law analogies, but I don't think it really meant to hold anything that goes beyond in community property. Was I answering the question? I'm sorry. Let me go on to the --
William J. Brennan, Jr.: When, I interrupted you, I think you said you're going to turn to statute.
Wayne G. Barnett: The statute is set forth in our brief to page 26, Section 812 (e) (1) of the 1939 Code. Sub-section -- sub-paragraph (A) grants a deduction from gross estate, the so-called marital deduction for an amount equal to the value of any interest in property which passes or has passed from the descendent to a surviving spouse. Sub-paragraph (E) provides that in valuing the interest which passes to the surviving spouse for that purpose, where such interest or property isn't encumbered in any manner or where the surviving spouse incurs any obligation imposed by the descendent with respect to the passing of such interest, such encumbrance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse would be determined. Now, it seems to me that cannot be denied that the -- a requirement that the widow in order to receive the bequest convey property of her own to a third party is an obligation imposed by the descendent with respect to the passing of the interest. Now, the petitioners -- the respondents do challenge that, but I -- I don't see any basis for reading such a limitation into this language. Specific -- particularly is that true because all this provision does is to incorporate the general principles for determining the value of a gift to any particular donee and there's no reason why the corporation would incorporate only a part of those principles. This is simply a general reference to the general principle for determining the value of a gift. I'm indebted in fact to respondents referring in their brief at page 19, a part of the committee report that we did not set out which says as much. It says, "Describes the purpose of this provision as providing for the application in determining the value of any interest in property passing to the surviving spouse of rules which are generally applicable in determining the net value of any gift or bequest. " This is simply an incorporation of the rules otherwise generally applicable. Now, where those rules, the context in which we have to look for those rules is in the context where the identity of the donee is important because the statute asked not simply how much -- how you will determine the total amount of a gift made by the grantor? Here, since the descendent has died, he certainly has given to somebody everything he owned. What it asked is how you determine the amount of the gift to such spouse, to that particular donee and it's there I think that the Court of Appeals went astray and ignored that trade. Now, the context in which the identity of the donee is important, are many. For income tax purposes, the charitable contribution deduction depends upon whether the gift is to a charity. For gift tax purposes, the identity of the donee controls not only the charitable contribution deduction and the marital deduction but also whether -- the extent to which a -- the $3000 annual exclusion is available which is limited to $3000 of gifts to anyone donee whether the gift splitting privilege is available, whether the donee is or who is secondarily liable for the gift tax because the donee is liable for the gift tax if it isn't paid by the donor. Now -- so in all of those contexts, we do have a problem on identifying who the donee of what part of the gift is and that is the context that the estate tax statute refers to and I assert that in every such context, a gift, a transfer from A to B on condition that B make a transfer to C is a gift by A to C and not a gift to B. B is simply an intermediary who makes an exchange of properties. Now, I -- several examples I think will make that very clear. If I --if I give $10,000 to charity, one condition that the charity delivers a hundred shares of stock worth a $100 of shared to my son, no one would suggest that I am entitled to a charitable contribution deduction. On the other hand, if I give $10,000 to a stockbroker on condition that he convey the shares of stock to a charity, I would be entitled to the charitable contribution deduction. Likewise, if I asked the stockbroker to deliver the stock to my son, I think the stockbroker would be surprised to learn that he was a donee who is secondary liable to the gift tax. He might be even more pleasantly surprised when it dawns on him that since it was gift, he wouldn't have to report it for income tax purposes. Again, if I'd already given $3000 to my son so I couldn't take another annual exclusion for gift to him, I don't suppose I could claim one by showing that I never made a gift to the stockbroker. So, every --
William O. Douglas: (Voice Overlap) the different -- that will be much narrower, you know technical question is whether or not that's the meaning of the statute, the wording of encumbrance's obligation means encumbrance on the part of either obligation than (Voice Overlap) --
Wayne G. Barnett: No obligation imposed by the descendent with respect to the passing of interest. I have said and I think it is evident that --
William O. Douglas: This can be --
Wayne G. Barnett: -- a requirement --
William O. Douglas: -- it could be granted anywhere I suppose -- isn't that nub of it whether it's encumbrance on the property (Voice Overlap) --
Wayne G. Barnett: And not -- not that we --
William O. Douglas: Or whether (Voice Overlap) --
Wayne G. Barnett: -- it's an obligation imposed with respect to the passing of property.
William O. Douglas: Yes.
Wayne G. Barnett: And by my first answer literally, this is an obligation imposed, i.e., a requirement that in order to receive it, you must do something is an obligation imposed with respect to a passing of an interest. And secondly, that the community reports made clear that all this is, is a general reference to the general rules to determine the amount of a gift to a particular person. That's the only reason for this provision being there which confirms my reading of obligation is not meaning in its specific kind of obligation. The -- now, I think --
William O. Douglas: If -- if you're right on that of course, then you get clear understanding.
Wayne G. Barnett: Yes, well, I think it's perfectly clear than any other context there's no gift from A to B but B is required to make a transfer to C as a condition of receiving the gift except to the extent that the transfer to B exceeds the transfer that he is require to make to C and I say that that provision of estate tax provision -- of the estate tax on a section specifically incorporates those general principles and that's why it is there.
Arthur J. Goldberg: (Inaudible)
Wayne G. Barnett: That is correct, that is correct. Anything that -- that his will gives certain excess of what she is required to give the children would qualify for marital deduction. Since in this case, she had to give up more than she got to marital deduction and I -- that really is our case on the marital deduction question. I think it is as simple as that. The second question -- let me add the regulations are very specific on this question. They clearly -- they have example which is in this very case that submitted by respondent, submitted by the Court of Appeals respondent from (Inaudible) only by holding that regulation is invalid. The second question is whether the estate is entitled to a deduction for the share of the community debts that would otherwise be chargeable to the wife's half of the community property. Now, I say there's a similar question involving the administration expenses, but since the debts are much more important in amount and we -- both parties agreed to be controlled by the same principles, I would make the oral argument in terms of the debts but not specifically touch under administration expenses. The community estate, which in Texas law, it has an independent existence from the husband and wife individually. The community estate had asset of $258,000 as I have said. It also had debts of $32,000 which consisted primarily of income taxes owing on community income. Now, only one-half of the community assets were includable in the decedent's estate admittedly and our argument is that only one-half of the community debts were deductable from it. Now the decedent's will, however written, contained a provision directing his executors to pay all of the community debts, not merely one half, out of his half of the community property because of that provision, the estate claims that it is entitled to deduction for all of the community debts. That is both which half allocable to his half and half allocable to her half and the Court of Appeals had held the claim again, Judge Wilson dissenting. Now, I would like to start the statute on this provision is at page 25 of our brief and it provides that there shall be deducted from the gross estate such amounts for claims against the estate as are allowable under the laws of the jurisdiction administering the estate -- the estate, and it's page 25 and that is controlling provision here, that's clause 3 is the one directly relevant. I'd like to (Inaudible) There's no disagreement at all, between the parties or with the courts below, that in the absence of the will provision, all that the estate could've been required to pay in order that it could've deducted would have been one half of the community debts. Under Texas law, the community debts or the primary obligation of the community and upon this dissolution, they're chargeable one-half against each share. The husband is the manager of the community is personally liable for community debts but the wife is not. But, as between him and the community, his liability is only secondary and if he pays the debts on his personal separate property, he's entitled to reimbursement from the community. Therefore, it is established from the Texas law then of the death of a husband, the probate court which typically administers both the entire community estate and his separate estate, the probate court may charge against the decedent's estate only one-half of the community debt and must charge the other half against the wife share of the community property. That's in the absence of the will. I want to emphasize, there's no disagreement about that. It's common ground that -- but for the will provision, the wife share evidence would not be claims against the estate which were deductible. It is only the effect of the will provision is an issue. And the question is, whether that direction in the will, the direction of will for the payment of the wife's share of the debts converts her share of the debts -- the share of the debts would otherwise be chargeable against her half of the property into claims against the estate and we say --
Arthur J. Goldberg: The Texas law, the Texas law (Inaudible)
Wayne G. Barnett: Under Texas law, legacies, they are also enforceable. Any provision of the will which is a valid provision of the will is enforceable and it is quite --
Byron R. White: (Inaudible)
Wayne G. Barnett: Precisely.
Byron R. White: -- required the marital deduction?
Wayne G. Barnett: Well, it would -- it would qualify generally for the marital deduction. In this case, it wouldn't qualify the marital deduction for the reason I've already discussed because she had to give up more than she got anyway.
Byron R. White: Yes but that's -- I don't see why that reaches these --
Wayne G. Barnett: Well --
Byron R. White: -- these debts, the --
Wayne G. Barnett: There's a collateral aspect of this which I'd hope not to get in to at oral argument, still within our brief a long footnote here, on page 17 of our brief, note 17. Actually, you see the provision directing payment of all of the debts out of his half of the community property was also conditioned upon her election to take under the will. So she had to give up, the figures I've been using $26,000 and $22,000 would both be increased by the $16,000 worth of debts and it would amount really -- his assumption of her debts really would increase her interest in the community property, then she has to give up that much more in order to get his -- a share of his separate property. So, that would again work out. I don't want to try to persuade you to the figure is here, would again work out, she giving up more than she got.
Arthur J. Goldberg: (Inaudible)
Wayne G. Barnett: Yes, that's on our first ground so we don't really have that problem here. Well, I agree but generally, a provision in a decedent's will pay to his wife's debts would qualify for marital deduction. Now, our argument on this question is again a very simple one. In our view, the very essence of the claim and the only reason why it's allowed as a deduction is that it is enforceable against the estate regardless of the testator's wishes and that therefore reduces the net value of the property over which she has testamentary power. And something that it is payable by the executors only because the decedent exercised his testamentary power to direct the payment is not a claim against his estate. It is, as Judge Wisdom described it, merely straight pecuniary legacy. There's no difference, we say, between a $1000 legacy to a beneficiary and the direction to the executors to pay a $1000 debt that would otherwise be the primary obligation of the beneficiary. In short, it's our position is that since without the will, he is staying within required to pay only one-half of the debts, only one-half of the debts were claimed against his estate enforceable against the estate and only one-half of the debts were deductible from the estate and for that reason, both in this issue and on the first, the judgment should be reversed.
Arthur J. Goldberg: (Inaudible)
Wayne G. Barnett: Yes, I think that's common ground. I don't think (Inaudible)
Earl Warren: Mr. Sutton.
W. M. Sutton: Mr. Chief Justice and members of the Court, I think it is a misnomer to characterize the will here as a gift of property upon a condition that Mrs. Stapf permits her property to pass through the trustees. Actually, we have two, two entirely separate and different events or occurrences. One is a gift from Mr. Stapf or not a gift, a bequest to her in the will of a portion of his property. She is put to the election to take under the will or to take against it. She exercised that election at a later time not of course at the time that the debt but was exercised at a later time. When she did that, she unquestionably made a gift of a portion of her property to the trustees for the benefit of her children or their children. Now, --
Potter Stewart: Mr. Sutton, she would've had that election whether or not the will had discussed her election which is a matter of state law and then --
W. M. Sutton: No.
Potter Stewart: -- she has the statutory rights?
W. M. Sutton: Under the state law, the husband or the wife, as far as that's concerned, can dispose of only his or her one-half of the community property by will. The other half of the community property is vested absolutely in the surviving spouse, the absolute title. So, in a normal situation, a husband or wife will dispose of only their one-half of the property by will.
Potter Stewart: Right.
W. M. Sutton: But it is a recognized principle that by the marital deduction, a husband or wife, either as far as that goes, can dispose of both halves of the community with the consent of the surviving spouse. The surviving spouse is then put to an election whether to take under the will or to take against the will.
Potter Stewart: Well, if she takes against the will if I understand you correctly --
W. M. Sutton: If she takes --
Potter Stewart: -- all she gets is her half of this community property --
W. M. Sutton: Correct, sir. She would have a --
Potter Stewart: Which she -- which she would have whether or not there was a will --
W. M. Sutton: That is right.
Potter Stewart: -- which is always her.
W. M. Sutton: That is her, that's fully vested interest.
Potter Stewart: Right.
W. M. Sutton: So, now when she elected under -- to take under the will, she made a gift of her property or of her fully vested portion of the community property to trustees for the benefit of their children. There is no question about what that is a gift and that there's gift tax consequences attached to it, and Mrs. Stapf has never questioned or denied that. Now, further, the point of Texas law or community property law, in instances where a widow elects to take under the will and a portion of the community property passes to her, in this instance, a one-third of the gross estate passed to her. Now, that was the property as far as community property was concerned, didn't pass to her under the will but was satisfied out of her one-half of the community property. If I make myself clear, she had a one-half interest in the community property initially. Under the will, she was given one-third interest in the gross estate which would include a one-third interest in the community property. Now, under Texas law, under decisions that are cited in the brief and there is no argument with the Government counsel about the Texas law upon that point. The one-third part of the community property that she finally ended up with didn't pass to her under Mr. Stapf's will but was satisfied out of her one-half and so a consequence, she gave a difference.
Earl Warren: We'll recess now Mr. Sutton.