William H. Rehnquist: Mrs. Warren, you may proceed whenever you're ready.
Penny R. Warren: Mr. Chief Justice, and may it please the Court: This case arises from the conviction of Stincer by a jury for first degree oral sodomy of two girls ages seven and eight. Both girls and a four year old boy testified at trial in Stincer's presence. All three described how he blindfolded them with socks and said he was feeding them a pickle. The question in the case, whether he was denied his right of confrontation arises from an in chambers preliminary hearing in which the judge determined whether or not the children were competent to testify. Stincer asked to personally attend that hearing. His request was denied. But counsel was present. On appeal, the Kentucky Supreme Court held that Stincer had an absolute right to be present at the competency hearing. From the Sixth Amendment of the United States Constitution and Section 11, of the Kentucky Constitution confrontation clauses. This Court granted Kentucky's request for review. It is our position that the state court erroneously extended the right of confrontation in the Sixth Amendment to a non-adversarial preliminary hearing and that Stincer fails to meet the threshold requirements of due process for a right of presence under that clause. We also believe that the state court erred by refusing to consider whether the alleged claims were harmless. It's first necessary to consider the nature of a competency hearing in Kentucky and in most other jurisdictions. At this competency exam of the two girls that is in issue, it's a very limited hearing with a very limited purpose. There are no facts of the case discussed. Guilt or innocence is not an issue. There are only a dozen or so general questions. How old are you? Where do you live? Where do you go to school? Where do you go to Sunday School? Do you know your teacher's names? The test is whether the children understand the difference between a truth and a lie, the obligation to tell the truth, and whether they are sufficiently intelligent to recall and relate past facts.
William H. Rehnquist: Mrs. Warren, you refer to this as a preliminary hearing?
Penny R. Warren: Yes, Your Honor.
William H. Rehnquist: I take it from the way you describe it. It isn't the sort of preliminary hearing that one had in Arizona xxx where it's to decide whether you should be bound over for trial.
Penny R. Warren: No, Your Honor, I meant preliminary only in that--
William H. Rehnquist: Pre-trial.
Penny R. Warren: --it's a threshold, I'm sorry Justice White, I didn't hear your comment.
William H. Rehnquist: Pre-trial.
Penny R. Warren: Pre-trial. Respondent has challenged the term pre-trial although he used it in describing it in a state court, in that the jury was sworn. But an initial determination, if you will, of the children's xxx.
William H. Rehnquist: And it could happen before the trial, it could happen during the trial. The judge holds--
Penny R. Warren: During trial. Anytime. It typically is a couple of weeks before, a couple of days before. In this instance it was before any evidence was received at all. But, after the jury was sworn in a short recess and motion practice beginning the case. In the competency hearing, the children are not witnesses. They are potential witnesses, but if they're declared incompetent, certainly they would never be a witness. They're not witnesses in the sense of the Sixth Amendment right of confrontation. Nor, is their testimony against him, as the Confrontation Clause requires when it begins to attach. The decision is a very limited one for the trial court. It is, really a substitute for an oath, if you will, for an adult. Counsel was present and in this case allowed to question the children after the court concluded its questions. At trial, Stincer was present. The children were present when they testified. He was able to communicate with counsel. The trial court placed no restrictions on his opportunity to cross examine. At that point, his full right of confrontation was satisfied. When it did attach, no new or different information came out at trial when he was asking many of the same competency questions.
John Paul Stevens: --Mrs. Warren, may I ask if you would take the same position if the defendant were representing himself?
Penny R. Warren: Your Honor, if the defendant is representing himself, then clearly he has a right to counsel and there would need to be a balancing of interests and a special showing of necessity. To preclude him at that point would be a violation of his right to represent himself. But that is not the issue in this case at all.
John Paul Stevens: No, I understand. But if he had elected not to have a lawyer then you would--
Penny R. Warren: I would--
John Paul Stevens: --agree that he had a constitutional right to be present during this--
Penny R. Warren: --To represent himself and that necessitates being present. Certainly.
John Paul Stevens: --But as a lawyer, not as-- --His right to counsel, yeah.
Penny R. Warren: Yes.
Byron R. White: Not confrontation?
Penny R. Warren: That's right, Your Honor.
Thurgood Marshall: Mrs. Warren, assuming that you didn't have a separate hearing to qualify the witnesses and you did it at the regular trial,--
Penny R. Warren: Yes, Your Honor.
Thurgood Marshall: --you couldn't exclude him then, could you?
Penny R. Warren: That's correct.
Thurgood Marshall: So if this is merely for the purpose of excluding him, there would be a problem wouldn't there?
Penny R. Warren: I'm sorry, Your Honor. I don't believe I'm following your question. There is no constitutional right to a competency hearing.
Thurgood Marshall: Well, is this always done in Kentucky?
Penny R. Warren: That a defendant is not permitted to attend a competency hearing?
Thurgood Marshall: No. That you always qualify witnesses before the hearing?
Penny R. Warren: Your Honor, I'm not aware of any case in which they were not qualified prior to the hearing.
Thurgood Marshall: But there is no law on it at all, it's just practice?
Penny R. Warren: There are a number of cases that say when the child is young enough, or when the defense challenges competency there will be a competency determination outside the presence of the jury. So, unlike the federal rules there's not an absolute presumption of competency where the child does go into the court room and is challenged there for the first time. The issue in the competency hearing in Kentucky is competency, not honesty, not the ability to retain composure. It is a very limited issue of competency. It is our position that the Sixth Amendment Right of Confrontation does not attach to this kind of proceeding. It's--
Sandra Day O'Connor: What about a due process concern? Do you think that there might be situations where the proceeding like this might have a substantial relationship to the opportunity of the defendant to be better prepared for his defense?
Penny R. Warren: --In the typical proceeding, that should not be the case. But, we certainly acknowledge if the proceeding, let's say, were to exceed its normal scope and it's an advantage of counsel being present. Counsel can say, Your Honor, we object. This is beginning to bear a substantial relation to his opportunity to defend and he has a right to be here. In that instance, he would have a right of presence. We believe that Stincer has failed to meet that threshold requirement under due process--
Sandra Day O'Connor: And you don't think that a defendant might be in a position to suggest appropriate questions or question certain responses with the attorney that would be helpful even at that qualification hearing?
Penny R. Warren: --Your Honor, the defendant might suggest--
Sandra Day O'Connor: There's no evidence in this case perhaps, I mean--
Penny R. Warren: --That's true.
Sandra Day O'Connor: --it might be harmless error. But, I'm worried about the due process right to be present.
Penny R. Warren: Your Honor, there are a number of remedies for that concern and we acknowledge that a defendant may have certain facts. Most of those facts, however, do go to the question of honesty rather than the question of competency. Just as he could not challenge an adult, because that adult had lied in the past, or you know, and preclude an adult from taking the oath, then a child cannot be challenged on pure honesty. That's the question before the trier of fact and that's when his confrontation right fully protects him. If there are questions that he wishes for the court to ask, again, those can be submitted to counsel in advance, if you like qualifying or validating questions. There also are opportunities to move in limine for the trial court to ask only general questions to which everyone would know the answer. And some of those kinds of questions were asked in this case. Do you know who Jesus is?
Sandra Day O'Connor: What if the state used a video tape for example in these situations, do you think the defendant would have no right to be in a position to view the video taping with the lawyer so that he could participate.
Penny R. Warren: The video tape statute in Kentucky applies to testimony. I think there's a question of whether it would apply to this kind of proceeding. Then if a video were used certainly the concern of this state of the trauma to the child from the defendant's present would be minimized. However, video taping is not available throughout the state by any stretch of the imagination, much less in a number of other jurisdictions. I would also note that to the extent the argument is that he may know certain facts that he may wish to raise and challenge the child's answers, that almost suggests a stranger, then, would have no reason to be there. He wouldn't know those facts and would not have a right to be present. We don't think that xxx.
Antonin Scalia: Your rule doesn't apply just to strangers. It would apply, say it was a custody case or something where it was a minor child was going to testify and one of the parents wanted to be present. You could exclude the parent, I suppose. Or maybe it wouldn't be, I've got a civil example, but say it was a--
Penny R. Warren: Yes.
John Paul Stevens: --criminal charge against the parent of the child for this very thing we have in this case?
Penny R. Warren: That's right, Your Honor.
John Paul Stevens: But you would say that that parent could also be excluded xxx.
Penny R. Warren: That's right. Our position is that there is--
John Paul Stevens: So, you would say they would be excluded even though it might be quite likely that they would have suggestions to make to the lawyer that might help find out whether the child was accurate in what he was saying.
Penny R. Warren: --Those suggestions can all be made at trial where honesty or credibility is an issue.
Antonin Scalia: Is competency also at issue in the trial. Could counsel for the defendant, or the defendant himself, challenge the competency even though the court had allowed the child to testify?
Penny R. Warren: Yes, Your Honor. And that's why I said a preliminary consideration. If new or different information were disclosed as in an example where the person knew certain facts then certainly the defendant can ask the court to reconsider its decision. Counsel in this particular case asked the court to reconsider the competency determination on the four year old boy. That testimony is not reproduced in our appendix, but it's on page 126 of the transcript. Ask the court to reconsider--
Byron R. White: xxx to being given?
Penny R. Warren: --During trial, yes Your Honor. He asked the court to reconsider. So that--
Byron R. White: And the court could of.
Penny R. Warren: --And the court certainly could of.
Byron R. White: Based on the conduct of the witness.
Penny R. Warren: The information that came out at trial that would suggest that that initial assessment was inaccurate.
Antonin Scalia: Would counsel necessarily be permitted to ask competency type questions at trial?
Penny R. Warren: Yes, Your Honor. And they are asked. And they were asked here. There's no problem at all--
Antonin Scalia: Because the jury has to make it's own assessment of competency as well. I gather the judge's is just a threshold determination, right? Close enough to get to the jury, but the jury could reject the child's testimony in its view as coming from an incompetent child.
Penny R. Warren: --Or, certainly the jury could reject that the child is a credible witness and could reject the evidence given by the child. Yes, Your Honor, that's true.
John Paul Stevens: Let me be sure I understand you. At the trial, under your view, could the defendant and his lawyer ask to go over the same ground that was gone over in the competency hearing? Ask the same questions. If the answer is yes, then why is it any more burdensome to have it in a ten minute session once and an hour later, than having an hour and a ten minute session? I don't understand.
Penny R. Warren: The answer to your first question is, may they ask the same questions? Yes they may and they did here. The second question, what is the--
John Paul Stevens: If they had not been excluded from the first hearing they might not found it necessary to ask them a second time.
Penny R. Warren: --Those questions are typically asked. They were asked here by the prosecutor initially. Just partly even if for no other reason, to calm the child down. They are easy questions, you know, what is your birth date? What is your age? But they are giving the jury some indication of this child's level of intelligence. What is the harm of doing it twice, if I understand your question, or of doing it earlier. The child is going to confront the defendant at trial. The evidence is that additional confrontations, and the greatest fear of a victim, and particularly a child sex abuse victim, is confronting that defendant, that additional confrontations compound that potential trauma to the child and particularly when you're in the close proximity of judge's chambers, the defendant is sitting a few inches away, if you will. There is the judge, the prosecutor, the defense attorney, the defendant and the court reporter, and one very small child. The defendant's presence at that time--
John Paul Stevens: Well of course, if that's a concern you could find a bigger room I suppose. I mean you don't have to do it in the judge's chambers if you--
Penny R. Warren: --That's right, Your Honor, but nonetheless you are requiring the child to confront the defendant one more time. And our question is, for what purpose, when his rights are fully protected at trial. And the due process protection is certainly adequate to give him the right to be present if he can show reasonably substantial relation to his defense. At trial the confrontation right attaches.
John Paul Stevens: --Do you deny the possibility, and I'm not suggesting it's true in this case, that the presence of the adult defendant might enable the lawyer at the time of the initial competency examination to suggest questions that might be relevant and helpful to making the right decision?
Penny R. Warren: Your Honor, certainly the presence of the defendant could suggest questions. The counsel himself could suggest questions. He could ask the defendant ahead of time, are there questions that I might need to ask?
John Paul Stevens: But you may not know what the child can attest to until he's heard the testimony. He might not know. The child might tell some story that the adult knows all about and knows it's inaccurate, or something. And didn't anticipate it coming up.
Penny R. Warren: Your Honor, again I see the questioning going to the issue of credibility or honesty rather than pure competency. The trial court asks limited, general questions to establish minimal competency to testify at trial.
John Paul Stevens: Well then you are saying there's just no possibility that the adult could suggest any useful question.
Penny R. Warren: No, Your Honor, and I'm not suggesting that it might not be helpful to him to be here. What I'm saying is that the right of confrontation does not extend to that kind of proceeding unless he can show a reasonably substantial relationship to his ability to defend, or that that fair hearing would be thwarted by his presence, then due process does not give him a right to be present. And the concern, if this Court--
John Paul Stevens: In other words, what you're saying is, even if it's highly prejudicial, it's just too bad because he has no confrontation right except during the trial. That's what you're saying, I guess.
Penny R. Warren: --Your Honor, I'm saying that any potential prejudice, and again, if he's able to show prejudice his due process right to presence is going to get him there. But any potential prejudice is obviated by his rights at trial. And that the Sixth Amendment right of confrontation should not attach until there are witnesses whose testimony against him--
John Paul Stevens: Well wait a minute. I understand your position on that is we don't care about prejudice because it's not part of the trial.
Penny R. Warren: --Right.
John Paul Stevens: Then you just say as a matter of due process he has to make an affirmative showing of actual prejudice in the case in order to prevail.
Penny R. Warren: Show reasonably substantial relationship to his ability to defend.
John Paul Stevens: I assume you're also saying that, well I'm not sure, at least it's very unlikely that there can be substantial prejudice, if not impossible that there can be substantial prejudice in as much as he can do the same thing at trial.
Penny R. Warren: That's right, Your Honor.
Antonin Scalia: If what you've told us is true. That you could repeat the same process--
Penny R. Warren: That's right.
Antonin Scalia: --at trial, it's very difficult to imagine how there could be substantial prejudice.
Penny R. Warren: That's our position, Your Honor.
John Paul Stevens: If that's true, I don't know why you even need the lawyer there. It seems to me the judge could call the witnesses in chambers and say I think I'll just talk to these young girls by myself and make up a preliminary determination.
Penny R. Warren: Your Honor, no one has ever questioned the right of counsel at that point. But I agree there could be an argument. But,--
Antonin Scalia: But if there is a right of counsel--
Penny R. Warren: --if counsel is there.
Antonin Scalia: --If there's a right of counsel it's because it is a critical stage of the proceeding.
Penny R. Warren: Your Honor, critical stage tor purposes of right to counsel--
Antonin Scalia: Right.
Penny R. Warren: --and critical stage for purposes of confrontation, critical stage for purposes of compulsory process all attach at different times. And, as in the Wade lineup there's a right to counsel, but not confrontation.
William H. Rehnquist: Well, can the first-- --Moreover the fact, I'm sorry. --Kentucky could grant the right of counsel without feeling the constitution compelled it. Just because traditionally when judges go into chambers to talk, make some examination of the case, they generally bring the lawyers with them. They may not of thought it through that it's a constitutional right of xxx.
Penny R. Warren: That's right, Your Honor. And again, it has not been questioned in Kentucky, that counsel does have a right to be there.
Sandra Day O'Connor: Well, I suppose if the witness is found not to be competent, the child as a witness, then the witness would not be permitted to testify at trial.
Penny R. Warren: That's right.
Sandra Day O'Connor: So, it could be quite critical. Because the witness might be the only witness available to convict a defendant.
Penny R. Warren: It is xxx--
Sandra Day O'Connor: As was the case here.
Penny R. Warren: --In this case there were three children.
Sandra Day O'Connor: Well, take them one at a time.
Penny R. Warren: If I might clarify--
Sandra Day O'Connor: I assume there were three separate charges.
Penny R. Warren: --That's right and there's been no challenge to the third child as to presence.
Sandra Day O'Connor: Significant to a defendant, to be able to persuade a judge that a witness is not competent.
Penny R. Warren: Certainly, Your Honor, there are many important decisions made prior to trial and after trial.
William H. Rehnquist: Well, Mrs. Warren, supposing that the child was initially determined competent under these Kentucky procedures and then the same questions were asked in open court and the judge was persuaded to change his mind.
Penny R. Warren: Yes, Your Honor.
William H. Rehnquist: Would the child's testimony then be stricken from the record?
Penny R. Warren: Yes, Your Honor, if the child were incompetent. And I would think they would never ever be testimony other than the initial competency assessment, but if the trial court were persuaded that she was so incompetent, certainly it would construe--
William J. Brennan, Jr.: But did I hear, did you say earlier, Mrs. Warren, that the trial judge might nevertheless not decide it himself, but let the jury decide the question of competency.
Penny R. Warren: --No, Your Honor, the trial court--
William J. Brennan, Jr.: He would.
Penny R. Warren: --It is the decision for the trial judge. But the decision can be reconsidered. The jury's question is one of credibility of the witness. And again, the honesty.
Sandra Day O'Connor: So it's really two separate questions we're dealing with. And it is a rather critical stage, isn't it, to determine whether a witness is competent to testify?
Penny R. Warren: It is important, but no different than many other important decisions, such as the Grand Jury decision to indict, or the witness's decision in a lineup, that this is the person. That does not necessarily extend the right of confrontation to this proceeding. The appellate decision that the conviction would be reversed also is a very important decision and outcome determinative. But that does not carry with it the safeguards for an adversary proceeding. This is not an adversary proceeding. Counsel would like to make it into one. Perhaps even have compulsory process of witnesses and question this child in advance. But just as this Court said in Watkins v. Souders, that counsel has no right through due process to question an identification witness prior to trial, and to cross examine that identification witness on suggestiveness; it is our position that where there is no reasonable relation to the opportunity to defend, there is no right of presence in these cases. Should this Court decide that there is a right of presence, then of course, there would be a need to balance the competing interests of the defendant and the state. I've discussed very briefly Stincer's interests. They are primarily that incremental contribution that he might make above and beyond that of counsel and above and beyond that which he might make at trial, an incremental contribution he might make to the reliability by being present at the competency hearing. He says, you know, he may know when the child is not telling the truth and we appreciate that. And, it might be helpful to him, but just as in Pennsylvania v. Ritchey, it would have been helpful to him to personally examine the documents there. That does not grant the right of confrontation or due process, the right of presence. His rights are protected at trial. The best evidence of his lack of contribution is what happened at trial. Nothing different at all came out and there was never any challenge either at the conclusion of the hearing or at trial or on appeal as to the competency of these two witnesses. In terms of Kentucky's interest it is to provide that maximum possible psychological shelter for a child victim consistent with the constitution. And again, we are concerned with the protection of defendant's rights. The nature of the crime, typically a trusted adult, there are often threats. The greatest fear of the child is facing the abuser again. Common sense tells us that child will be frightened. And each additional confrontation will frighten that child more. It is our position that how the child is treated initially may well affect the outcome. In this case, the first child as she went into the competency hearing and defendant was excluded, after a few question said, I'm not afraid anymore. Me and my sister were afraid about who would come up here, but I'm not afraid anymore. The child was in an atmosphere in which she wasn't confronted by the defendant and began to calm down. Then later during the trial, potentially because of many reasons she again said she was scared. She was scared of everyone there. If you will, this is a narrowly tailored and a well calculated procedure to minimize the damage to the child while fully preserving the defendant's constitutional rights. And we--
Antonin Scalia: Mrs. Warren, do you know if most states, you could conceivably do this by dispensing with the preliminary hearing entirely and just bringing the child on at the trial and conduct the competency inquiry then. It would make the trial longer I suppose. You would assert that, wouldn't you?
Penny R. Warren: --Certainly our legislature and our courts have not adopted a xxx--
Antonin Scalia: What do other states do? Do you have any idea what the practice is in other states? Do most of them have such a preliminary hearing whenever there are juveniles?
Penny R. Warren: --I believe the majority do. I do know about 20 states have adopted the federal rule where the child simply appears at trial and is there questioned. The majority of states I believe do pre-trial.
John Paul Stevens: Mrs. Warren, could I ask you on another issue, the Kentucky Supreme Court as I recall it said, their Section 11 or Article 11 of your state constitution was the basis for its decision as well as the Sixth Amendment. And, has there been decision in Kentucky as to whether that provision of the state constitution is co-extensive with the right of confrontation, because they just rely on a Kentucky case that says, every phase of the trial, rather than--
Penny R. Warren: Your Honor, there was a decision within three weeks of this case, Commonwealth v. Willis, which is cited in our brief. The very issue in that case was whether the right of confrontation under the Kentucky Constitution is more strict than under the Sixth Amendment and the court rejected that claim and said they are basically the same. There is no authority for holding the Kentucky Constitution is more strict.
John Paul Stevens: --No difference between the two.
Penny R. Warren: So they are construed identically. We would ask this Court to hold that the Sixth Amendment right of confrontation does not extend to a non-adversarial proceeding such as this and that Stincer has failed to show that he meets the threshold requirement to entitle him to a due process right of presence.
William H. Rehnquist: Thank you, Mrs. Warren. We'll hear now from you Mr. Posnansky.
Mark A. Posnansky: Mr. Chief Justice, and may it please the Court: Though it is not articulated specifically anywhere in the constitution, the right to be present at ones own trial is one of the most fundamental of all the rights that we have in our society. And it has been held to be an implicit part of the right of confrontation in the case of Illinois v. Allen. And, it has been held to be implicit in the right of due process in the case of Snyder v. Massachusetts. By excluding the defendant from this important, critical hearing which the Supreme Court of Kentucky deemed critical, this important right, the right to be present was violated, which resulted in a denial of confrontation, denial of due process and also a denial of the right to effective assistance of counsel. This Court has held that we must, at all times, be alert to factors which can undermine the fairness of the fact-finding process. This was brought out in Estelle v. Williams. In this case, what was done directly undermined the fairness of the fact-finding process. That being the fact of whether these witnesses were competent.
Antonin Scalia: Mr. Posnansky, the constitutional right is the right to confront the witnesses against him. The right of a defendant to confront the witnesses against him and I presume that means to confront him when they are testifying against him. It certainly doesn't mean he has a right to confront them whenever he wants to come to their house and confront them or anything.
Mark A. Posnansky: No, certainly not.
Antonin Scalia: When they are testifying against him. And the point made by Mrs. Warren is that in this hearing, the child is not testifying against your client.
Mark A. Posnansky: Your Honor, the child, we submit, is testifying. And he is testifying as to the very critical factor in the case and that is whether this witness who is making the charges against the defendant is competent to testify.
Antonin Scalia: Not yet a witness. I mean, the whole purpose is to determine whether this child will be a witness.
Mark A. Posnansky: Well, the Kentucky Supreme Court in their decisions regarding child competency use the term that when the competency of an infant is challenged the procedure is that the court will conduct, the duty of the trial court is to carefully examine the witness in order to ascertain whether he or she is sufficiently intelligent to observe, recollect and narrate the facts and has the moral sense of obligation to speak the truth. The court uses the term "the witness". We submit that in this situation, the judge is acting as a trier of fact. And there is a right of confrontation. This is a witness who is providing live testimony, live testimony to the trier of fact on a very critical factor in the case. I don't think that this--
Antonin Scalia: The factor though is whether the child shall be or shall not be a witness. And, if and when it's determined that the child shall be a witness, there is time enough to confront the witness. But up until that point you don't know that the child is going to be a witness against your client.
Mark A. Posnansky: --There isn't time to confront the witness. That is the only time to confront the witness on the issue of competency. We disagree with Mrs. Warren's assertion that confronting the child in front of the jury is sufficient in that situation. That's a separate proceeding. The competency proceeding occurs once. The purpose of determining competency occurs one time in front of the trier of fact. At that time, the issue is the admissibility of the evidence. The admissibility of the testimony. Not the credibility. Credibility is in front of the jury. Before that we're talking about admissibility. That is the only time when the defendant has the opportunity to confront these witnesses, we submit, when the issue is competency. That is the only time. If it later comes out that the child appears to be incompetent the defendant would have to make another motion at that time.
Antonin Scalia: Counsel did that here. Didn't counsel challenge the competency here?
Mark A. Posnansky: He did challenge it.
Antonin Scalia: So it can be raised at the trial proceeding.
Mark A. Posnansky: But it, it can be raised, Your Honor, but it's very impractical to expect that in that situation, that the judge is going to declare, after a witness has given live testimony in front of the jury on these very important, inflammatory points, that he's going to strike the testimony of that witness. We submit that in that situation and most times a mistrial would be the only possible relief. And it is impractical to expect the judges are going to do that. And furthermore it's not necessary that inconvenience and impracticality occur if the defendant is permitted to be present at the competency hearing.
William H. Rehnquist: You don't doubt, Mr. Posnansky, do you that Kentucky could go the way of some other states and not have a preliminary competency determination out of the presence of jury?
Mark A. Posnansky: I believe that that's possible that they could go that way. There is, at the present time, case law which I have just alluded to and that is the procedure under Kentucky law. But, I don't think that there would be any bar to going, to doing away with the hearing as such as some other states have done. But, I would like to point out that this Court has held that when a state elects to opt for a certain procedure, even though that procedure may not be federally, constitutionally required, that due process applies under Ebbits v. Lucy. This Court held even though a state may opt for a certain procedure that's not constitutionally required if they elect to utilize that procedure, which is what Kentucky has done, due process applies. In this case, the prosecutor was given the right to question the witness, the children, at the competency hearing. The prosecutor was allowed to question them. He was allowed to argue that they're competent. He was allowed to help show why they were competent.
William H. Rehnquist: Even your client's lawyer was allowed to question, too, wasn't he?
Mark A. Posnansky: Yes, Your Honor, but without the presence--
William H. Rehnquist: Both lawyers were.
Mark A. Posnansky: --Without, right. But without the presence of the defendant the lawyer was severely hampered. There was a lot of things that the defendant in that situation could have done to assist his counsel.
William H. Rehnquist: Well what?
Mark A. Posnansky: He could, the competency hearing, Your Honor,--
William H. Rehnquist: I mean, what questions were in fact asked at the competency hearing.
Mark A. Posnansky: --The questions at the competency hearing on the two little girls went to only Sunday School, do you go to church, do you believe in God, what happens if you tell a lie, that sort of thing.
William H. Rehnquist: And you're saying that the defendant could have furnished valuable information to his lawyer in what, cross examining these girls in their answers to those questions?
Mark A. Posnansky: That is possible certainly. But also, he could have suggested--
William H. Rehnquist: How would that be possible?
Mark A. Posnansky: --If the children were lying about some of these things, the defendant may very well have been in a position to know. Even if they weren't lying on such things as Sunday School and teachers, which is unlikely, the critical thing under Kentucky law is whether they are sufficiently intelligent to observe, recollect and narrate the facts and have the moral sense of obligation to tell the truth. Two things are important to competency and the defendant is frequently in a position to know some facts directly relating to--
William H. Rehnquist: xxx.
Mark A. Posnansky: --The facts of the crime are admissible to get into there, certainly, because it says that--
Antonin Scalia: They weren't asked about the facts of the crime, and I think they never are in these competency hearings. They are asked, how old are you, do you know right from wrong, do you know what it is to tell a lie. They're not asked about the facts of the crime.
Mark A. Posnansky: --Justice Scalia, in this very case, the two little girls, they didn't get into the facts, but the little four year old boy, they did, in the competency hearing. They got into the facts on him. And they went into all of this stuff. And he was allowed to testify in front of the jury and gave very damaging testimony. In fact, he even said that his mother was present when these acts occurred.
William H. Rehnquist: Well, he was subject to cross examination on his testimony before the jury, too.
Mark A. Posnansky: He was subject to cross-examination in front of the jury, but as I said the competency issue is a separate proceeding and it is not sufficient.
William H. Rehnquist: Well, the fact that his testimony may have been damaging doesn't mean it should be excluded. Presumably all testimony introduced by the prosecutor, it's intended to damage.
Mark A. Posnansky: That's certainly correct, Your Honor, however the issue is whether or not the child's testimony was admissible to begin with.
Thurgood Marshall: But counsel, isn't the real trouble, the prosecutor could ask him any question he wanted to while talking to him. To probably, your point, I would think would be that you object to it being held in the court before a judge. Or, are you saying that the prosecutor couldn't talk to the witness?
Mark A. Posnansky: The prosecutor was present at the competency hearing.
Thurgood Marshall: But couldn't the prosecutor of held a competency hearing in his own office and talked to the person?
Mark A. Posnansky: Certainly.
Thurgood Marshall: So, your objection was that it was done in the court room.
Mark A. Posnansky: It was done in front of the judge. It was done--
Thurgood Marshall: That's your only complaint.
Mark A. Posnansky: --It doesn't make any difference whether it's in chambers or whether it's in the court room--
Thurgood Marshall: It was done by the judge.
Mark A. Posnansky: --it was done by the judge and the judge was--
Thurgood Marshall: A part of the judicial proceeding.
Mark A. Posnansky: --Correct.
Thurgood Marshall: Well that's xxx--
Mark A. Posnansky: And that's exactly right.
Thurgood Marshall: --prosecutor is doing this. He can ask the witness anything. The only person who can't ask him is the defense counsel. Mr. Posnansky, how was your client actually harmed in this case? I haven't seen any hint or suggestion yet of what would have been done differently had your client been present at the competency hearing.
Mark A. Posnansky: Justice O'Connor, I think in this case we have to look to the testimony of these children later in front of the jury.
Sandra Day O'Connor: Yes, I've read it and I just don't understand how the presence of your client would have made any difference in this case. How was he harmed?
Mark A. Posnansky: In this case, just as in any case, the defendant is in a position, is likely to be in a position to bring out certain facts to the attorney.
Sandra Day O'Connor: I have a transcript now and there are no suggested additions that your client would have made. There is nothing that you have brought forward that would indicate to me how he could possibly have been harmed, even if there was a right to his presence.
Mark A. Posnansky: There was no avowal made as to specific questions. But when you look to the testimony of the little girls, some of the things that were brought out are so clearly indicative of a problem with competency. The one little girl testified, the term was used, the sexual term concerning the penis, and she did not even know what it meant. That goes to competency. If the competency hearing had been conducted properly, the defendant could have brought out facts which would have shown--
Sandra Day O'Connor: But your client has not suggested a single thing that he would have done that would have altered this result.
Mark A. Posnansky: --I don't think in this case--
Sandra Day O'Connor: Don't you think he has an obligation to suggest how he might have altered the outcome or how his presence might have made a difference?
Mark A. Posnansky: --Your Honor, not in a case where it's involving the presence of the defendant. That is a core confrontation violation, we submit, and there are no cases holding that where a person is denied presence--
Sandra Day O'Connor: What if we think it is not a Sixth Amendment violation and all you are left with is a due process argument?
Mark A. Posnansky: --I know of no cases where a due process violation has occurred where a person has been kept out of the court room, where witnesses are testifying, where a harmless error analysis has been made. I think it is fundamentally unfair in that situation to require the defendant to show on the record precisely what he would have done to change the outcome of the competency hearing. Some errors are so clear and to try to precisely point to the prejudice is impossible. In right to presence cases, that is inherently a problem. We don't know precisely what he would have brought out. In terms of harmless error, we do know that the children showed very marginal competency later when they testified in front of the jury. The basic unfairness of the whole procedure was that this man was denied confrontation at the competency hearing and he was later given an inadequate opportunity in front of the jury.
Sandra Day O'Connor: What if the judge were to determine that the physical presence of the defendant would have so frightened the children that they would not make proper responses and that therefore he was to be excluded? Does that violate your client's constitutional--
Mark A. Posnansky: I believe that the proper standard should be the same standard as it is under Illinois v Allen. I think that if the court can show a specific objective factor, that the defendant has done something, and I am not referring to the fact that he has been charged, because there is still a presumption of innocence as to the guilt of the defendant, but if there can be shown evidence that he has affirmatively done something to intimidate the children, to scare them, to threaten them,--
Sandra Day O'Connor: --What about the question I asked? Would you answer that: if the judge determines that the presence of the defendant would so frighten the children they would be unable to give proper responses to the questions.
Mark A. Posnansky: --In that situation, Your Honor, I think that there are alternative remedies available short of absolutely barring the defendant. I don't believe that simply because the children would be afraid, the defendant could be totally excluded. That's why we now have statutes such as the Closed Circuit Television, which we have in Kentucky. I disagree with Mrs. Warren. There is nothing in that statute to indicate that it would not apply to this situation. The Closed Circuit Television has been upheld; the constitutionality of that has been upheld in Kentucky. There are other alternatives available short of totally excluding the defendant. The brief of the American Civil Liberties Union, amicus brief, talks about some of the alternatives: a mirror, closed circuit television, an intercom system. What is so fundamental is that the defendant have an opportunity to consult with his attorney. Now, if it can be shown that the defendant has done something to warrant his exclusion, such as the Illinois v Allen rationale, then I think he can constitutionally be excluded. But I think the court should then utilize some alternative means, if possible, so that he can at least consult with his attorney and know what is going on in that competency hearing. And I want to point out that in this case, there was no factual finding whatsoever by anyone that the defendant was going to frighten those children, that they were frightened of him. The judge merely said at the beginning of the hearing, "I think, we have to exclude the defendant at this point. " no finding whatsoever by the court. We would submit that the confrontation clearly applies at the hearing. These are witnesses testifying before the trier of fact on a critical phase of this trial. As to the due process... also I would like to point out again--
Antonin Scalia: Excuse me. Was it before the trier of fact? I thought it was a jury trial, wasn't it?
Mark A. Posnansky: --No, Your Honor, the judge is the trier of fact as to competency. That is very important.
Antonin Scalia: Not the trier of fact on the charge?
Mark A. Posnansky: Not the trier of fact as to guilt or innocence, but the issue is competency and it is a factual determination. The judge makes a legal determination based on the facts. It is a mixed question of fact and law. And the witnesses are giving factual answers to specific questions. From those the judge determines whether they're competent and the judge is the trier of fact on the issue of competency, not the jury.
Thurgood Marshall: Does the jury know about this?
Mark A. Posnansky: I beg your pardon?
Thurgood Marshall: Did the jury know that they had been found competent?
Mark A. Posnansky: No, the jury is not informed of that, Your Honor. They merely testify in front of the jury.
Thurgood Marshall: But they don't know anything about that other hearing?
Mark A. Posnansky: No, Sir. I also want to stress again that it is no answer to the problem that the defendant was given the opportunity to cross examine the witnesses in front of the jury. It's a separate proceeding. Competency goes to admissibility and in front of the jury it goes to credibility. I don't believe that this Court would hold that a person could be excluded from a suppression hearing on the issue of suppressing evidence where a live witness is testifying. That is also in front of the trier of fact, the judge.
Antonin Scalia: Excuse me. You say before the jury, it goes only to credibility; that's not what I understood Mrs. Warren to say. I understood that at the trial if it should appear on the basis of the examination by counsel for the defendant that the infant is not competent, at that point the infant would be excused and the jury instructed to disregard whatever testimony had preceded. Now, that doesn't go to credibility, that goes to competency.
Mark A. Posnansky: Well, Your Honor.
Antonin Scalia: To admissibility, right?
Mark A. Posnansky: Certainly the judge would have the opportunity at the trial to excuse the witness then. But the judge is still the trier of fact as to that issue and the judge--
Antonin Scalia: And again, you asked the judge to do that.
Mark A. Posnansky: --Yes, you have to ask the judge to do that at that point--
Antonin Scalia: And that happened in this case.
Mark A. Posnansky: --Pardon me?
Antonin Scalia: And that happened in this case.
Mark A. Posnansky: It happened in this case as to the little boy, yes it did. But, the important point on the competency hearing versus the testimony in front of the trial is that when the jury is present the testimony being given in front of the jury as to the jury goes to credibility. The jury has no opportunity to exclude a witness' testimony based on competency. That is something for the judge. Furthermore, I want to point out, and there have been cases that have discussed this and it's in the brief, that it is fundamentally unfair to expect the defendant to go into these other extraneous facts in front of the jury again. Competency encompasses a whole range of things such as: everything in the child's background can be related to competency, in addition to the facts of the particular case. And it is impractical and it is unfair, we submit, to expect the defendant to have to go into it in front of the jury and he has to do this because he wasn't present at the competency hearing.
Antonin Scalia: That's done in a lot of states. And I think that's the federal practice too, isn't it?
Mark A. Posnansky: I believe that is the federal practice, Your Honor. But, in this case Kentucky has a competency hearing for the purpose of determining competency and it is at that point that the defendant's constitutional right applies, and his due process right applies. And at that point, he has the opportunity to assist. And it is a practical problem. It is a major, practical problem to expect the defendant to have to go into that again in front of the jury and risk alienating the jury, which I submit and there's case law discusses this, would happen in most cases to have to go into these other facts which are unrelated to the charge. Certainly we also submit that there is a clear due process issue involved in this case. Under Snyder v. Massachusetts the defendant has the right to be present wherever his presence bears a relation reasonably substantial to the fullness of his opportunity to defend against the charges. Plainly in this case, as I've mentioned, the defendant is frequently the person, the only person who knows things about the child's background. Kentucky has a two part test for competency, the intelligence to observe, recollect and narrate the facts. All kind of factors can go toward the intelligence of the child, toward the ability to remember and recollect the facts. There may be specific instances in the child's background which the defendant is aware of which directly show that he doesn't have the ability to recollect the facts or the answers he's giving at the competency hearing are not true. The other part of the test concerns the ability to, the sacred obligation to tell the truth. If the defendant is aware of many instances in the background of the child where he has repeatedly exhibited a pattern of untruthfulness it's very possible to show that he really doesn't understand the difference between truth and falsity. These are specific things the defendant can do and I would point out that in a case such as this, in most cases of this type, child sex abuse cases, the defendant is well-acquainted with the family and the victims as he was in this case and he is in the position to know these facts. Counsel is not in the position to know them. We can't expect the prosecutor to bring out these kind of things. It's the defendant and only the defendant who is in a position to know these things and the only way for him to be able to assist at the level of competency is to bring these, is for him to be present at the competency hearing and for him to have the opportunity to consult with counsel. I've also raised the issue of effective assistance of counsel in the brief. We would submit that plainly the action of the court in excluding the defendant also relates to the issue of effective assistance of counsel. This Court has held that any time a procedure of the court which interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense, when that occurs a violation of the right to effective assistance of counsel has taken place under Strickland v. Washington. That's precisely what happened in this case. The action of the trial court resulted in an ability on the part of defense counsel to make independent decisions concerning cross examination and concerning lines of inquiry at the competency hearing. This is like the Geders v. United States case out of this Court which limited the access of the attorney to the defendant. In this case their limiting the access of the attorney to the defendant again. And they're making it, we submit, impractically difficult if not impossible for the counsel to do their job under that situation. As to the issue of harmless error, we submit that this type of violation should not be subject to a harmless error analysis. This represents a core confrontation violation. This is not like Snyder v. Massachusetts. It's not like other cases which don't involve live witnesses. Snyder v. Massachusetts involved a jury view. This is live witnesses testifying before the trier of fact and it's an impractical if not impossible standard to be able to specifically show the prejudice. But this Court has never held where a person has been excluded, where live testimony has been given, that they need to show precisely the prejudice. The prejudice is clear in this case and it's even more clear when you consider the very marginal competency level of these witnesses that they later demonstrated at trial. It's just basically unfair in this case for the defendant to have been excluded from the competency hearing and then not accorded the opportunity for effective cross examination because the witnesses may very well have been incompetent when they testified in front of the jury. Furthermore, as to the issue of harmless error, in Russia v. Spain, this Court held that the error was harmless, was subject to a harmless error analysis. But again, that did not concern the defendant being absent during the testimony of live witnesses. That only concerned an ex parte communication between a judge and a juror regarding a fear the juror had as to one of the witnesses in the case. There are no cases, I submit, where this Court has held it's harmless error to exclude the defendant where live testimony is being given.
Speaker: xxx.
Mark A. Posnansky: That's correct, Your Honor, but that's not a trier of fact in that situation.
Thurgood Marshall: Just don't make such broad sweeping statements.
Mark A. Posnansky: In conclusion, I would like to strenuously urge, in fact, implore this Court not to substantially weaken both the confrontation and the due process clauses by holding that the defendant can be excluded without any showing of cause from a procedure where witnesses are testifying before the trier of fact. To do so would be to do great harm to one of the most precious of our rights and that is the right to be present when one's liberty is being decided.
Byron R. White: I suppose you would take the same position if in some states competency was decided by, not by the trier of fact, but by a magistrate or just some separate person?
Mark A. Posnansky: That's correct, Your Honor, we'll take the same position, where the trier of fact.
Byron R. White: So you say that anybody who determines competency is a trier of the fact?
Mark A. Posnansky: As to that issue. The crime that was charged in this case was unquestionably a most heinous crime, a reprehensible crime and I don't want to minimize that in any respect. But, the right to be present at one's own trial is a right that is given to both the guilty and to the innocent. And, while there is no doubt that this issue, the issue of child sex abuse, is a most serious issue facing us today, there is also no doubt--
Byron R. White: Well, I take it you think the right to be present is just broader than confrontation? That the confrontation clause is really not the measure of the right.
Mark A. Posnansky: --It is broader; due process is certainly involved. The due process right goes to the ability of the defendant to contribute to his own defense as opposed to just confront the witnesses. To contribute, to suggest lines of inquiry to his attorney, to substantially and meaningfully contribute to his own defense. Things that he can personally do. And it's also clearly involved in that right as well. There were alternative methods and there are alternative methods available short of simply excluding the defendant from being present and there was no showing in this case that the defendant was a threat to these children or that the children perceived him to be a threat. There are many different things that a court can do if the children are so afraid that they can't testify. I do not believe that by this Court holding that a defendant has the right to be present at the competency hearing that it would in any way weaken the ability of the states to prosecute child sex abuse cases. We have closed circuit television now. We can have an intercom system. There are many alternatives available so that the defendant can at least assist his attorney, can at least hear the testimony of the children, consult with his attorney and have some input into a very critical phase of the trial proceedings. Thank you very much.
William H. Rehnquist: Thank you, Mr. Posnansky. Mrs. Warren, you have four minutes remaining.
Penny R. Warren: Your Honor, one very brief clarification. In terms of the facts of the case being explored in a competency hearing, at page 86 of the Joint Appendix in the opinion in this case, Justice Stevenson chastises the Circuit Court for going into the facts of the case and we believe that message is very clear. It will not be done in the future. Unless the Court has any further questions, we would ask the Court to reverse the Kentucky Supreme Court and hold that neither Stincer's right to be present under due process, nor confrontation was denied in this case.
William H. Rehnquist: Thank you, Mrs. Warren. The case is submitted.


Warren E. Burger: We will hear arguments first this morning in the United States v. Powell. Mr. Levy, you may proceed whenever you're ready.
Mark Irving Levy: Thank you, Mr. Chief Justice, and may it please the Court, since the time of this Court's decision in Dunn v. United States, more than 50 years ago, the rule has been settled in the federal system that inconsistency in a jury's verdict is not a ground to set aside an otherwise valid conviction. The issue in this case is the validity of an exception to the Dunn rule, adopted by the Ninth Circuit below, for the offense under 21 U.S.C. Section 843 (b), of using a telephone to facilitate a drug felony. The relevant facts are undisputed and may be briefly summarized. Respondent was charged in 15 counts with offenses rising out an extensive drug distribution operation. It was agreed by all in proceedings below, the Respondent's husband and son were the principal operators, and the Respondent was a relatively more minor participant. Insofar as pertinent here, Respondent was charged in one count with conspiring to possess cocaine with intent to distribute it, and in three counts, with using the telephone to facilitate the cocaine conspiracy. The jury convicted Respondent on the three telephone counts and acquitted her on the conspiracy court. On Respondent's appeal, the Ninth Circuit set aside the three telephone convictions on the ground of inconsistency in the verdict. The court concluded that because the jury had acquitted Respondent on the conspiracy charge that was the offense alleged to have been facilitated by the use of the telephone, the telephone counts could not stand. The Court recognized the Dunn rule. The inconsistency in a jury's verdict is not a ground to reverse its convictions; but it held that an exception to Dunn exists for the telephone facilitation offense under Section 843(b). We submit that this was error. Our position, in brief, is that this case is controlled by Dunn and that the decision below is flatly inconsistent with both the exact holding and the fundamental rationale of Dunn. Dunn and its progeny, to which this Court has consistently adhered over the last half century, recognized several basic principles: First, the Dunn rule recognizes that a jury, in the exercise of its power of lenity can acquit a defendant, even though it is entirely convinced of his guilt under the law and the evidence. Dunn thus makes clear that in the context of inconsistent verdicts, an acquittal is not to be deemed a determination by the jury that it found the Government's evidence inadequate to establish the defendant's guilt. Because of the jury's power of lenity, Dunn establishes that an inconsistency in the verdict does not undermine or impeach the otherwise valid convictions that the jury returns.
John Paul Stevens: Mr. Levy, can I ask you a question? Did the Ninth Circuit cite the Dunn case?
Mark Irving Levy: It did not cite the Dunn case in its original decision. The Government sought rehearing, and the court in denying our petition for rehearing, issued a supplemental opinion. And in that opinion, it cited to and purported to distinguish or find an exception to the Dunn decision.
John Paul Stevens: I see; because in the first opinion, they merely said there was no evidence to support these convictions.
Mark Irving Levy: That's correct, and that was said in response to the Government's argument that the verdicts were not, in fact, inconsistent because the jury could have found the Respondent used the telephone to facilitate some offense other than the conspiracy of which she was acquitted. We have not raised, separately raised that issue for review in this Court, but we did contend in the Court of Appeals that there was no inconsistency on the facts, and the court rejected that because it found there was no evidence in the record to support that theory.
John Paul Stevens: Well, did they find no evidence in the record to support the theory, or no evidence in the record to support the conviction?
Mark Irving Levy: No. Our reading of the opinion, I think, makes it quite clear that they found no evidence in the initial opinion to support the Government's contention that the verdicts were not, in fact, inconsistent. Now, the Dunn rule also recognizes, in accordance with generally established principles, that convictions are not to be upset by speculation or inquiry into the jury process for the actual reasons for the jury's inconsistency. In this way, Dunn protects the integrity of the jury verdict and ensures that an acquittal based on leniency is not later invoked to overturn the very conviction that the jury determined to be appropriate. In other words, Dunn prevents a defendant from isolating the portion of the verdict favorable to him and using it to challenge the remaining and unfavorable portion that was simultaneously reached by the very same jury. No one in this case, neither Respondent nor the Ninth Circuit below, takes issue with the general validity of the Dunn rule. However, it is contended that an exception to Dunn should be made here. In arguing for such an exception, Respondent emphasizes the compound predicate nature of the telephone charges on which he was convicted; that is, the telephone convictions, which are the compound offense, rests on the use of the telephone to facilitate another, or predicate, offense. This factor provides no basis to depart from Dunn. First, the jury lenity rationale of Dunn is just as applicable in cases of compound predicate offenses as in any other case. Indeed, in this case, for example, Respondent, who concededly was a more minor participant in the drug operation, could well have been acquitted on the conspiracy count because the jury concluded that that charge, although supported by the evidence, was disproportionate to Respondent's involvement and culpability. And the convictions, based on the telephone calls in which she personally participated, were both adequate and more appropriate. In addition, Dunn itself involved inconsistent verdicts on compound predicate offenses. There, the defendant was convicted of maintaining a nuisance which required the jury to find as one of the elements, that liquor was unlawfully kept for sale. However, the jury acquitted the defendant on the possession and sale counts that served as the predicate for the nuisance charge. On this record, and over a lengthy dissent that stressed the interrelation of the offenses, the court affirmed the nuisance conviction and held that consistency in the verdicts is not necessary.
Harry A. Blackmun: That was Justice Holmes's last epitome, wasn't it?
Mark Irving Levy: That's correct, as this Court noted in Harris v. Rivera.
Harry A. Blackmun: You said over a lengthy dissent. Are you implying that the longer a dissent, the better?
Mark Irving Levy: No, not at all. We're only saying that the court was well aware of the interrelation of the offenses in reaching its holding in Dunn that consistency was not necessary. Since those offenses were, in fact, compound and predicate offenses, very similar to what we have here, we think that the precise holding in Dunn controls this case. And Dunn directly forecloses an exception to the inconsistent verdict rule for compound predicate offenses. Now, beyond the applicability of the jury lenity rationale here and the precise holding in Dunn itself, there is simply no analytical basis for carving out an exception to the Dunn rule for compound predicate offenses. Two closely related theories have been suggested; first, that the inconsistency renders the evidence insufficient to prove the compound offense; and second, that the inconsistency estops or precludes the Government from establishing the compound offense. Neither of these theories is persuasive. Let me discuss, first, the insufficiency of the evidence. Under this theory, which is advanced both by Respondent and by the Ninth Circuit below, the argument is that a jury's acquittal means that it rejected the Government's evidence and found that the Defendant did not commit the predicate offense. And, therefore, the Government's proof of a compound offense is necessarily insufficient, because it fails to establish the required predicate element. This argument is squarely inconsistent with Dunn, which specifically recognizes that an acquittal does not establish the Defendant's innocence, but instead should reflect the jury's exercise of its power lenity, even though it believed that the Defendant, in fact, was guilty. Moreover, nothing in this argument limited the compound and predicate offenses. Rather, the proof supporting the convictions will always be inadequate if, as Respondent urges, one disregards or subtracts from the record the evidence that a court believes the jury did not accept, as shown by its acquittal. If this were not so, the verdicts would not have been inconsistent in the first place. Indeed, under this theory, Dunn itself was incorrectly decided, because the nuisance conviction in that case could not be supported without the evidence relating to the possession and sale counts on which the Defendant was acquitted. Thus, contrary to Respondent's characterization, this case involves a narrow and unique exception to the Dunn rule. Acceptance of our insufficiency of the evidence argument would be a fundamental repudiation of Dunn. Now, of course, entirely irrespective of Dunn, the evidence must be sufficient to support the conviction. But Respondent's argument confuses the quite separate issues of the sufficiency of the evidence and the consistency of the verdicts. The former involves the evidentiary record. The latter involves the reliability or rationality of the jury process. The sufficiency question asks whether the Government adduced adequate proof under traditional standards to establish every element of the offense beyond a reasonable doubt, as the jury must have found in returning its convictions. That depends upon the totality of the proof in the record and is unaffected by the other counts that were brought or the jury's disposition of those counts. Respondent's argument is unavailing because it blurs the analytically distinct issues of sufficiency and consistency and is simply an attempt to reformulate in the guise of the insufficiency of the evidence the inconsistent verdict argument that was rejected in Dunn. Now, the other and closely-related line of argument for an exception to Dunn, which is advanced primarily in the Third and Eleventh Circuit decision cited in our briefs, is that the jury's acquittal on the predicate counts estops or precludes the Government from establishing the compound offense. This argument, too, is without merit, for much the same reasons. First, as for the insufficiency of the evidence argument, the estoppel argument is fundamentally at odds with Dunn and the recognition of the jury's power of lenity to acquit against the evidence. So, too, the estoppel exception is not really an exception at all, though it would essentially eviscerate the Dunn rule. Nothing in the estoppel argument limits at the compound and predicate offenses. Rather, this--
William H. Rehnquist: How did those Circuits try to distinguish Dunn, Mr. Levy?
Mark Irving Levy: --Those Circuits relied on a passage in Dunn that discussed res judicata. The court, in Justice Holmes's opinion, said that if... analogized the separate counts in an indictment to separate indictments tried successively. The court said that if the counts had been brought in successive indictments, there would have been no res judicata problem, and therefore it followed there would be no problem with the inconsistent verdicts in the single indictment. As we demonstrate in our brief, that res judicata discussion was of doubtful correctness at the time, for the court had previously indicated that res judicata does apply to criminal cases. But in any event, that discussion has long since been repudiated by subsequent decisions of this Court, such as Sealfon and Ashe v. Swenson. Nevertheless, the Dunn rule remains of continued and full vitality, based on rationale of jury lenity.
William H. Rehnquist: But the Court has never held that res judicata can be used in a criminal case to attack verdicts on counts rendered at the same time and submitted to the jury at the same time.
Mark Irving Levy: Absolutely not. Dunn is the only discussion of that point. To the contrary, as we indicate, Dunn was neither correct at the time, nor is it sound in that respect now. Indeed, the general law of estoppel is that there is no internal or single case estoppel. It has never been thought that the law of estoppel applies to single proceedings, and the purpose of the doctrine of estoppel, to prevent needless relitigation and promote judicial economy, is simply inapplicable to a joint trial of different counts. In addition, it would be wholly unjustified to pick out one part of an inconsistent verdict and use that to override another part that was simultaneously returned by the very same jury. That simply doesn't make any sense, to pick and choose among the parts of the verdict and give priority to one over the other. So, for those reasons, we don't think either the general law of estoppel or the res judicata discussion in Dunn itself gives any support to the estoppel exception, as urged.
John Paul Stevens: May I ask, though, directing your attention to this paragraph, I suppose one can argue that there were alternative grounds, alternative holdings in Dunn, and that if Justice Holmes really intended to rely on the res judicata analysis, which Justice Butler disagreed with violently, that the statement about inconsistent verdicts is really what is dicta.
Mark Irving Levy: Well, I suppose that is always the case when there are alternative grounds for decision. But the fact of the... the basic point here is that whatever was intended at the time, it is clear that the res judicata discussion simply does not stand up. And the Dunn rule, nevertheless, has continued to be followed.
John Paul Stevens: Well, it would stand up, wouldn't it, if he was right, that one of those would not be... would not bar the other and the facts of that particular case?
Mark Irving Levy: Well, it's correct that successive prosecutions would have been permissible--
John Paul Stevens: Right.
Mark Irving Levy: --then the inconsistency of verdicts seems an easier case.
John Paul Stevens: He wouldn't have needed to make the inconsistent verdict point at all.
Mark Irving Levy: He wouldn't have needed to, although, again, it could have been an entirely independent and indeed equally mor more important part of the decision. It's hard to know from the very brief opinion. But the point on the res judicata discussions, we think it was not correct that those counts could have been brought in separate prosecutions; that is, if the Defendant had first been charged with possession and sale and acquitted, we think it would not have been permissible to bring a second prosecution on the nuisance charge, assuming that the verdicts were, in fact, inconsistent.
John Paul Stevens: Yes, assuming they are inconsistent.
Mark Irving Levy: Right. Now, the Government had argued in that case, as we did in the Court of Appeals in this case, that in fact there was no inconsistency. And we think that was a substantial argument in Dunn, as it is here. But the Court's opinion, I think, does make it quite clear in Dunn that it did not rest the decision on that narrow ground that the verdicts were not inconsistent, but rather assumed for purposes of decision that they were inconsistent, and went on to decide more broadly that consistency in the verdicts simply had not--
John Paul Stevens: How often has this Court actually rested a decision on the second point of the Dunn case?
Mark Irving Levy: --The second point being the res judicata discussion?
John Paul Stevens: No, the inconsistent verdict point, which was the last point of the opinion.
Mark Irving Levy: Well, we think every time that the Court has considered the inconsistent verdict issue since Dunn, it has relied on the basic point that inconsistency in the verdicts is not required, and it has never cited or relied on the res judicata discussion. And I think that is equally true in the lower courts, with the exception of these decisions under 843(b) that have now resurrected the discredit res judicata analysis and used that as a basis for finding an exception to the Dunn rule. Now, the estoppel exception, in addition to all the other problems, simply cannot be limited to compound and predicate offenses. This theory, if it were accepted by the Court, would extend far beyond the present context and would subject all inconsistent verdicts to the usual rules of preclusion that apply in separate proceedings. Contrary to the Dunn rule, which results in inconsistent verdicts being upheld, the estoppel theory would mean that inconsistent verdicts would always be revised because, by definition, a verdict that is truly inconsistent cannot meet the usual standards of preclusion. Indeed, under modern principles of collateral estoppel, as I just discussed with Justice Stevens, the inconsistent verdicts in Dunn themselves would be impermissible. So, again, while the estoppel argument, like the insufficiency of the evidence argument, is presented as a narrow and unique exception to the Dunn rule, in reality it constitutes a basic rejection of the rule and would mean that Dunn itself was incorrectly decided. If the Court has no further questions, I shall reserve the remainder of my time for rebuttal.
Warren E. Burger: Mr. Cleary.
John J. Cleary: Mr. Chief Justice, and may it please the Court, human absolutes tend toward arbitrariness. The Government's position, succinctly stated, is Dunn permits no exceptions. In the example of a person charged with robbery in felony murder for a death resulting from the commission of that robbery, if there was a finding of not guilty on the robbery, the murder conviction could stand. And the essence of our position, as articulated by the circuit courts below, was that 843(b) is a very narrow offense which has, as an essential element, the commission of a felony prescribed in Title XXI. In the Dunn case that the Court had before it in 1932, there was three discrete misdemeanors: maintaining a nuisance, a building where liquor was kept for sale, the offense of possession, and the offense of sale. And there was some overlap, admittedly, but we all know that possession for sale is an offense other than simply possession for sale itself, and that some of the language was not necessary in the Government's position, which was even referred to by Justice Holmes, was that you could have the commission of one without the other. In this particular case, there has to be some balance. Sealfon was the opinion that indicated that there has to be some consideration given to an acquittal. Admittedly, in Sealfon we had a two-count referred, conspiracy and a fraud. The conspiracy went to trial first; an acquittal, and there was res judicata after the second.
Warren E. Burger: Did you argue the case in the Court of Appeals, Mr. Cleary?
John J. Cleary: No, Your Honor.
Warren E. Burger: You did not?
John J. Cleary: No, I did not, Your Honor. I was appointed by this Court after counsel had argued in the Court of Appeals.
Warren E. Burger: You would have no way of knowing the rather unusual treatment of the Dunn case in the first opinion of the Court of Appeals.
John J. Cleary: I think that the court was wrestling with the dual issue, Your Honor. I think, first, the issue was the Hannah doctrine, which was, was the essential element there; and also the peculiar facts of this case which indicate, at most, some type of attenuated suspicion focusing on Betty Lou Powell. I think that what has to be understood in this particular case is, as all of the circuits have said in this matter, is that this rule applies only where the Government charges a targeted conspiracy or offense; that 843(b) had in this case a specific conspiracy that included as overt acts each of the four telephone counts. And where it has targeted those offenses, and the jury then decides, the same jury, the same case, in those unique circumstances, that which is the essential element of 843(b), when it goes down... whooph... so also the telephone count. Four circuits have ruled on the issue. Seventeen circuit judges. Not one dissent. Each and every one of them recognized that this could not be in extremis applied across the board. There are some limitations. I think in this case, there also is a duty to respect the action of the jury. And this Court is told that... I don't think this is a Court that's going to be delving into the facts... that the jury was wrong. It was lenity that acted here. I am suggesting that the results reached by the Court of Appeals balances respect for the jury and the court along that particular count--
Thurgood Marshall: Was the jury properly instructed, in your mind?
John J. Cleary: --No, it was not, Your Honor. And that aggravated the situation, which indicated, I think, the reason the result in this case. The circuit judge who wrote this opinion is the most experienced judge of the Ninth Circuit. And in Tobbs v. Florida, this Court laid out what insufficient evidence is, or going against the weight of the evidence. Insufficient evidence is words of art to an experienced appellate jurist. In this case, he said the facts aren't there in the original opinion, the evidence isn't there, and when the Government said we want a second shot on a petition for rehearing, he said, "Let me make this clear for you. " "You lack sufficient evidence. " "Insufficient evidence. " Now, those are not sloppy craftsmanship, an error. And the Government says we have an inconsistency case. A condition precedent to your review for inconsistency is that you must find the evidence sufficient. And if you look at the history of your cases on inconsistent verdicts, starting with Dunn, Dotterweich, Standefer, and Harris v. Riveria, each one of those cases, there was an express finding in the holdings of this Court that the evidence was sufficient. I find that due deference is owed to the lower court in the evaluation of fact. And, further, the Court of Appeals in the Ninth Circuit went an extra step, giving the Government a little extra. And what they want to give them in the case... we'll apply the Areas variation. The Fifth Circuit says if you have a situation where there is evidence outside of the targeted conspiracy, some other conspiracy, no matter how ephemeral it might be, we'll sustain the conviction. They said we're looking under the Areas doctrine; we can't find that evidence.
Byron R. White: I don't suppose... do you think the Government would be here if it was clear that the finding was that there was not sufficient evidence to convict of anything?
John J. Cleary: I can't predict what the Government would do, and I would not want to--
Byron R. White: Well, that isn't... I'll put it to you: What if it were clear that that isn't what they held; that they held that just because, because there wasn't a conviction on one count, there was not sufficient evidence for the other?
John J. Cleary: --I would hope that the Government would not come to this Court.
Byron R. White: But you aren't complaining about Dunn; is that it?
John J. Cleary: No, Your Honor. I'm saying that, one, Dunn is not inconsistent with the position of the Ninth Circuit, even under the inconsistent doctrine; that 843(b), when it has a charge, specified conspiracy, is an exception to Dunn,-- And so to the extent... I think Dunn is valid law as to what it said, and again the precedent of this Court is rather substantial. I'm saying that there is a very narrow limited exception as defined by the facts in this case. The Government says no.
Byron R. White: And when you say that you could never convict on the telephone counts if there is an acquittal on the conspiracy count.
John J. Cleary: On the charged conspiracy; that is correct, Your Honor.
Byron R. White: No matter what. Even if you said well, we certainly would have sustained a jury verdict, there's enough evidence to sustain the jury verdict on the telephone counts. You would say that the jury just cant' come out inconsistent.
John J. Cleary: No, juries are inconsistent, this Court well knows. In this case, there was four telephone counts. Found not guilt of one, but guilty of three. If the predicate offenses was established by the other evidence, I couldn't say they cut loose on one telephone count; therefore, the other three can't stand. I can't take that position. It's illogical. So I say inconsistency is there, and I have to respect the authorities of this Court, but I just don't think there's an absolute Dunn requirement that would out across the board for all cases. I would like to point out that the jury was not irrational, as Justice Marshal alluded to, and I think that the point here was they followed, like soldiers almost, the law of this case. They took the trial judge's instruction. And the judge instructed on what we consider the fatal variance aspect in this particular case, where the charges were for cocaine. And the jury came out with its first note and says, now, we don't know if it's cocaine or not, and if we can't find cocaine, do we have to go that way? And the judge instructed, on the two conspiracy counts and on the two substantive counts, if... for you to find guilty, there must be that specified controlled substance, cocaine or qualudes. The came back the second time and said we're having problems. Does this mean... we're at an impasse. If we have to find it's cocaine, as charged and we can't, do we have to find not guilty? And the response was the judgment, and the prosecutor realized that the case might be going down and said, well, I'll stick with my stare decisis. I'm stuck with the specific substance as to the conspiracy in the substantive counts, but on the telephone counts, Judge, make it cocaine or qualudes. But what did the indict charge in the telephone count? It charged a conspiracy to possess cocaine with intent to distribute, or possession of cocaine with intent to distribute. Cocaine, not qualudes. This Court, in Stirone, said you can't get away with that type of thing. In our system of justice, its' the indictment returned by the Grand Jury, and the respect that that Grand Jury is entitled to must be responded to by the court. You can't do it. And when you massage it around to make it more convenient, it won't fly. I'm going back to the old 1886 Ex Parte Bain where, in this case, we contend that there was no--
William H. Rehnquist: Ex Parte Bain is virtually dead, isn't it?
John J. Cleary: --I wouldn't say so. I think the Court has quoted it up until the last few years. In fact, I think this last term, in 1983, there was some discussion. I realize Your Honor--
William H. Rehnquist: Always to distinguish it; never to follow it.
John J. Cleary: --Well, the reason was in that case, there was a very narrow striking from the indictment; "and the Comptroller General of the United States. " Those words, that striking, was enough to reverse it. And I would say in haec verba, if it resolved those particular facts, Your Honor is correct and I think Your Honor's position was that, in the case you cited, that it's limited to those facts. And I agree. But I'm saying that taking Stirone, where we had the changing of the allegations, and then we turn it around and we see in this particular case. Ex Parte Bain, where it says it's a jurisdictional error. Our position is there was no waiver. From the outset he said, I want the specific substance on the telephone count. And the judge says, "You got any quarrel with that? " Who quarrels with the judge? And then after it was all over, you take a look at... I think it's Joint Appendix, page 26... the last line; he said, "Do you have any quarrel with the instructions? " "None, other than I've already stated. " So I think that that issue was presumed--
Thurgood Marshall: Counsel, if the jury, after listening to the judge's instruction, is of the opinion that these are two different crimes, one involving cocaine, and one cocaine and qualudes, they are different crimes. And we can find guilty of one and not guilty of the other. What is wrong with that?
John J. Cleary: --I believe there was a case where there's two options, where the jury could one way on two options, and where they could find guilty on one and not on the other. I think it was Yates, if I'm not mistaken, and I think this Court held that you can't make that option. If the Court is referring to the fact that both are Schedule 2 substances, which they are, I would point out just--
Thurgood Marshall: Mine is... I asked you if, under the judge's instruction, the jury was of the opinion that these were two separate crimes, wouldn't it be all right?
John J. Cleary: --I don't think in terms of the charge here, because the charge was cocaine, Your Honor, and I don't think that they can substitute qualudes for cocaine.
Thurgood Marshall: You just said so; that the judge... that was the judge's instruction.
John J. Cleary: No. That is what the judge's instruction was. An objection was made at trial, and we're contending in this Court that that was improper. And, further, in dealing with Schedule 2 of Title XXI, Section 812, there is some almost 25 substances listed; the opium, cocaine, 21 enumerated, and then anything containing methamphetamine. But under Section 811 of Title XXI, the Attorney General can add to this list. So we're dealing with a unique case where there's tremendous flexibility, and I think even the fundamental principle of notice, an issue raised in the brief, that there has to be some designation. And when at the jury's impasse, and there's a charge of cocaine, and now we want to switch it to qualudes, I think it's unfair. What this Court has before it is an unseemly case, with an unreliable record. Trial defense counsel in this case, subsequent to the hearing by the Court of Appeals... the charges were filed after this case was taken under submission... was convicted of accessory after the fact for being in a conspiracy with the fugitive husband of the Respondent and, as a result, received four years and, during that proceeding, was also convicted for false statements made in response to bond containing this particular case. A reference was made as to where $200,000 was. That disloyalty must be noted by this Court. It's not a matter for 2255 relief because--
William H. Rehnquist: But how does that affect the Dunn issue? It doesn't, I take it.
John J. Cleary: --Well, I think it affects the posture of this case before the Court.
William H. Rehnquist: But how does it affect the Dunn issue?
John J. Cleary: The Dunn issue, Your Honor? I think, again, it's just Wood v. Georgia, where this Court, when it dealt with probation revocation where there's a possibility of conflict, thought it best to remand the case. And I think that, given the fact that you want a viable case or controversy, it would seem to me that if you found it infected by unreliable counsel, it would be inappropriate. And I think the role of counsel in this case leaves much to be questioned. Specifically, on the Dunn issue, there was some question as to what was the evidence stated, and I alluded to in the briefs, to reference where counsel almost conceded the existence of some--
William H. Rehnquist: But, counsel, the same... did the same counsel argue on appeal as tried the case?
John J. Cleary: --No, Your Honor. And that... it was different counsel. And in this particular case, we feel that the prejudice almost permeates the record. In this case at the outset, and I believe counsel for the Government submitted a supplemental transcript, 19 May 1982, page 6. There's a reference to prosecutor, prior to the start of trail, aware of the fact that the Respondent's counsel, defense counsel below, was in communication with the fugitive husband. At the time of sentencing, there was a reference brought out that this lawyer was carrying letters between the fugitive husband, one of the Defendants in the named conspiracy in the case, to the Respondent at jail. And, third, there was a reference that this particular lawyer, at sentencing, somewhat agitated about the anticipated sentence, said; "Well, what do you want? " "Now you're saying is what can you give me. " the prosecutor, alluding... "what can you give me? " "I'll cut you loose. " indicating--
William H. Rehnquist: The Court of Appeals ruled against you on this point, didn't they?
John J. Cleary: --No, they didn't, Your Honor. What they ruled against was on the ineffective assistance of counsel. This issue was never addressed in the Court of Appeals.
William H. Rehnquist: Well, then why are you addressing it here?
John J. Cleary: Because I'm citing Wood v. Georgia, where the Court had a similar situation, where it was a matter not noticed until it hit this Court, where the imperfection of counsel, the potential for conflict, in this case we feel an adjudication of conflict has been made, and therefore it's somewhat questionable why this Court is here. I have also moved that this case be dismissed as improvidently granted.
William H. Rehnquist: So you're just kind of running through a whole string of things.
John J. Cleary: I cannot... I cannot accept the Court's characterization. I feel that each of these issues are well met, and I think that, as the Court said, I believe it was you, Justice Rehnquist, in your dissent in Yermian, where any issue raised or not raised below may be submitted to this Court in support of the lower court's determination.
William H. Rehnquist: Yes, but I think what you're submitting now wouldn't support the Ninth Circuit's judgment. The Ninth Circuit affirmed several counts and reversed several. And what you're saying is the whole thing should be washed out.
John J. Cleary: Your Honor, I'm saying... and that's a... I have petitioned for cert in this case, and the Court denied cert on the petition, her petition. So you get selective review to the Government. You took only that portion of the conviction that the Government sought to have reviewed. And I'm saying, in the context of that portion which is reversal, that the suggestion in this case of remand for further inquiry is certainly within the parameters of that which Court granted reviewing. I would think that under the circumstances of this case, it's not the type of case that the Court would want to issue out or promulgate, use one... I'm somewhat embarrassed to present this posture of it, but I feel that much like in Wood v. Georgia, the Court must address that issue. Thank you very much.
Warren E. Burger: Very well, Mr. Clearly. Do you have anything further, Mr. Levy?
Mark Irving Levy: Just a couple of points, Mr. Chief Justice. Respondent's argument is most notable for its avoidance of the issue presented in this case on the inconsistent verdict issue. It raises a number of questions... variance notice, conflict of counsel... and we agree with Justice Rehnquist's characterization that these simply are not appropriately considered here. They were not preserved below. They are not alternative grounds for affirming the decision, the judgment of the Court of Appeals, and they have nothing to do with the issue that we presented in our petition. Now, Respondent argued at some length the sufficiency of the evidence. We think that this case is not a sufficiency of the evidence case, and that that simply confuses the issue. The Respondent did not raise a sufficiency of the evidence objection in the Court of Appeals, and the Court of Appeals did not make a traditional review of the evidentiary record to determine whether the proof was adequate to support the conviction. That simply is not an issue that was ever raised in the Court of Appeals and it was not presented here. But, beyond that, we don't see how there could be any real doubt about the sufficiency of the evidence on this record. We summarized it in our brief so that the Court would understand the case and see that there was no problem with the sufficiency of the evidence. The Respondent engaged in several telephone calls. She knew who the thin man was. She knew his telephone number. She knew what was meant by the coded reference to "coupons" as money. Reading the transcripts of the wire tap records, we don't think there can be any serious question about the sufficiency of the evidence. And the District Court, at the sentencing proceeding, after sitting through the entirety of this trial, made it clear that he thought the evidence was ample and that the jury correctly resolved the telephone counts against the Respondent. The sufficiency of the evidence issue that Respondent seeks to present would be no different if the conspiracy charge had never been brought; if this were only a three count indictment on the telephone offenses, alleging, but not separately charging, that a conspiracy was facilitated by the use of the telephone. On that record, if the jury convicted on all three telephone counts, there would be no inconsistency in the verdict, and the record would be just as it is here. And in that circumstance, we don't think there could be any realistic question about the sufficiency of the record to support the convictions. The issue in this case, which Respondent has refused to recognize, is whether the Dunn rule, as applied and reaffirmed consistently by this Court over a half century in cases like Dotterweich and Hamling and Standefer, and as recently as a few years ago, in Harris v. Rivera, whether the inconsistent verdict rule is applicable here, as we contend, or whether there is some exception for the offense of telephone facilitation under Section 843(b). For the reasons stated today and in our briefs, we submit that there is no such exception; that is case is controlled by the Dunn rule; and that the judgment of the Court of Appeals should be reversed.
Warren E. Burger: Thank you, gentlemen. The case is submitted.