Warren E. Burger: We will hear arguments first this morning in the State of Tennessee v. Harvey Street. Mr. Grunow, you may proceed whenever you are ready.
Robert A. Grunow: Mr. Chief Justice, and may it please the Court: This criminal case is here on a writ of certiorari to the Tennessee Court of Criminal Appeals which reversed Defendant Street's first degree murder conviction and sentence of life imprisonment and remanded the case for a new trial. The question before this Court is whether a nontestifying accomplice's confession can be constitutionally used on rebuttal to impeach the defendant's claim that his own confession was a coerced imitation of the accomplice's. The facts relevant to this inquiry are as follows: This prosecution arises out of the 1981 murder of a 72 year old man who was found hanged outside his burglarized home in a small mountain community in east Tennessee. The defendant, a Clifford Peele, and five other young adults, were charged with murder, and defendant Street's case was severed from the others. The state's proof in chief at Street's trial consisted of several confessions by the defendant and testimony of law enforcement officers concerning the scene of the crime that tended to corroborate certain details of the defendant's confession. From the time of its opening argument through its case in chief, the state did not mention the existence of Peele's confession. Thereafter, the defendant presented an alibi defense and took the stand. In his direct testimony the defendant admitted that Peele had given a confession which had implicated the defendant in the murder. The defendant also admitted that he gave a confession but maintained it was merely a coerced imitation of Peele's earlier confession. With regard to this claim, the defendant maintained that prior to taking his confession, the sheriff repeatedly read him Peele's confession. The defendant also claimed that when taking his confession, the sheriff interrupted him any time his account varied from Peele's and demanded that the defendant replicate Peele's version, which the defendant then did. As part of its rebuttal proof, the state for the first time in this case sought to introduce Peele's confession into evidence. Over objection, the state was allowed to introduce the confession for the limited, non-hearsay purpose of establishing that it was said, and with the express goal of impeaching the defendant's parroting claim with the most appropriate evidence available. Limiting instructions were given on three occasions, and the record clearly indicates that the state carefully limited its use of and argument on the accomplice's confession to the impeachment purpose for which it was introduced. Thereafter, the defendant was convicted of first degree murder and was given the only sentence permitted in this case under state law, life imprisonment. On appeal, the Tennessee Court of Criminal Appeals reversed the conviction of the defendant on the ground that the introduction of Peele's confession under the circumstances of this case denied the defendant his confrontation rights under the Sixth Amendment. The state urges this Court to reverse the decision below since the limited introduction of the accomplice's confession for the impeachment purposes on rebuttal did not violate the defendant's confrontation rights. We contend that limiting instructions were adequate in this case to avoid a confrontation clause violation for four reasons which I will summarize and then address in sequence. First, the manner of introduction of the questioned evidence created little if any likelihood of improper jury consideration of that evidence. Second, there existed legitimate and compelling reasons justifying the state's use of such evidence in light of the defendant's parroting claim. Third, no suitable alternatives existed. And fourth, under the circumstances of this case, the evidence was not devastating in nature. In applying the confrontation clause to the admission into evidence of nontestifying accomplice confessions, Bruton, Douglas and the Parker plurality of this Court have addressed two basic questions: first, whether the manner of introduction of such evidence creates a substantial likelihood of improper consideration of that evidence against the defendant, and second, if so, whether the resulting risk of unfair prejudice as a matter of policy or practical necessity outweighs the ability of a jury to follow limiting instructions given. We suggest that both questions are answered in the negative in this case. As to the first basic question, the manner of introduction created little if any likelihood of improper consideration. Unlike prior cases in this are where no legitimate inferences against the defendant could be drawn from the evidence placed before the jury, in this case there was a legitimate inference that could be drawn from the introduction of Peele's statement, namely, that Peele's confession was sufficiently different from the defendant's so as to negate the defendant's parroting claim--
William J. Brennan, Jr.: This was not a joint trial, was it?
Robert A. Grunow: --It was not, Your Honor. The evidence was introduced by the state only after the defendant had already focused the jury's attention on the existence of the accomplice's confession.
Thurgood Marshall: And after it had been denied by state officials, categorically denied.
Robert A. Grunow: Your Honor is speaking of the introduction?
Thurgood Marshall: Before it was introduced. Didn't the sheriff take the stand and say it's not true?
Robert A. Grunow: That's correct, Your Honor.
Thurgood Marshall: So it had been adequately denied, hadn't it?
Robert A. Grunow: Your Honor, our position is that that did not make it adequately denied.
Thurgood Marshall: But it had... well, it had been.
Robert A. Grunow: It had been denied, but it became a swearing contest at that point between the defendant and the sheriff.
Thurgood Marshall: Well, the Court of Appeals doesn't agree with you on that.
Robert A. Grunow: That is correct, Your Honor.
Thurgood Marshall: Specifically, specifically, the Court said no. The Court said that it was used in the argument to the jury as to express details of the crime, which is in addition to a falsehood claim.
Robert A. Grunow: We believe, Your Honor, that the conclusion of the Court of Criminal Appeals below rested on a faulty assumption that because of its appraisal of Bruton and Douglas, they felt that it always had to be--
Thurgood Marshall: Well, let me read you one sentence. Here the alleged confessor was not even called to the stand. The statements inculpating the defendants stood basically unchallenged as the state directed inquiry not to those allegations but to the factual statements surrounding the scene of the crime. Do you agree with that?
Robert A. Grunow: --No, Your Honor.
Thurgood Marshall: Then the Court was wrong.
Robert A. Grunow: Yes, Your Honor.
Thurgood Marshall: Factually.
Robert A. Grunow: It was wrong assuming those facts and interpreting them the way they did as a matter of federal constitutional law.
Thurgood Marshall: Do you agree with this statement, that in this case, while admission of the confession was not technically used to prove its truth, the state actually placed before the jury testimony incriminating the defendant made by one not available for cross examination. Do you agree with that statement?
Robert A. Grunow: No, Your Honor. It is our position that because of the limited nature of the statement's introduction in this case, it was not offered to prove the truth of that statement but was rather merely entered to show what that statement was, to directly impeach on rebuttal the defendant's claim that he parroted the very terms of that other confession. We believe that the Court of Criminal Appeals below misapplied this Court's doctrines as enunciated in Bruton and Douglas and the Parker plurality to find that there necessarily had to be a substantial likelihood of improper consideration. It is our position that that simply did not occur in this case.
Warren E. Burger: How did the subject of a confession first come into the record of the case?
Robert A. Grunow: As to Peele's confession?
Warren E. Burger: How did the subject of a confession first get into the record and called to the attention of the jury?
Robert A. Grunow: Your Honor, the subject first came in in the defense attorney's opening remarks to the jury in which he pointed out that a co-defendant, Peele, had confessed and had implicated Street in the murder. In this case, as to the substantial likelihood of improper consideration, the defendant focused the jury's attention on the existence of the accomplice's confession. We submit that this is important because the jury had already been informed by the defendant that the accomplice had confessed and had implicated him in the murder, thereby avoiding the potential for any proper consideration of the confession as introduced later by the state. As to the second basic question raised by this court in prior decisions, both as a policy and practical matter, any resulting risk of unfair prejudice occasioned by the introduction of such limited purpose evidence on rebuttal was eliminated through the use of limiting instructions. In Bruton, this Court considered three factors in determining whether the introduction of such evidence would further rather than impede the search for truth, first, whether adequate justification exists for the use of the questioned evidence; second, whether alternatives exist in the pursuit of truth to avoid any conflict; and third, whether the devastating nature of the evidence is too great as a practical matter to be cured by a limiting instruction.
John Paul Stevens: May I ask a factual question to be sure I have this right? Is it correct that the defendant at the trial did not challenge the fact that this... that he said the words that were said to be his confession? Rather, only his position was he said them under coercion and so forth?
Robert A. Grunow: That is correct.
John Paul Stevens: But the actual text was not... there is no real dispute about that.
Robert A. Grunow: That is correct.
John Paul Stevens: Okay. I wanted to be sure.
Robert A. Grunow: As to the first factor, there were legitimate and compelling reasons justifying the state's use of such evidence in this case. In Bruton and Parker, this court dealt with judicial economy in a joint trial as a justification for the use. Here, the more important justification lies in the defendant's election to place before the jury his parroting claim which called into question the very terms of his accomplice's confession. Now, as a practical matter, the state was justified in using the accomplice's confession because it was the strongest and only adequate evidence to directly challenge that defendant's claim. As a policy matter, after making his parroting claim, the defendant should not be allowed to invoke the confrontation clause to bar the limited non-hearsay rebuttal use of such evidence. Such invocation of the confrontation clause would impede the ability of the jury to assess the credibility of the defendant's claim, thereby posing a grave risk of perversion of the truth-seeking function of the trial. It would also permit the defendant to use the confrontation clause as a shield to subvert the very mission of that clause as ensuring the fairness and accuracy of the criminal claim. Such a policy is consistent with past decisions of this Court. In 1948 in Michelson v. United States, this Court recognized that evidence which may be too prejudicial to introduce in the state's proof in chief, even with limiting instructions, may nevertheless be used for impeachment purposes once the defendant elects to put that issue into evidence by taking the stand. Now, Michelson v. United States admittedly does not raise constitutional questions. However, other cases cited in our brief suggest that constitutional protections, whether afforded by prophylactic exclusionary rules or by direct application of constitutional rights, should not provide a defendant with a shield to bar the legitimate impeachment techniques in assessing the credibility of a defendant's claim that he asserts on the stand.
Sandra Day O'Connor: Mr. Grunow, are there any limits in your view on the use of such evidence by the state? Is redaction of the statement required on occasion? Are there any limitations in your view on the use of the evidence for impeachment purposes?
Robert A. Grunow: I will address both the limitations as well as the possibility of redaction, Your Honor. As to limitations, we suggest that it has to be relevant to the impeachment purpose for which it is introduced, that many impeachment purposes require that the evidence be offered for the truth of the matter asserted. Where, as in this case, it is offered properly for a relevant, limited, non-hearsay purpose, to merely show that that statement was made, it would be proper.
Sandra Day O'Connor: Oh, yes, assuming it is relevant, are there any limitations by virtue of the prejudicial nature of the evidence?
Robert A. Grunow: It is quite possible that the prejudicial impact in certain occasions may outweigh its probative value, and we simply say that this is not that type of case, and we do not want this Court to give a broad ruling to that effect. But when in fact it is relevant and these other factors weigh so heavily in its favor for admission, we suggest that there are compelling reasons to admit it. As to the redaction issue, we suggest that is the third factor in this case... the second factor in this case, that no effective alternatives existed. Redaction or limited use simply would not have permitted the state to adequately use the confession to challenge the parroting--
William J. Brennan, Jr.: But didn't the Court of Criminal Appeals say to the contrary?
Robert A. Grunow: --They did, Your Honor, but they did not offer any suggestion as to how it might be--
William J. Brennan, Jr.: But they did hold, did they not, that there might have been redaction without destroying the state's impeachment use, didn't they?
Robert A. Grunow: --They did hold that.
William J. Brennan, Jr.: And you disagree with that.
Robert A. Grunow: I disagree with that, Your Honor. In this case, in the peculiar facts of this case, the defendant did not take the stand and simply say that some portions of his confession were parroted. He said anytime that his version varied with Peele's, the sheriff would force him to replicate Peele's confession, and because of that type of claim, it was very relevant and in fact the most significant evidence to introduce this confession for the limited purposes which it was, in fact, introduced for--
Byron R. White: --Would it have impressed the Court of Appeals or your court below if you had called the person who had already been convicted and was close by in jail? You didn't call the confessor, did you?
Robert A. Grunow: No, we did not, Your Honor.
Byron R. White: Yes. Well, first tell me why you didn't.
Robert A. Grunow: The reason for that, Your Honor, is that his testimony would have only gone to the veracity of his confession, and that was wholly immaterial to the use for which the state was introducing the evidence. We did not... it simply was not part of the state's case. We only wanted to give the jury, in assessing the defendant's claim, the best possible evidence to do that, namely, Peele's confession.
Byron R. White: Well, what if you had called him and he had been in the courtroom? Do you suppose that would have made any difference to the Court below?
Robert A. Grunow: I don't believe so, Your Honor. He could be cross examined, but--
Byron R. White: --That's what the court, that's what your Court of Appeals said.
Robert A. Grunow: --Yes, Your Honor, but on issues totally immaterial to the limited purpose for which the state was introducing this evidence.
Thurgood Marshall: And that's not what your Court of Appeals said--
Robert A. Grunow: --Your Honor, that is not what they said--
Thurgood Marshall: --He could have been cross examined.
Robert A. Grunow: That is correct.
Warren E. Burger: Could the defendant have called him as a hostile witness and cross examined him?
Robert A. Grunow: Absolutely, Your Honor.
Byron R. White: --Is it your position that the Court--
Robert A. Grunow: The Court of Criminal Appeals.
Byron R. White: --The Court of Criminal Appeals... that the Court of Criminal Appeals would have come out the same even if the confessor had been in the courtroom?
Robert A. Grunow: I believe they would in the sense, Your Honor, that the question was whether the defendant was in fact subject to cross examination on the stand. Availability was really not an issue. Everyone seems to agree that he was in the jail next door, and that made no difference whether he was actually in the courtroom or the jail, the fact that he was not taking the stand seemed to be the turning point in this case.
John Paul Stevens: May I ask a question about an alternative way of handling the problem? As I understand it, the point was that Peele's confession did not have some facts in it that the defendant's confession did have, and you wanted to show therefore the defendant's could not have been parrotted.
John Paul Stevens: After reading the confession, as I understand the record, the officer was asked were these facts as in the confession you just read, and he denied as to each of those facts.
John Paul Stevens: Why couldn't he have been asked those questions without reading the confession, and then had the confession in the courtroom in order to verify whether or not the testimony was true? Why was it necessary to read the confession and not just identify those points?
Robert A. Grunow: Your Honor, the reason why the state found it important to do more was that it was not only the omissions in Peele's statement that made the parroting claim incredible; there were numerous differences, only slight differences between similar events that both narrated that would show that it was impossible for them to have merely been the result of a parroting claim.
John Paul Stevens: So you would agree that if you were focusing on the omissions, and that were the whole point, it would not have been necessary to read the confession.
Robert A. Grunow: That's correct.
John Paul Stevens: So your point is there is a little difference in the style and the language and so forth?
Robert A. Grunow: Yes, Your Honor, that it was for the jury's benefit to see both--
John Paul Stevens: Well, but why wouldn't the impeachment have been adequate just with the omission point? It seems to me that is the most persuasive, because you had independent evidence I think at the scene that coincided with what the defendant had said and what had been omitted from Peele's confession, so that I don't know why you had to... it seems to me that is by far the more persuasive impeachment of the two.
Robert A. Grunow: --It may be the more persuasive, Your Honor, but we are here arguing whether the defendant's confrontation rights were violated, and we believe that because of weighing the factors that I mentioned initially, those factors tipped the scale in favor of the state's introduction of the complete statement in this case.
John Paul Stevens: In the closing argument did the prosecutor make much of the difference in style? I know he made a great deal of the omissions.
Robert A. Grunow: He did, Your Honor.
John Paul Stevens: He did.
Warren E. Burger: Mr. Schwartz?
Joshua Ira Schwartz: Thank you, Mr. Chief Justice, and may it please the Court: In view of the United States, the decision of the Tennessee Court of Criminal Appeals represents a misapplication of the doctrine of this Court's decision in Bruton v. United States. Contrary to the argument of respondent, this Court's decision in Bruton does not hold that the reception in evidence for any purpose of the inculpatory statement of a nontestifying accomplice necessarily violates the confrontation clause, nor does it hold that instructions that limit the use of such a statement are in all cases ineffective. Rather, as we understand it, the Court held that in light of the inadmissibility of the hearsay statement incriminating Bruton in that case, the critical weight added to the prosecution's case by the declarant statement there and the general availability of separate trials as a device to avoid the problem that existed in Bruton, there was no sufficient justification for running the risk that the limiting instruction given in Bruton would prove an insufficient bulwark against the risk of unfair prejudice that would result if the instruction were disregarded. This case differs from Bruton in numerous critical respects which we believe call for a different conclusion here and require that the judgment of the Tennessee Court of Criminal Appeals be reversed. Bruton emphasizes the inadmissibility under the traditional rules of evidence as against the Defendant Bruton of the declarant's out of court statement. Here, of course, the declarant Peele's statement was admissible against respondent for a proper purpose, and there doesn't really seem to be any debate that the state had a legitimate objective here and it was one that we deem compelling. That purpose, of course, was to enable the jury to assess the respondent's claim that his own statement was a coerced imitation of the declarant's, and we agree with the state's argument that the very best evidence available to the jury to assess that claim was to look at the statement itself. This is partly, Justice Stevens, because of the fact that... I think it would naturally occur to a juror that the best way is to look at the two statements side by side to see what all the nuances are, and while it may have been sufficient, I might well... we as jurors might well have been persuaded by the omissions factor, a juror in assessing this claim I think would want to see the whole thing, and I think it was an important kind of evidence.
John Paul Stevens: But isn't the argument also available that the burden really was on the defendant to prove his parroting claim? I mean, he's the one who brought it up, and I would suppose if there were merit to it, he would have been the one to put the confession in.
Joshua Ira Schwartz: Well, this case has a peculiar fact in that regard. The defendant did attempt to do that and failed in doing so on the grounds that the statement was hearsay. At the point in the case where that occurred, it may have been premature, but the defendant did signal his own understanding that this was the most appropriate way to prove his claim by attempting to get the statement before the court. So it probably does not lie terribly well in the respondent's mouth to say that this is an inappropriate way of demonstrating this. The other factor which, if I can pick up further on your colloquy with the Attorney General, if the sheriff had simply denied, as he did, that these particular facts were in Peele's statement, there would of course have been the question of whether that was true. Now, you said, Justice Stevens--
John Paul Stevens: Well, I am suggesting have the confession in the courtroom so that the defendant then would have had the opportunity to show he was lying.
Joshua Ira Schwartz: --But if that statement went to the jury, I am not sure, which would ultimately have to assess whether he was telling the truth.
John Paul Stevens: I'm not suggesting it would have to go to the jury. If the officer says A, B, and C are in one statement and not the other, and they are both sitting here in the courtroom and nobody submits them to the jury, that testimony is pretty persuasive.
Joshua Ira Schwartz: Well, that may be, but we suggest that if there was a controversy, the jury would be the judge of that, and that to one side, there were significant additional factors in terms of assessing the document as a whole. I think the rational juror would want to see the documents. As for the question--
Byron R. White: Did they see the documents?
Joshua Ira Schwartz: --It was introduced as an exhibit. I don't know from the record--
Byron R. White: Do they take exhibits to the jury room in Tennessee?
Joshua Ira Schwartz: --I'm probably the wrong person to ask that. I believe my colleague has a minute or so of rebuttal.
Byron R. White: All right.
Joshua Ira Schwartz: On the question which was the only question material to the state's purpose in putting the statement before the jury on rebuttal, whether the declarant had actually made the statement, the purpose and requirements of the confrontation clause were satisfied, Sheriff Papantoniou, through whose testimony the statement was put before the jury initially, was available for cross examination. This Court's decision in Dutton v. Evans establishes, we believe, that there is no, in those circumstances, there is no confrontation clause problem, and we believe that that conclusion is supported not only by the opinion for the plurality of Justice Stewart, but also by Justice Harlan's concurring opinion, and therefore was endorsed by a majority of the Court in Dutton. Conversely, we would emphasize, the state's purpose in laying the declarant's statement before the jury could not have been served by presenting the declarant's testimony in lieu of his statement. Because of this unique situation that the live testimony wouldn't have served the state's purpose and the statement did not go to the... was not offered for the truth of its content, it would have been very peculiar to impose upon the state as respondent would have it and as the Tennessee Court of Criminal Appeals had it, the burden of calling the declarant as a witness simply so that respondent could cross examine him on matters outside of the scope of the state's case. Indeed, if one accept's the respondent's premise, one might well ask what examination the state was required to undertake of Mr. Peele. Was this--
Thurgood Marshall: Do you mean that in Kentucky when you put a witness on the stand you can ask him anything? Isn't that what you said?
Joshua Ira Schwartz: --I don't believe I said that.
Thurgood Marshall: Well, you said you couldn't limit the examination.
Joshua Ira Schwartz: Oh, I do not speak as the expert on Tennessee.
Thurgood Marshall: If he put a witness on the stand in Tennessee, couldn't the defendant ask him anything?
Joshua Ira Schwartz: Well, there may be procedural rules about scope of cross examination, but we would suppose that if the scope had limited its examination, that may--
Thurgood Marshall: Well, isn't that the normal way to produce evidence, if you have got a witness and a written statement, isn't it normal that you put your witness on?
Joshua Ira Schwartz: --But if the purpose of--
Thurgood Marshall: Isn't the normal way to do it that way?
Joshua Ira Schwartz: --Not if one's purpose is to prove that the statement was made rather than--
Thurgood Marshall: You mean, not if you don't want cross examination.
Joshua Ira Schwartz: --If the purpose... if the defendant's purpose was to be able to examine Mr. Peele, that purpose could have been fully satisfied. The Court's decision in Ohio v. Roberts makes it clear that whether it is billed cross examination or direct examination, a person who is physically available, as Peele certainly was... his location was known to all. He was conveniently located in the county jail... could have been called as a defense witness and there is no question that whether it is called direct or cross examination, he could have been examined on the topics that were of interest to the respondent. It makes practical sense, we would submit, to leave this choice in this situation to the respondent because it is the respondent who wants to examine the declarant on subjects that are outside the scope of the state's case. In this situation there were several possibilities.
Thurgood Marshall: I thought the respondent didn't want this in there at all.
Joshua Ira Schwartz: But it is the respondent's complaint that--
Thurgood Marshall: Don't... please don't tell me you are doing him a favor. 0 [Generallaughter.]
Joshua Ira Schwartz: --No doubt the respondent would have preferred not to have that statement in, but we do not believe the law affords him the choice of saying that his... of testifying that his was a coerced imitation of Peele's confession and still not having the jury have a look at that statement. If respondent believed that it would be in his interest to call the declarant as a witness, and he deemed unacceptable the risk that the court's limiting instruction would confine the jury properly, he was free to call the declarant as a witness, and he was fully able to fulfill any legitimate confrontation objective by that process. Of course, as we said, the respondent was equally available to the respondent situated in the county jail. If the respondent... if the declarant... if the respondent had called the declarant, there are several possibilities. The declarant might have reiterated his confession, as this court's decision in Nelson v. O'Neill points out. That surely would not have put the respondent in a better position. It is possible that he would have disavowed the confession. This would have helped the defendant in some sense, but if the defendant thought that would occur, it is not clear to us why that could not have been done. It clearly could have been done as part of the defense case. And finally, it is possible that the declarant would have taken the Fifth Amendment and would have been unavailable. And if that were to have occurred, it would be a very extreme result and nonetheless hold that even if that had occurred, there would have been no opportunity for the state to use the statement. The final point that I would like to comment on if time allows concerns the bearing of this Court's decision in Parker v. Randolph on this case. The Tennessee Court of Criminal Appeals thought that Parker v. Randolph had no bearing because this case did not involve a joint trial. In that respect we believe that the Court of Criminal Appeals got the matter precisely backwards, as is detailed in our brief. Thank you, Mr. Chief Justice.
Warren E. Burger: Mr. Rogers?
Lance J. Rogers: Thank you, Mr. Chief Justice, and may it please the Court: This case involves the question how to accommodate two valid competing interests. On the one hand we have the state's interest in impeaching a testifying defendant, and on the other hand we have the defendant's interest in preserving his confrontation rights-- It is our position that both parties here had an interest in the confession of Clifford Peele. The state was interested in demonstrating that the two confessions were not identical, and the defense was interested in preserving Street's confrontation rights by making sure that those portions of the confession of Clifford Peele which directly accused Street of committing the crime charged, were not read to the jury. Both of these purposes could have been served in this case if the state had simply redacted the portions which directly incriminated Street or abided by the original agreement--
John Paul Stevens: Mr. Rogers, could I interrupt you for a minute and get it out on the table the thing that troubles me? Why, if your... if the defense theory was correct in this whole matter, why would it not have served the defendant's purpose to have the fact that the confession implicated the defendant brought before the jury? Why would you want it redacted? Wasn't that the heart of the argument you were making?
Lance J. Rogers: --No, we didn't want the parts that accused him of taking an active part--
John Paul Stevens: But you brought it out on direct examination that the confession implicated him, and that's why, according to your theory, there was this parroting.
Lance J. Rogers: --Well, we think an inference is a little bit less prejudicial than the words from a virtual eye witness to the crime as far as jury--
John Paul Stevens: Was it not your theory at trial that the reason your client confessed was that this other man had said he was guilty of the crime?
Lance J. Rogers: --And because the sheriff forced him to.
John Paul Stevens: Right, but wasn't it part of the whole theory that you were trying to develop was that there was another confession that implicated your client? If that wasn't your point, what was your point?
Lance J. Rogers: No... well, it was our point, but we thought at the time that the--
John Paul Stevens: Then how can you redact the heart of your point?
Lance J. Rogers: --We can redact the part that accuses Joe Street of actually participating in the crime. There were several differences in this case which the state deemed critical to their position, and I would like to demonstrate how. They had called Sheriff Papantoniou to the stand to read Peele's confession and then engaged in an agreement with the defense to merely highlight the differences. That is, in response to the questions from the prosecutor, they would highlight the differences between the two confessions without reading all of Peele's confession to the jury. In pursuit of this agreement, the Court instructed the sheriff to read the confession to himself, which he did, and at this point the prosecutor approached the bench and then requested permission to read the entire text into evidence. The Court reminded him of the original agreement, but the prosecutor claimed it would be more coherent if he read the entire text into evidence. He then read the entire text into evidence and then proceeded to do precisely what he said he could not do, and that is have Sheriff Papantonious highlight differences between the two of them in response to questioning without mentioning any of the portions of the confession which accused Joe Street of participating in the crime. There were seven critical distinctions, and on closing argument, the prosecutor again went through those seven distinctions. It is our position that the confrontation clause was violated once the state went beyond what was necessary to show that the two statements were not identical and that this violation was not cured either through limiting instructions or by simply labeling it non-hearsay.
Sandra Day O'Connor: Counsel, I am really a little puzzled by how the confrontation clause should require the state to call the declarant when the statement of the declarant is not introduced for purposes of proving the truth of the contents of the statement.
Lance J. Rogers: Well, it is our position--
Sandra Day O'Connor: That's such a basic rule of evidence, it is hard for me to understand how the confrontation clause comes in at all.
Lance J. Rogers: --Well, we think that the heart of the Bruton decision is that a jury is simply unable to disregard the dramatic impact of an accomplice's confession, particularly--
Sandra Day O'Connor: Well, that might invoke a due process concern, but it is very hard for me to see how it raises a confrontation issue.
Lance J. Rogers: --Well, I think it was labeled a confrontation issue in Bruton because Evans was not available for cross examination regarding that statement, and I think we can say the same thing about Clifford Peele.
William H. Rehnquist: But he was available certainly to the defense if they had chosen to call him, wasn't it?
Lance J. Rogers: If we could have called him and gotten him... and labeled him a hostile witness, we still would have been faced with the situation where the state had already accomplished what they had wanted to accomplish and gotten the confession before the jury because as I see it, the confrontation clause has two prongs. It is cross examination and requiring the declarant to make the accusation under oath in a judicial forum. Well, the first prong had already been removed because Peele had already made the statement through Sheriff Papantoniou's mouth.
William H. Rehnquist: Yes, but as I understand it, the trial judge's theory of admitting that was that it was independently admissible of the truth to rebut your client's contention that his confession was just kind of a parrot job on Peele's confession.
Lance J. Rogers: Right, because it was not being offered for the truth of the matter asserted, a hearsay--
William H. Rehnquist: And there you don't have... if it's a legitimate hearsay exception to the confrontation clause, you don't have those two requirements, I don't think.
Lance J. Rogers: --I still think that under Bruton, labeling it hearsay... I don't think there's any distinction between telling the jury don't use this confession against this defendant, use it against that defendant, and don't use this confession for the truth of the matter asserted, but do use it against the defendant. I think the jury is very quickly able to pierce through to the important part of the confession, and that is the accusatory part.
William H. Rehnquist: Well, was there any independent grounds for admissibility in Bruton such as there was here?
Lance J. Rogers: Not against Bruton himself, no, there wasn't, but I don't believe that that's the critical... I don't think that's critical to the decision in Bruton.
Sandra Day O'Connor: Well, isn't this much like or analogous to the situation in the Harris case where it was held that you could properly admit for impeachment purposes statements that were inadmissible under Miranda, not for the truth of those statements but for impeachment, and isn't this the same thing?
Lance J. Rogers: No, I don't believe it is, Justice O'Connor. In Harris and Hass and that line of cases, the sword/shield cases, we engage in a balancing test, balancing the reason for the admission against the reason for the exclusion. In those cases we exclude... evidence that was reliable and trustworthy was excluded and the truth was frustrated in order to deter police misconduct, in order to get them to comply with Miranda, but there was nothing wrong with the statements themselves. They were not involuntary or coerced. So the balancing test favored using the evidence to enhance the truth finding function of the trial. In this case, though, Peele's statement was excluded precisely because it did constitute a threat to truth determination either under a hearsay analysis or confrontation analysis. Under Bruton, the in-custody confession of an accomplice is inevitably suspect, and I think that makes the distinction between this case and the sword/shield cases.
Sandra Day O'Connor: Is it the fact that your client today sought to introduce the same statement himself earlier in the trial, Mr. Peele's statement?
Lance J. Rogers: Yes, that's a fact.
Sandra Day O'Connor: So the argument rings just a little bit hollow, doesn't it?
Lance J. Rogers: Well, at that point in the trial the state had given every indication that they were going to call Clifford Peele on direct examination, and so as a tactical matter, there was an interest in trying to diffuse what we thought would be his potentially incriminating, indeed, devastating testimony against Joe Street, and also to introduce it for whatever relevance it would have on the parroting point. At a minimum, though, our position there is no more inconsistent than that of the state because the state objected at that point to introduction of that statement. It is our position that to the jury, that the impeachment value of Clifford Peele's confession was not that the two statements were not identical, but rather, that it rebutted Joe Street's alibi defense by placing him at the scene of the crime and assigning him an active role in the murder. There was no physical evidence linking Joe Street to the crime, and there were no eye witnesses presented by the state. Peele's confession, however, provided the state with its missing eye witness testimony free of the risk of cross examination and free of the risk of the jury viewing his demeanor. We believe also that the Tennessee Court of Criminal Appeals properly interpreted the interlocking confession doctrine by holding that it does not apply to severed trials. At joint trial the state has a compelling interest in introducing the confessions of the codefendants. The state is presented with a dilemma. They have two or maybe even three perfectly valid confessions which they wish to introduce against the confessers, but under a rigid Bruton application, they are prohibited from introducing those confessions against the confessers. Parker and the similar interlocking confession cases allows them to introduce the confessions against the confessers, but they had already accomplished that purpose in this case, and we feel that that is a distinction. We also believe that this Court should decline to reverse pursuant to the doctrine of harmless error. The Tennessee Court of Criminal Appeals concluded, after examining the record, that they could not say beyond a reasonable doubt that the confrontation violation here had no effect on the verdict or that the evidence of guilt was otherwise overwhelming. They could not say that the jury would have returned the same verdict without Clifford Peele's confession. Other than Joe Street's own recanted confession, there was no physical evidence or eye witnesses presented by the state.
Byron R. White: What if... what if Peele had been there and the state had put him on the stand and they had... they asked about his confession and he confirmed that he made those statements and he says they are still correct, what... could the state use that confession then against... to prove your client's guilt?
Lance J. Rogers: If they called Clifford Peele on direct, yes, they could.
Byron R. White: And if they had called him and he had been in the courtroom, could they have used it for impeachment?
Lance J. Rogers: I think it would also be relevant on the impeachment.
Byron R. White: And it would have been admissible, his confession would have been admissible.
Lance J. Rogers: Yes.
Byron R. White: For impeachment purposes.
Lance J. Rogers: Yes.
Byron R. White: And to prove the guilt of the defendant.
Lance J. Rogers: Yes, if he had been there in the courtroom personally.
Byron R. White: Are you sure they could have impeached their own witness? You are willing to concede that, put the man on the stand and--
Lance J. Rogers: I'm sorry, I have misinterpreted Tennessee law. You have to have--
Byron R. White: --I have tried a lot of cases where I couldn't do it, I know.
Lance J. Rogers: --Yes, I'm sorry. It is our position that Peele's confession provided the state with its missing eye witness testimony and that it also provided the jury with all the requisite elements of the homicide had they chosen to believe that Joe Street's confession was involuntary. Getting back to my original point, I think this really is a simple case requiring the accommodation of two valid competing interests, the state's interest in showing that the two confessions were not identical, and the defense interest in keeping out those portions of the confession which directly accuse Joe Street of committing the crime charged. Both purposes could have been satisfied by either redacting the statement or abiding by the original agreement to merely have the sheriff highlight those seven differences which the state demonstrated that they could well do, and they demonstrated again in closing argument when they highlighted the seven differences again for the jury without referring to any of the portions of Clifford Peele's confession which incriminated the respondent.
William H. Rehnquist: Well, Mr. Rogers, are you suggesting that any time you have the sort of competing interests that you say could have been balanced here, the question of how they are balanced is a question that a state court has to look to the federal constitution on?
Lance J. Rogers: I think that there they could look to either the federal or state constitution on the issue, but when there is a confrontation problem involved, I think it is important to look at the balancing and competing interests precisely because of the reasons, when I responded to Justice O'Connor's question regarding the sword/shield cases. You need that balancing, the reasons for the admission versus the reasons for the exclusion, and if they can accomplish it in this case without referring to those portions that directly accuse him of committing the crime charged, I think we should weight that on balance. It is our position that the confession of Clifford Peele devastated the case for the respondent. He presented an alibi defense with 13 witnesses in support of that alibi defense. He took the stand and asserted that alibi defense and presented a plausible explanation for his own confession. The state presented no physical evidence, presented no eye witnesses against Joe Street. All they had was his own recanted confession. Except for Clifford Peele, reading his confession not only was unnecessary but provided the state with its missing eye witness testimony.
John Paul Stevens: Is that entirely correct? Isn't it true... now, maybe my recollection is wrong, but there were some things in his statement that were corroborated by physical evidence at the scene. Is that wrong?
Lance J. Rogers: Only to the extent that Clifford Peele's confession corroborated certain things found at the scene.
John Paul Stevens: But there was... even without Peele's confession, you say there was nothing in the Defendant's confession that was corroborated by physical evidence like, for example, the rope and things like that?
Lance J. Rogers: Well, yes, I think items like that, but I meant there weren't... there were extensive tests, hair, fingerprints, things like that, and none of these were found in this case. We respectfully request that this Court affirm the Tennessee Court of Criminal Appeals.
Warren E. Burger: Do you have anything further, Counsel? You have one minute remaining.
Thurgood Marshall: Mr. Attorney General, could I ask one? In Tennessee, is there any procedure in a criminal case where when the defendant in this case made that kind of a statement, that I was made to do this, the other confession can say... have a side bar conference and tell him that if you pursue that line of testimony, I am going to let this confession in? Is there any way to do that in Tennessee?
Robert A. Grunow: By a side bar conference, there could be, but there's no formalized procedure that way.
Thurgood Marshall: But it could be done that way.
Robert A. Grunow: I suppose it could, yes.
Thurgood Marshall: I'm looking to the future, that's all.
Robert A. Grunow: In response to the question about taking the confession into the jury room, there is no indication in this record that that was done. However, in the appendix on page 350 it indicates that pursuant to an objection which was overruled, the jury was allowed to read Peele's confession before deliberating. Unless there are any further questions, I have nothing further.
Warren E. Burger: Thank you, gentlemen. The case is submitted.