Warren E. Burger: We will hear arguments next in number 5037, Lego against Twomey. Mr. Lewin you may proceed whenever you are ready.
Nathan Lewin: Mr. Chief Justice and may it please the Court. This case is here on certiorari to the Court of Appeals for the Seventh Circuit which in a short per curiam opinion affirmed the District Court’s denial of petitioner’s application for writ of habeas corpus. Petitioner is in the Illinois State Penitentiary, serving a 25 to 50-year term for armed robbery. On this Court’s limited grant of certiorari, two questions are presented, both interrelated and both relating for the procedure used under Illinois Law by the Illinois Trial Court in admitting a confession made by the petitioner into evidence and allowing it to be considered by the jury.
Warren E. Burger: Now, just to be sure that I have it in focus. This case presents the issue left open in Jackson v. Denno?
Nathan Lewin: It is an issue that in the light that Mr. Justice Black adverted to in Jackson v. Denno in its dissenting opinion, it was left open. It is one of a range really of issues, Mr. Chief Justice that are left open under Jackson v. Denno. What it presents is the question of the standard of proof that a trial judge must apply when under a state procedure he and he alone determines the voluntariness of a confession.
William J. Brennan, Jr.: It has been -- in this case also presents the question or not whether after the determined voluntariness whether that issue is again submitted to the jury?
Nathan Lewin: Yes, Mr. Justice Brennan that is, if in fact the first question were decided against the petitioner, we submit and our contention is that the two are interrelated that if in fact this Court were to sustain a standard less than proof beyond a reasonable doubt for a trial judge making such a finding, it should constitutionally require that at the very least the jury get a second look at that issue.
William J. Brennan, Jr.: But then on that, if that would it be so, I take at the jury as in all other issues would make that determination by reason beyond the reasonable doubt standard?
Nathan Lewin: That is right, we think that is what would be constitutionally required?
Warren E. Burger: Do I understand you to say in effect on that point that a confession in this context is like any other piece of evidence? Once it is submitted to the jury it is submitted to the jury to be evaluated along with all the other evidence and by the same standards. That is your second point?
Nathan Lewin: Well, I think my second point is slightly different from that because I think, as Your Honor has stated the position, I think it does reflect a position similar to that of the state in this case. What the state is arguing is that once admitted a confession may only be considered in the context of all the evidence in the case. Our contention is that if a confession is admitted must still be singled out to the jury and it must then be asked to decide the question of voluntariness vel non as a preliminary fact finding.
Warren E. Burger: I did not mean to include that -- include that in my hypothetical. You mean that this would be a special instruction in addition to the general credibility instruction?
Nathan Lewin: Yes sir. We think that would be constitutionally required if a judge were permitted to apply some standard less than proof beyond a reasonable doubt to his determination.
Warren E. Burger: Would it be sufficient for these purposes if hypothetically the instruction was that when you come to consider the confession which has been admitted in evidence, you will bear in mind that as with other elements, it must find this voluntary beyond a reasonable doubt?
Nathan Lewin: Yes, that –-
Warren E. Burger: That would be enough?
Nathan Lewin: That instruction we think would be constitutionally sufficient. Of course, it was not given in this case and in fact that issue of voluntariness is not in any way singled out for the jury under the Illinois procedure.
Byron R. White: Well, that is an issue that it was not left open in Jackson against Denno?
Nathan Lewin: No, that was not adverted to --
Byron R. White: Now, wait a minute, wait a minute. What you are in sense saying or what you are saying is the issue of voluntariness must be presented to the jury?
Nathan Lewin: Well --
Byron R. White: Even though the Judge has passed on it in advance, in a proper manner?
Nathan Lewin: I am saying that only Mr. Justice White, if he is permitted to pass on it by some standard less than beyond a reasonable doubt. In other words, the contention I am making is that either, that constitutionally, someone in this process must pass upon voluntariness beyond a reasonable doubt. Either it may be the judge and if that is true, the petitioner is satisfied, if he alone makes that decision or the jury.
Byron R. White: So you would be quite satisfied if the judge just said I think the voluntariness is -- I find it to be voluntary as admissible and then he says to the jury you must find the contention admissible beyond a reasonable doubt as a preliminary matter to use?
Nathan Lewin: You must find it voluntary beyond reasonable doubt?
Byron R. White: Yes.
Nathan Lewin: Yes.
Byron R. White: You think that would be enough?
Nathan Lewin: I think for the petitioner’s (Voice Overlap) I think that is right.
Byron R. White: If that would be enough, why would it not enough for the judge to say there is enough evidence in the case to find it voluntary, I do not have to pass on it, but I will give it to the jury and single that out and say you must find this voluntary beyond a reasonable doubt?
Nathan Lewin: That is what Jackson v. Denno foreclosed.
Byron R. White: I would think he would foreclose. What you are --
Nathan Lewin: Well, we do not have to --
Byron R. White: If the confession must be found voluntary beyond the reasonable doubt?
Nathan Lewin: Well, Mr. Justice White, the petitioner’s position in this case is that the Court need not go -- need not reach if it decides not to the question whether the judge must necessarily find the confession voluntary beyond a reasonable doubt. It would be sufficient if someone in the process found it voluntary beyond reasonable doubt and the vice of the Illinois procedure is that there is no one in entire process whoever passed it on voluntariness beyond a reasonable doubt. Essentially the State’s argument is that a confession is like any other evidence -- the finding of voluntariness vel non is to a confession is like a preliminary fact finding as to whether a statement is for example spontaneous utterance so to be an exemption of the hearsay rule or whether a certain document is the best evidence under the best evidence rule and that therefore the judge and judge alone may make that finding. He makes the finding on the basis of a preponderance of the evidence and he then submits that evidence to the jury for it to be considered along with all other evidence in the case, instructing them only as the Winship case now requires that they must find the defending guilty beyond a reasonable doubt on all the evidence in the case. Petitioner’s contention is of course that that analogy of confession to any other evidence is plainly unsound. The fact that this Court even discussed the question much less that it decided as it did in Jackson v. Denno is a plain indication that the question of voluntariness of a confession because it involves a possible infringement upon Fifth Amendment rights, various constitutional dangers working in the background requires special procedural handling as a constitutional matter. Surely it would not have presented a constitutional issue and this Court would not have considered it if a state say New York simply said, well at the spontaneous declarations, we do not allow a judge to make that preliminary finding. We just have the jury make the preliminary factual finding, or as to any other exemption of the hearsay rule. If a state had done so that would present no constitutional problem. Since New York did so with regard to confessions. It did present the problem considered by this Court in Jackson and the ruling of this Court in Jackson that there must be a reliable clear cut finding on the issue of voluntariness vel no. Now, we submit that it follows from the Jackson decision as well as subsequent decisions in related areas by this Court that there must be a finding on the issue of voluntariness at a trial that a confession is voluntary beyond a reasonable doubt. Now, of course the broadest range of that argument is to say that the judge must make that finding. When he makes that initial determination required under Jackson v. Denno, he must make it beyond a reasonable doubt. That issue need not, we submit, be reached in this case because in this case and under the Illinois procedure there is no one, no one in the entire process against the defendant whoever makes that finding beyond a reasonable doubt. Consequently, we think that the Illinois practice is invalid even under the opinion of the Chief Justice as Circuit Judge in the DC Court of Appeals, which are cited, the opinions of which are cited in our brief. In the Clifton case, the Chief Justice as a Circuit Judge did say and we reprinted that as an appendix to our brief, it appears on page 6 (d) that it is one thing to call for the high standard of proof beyond a reasonable doubt from the ultimate fact finders and quite another to ask that the issue be resolved preliminarily by the judge beyond a reasonable doubt contrary to all the law governing admissibility of evidence.
Warren E. Burger: Mr. Lewin, suppose the evidence, let us avoid the word confession for the moment, but suppose a piece of evidence was offered by the prosecution in the form of a letter written by the defendant to some third person which contained the essence of a confession, would you say that must fall under this same rule?
Nathan Lewin: Only to the extent Mr. Chief Justice that there is some constitutional danger if the letter had been ceased in violation of either Fourth or possibly Fifth Amendment standards.
Warren E. Burger: Let us assuming that the recipient turns it over to prosecution?
Nathan Lewin: No, where there is no constitutional problem, where we are referring simply to the preliminary questions or any, not even preliminary question, just any ordinary question on which factual issue on which admissibility depends then of course it is standard procedure and we do not contend that the constitutional requires otherwise that the judge make that factual finding, he alone may make it in the actions of the jury, then permit the evidence to go in and not comment any further on it to the jury and not raise those underlying factual issues to the jury at all.
Warren E. Burger: And the jury can accept it or reject it as they see fit it?
Nathan Lewin: As they see fit in the context of all the other evidence. But where the evidence that sought to be introduced may infringe on constitutional rights, may in some way have been unconstitutionally obtained, in those circumstances we think that the finding must be made beyond a reasonable doubt. Now, as to confessions both under this Court’s Miranda decision and we think and the law even prior to Miranda it was clear that confessions, admissions made out of Court by a defendant in custody as with the admission in this case are ipso facto in and off themselves, declarations obtained or made by a waiver of a constitutional privilege. Essentially any defendant who makes the statement after he is arrested and the Court was clear on this in Miranda and even in the second opinion in Miranda suggest that that was not an impermissible reading of all cases or permit even a permissible extension. That a defendant who makes a statement in custody is in substance waiving his Fifth Amendment right not to --
Potter Stewart: I do not understand that.
Nathan Lewin: Well –-
Potter Stewart: The Fifth Amendment right is a right against compulsory self-incrimination?
Nathan Lewin: And a defendant in custody at least and certainly under Miranda, I think what the court went in to say --
Potter Stewart: You state as part of Miranda?
Nathan Lewin: Well I think in Miranda of course the Court relied on ground on Bram in prior cases. I think Mr. Justice Harlan as well adverted to the fact that saying that the Fifth Amendment apply to custodial interrogation, may be a permissible extension, although he disagreed with it historically, but a permissible extension of the Fifth Amendment and I think that government in the -- at least the Federal government and the Solicitor General in his brief in the Westover case admitted that the Fifth Amendment might apply to in custody interrogations.
Potter Stewart: Well, that is what Miranda --
Nathan Lewin: Right.
Potter Stewart: -- and other cases have held that compelled confessions come under the language of the Fifth Amendment, but only compelled confession?
Nathan Lewin: Right, but a defendant in custody, when a defendant is being held in custody and he then makes a statement, the question of whether it compels or not is really a question of whether he and it is very close I think to the border of whether he has waived the Fifth Amendment right. He is being held in custody, take this petition, arrested on the scene, taken down to the station house, within hours he claims being beaten in the car, being beaten at the police station. The real question is, assuming he had some constitutional privilege or certainly a legal privilege to remain silent, did he waive that privilege in making the statement, he did? Now, we think that issue, the question of whether that confession should be considered is very analogous to the issue of a waiver of a constitutional right and this Court has held as far back as Johnson and Zerbst that Courts indulge as the Courts had every reasonable presumption against assuming that there has been a waiver of a constitutional right.
Byron R. White: So you think in a Miranda situation before, in custody statement would be admissible, there must be a finding beyond a reasonable doubt that the warnings have been given, etcetera, and there is beyond a reasonable doubt that there was a waiver?
Nathan Lewin: That I do not think that question has to be reached, Mr. Justice White in a square coerced confession.
Byron R. White: I know it does not need to be reached, but would not a holding here on your side determine that issue?
Nathan Lewin: (Voice overlap)I think a holding in our side --
Potter Stewart: (Voice Overlap) as much have just told us?
Nathan Lewin: I think --
Byron R. White: It follows in --
Nathan Lewin: Well, let me just say. I think the fact that there is -- this is one of several factors which I think bear upon this case. I am not contending that that in and of itself necessarily determines the issue in the case. I am saying that the question of voluntariness vel non has to be considered against the background of this being very likely an issue of whether there is a waiver of a constitutional right as to which the Court did say in Miranda and as to which it is said in other constitutional rights, it would require very substantial evidence. Now, I do not think the Court has to go that far to decide the coerced confession claim. In other words, one can say because coerced confessions --
Byron R. White: Oh! Sure we could say it. That surely we can just say it I suppose, but what about the Courts, what about suppression hearing in a Fourth Amendment case? Do you have to find and make those claims beyond a reason doubt?
Nathan Lewin: Our initial argument is that one would have to make those findings whenever there is a constitutional issue, but alternatively and I think the point that covers this case, we contend that one need only make one, the Court need only hold in this case that one must make those findings as to a confession case because confessions are particularly devastating in the context of a criminal prosecution.
Speaker: These are all done on suppression on a motion to suppress?
Nathan Lewin: On a motion to suppress a confession.
Speaker: And generally speaking the moving party has the burden of proof, does he not?
Nathan Lewin: The moving party has the burden of proving initial illegality on a motion to suppress. That we think is just not true when you are talking about the defendant who is in custody and whose statement had been taken from in when he is in custody. We think that is part of the government’s total package of proof. It is not like trying to prove that the government has in some way illegally searched where there is a presumption that a search is legal or that the government has conducted unlawful eavesdropping dropping or that kind of thing. Whether it is no -- there is no -- there is no factual background from which one can just conclude that the government is engaged in anything questionable. Here the government indeed and here and I think that is a principal reason why the burden is on the state is that here there is a constitutional right involved. I mean, whether one says it has to be proved beyond a reasonable doubt, whether Miranda --
Potter Stewart: There is no -- the constitutional protection is against involuntary protections in a confession. If a person confesses voluntarily, there is no waiver of anything, there is no constitutional issue involved?
Nathan Lewin: I think there are two answers to that Mr. Justice Stewart. One is that Miranda held to the contrary.
Potter Stewart: Well this is a pre-Miranda case, is it not?
Nathan Lewin: Yes, but nonetheless Miranda did hold --
Potter Stewart: (Voice Overlap) Miranda?
Nathan Lewin: -- but Miranda did hold there and we are not finding here that the absence to provide warnings or all the new procedural rights --
Potter Stewart: Right.
Nathan Lewin: -- that Miranda put into effect. We are just that if in fact there is a Fifth Amendment right then we are dealing here with a waiver of the Fifth Amendment.
Potter Stewart: Now, the waiver would come in if the man said yes this was an involuntary confession, but I now waive my right to be excluded from evidence, that would be a waiver. It is quite different from this?
Nathan Lewin: A man who is in custody does make a statement is at least waiving the right, the constitutional right to be silent. He has a legal right not to answer questions and he is waiving that right --
Potter Stewart: (Voice Overlap) said in Miranda for I think the first time?
Nathan Lewin: Well, I think that was the legal right not to answer questions that existed -- pre-existed Miranda, but --
Potter Stewart: Do you know of any case that said so before Miranda?
Nathan Lewin: That there was a right not to?
Potter Stewart: Yes.
Nathan Lewin: Simply not respond?
Potter Stewart: Yes.
Nathan Lewin: Well, I know but they are Circuit cases that have said that.
Potter Stewart: (Voice Overlap)
Nathan Lewin: I think the --
Potter Stewart: To be understood if you could?
Nathan Lewin: I believe that the Papilino (ph), the Aplaken (ph) case in the Second Circuit so held that those arrested on the scene had a legal right to remain silent and not to answer questions.
Potter Stewart: In the Second Circuit?
Nathan Lewin: In the second Circuit. I do not --
Thurgood Marshall: Mr. Lewin, my problem is that you agree with the general proposition there when you file a motion the burden is on you, the filing of the motion. Two, you file a motion and say that this confession should be suppressed which confession on its face has used the language that, if given no promises no threats and everything and it is perfectly valid on its face. I can see right clearly that at that stage somebody got to move. But have you put -- where do you shift the burden then?
Nathan Lewin: I do not think, Mr. Justice Marshall that there is single jurisdiction that is held that the burden of showing that a confession -- that the prosecution wants to put in. A statement of the defendants or the accused that the prosecution wants to put in that the burden of showing that to be illegal is on the defendant. If the prosecution wants to put it in, it has some burden to come forward and show that that statement has been --
Thurgood Marshall: Why do we call it a motion to suppress?
Nathan Lewin: Well, I submit it could simply be a motion to exclude at the trial except that many states have provided procedures under which these matters have taken care of prior to trial.
Thurgood Marshall: But what you are saying is the motion to suppress or the motion exclude, all it says is that we do not think the government has the right to put this in so the government must show us why it is in?
Nathan Lewin: The government is putting it in.
Thurgood Marshall: Well, that is your basis, that is why you need the Fifth Amendment. I see now.
Nathan Lewin: Well, the government is putting it in. It is putting the in accused own words and it has to lay the foundation for being able to use that evidence. It is not like a piece of physical evidence that it obtains and that it presumed in the absence of any showing to the contrary to be lawfully obtained.
Thurgood Marshall: Well, I know the catch is tough, but I do not agree that they have a burden to show it. They only have a burden show if the defendant raises the question.
Nathan Lewin: Of course if the issue is not raised --
Thurgood Marshall: Right.
Nathan Lewin: -- the issue of voluntariness is not raised then the defendant is certainly at trial waiving any objection on the ground of non-voluntariness.
Potter Stewart: Well, certainly as a matter of evidence it is admissible, let us say it is a well-recognized exception to the hearsay rule?
Nathan Lewin: Yes.
Potter Stewart: The government has no burden at all. It is just offers it and it is up to the defendant to show why it should be excluded because as I said as matter of evidence it is perfectly admissible?
Nathan Lewin: And the defendant we think under all of rules, I think that all jurisdictions apply, shifts the burden back to the government by showing that he was then in custody and by simply saying this was obtained involuntarily.
Potter Stewart: After Miranda that maybe true, this is a pre-Miranda case?
Nathan Lewin: Well, I must admit even pre-Miranda.
Potter Stewart: You can say it is the defendant’s duty to show that for some reason or another it is inadmissible and the reason is that it was coerced or involuntary, otherwise it is as a matter of the law of evidence, it is clearly admissible. It is a well recognized exemption to (Voice Overlap)
Nathan Lewin: The defendant, right, the Defendant then make some showing. I mean, even if a Court would have put the burden, going forward on the defendant, and I think that certainly legitimately true, the defendant must at least either assert, move in some way personally say I was coerced.
Potter Stewart: Yes. Then so --
Nathan Lewin: And state some facts --
Potter Stewart: -- coerced?
Nathan Lewin: -- and state some facts. That just puts the burden going forward though on the defendant. It is not the ultimate burden of proof. We think all jurisdictions at least put the burden of proof via a preponderance of the evidence on the government. In a criminal case where and this has been the conclusion not merely of a commentators such as Lord Devlin who is quoted in our brief, but in fact of state Supreme Courts, both the New Jersey Supreme Court and the Wisconsin Supreme Court in the Yough and Keiser cases which we cite in our brief, talk about the devastating effect of confessions in a criminal trial. When one is dealing with those --
Warren E. Burger: Would you single out any other kinds of evidence that are devastating as you put it? What about the eleven eyewitnesses? Is that devastating on the defendant?
Nathan Lewin: But a constitutional rule, we submit, cannot be made for an eleven eyewitness case nor do we think there is any -- there is any similar or analogous constitutional rule that would be appropriate. On the other hand in Jackson --
Potter Stewart: You do have rule about eyewitnesses, you have waived?
Nathan Lewin: Yes.
Potter Stewart: You do have a constitutional rule about eyewitness?
Nathan Lewin: Yes, about line-ups? Yes.
Potter Stewart: Yes, well that is what eyewitnesses are in fact?
Nathan Lewin: Right. But not -- well, to sum it, I withdraw that right. To some extent that goes to the reliability of an eyewitness.
Potter Stewart: Right.
Nathan Lewin: But Jackson indicated --
Warren E. Burger: Is that the same with the reliability of a confession?
Nathan Lewin: Well, we think this Court in Jackson certainly recognized that the reliability of a confession is a much more important question and involves constitutional, in fact, there is a question of constitutional dimension. The procedure surrounding the admissibility of confession where as it has never made that kind of suggestion or ruling with regard to the various other kinds of evidence that may be very damaging because as the Court recognized in Jackson, there is a whole complex of values underlying the rules against coerced confessions.
Warren E. Burger: It tests one of your points through the hypothetical. You put the emphasis, of course, on in custody statements. Suppose you have a situation where a man has robbed a supermarket and he is a caught right almost on the scene, the officers have him in custody, he has got the loot in his hands and while they are waiting for the car to come and take him away, someone of the citizens standing by and said why did you do this? And his answer is I needed the money. There is certainly in that context that admission would be rather devastating, would it not? Would you apply all these standards that you list to that case?
Nathan Lewin: Yes, I think a constitutional rule applicable to house arrest confessions would be applicable to that case as well and the only rule we are seeking is a rule as to standard of proof and again a rule as to standard of proof is applicable any place in the trial. The vice of the Illinois procedure is that no one in the entire trial, neither the judge nor the jury ever decides whether this confession has been voluntary beyond a reasonable doubt. So that means that there is a man in this petitioner’s position, for example, who is convicted on evidence where a judge may simply have decided by preponderance of the evidence that a confession is voluntary then submit it to the jury with all the other evidence in the case.
Potter Stewart: Assuming (Inaudible) on that?
Nathan Lewin: Well, and that is exactly what is possible under the Illinois procedure, that a judge simply says by preponderance of the evidence --
Byron R. White: No doubt about that. Now, now you are just saying that happens in this problem.
Nathan Lewin: Yes.
Byron R. White: And so what?
Nathan Lewin: Well, if one; there is a constitutional right and we submit Miranda indicates that there is, if two; every necessary fact has to be proved beyond a reasonable doubt and that is what Winship says, if three; as this courts said in Chapman, in where there is a constitutional claim it is important that the conviction rests beyond a reasonable doubt on no constitutional error. All those factors we submit add up to mean that in a trial, in a criminal trial there should at least be someone, someone along that entire procedure who says or who is required to focus on the question and says beyond a reasonable doubt this confession was not obtained by coercion.
Byron R. White: The issue is on guilt or innocence which is what reasonable doubt applies to so far as whether he committed the crime or not?
Nathan Lewin: Well I --
Byron R. White: (Inaudible)
Nathan Lewin: Yes, I am sorry.
Byron R. White: It is whether he committed the crime or not and the question about voluntariness has not got anything to do with whether he committed a crime. The jury is going to hear some evidence, including his confession perhaps and they are going to decide whether that proves that he committed the crime beyond a reasonable doubt. Now, you necessarily say that because it is involuntary, that is untrue?
Nathan Lewin: No.
Byron R. White: Well?
Nathan Lewin: It may be.
Byron R. White: That may be?
Nathan Lewin: It may be untrue.
Byron R. White: And so even there is a voluntary confession, that may will be untrue?
Nathan Lewin: Yes, Your Honor.
Byron R. White: Now what does voluntariness is got to do with finding guilt beyond a reasonable doubt?
Nathan Lewin: Guilt, at every element of the offense or every necessary fact as this Court stated in the Winship has to be found beyond a reasonable doubt not just --
Byron R. White: Every (Voice Overlap) fact to determine whether it is a crime?
Nathan Lewin: Right.
Byron R. White: Not whether he confessed voluntarily?
Nathan Lewin: When a piece of evidence is as important to the question of guilt or innocence as a confession, we --
Byron R. White: You really are not arguing whether it is really related to, you are not arguing that with respect to the standard of proof as to guilt or innocence, but the standard of proof that might help protect the constitutional rights?
Nathan Lewin: That is right, which is what this Court, although did not talk in terms of standard of proof, but what this Court did in Jackson. It said --
Byron R. White: (Inaudible)
Nathan Lewin: -- there is nothing Jackson -- there is nothing in the Due Process Clause that talks about whether a judge or jury must make the finding, nonetheless this Court found, concluded that in order to be sure that there is a reliable determination, it has to be the judge who makes it. We think that that the very same hedge or protection against the possibility of a conviction the basis of an involuntary statement --
Byron R. White: Alright.
Nathan Lewin: -- applies as well to --
Byron R. White: Alright, I got it.
Warren E. Burger: You put an emphasis Mr. Lewin on simply that this simply, I think you have said in effect what the standard is to be used by the trial Judge in evaluating the admissibility. Are there some other collateral consequences that are involved when you come to review on appeal? Is it not much easier for Appellate Courts to pass on the judge’s determination of voluntariness beyond a reasonable doubt, than to have the judge make a determination merely whether jury could reasonably find that the confession was voluntary?
Nathan Lewin: I think that is true and to that extent it would support saying that the rule should be the kind of --
Warren E. Burger: But does that do considerable as Mr. Justice Black suggested in his separate opinion to take the fact finding function away from the jury?
Nathan Lewin: I think not, Your Honor, because it simply says to the judge, you make factual determinations on this issue as you make it on a host of preliminary or underlying factual issues relating to the admission of evidence. But as to this particular issue, you do it beyond a reasonable doubt. In other words, it just simply applies another standard, a different standard to this particular question because of the importance of the constitutional right. It does not in any way change the judge and jury function. It simply says that the judge do it by standard “X.”
Warren E. Burger: The collateral consequence I speak of is that an Appellate Court, looking at that after the event, never having seen any of the witnesses can very easily say that trial judge could not have reasonably found this beyond a reasonable doubt to be voluntary confession even though a juror of twelve people have found it to be voluntary beyond a reasonable doubt?
Nathan Lewin: Right.
Warren E. Burger: That is rather in odd circumstance, is it not?
Nathan Lewin: No more odd --
Warren E. Burger: If we believe in the jury system?
Nathan Lewin: Right, no more odd than is true in an appeal from any criminal conviction and an ultimate sentence, an ultimate finding of guilty where a jury may find a defendant guilty and this happens more than just occasionally and a Court of Appeals reviewing the evidence, applying could a reasonable man find this defendant guilty beyond a reasonable doubt, a Court of Appeals reviewing that evidence says we think that a judgment of acquittal should have been entered because a reasonable man could not find the defendant guilty beyond a reasonable doubt. So all that such a rule would do is it would apply the very same standard as is applied to guilt or innocence in the Court of Appeals to the question of voluntariness of the confession.
Warren E. Burger: Thank you Mr. Lewin. Mr. Zagel.
James B. Zagel: Mr. Chief Justice and may it please the Court. I think I first ought to clarify to some extent the Illinois procedure with respect to confessions, probably because the record in this is somewhat a typical. Under Illinois Law the initial determination of voluntariness is made by the trial court. By statute the burden of proof on voluntariness is placed on the prosecution. The statute does not declare what that burden of proof is. It simply states that the prosecution shall prove voluntariness.
William J. Brennan, Jr.: Was that true --
James B. Zagel: That was --
William J. Brennan, Jr.: (Voice Overlap) you are describing for us, is that -- would that be true in this case?
James B. Zagel: Yes, that has always been true.
William J. Brennan, Jr.: And still --
James B. Zagel: And it still true.
William J. Brennan, Jr.: Still true today as it was then?
James B. Zagel: Yes.
William J. Brennan, Jr.: Yes.
James B. Zagel: So of course the issue is to whether it is permissible to place a burden on the defendant is not really before the Court. Secondly, ordinarily in the criminal case the issue of that --
William J. Brennan, Jr.: May I just ask one other question?
James B. Zagel: Yes.
William J. Brennan, Jr.: Under your procedure is the evidence taken on the question of voluntariness in the presence or outside the presence?
James B. Zagel: Outside the presence.
William J. Brennan, Jr.: Outside.
James B. Zagel: And that has always been the procedure in Illinois. The Illinois follows in effect the orthodox rule and has done so.
Harry A. Blackmun: Was that in fact so in this case?
James B. Zagel: Yes.
Harry A. Blackmun: Because it did not come through clearly to me in the record?
James B. Zagel: No, that is true. There was a pre-trial motion to suppress outside the presence of the jury, in fact, before being tendered intent these issues, they are usually decided along before.
William J. Brennan, Jr.: Before they impanel the jury?
James B. Zagel: Before the jury is impaneled. They usually decide it well in advance of trial.
William J. Brennan, Jr.: Yes, and was that was also true of the Purims case?
James B. Zagel: Yes, yes. However at the trial itself, a confession and jury specifically directed to the consideration of a confession, there is a special confession instruction. It was not given in this case because it was not requested, but the standard procedure under Illinois is for the jury to receive an instruction telling them that they have to judge the way that the confession in light of the circumstances that it is making and in some detail. Now, it is true that that is not a consideration of voluntariness. The jury is not told you must consider whether the confession is voluntary.
Byron R. White: It does go to truth or falsity?
James B. Zagel: It does go to truth and falsity.
Byron R. White: And to whether or not it might be a factor in determining whether the defining of guilt beyond a reasonable doubt?
James B. Zagel: Yes. That is the standard Illinois practice. The petitioner in attacking that practice takes basically two separate positions. His first is that in any case where the constitutional acquisition or constitutional legality of the acquisition of evidence is a question, it is the burden of the prosecution to prove that it constitutionally acquired the evidence and it is the burden that they must sustain by proof beyond a reasonable doubt. Now, I would point out and it is been alluded to that there a considerable amount of precedent generally against that rule on search and seizure cases. The Federal rule does not place the burden on the prosecution in cases where there is a warrant. There are many states that place the burden on the defense, in all cases where illegality of search and seizures challenged. That is true in Illinois incidentally by statute, a statute that immediately follows the one on confessions deals with motion to suppress evidence illegally seized. I might also point out that in the few cases in which this Court has spoken on the subject of burden and those have been Bumper versus North Carolina on the burden of proof to establish consent search; and Miranda versus Arizona on the burden of proof to establish waiver; and in United States versus Wade on the burden of proof to establish an independent basis of identification when there is a primary legality, in none of those cases has this Court adopted a reasonable doubt standard. The standard is simply burden of proof in consent cases. In Miranda, the language was heavy burden. In United States versus Wade, the language was clear on convincing evidence. Essentially its petitioner’s first point that the constitutional nature of the constitutional issues involved make these questions as special. I would point out that only if you take a very limited tactical view of the criminal trial, they are made particularly special. Questions of the admissibility of hearsay are usually of extreme importance in criminal trial. I point out that, for example, it s not the burden of the prosecution to prove that conspiracy exists and to prove it exists beyond a reasonable doubt before the declaration of the co-conspirator can be admitted into evidence. And the question of accomplices which is a vital question in most criminal trials where there is accomplice evidence, it is the burden of the defendant to prove witness is an accomplice and that is particularly vital burden since that very often is the difference between a directed verdict of acquittal and a conviction on the other hand. Furthermore, I think that there is a confusion and it runs through all of the arguments of the petitioner, between the purpose served as a reasonable doubt rule and the purpose served by the exclusionary rules. It is clear to me at least that the purposes of the exclusionary rule are in entirely separate and apart from the determination of guilt or innocence. Indeed with some of the exclusionary rules, mostly search and seizure, their existence cannot be squared with policies promoting the accuracy of fact-finding. Furthermore, the reasonable doubt rule, in all of its manifestations, every single one is a rule that is concerned solely with the weight of the evidence in a criminal trial and not with the admissibility of evidence and Chapman upon which petitioner relies very heavily does not change this. First of all Chapman is a case that applies only when the existence of a constitutional error has been established and it says nothing about the burden of proof to establish the existence of that error. Second of all, Chapman is essentially an application of a reasonable doubt standard in a case where you are dealing, although it is an Appellate Court that deals with the question, with questions of weight of the evidence because in a harmless error context and what the Court is concerned with is a relative weight of this bad evidence or tainted evidence in a context to the whole evidence to determine whether it harmed the petitioner. It is essentially a question again of weight of evidence. There is no precedent and I submit no policy consistent with the existing reasonable doubt rule.
Potter Stewart: The constitutional error might be something other than the wrongful admission of evidence in the case?
James B. Zagel: Yes, that is true.
Potter Stewart: Well, you are not, fairly in the Chapman area dealing with the weight of evidence?
James B. Zagel: Well I --
Potter Stewart: It might be the manner or method of trial or it might be comment by the prosecutor on the defendant’s failure to testify, it might be any other ordinary --
James B. Zagel: Well I --
Potter Stewart: -- different constitutional errors. You are not dealing only what is the wrongfully admitted evidence (Voice Overlap)
James B. Zagel: Yes, that is true, except I would suggest that in particular, the Griffin versus California problem dealt with in Chapman is at base away of the evidence problem because the prosecution is using silence as an evidentiary fact that is saying this silence helps to establish our case, although I concede that -- I admit that is conceivable that there would be cases where harmless was applied that you could not say that that the error in question dealt specifically with evidence, but still it is essential in the resolution of that problem, usually to waive the evidence as a whole which is what the Hamilton versus California made very clear. The petitioner does not dwell extensively on its first proposition that all questions of constitutional acquisition of evidence must be decided by proof beyond a reasonable doubt. He does take it as a second position that there is something in a special nature of confessions that requires proof beyond a reasonable doubt. I would point out an initially that the analysis that he makes is essentially incorrect. I do not think one can say that a violation of the Fifth Amendment is essentially more or less important than a violation of the Fourth and the Sixth Amendments. I think that the value is protected by the Fourth and Sixth are fully as important as those protected by the Fifth. There was a time I suppose when petitioner might say with some justice that since a determination of voluntariness of a confession is closely tied to its reliability that it presented the different issue. I do not think that contention is open today. I do not think it is been open since Rogers versus Richmond which has specifically excluded such considerations from voluntariness. There is some language in older cases which sought to rest the exclusion of involuntary confession on Pearce as to the reliability, but that language is no longer good law.
Thurgood Marshall: But Rogers and Richmond also said that your instruction about probable truth of lawsuit is gone too?
James B. Zagel: I think that Rogers and Richmond dealt with the determination of voluntariness. I do not think a probable truth or falsity is banned when you say that the theory you want to consider the probable truth or falsity of a confession in light or the weight in effect. The weight of this --
Thurgood Marshall: You say that probable truth and falsity was not in Rogers and Richmond?
James B. Zagel: I am saying that --
Thurgood Marshall: Please do not say it because I am looking at it.
James B. Zagel: No I am saying that probable truth and falsity is excluded from determinations of voluntariness.
Thurgood Marshall: Well, does your instruction say that you decide through the falsity?
James B. Zagel: The jury is not instructed on the issue of voluntariness at all. So they --
Thurgood Marshall: I thought you said that was specific?
James B. Zagel: Yes, but that only goes to its weight. The weight of the --
Thurgood Marshall: Well that is truth and falsity, is it not?
James B. Zagel: Yes, but it is only as to the weight of the confession. It has nothing to do with voluntariness.
Thurgood Marshall: And if the Rogers and Richmond says that is not enough then that is not enough?
James B. Zagel: I would respectfully disagree. I do not think that the Rogers and Richmond invalidated instructions to the jury as to weight of the confession.
Thurgood Marshall: Well, it did not validate the instruction of the jury in Illinois because of the Connecticut case that I agree with?
James B. Zagel: I might add that it is my understanding that instructions similar to those given in Illinois are given in Federal criminal trials with respect to the weight of the confession. I point out in addition to I think petitioner’s erroneous analysis of perhaps attaching excess of the value to the entries protected by the Fifth Amendment as opposed to those protected by the Fourth, that his tactical assertion is somehow a confession is more significant is really unjustified. I point out and I think it is fairly clear that in any given case, a confession may be of relatively minor significance. The case of eleven eyewitnesses comes to mind. The case in which illegal wiretap is discovered, has recorded evidence of the crime itself, certain seized evidence, a large quantity of heroin, in all of these cases and sometimes fingerprints, a confession is paled into insignificance, and particularly the nature of confession is and to some extent even the confession in this case. A confessions have a tendency to be filled with self-serving statements. Usually, a man does not -- unlike the eyewitness who will give a full and often devastating picture of the crime, the confession is always filled with or often filled with statements, well, I did this but I did not mean to, I did not want to hurt the victim and in that respect it is difficult to say certainly not. You could not say as a matter of law confession is always of overwhelming importance. It is to some significance to me at least that the principal case relied on by the petitioner in his first argument, the United States versus Schipani, opinion of a single judge at District Court in which the Court said that there ought to be a proof beyond a reasonable doubt. The Court specifically rejected the suggestion that a difference could be made between confessions and other forms of evidence. And it is particularly significant because it is difficult, at least it was difficult for me and I started out an appellant lawyer and before I started to try criminal cases. It is difficult when one sees records of convictions and nothing but records of convictions, to make assessments as to what evidence really ties the knot with a particular defendant. And it is significant that the only trial court opinion that the petitioner sights specifically rejects any distinction between confessions and other points to that.
Potter Stewart: That is the Schipani opinion?
James B. Zagel: That is Schipani.
Potter Stewart: The judge Weinstein?
James B. Zagel: Yes.
Potter Stewart: Who was -- have you analyzed the analysis of the mathematical laws of probabilities contained in that opinion?
James B. Zagel: Yes, at least I was familiar with that before I read the opinion. That is the general statistical analysis.
Potter Stewart: Right.
James B. Zagel: Assuming as it is often done that preponderance to the evidence equals 50 plus and reasonable doubt equals 95 plus. I do not know that I would accept those figures, but the basic mathematical operation is correct.
Potter Stewart: Then the 50 times 95 comes out to 50 minus?
James B. Zagel: It comes out to 50 minus. It would come out to 50 minus.
Potter Stewart: It gives a valid analysis of this problem?
James B. Zagel: I think not because that the kind of shock attitude that one gets toward facing a criminal judgment on the 50 minus probability is essentially a shock resulting from the recurrence of convicting an innocent man and, but you do not get that fact. If all you are considering is convicting an innocent man, you do not multiply that 50 plus and you still left for the original 95 plus.
Potter Stewart: Judge Weinstein as Mr. Lewin points out in his brief is formerly a professor of evidence of the Columbia Law School?
James B. Zagel: That is correct and I might say that his opinion is -- it follows very closely an analysis of similar problems by two Columbia professors, Jerome Michael and Professor Waxton. Essentially the Schipani opinion is a judicial adoption of a couple of law reviews, Your Honor and it has not been much adopted in this country. Finally and this is --
William J. Brennan, Jr.: That reflects in the value of law review (Inaudible)?
James B. Zagel: Well, I have written a couple myself.
William J. Brennan, Jr.: Where are the copies?[Laughter]
James B. Zagel: And I would generally read the opinions first in the Law Review article. The third point made by, is a relatively minor one, third point made by a petitioner I think I ought to touch on it is that the defendant in this case is in a much worse position than Jackson was in the Jackson versus Denno. I have a two essential problems with that. The first is that I think that is a terrible constitutional standard that tactical position determines whether a rule is constitutionally required and to put it another way I think that a petitioner would have to contend that Jackson and Denno decided that whatever makes it more difficult for the prosecution to put -- present a confession is a constitutionally required. My second difficulty is that he -- the petitioner here is not worse position than Jackson. Plain truth of the matter is accepting a premise of the Jackson opinion, the petitioner in Jackson never had a hearing, an adequate hearing on voluntariness and the petitioner here did have such a hearing. The other point in this regard made by the petitioner is that if the judge makes a determination that a confession is voluntary by preponderance of the evidence then when it comes to the time of trial, the confession is introduced and the petitioner has to determine whether to get up on the stand and suffer all of the risks connected with his appearance on the stand and he must do this without a proof of voluntariness beyond a reasonable doubt. I think that argument cannot be sustained in light of McGautha versus California nor can it be sustained in light of the guilty plea cases, the trilogy of cases beginning with McMinn versus Richmond. And in fact the decision whether to testify is made by a defendant without any determination in most cases of important issues beyond a reasonable doubt. The defendant in effect can take a prosecution case which is barely able to survive a motion for directed verdict, testify in the stand and sink himself. And in that position, far worse one than the petitioner faced in this case, that he has no right to determination that the prosecution's proof establishes his guilt beyond a reasonable doubt. The final point made by petitioner is that he ought to have been given a jury trial in effect on the issue of voluntariness. I would point out that it seems to me that the essence of Jackson v. Denno was that the jury does not really, in fact, is constitutionally incapable of giving a hearing on the issue of voluntariness. That the jury just will not separate the issue, that jury will consider weight probable truth and falsity and will determine voluntariness in the pure classic sense. I point out also that the jury determination of issues of admissibility is not a traditional function of the jury and that would not be binding upon a states under Duncan versus Louisiana and at least in the few precedents that have dealt with the issue seems to be really contended that there is a constitutional requirement of the existing precedent such as that it is against that contention. Frankly, the only way to satisfy petitioner’s claim in this regard would be to impanel separate jury on the motion to suppress because it would be only then purely apart from the issue of guilt or innocence that jury could give a determination of voluntariness. It is our opinion and our contention that a jury ought not be constitutional required to decide a question that this Court recognized that it is incapable to decide. Thank you.
Warren E. Burger: Thank you Mr. Zagel. Mr. Lewin, you acted at the request of the Court and by appointment of the Court in this case?
Nathan Lewin: Yes, Your Honor.
Warren E. Burger: On behalf of the Court, we express our appreciation for your assistance to the Court and of course, your assistance to your client.
Nathan Lewin: Thank you, Your Honor. It is a privilege.
Warren E. Burger: The case is submitted.