Warren E. Burger: We’ll hear arguments in number 206, Viven Harris against State of New York. Mr. Aurnou, you may proceed whenever you’re ready.
Joel Martin Aurnou: Thank you. Mr. Chief Justice and may it please the Court. The petitioner in this case was arrested on January 7 of 1966 and subsequently charged in a two-count indictment with two identical counts of sale of a narcotic drug to an undercover agent, the same undercover agent, two days apart. And these two offenses occurred allegedly the day before and three days before the date of his arrest. After his arrest and the time factor in not found in the record, he was removed to the Office of the District Attorney of Westchester County at our courthouse. And there, in the presence of a number of law enforcement officers, detectives, assistant district attorneys and so forth, and a stenographer, a written statement was taken from him which does appear in its entirety in the record before you. However, that statement itself discloses that it followed a period of questioning, the length of which is never disclosed by the same district attorney, same law enforcement officers and there is no place in this record where the facts of the prior questioning are elicited. It so happen that this case was tried before one of our most beloved and respected judges and when the statement came up, he, realizing precisely the point that was at issue, the difference between the Miranda view of impeachment that I take and the New York Court of Appeals’ view in the Kulis case asked the prosecutor who tried the case, who was the same prosecutor who took the statement, “Mr. Facelle, did you give this man any warning other than appears in this statement?” And the prosecutor said, he had not.
Hugo L. Black: Who was the trial judge?
Joel Martin Aurnou: Judge Robert E. Dempsey, Your Honor. Now, what that meant was that couple with the statement itself which shows you in repeated places the prosecutor says to him, “All I want you to do is tell us what you already told us before.” And Mr. Harris, well, he was 23 years old. He did have a 10th Grade education. Such as it was, he was an addict and he was suffering from withdrawal syndromes. And Mr. Harris said in the face of the fact that he had been questioned without warnings and he was now being questioned by a reporter, he said “I’d like to see a lawyer.” He said, “I don’t think I should keep on before I see a lawyer.” And at that point, Mr. Facelle told him that he had an absolute right to a lawyer. He said, “I’ll have him taken out. He can get a lawyer.” But the petitioner was indigent. He had no prior felony convictions. He had minimal involvement with the law in my view and I don’t think for a moment that he understood either that he had a right to cancel then and there or that he had a right to free counsel then and there, and his answer is --
Potter Stewart: And of course as of that time he didn’t have either of those rights under the United States of Constitution, did he?
Joel Martin Aurnou: At that date, Your Honor, Miranda had not come down and the standard had not been explicitly decided.
Potter Stewart: Right.
Joel Martin Aurnou: On the other hand, it is my view and I commend to you that Escobedo was in existence at that time.
Potter Stewart: Well, that’s a fact and it’s not a matter of opinion.
Joel Martin Aurnou: But the opinion which I believe Your Honor wrote said that confession obtained under such circumstances could not be used. That was the word you used and I prefer to admissibility because “used” and “admissibility” have some distinctions in this case. But what I am saying is this, when he asked for a lawyer, it was not only a question of rights were available to him because he didn’t appreciate what they were at all. But the prosecutor did lo and behold ,when you get to the end of this statement, the prosecutor says to him, “By the way, when you kept on going after you asked for a lawyer, you meant to waive a lawyer, didn’t you?” And Viven Harris said, “Huh?” He didn’t understand. And the young lady from New York County makes a point in her brief that they explained it to him. Well, they told him what the word waiver meant but they didn’t tell him a thing about the consequences of it, not three-word explanation. So Mr. Harris found himself in what I believe to be the situation of the type of defendant that you have been most alert to protect, one who is in no position to comprehend or to appreciate what right it is he said to have waived because he doesn’t understand the nature of it at that time. Now, when you come to the question of fairness to law enforcement officers, it is suggested that well, as Mr. Justice Stewart raised, maybe that wasn’t the law at the time. I think that law was reasonably inferable from what this Court had been doing and I think the prosecutor did infer or he wouldn’t have asked him about the waiver which is the traditional way of trying to get around Miranda. But something more important happened and that was the decision of this Court in Johnson, because on the day that Mr. Harris came to trial, there wasn’t any question about what the law was. His legal aid attorney try one of his first cases, knew exactly what the law was and made the proper objections. The judge and perhaps it’s the reason we respect him so highly, pointed out to the prosecuting attorneys that if you do this, it will have to be decided in an appellate court.
Harry A. Blackmun: Counsel, let me ask a trait question. I have another chance to review the entire record. Is there any claim, anywhere along the line of the contents in the statement are untrue?
Joel Martin Aurnou: Yes, Judge. I have to explain that in terms of the respective positions, Judge Blackmun that each of the parties herein. Miss Landau in the New York County brief makes the unequivocal statement that as to one date it’s true and as to one date it is not true. Mr. Duggan makes the statement in the Westchester County brief that the jury must have believed him or they would have convicted on both counts rather than solely on the second count.
Harry A. Blackmun: Well, this is my next question is, whether you are arguing prejudice in the light of the acquittal on the one count?
Joel Martin Aurnou: Yes, I would like to explain my view on that and perhaps your question makes this the appropriate time. I think that what happened was this. The statement have vast difference intrinsically as to the two counts. On the first count, the statement indicated that Viven Harris had acted solely as the agent of the police officer. That is the agent desire to make the buy, the agent paid for it. Viven Harris derived nothing from the act of being a conduit. And in fact, Judge Dempsey expressly charged the jury that if they found him to be an agent, they must acquit. I think that happened. On the second count however, it was unbelievably damming in this sense, petitioner’s testimony at the trial was, that he had in fact through a scheme and deception provided two bags of a substitute for heroin. There’s no heroin in these bags at all which he gave.
William H. Rehnquist: Sodium bicarbonate, he said didn’t he?
Joel Martin Aurnou: I believe that’s correct Judge, by the point was it had just enough for of a kick to deceive anybody who was a snorter which was their impression of what detective Bermudas was masquerading (Voice Overlap). However, the statement contained the suggestion that not only that did he get monetary payment for it, but he got a taste of heroin from those two bags. It meant that the entire statement would be meaningless unless in fact there was heroin in those two little bags. Now, Mr. Duggan has suggested that it wasn’t so significant as to the second count because how could he refuse the heroin that was offered to him without giving away the game that they were playing. The answer is that you cannot find in this record that it was ever offered to him. What you find is that he took it in payment but you do not find any testimony that Bermudez, the detective, offered this to him voluntarily. He wanted it as far as appears from the statement. Now --
Potter Stewart: I have a little trouble with the facts of this case, Mr. Aurnou. Well, am I right in inferring these two inferences? First, that the statement he made -- the statement he made standing independently was not in any sense of the word a confession, was it?
Joel Martin Aurnou: We disagree on that Your Honor (Voice Overlap). As to the second count –-
Potter Stewart: Standing independently, --
Joel Martin Aurnou: Yes, as to the second count.
Potter Stewart: -- the statement he made -- how was that -- was it, tell me why and how is a confession.
Joel Martin Aurnou: Because it indicated: (a) That he had furnished the heroin and (b) that by taking back a taste, it was in fact heroin that he had furnished and received money for. And that is his Honor charged to jury under the statute would be sufficient to convict in New York. So as to the second count Judge, and I’m limiting myself to the second count respectfully, I think in fact it was a confession. But in any event, certainly an admission, and when you come down to that –-
Potter Stewart: I thought it was only one combined with the testimony that he gave in court that it became damaging –-
Joel Martin Aurnou: Excuse me, Your Honor. No, I’m suggesting something quite different Your Honor, I’m suggesting that it had a separate independent effect when combined with his testimony that demonstrate the possibility of falsehood.
Potter Stewart: Right.
Joel Martin Aurnou: Either at the time of the prior statement of the trial.
Potter Stewart: Right.
Joel Martin Aurnou: But it also had an independent evil effect of it’s own as a confession and I would not have you think I conceive in anyway --
Potter Stewart: With respect to the second count?
Joel Martin Aurnou: That’s right.
Potter Stewart: Alright, now secondly. Is there any claim here that the statement was coerced or (Voice Overlap)?
Joel Martin Aurnou: Unfortunately Judge, that aspect of the record was foreclosed by the prosecution. Now, Mr. Prudanski, the young man who tried this case for legal aid made such an objection and he made it by referring to Jackson against Denno and to Section 813 (f) of the Code of Criminal Procedure in New York which is the statute dealing with the hearing on the question of voluntariness. The prosecutor objected at that time and certainly New York County, at least still takes the position that it makes no difference what happens at a voluntariness hearing because you can just proceed to impeach him with it anyhow even if it’s involuntary, in the McNabb situation for example.
Potter Stewart: Well, I didn’t quite understand the -- I heard what you said but my question was, is there any claim that it was coerced?
Joel Martin Aurnou: Well, that’s what I’m -- I’m sorry if I’ve been wordy Judge, I didn’t mean to evade.
Potter Stewart: I like it.
Joel Martin Aurnou: What I meant to say was that when we attempted to raise it in New York, when we asked for a hearing on that issue, we were foreclosed by the prosecution’s objection that the result of such a voluntariness hearing wouldn’t prevent him from using it. And the trial judge is learned and wonderful as he was. He is a wonderful man, he agreed with that of the authority of Kulis but having read Miranda, he told Mr. Facelle that you face the problem and the appellate court may very well determine that this is not permissible. And of course he had the dissent of Judge Keating in the Kulis case and Judge Fuld subsequent dissent in Harris or I shouldn’t say dissent, I should say concurring opinion indicating his adherence to the dissent in Harris -- in that Kulis indicates that there was a great deal of authority. And as I think my brief had shown you every Federal Circuit Court in the country that has considered this and there are six of them has reached the view which I respectfully espouse today.
Potter Stewart: Well, then as to coercion or the involuntariness of the statement, do I understand it to be your submission that because of the attitude of the prosecutor took, the ruling of the court was, that even assuming it was coerced, it can still be used.
Joel Martin Aurnou: Exactly, but I also said --
Potter Stewart: And then that we should decide this case therefore on the hypothesis, or whatever the facts may be, that this was coerced?
Joel Martin Aurnou: Exactly. I say further to that. I say that when you foreclose a defendant from proving involuntariness, it is ill to lie in your mouth to say that the confession was voluntary as the briefs continually urged for that was the very thing that we raised and we prevent it from questioning. And I would say to you that this was no light question that we raised because the statement itself intrinsically bore evidence of a very clever prior questioning which may well have been delivered, I have no way of knowing. But the warnings were not given. Thanks to Judge Dempsey’s elicitation of that fact. And what happened was, we had a secret inquisition, something in the nature of a subtle star chamber proceeding and then we proceed to a recorded statement for posterity which is the one we’re not afraid to show to the Supreme Court of the United States. I think that’s wrong. I think it’s very much like the cases were you have probable cause and, search and seizure and then police come in and testify that all of the sudden defendants are dropping things on the side work in front of them, which they then pick up. It’s too convenient. And I say one of the District Attorney, not just an average police officer, but an educated man and an experienced lawyer, deliberately interrogates privately and then publicly, that circumstance is suspect. Now when it came to the trial, I think it’s conceded that all of the proper objections were made, certainly the New York courts treated them that way. And when it came to verdict, the jury was unable to agree as to the first count which was an identical sale and I subsequently had that dismissed during the appellate process for lack of prosecution. As to the second count, which I believe the distinction is explained by the affected statement itself, he was convicted and sentenced to six to eight years. He served that sentence. He’s out on parole and so at the present time, he is technically in custody but in fact, I supposed he phrased, would be alive and well in New York. I would like to discuss first the -- taking first this statement and the matter of which it was obtained, I think it was clearly illegally obtained and I point out respectfully that that was conceded all the way to the New York courts. It was treated as such. It was not conceded to be involuntary in the classic sense but by a foreclosure from it, by the trial judge’s reading of Kulis as allowing this in an involuntary case. I think that is the posture in which this case comes before this Court. Now I say that when a thing is unconstitutionally obtained, it is inadmissible for any purpose. But I don’t mean merely inadmissible, I mean it may not be used against –-
Warren E. Burger: Are you suggesting the Walder case be overruled then?
Joel Martin Aurnou: Yes, I am Judge but I think it can also be read consistently with the position that I take.
Warren E. Burger: Well, in Walder it was clearly an unconstitutional search as I recall it –-
Joel Martin Aurnou: That was the first distinction, Your Honor.
Warren E. Burger: That was a search and seizure, wasn’t it?
Joel Martin Aurnou: Yes. What happened was, in Walder that they had seized certain narcotics. Mr. Walder moved to suppress and made an affidavit that he in fact had him in his possession, and it was that affidavit that was subsequently used against him. Now, I think in your Simmons case clearly says, that that procedure is no longer permissible. But I think that Escobedo itself and the language that any statement elicit by the police during the interrogation may not be used against him. I think that word means exactly what it says.
Warren E. Burger: And I gone over that rather fast, it isn’t as clear to everyone as it seems to be to use that the Walder case is overruled.
Joel Martin Aurnou: No, I didn’t say that Walder have been overruled. I said, I think Simmons (Voice Overlap) removed the rationale from Walder and I would like to explore that if I may Judge. I think this. First, Walder was the case in which the impeaching material itself was not addressed to the merits of the crime with which Walder was then charged. It related solely to evidence of his general character on a previous occasion and the rule has always been that when a defendant takes a stand, evidence of his general character is made relevant.
Warren E. Burger: Well, in the second, in the trial that came before the Court, when the decision is made, that was another narcotic charge, wasn’t it?
Joel Martin Aurnou: Yes it was, this was evidence of a prior offense and to some extent, perhaps, a predisposition to commit this type of offense, but it was not evidence of this charge.
Warren E. Burger: It wasn’t admitted for impeachment on that purpose, is it?
Joel Martin Aurnou: That’s correct. It was admitted solely --
Warren E. Burger: It was admitted because he denied that he had ever had.
Joel Martin Aurnou: Because he went beyond the latitude of the denial of the charges itself. It’s not been said that Viven Harris did that. But even if he had, I’m suggesting this, that Walder itself was a statement. The one that was admitted which had not itself been obtained illegally. It was only in the Simmons sense that it was obtained illegally, namely he had to make it in order to exercise a constitutional right to suppress something which in turn was illegally seized. Moreover, I think that if you could impeach him with the signed statement as the case that’s here, why can’t you admit the signed statement in evidence and just hand it to the jury. I think what was done here was the same thing and I think that the advice in Walder is that you are more concerned with the possibility of a single instance of perjury or lying, than you are with myriad instances of vindicating the constitutional right against self-incrimination and deprivation of counsel. I think one of the most unfortunate things, it comes about through the rule announced by the New York Court of Appeals in this case is that when you take it down to the level of your neighborhood police officer. He is going to say, “Well, it doesn’t matter if I make a mistake under the Miranda Rules anymore because there’s always something I can use it for.
Hugo L. Black: Not unless he takes a stand?
Joel Martin Aurnou: I beg your pardon?
Hugo L. Black: Not unless the defendant takes a stand?
Joel Martin Aurnou: No, I disagree with that because it also has a value in discouraging him from ever taking the stand.
Warren E. Burger: Well that’s a fact of life though if you got to -- if you contemplate perjury when you take the stand, this is somewhat discouraging.
Joel Martin Aurnou: I don’t think that’s the only situation in which it can arise Your Honor, that’s the implication of the respondent and amicus briefs but I think this. Very often when a young and inexperienced person is before the police, and that’s what happened here and that’s the only case it makes a difference because a professional criminal just doesn’t get involve in this. He may give a full exculpatory statement whereas the truth would acquit him. But he doesn’t know that. And he’s afraid to tell the police what happened, he thinks he better talk to his lawyer first. So he makes up a false exculpatory statement. He can be torn to shreds at the trial by in inexperienced prosecutor and that’s just what happened here. But it doesn’t prove that the statement that he makes in his testimony at the trial is false because it may well be at the statement unconstitutionally obtained was false. When you forbid a hearing on the issue of voluntariness, how can you then come with good grades and say he willingly gave his true statement. I think that in the unique factual setting of this case, the difficulty on the merits that is the substantive view that I take was compounded by the procedural refusal to ever have a hearing which could have determined once and for all the voluntariness or involuntariness of his statement. And I emphasize again that one of the most serious things in this case is that the question of voluntariness was not lightly or haphazardly raised. It had its germination in the statement itself which showed what had happened and in Judge Dempsey’s question to Mr. Facelle about those warnings. Now, I have referred to the various cases in the Circuit Courts discussing the view that this court took in Miranda. I don’t wish to belabor them but I will point out that in neither brief is there one word distinguishing any of those six cases. Of those six cases, five dealt directly with impeachment and the sixth was a case of impeachment by rebuttal rather than by cross-examination. There are a number of state cases which support the same view. But the argument I make basically is in the words of former Chief Justice White in Burgett against Texas. I think this case is a rule which erodes the procedural rights of the defendants and assumes avalanche proportion, just burying beneath it the integrity of the fact-finding process. You can completely destroy the ability to tell which statement was true and what happened on the merits and I go back to Krulewitch and Mr. Justice Jackson, where he says, “The naive assumption that prejudicial effects can be overcome by instructions to the jury all practicing lawyers know to be unmitigated fiction.” Well I agree with that. I think that was what Brewton stood for. And I think in this case, it would be equally naive to assume that jury could put that second aspect of the confession. That is the confession that is related to the second count out of their minds as a substantive thing. As my brief indicates, I don’t think Judge Dempsey did that. I think that when he charged them, agency on the first count, he was taking the substantive material from the concession itself, the statement itself.
Harry A. Blackmun: Of course on that approach, the Miranda should be fully retroactive, should it not?
Joel Martin Aurnou: Well, I will say this, I think -- I think the opinion in Johnson indicated that Miranda could have been fully retroactive.
Harry A. Blackmun: And you’re operating here an unfortunate chronology -- had Johnson said that retroactivity was directed to the time of the taking of the statement rather than the time of the beginning of the trial which should be here today?
Joel Martin Aurnou: Yes, because in that posture, could they possibly have denied us the hearing on voluntariness. Even then, the procedural defect in this case is so great that we would be hear on that second point in any event. I think myself Justice Blackmun that we would be here on the first point. Because what I am saying is this, even under Escobedo, an argument could be fairly be made that the overruling of the defendants request for counsel at that point was an unfair, improper under the then law taking of an involuntary statement. Now, with the Court’s permission I would like to reserve five minutes for rebuttal.
Potter Stewart: Is the statement in question accurately reported in full --
Joel Martin Aurnou: Yes, Your Honor.
Potter Stewart: -- on pages 72 to 78 of the appendix (Voice Overlap)?
Joel Martin Aurnou: Mr. Duggan and I have stipulated at this.
Potter Stewart: And that’s an active statement so whether or not --
Joel Martin Aurnou: To the best of our knowledge, it is.
Potter Stewart: -- to ignore your admission or the confession?
Joel Martin Aurnou: Yes, I only say to you that we never had the opportunity for a hearing to establish otherwise despite our request.
Potter Stewart: Thank you.
Hugo L. Black: (Inaudible)
Joel Martin Aurnou: Your Honor, you have to appreciate first that I was assigned by the court in the appellate division so that I do not know what transpired at the trial.
Hugo L. Black: Is that in the record?
Joel Martin Aurnou: In the record, I can only say that every attempt to explore that was forbidden because in the trial judges, it deal with -- it made no difference, even if it was involuntary.
Hugo L. Black: The Miranda point is thoroughly the point.
Joel Martin Aurnou: The Miranda point --
Hugo L. Black: It goes to the circumstances at the time of their waiver of counsel what’s there --
Joel Martin Aurnou: Well, I can only say to you that the Miranda point was raised and not explored because what happened was that the trial judge told the prosecutor, “You can do this but you run the risk that an appellate court will overturn in under Miranda.” Judge, the only way I can express it to you is this. Many trial judges in my experience will say, if I have a doubt on this ruling, I will allow the prosecution to do it because they can appeal. And then let the defendant take his appeal and will find out what the law really is. For Viven Harris, that’s some five years of prison finding out. And it may just be that he was right.
Warren E. Burger: But these rules that you’re talking about, all of them, Miranda all the way back to McNabb, these were traditionally constructive as a shield that when a man can take the stand and be immune from cross-examination and impeachment, he’s using it something more than a shield, isn’t he?
Joel Martin Aurnou: I would agree that that would be true, if in fact that was the thrust and effect of what happen Your Honor. But I say this, you are insulating him in a very small degree. You’re insulating him from something which the prosecution had no right to in the first instance.
Warren E. Burger: Well, of course, some people think that there’s been a little over insulation.
Joel Martin Aurnou: I’m grateful Your Honor that this Court stands as a shield against that view. I would simply say that when that misapprehension is suffered by many, the decisions of this Court have been a great deal to lay to rest that misassumption.
Warren E. Burger: Mr. Duggan.
James J. Duggan: Mr. Chief Justice and may the Court please. I think I can perhaps be of more service to the Court by beginning rather than what a formal argument by answering some of the questions that the Justices have had asked and perhaps haven’t been answered to my full satisfaction. When Miranda was decided in June of 1966, the prosecutor went over his own statement and he evaluated in terms of the law by which he was obliged. And we said to one another forget the statement in the Harris case because we didn’t give him that forth warning. So as a consequence, when the time came went in another case, we would observe notice on the defendant that we intended to use a statement as evidence against him. We chose at that time not to serve any such notice because it was not then our intention to use the statement against him. So as a consequence that was never any -- what in New York State has become a Huntley hearing on this matter. But throughout the entire progress of this trial, everyone knew and everyone accepted that this was a completely voluntary statement in a traditional sense of the word. Its only false was that by reason of Miranda, it was no longer admissible. And so as a consequence, when at the time of this statement was sought to be introduced for impeachment purposes, and when I say introduce, they don’t mean introduce into evidence because it was not. At the time it was resorted to for impeachment purposes and there was an objection raised, there was no hearing then being sought on a traditional concept of voluntariness. The thought that was being explored by holding such a hearing at that time was whether or nor it was admissible and the trial judge said certainly, everybody knows that this statement is not admissible into evidence because the people opened and closed their case without ever having any resort to this. But he said in terms of People against Kulis, which is the law in the State of New York, the inadmissibility of the statement has nothing to do with whether or not it may be used for impeachment purposes. And he said, “Therefore gentlemen, I am not going to have any hearing to find out something that all of us already know. It’s inadmissible.” But granted the point and as I say it was grated by all concerned, that is was a voluntary statement, it then certainly became the same thing that everybody had agreed and the traditional sense was perfectly proper. Because there was a time that common law, when the defendant was under no circumstance allowed to testify on his own defense, and this was thought to be basically so because the defendant had so much to lose by a successful prosecution and he had so much to gain by a successful forwarding of that prosecution. But he was essentially, by definition unbelievable. Or so far as I know, the first break in that common law tradition came in New York State in 1869, in that state for the first time, our defendant was allowed to take a stand and it was there that the concept grew up, that no presumption should be drawn against him if he doesn’t.
Warren E. Burger: Well, haven’t it come a little earlier in England?
James J. Duggan: Oh, I don’t mean -- I am not going all the way back. I’m talking the statutory turns, Your Honor. And the New York Court of Appeals, the following year was called upon to decide the case under the New York law, under this New York statute and they deliberately painted a defendant as a double entity. In one capacity, he is a defendant on trial. And in that capacity, he has under most circumstances to be compelled to get on that stand and get evidence of anything. However, if he chooses to step aside from that position as defendant and become a witness, he then becomes as vulnerable and the subject to impeachment as any other witness. And this was accepted and it was accepted in a great many jurisdictions even to the point of their saying that even if we adopt as a principle, the possibility that this man may be impeached by inadmissible evidence, he invites that by taking a stand.
Potter Stewart: What if this had been a coerced confession? Could you impeach him with that?
James J. Duggan: If this had been a coerced confession, it’s that people’s view and the respondent’s view that it couldn’t have been used for any purpose, because the entire thrust or the only thing we can tell to this Court is that because if it is a voluntary confession, its truth is greatly to be relied upon. Now, if you conceive of a situation where we can even rely on the truth of this thing, then we can’t use it to impeach him.
Potter Stewart: Well, have you finished?
James J. Duggan: Yes, Your Honor.
Potter Stewart: I didn’t mean untrue confession. I meant simply an involuntary confession. Could you use that to impeach him?
James J. Duggan: No, Mr. Justice Stewart. I don’t think we could for this reason. The point that I’m trying to make is a voluntary confession, if it’s voluntary in traditional sense, can be relied upon to express the truth or as an involuntary confession is subject to take the obvious example. A man will say anything to keep from being beaten and all we have to do is go to some of the countries behind the iron curtain to demonstrate that. There is a point beyond which human endurance can’t continue.
Potter Stewart: Well, that’s true. But the law is very, very well developed in the decisions of this Court certainly over the last 10 or 12 years that the confession that is involuntary even though demonstratively true is nonetheless wholly inadmissible. And let’s assume that you had a course or involuntary confession, and let’s assume further that it was wholly true, could you have use that to impeach him?
James J. Duggan: I don’t think so Mr. Justice Stewart because the thought is that we must have to find a class of confessions which may be used for these purposes. And I think once you define a class as being a true confession rather than a voluntary confession, then you’re getting into extraneous matters that perhaps aren’t properly explored in such a context as this.
Warren E. Burger: What you’re saying then that it can’t be given any use because it is inherently unreliable as being involuntary?
James J. Duggan: As being involuntary, yes Mr. Chief Justice.
Thurgood Marshall: When is it determined that it is or is not voluntary?
James J. Duggan: You mean, as I would choose to use it without a pretrial?
Thurgood Marshall: Well, let me give a hypothetical. You got a confession, you as the prosecutor and you notified the defense counsel informally that you don’t intend to use and you don’t probably noticed what you use to require or anything like that. And it goes on and this is the involuntary confession on the three different positions of this Court and you’ve tried to use it on cross-examination and defense counsel, “Oh! Wait a minute. You can’t use that. I claim this involuntary.” Wouldn’t you agree that then we have a hearing as a jury?
James J. Duggan: Oh! By all means Mr. Justice Marshall! We would --
Thurgood Marshall: Once this challenge is being involuntary, then you have this sort of (Voice Overlap)?
James J. Duggan: Oh! By all means, there would have to be some judicial determination of that prior to any concept of throwing in this in this man’s face. Just a simple justice would compel that.
Potter Stewart: Now, your brother in the other side has told us that because of the posture in which this question arose in the trial court, we must proceed upon a hypothesis that this was an involuntary -- that this was an involuntary confession?
James J. Duggan: Mr. Justice Stewart, I think perhaps, Mr. Aurnou may have expressed himself somewhat more enthusiastically than what was his intention. I don’t think you have to make such a presumption because when you read the record, and when you see what it was that was sought to be brought into context here, it was not the voluntariness of the confession as to voluntariness alone. The only point that was thought to be brought in the context was whether it was admissible in terms of Miranda, a question on which all of us agree. There was never any doubt about that. We had come to that conclusion months and months and months before this trial.
Warren E. Burger: When the prosecution sought to use it for impeachment purposes, was there any request for a hearing on the involuntariness of the confession?
James J. Duggan: I would have to get these minutes to refresh my recollection before I could give you an absolutely definitive answer Mr. Chief Justice. My recollection is that there was a hearing for the purpose of discovering whether -- there was a hearing requested for the purpose of discovering whether or not this, that this was admissible. And we all knew it wasn’t.
Warren E. Burger: It wasn’t -- it never was offered in evidence, was it?
James J. Duggan: Oh! No, Your Honor, it won’t -- yes.
Warren E. Burger: It simply cross-examined on the basis of the statements, did he not?
James J. Duggan: I can’t be entirely honest and give you the answer that I would choose to give you. Mr. Chief Justice, this was offered an evidence but simply to prefer it’s identity for the appellate court. It was never passed to the jury. It was never read in its totality in the jury. And the only reference to the confession was made in the by-play between the Assistant District Attorney and the defendant during his cross-examination. Although technically, I must concede that it was admitted into evidence.
Warren E. Burger: But only for appellate review.
James J. Duggan: Only for the purpose of identifying, Mr. Chief Justice. Now, if we go beyond this area, In Oklahoma, old back in -- about 1898 up to that point, the great many jurisdictions as I’ve said went along with the proposition that even in inadmissible statement would be proper impeachment -- for a proper impeachment purpose. But the Eighth Circuit in Oklahoma at that time, I got this citation. Harold against Oklahoma said, “No, we got to come to a point of division here, and that point of division has to be whether or not this statement was voluntary, because an involuntary statement carries with it the stigma of untruth.” And at that point that the division came and then from thereon a great many jurisdictions, all whom I’ve listed, continued to cleave to that role. A statement even though inadmissible was the proper source of cross-examination for impeachment if it was demonstrated to be voluntary. And that condition existed right up until 1966 when this Court decided Miranda against Arizona. And at that point, the Court indicated that even in an inculpatory statement, if it sought to be used by the prosecution becomes just for the very purpose that he chooses to offer it to a certain extent inculpatory. And the Court said that even in an exculpatory statement, the Miranda warnings would have to be taken. And a great many courts from the language of the court in that Miranda case came to the conclusion that even for impeachment purposes, simple voluntariness wasn’t enough. And that was the source of what we think is the misunderstanding that has been created by the diversion among this courts because as Mr. Aurnou points out, he’s got 16 jurisdictions on his side and as I point out, I got eight jurisdictions on mine. Now that’s the way you win baseball games. It isn’t the way you win important determinations of law because any of my eight could be as right as any of his 16. The point that we would make is this, in Miranda against Arizona, the Court directed itself to the admissibility of confessions. It started in the first paragraph and I can’t quite quote the language, we address ourselves to be admissibility of confessions. But the important thing to remember is that in the ordinary effective sense, this confession of confession can be called. It was not introduced into evidence. And so as a consequence, it can reasonably be concluded I think that Miranda did not addressed itself to confession. The purpose of which was to -- was to not introduce into evidence. Now the point that is important is if you got an exculpatory statement that was taken with the full Miranda warnings, you can introduce that into evidence. Now suppose he gave another exculpatory statement with the full Miranda warnings to another law enforcement officer that would be equally admissible. And thus perhaps, you might be able to impeach his credibility or his reliability or what have you before he ever got on the stand by the purpose of introducing two inconsistent statements that were taken under the authority and with the full approval of Miranda. And we suggest to this Court that this is the thing that the Court sought to prevent, the introduction into evidence on the people’s direct case of these inconsistencies. And I see my time is up, I think I said all I have to say. Thank you.
Warren E. Burger: Very well. Ms. Landau.
Sybil H. Landau: Mr. Chief Justice and may it please the Court. The statement was not coerced. It has never been suggested that the statement was coerced. The objection that was raised to its use in the far level was that it violated Miranda and on that objection, the state lost. There was a hearing held after the impeachment in the judges’ chambers at which the judge did give Mr. Facelle, the prosecutor, an opportunity to show that perhaps Miranda was not violated. He tried. He lost. But that was the only objection that there was or could have been to this statement. This voluntary statement that was given prior to Miranda was used to discredit trial testimony. It was not used to establish Viven Harris’ guilt of the substantive crime. But when the petitioner, in this case, took the witness stand and affirmatively resorted to perjury, the jury was entitled to know that its trial testimony was not the only version of the events that he had ever given. The exclusionary rule should not be extended to bar this limited use of a voluntary statement that was lawfully obtained because the New York rule which allows this impeaching use of the statement, safeguards very vital aspect of the jury’s role as a fact-finding body. And that aspect is not the one that is endangered by the ordinary exclusionary rule. Indeed, there is no need even to consider extending the exclusionary rule to this case because this use of petitioner’s statement did not violate his privilege against self-incrimination. He was not by being impeached compelled to be a witness against himself. The statement was voluntary and it was never introduced for the truth of its content. In allowing this impeachment moreover, the trial court was not and this Court will not be condoning any police misconduct. There was no police misconduct or prosecutorial misconduct involved in the questioning of Viven Harris.
Warren E. Burger: When he was cross-examined by way of impeachment, can you tell us now what his responses were --
Sybil H. Landau: Yes.
Warren E. Burger: -- when he was asked, “Did you make this statement?”
Sybil H. Landau: Yes. To put it in its context what his trial testimony was, was very, very elaborate as to what it got on. He gave an elaborate version of what happened on January 4th, all of which was to point that I never sold him narcotics, but it involved an undercover police officer begging and pleading with this man, “Please, please, give me narcotics,” to which Viven has although he wasn’t adverse to doing this. He said, he couldn’t do it, quite simply because there was a panic on. With respect to the second sale, his testimony got even more elaborate. He was still reluctant to given to this pleading and this begging. However he had friend, named Henry Stanley who Bermudez, the undercover detective give by association put together with him, “Birds of the feather,” according to Viven Harris, “flocked together.” And Stanley was willing to put on this elaborate scheme of selling the undercover officer baking powder. Well. I don’t want to elaborate even more but this was very detailed. And also involve very detailed conversation from December 15th. He was confronted with the prior inconsistent statement.
Warren E. Burger: How was he confronted, verbally or?
Sybil H. Landau: Verbally, he was asked, “Do you remember?” This is the rule. The evidentiary rule as it exists in New York is that you don’t just surprise the man with a prior inconsistent statement. You give him the opportunity to explain which asked, “Do you remember being asked this question and giving this answer?” So, he read it. “Do you remember being asked this question and giving this answer?” Viven Harris’ response was, “I don’t remember.” It was this response, not the inconsistency that the prosecutor used so effectively against him because it could not be true that Viven Harris could remember a detail conversation from December 15. A detailed, endlessly, detailed conversation from January 4 and January 6, but have a total lapse of memory, 24 hours later on January 7. That was the way he was impeached in this case. By being confronted, now he couldn’t have been confronted with the statement and asked that he remembered it, he could never been impeached by his testimonial claim, “I don’t remember it.” This statement was never used nor was it argued or was it suggested that it could be used for the truth of it contents or that those contents or even the fact that he was a liar proved him guilty. What the prosecution did this statement was to say, “You heard my witnesses, you heard Viven Harris, who here is telling the truth?” And then he argued the if the petitioner was abusing the jury’s intelligence by trying to tell them that all these sort of facts was true, that he couldn’t remember what happened 24 hours later. That’s the sole extent of the impeachment here. Now, the instruction, not simply the instruction in this case but in instruction in any similar case to the jury that this statement can be used only as it -- in their assessment of the defendant’s credibility is a very readily understood instruction. It’s is in accordance with common sense. It’s in accordance with everyday common sense that a man who is willing to tell different accounts of the same event is not likely or should not be believed as to either account. And because of this, it doesn’t create a risk of the jury who is going to be unable or unwilling to follow the instructions. Now we know for a fact that in this case, the jury followed the instruction. The prior inconsistent statement, we can divide it into two parts, January 4th and January 6th --
Potter Stewart: Ms. Landau, the instructions are -- the charge for jury is quite lengthy here, can you tell me what page it’s on?
Sybil H. Landau: Yes, I have to look at my brief to do that. The --
Potter Stewart: I can’t see the claims.
Sybil H. Landau: It’s in my brief and I talked about the facts, Mr. Justice Stewart. It’s page 575 or in the appendix A–95.
Potter Stewart: 95?
Sybil H. Landau: Yes, he said. In the course of the interrogation, as to that statements before given by the defendant Mr. Facelle that this goes to -- the questions and answers gather the weight and the credibility that you give to a witnesses’ testimony, you may take this into consideration as to whether or not he would defend any person that has made parrying of this statement. “You may take that into consideration in determining how much weight you attach to witnesses’ testimony, how believable it becomes under all the circumstances but I caution you again,” because this was not the first time the court is so instructed to do right, “I caution you again, that this does not prove the defendant’s guilt.” This goes to the weight, the believability of the witnesses’ testimony. And we know in this case that the jury did in fact follow that instruction because they found him, they did not convict him on the first count. The statement as the first count was a confession. It was minimizing his role, that’s very true. But it was a confession and it was also inconformity to the people’s proof. That second statement, the one which is, “At the moment before this Court,” the one on which he was convicted was a falsehood. It was untrue. He never -- what he said to the DA when he was questioned was, “Well, he asked me to get him some narcotics and I went to get it.” Now he just told about going some place and the DA say said, “Some place you went to the same place?” Harris said, “Yes, no, no, no. When I walked outside the door, the man was there and I got it from him.” “And you got 12 bucks for this?” “Yes, I got 12 buck for this?” “Did you get anything else?” “Yes, I got to taste this heroin.” That was a lie. Oh! Yes, it was true that on January 6, 1966, Viven Harris gave two glassine envelopes in exchange for $12.00 to Detective George Bermudez but it never happened in the bar. He never got it from some man standing outside the bar. He went over to him in the bar. He said to him, “Do you want anything today?” He said, “Yes, I’ll take a couple.” Harris said “Okay. But I have to go home to get it.” This is the truth. “I have to go home to get it.” He goes outside. He goes back home for it. He’s gone 20 minutes. He comes back in to the bar and he said, “Hey, Joe” because that’s the name Bermudez is using, “Will you step outside with me for a minute?” They go outside, they’re seen outside, the partner of the detective sees them outside, sees them in the automobiles, sees that double exchange of hands. We’ve all become so familiar with it. That second statement was false. But that’s irrelevant because it’s not introduced for the truth of this content. Its value lies. In the fact the defendant was willing to tell different stories. This is also the answer to the coerced confession, not only wasn’t the statement coerced and there’s has never been a claim of coercion. But under the law in New York, you may not use a coerced confession as a prior and consistent statement. It cannot be. It can be inconsistency. But to be a prior inconsistent statement by definition that defendant must have been willing to make the earlier statement and a statement that’s been coerced is not the one that defendant is being willing to make. So the statement is excluding not because it’s unreliable, that’s irrelevant in a way because it does not offer for its truth. It’s excluded before us. It is coerced and therefore has no probative value on issue of this credibility. It was said by the petitioner here that defendants will now be discouraged from taking the witness stand. The rule in this case, the rule adopted by the new Court of Appeals will now and has not and could not discourage defendants from the taking the witness stand because this statement to the extent that the hypothesis is made that a person has a reasonable explanation for why he made an inconsistent statement. Many times people do tell a lies to the police but have reasonable explanations whether it was fear or bewilderment, nobody has a reasonable explanation for an inconsistent statement which is compatible with the truth of this trial testimony or hesitate to take the stand and give that explanation. And even beyond this, we know from experience that defendants where confessions are actually introduced as evidence of guilt have never hesitated to take the witness stand. It is not the existence and evidence or proof of guilt out of its own mouth which keeps the defendant off the witness stand. And there is no reason to believe that the availability not as proof of guilt but simply if the man, affirmatively resorts to perjury that the availability of this statement to impeach him to expose to the jury that this may not be the truth will deter any defendant from taking the witness stand. Now this situation in this case is different than the situation in Brewton. In Brewton, the statement is introduced. The co-defendant statement is introduced not only as the truth of its content. It’s used as the direct evidence of guilt against the co-defendant. It’s this which the jury has difficulty in following, that is not the situation here. Thank you.
Warren E. Burger: Thank you Ms. Landau. Thank you gentlemen. The case is -- Oh! Excuse me. You’ve got two minutes left.
Joel Martin Aurnou: I would like to way first Your Honor that somehow in the argument and perhaps it’s because my brother, Mr. Duggan was a little too enthusiastic, we lost sight of the material which appears in the appendix at the footer page 69 and at the top of page 70. At that point, defense counsel says, “Your Honor, I take strong objection to the procedure herein.” This was presented to the jury before any examination so that the legal voluntariness of this statement, ands the judge says, “Let the record reflect for you that you are taking an exception to the fact that under the Huntley case which is voluntariness, it was not authored on the basis of notice required under the code criminal procedure and you also have an exception under the fact that it violates Miranda against Arizona.” So, I say to you that I think the record bears out my statement to Mr. Justice Stewart in response to his question that we fairly sought the hearing. There was no hearing in chambers, Your Honor. What there was, was a discussion during which Judge Dempsey asked, “Mr. Facelle, did you give this man any warning?” Other than what’s in that statement and the answer was “no.”
Warren E. Burger: But the statement was not then authored in the --
Joel Martin Aurnou: Authored judge is where I have my trouble because, I stipulated and I conceded in my brief that it wasn’t authored in the sense I’ve marked this exhibit I have handed to the jury, no it was not. Judge Dempsey again, I can’t express my admiration for him enough, marked it solely as an exhibit to have it exactly before you. But the fact is that it was read visibly by the prosecutor in its entirety. Eight pages to read a statement that took six pages.
Warren E. Burger: And were all responses, “I do not remember?”
Joel Martin Aurnou: No he left out. No, there were some where -- one where he said “Yes,” one where he said “I don’t recall,” one where he said “I didn’t make that statement,” they vary. But the thing that was significant was he got the entire thing in there and in part of the question, he says to them, “When, you told me that was a true.” True, that was the word that Mr. Facelle used. And maybe the jury lost the significance of the difference, but while on the one hand, Ms. Landau says they know what was going on, on page 15 of her brief, she says they must have been confused or they wouldn’t have acquitted him on the first count.
Warren E. Burger: And at the time that he made this responses, did he give any responses saying, anything to the effect that he was forced to make it or --
Joel Martin Aurnou: No, he did not in his statement say it. But I would close this case now if I may with the statement that comes from the Harrison case that, “The rule for which I contend deprives the Government of nothing to which it has any legitimate claim. It does no more than restore the status quo that would have prevailed if the Government had obeyed the law.” I commend that to you.
Warren E. Burger: Thank you.
Joel Martin Aurnou: Thank you.
Warren E. Burger: The case it submitted.