Earl Warren: Number 158, Fleming Smith, Petitioner, versus Illinois. Mr. Getty, I think you may proceed now.
Gerald W. Getty: Mr. Chief Justice, may it please the Court. This is the case of Fleming Smith that originated in Illinois and has taken on appeal from the Illinois Appellate Court. The question involved here is the constitutional provision namely the Sixth Amendment and that part which states in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. We are also concerned about the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment. The question as we see it presented for review is, should the informer's privilege be permitted to encroach upon the accused Sixth Amendment right to be confronted by witnesses against him. The facts of this particular case are -- as the normal case in a narcotic case where an addict is induced or the addict tells a police where he can supposedly make a purchase and this particular addict was searched and then escorted by two policemen to a restaurant on the South Side of Chicago, and there, this person by the name of James Jordan, and we do find from the record that this is not his correct name, did enter the restaurant and it is alleged and he did testify that he made a purchase of narcotics from one Fleming Smith in that restaurant. The two policemen are outside of the restaurant and certainly could not observed whether he did or did not make a purchase and they never testified to such things in the record. The person, James Jordan, testified on the stand that he made the purchase from Fleming Smith. But when he was cross-examined and asked whether his name was James Jordan, there was an objection and further it was elicited finally that his name was not James Jordan. And when it was asked whether -- what his name was, there was an objection and his name was never disclosed. At that point, though they had produced this witness on the issue of guilt, it was denied, denied the facts and the defendant to know the person that was accusing him. They took -- attempted to elicit the address of James Jordan and there was an objection and that was never disclosed. When Fleming Smith took the stand, he denied any of the pur -- of the sale of narcotics to James Jordan. Fleming Smith admitted that he was an addict and when he was arrested, sometime after James Jordan left the restaurant on February 28th, 1964, he did have a packet of narcotics on him. He also had four single dollar bill on him that had been marked money. The police at the time that James Jordan or just prior thereto entered -- that James Jordan entered the restaurant, did give him six $1 bills that were marked and four quarters. The purchase according to James Jordan was for $4 and 75 cents, a $5-bag. The four quarters were never found on Fleming Smith. Fleming Smith explains in the trial the reason and why he had the four $1 bill is that he had just prior thereto paid for a restaurant bill and received them in change. So that Fleming Smith at all times denied the sale.He said that James Jordan did approach him, he said he had no narcotics for sale but referred him to one Herbert Simpson in the rear of this restaurant. Now the state in their brief presents the question, does the constitution require that the true identity and present address of a governmental informant be disclosed on cross-examination? And our answer to that is yes, when it is on the issue of guilt. This is not the case of the type of informer that merely points the finger of suspicion that the police depend upon for information, that type of person gives information to the police and there is a flow of information and we realized that this is probably one of the great scientific detection apparatus that law enforcement does have, the informant.
Speaker: Am I wrong in thinking that counsel for the defendant said he knew this man, Jordan?
Gerald W. Getty: There is some evidence that --
Speaker: Page 78, he says he knew him and he represented him.
Gerald W. Getty: There's never -- oh, the counsel?
Speaker: Yes, the counsel. There was a statement that counsel did know but there was never a finding of fact that he knew him by any other name or what name he knew him by. It might very well have been that he knew him by James Jordan, but at the same time when this man is testifying, he does state that this is not his right name, never a finding of fact that Mr. Pride who represented him knew who this man was by his correct name, never finding a fact.
Speaker: Well, Mr. Pride says that he had represented Jordan at one time, not merely knew him, but he had represented him as a lawyer.
Gerald W. Getty: Yes, he did represent him but never -- it might have been as James Jordan. We have a right to assume that. We know -- no, there is nothing in the record here that shows that he represented him by any other name.
Speaker: At page 78, page 78.
Gerald W. Getty: Now it is our position that where there is an issue of guilt as distinguished from that type of informer that informs but never actually testifies against the defendant. That type of informer that merely informs, merely gives information in order to keep this flow of information, in order to protect as the state always wants them protected, this informant under the case is we believe there -- they do not have to disclose their name and address or if you please their identity. However we have a different problem where on a question of guilt and the man is produced, don't we have the right to know who this witness is that is presented against the defendant? The right to know who our accusers are, and that is the issue because this person then becomes a material witness and we should not be prevented from having a full cross-examination, because to have a full cross-examination, we must know who we are cross-examining.
Thurgood Marshall: Mr. Getty, you really mean you have to know his name?
Gerald W. Getty: We have to know his name.
Thurgood Marshall: But he is right there. You're looking at him?
Gerald W. Getty: That's merely gazing on somebody.
Thurgood Marshall: No, you're questioning him?
Gerald W. Getty: We're questioning him.
Thurgood Marshall: And you knew him, the lawyer knew him?
Gerald W. Getty: Well, there's a statement that --
Thurgood Marshall: Well, I would assume that the lawyer who represents a man knows his client.
Gerald W. Getty: Well, there is no find --
Thurgood Marshall: I would assume though -- -- there is no finding of fact. He could have represented him as James Jordan.
Gerald W. Getty: There's also information that he --
Thurgood Marshall: Wouldn't he --
Gerald W. Getty: -- that he knew him as Fishbait in there.
Thurgood Marshall: Yes, he knew him quite well. He also knew -- all the other times he testified. Isn't that also in the record? He knew the other person that this man had testified against.
Gerald W. Getty: He knew --
Thurgood Marshall: He said, “Did you testify in such and such a name case, in such and such a name case?”
Gerald W. Getty: There was a couple of occasions there. This man was an informer and he apparently did testify against others.
Thurgood Marshall: No, I mean the lawyer knew that before this point.
Gerald W. Getty: I don't think so Your Honor.
Thurgood Marshall: Well, how could he remember the name? Just pull it out (Inaudible)?
Gerald W. Getty: If there is -- there's a possibility that he did. I never in this record was firmly convinced that Mr. Pride actually knew this man, knew his correct name. I think Mr. Pride was astonished when he found out that his name wasn't James Jordan because we don't --
Thurgood Marshall: Well, why didn't he asked --
Gerald W. Getty: -- find him with the next name, “Isn't your name John Jones?”
Thurgood Marshall: Well, no. My point Mr. Getty is -- I'm not asserting -- you are that he was so surprised because he's the one who asked the question, that this is not your real name, is it? I don't think he was too surprised.
Gerald W. Getty: Well, it was never a finding of fact that he knew him by any other name, that's --
Thurgood Marshall: But there isn't --
Gerald W. Getty: And I --
Thurgood Marshall: He says, I knew him and I represent him.
Gerald W. Getty: I think the real issue --
Thurgood Marshall: And I would assume from that that he knew the man, and he knew where he lived, and he knew something about him --
Gerald W. Getty: Well --
Thurgood Marshall: -- because he represents him.
Gerald W. Getty: I would say this that he probably knew something about him because there is evidence or indication here they represented him. Whether he knew him by his right name, whether he knew where he actually lived, there's nothing in the record that would indicate that.
Speaker: Wouldn't you think the fact that counsel asked this, a rather an unusual question out of the blue, is that to some indication that he knew that the man was giving a name different from the one that he -- the lawyer knew was -- he had as his client?
Gerald W. Getty: Well, there is still isn't any evidence that he actually did know his name and confront him with his correct name. I think he was at the end of the line that he didn't know his right name and he didn't know where this man lived. And these narcotic addicts always go by incorrect names, not their real true given names. That's been the experiences that I have witnessed and been involved with.
Potter Stewart: But on the cross-examination, it was brought out was it not? The defendant counsel was allowed to bring out and did bring out that this man going by the name of James Jordan, was an addict at that time, that he had prior convictions. That he was -- that he had a criminal charge then pending against him. That he was being paid for his services as an informer and that James Jordan was an assumed name, all those things presumably damaging to his credibility. What more do you suggest to -- if they found, “Well, he also went by name of Fishbait,” that was brought out, and let's say it's also been brought out, “Well, I also go out by the name of John Smith, Tom Brown, and Alfred Green, what would that of help? I mean why -- it was shown that he went -- that he had another name that this was an assumed name, his criminal record were shown, his addiction of narcotics were shown. In fact, he was a paid informer were shown. And as Mr. Justice Harlan and Mr. Justice Marshall have suggested, it was also shown that the lawyer in fact knew who he was having serviced as his employer, what more could have been brought out?
Gerald W. Getty: By that cross-examination, it was superficial. Here, he brought all it up, but everything he said was what James Jordan wanted him to know. James Jordan said that he had been in the penitentiary. But with his correct name and an address, we might have found out that he had been in the penitentiary or in several penitentiaries.
Potter Stewart: No, he said he had been convicted for larceny, and he'd been convicted of burglary, and he said there was a -- then a charge pending against him.
Gerald W. Getty: And we might have found out that there was more charges pending against him such as he had a charge -- that probably he would be a witness in the case of Herbert Simpson, the man that Fleming Smith directed him to. We might have found out that he had been in the mental institution before. We might have found out that he was in custody of the police. We might have found out that he was testifying because he was going to receive immunity. We might have found out -- those things that are very important that might have tipped the scales in favor of Fleming Smith before the trier of fact in this case. It's not just that he was an addict, not just that he had been in the penitentiary before, but all those other things that could have been brought by knowing his true name and his true address.
Potter Stewart: Well, I thought they -- you represented to us that its typical for these people not to use their true name.
Gerald W. Getty: I found --
Potter Stewart: He testified that he's gone by -- that he had at least two other names.
Gerald W. Getty: Yes.
Potter Stewart: One Fishbait and one the undisclosed “real name.” I don't quite see how all of this speculative information could've been made available by just giving one of his -- perhaps many other names.
Gerald W. Getty: Well, we know that this was not his true name. We know that he is even lying on the stand.
Potter Stewart: Well, that was all shown, wasn't it?
Gerald W. Getty: Yes.
Potter Stewart: Was this a jury case?
Gerald W. Getty: That was all shown. That was all shown that this was not his correct name. But without his name, without his address, we can't find out in what other theater of activity he was engaged in by investigation.
Potter Stewart: Was this a jury case?
Gerald W. Getty: This was before a court or a judge.
Abe Fortas: I see on page 16 that the Court refused to grant the order an answer whether he is known in the streets of Southport.
Gerald W. Getty: It was Southport, I stand corrected, instead of (Voice Overlap) --
Abe Fortas: But did he ever admits that his name was Fish -- that he's known as Fishbait?
Gerald W. Getty: I don't think he was permitted --
Abe Fortas: (Inaudible)
Gerald W. Getty: I don't think he was permitted to state whether he had gone in Southport.
Abe Fortas: On page 16, Mr. Pride says, “Are you known in the streets of Southport?” There is an objection of that and the Court says, “I won't have him answer that.” Now, did he ever answer anywhere else in the (Voice Overlap)?
Gerald W. Getty: No, he didn't.
Abe Fortas: What's all this trouble about Fishbait?
Gerald W. Getty: I stand corrected, it was Southport. I --
Abe Fortas: (Inaudible)
Gerald W. Getty: I had another case where it was Fishbait.
Abe Fortas: Well, that's -- this is this case. This is a Southport case.
Gerald W. Getty: Southport, yes.
Abe Fortas: But he weren't -- he never admitted his name. He was referred to as Southport, did he?
Gerald W. Getty: No, he never did. He never did. So here, Mr. Pride is using this nickname and probably it's something that he doesn't even know whether he was known by it.
Earl Warren: The Court refused that that was the question to be answered?
Gerald W. Getty: Yes. Now it has been indicated in some of the following cases which is the reasoning and we feel is the correct reasoning that we have approached this case in, and it's the Roviaro versus the U.S. , 1957 case, 353 U.S. and there where there was a witness and it was on the issue of guilt. It was determined that this was a material witness and that this witness should be disclosed. And there it was distinguished also that the -- on the -- where there's an informant on probable cause as to whether there was a good arrest. There the police officer, if has received information from this informant, then he would not have to disclose the name, the address, the identity of his informant. There we find a distinction between probable cause and where there is a question of the -- on the issue of guilt or innocence. Or there is an issue of guilt or innocence then the identity of this informer must be disclosed. Also in a recent case, the same distinction in the case of McCray versus Illinois decided March of 1967. There, that case was affirmed because it was found by this Court that it was on the issue of probable clause but that if it had been an issue where there -- an issue of guilt and this informer had been a material witness, then there should be disclosure of that informant. Also in the Alford versus the U.S. , 1931 282 Illinois, in that case where it was refused to disclose the address of a material witness. On that particular point alone, the case was reversed.
Potter Stewart: There was no mention of a -- the constitution in the Alford, was there? I looked it up the other day when I was preparing for this argument and I couldn't find any. Alford against the United States, 282 U.S.--
Gerald W. Getty: It has to do with --
Potter Stewart: It was not decided on a constitutional basis, was it?
Gerald W. Getty: It had to do with the cross-examination.
Potter Stewart: Yes, I think he stated the facts correctly --
Gerald W. Getty: Yes.
Potter Stewart: -- as a decision, but it was not put on a constitutional basis.
Gerald W. Getty: Merely on a stifling cross-examination.
Potter Stewart: It was a -- this Court as reviewing a federal conviction.
Gerald W. Getty: That's right. It is federal -- however in Pointer versus Texas, 1965 380 U.S. , there, this Court where they merely used -- didn't produce a witness but used his transcript, it was there decided that this was a constitutional violation. It wouldn't be due process.
Thurgood Marshall: How long did the trial last Mr. Getty?
Gerald W. Getty: I don't know. I think maybe possibly a day, a day and half. I'm not sure about that.
Thurgood Marshall: Well, assuming it lasted a day, and you got the full name, address of his witness, what good would that do except in (Inaudible)?
Gerald W. Getty: Well, it be -- surprised what you can do overnight.
Thurgood Marshall: I said assuming it was only one day, it wasn't any overnight.
Gerald W. Getty: Well, you can ask for time, if you get it, as for time, maybe 24 hours. You can't tell what you're going to discover when you have certain information. Enough and what that information, you can't tell what you're going to be able to disclose with that knowledge on cross-examination. I have found that out in the trial cases.
Potter Stewart: Mr. Getty, the record indicates that was a two-day trial, September 21 and 22, 1964?
Gerald W. Getty: Yes, I state it. I thought it was a day and a day and a half, two-day trial. Well, now though -- that is the issue Your Honors. It's a question of -- on a question of guilt that the identity, not only the production but the identity of the witness should be disclosed, where it's only on probable cause then it would not be necessary and that is the law, we know that, that the informer may not be disclosed.
Earl Warren: Mr. O'Toole.
John J. O'Toole: Mr. Chief Justice and may it please the Court. The issue that's presented in this case is actually revolves or is a takeoff from Rovario. The Rovario this Court held that where the testimony of an informant -- the merits of the case is necessary for the defense, that the informant must be disclosed. However, we don't think that this is a -- and I don't believe that the Court intended this to be a blanket, unfettered disclosure of all informants. I believe that it's needless to go into the importance of informants in the law enforcement field where necessity, actual necessity that we have this Court has recognized at that time and time again. But the fact remains that we fully admit that if the testimony, the identity of an informant is necessary to allow a defendant to properly defend themselves, we agree that his name and identity should be revealed. However, in this situation that we feel, and as the Court said in Rovario, each case should be considered on its own and the rights of the people balanced against the rights of the defendant. Now in this situation, the defendant took the stand was subjected to a full cross-examination, the majority of this transcript as a cross-examination of James Jordan, the only thing that his name and true address could have possibly brought out with facts relating to his credibility. And as Mr. Justice Stewart aptly put it, how could his credibility been more destroyed than that to say that I was convicted on larceny, spent a year Vandalia, I was in (Inaudible) for burglary, I am an addict, presently an addict, I had a shot last week, (Inaudible) even rolled up the man's sleeve and pointed out the pinhole marks in his arm in front of the judge. The judge observed this. He stated, “I am presently under indictment. I come up in one month for trial,” what more could you say? This man's credibility is already destroyed as far as it's possible. But the thing that the petitioner doesn't mention is that with the exception of the actual passage of the narcotics from Fleming Smith to James Jordan, every bit of a testimony of Fleming Smith was corroborated by two police officers.
Abe Fortas: Just suppose you could --
Earl Warren: Mr. O'Toole, may I --
Abe Fortas: Suppose you put him on the stand and put a mask, a hood on his head, is that alright?
John J. O'Toole: No, I don't believe so Your Honor.
Abe Fortas: What's the difference?
John J. O'Toole: I think there's a big difference.
Abe Fortas: That's what I want to know, what's that big difference?
John J. O'Toole: Alright. One is, if you put a mask over his face, you don't even know if that was the same person you came in contact. However --
Abe Fortas: (Inaudible)
John J. O'Toole: The defendant?
Abe Fortas: That he came in contact with.
John J. O'Toole: That he came in contact with (Inaudible) -- on a controlled sale of narcotics. Now, he knows --
Abe Fortas: But suppose you didn't see him at all.Suppose the transaction was such in which he just passed the money through a crack in the door or the window, and the narcotics was passed to him, then it'd be alright. That wouldn't -- an issue in the case, and then it'd be all right to put (Voice Overlap) --
John J. O'Toole: I think this -- that if gestational features are not necessary for the defense of the defendant, yes, I think you could put a mask.
Abe Fortas: Could it be alright to have in the Courts of the United States or state courts, persons taking the witness stand wearing a black hood with holes except for their eyes and a hole kept for his mouth and so he testifies in that fashion, do you really take that position?
John J. O'Toole: No, I can't really take that position Mr. Justice, right.
Earl Warren: Mr. O'Toole, let me ask you this question. Do you attach any of the constitutional distinction between the case where the counsel does not know the witness and where the -- a case where he have represent him here, is that material to the decision in this case --
John J. O'Toole: Oh!
Earl Warren: -- or are you asking us for (Inaudible) of that in your case, you'd still be here?
John J. O'Toole: We think that this is a very important factor in this case to point out and emphasize the fact that it was not necessary in this case for the state to divulge in the present address and true identity of this informant. Now the only decisions had actually have come down.
Earl Warren: Well, let me ask you then if it's important in this case, let me ask you. If it wasn't in this case, would you be defend -- here defending this procedure?
John J. O'Toole: Yes, I don't think -- that is a controlling factor.
Earl Warren: You don't' think it makes any difference constitutionally whether he knew him or not?
John J. O'Toole: Oh, I think it adds great weight to our argument --
Earl Warren: But --
John J. O'Toole: -- but I think --
Earl Warren: But you wanted -- you want an opinion from this Court to the effect that not with -- that even if the counsel had not known this man at all, that you would still have had the right to do what you did in this case?
John J. O'Toole: Yes, we do not contend that together with the fact of his destroyed credibility, the corroboration of his testimony and the fact that the attorney knew him, all three of these add to it but we can take away to one and we still have sufficient reason to say --
Byron R. White: Well, why do you want to -- what interest does the state got in this?
John J. O'Toole: The interest of the State of Illinois is, one, to protect the informant's situation and the informant --
Byron R. White: But wasn't he still known as Jordan?
John J. O'Toole: That was an alias.
Byron R. White: Oh, I know but wasn't he known as Jordan up and down the street?
John J. O'Toole: This I can't say. The record only divulges that he was sworn in as James Jordan.
Byron R. White: When he testified (Voice Overlap) --
John J. O'Toole: And he testified that this was his name.
Byron R. White: In other cases as Jordan, isn't it?
John J. O'Toole: He did not say that he testified under that same name.
Byron R. White: Well, he must have been known like something up and down the street? He was (Voice Overlap) --
John J. O'Toole: Oh, they know who he was. I mean just (Voice Overlap) --
Byron R. White: Well, but, what name was he known by? Well, once you surface an informant and he starts testifying, it seems to me that you've -- the interest in protecting the informer at least diminishes.
John J. O'Toole: Right.
Byron R. White: Once you -- and that's usually why you store up to 20 cases before you put them on the stand.
John J. O'Toole: Well, this is --
Byron R. White: And once he comes out, then the people who know it and especially if he testifies under a name that he's known by up and down the street, that's -- I don't know what the --
John J. O'Toole: Well --
Byron R. White: I wonder how much interest the states (Voice Overlap)?
John J. O'Toole: Let me say this that as far as the informant's situation goes, that once an individual does expose himself in court, he is open for retaliation. Now, the interest the state has is that if we don't do everything we possibly can within the constitutional guideline to protect the informant, we are not going to be able to get an informant. Now, let's just give the one example, at least, sure they know who he is. But maybe they don't know where he is today.Let's not give him his present address. They're not playing ball games. I was talking with Mr. Judge -- I mean, Mr. Judge (Inaudible). The other day, we sat in a Narcotics Court in Cook County for 5 years --
Byron R. White: But don't you think the witness should be forced whether he's an informer or not to give his address?
John J. O'Toole: If it's necessary for the defense, yes. In this case, I can't say --
Byron R. White: Yes, but that's (Voice Overlap) -- if automatically if a state's witness was asked his address. Don't you think that the defense is entitled to have it without showing that this is -- without showing anything? They want to check and find out about his reputation maybe or things like that.
John J. O'Toole: Under normal circumstances, I would say perfectly right.
Byron R. White: How about this circumstance?
John J. O'Toole: In this circumstance, I'd say definitely no.
Abe Fortas: Do you think a --
Byron R. White: You could say --
Abe Fortas: I beg your pardon.
Byron R. White: You could say that -- what you could really say is that this fellow, you shouldn't have to give any name whatsoever?
John J. O'Toole: I think an alias. This is --
Earl Warren: What is your answer to that?
John J. O'Toole: Excuse me.
Earl Warren: What is your answer to what Justice White just said?
John J. O'Toole: I haven't answered it yet Your Honor.
Byron R. White: Well, your case --
Earl Warren: You said something, I just (Voice Overlap) --
Byron R. White: -- you would -- I gather that you would say that when a state puts on a witness and that they don't need to ask him his name and if he's asked his name on a cross-examination, he doesn't need to give any at all, nor his address?
John J. O'Toole: Unless it was necessary for the defense -- for the defendant. This is not the normal situation that we have in a normal trial. What we have here is we have --
Byron R. White: Well, that -- is that enough to be -- to make it necessary that the defense would like to know who he is so that they could check on his criminal record --
John J. O'Toole: And I say that --
Byron R. White: -- under his right name, is it enough that they could check on his reputation in the neighborhood?
John J. O'Toole: For truth and veracity?
Byron R. White: Yes.
William J. Brennan, Jr.: Is it the --
John J. O'Toole: Here is a man (Voice Overlap) --
Byron R. White: Is that enough to make it necessary for the defense?
John J. O'Toole: But it depends upon the circumstances
Byron R. White: And he --
John J. O'Toole: He not --
John J. O'Toole: I know, but you don't want to bring in these other things now. Don't bring in the fact that this lawyer already knew because you want to put that aside. You've said you wanted it to put aside. And you want to rule that wholly aside from this -- what this lawyer knew. Now, let's just take it without -- what the lawyer knew. He doesn't know anything. And he doesn't know anything, the fellow gets up and says, “I won't give my name and I won't give my address”.
Thurgood Marshall: Can he say John Doe (Voice Overlap)?
John J. O'Toole: But he also justifies that I'm a convicted felon. I'm an addict.
Byron R. White: Yes. (Inaudible)
John J. O'Toole: I am presently under indictment. I'm being paid by the police. I think his credibility is pretty well attacked right there. What are they going to do? What are they going to find out with his present address --
Byron R. White: You might found that, you might find out that -- you might find out that he had a lot of fights with this defendant and was out to get him. He knew who he was, what his associations were.
John J. O'Toole: I think we had a lot of fights with the defendant was that the defendant can tell us the answer.
Abe Fortas: Let me --
John J. O'Toole: (Inaudible) he may have some --
Abe Fortas: -- will you assume for a moment, (Inaudible).
John J. O'Toole: Go ahead.
Abe Fortas: Will you assume for a moment that you are a counsel for Mr. Smith in this criminal case, regardless of what you might know about a witness, is it or is it not your duty as a lawyer to make an investigation of that witness?
John J. O'Toole: Yes, that's --
Abe Fortas: Now how can you make that investigate -- if that is so that the fact that this lawyer knew something is immaterial, how can a lawyer discharge his duty to his client to make an investigation if he doesn't know the witness' name?
John J. O'Toole: The point that is in this case is that the name and address can lead to only one thing, destruction of credibility and that in this instance, it was not necessary because its credibility was shattered as far as it could possibly go.
Abe Fortas: Well, that -- lawyers don't operate that way. You don't operate that way. You don't say that, “I know XY and Z about a fellow and I'm going to bring that out in court and that will destroy his credibility and I don't have to know anything more”. That's not the way lawyers suppose to go about the performance of his duty, is it?
John J. O'Toole: There are rules, and privileges, and rights that exist with the people too. And that in this situation, we have a governmental privilege that has been engrafted since the first case, I think it was a treason case, Thomas Hardy in England 1792, that the state, the government has a right for your benefit -- for my benefit to protect informants so we have a flow of information.
Thurgood Marshall: Even after you produce him in court?
John J. O'Toole: Yes, I'd say. I think we ought to do everything possible to protect informants, if we don't --
Thurgood Marshall: Well, why didn't --
John J. O'Toole: -- the system is going to breakdown.
Thurgood Marshall: Do you go for a system that would say you put the witness on the stand and he says, “My name is John Doe.”
John J. O'Toole: Yes, if --
Thurgood Marshall: And do you say that this --
John J. O'Toole: His true name is not necessary for his defense, I submit (Voice Overlap) --
Thurgood Marshall: You say that his credibility couldn't be further destroyed? What about --
John J. O'Toole: Oh, I think it would be cumulative -- any evidence that was (Voice Overlap) --
Thurgood Marshall: Well, what about they get his right name and they found he's been convicted of perjury, that would hurt a little more, wouldn't it?
John J. O'Toole: I think that'll hurt a little bit more but it's cumulative, really. Oh, this is a situation where we have to balance the rights. This isn't a situation where the state is merely refusing to do it, to try to convict someone.
Thurgood Marshall: Well, I think if you --
John J. O'Toole: We're trying to protect the system.
Thurgood Marshall: I would respectfully suggest that if you're balancing rights, when you first put him on the stand, you should have told the Court that this man's name is not James Jordan.
John J. O'Toole: I agree with you that its -- that if perhaps it was an alias, I can see no harm in it at all.
Thurgood Marshall: But don't you think your duty bound to do that? The man's under oath and testifies that this is my name and really is not his name.
John J. O'Toole: Yes, I agree. You're right, Your Honor.
Thurgood Marshall: I mean, you're balancing these things and then you balance them all under the (Inaudible).
John J. O'Toole: A situation that is similarly akin to this is a situation of where a person might invoke the right of self-incrimination in a trial. And the Federal Courts of Appeals have consistently held that where a witness, a governmental witness, invokes self-incrimination, and his testimony which is -- which he invokes the privilege, only goes to credibility that the error created is only harmless. Now this is the Cardillo case in a -- spells this out, has been followed consistently by nearly every Circuit Court.
William J. Brennan, Jr.: You don't really mean that there's no distinction between two of those cases?
John J. O'Toole: Oh, I think there's a little distinction there.
William J. Brennan, Jr.: A little --
John J. O'Toole: I think that --
William J. Brennan, Jr.: A little.
John J. O'Toole: I think that --
William J. Brennan, Jr.: Oh, heavens.
John J. O'Toole: I think that there's a corollary between the two. True, the governmental privilege is not a constitutional right.
Byron R. White: I think that's quite a difference, isn't it?
John J. O'Toole: Right. But it is not a mere evidentiary matter and a procedural matter. I think that the governmental privilege is something that shouldn't yield too easily, and I fully agree and I don't --
Earl Warren: Are there not cases where a defendant or a witness on the stand rather has been convicted of contempt and put into jail for refusing to tell what his name is or where he lives?
John J. O'Toole: There are.
Earl Warren: Then how do you distinguish those cases from this? Even though he claims a privilege?
John J. O'Toole: Even though he claims -- the situation is not the same. In those situations, we don't have --
Earl Warren: Why not, a witness is a witness, isn't he?
John J. O'Toole: That's right Your Honor.
Earl Warren: And whether he's a witness for the government or a witness for the defendant, isn't that right?
John J. O'Toole: That's right Your Honor.
Earl Warren: And whether he's an informant or whether he's just an observer, he's a witness, as a witness, --
John J. O'Toole: Right.
Earl Warren: -- isn't he?
John J. O'Toole: Right.
Earl Warren: Alright then, what's the distinction?
John J. O'Toole: The distinction is here is that you and I and the other 200 million people in this country collectively have a privilege to protect the informant's situation unless it is necessary for the defense of this individual defendant.
Byron R. White: How do you prove that? How does the defendant ever prove that except saying I'd like to know something about this fellow, I can at least know his name so that I can carry on a meeting for cross-examination, that isn't enough of a showing? What would he ever have to show?
John J. O'Toole: What has -- the defendant here --
Byron R. White: I suppose, if you could make that showing, why, your answer would be, “Well, you don't need to cross-examine him anyway”. You already have the facts.
John J. O'Toole: No. I think that on the facts in this individual case, we are really asking two things. One, let's not have a blanket rule. Let's not have a universal principle that where we have a participating informant that he must in all situations divulge his name and his present address. But rather, that in keeping with the language of this Court in Rovario, each case should fall -- arise on its own merits. I think it would --
Byron R. White: Well, if --
John J. O'Toole: The Court said this, “We believe that no fixed rule with respect to disclosure is justifiable”. The problem is when it calls for balancing of the public interest and protecting the flow of information against the individual's right to prepare his defense. We ask two things. Truthfully, if you reverse this case on the basis of the fact situation, that would be a loss. But it would not be damaging. What we want, and what we want to take back in Illinois and I think for the benefits of all the states is the fact that where no -- we don't want a universal rule in such where we have a participating informant, there must just be complete unfettered cross-examination even where it will not be beneficial to the defendant. In this situation, what could they have learned really? They could affect his credibility. And --
Byron R. White: What's wrong with --
John J. O'Toole: And anything that he do, it just pile more to it.
Byron R. White: But nobody has unfettered cross-examination rights anyway.
John J. O'Toole: Well, I'm -- excuse me for going beyond the realm. But what I'm talking about is that we are -- if -- I believe there are situations where the name and the present address really aren't going to be that helpful to the defendant. Where on a (Inaudible), if we can protect the name and the present whereabouts of an informant, we are bolstering the whole system because we are showing these people that we are going to do everything we possibly can to protect them.
Byron R. White: But you don't want a rule then -- it says that an informant never has to give his name (Inaudible).
John J. O'Toole: No. Oh, I'm not asking for that. I think that would be unreasonable. What I'm asking for is that we get -- that don't have a rule which says that he must in each case regardless of the circumstances the facts what is brought out in the cross-examination that he be required to give his name and present address. He might not make it until --
Byron R. White: Well, why shouldn't the states -- why shouldn't -- it should be on the other foot, if the states are going to serve this -- an informant and put him on the bench, so why shouldn't the state have to come up and give some pretty solid reason if it wants to interfere with what -- what the words would be cross-examination, “What's your name and where do you live?” Why shouldn't the state has to come up and say, "Now, look there are some -- that there are some real hazard to this informant, and here's what it is", instead of just saying --
John J. O'Toole: Oh, I -- oh, perhaps I assumed too much but I thought this Court was well-aware of the fact that what does happen --
Byron R. White: Well, I'm well informed. Frankly, I'm quite aware of what happens to informants but I'm -- but I -- I'm not so aware that if the -- that once you put them on the stand, that you're going to protect them very much by not having him --
John J. O'Toole: Correct.
Byron R. White: -- give his name.
John J. O'Toole: I agree with --
Byron R. White: I think you -- going to have to explain that a little bit as to why --
John J. O'Toole: I agree with your point but (Voice Overlap) --
Byron R. White: But -- what -- how the hazard is enhanced when you make him give his name very especially when the --
John J. O'Toole: All that --
Byron R. White: -- when the fellow is obviously using a name by which he -- and gives a name by which he's known as up and down the street, Jordan.
John J. O'Toole: Let's give him every break we can. At least let's do that.
Earl Warren: (Inaudible)
John J. O'Toole: Oh, I mean try to hide his identity and his present whereabouts, let's do that --
Byron R. White: Wherever he is (Voice Overlap) --
John J. O'Toole: (Inaudible)
Byron R. White: Everybody knows where he is.
John J. O'Toole: Well, he's in the courtroom now, but where is he's going to be at 5 o'clock or 10 o'clock tonight. This is the problem. But I agree with you, that once he exposes himself, that's a -- he has subjected to -- through this retaliation but let's give (Voice Overlap) --
Thurgood Marshall: He changed it when he testified three or four times, he just makes a habit of testifying?
John J. O'Toole: I don't think he could buy an insurance policy Your Honor, that's for sure. But I do believe this, that there are informants that are useful two, three, four, or five years, some of them. Some of them move. Some of them voluntarily assign themselves (Inaudible) if they're an addict. And there are cases of informants that do not befall this horrible fate as befall so many of them.
Abe Fortas: What about a prosecutor who puts a person on the stand and permits him to give a false -- a name that is false in which the prosecutor knows it's false?
John J. O'Toole: I think he should divulge in the Court.
Abe Fortas: That wasn't done here, was it?
John J. O'Toole: I know.
Abe Fortas: Sir?
John J. O'Toole: I know that Your Honor. Fortunately, it was brought out. I mean, the Court was aware of it. It was brought out in cross-examination.
Earl Warren: Do you mean that (Inaudible) of the prosecutor was brought out?
John J. O'Toole: No, no. I know I don't (Voice Overlap) --
Earl Warren: Well, wasn't it (Inaudible) if they put a man on the stand and have him say that his name was Jordan but it wasn't Jordan.
John J. O'Toole: Maybe the prosecutor thought that was his real name. This is a funny situation but if you have a witness or an informant --
Earl Warren: And if he thought it was --
John J. O'Toole: -- he has to prosecute --
Earl Warren: -- his true name, -- if he thought it was his true name, why would he object to the defense asking him what his true name is?
John J. O'Toole: Because to protect the identity of the informant.
Earl Warren: But if he thought it was his true name, why wouldn't he let him say, “Yes my true name is Jordan”.
John J. O'Toole: He probably didn't want the petitioner to know who this man really was.
Earl Warren: Do you --
John J. O'Toole: I --
Earl Warren: Alright.
John J. O'Toole: I know, Your Honor, it's -- I mean, here's the point, if were the prosecutor and the witness might tell me his name is James Jordan. I might believe him. I might not believe it. I have no way of really knowing if that is his name --
Earl Warren: Well, then you have --
John J. O'Toole: -- especially an addict.
Earl Warren: By the same reasoning, you have no reason to believe that this man didn't tell the counsel for the defense that his name was Jordan when he represented him on a prior case?
John J. O'Toole: I think we have to assume that Mr. Martwick conducted himself as a proper attorney in that -- therefore I have to assume at least that the -- he didn't know that James Jordan was not his actual name.
Earl Warren: Then don't you assume also -- do you assume also that the counsel for the defense probably thought his name was Jordan too?
John J. O'Toole: Counsel for the defense knew him. Counsel for defense probably knew his right name because he had represented him before. That's the --
Earl Warren: Yes. Well, --
John J. O'Toole: It's the fact (Voice Overlap) --
Earl Warren: Is this another prosecutor really represent him when he was a paid agent, and an ex-convict charged with -- also charged with narcotics violations, and he in this preparation of the case wouldn't he know him just as well as the defense counsel would know him in representing him when he was charged with the crime?
John J. O'Toole: I don't believe so Your Honor. The situation in Cook County is such is that -- in the state attorney's office and attorney might have -- you know, one trial right after another. He dropped one file, pick up the next and the --
Earl Warren: Some lawyers do that too, --
John J. O'Toole: In the (Voice Overlap) --
Earl Warren: -- from police courts. I have seen them, many, many years. I know they do that.
John J. O'Toole: (Inaudible)
Earl Warren: They take them right out of this room and represent them and --
John J. O'Toole: Right. But it's very difficult sometimes to adequately talk to your witnesses prior to the presentation of your case. The case load is so tremendous at Cook County that this is a real problem as the -- but I cannot assume that Bob Martwick did not conduct himself in a proper way. And I truthfully, I mean, having been (Inaudible) myself for a while, I really -- if somebody tells you, “My name is John Jones”. That's John Jones. I don't know who he is. I mean, I can't -- I'm -- true, as if you put a witness on a stand, you're vouching for his credibility but how do you really know? You don't.
Earl Warren: You're also vouching for the truth and what you're saying --
John J. O'Toole: Right.
Earl Warren: -- so far is you know it, aren't his name?
John J. O'Toole: That is right Your Honor.
Earl Warren: Yes. And he says his name is Jordan and it isn't, doesn't that go to the truth of his testimony?
John J. O'Toole: I think it affects his credibility.
William J. Brennan, Jr.: The informant --
Earl Warren: Can I -- irrespective of the question of credibility, why isn't this man on the question of guilt or innocence entitled to know whether this man is Jordan and where he lives, and what his contact has been so far as this case is concerned? Why isn't the man entitled to know that?
John J. O'Toole: If it's going to help him, yes, he isn't.
Earl Warren: I beg your pardon.
John J. O'Toole: If it is going to be of aid to the defendant, yes. If it isn't going to be merely to add more weight to the -- to his already practically destroyed credibility, then let's balance that against the rights that we possess.
Earl Warren: Well, let's just suppose that there are two gangs of narcotics federation in Chicago, I guess that he is at that time, and suppose this man belong to one and this witness, Jordan belong to another. And if his name, true name, and his identity were known that they could establish that this man was working with the other gangs to put the -- this man out of business, wouldn't that be a material in the trial -- the cases?
John J. O'Toole: I think so Your Honor, but I think there's --
Earl Warren: Well, why (Voice Overlap) --
John J. O'Toole: I think there's only one --
Earl Warren: Let's --
John J. O'Toole: -- source of narcotics.
Earl Warren: One source of narcotics in Chicago?
John J. O'Toole: I think so.
Earl Warren: Do you mean all -- it falls, all of it comes from one source --
John J. O'Toole: The seller on the street is normally an addict. The people that are taking the profit out of narcotics never go down on the street and actually sell the $5-bag went up to $16, these people aren't and --
Earl Warren: You too, don't you know that it's not uncommon for one narcotics operator to even murder the other operators in the same business?
John J. O'Toole: Yes.
Earl Warren: Or -- who are trying to takeover or who do have the major control of it. Why do you say to us that there's only one group?
John J. O'Toole: Oh, I think it is -- I think the syndicate is the sole -- real supplier of narcotics.
Earl Warren: (Inaudible)
John J. O'Toole: Sure there are a few independent small operators that might run some in from Mexico, marijuana or something but the --
Earl Warren: Yes, well, this is a small man. This is a small man too. He might have been in conflict with other small operators.
John J. O'Toole: This man was selling narcotics because he was supporting a habit and that's exactly why he was selling narcotics, Fleming Smith.
Earl Warren: A very, very small operator?
John J. O'Toole: Right, I agree. But I cannot argue against the fact that if in a given situation, the name and present address are necessary to the defendant. I'd say that the state should be required to reveal his identity.
Earl Warren: Who is entitled to make the determination as to whether information concerning witness is necessary in the preparation of the case?
John J. O'Toole: Oh, I think this decision has to be made at the trial but the trial have to (Voice Overlap) --
Earl Warren: I didn't ask about this decision, who's -- who is entitled to make that decision as to whether that information is required in the preparation of the case?
John J. O'Toole: Oh, I think the state would always take the position. They will try to take the position that we don't have to reveal it.
Earl Warren: I didn't ask you that. I asked you who's entitled to make the decision for the purpose of the trial as to what is necessary for the purpose of the cross-examination of a witness.
John J. O'Toole: I don't think that the decision lies totally within the defense or I don't think it lies --
Earl Warren: I beg your pardon?
John J. O'Toole: I don't think it lies totally with the defense or with the prosecution. I think the decision has to be made at trial during cross-examination by the trial judge when he is evaluating the facts that have been elicited on cross-examination. And then he is the one who has to make the ultimate determination on whether he should allow the governmental privilege to be invoked or whether the name and present address should be given to the defendant because it'll be of aid to him in his defense.
Earl Warren: Very well.
John J. O'Toole: Thank you very much.
Gerald W. Getty: Briefly to answer Mr. O'Toole, it's our position and has been our position in the brief that once the state has produced a witness that they lose any governmental privilege. And that to make the Sixth Amendment meaningful and that we have a right to know the witnesses that are presented against the accused, to make it meaningful, then we -- it is basic that we should at least know the name and address of the witness presented against the defendant as to who is to decide whether what to do with the name and the address, what to investigate should lie with the defense so that we can properly defend the man that is accused.