William H. Rehnquist: Mr. Cunningham, you may proceed whenever you wish.
Richard E. Cunningham: Thank you, Mr. Chief Justice, and may it please the Court: The issue in this case is whether the state's use of a preclusion sanction as to relevant probative testimony of a defense witness in order to enforce its discovery rules violated the compulsory process clause of the Sixth Amendment. On the second day of a four day jury trial, defense counsel sought to amend his list of witnesses to include the witness Alfred Wormley. The trial judge reserved his ruling on this request until the following morning. At that time, the court ordered that the witness testify under oath as an offer of proof outside of the presence of the jury. The witness' testimony was subjected to cross-examination by both the prosecutor and the court. After hearing this testimony and arguments, the court found that there had been a blatant and willful violation of the discovery rules. The court ordered that the witness be precluded from testifying stating, "I feel that defense attorneys have been violating discovery in this courtroom in the last three or four cases blatantly, and I am going to put a stop to it, and this is one way to do so. " He further remarked that he was considering reporting the defense attorney to the disciplinary commission, and that he did not think that any attorney should violate any orders purposefully to get an edge for his client. It is our position that the court's exclusion of the witness was arbitrary and that it violated the Sixth Amendment. Although there is a serious question as to whether the preclusion sanction would ever be constitutionally permissible, all parties are in agreement at the very least that before the sanction may be employed that a balancing test must be used to determine whether the state's interest in using preclusion outweighs the defendant's right to present his defense witnesses. The balancing test that we urge this Court to adopt is the one that has been employed by the vast majority of lower courts addressing this issue. That test begins with a presumption against exclusion of otherwise admissible defense evidence. The presumption is required because the integrity of the judicial system depends on a full and fair disclosure of the defendant's version of the facts as well as the state's, so that the jury may be decide where the truth lies.
William H. Rehnquist: Well, the integrity of the system depends to a certain extent to one complying with rules of court requiring you to give lists of witnesses.
Richard E. Cunningham: That is correct, Your Honor. And we have to look at the intent of the discovery rules. The main intent of the discovery rules is to prevent surprise for the other party. And when the rule has not been complied with, we feel that the proper steps that a court should take is to see that the other party be made whole in terms of surprise.
William H. Rehnquist: Would that be a continuance?
Richard E. Cunningham: It would depend upon the circumstances of the case, Your Honor.
William H. Rehnquist: Certainly, the prosecution never wants a continuance in a criminal case. A continuance usually is almost entirely for the benefit of the defendant.
Richard E. Cunningham: Well, I would point out in that regard that in Illinois that there is a long line of cases that were the state has violated the discovery rules and seeks to now put what would be termed a surprise witness before the court that if the defendant simply objects and asks for a preclusion and the court then admits the testimony, on appeal the defendant has waived his right to appeal if he has not requested a continuance. Because the courts in Illinois hold that that is conclusive evidence that the defendant was not prejudiced by the admission of the testimony, since the defendant did not even indicate that he needed a continuance to prepare for that witness' testimony. I am not saying that a continuance in every case would be the proper remedy. Certainly, in the instant case, I do not think that the state even needed a continuance here. Once it heard what the witness' testimony was going to be, it then had before it and knew what witnesses it needed in order to reflect that testimony.
William H. Rehnquist: So you are saying in effect that you could flagrantly, as the trial court finds, violate the rules of the court and nothing would happen?
Richard E. Cunningham: No, Your Honor, I am not saying that. I am saying that--
Antonin Scalia: At worst you get thrown into the briar patch, that is you get a continuance.
Richard E. Cunningham: --I am not saying that either, Your Honor. Again it would depend on each case. I certainly believe, again to get back to the facts of this case, that no continuance was required at all in order to make the state whole. The Illinois discovery rules, I might point out, provide that a continuance is one of the remedies. But another remedy is that the other party be put on notice as to what the material is that needs to be discovered. In this case, we had the perfect remedy. We had the state hearing under oath what the testimony of that witness was going to be. We had the state able to cross-examine that witness.
Antonin Scalia: What about getting other witnesses to impeach that witness?
Richard E. Cunningham: That is correct, Your Honor.
Antonin Scalia: That would have required a continuance, would it not?
Richard E. Cunningham: Not in this case, Your Honor. In this case, the witness testified that he had observed and heard the state witnesses plotting to go after Ray Taylor in this case, and that he had observed the state witnesses with pistols. Those were the very witnesses present at court that day testifying for the state.
Antonin Scalia: What about getting other people to come in and say that this man is a congenital liar, other people who knew this witness?
Richard E. Cunningham: Well, Your Honor, certainly if the prosecution believed that they had other evidence that needed to be investigated, they could request a continuance.
Antonin Scalia: And the only way to get that sort of evidence would have been a continuance.
Richard E. Cunningham: Well, our argument here, Your Honor, is that the burden should be on the state. The state is seeking to preclude the defendant from presenting a witness. That is a constitutional right provided to the defendant.
Antonin Scalia: If you are in violation of the rules, and the burden is on the state. That seems strange.
Richard E. Cunningham: We believe that the burden is on the state, Your Honor, because it is the state that is seeking to preclude the witness from testifying. Now as the rules themselves provide, exclusion is not the only remedy. The committee comments to the rules and notes that there might be constitutional problems if the defense was precluded from presenting a witness.
Antonin Scalia: Suppose you come up on the day of trial with hearsay testimony, and the judge says I am not going to let this in because it is hearsay. Would you make the argument, well, it is important evidence, you have to give me a continuance so that I can go and get the fellow who really said it so that it will not be hearsay anymore; you would not expect to get a continuance for that, would you? You have simply violated the rules of the game by trying to introduce hearsay evidence which is not reliable enough, and the court says I am sorry, we are going to move ahead. Would you expect a continuance to be able to go and get the original declarer? You would not.
Richard E. Cunningham: My answer is that the court should endeavor to ensure that the defense is able to present its witnesses.
Antonin Scalia: In that hearsay case, you would expect a continuance?
Richard E. Cunningham: Well, it would depend. If the defense had never gotten a continuance in the past and if it was only going to be a one day continuance, I think that it would be an abuse of the Court's discretion and a violation of the Constitution to not grant that continuance.
Thurgood Marshall: Mr. Cunningham, what do you do at the point where the court says you have been doing this over, and over, and over again and I have got to stop it?
Richard E. Cunningham: Well, that is exactly what the judge said here, not to that counsel personally, but he said that it had been happening in his courtroom over and over.
Thurgood Marshall: The way that I read it he was talking about that lawyer.
Richard E. Cunningham: Well, he said that this had happened in three or four other cases. I do not think that he was talking about that counsel. There is no indication in the record that he was. He mentioned that it had happened in other cases previously. Our position is that the remedy that he contemplated and then abandoned would be the appropriate remedy in that case. And that is that he was considering reporting the attorney to the disciplinary commission. We feel that disciplinary sanctions of the attorney is the appropriate remedy where the court is seeking to deter other attorneys from failing to comply with discovery rules.
John Paul Stevens: Would the case be different constitutionally if instead of the attorney that it was the defendant himself who had just not brought forth this witness until the last minute because he is afraid that he might have been intimidated, or maybe he intimidated the witness and did not want to identify him until right before trial?
Richard E. Cunningham: I think that the case may well be different, Your Honor. There are other factors to consider too. But the case... it could well be that if the defendant himself was the one who had brought about this delay purposefully in order to inject what appeared to be perjured testimony, that if you combined that with evidence in the record that the state was going to be prejudiced and was not going to be able to be prepared through the use of other sanctions, then perhaps the preclusion sanction would be appropriate. We certainly do not have that in this case.
John Paul Stevens: You do not take the position that the preclusion sanction is never appropriate?
Richard E. Cunningham: Well, we have taken that position in our brief.
John Paul Stevens: But you just seemed to be abandoning it.
Richard E. Cunningham: Well, we have taken that. And we are taking as our second position that even if it is not appropriate that the balancing test must be employed in which there is a presumption against preclusion.
John Paul Stevens: But your more extreme position that it is never an appropriate sanction would require us to even allow the defendant to play games with the court?
Richard E. Cunningham: Well, as I pointed out in Braswell v. Wainwright, the Fifth Circuit suggested that perhaps if it were so flagrant that could be construed as a knowing and intelligent waiver by the defendant of his Sixth Amendment right to present witnesses and that would be approached in this Court.
John Paul Stevens: And you are saying that this kind of waiver could be made on behalf of the defendant by his counsel?
Richard E. Cunningham: No, Your Honor. I believe that the recent Second Circuit opinion in Escalera v. Coombe and the Ninth Circuit opinion in Fendler v. Goldsmith are correct on this point, that it is fundamentally unfair to put upon a defendant, an innocent defendant, his counsel's bad faith in this situation. Because another reason for that would be, as this Court recognized recently in Rock v. Arkansas in citing Ferata v. California, that this Court noted that the right to compulsory process is a personal right to the defendant and is not a right of counsel. The test which we propose begins with a presumption against exclusion of otherwise admissible defense evidence. The presumption is required because the integrity of the judicial process... I am sorry, I mentioned that. The denial of the defendant's right calls into question the ultimate integrity of the fact finding process, and requires that the competing interest be closely examined. Maximum truth gathering rather than arbitrary limitation ought to be the goal. Put another way, the presumption against exclusion puts the burden on the state to demonstrate a compelling interest which requires the denial of the right.
Antonin Scalia: It sounds to me like the inquisitorial system, not the adversarial system which we have. I mean you have a system in which each side.
Richard E. Cunningham: Exactly, and that is the truth gathering system that I am referring to. That both sides ought to be able to present their full case.
Antonin Scalia: Subject to certain rules. And sometimes you break a rule like if you try to introduce evidence that is unreliable because it is hearsay, and it is simply excluded.
Richard E. Cunningham: That is correct, Your Honor.
Antonin Scalia: And here what the court was saying is this evidence is unreliable, because it has not been subjected to the testing process that our requirements of advance notice provide for. Since it is unreliable, I am excluding this.
Richard E. Cunningham: No. That was not the basis for the court's ruling. I read the basis. The main basis for the court's ruling was to act as a deterrent in other cases.
William H. Rehnquist: So that the system would work in other cases, that advance notice and ability to check out witnesses would occur in those cases.
Richard E. Cunningham: But if that test is going to be applied, if it is going to almost be a per se preclusion every time the defense violates discovery such as it did in this case, then we are not recognizing any longer the importance of the Sixth Amendment right.
William H. Rehnquist: Well, the Sixth Amendment right is such as the Justice suggests to rules of evidence. A defendant cannot simply come up with any piece of evidence that he feels is relevant and say, look, the Sixth Amendment guarantees me the right to place this before the jury. It is all subject to an elaborate system of rules.
Richard E. Cunningham: That is correct, Your Honor, but I do not think that the rules take precedence over the right. Certainly, the right is above it. In any event, I think that when anyone is seeking, as the state was seeking here, to abridge that right that the burden has to be on the state to show that there were no other remedies to make the state whole. And here the state has totally failed to do that. It never argued in the trial court that it was not prepared to meet Mr. Wormley's testimony once it had heard that testimony. And our argument is that the burden is on the state. If it is seeking to abridge the Sixth Amendment right, it has to demonstrate that there is a compelling interest on the other side for the abridgement. To do that, the state had to show that it could not have met that testimony. There were other effective remedies that would have fully met the intent of the discovery rules here.
Sandra Day O'Connor: Mr. Cunningham, may I inquire, please, when the compulsory process claim was presented to the courts below? I have no found any reference to it.
Richard E. Cunningham: There was an exception taken in the trial court, and it was noted in the post-trial motion. In the appellate court--
Sandra Day O'Connor: Well, but never under the rubric of a compulsory process claim?
Richard E. Cunningham: --That is correct. In the appellate court, the state is arguing that this court does not have jurisdiction on the ground that the issue we raised below is a different issue than the one that we are raising here.
Sandra Day O'Connor: And it did seem to be. I just wondered i you had any comment.
Richard E. Cunningham: Yes, I do. The state does not question that we preserved a due process claim.
Sandra Day O'Connor: Right.
Richard E. Cunningham: In the appellate court, we cited the due process clause. Not in our original appellate brief, we did not specifically cite either the Sixth Amendment or the compulsory process clause. However, we did cite Washington v. Texas and Chambers v. Mississippi, two compulsory process clause cases as our main authority along with an Illinois case, People v. Rayford, which the Solicitor General has agreed is a compulsory process case. Our position is that the case law of this Court makes clear that the question is whether the substance of the federal claim below is the same as the substance of the federal claim presented here, and our position is that it was. We did in fact cite the Sixth Amendment in our rehearing petition to the appellate court, and then we cited it in our petition for leave to appeal to the Supreme Court. But as I said, the case law makes it clear that it is a question of the substance of the federal claim, and we did not have to cite book and verse on the Constitution. We did properly preserve the claim by citing the due process claim.
John Paul Stevens: But you did not really make a constitutional argument to the trial judge at the time of his ruling, you did not say that there was a constitutional requirement of the balancing test?
Richard E. Cunningham: At the time of his ruling, the defense attorney did not, but the state has not contested that. There was no issue raised in the appellate brief that the issue had been waived certainly. And when I orally argued the case, there was no question.
John Paul Stevens: But what I am really suggesting is, I am not suggesting, that technically there is not jurisdiction. But you are in effect saying that the trial judge committed constitutional error because he did do a balancing test that he was never asked to perform. The trial lawyer said, well, you have got to balance my interests against the other.
Richard E. Cunningham: Your Honor, our position is that it is not the burden of the client, not the burden of the defendant, I am sorry, to impose upon the court that balancing test. The court has that duty.
John Paul Stevens: In doing the balancing under your view, would the judge's doubts about the credibility of the witness be a factor that he could weigh, and here the judge did express such doubts?
Richard E. Cunningham: He said, for what it is worth, he expressed some doubt about a portion of the credibility.
John Paul Stevens: That part of his testimony is inherently improbable.
Richard E. Cunningham: No, Your Honor. It is our position that the credibility of the witnesses is for the jury to determine. This Court has made that clear time and time again in Rock v. Arkansas, and Chambers v. Mississippi.
William H. Rehnquist: What about harmless error?
Richard E. Cunningham: Well, Your Honor--
William H. Rehnquist: I mean if one were to find that there may be a violation of a compulsory process clause say in a hypothetical case, but the witness' testimony was so tangential or so minor that it could not possibly have affected the outcome, certainly that sort of a review for harmless error would be permissible, would it not?
Richard E. Cunningham: --I do not believe that in the trial court that should be permissible, frankly. But I believe that certainly there is a harmless error analysis to any of these case, I would agree.
William H. Rehnquist: An appellate court reviewing your claim could say true, there was a violation of the compulsory process clause, but it was just harmless error.
Richard E. Cunningham: There is no question about that. But the standard would be harmless beyond a reasonable doubt, as it is in Schneble v. Florida. In this case though, to get to the balancing test if we can for a moment, keeping in mind that there should be a presumption against preclusion in applying the test.
Thurgood Marshall: And also a presumption in favor of the rule.
Richard E. Cunningham: Your Honor, the rule that we are talking about--
Thurgood Marshall: You have got two presumptions here. One is the rule is good unless you say it is bad, and you have to prove that it is bad.
Richard E. Cunningham: --The rule that we are talking about--
Thurgood Marshall: So you are going to put the burden on the state to prove that it is good, how do you do that?
Richard E. Cunningham: --The Illinois statute, the Illinois discovery statutes, do not require preclusion, Your Honor. The Illinois statute--
Thurgood Marshall: But the judge does.
Richard E. Cunningham: --Well, that is our argument.
Thurgood Marshall: That is the rule.
Richard E. Cunningham: That would be a mechanistic approach. That would be a totally arbitrary rule to just exclude. Every time that the defense violates discovery, to exclude the witness would be a mechanistic approach. As I say, there is a long line of Illinois cases where the state violates the rule, where if the defendant only objects and asks for preclusion and the judge goes forward and allows the witness to testify, that the courts on appeal then hold that there is no error. They hold that because the defense failed to ask for a continuance that is conclusive proof that there has been no prejudice.
Thurgood Marshall: But the defendant did not ask for that in this case.
Richard E. Cunningham: No, it was the state who failed to ask for a continuance or failed to demonstrate in any manner that it was going to be prejudiced in this case.
Thurgood Marshall: Well, did defendant have no responsibility at all?
Richard E. Cunningham: Your Honor, to put it on the defendant would be very difficult, because he does not know what position is in in terms of prejudice. The defendant would not be able to articulate to the court why it is that the state is not prejudiced or why it is that the state does not need a continuance. It is up to the state who is seeking to preclude. If you look at the colloquy, it was the state arguing very strongly that this witness should be precluded because of a flagrant violation of discovery. It should have been the state's burden to articulate to the court why it was that lesser sanctions would not apply here.
Thurgood Marshall: I do not see where you shift the burden here. I think that the burden, of course, is on the state to prove its case, but there is also a shift in responsibility when the rules say that you should do this and you do not do this.
Richard E. Cunningham: Well, I think that we should look at the intent of the rules. The rules are not just set up to be applied in a mechanistic fashion. The rules are set up to ensure that neither party will be surprised, that both parties can prepare for the testimony of the other side's witnesses.
John Paul Stevens: But there is really more than that at stake, it seems to me, there also. In every case, when you get your witnesses in the courtroom and you have got the jury in the box and you are all ready to go, and then something like this happens, and there is a request for a continuance, automatically there is prejudice to the whole process, if you have to send everybody home and you do not know whether you will get the witnesses back three days later. There is inherently prejudice in every case with a last minute continuance, is there not? And plus after, you have to verify the man's story.
Richard E. Cunningham: I think that we have to maybe measure what the quantum of prejudice is when you say that in every continuance there is prejudice. There are continuances in jury trials in Cook County day after day after day after day and in the middle of trials too, I might add.
John Paul Stevens: I know, and they are not a healthy thing.
Richard E. Cunningham: So I think that we have to take a realistic view. I mean the point is that the defense is being precluded from presenting relevant probative testimony, as was done in this case, and I think that you have to weigh that against whatever prejudice there will be. The point that I am trying to make is that in this particular case that the witnesses needed to rebut Mr. Wormley's testimony. Maybe if I could briefly discuss what the testimony was. The issue in this case was a credibility question of who shot the complaining witness, Jack Bridges. The state's witnesses were Jack Bridges and his three relatives. They stated that Ray Taylor had shot him during a fight that Mr. Bridges and his relatives were having with Ray Taylor and his friends. The defense presented two witnesses, two eyewitnesses to the event, who testified that Ray Taylor was not armed during the event, that it was Jack Bridges' brother who fired shots into the crowd trying to protect Jack Bridges and who shot Jack Bridges. Mr. Wormley, also I might add that Bridges and Bethany, his brother, had both testified that they were unarmed on that night. Mr. Wormley, the excluded witness, would have testified that prior to the incident sometime earlier in the evening that he joined a group of people including Jack Bridges and his family on the porch of Bridges' sister. He had observed Bridges handing a blanket containing two pistols to his girlfriend. And he had further overhead Bridges and his family discussing how they were going to go after Ray Taylor. Now this testimony was very crucial to the defense. Number one, it corroborated the other two witnesses, and it was an independent source of corroboration in that it occurred at a different time and at a different location. Number two, it directly rebutted the testimony of Bridges and Bethany that they were unarmed on that night. And number three, it added an element to the defense's case which was totally lacking, and that is the element of planned aggression on the part of Bridges and his family. So this testimony was crucial to the defense. Now once the state had heard all of that testimony and the offer or proof, they were no longer surprise, and surprise is the main thing that we are looking to overcome. At that point, they were no longer surprised. Also I might add, at that point in the trial, there were still three of the state witnesses to be presented, and all of the defense to be presented. The trial did not end until the following day. So at that point, the state basically knew the witnesses that it needed to rebut Mr. Wormley's testimony. They needed the complaining witness and his family who were all present there. Now if from talking to them they felt that they needed additional witnesses, then they could inform the court as to what they needed and how much time they needed. And then perhaps the court could make a determination as to whether that would be so prejudicial to the state to have to grant a continuance at that time that he would consider precluding the witness. But absent any showing at all that the state was going to be prejudiced, we feel that this Court must find that there was a violation of the Sixth Amendment.
John Paul Stevens: To take once again the application of your Sixth Amendment theory to hearsay. If Wormley was not present but you tried to introduce someone who said, well, Wormley is not here but Wormley told me that he saw thus and so affirming your client's version of the facts, do you think that the court could not just immediately say I am sorry, we have a rule against hearsay evidence because we think that it is not sufficient?
Richard E. Cunningham: I think that we have to look at the other factors.
Antonin Scalia: Every case, case by case?
Richard E. Cunningham: I think so, case by case.
Antonin Scalia: No absolute rule excluding hearsay, you have to say, well, let's see, maybe we will have to have a continuance so you can go get the original declarant, go get Wormley?
Richard E. Cunningham: Yes. I was not saying that they could admit the hearsay. I was not suggesting that.
Antonin Scalia: No, you are just saying that you are entitled to a continuance.
Richard E. Cunningham: No, I am saying that you would have to look at it case by case. If the defense had been causing a lot of continuances. If the continuance in that case if it could be shown would severely prejudice the state, then perhaps.
Antonin Scalia: The judge could not just say look it, today is the trial date, you know what the rules of evidence are, you should have been here with your evidence. If your counsel is so bad that he has tried to get in hearsay when he should have had the original declarant, if it is just a bad mistake that it amounts to ineffective assistance, you can have that relief, but this trial is going ahead, a judge could not say that?
Richard E. Cunningham: Perhaps he could, Your Honor. That is not the case that we have here. Here we have--
Antonin Scalia: But it is the same principle that you are urging under the Sixth Amendment, that the rules designed to assure the reliability of evidence do not have to be absolutely followed. But in each case, the court is supposed to weigh whether bending them in this case or allowing a continuance so that they can be remedied will be in the interests of justice. That is basically what you are saying.
Richard E. Cunningham: --Well, that is true. The interesting thing here is that unlike Chambers, or Washington, or Rock, we do not have a case here where the reason that the state was seeking to preclude the evidence was that they believed that the evidence was inherently unreliable. And I think that is what makes this such a stronger case than those other cases. Here we have a witness prepared to testify, a competent witness who could give relevant evidence of matters that he observed. There is no question of inherent unreliability whatsoever. The only question is whether or not the state could be prepared to meet that evidence.
John Paul Stevens: How can you say that there is no question of unreliability, if the state says one of the reasons why we want you identify your witnesses in advance is so that the other side will have a chance to do the investigation that is necessary to determine their credibility?
Richard E. Cunningham: What I am saying--
John Paul Stevens: It is designed in part for reliability purposes.
Richard E. Cunningham: --What I am saying, Your Honor, is that there are other remedies for the state to be made whole so that they would be put into that position.
John Paul Stevens: Well, there are the same other remedies in the hearsay example.
Richard E. Cunningham: Well, let me give an example, Your Honor. If the defense had complied with discovery in this case and had given the witness' name to the state, the witness would have had no obligation to talk to the state whatsoever.
John Paul Stevens: No, of course not. But they at least could have found out who he was.
Richard E. Cunningham: So they would have known who he was.
John Paul Stevens: Whether he was at the scene, and I guess that he was not in concurrence with the scene.
Richard E. Cunningham: But instead of that what the state got was that they got his full testimony under oath.
John Paul Stevens: Well, yes.
Richard E. Cunningham: So what I am saying is that there are other remedies, other less severe remedies, that we feel are appropriate certainly in this case. And to impose a preclusion sanction here would be arbitrary.
Sandra Day O'Connor: Does the state have no right to depose a listed witness in Illinois?
Richard E. Cunningham: Not in Illinois, no. If you have no other questions, I will reserve my time for rebuttal. Thank you.
William H. Rehnquist: Thank you, Mr. Cunningham. We will hear now from you, Mr. Shabat.
Michael Shabat: Mr. Chief Justice, and may it please the Court: The position of the State of Illinois in this proceeding is that when a defendant as Petitioner Taylor did in this case sought to compel witnesses to attend court, he did so understandably in an effort to present evidence to a jury which was going to decide his guilt or his innocence. In the course of doing that or in the attempt to do so, it is incumbent upon defendants as well as prosecutors in this country to do so with compliance with established procedures, procedures which we submit assure fairness and reliability in the ascertainment of guilt and innocence. It is not merely the element of surprise that discovery rules address.
William J. Brennan, Jr.: Mr. Shabat, may I ask, is there any evidence that the defendant was closely involved in this noncompliance with the discovery rule, or was it just the lawyer who was responsible?
Michael Shabat: Your Honor, the record reflects that at the time, at the time during trial, after the jury had been selected, after opening statements by both the state and the defense, and after two of the state's key witnesses had testified on both direct and cross-examination that the court sent the jury home until the next day. And at that time, the defense attorney stated that he had just learned of an additional witness who could have and probably did see the entire incident. There was a suggestion implicit in that.
William J. Brennan, Jr.: Yes, but my question was was defendant personally involved in the noncompliance?
Michael Shabat: I suggest that it can be inferred that when he learned, when the defense attorney is telling the court that he learned, although we do not know directly and specifically and we can only infer, that he learned it from his client who was sitting there at counsel table.
William J. Brennan, Jr.: Then the answer to my question is that there is no evidence that the defendant was personally involved in this?
Michael Shabat: There is no direct evidence of that, that is correct. In the attempt to avoid surprise, we are really talking about more than that. Because we are talking about an effort to assure fairness and reliability in the ascertainment of guilt and innocence. To the extent that the Sixth Amendment may be implicated in that or notions of due process, it does not permit a defendant to present testimony that is free from legitimate demands. The discovery rules in Illinois in the specific instance are demands of an adversary system. Because there is really no justification for a defendant under the guise of any constitutional right to attempt to assert half truths.
Byron R. White: I take it then that you are saying then that preclusion is automatically justified in every single case of noncompliance?
Michael Shabat: No, sir, that is not our position. Preclusion under our discovery rules in Illinois and in most of the states, and almost all of the states have such rules, preclusion is an option. It is an option among other options which a judge in his discretion can, must use, and did in fact use in this case.
Byron R. White: That may be the state rule, but is it your position that the Sixth Amendment would never, never forbid preclusion?
Michael Shabat: No.
Byron R. White: Sometimes?
Michael Shabat: There are circumstances, there are circumstances.
Byron R. White: What are they, just name one?
Michael Shabat: I think that it would involve a circumstance where the nature of the violation, for example, being one that was fairly technical. If, for example, discovery had to be completed within a given jurisdiction after a number of days, but in any event well before the parties intended to go to trial.
Byron R. White: Let's take it, would... would the Sixth Amendment ever forbid preclusion where there is a failure to reveal a name of a witness in compliance with the rule?
Michael Shabat: It might. It might after a determination by the judge of all of the factors such as the reason, the motivation behind the failure.
Byron R. White: So do you think that there is a balancing process that must go on in every case?
Michael Shabat: Most certainly, Your Honor. I believe that is appropriate.
Antonin Scalia: The same in hearsay, of course, right, the same with hearsay, because I mean the Sixth Amendment applies to that too?
Michael Shabat: Well, no, I do not believe so. I believe that we have a different situation here. We have unreliable evidence in that instance. And I do not believe that--
Antonin Scalia: I thought that you were telling us that part of the purpose of this rule is if there has not been the time to investigate the witness that the evidence is unreliable. I thought that was part of your case.
Michael Shabat: --In this case, that is right.
Antonin Scalia: Well, just in this case, but not generally under these rules?
Michael Shabat: No. Prosecutors must have an opportunity to fully investigate their case. It is not sufficient for a prosecutor to have to sit at trial after having prepared his case and investigated the evidence, having selected a jury, having selected a jury I might add with a mind towards the type of witnesses that will be presented during the case--
William J. Brennan, Jr.: Mr. Shabat, suppose in this case instead of saying what he did to the judge, as I understand what you told us, that what defense counsel said was I have just learned, suppose he had gone to the judge and said, judge, I made an awful boner here, it is not my client's fault, I have known about this witness and I forgot to put it down, and that is why I did not comply with the discovery rule, and I do not think that my client should be penalized by denying him his right under the Sixth Amendment in those circumstances, what would you do with a case like that?
Michael Shabat: --I would have to weigh that factor, Your Honor, with due regard to the other factors present in the case such as when does this occur.
William J. Brennan, Jr.: Just when it occurred here.
Michael Shabat: That is essentially what the defense lawyer tried to say. Because on the very next page after he has just indicated that he just learned of this witness, he sort of retracts that, and he says on page 206 of the record of Joint Appendix, page 13, "The defendant told me about him sometime ago, but I could not locate him. " Of course, that does not relieve him of an obligation. All he had to do is write the name and address unknown, and that would have satisfied Illinois discovery.
Antonin Scalia: Your position is just that the balancing was properly done here, you agree that there has to be balancing in every case?
Michael Shabat: Yes, sir, that is correct. And we are not at all suggesting--
Antonin Scalia: There is not much of a dispute really, is there, between you and the other side? We took this case to decide whether the balancing was properly done in this case. I thought that we were going to talk about whether the balancing was necessary.
Michael Shabat: --My opponent, I believe, is arguing that a preclusion is never appropriate. There is only one place that I have read within the documents filed in this Court where the Petitioner indicates that there might be a rare case where it could be appropriate, but he then imposes on the state some restrictions in that regard before they can avail themselves of that.
Sandra Day O'Connor: Did you not argue that we should overrule Washington v. Texas? It seemed to me that you took a little more extreme position maybe in the brief.
Michael Shabat: In the brief submitted by the State of Illinois, we suggested that based on our historical analysis of the evolution of the writing of the compulsory process clause that perhaps Washington v. Texas should be reconsidered. Even if it were not to be reconsidered, it is our view that only arbitrary, only arbitrary rules, and procedures, or statutes which interfere with the compulsory process clause ought to follow that clause. This is not an arbitrary procedure. The judge has discretion to choose this sanction and it is not arbitrary because on its face the discovery rule which provides sanctions here in Illinois provides alternatives. So there is discretion inherent in the nature of the options available to the judge.
Harry A. Blackmun: I suppose, let me change Justice Brennan's hypothetical a little. Suppose that the name of the witness was on the list that counsel had prepared but that his secretary just omitted one name out of twenty, you would come to the same conclusion, I take it?
Michael Shabat: It is possible. It would depend again on the timing of that discovery, and what inferences if any or what specific conclusions could be drawn after an examination of the attorney in court, whether it was designed as a strategical tactical advantage, an improper one I might add, or whether in fact it was merely technical.
Harry A. Blackmun: The hypothetical that I gave you was that it was a sheer secretary's oversight.
Michael Shabat: That would certainly weigh in favor of not precluding.
Harry A. Blackmun: Do you have in Illinois a notice of alibi rule?
Michael Shabat: Yes, and it is reciprocal as well.
Harry A. Blackmun: And you would take the same position with respect to that that you are taking here?
Michael Shabat: Yes, I would, Your Honor. In fact, back to Justice Brennan's question, when the defense attorney later changed his mind about what he knew, he indicated that he had been told sometime ago about Alfred Wormley, this witness, but that he could not locate him. Well, the next day at the judge's request, Alfred Wormley appeared in court. This was communicated to the defense attorney by the judge, and the defense attorney brought him to court the next day. And prior to the jury coming out to hear the third state's witness, third, fourth, fifth, and sixth, Alfred Wormley was voir dired. And it was during the course of that voir dire that we learned that in fact this defense attorney had visited Alfred Wormley, this newly discovered witness, at his home a week prior to the commencement of trial, a week before they picked that jury, a week before opening statements, a week and a day.
Sandra Day O'Connor: Mr. Shabat, does it make any difference in the balancing how crucial the evidence is that the witness intends to give, do you suppose?
Michael Shabat: Yes, it can and it should, because it is important.
Sandra Day O'Connor: How important was this evidence?
Michael Shabat: Not very, Your Honor. It is our position that although the defendant could argue that there is some conceivable benefit, some conceivable benefit that could have been derived from this testimony, that it certainly was not the kind of testimony which having been excluded and reflecting upon the entire record as we must do at this point that one could conclude that this trial was unjust, and that the verdict was somehow compromised by that.
John Paul Stevens: Mr. Shabat, if you believe that the victim was armed and his brother was armed, or at least his brother, when they testified to the contrary and that the only gun was that of the defendant, and if you believe the man, it would really change the facts quite a bit.
Michael Shabat: Perhaps. The judge had an opportunity, although not the best opportunity, to observe the demeanor of this witness during that voir dire. In fact, he concluded that he did not believe that he was a very credible witness. And I think that great weight should be placed on that given these circumstances in this case.
John Paul Stevens: Perhaps it really does not have anything to do with the issue, but was this retained counsel, defendant's counsel, or was this appointed counsel?
Michael Shabat: Yes.
John Paul Stevens: Retained counsel?
Michael Shabat: I believe it was, yes.
Thurgood Marshall: Does that answer the Petitioner's repeated point about that you could have gotten a postponement of a day or so, do you think that your last answer answers that?
Michael Shabat: Your Honor, I believe that a continuance would have been inappropriate in this case. First of all, I do not believe that an interruption of a trial at this stage of the proceedings is in the interests of justice and truth seeking. The jury has been empaneled, the jury has heard opening statements, the jury has listened--
Thurgood Marshall: Trials have been interrupted before in Illinois and Chicago, have been interrupted in the middle of a trial, right? I assume so in every city that I have ever heard of.
Michael Shabat: --Most likely, hopefully not for this reason though. But in any event, that does not advance the efforts of the participants in the justice system, not the least of which the judge has a tremendous case load that he has to work through, that is being forestalled because of this kind of conduct. And once a jury is listening to evidence and they are in the state's case in chief, I think that it is fair to conclude that delays that occur under those conditions do not advance the interests of a state which desires to proceed witness after witness to conclusion of the state's case in chief.
Thurgood Marshall: But you could have had the continuance come after the state's case in chief, could you not, because Wormley was not going to be called until the defense case.
Michael Shabat: There is another aspect to that, Your Honor. Yes, that could have happened. I do not believe that that would have been sufficient either. When the state prepares for trial, it does so with a thorough investigation of all of the witnesses, all of its witnesses, in an attempt to find if they cannot interview because a witness does not have to talk to the state, but nevertheless to use its investigatory resources to find out something about that witness in some detail to see where that witness really was.
Thurgood Marshall: That does not happen in all criminal cases.
Michael Shabat: What is that?
Thurgood Marshall: Have you not ever heard of a criminal case where the lawyer says you are the arresting officer, well tell what happened? That does not show any investigation.
Michael Shabat: Well, that--
Thurgood Marshall: If they waited two days or one day, there could have been a preliminary investigation, could there not? You have an efficient police department.
Michael Shabat: --Yes, I believe we do. But I do not believe that one or two days would have necessarily been sufficient time. And I also do not believe that in light of the fact that we are in the middle of a trial, the middle of a trial, where a jury has been listening to evidence, that the possibility of its losing its train of thought--
Thurgood Marshall: We all understand. You do not have to keep saying in the middle of a trial. We know exactly what it means.
Michael Shabat: --I think that is central to my argument, Your Honor. I think that it is imperative that things like this not come about as a surprise well past the eleventh hour. I think that for that reason with liberal discovery appropriate--
Thurgood Marshall: Well, let me ask you then.
Michael Shabat: --Yes, sir.
Thurgood Marshall: If this happened on the first day, would you be in favor of a postponement, a continuance?
Michael Shabat: If by the first day, Your Honor, I take your meaning to be prior to the selection of the jury, prior to opening statements?
Thurgood Marshall: Well, do you want this to be a case limited to the facts in this case?
Michael Shabat: No.
Thurgood Marshall: If you do not want it limited to facts in this case, then stop emphasizing these facts. Mr. Shabat, I have another problem relating to the facts in this case. If this whole thing is to be decided on a balancing test, as you say, should we not require that the judge in fact conduct a balancing test, and what evidence do we have that he conduced any balancing test here? He did not even receive an objection from the prosecution to the effect that we think that this evidence is unreliable and we want to interview some witnesses. I mean all of these great and serious reasons you are giving us now are brain spun. They were not brought before the District Judge at the time.
Michael Shabat: Your Honor, I believe to the contrary, that we have a record here that shows that the judge was if not specifically articulating any of the criteria that we have discussed today as part of his decision in deciding to preclude the witness that he was fully cognizant of the actions available to him. He also by his deeds did not only preclude a witness, Alfred Wormley, who was tendered and identified to the state when he was, but there is evidence in this record that prior to trial before the first witness was called but after jury selection that the defense asked leave of court to amend his list of witnesses in this case and he was permitted to do so, and they were not excluded. What the judge did, however, in that instance was I believe a very measured and appropriate response from which I derive inference that he was conducting a balancing approach. He told the state that for those witnesses before they were allowed to testify that time would be taken for the state to attempt to interview them. I think that this shows a measured response which is an indication of his cognizance of why he was doing what he did and what was available to him beyond that which he did for any of the witnesses for whom discovery was an issue in this case. And I also believe that the judge was weighing in his mind as evidenced by his words the problem that he was confronting and that he had confronted, and that other judges of the Circuit Court of Cook County had confronted in previous cases, where surprise ambush defense tactics had been perpetrated upon the state. And I believe that a sense of his frustration is evidenced by this record. And it is clear to us that he was attempting to devise the appropriate sanction or remedy to be applied in each of the instances of belated discovery of witnesses to the state.
John Paul Stevens: Let me ask you about this repetitious problem that happened over and over again. In your view, was the judge saying that this is significant because it is a nuisance to the court to have to grant repeated continuances, or do you read him as saying that there is some problem about the risk that some unscrupulous lawyers may try to be fabricating false testimony?
Michael Shabat: Yes to both. I would answer yes to both of those questions.
John Paul Stevens: Because I suppose that if you look at it as the latter as part of the problem, then the rather shabby behavior of this lawyer is relevant and perhaps partially attributable to his client.
Michael Shabat: Yes, that is our position. We believe that as the appellate court found in this case under an analysis under Strickland that this defense attorney was competent. That issue was presented to the appellate court, and it was resolved in that manner. And indeed, he was competent. He presented pre-trial motions, he argued them, he examined witnesses at some great length, and put on witnesses as well. This was not the kind of representation that one could ever argue was incompetent.
Speaker: Was this a new practitioner, do you know?
Michael Shabat: Yes, I know the people from my generation in our felony trial courts. We are not familiar with him. But the newer people who are trying cases today in our felony trial courts were aware of his presence from time to time in our trial courts at 26th and California in Chicago.
Speaker: You are saying that your generation did not know him, but the younger generation did?
Michael Shabat: That is correct.
Speaker: He only tried young cases or what, I do not understand.
Michael Shabat: The obligation that was placed on the defendant in this case to comply with discovery was certainly not burdensome and it certainly was not very difficult. The answer to discovery is a simple document to prepare. It is what you have to be able to do to be able to prepare for trial. All the defense attorney had to do here was to respond to our motion. Even if he did not know Wormley's address, Wormley would have testified had timely notice of his name been given. I believe that the value of compliance here not just to the state, frankly, but to the criminal justice system, and specifically here the jury in its attempt to ascertain the truth was great. No surprise, no delay, the state having an opportunity to fully investigate and therefore enhance the truth seeking function at trial. We perceive the defendant's attempt here as an attempt to in some way insulate the exercise of his Sixth Amendment right and discovery rules from imposition of any legitimate demands of our adversary system. And our great concern, Your Honors, is that if he is successful here that he is going to effectively emasculate the intent of our discovery rules, rules which are designed for both sides, to afford both sides an enhanced opportunity to prepare their case and present their evidence. These discovery rules are liberal rules, and they are appropriately so. In Illinois, we virtually give our file in its entirety to the defendant before trial. Certainly, given that, it is not appropriate under due process or the Sixth Amendment for the defendant to be able to obtain an advantage, if he can get everything and go to trial and present as a surprise untested evidence even though he has violated those rules. Defendant's violation of those rules were very flagrant here. I believe that judge acted in a judicious, tempered, and balanced manner, a manner which did not affect the outcome of this trial, nor could it be said that the absence of Wormley's testimony, although perhaps there is a conceivable benefit that could have been derived from it, would nevertheless never have affected the integrity of the verdict. Thank you.
William H. Rehnquist: Thank you, Mr. Shabat. Mr. Cunningham, you have four minutes remaining.
Richard E. Cunningham: Thank you, Your Honor. Justice Scalia, in answer to your question which I was never able to get to, it is true that all parties including the Solicitor General agree that a balancing test must be applied. In this case, it clearly was never applied by the trial judge unlike what was going on in Illinois since People v. Rayford in 1976. We ask that this Court apply the balancing test. And if it does so, I think that the defense will win the case.
Speaker: If it has been going on Illinois since 1976, why did not anybody ask the trial judge and this Court do it?
Richard E. Cunningham: Well, Your Honor, we have raised in effect with assistance of counsel, we raised it before this Court, and this Court chose to only accept the case on question one. So unlike the state said, we certainly argued in effect with assistance of counsel in this case. But again the burden should be on the Court to apply that balancing test in any event.
Speaker: Well, do you think that the balancing has to be articulated and made on the record?
Richard E. Cunningham: No, Your Honor.
Speaker: Or can the trial judge just think it through and weigh the pros and the cons and the prejudice?
Richard E. Cunningham: I think that he could think it through.
Speaker: Sure.
Richard E. Cunningham: Except the evidence of prejudice would have to appear of record. And here we have no evidence that the state would have been prejudiced had Mr. Wormley been allowed to testify. Here we have no evidence that less severe sanctions would not have been appropriate. And in answer to another one of your questions about the materiality of the witness, yes, that is part of the balancing test. And here I believe that we have demonstrated that this witness was highly material. I might add that the jury went out to deliberate and came back and sent a message requesting the testimony of the complaining witness and his brother. It was not until after they had reviewed that testimony until they returned a verdict of guilt. This is a very close credibility case. As to the fact that the record is clear that Mr. Taylor was not responsible here for his attorneys at best negligence, there is no question about it.
Speaker: How do you say that, how can you say that it is clear, maybe they did not prove it, but how do you know?
Richard E. Cunningham: Well, the state never argued that below.
Speaker: They do not know. The defendant never testified in the case, and you do not know what he said to his lawyer, and what the lawyer said to him.
Richard E. Cunningham: We do know. The lawyer said that the defendant had told him long before trial of the existence of Mr. Wormley, and we know that the lawyer interviewed Mr. Wormley at his home a week before trial and served him with a subpoena. I do not think that on those facts that it is at all fair to an uneducated criminal defendant twenty years old to put onto him that he was somehow aware of what these discovery rules were about.
Speaker: Well, I guess that the Supreme Court of the State thought that the trial judge did enough, it affirmed.
Richard E. Cunningham: The Supreme Court denied the petition for leave to appeal.
Speaker: The appellate court.
Richard E. Cunningham: The appellate court affirmed, the appellate court might also +/-
Speaker: Saying that it was a matter of discretion and finding no fault with what the judge did or said.
Richard E. Cunningham: And the appellate court again totally failed to apply any kind of balancing test at all. They simply said that preclusion was one of the sanctions permitted by the statute based on the flagrancy of the violation, and we find no violation of the statute.
Speaker: But in the appeal, counsel for your client was not arguing for a balancing.
Richard E. Cunningham: I was the appeal counsel for my client.
Speaker: That just was not presented as a compulsory process claim.
Richard E. Cunningham: Yes, it was, Your Honor. I argued the case of Enoch v. Hartigan to the appellate court which is a Sixth Amendment case. I argued Washington v. Texas, and Chambers v. Mississippi. I argued People v. Rayford, which the Solicitor General recognizes as a balancing test Sixth Amendment case. I made all of those arguments to the appellate court, Your Honor. It is in our briefs, and I orally argued those arguments.
William H. Rehnquist: Thank you, Mr. Cunningham. The case is submitted.
Speaker: The honorable court is now adjourned until Tuesday next at ten o'clock.