Barnes v. United States

RESPONDENT: United States
LOCATION: Wisconsin Eastern U.S. District Courthouse

DOCKET NO.: 72-5443
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 412 US 837 (1973)
ARGUED: Mar 20, 1973
DECIDED: Jun 18, 1973

Daniel M. Friedman - for respondent
Malcolm H. Mackey - for petitioner

Facts of the case


Media for Barnes v. United States

Audio Transcription for Oral Argument - March 20, 1973 in Barnes v. United States

Warren E. Burger:

We'll hear arguments next in 72-5443, Barnes against the United States.

Mr. Mackey you may proceed whenever you are ready.

Malcolm H. Mackey:

Thank you Your Honor.

Mr. Chief Justice and other members of the Court, I'll try to keep my argument relatively brief.

Most of my argument, of course, is in the brief submitted.

I did -- I do wish to point out, though I haven't filed a reply brief, I do wish to point out that I did discover a Law Review Article, Stanford Law Review Article and I would like to mention it to the Court, Volume 23, pages, it's a rather long article, 341 to 355, reviews the and I just discovered it in going through the argument, hits it on, I don't think it changes, it does have some reflection, but I call it hits it right on the button as to these presumptions, so called inferences that we are talking about.

That article and I bring it up at this point, states that there were three reasons why the rational connection test fails.

One that the right allows the prosecution to get it's case to the jury without producing any evidence of a prohibitive effect of a material element of the crime.

Two, that the presumption of the evidence is insufficient evidence to justify a finding of reasonable doubt and that, generally flatly this article states that rational connection or not all of these presumptions or inferences are unconstitutional as in giving sort of a directed verdict for the prosecution on the one element of the crime.

I would like to go back to the pure unadulterated constitution Fifth Amendment, “no person should be compelled as a witness” and we look at that little sentence or segment of the sentence, we find that, compelled to -- against the witness himself, we find nothing about a rational connection test naturally and going to the Sixth Amendment which says that “no one shall be confronted.”

They will be confronted with witnesses against them and in this case, I think, we are confronted with an inference against them which says as in the Barnes case, Mr. Barnes to not take the witness stand and he is confronted with this problem of getting over the hurdle.

If he takes the witness stand, of course, he puts himself in pandora's box into the fire and then I don't think he can use the constitutional prohibitions.

Warren E. Burger:

And all the things that you just said true of a large area of what we vaguely call circumstantial evidence, evidence of circumstances?

You can't -- you don't have confrontation in the sense you are arguing, when you are confronted with a set of circumstances and isn't this very close to a circumstance?

Malcolm H. Mackey:

It's close with distinctions, naturally circumstantial evidence, you don't have to see the boy eating the cookie, if you see the broken cookie jar, that's the old, the cookie jar analogy.

You see the boy with a cookie jar and you see cookies on his face, that's circumstantial evidence.

But aren't we doing something else with the inferences?

Aren't we saying that this -- we're applying knowledge to it and that's the problem that I see.

I think there is a distinction.

We have circumstantial evidence.

Certainly in Civil Law, we have this situation, you can put a person on and we don't have any constitutional probation, you can call a person under 776 of the Evidence Code in California and put him on and elicit all the information from.

We have (Inaudible) with it where we have presumed that certain elements in a civil case.

I don't think that these elements, we could say, a person who is (Inaudible) with one of these mafia groups.

That his presence there is some evidence that he knows the conspiracy that's going on.

But I don't think we want to do that.

I don't think that we want to limit the constitution.

Therefore, I feel that we should knock out these inferences or as in the Roger's case, no matter how piously, and the Court said, in that case, no matter how piously we state to the contrary that these inferences are in the jury's mind, that they could --

William J. Brennan, Jr.:

Did this petitioner take the stand?

Malcolm H. Mackey:

No he did not.

That's a distinction in counsel's case, they cite and I want to point --