Brooks v. Tennessee

LOCATION:Supreme Court, Bronx County

DOCKET NO.: 71-5313
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: State appellate court

CITATION: 406 US 605 (1972)
ARGUED: Mar 21, 1972 / Mar 22, 1972
DECIDED: Jun 07, 1972

Jerry H. Summers – for petitioner
Robert E. Kendrick – for respondent

Facts of the case


  • Oral Argument – March 22, 1972
  • Audio Transcription for Oral Argument – March 22, 1972 in Brooks v. Tennessee

    Audio Transcription for Oral Argument – March 21, 1972 in Brooks v. Tennessee

    Warren E. Burger:

    We’ll hear arguments next in number 71-5313 Brooks against Tennessee.

    Mr. Summers you may proceed.

    Jerry H. Summers:

    Mr. Chief Justice and may it please the Court.

    I represent the petitioner Donald Brooks who was convicted of the offense of armed robbery on the laws of the State of Tennessee and sentence to 10 years in state penitentiary.

    Because I consider this to be a novel question of law, I would like to very briefly spend some time on the facts of this particular case.

    The sole question which the Court has issued has granted certiorari is to whether the — is on the question of whether the Trial Court was in error in refusing to allow the defendant to be placed on the witness stand after other witnesses testified in his behalf under Tennessee Code Section 40-2403 as said Tennessee statute requiring defendant to be the first witness is unconstitutional in violation of the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution in Article 1, Section 9 of the Tennessee Constitution.

    This question is presented into two phrases and the other section was said the Code Section 40-2403 deprives a defendant of due process of law in violation of the Fourteenth Amendment of United States Constitution.

    Now this question, the statute that involved for this particular matter was enacted in Tennessee in 1887.

    I would like to very briefly present to what matter in which this case — this question was raise at the Trial Court and to do that, I would very briefly like to direct your attention to pages 1 through 3 of the appendix in which is an excerpt of the transcript of the testimony of that particular trial.

    From the page 1, my question regard to a motion that Court have decided in the presence of the jury.

    I know Your Honor of course they submitted for the record, I know what the law is but it is something that I would like to reserve for the record.

    At this time of course you realize we have a statute in Tennessee which states that the defendant has to testify first.

    To the Court?

    Jerry H. Summers:

    That’s right.

    Mr. Summers.

    Jerry H. Summers:

    I would like for the purpose of the record to get to my client at this time, I do not feel that I know whom you want or not.

    And I would like — I have two other witnesses, I have another witness, two more witnesses.

    I use chief points to put on the stand and I would like to reserve the right to call Mr. Brooks after they have testified.

    If the fact should want and that’s my motion I would like to. The Court in oppose it well at this time the Assistant District Attorney General Mr. Donald Pugh interposed who said, “Sir, we’ll waive the statute if you would waive the statute.”

    The court responded, “No sir, I am going to follow the law.

    The law is as you know it to be that if defendant’s testifies he has to testify first and so doing the recess you can consider that.

    Do you have anything else to bring before the Court before recess?”

    I made other motions and recess was taken and we came back after short recess and the Court saying further.”

    Mr. Summers, you do want this witness to testify and that you’re not going to use the defendant, is that correct?”

    In my response, “Not at this time, Your Honor, I will.”

    The Court interposes it, “Well, I want on your motion on that.

    So in other words if you intend to let the defendant Brooks testify, you will have to be first.”

    Mr. Summers, “Your Honor, of course I understand the course ruling of this, I would like to the purpose of the record like I explained I would like to later move put him on again if I should decide.

    I’ll do without the presence of the jury then.

    The Court: “Well, no I have already approved on that but I am just again reminding you in case you have thought about it again.

    Jerry H. Summers:

    If you’re going to use him, if you want to testify in his own behalf you will have to do it now.”

    “Alright, Your Honors, we respectfully note the exceptions.”

    This is the matter in which this question was raised in the Trial Court.

    Very briefly, I would like to read for you the statute which is involved in this particular matter.

    In 1887, the Tennessee General Assembly, in part of the entire statute entitled “Enact to forfeit party defendants in criminal cases to testify in their own behalf.”

    The statute is actually two-fold.

    The first is 40-2402 which gave the defendant the right to become a witness on his behalf.

    As the second part of the statute which is 40-2403 which the Court has granted, and that means failure of defendant to testify – Order of testimony.

    The failure of the party to testify in his own behalf shall not create any presumption against him but the defendant assigned to testify shall do so before any other testimony for the defense is heard by the Court trying the case.

    Now the statute prior to 1887, the defendant was incompetent to testify in his own behalf in the State of Tennessee in the Trial Court.

    Mr. Summers, in Tennessee if you push the defendant on first, may he also be use in rebuttal?

    Jerry H. Summers:

    Yes, Your Honor.

    And may he be used in rebuttal even though it doesn’t take the stand on his own defense?

    Jerry H. Summers:

    Your Honor, there is a case that is cited in the brief which I believe is Clemens versus State which held that he could testify in rebuttal.

    This statute enacted in 1887 in conjunction with 40-2402 is my contention that the purpose of the statute of the legislators at that time was that 40-2403 was to be a safety vow.

    Because of this with a new concept in the — I have cited in brief Ferguson versus Georgia in which Mr. Justice Brennan cites to history in history of the right of a defendant to testify and that this was a new concept in 1887.

    This had just been recent enacted in several states for granting to defense the right to testify.

    In Tennessee, it is my opinion that the reason this was enacted was as a safety vow because it was a fear and it’s cited by Whitmore (ph) in the brief and the State relies on it considerably in their brief that it was that — this would incur perjury that it would give a defendant the opportunity and they would be afraid that he would color his testimony having the right to sit there as a witness after witness standing hearing his own witnesses testify and then mold or adopt his testimony.

    Now this was the – actually it was raised and the Tennessee adopted the statute in 1887.

    It is our contentions that this cite in the brief that under the constitutional grounds that this fear of the legislature is not sufficient that the constitutional violation is in the Fifth, Fourteenth and Sixth Amendments of United States Constitution Article 1, Section 9 overcome this and make it imperative that we ask the Court to reverse this conviction and declare this statute unconstitutional.

    Potter Stewart:

    How many of the states have such a statute.

    You know?

    Jerry H. Summers:

    Yes, Your Honor.

    Mr. Justice Stewart the Tennessee and Kentucky are the only two states and these are some of the reasons that I would like to urge the point while I am urging that this decision be declared unconstitutional.

    Tennessee and Kentucky are the only two states at my research have been able to find and the state agrees to have this type of statute. Now there is of course there is no federal rule and this federal rule that requires this and 18 U.S.C.A. 3481 allows the defendant to testify.

    That’s the federal statute granting him to accomplish and to testify, there is nothing that states when he must testify.

    This is not the rule in several cases in Tennessee.

    A plaintiff does not have to be the first witness.

    A defendant, there is no such rule as this is requiring order to testimony in a civil case —

    Are there some Court of Appeals that follow this rule?

    Jerry H. Summers:

    Your Honor in the — there is one decision, the U.S. versus Shipp which is 359 Federal Second 185 has held that it is — held that it was a matter of discretion within the Court as to allow that was not abuse of discretion to allow the Trial Court to control the order of testimony.

    That is cited the state relies upon that case very heavily.

    That’s the Sixth Circuit?

    Jerry H. Summers:

    Yes, sir.

    I would like to refer to that just for a moment, I believe there is distinction.

    Mr. Summers, before you do, if you were to prevail here, do you feel you are entitled to a new trial or merely for a remand for consideration of whether prejudice existed.

    Jerry H. Summers:

    Your Honor, we respectfully feel that we should be entitled to a new trial.

    I also like to point out that and it’s not cited in the brief and I ask the Court because that’s only reason that come to my attention that a special committee of the Tennessee legislature pointed by the governor has made direct.

    In Tennessee we are presently studying to revise our criminal rules of criminal procedure to completely revamp the rules in Tennessee.

    That a special committee appointed by the governor and the legislature has recommended that this statute be repealed in the State of Tennessee which gives the right 3003 as the second if even a — either a defendant or the state request it, the judge may exclude from the hearing of trial any witnesses of the first party not the time under examination so he may not hear the testimony of other witnesses.

    This provision shall not apply to the defendant, the attorneys in the case or the first witness for the state.

    And in the comment that it says the purpose of this Section is to replace the current T.C.A. 40-2403 which forces the defendant to testify first with defense if he intends to testify at all.

    It is felt that defendant should be allowed to testify anytime if he wishes and do not lose the right to be heard merely because he does not testify first.

    William H. Rehnquist:

    Mr. Summers, is the rule in Tennessee also with the — on behalf of the State of the prosecuted witness must testify first if he or she has to testify?

    Jerry H. Summers:

    Mr. Justice Rehnquist, there is no statute which requires that but there is appellant there as a case law to that effect.

    William H. Rehnquist:

    Was it committee’s recommendation that that be changed too or will it just, the defendant committee recommended the change?

    Jerry H. Summers:

    They speak – then with the statute this was also discussed under this amendment also Mr. Justice and it held that the proposed section which I read would in fact allow the state to choose a witness that it wanted to help with the case.

    The state would merely put its most helpful witness on the stand first, that is what they proposed under the statute.

    What happens if they don’t? Does the prosecution collapse?

    Jerry H. Summers:

    Your Honor under the coding of the Smartt case that this is – they would not be allowed to use that witness.

    That is the only as I understand.

    Even though it’s a prosecuting witness?

    Jerry H. Summers:


    Even though it’s by definition the prosecuting witness?

    Jerry H. Summers:

    Yes, sir.

    Doesn’t that mean there is no prosecution?

    Jerry H. Summers:

    I think that yes sir that normally this case that cited this was the Smartt decision which is derived upon in the governments and the states’ brief is a very old case also as all of these cases relying upon this argument.

    As I understand you, the state need not hear the prosecuting witness to sit at the witness stand.

    The person is going to justify that she was the victim or he was the victim, if the state wants to choose somebody else to sit at the trial table, right?

    Jerry H. Summers:

    Yes, sir.

    If it’s that person who wants to testify first or not at all?

    Jerry H. Summers:

    Yes, Your Honor.

    It’s very often they will use a police officer who handle the detective who handles the case and he will be designated as the prosecutor and he sits there at the witness stand.

    I’m not saying that this question that you have brought up is not very often raised, in fact many times that prosecutor will not testify or it’s not a statutory requirement.

    Warren E. Burger:

    Mr. Summers, maybe you can clear up the confusion for me.

    In this case when the prosecution rested, do you put on some evidence?

    Jerry H. Summers:

    No, Your Honor, I moved —

    Warren E. Burger:

    None whatever?

    Jerry H. Summers:

    Yes, I did later on.

    Warren E. Burger:

    But your first argue, I’m aware that you made the motion, then you put on some evidence?

    Jerry H. Summers:

    Yes sir, I did.

    I called two witnesses Your Honor.

    One of the detective who is prosecuting witness in this matter who had I think in an original assignment there as I raised a confession question and a lineup question which you do not grant certiorari on.

    But the detective who had conducted the lineup which this young man was picked out.

    He was not called by the state as a witness.

    Now I called him as a witness for the — they relied merely upon the identification of the victim.

    I called the detective who conducted the lineup as my own witness.

    I further called an inmate in the jail who had been — was in the same lineup.

    I called those two witnesses that I put on.

    Now, the Court may want — did I renew my motion after they had testified.

    I did not do that and I felt like the Courts ruling in itself.

    I have certainly felt like that it would been improper for me to do so.

    Warren E. Burger:

    Did the state put on any additional evidence?

    Jerry H. Summers:

    No, sir.

    They did not put on any in rebuttal after I put on my few witnesses.

    I felt I had raised this question and two or three other cases and fortunately I got acquittals then and I had one time I had done this before the presence of the jury, I called my move to call him and then of course the Court said no, you cannot put them on and I thought that I did not do in this case because I thought it might been improper because you got it before the jury the fact that why can’t, why can’t the defendant testify and so I did not do it.

    I thought it would be improper.

    I did one time and I thought it might have been improper that’s why Your Honor.

    Would you spell out for me where the prejudice exist as you tried this case?

    Jerry H. Summers:

    Yes, Your Honor.

    Jerry H. Summers:

    This is very, very simply.

    It is this, the prejudice involves that as you all know and it’s cited in Williams versus Florida in Justice Black’s opinion with Justice Black’s opinion.

    A lawsuit is not — you can no matter how hard you compare your lawsuit, no matter how well you know your witnesses know him that’s how well you have talked to the government’s witnesses or the states witnesses.

    A lawsuit can change and it’s our contention that my client to — that my theory is this.

    That to make me choose at the beginning of the trial, I did not feel that they got state and made out our sufficient case in which I should have to put my client on the stand.

    My client had no criminal records stipulated in there.

    It was not — I was trying to keep him off the stand because he got along with the criminal record which is normally the case.

    But I have, I did not feel that they could — that I should have to put him on but the prejudice involved is that if doing the course of — I wanted to put on other two witnesses which would have my side.

    The quest — the problem is that if I put this witnesses on and something happens that they’re — the state in some way affects their testimony and something comes out which can only be explained by the defendant taking the stand then I or on by way of witness stand I am precluded for putting under Tennessee procedure.

    I know what your theory is, my question is was there prejudice in this case and could you so prove if necessary?

    Jerry H. Summers:

    Your Honor, I respectfully submit that the prejudice in this particular case there came up after the Court have ruled that I cannot put him on and then it give up.

    I cannot — the prejudice came up of course not answering because of the fact that I cannot pretty understand.

    [Voice Overlap]

    Jerry H. Summers:

    No, sir.

    Well, let me follow up on Justice Blackmun’s question a little bit.

    I take your initial tactical decision was that you got two witnesses you are going to call if they go well so to speak, you’re not going to call your own client, then you put those two witnesses on.

    Now, how did they go?

    Jerry H. Summers:

    Well, in regard to the way that they win, I put on the detective, I put on the detective.

    I called him as my witness.

    The Court in Tennessee would not — the Trial Judge would not to declare him as a witness and I put to him on this question as to the fact that this was a very highly suggestive lineup in which this young man had been arrested for other charges, his picture has been on TV and this detective made the statement that when he called this prosecution witness to come down here.

    Come on down here, we got the boy that held up the store and my client indicate that he was present when that took place.

    This came out on putting on this states witness who I had to call myself because they did not put him on.

    Therefore this situation can only if-the rebuttal of this could only have been by my particular client.

    And my client, I could not rebut this, the statement that when the — when I put the detective on in question about the lineup and he denied this it could only be rebutted by my client and my client could not take the stand.

    Warren E. Burger:

    Did you at that point or at any point in the trial than out of the presence of the jury make it proper of which your client would testify to if he had been permitted to take the stand in the order that you requested?

    Jerry H. Summers:

    No, Your Honor, I did not.

    Warren E. Burger:

    Don’t you think that would have —

    Jerry H. Summers:

    Yes, sir.

    Warren E. Burger:

    — help someone?

    Jerry H. Summers:

    Yes, sir.

    Jerry H. Summers:

    I think it certainly would have it at that time.

    Even if your client had testified first, you wouldn’t have been able to respond the detective’s testimony.

    Jerry H. Summers:

    No sir because I — well I have to put him on — I put him on as my own witness and of course I have made it in the situation why I would be cross examining my own witness, but I would at least make an attempt to put him on under the statute, I can even attempt to put him on.

    Now I go back to my other question.

    Supposed you have put him on and then you put the detective on and then you wanted to have him respond to what the detective had testified to, could you then put him back on?

    Jerry H. Summers:

    No sir, not under the State of Tennessee procedure, I could not.

    Well then where is your prejudice now?

    Jerry H. Summers:

    Well, Your Honor the —

    But this is a not guilty plea, was it not?

    Jerry H. Summers:

    Yes, it was.

    And I suppose if — unless he was going to change his plea to guilty if he got on the stand he would have denied the commission of the offense, would he?

    Jerry H. Summers:

    Yes, sir.

    And if one can assume that as I suppose it can.

    The jury might have believe that and then if he wasn’t able to get on the stand and testify that he hadn’t it, I suppose it’s been hard to say that you can’t show there’s no prejudice in the case.

    Jerry H. Summers:

    Yes, sir.

    Wasn’t that guilty plea?

    Jerry H. Summers:

    Yes it was, it was not guilty plea and he was tried by jury and the jury convicted him.

    As I stated, they urged various little case law on this proposition.

    The case is – it’s a very new situation where that the abstaining case on fully petitioner is Bell versus Mississippi which is an 1895 case in which this was held that — this did not rely on the statute but it held that it was an abuse of discretion and improper for the trial court to require that defendant to be the first witness.

    Is that the case relied on by Judge McAlester in dissent in the Shipp case?

    Jerry H. Summers:

    Yes sir, it is.

    And also the 67 decision of Nassif versus DC which cites the Bell case and the Bell case is being authority and very link the opinion which states in effect that it was still good law, it was a proper rule in 1885 by the Mississippi Court and the DC Court followed it in 1967.

    Now, we also — we take the position that the defendant in a criminal case of this statute is unconstitutional and it denies the defendant the right to testify in a criminal case.

    The — we submit that under this —

    Harry A. Blackmun:

    Is that fully true that he may testify?

    What it denies in is the complete choice of when he may testify?

    Jerry H. Summers:

    Yes, Your Honor.

    Harry A. Blackmun:

    And that I go back to my prejudice again by saying that you haven’t convinced me I think that there is any prejudice here as to the order of testify?

    Jerry H. Summers:

    Well, Mr. Justice Blackmun, our contention is that we have alleged into this matter that under the Sixth Amendment we are contending is that — it is been held by the Court that he is entitled to the guiding hand of the counsel.

    Now as stated by Mr. Blackmun in the William versus Florida case which stated very briefly that the law changes quite frequently, the — in the trial of lawsuit which he said that any lawyer who has actually tried the case knows that regardless of demand of pretrial preparation, the case looks far different when it is actually being tried and when it is only been thought about.

    Jerry H. Summers:

    We say that this statute, how the prejudice comes back is that if the pressure — the burden that it puts upon the defendant and has counsel —

    Warren E. Burger:


    But in this case, what prevented you from putting him on after the officer testified, someone has asked you that before but I am not clear.

    Jerry H. Summers:

    The statute.

    Warren E. Burger:

    The statute?

    Jerry H. Summers:

    The statute.

    Warren E. Burger:

    You could not put them on after the notion.

    Jerry H. Summers:

    The statute precludes, that is the —

    Warren E. Burger:

    The judges, you sense before that they have modified this with respect to rebuttal and answer to an early question of Justice Blackmun.

    You said that the Supreme Court of Tennessee has permitted and we put on other border or rebuttal testimony only.

    Now that would be to rebut this certain rebuttal is rather could really be, wouldn’t it?

    That would come only after the stated put on some new evidence following your defense and then you can put your man on, is that correct?

    Jerry H. Summers:

    Your Honor, in the brief the Tennessee decision discusses the question of rebuttal.

    The —

    Warren E. Burger:

    Did I correctly understand you to say that in response to Justice Blackmun’s question that he can be put on in rebuttal?

    Jerry H. Summers:

    May I have this one moment Your Honor and think that I can —

    Warren E. Burger:

    [Voice Overlap] go ahead.

    Jerry H. Summers:

    Your Honor, in the case of Arnold versus State it was cited in the brief that the case where the defendant was convicted of assault with intent to commit murder in the second degree and this case, the defendant did not testify in the defense proof.

    Now he attempted the call as a rebuttal of witness which his client – it seems incidentally be called as rebuttal witness to deny that the defendant and his attorney had offered the victim $500.00 to drop the case as the fact.

    Now the Supreme Court in that case declined to allow the defendant to testify an objection by the state and of course in our state the Supreme Court held that it was error for the defendant not to be able to be called as a rebuttal witness.

    So as to the question, he could.

    I may misinformed the Court that he could been called as a rebuttal witness but the situation in —

    At what stage?

    Rebutting the states?

    Jerry H. Summers:

    The rebutting the states proof yes sir.

    At surrebuttal, this is technical sentence though, and wouldn’t it had been a proper argument to the state to make if you try to call him on surrebuttal after the state put on rebuttal to answer this testimony that you had brought out on your own case on the defense that this is a legitimate surrebutal.

    I mean even though in Tennessee you could testify, your client could testify in surrebuttal, wouldn’t the state have had an objection if you try to produce your client on surrebutal on this case just to refute what the officer that have said when you had it understand as drugs.

    Jerry H. Summers:

    Yes sir, they would.

    I am sure that they would have —

    The officer was your witness as I understand it.

    Jerry H. Summers:


    You weren’t allowed to (Inaudible)?

    Jerry H. Summers:

    No sir I was not.

    In fact I asked the Court —

    Can rebut your own testimony and evidence?

    Jerry H. Summers:

    Correct, yes sir.

    Mr. Summers don’t misunderstand me.

    I don’t think much of your system.

    What I’m concerned in about is whether it’s unconstitutional.

    Jerry H. Summers:

    Yes, sir.

    I realize that and we in this matter Your Honor, this Court has under the Fifth Amendment has held that the defendant has predicted under Griffin versus California that the defendant has a constitutional right to remain silent.

    Now, and that goes that case was dealing with comment on the failure to testify.

    We respectfully submit that this procedure that we have in the State of Tennessee is so far it is in the minority, it is not been adopted by any except in the State of Kentucky, has not been adopted by the Federal rules, it’s not the rule in civil cases as I respect would submit that the real issue is this.

    In this case is whether the constitution implies or states that the defendant has the right to be heard in any case.

    We respectfully like to save our time for rebuttal in respect to —

    Your summary just boils down in the part of the record that you read to us.

    The state in this case offered the way of the statute and the Court was unwilling to do so?

    How is — is it a fairly frequent occasion that the statute is waived by agreement parties in the Court or is it not?

    Jerry H. Summers:

    Your Honor, this particular matter has been brought up.

    I brought it up three times prior to this case and I was fortunate in any cases.

    I brought it up last Friday in the case and the state offered to waive it again.

    The Court would not allow him to wait.

    Just as here?

    Jerry H. Summers:

    Yes and they have taken the position now that they were not allowed to waive.

    Now this has been the position of our Trial Judge there in Chattanooga at the times that I have tried to waive this.

    Warren E. Burger:

    Is this generally regarded as a rule or procedure?

    How do you — how is it regarded?

    Currently this judge treats this matter of substantive along some way?

    Jerry H. Summers:

    I feel that it is more a matter of procedure Your Honor but it has not been raised.

    This is to consider a statute been on books for this period of time as very few cases has been raised.

    Jerry H. Summers:

    Now, we have one late decision which came out of Chattanooga and another attorney raised his proposition and at the Harvey case but it was — based its ruling just on the Clemens case which is old decision.

    Warren E. Burger:

    Very well, summaries one last technical question.

    Are you arguing the Sixth Amendment here as well as the Fifth?

    Jerry H. Summers:

    Yes, Your Honor the —

    Warren E. Burger:

    And my secondarily, are you foreclosed and more limited grant of cert?

    Wasn’t our grant of cert here limited?

    Jerry H. Summers:

    Yes, Your Honor, this is — this by an oversight that this matter when it came up, it was on the Fifth, the Fourteenth and Sixth Amendment.

    However, there is a provision and also Article 1, Section 9 of the Tennessee constitution which if I may have read the — which I think it’s similar to the Sixth Amendment in certain respects, the right of the accused in criminal prosecution on page three of the brief and all criminal prosecutions, the accused had the right to be heard by himself and his counsel and to defend the nature and cause of accusation against him.

    It pertains to speedy trials and should not be compelled to give evidence against himself.

    Warren E. Burger:

    I know what you’re arguing.

    My question was whether a limited grant of cert restricted you the Fifth?

    Jerry H. Summers:

    Your Honor, I think that probably it should, I have — we have primarily relying on the Fifth and the Fourteenth Amendments.

    I put the Sixth in but I think the Court is probably correct that we should not be allowed to consider it but I think because of the similarity, I did argue the Sixth in this matter. Thank you.

    Warren E. Burger:

    Mr. Kendrick, we have only three minutes left if you would prefer not to split your argument so we’ll defer it in the morning.

    Robert E. Kendrick:

    If it please the Court I would defer it in the morning.

    Warren E. Burger:

    We’ll take you up first thing in the morning.