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
Media for Brooks v. TennesseeAudio 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:
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.