Douglas v. Alabama

PETITIONER:Douglas
RESPONDENT:Alabama
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 313
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State appellate court

CITATION: 380 US 415 (1965)
ARGUED: Mar 09, 1965 / Mar 10, 1965
DECIDED: Apr 05, 1965

Facts of the case

Question

  • Oral Argument – March 10, 1965
  • Audio Transcription for Oral Argument – March 10, 1965 in Douglas v. Alabama

    Audio Transcription for Oral Argument – March 09, 1965 in Douglas v. Alabama

    Hugo L. Black:

    Number — the next case is Number 313, Jesse Elliott Douglas, Petitioner, against the State of Alabama.

    You may proceed.

    Charles Cleveland:

    Mr. Justice Black and the other Justices of the Court.

    I’m Charles Cleveland of the firm of Gordon and Cleveland in Birmingham, Alabama.

    This is my associate, Bryan Chancey at the counsel table with me.

    We represent Jesse Elliott Douglas, who was convicted of assault with an intent to murder in Selma in Dallas County, Alabama.

    He was sentenced to 20 years in prison and Justice Kate wrote an opinion for the Court of Appeals of Alabama affirming this conviction.

    The certiorari to this Court has been limited to a consideration of constitutional issues arising out of two factual situations that occurred during the defendant’s trial.

    During his trial, the prosecutor called an alleged accomplice, Olen Ray Loyd to the stand.

    Mr. Loyd had been tried in a companion case on a previous day and a jury had returned a verdict against him.

    He had not been adjudicated guilty but a — he had given notice that he intended to appeal.

    This fact was brought to the Court’s attention when Mr. Loyd was called to the stand and an objection was made to him being put on the stand at all.

    And this objection was overruled.

    While he was on the stand, the prosecutor read to him in the presence of the jury a ten-page confession that he had made while he in the Selma jail.

    Now, this confession was not admissible in evidence and was not offered.

    We contend that each of these two factual situations involved two rules of constitutional law.

    One of these rules is the rule enunciated by this Court in Mooney against Holohan.

    This rule is that where a prosecutor commits such conduct that is prejudicial to the rights of the defendant so as to deprive him of a fair trial that this is a violation of due process of law.

    This rule has been reaffirmed many times by this Court and I’ve cited a number of cases in the briefs and we contend that this action or each of these two acts of the prosecutor, both in calling Mr. Loyd to the stand and then reading to him this inadmissible document, both constitute such a misconduct on the part of the prosecutor as to prejudice the jury and to deny the defendant a fair trial.

    This rule is based on a premise that the prosecutor is an official of the State and his acts as a prosecutor are particularly susceptible to prejudice the jury if they’re not fair and impartial.

    Now, the record clearly reveals that the prosecutor had no legitimate reason for calling Mr. Loyd to the stand.

    He had no reason to anticipate that he would testify as to anything.

    Mr. Loyd, the previous day, had repudiated his own confession and had refused to take the stand on his own behalf.

    The prosecutor has not made any claim or the State doesn’t claim that there was any evidence that the prosecutor felt that he might testify and when he was called to the stand, the defendant’s attorney who was also Mr. Loyd’s attorney objected to his being called to the stand and told the Court that he would intend to take his constitutional rights.

    In spite of this, the Court allowed him to be put on the stand, primarily for the purpose of invoking his rights against self-incrimination which in turn prejudiced the jury.

    (Voice Overlap)

    Potter Stewart:

    Did the — did the Court indicate that he had no right having been convicted in there?

    Charles Cleveland:

    Yes, that was the court’s opinion.

    The court stated that because of his prior conviction —

    Potter Stewart:

    Right.

    Charles Cleveland:

    — the previous day he had lost his constitutional right.

    Potter Stewart:

    That’s the way the court ruled, isn’t it?

    Charles Cleveland:

    That — that was the ruling of the court at that time.

    Potter Stewart:

    And then on, the prosecutor has every reason to believe that the — that he would testify after that ruling of the Court.

    Charles Cleveland:

    I’ll say this.

    It is our position that the law is clear.

    Potter Stewart:

    Maybe so, but the Court have ruled otherwise.

    The Court has ruled clearly the other way.

    Charles Cleveland:

    That’s correct.

    The Court had ruled that.

    We take the position that the prosecutor is — knowing, what the law would be, had no reason to call him in the first place.

    Potter Stewart:

    Now, the judge — the judge deciding over trial at least the judge said then and there, it says what the law is, isn’t that correct?

    Charles Cleveland:

    Yes.

    But that was the ruling of the Court.

    Potter Stewart:

    And the judge had said you have no privilege.

    Charles Cleveland:

    Yes, and ordered him to testify.

    Potter Stewart:

    Therefore, didn’t the prosecutor or anybody else have every reasonable ground to believe that he would testify.

    That he would have to follow the ruling of the Court.

    Charles Cleveland:

    Well, we take the position that the man was in a position where he must protect his constitutional right and not answer under these circumstances because he was illiterate and a man of limited education.

    He did answer some questions evasively, say, he didn’t remember or he didn’t know things like he’s being put in jail a few weeks prior.

    What if the judge (Inaudible) is it not?

    Charles Cleveland:

    Yes, sir.

    (Inaudible)

    Charles Cleveland:

    I don’t see how an action of the judge could restrict the rights of the defendant anymore than the actions of the prosecutor.

    Potter Stewart:

    My question only went to your statement.

    Did the prosecutor had every reason to think this man wouldn’t testify and I thought that this would — the judge have ruled that he had to testify that there might be some grounds for reasonable belief that he would testify —

    Charles Cleveland:

    Well, he —

    Potter Stewart:

    — without having ruled but he had to.

    Charles Cleveland:

    The prosecutor did get a favorable ruling on that issue.

    Earl Warren:

    Did I understand you that the defendant had take — or the witness have taken an appeal with the case that the —

    Charles Cleveland:

    The witness had given a notice —

    Earl Warren:

    Notice —

    Charles Cleveland:

    — of appeal.

    That notice had not been allowed because he had not been formally adjudicated.

    Earl Warren:

    Yes.

    Charles Cleveland:

    A jury had returned a verdict against him.

    And in fact, when he refused to testify and after continually being asked these questions over and over again after being — the Court threatened to put him in contempt.

    The Court then recessed that case and during that recess sentenced this man and gave him the same sentence as the defendant in this case 20 years.

    Hugo L. Black:

    Is the notice of appeal sufficient — automatically to allow the appeal?

    Charles Cleveland:

    No, sir.

    That question has been — been litigated and he’s not entitled to an appeal until after he’s adjudicated.

    Hugo L. Black:

    Well, after he’s adjudicated, does he have automatic right to appeal if you give notice?

    Charles Cleveland:

    Yes, that’s right.

    A notice of appeal after adjudication takes it out of the jurisdiction of the Court.

    The amount of the bond had been said in a prior order and set aside during the morning of this trial.

    The — this issue’s precisely has never been before this Court but the highest courts of Colorado, Florida and Texas have ruled on this issue and held that in similar instances, the Court has that the defendant has been deprived of due process.

    There is an A.L.R. annotation in which the writer attempted to summarize all of the cases at that time involving this issue.

    And the writer has said that at least in — where five circumstances, all occurred at the same time, all the courts have universally held without dissent that this is a violation of due process and the Supreme Court of Florida has adopted these five situations as criteria for this issue in the State of Florida.

    These issues are that there must be a close connection between the activities of the witness and the defendant so that the jury would imply some connection between them.

    The prosecutor must not have any valid reason to expect the witness to rate — waive his privilege.

    If the witness, for example, voluntarily takes the stand and answers many questions, an occasional question that might go over this bound would not fall within this rule.

    And the witness must have as a matter of fact a refusal to — a right to refuse to testify and the defendant must have made appropriate objection and the Court must have failed to give appropriate instruction to admonish the jury or not to consider this.

    The State doesn’t contend that — or doesn’t dispute the presence of any of these circumstances except the right of the defendant to refuse to testify.

    The State has cited three Second Circuit cases to the effect that the defendant — that the witness would not have a right to testify under the certain — would not have a right to refuse under these circumstances.

    And we submit that all three of those cases, the judgment had become final, the defendnt had not appeal and it — there was no possibility of a reversal.

    One of the cases involved a juvenile proceeding which was not absolutely final.

    The highest Court of Idaho in considering this strong a distinction as to where the right of appeal still remains.

    There is a — a right on the witness to refuse to testify and in this case, the witness had not even been adjudicated so his trial was actually still in progress.

    The State also contends that — always, a prosecutor never knows when a witness may waive his rights and that just as a matter of actual knowledge that — on the prospect that lightning might strike and this witness might decide to waive his privilege at the last moment that that is sufficient to justify calling a witness.

    And we submit that it’s not on duly harsh on a prosecutor and it’s not evasive of the rights of justice to require a prosecutor to have some idea that a witness that — he is going to put on the stand is going to testify as to some relevant information.

    Charles Cleveland:

    Some evidence before the Court, lawyers generally know, what witnesses, what evidence they intend or expect to get by a witness when they call him to the stand?

    Byron R. White:

    That’s not fatal to your case though.

    It might be able to put him on the stand that even so, that doesn’t destroy your point here, does it?

    Charles Cleveland:

    We feel that calling him to the stand is misconduct and that I don’t believe that — just calling him to the stand for the purposes of having him invoke his constitutional rights is misconduct within the Holohan rule.

    Byron R. White:

    Yes, but let’s assume that it isn’t this calling and the asking of one question.

    You haven’t lost the case here by a long way?

    Charles Cleveland:

    No.

    We have the second incident and that is the reading of the confession while he was on the stand.

    Now, this was a ten-page document that had been taken by the police officials in Selma jail some two or three weeks prior to this trial.

    And the prosecutor first asked the witness, did he remember being in jail and the witness refused to testify then became evasive after he was ordered by the Court to testify.

    And then the prosecutor began reading the confession.

    When he first began, the defendant attorney objected to this document being read in the presence of the jury and the Court overruled this.

    The prosecutor then began reading it again, the defendant objected again and then the prosecutor said, “Well, you’ve already got your objection.”

    And the defendant says, “Well, I object anyway.”

    And then the Court overruled the objection and the prosecutor indicated that he accept it from this ruling.

    William O. Douglas:

    It’s not — the confession did not get into evidence though?

    Charles Cleveland:

    No.

    The confession was not — it was identified as Exhibit 1 but it was never offered evidence.

    William J. Brennan, Jr.:

    Was there any cautionary instruction or do you have a cautionary instruction.

    Charles Cleveland:

    We have cautionary instructions, none were given.

    William J. Brennan, Jr.:

    Was there any asked?

    Charles Cleveland:

    No.

    No questions were asked for — about the confession at all.

    William J. Brennan, Jr.:

    You relied under the objection —

    Charles Cleveland:

    That’s — that’s correct.

    William J. Brennan, Jr.:

    — or procedures.

    Charles Cleveland:

    Yes.

    On several occasions, the defendant’s attorney did ask for a mistrial because this confession had been read in the presence of the jury.

    And as to the question of misconduct, we come to — to the point of what legitimate reason could the prosecutor have for having read this confession.

    At the time, when the objection was made, he gave his reason merely, this is cross-examination.

    Charles Cleveland:

    Prior to that time, the Court had declared this witness a hostile witness and given the prosecutor a right of cross-examination because of the witness invoking his rights under the Fifth Amendment.

    The State now contends in their brief that it might have been permissible to show surprise or to refresh the memory of a witness that the prosecutor was surprised or could have been as incredible.

    The matter of refreshing the witness’ recollection is how this point was ruled on by the Court of Appeals.

    They held that it was justifiable under — as a matter to refresh his recollection.

    Prior there’s an opinion of the Alabama Supreme Court, the case of Kissick against State, in which the Court has specifically set out two procedures, alternative procedures or a — the use by a prosecutor to refresh the recollection of witness from inadmissible documents or material that is inadmissible in evidence.

    The Kissick case involved a recording which had been made of a prior conversation by the witness outside the presence of the defendant.

    And the Court in that case said, that the — this is — the Supreme Court of Alabama said, that the proper procedure was to have the recording transcribed and to merely give it to the witness and let the witness read it orally or read it silently so that the jury couldn’t hear the contents or as an alternative, it could have been read outside the presence of the jury.

    Earl Warren:

    Mr. Cleveland, I wonder — I wondered why you conceded so readily that the confession was not introduced an evidence because after they read it to him, as I understand, they put on three witnesses to show that the confession was voluntarily given.

    And it seems to me that that would show rather conclusively that it wasn’t for the purpose of refreshing his memory but it was for the purpose of using it as substantive evidence.

    Charles Cleveland:

    I meant by my statement that it was not ruled on by the Court as properly admissible in evidence.

    The content of the confession was put before the jury and was certainly treated by the jury as if it were evidence.

    Earl Warren:

    Yes.

    Charles Cleveland:

    But it was not formally allowed or admitted into — into evidence by the judge.

    Earl Warren:

    But they did put on three witnesses to — placed witnesses to —

    Charles Cleveland:

    To prove its execution.

    Yes, sir.

    Earl Warren:

    That it was voluntarily given, didn’t they?

    Charles Cleveland:

    That’s correct, yes.

    Hugo L. Black:

    How was it read?

    Charles Cleveland:

    The form of the reading is the — the prosecutor read a paragraph and at the close that paragraph —

    Hugo L. Black:

    Standing up or sitting down as so it shows?

    Charles Cleveland:

    I wasn’t present.

    The record doesn’t show.

    Hugo L. Black:

    He read it while the witness was on the stand.

    Charles Cleveland:

    While the witness was on the stand and —

    Hugo L. Black:

    Paragraph by paragraph?

    Charles Cleveland:

    At each paragraph, he paused to ask the witness, “Did you say that?”

    and the witness said, “I refuse to testify on the grounds that it might tend to incriminate me.”

    Hugo L. Black:

    Was the jury in the room or had they been taken out?

    Charles Cleveland:

    The jury was in the box at that time.

    Hugo L. Black:

    Has there been any request that they’ve been taken out?

    Charles Cleveland:

    The defendant’s attorney had objected three times to the reading of the confession in the presence of the jury.

    He didn’t say in so many words a request to excuse the jury.

    He had merely —

    Hugo L. Black:

    In the presence of the jury.

    Charles Cleveland:

    He is — the phrasing of his objection was that he objected to this document being read in the presence of the jury and this objection was overruled.

    Hugo L. Black:

    What about the waiver the Court speaks of?

    Charles Cleveland:

    The waiver that the Court speaks of is a waiver to make an objection.

    The Court of Appeals has said in its opinion that the defendant’s attorney failed to make an objection.

    This Court of course has a duty to examine the record and the record clearly shows that when the reading first started, the defendant’s attorney made objections three times.

    The judge overruled this twice on two occasions.

    And the prosecutor said, “Well, you’ve already got your objection there.”

    And at that point, the defendant’s attorney could object as each paragraph was read and the witness refused to testify.

    Then the defendant’s attorney did not continue to make objections throughout.

    And the Court of Appeals has held that the failure to continue to make the same objection after each pause and after each paragraph was waived.

    The other rule of law that we think is pertinent to both of this factual situations is the right of the defendant to cross-examine the evidence against him.

    It’s well settled that the Sixth Amendment right of confrontation includes the right to cross-examine and we contend that this is such a fundamental right that it has embodied in the Fourteenth Amendment.

    The case of Snyder against Massachusetts, Justice Cardozo assumed that this right was reinforced by the Fourteenth Amendment.

    And Mr. Justice Black in — in re Oliver described this right as basic.

    Mr. Justice Douglas has described this right in Willner against the Committee, both in writing the opinions for the majority of the Court as necessary for procedural due process.

    The highest courts of Washington, Michigan, Florida, and Oklahoma have all indicated that the right of cross-examination is essential to due process.

    And we don’t think that it can be seriously disputed that the defendant was denied the effective right to cross-examination — of cross-examining both the implications drawn by the jury from the — from the witness taking the stand and refusing to testify on his constitutional rights and the actual contents of the confession that was read to the jury.

    And we feel that this right to cross-examine — cross-examine is so basic that it should be granted under the Constitution, under the Fourteenth Amendment, and that — when the State call the witness to testify.

    He should have — in calling the witness to testify to take the Fifth Amendment that his is an implication that the — the defendant is incapable of effective cross-examination and of course the contents of the confession.

    He had no opportunity to go into those.

    Byron R. White:

    Let’s assume the — let’s assume the witness hadn’t been called to the stand at all that but the prosecution simply offered in evidence the signed the confession of this accomplice or this — or this other — or this witness.

    What would the objection have been?

    Charles Cleveland:

    That it was —

    Byron R. White:

    Hearsay.

    Charles Cleveland:

    — hearsay.

    Charles Cleveland:

    Yes.

    Byron R. White:

    Just hearsay.

    Charles Cleveland:

    Yes.

    Byron R. White:

    And that —

    Charles Cleveland:

    And the Court of Appeals in this case specific —

    Byron R. White:

    But you’re arguing that the hearsay rule has in state criminal trial has a constitutional basis.

    Charles Cleveland:

    That’s correct.

    At least to the extent that —

    Byron R. White:

    I presume that the (Voice Overlap) the idea of cross-examination.

    Charles Cleveland:

    — that there is a right of cross-examination.

    Byron R. White:

    Which in effect, it does constitutionalize the hearsay rule?

    Charles Cleveland:

    That’s correct.

    Byron R. White:

    Yes.

    Charles Cleveland:

    Thank you.

    Earl Warren:

    Very well.

    Charles Cleveland:

    I would like to save some of my time for rebuttal.

    Earl Warren:

    You may — you may Mr. Cleveland.

    Mr. Gish.

    Paul T. Gish, Jr.:

    May it please the Court.

    The primary contention of the State of Alabama is that, we have a question of procedure of whether or not the constitutional guarantee if that — if warrant was presented in this case.

    The — if the Court please, beginning of the Loyd testimony is on page 118 of the record, the Court will note as what Mr. Cleveland pointed out that, if it please, objection was made to the witness being called to the stand.

    Now, that objection should represent no constitutional question.

    I hope we are not to appoint to whether State cannot call an accomplice to the stand.

    The State must, in many cases, depend largely upon the testimony of accomplices.

    I am the misfortuned when I was a defendant’s lawyer to be confronted with the testimony of two accomplices who were in State’s evidence, so I know that the State must use in many instances an accomplice.

    I think the real question in this case though is what actually did happen?

    What did the record show happened here after this man is called to the stand?

    The defense attorney was not Mr. Cleveland.

    First of all, see this — your objection to the use of the statements, that’s on page 119, the objection was overruled.

    But the second objection — objection to the same effect and as Mr. Cleveland points out the Solicitor said, when you have your objection in there.

    Paul T. Gish, Jr.:

    Now, will any defense attorney — does any defense attorney have the right to go on where the Solicitor, “Did you have an objection here?”

    My answer, if the Court please is, “No”.

    The judge can only rule on objections.

    Now, I don’t know why Mr. Esco didn’t object after the beginning of the questions concerning the contents of the statements.

    But suppose he had objected to the first question and suppose the objection had been overruled, surely no — no constitutional way it would have been presented because there’s nothing in the first question which would be even slightly damaging to this defendant.

    The same is true of the second question.

    The same is true of the third question.

    That the other questions had they been objected to possibly constitute the question would have been presented as possible — possibly.

    The Court should have sustained the supposedly objections.

    But here in this case, if the Court would please, we don’t have — they’re not there — there have been objections.

    Earl Warren:

    Mr. Gish, what — what is the deficiency in the objection to this testimony?

    Paul T. Gish, Jr.:

    Mr. Justice Warren, on page 118 of the record, the first objection as opposed by Mr. Esco, the defense attorney, is that you shouldn’t put this man on the stand because he’s an accomplice.

    That objection was overruled.

    The second objection is on page 119 at the top of the page that Mr. Esco is complaining his grounds for objection.

    About the middle of the page, he says — wait a second, Your Honor.

    Earl Warren:

    Mr. Gish, the thing I have in mind was —

    Paul T. Gish, Jr.:

    I’m sorry, I can take this.

    I don’t want to take the time, but I think if I’m right, what you have in mind is whether or not an objection to this whole procedure made by the defense attorney.

    Earl Warren:

    Yes.

    Paul T. Gish, Jr.:

    Is that what you asked?

    Is that your question?

    Earl Warren:

    I had in mind this that after what you have quoted there on page 118, what Mr. Esco said, and the continuation after the Court calling him to the bench, and the court overruled the objection.

    Then, when they — when they asked him what — asked the witness what his name was and where — where his home was, he says, “I refuse to answer it”.

    Paul T. Gish, Jr.:

    Yes.

    Earl Warren:

    “On the grounds that any answer I give will tend to incriminate me now —

    Paul T. Gish, Jr.:

    Yes.

    Earl Warren:

    — is that a good objection?

    Paul T. Gish, Jr.:

    Would that be a — would that be an objection that could be sustained?

    The mere question of, “What is your name — name?”

    I’m not trying to answer your sole question, but what I am trying to say is that there were a few objections to the preliminary matters here from page 118 to 121.

    Paul T. Gish, Jr.:

    But —

    Earl Warren:

    For just a few lines beyond that also, he claimed the privilege again after the judge have told him that he didn’t have that privilege.

    He claimed that again, didn’t he?

    Paul T. Gish, Jr.:

    Yes, he claims it.

    He kept claiming it.

    But I’m — so I am talking about the objection of the defense attorney.

    Earl Warren:

    Of the defense attorney?

    Paul T. Gish, Jr.:

    Yes.

    Earl Warren:

    We’ll recess now, Mr. Gish.

    We’ll complete tomorrow.