Foster v. California

PETITIONER:Foster
RESPONDENT:California
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 47
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State appellate court

CITATION: 394 US 440 (1969)
ARGUED: Nov 19, 1968
DECIDED: Apr 01, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – November 19, 1968 in Foster v. California

Earl Warren:

Number 47, Walter B. Foster, Petitioner versus California.

Mr. Maddy.

Kenneth L. Maddy:

Mr. Chief Justice, may it please the Court.

Before this Court — this matter is before this Court in the writ of certiorari to the Fifth District Court of Appeal in California limited to the question of whether the conduct of a police lineup resulted in the violation of petitioner’s constitutional rights.

We make two contentions.

First, that the actions of the police in the conduct of two lineups and a personal confrontation between the petitioner, Walter Foster and a witness to an armed robbery unnecessarily was suggestive and conducive to irreparable mistake in identification.

This was a violation of Mr. Foster’s rights under due process of law.

The second point is that the personal confrontation between Mr. Foster and the witness violated the privilege against self-incrimination.

This first issue was based on the holding in Stovall versus Denno which was decided last year by this Court with the other lineup decisions of United States versus Wade and Gilbert versus California.

I might point out that Foster’s trial and the decision of the Fifth District Court of Appeal, the original trial result in a conviction of Mr. Foster and the Fifth District Court of Appeal in California affirmed occurred prior to the decisions in Stovall, Wade and Gilbert.

To properly pursue the question to due process which is our principal contention, I wish to review the facts of the case with particular emphasis on the events and circumstances surrounding the lineups.

The crime charge was armed robbery of a Western Union Office in Fresno in January 1966.

The victim was the late night manager.

He was the only witness to the robbery, a man by the name of Joseph David.

He testified that two men entered the office shortly after midnight on January 25, 1966 and after appearing to make out a MoneyGram, approached him at the counter with guns pointed at him and handed him a holdup note.

He described these two men as one tall individual dressed in coveralls with a hat pulled down over his face and visible under the coveralls a black leather jacket.

The shorter of the man was dressed as he described in casual clothes and a suit coat.

The man after handing the holdup note to him required him to open the safe and a money box to hand the money to the taller of the men at which time the taller men left the office.

The shorter man stayed three or four minutes later making certain threatening gestures to the witness.

Without relating in greater detail the facts of the crime, I wish to point out the significance of certain items.

First of all that the short time that the tall individual as indicated in the record was in the office, this man was ultimately described or stated by the witness to be Walter Foster, he was there three minutes at the outside perhaps six minutes.

Part of that time, the witness was facing a gun held by this tall robber.

The second is the contradiction in the description of the dress of the witness of the shorter man.

The shorter individual ultimately testified at time of trial.

And third was the fact that the witness changed the description of the coloring of the individual — the tall individual at the time of trial because as he indicated the background of the office was such that he had to make this change at time of trial.

All these points go to the one fact that the witness had little chance for observation of the individuals that robbed the office that evening.

And as pointed out in the Wade decision, Mr. David was a likely suspect for prompting or for the effects of an improper lineup.

I mentioned that the witness ultimately described or stated that the tall individual was Walter Foster.

This was only after the two lineups and a personal confrontation to briefly complete the background of the case J. V. Clay, testified for the prosecution at the time of trial.

He indicated that he was the shorter man that robbed the Western Union office that night.

Kenneth L. Maddy:

He admitted full participation however, gave certain statements in the basis of his testimony was that he was ordered to do these things by Walter Foster for a $50.00 sum.

He fully implicated Foster and a John Henry Grice as a third party.

Now the significance of Clay’s testimony, I believe, is that number one, he contradicted Mr. David in so far as the clothing that he wore himself that night which again I think goes to the point that the lack of chance for observation.

The second point is that he gave a statement one day after the robbery to the police implicating Foster and Grice in this robbery.

Now, I wish to point out to the Court California Penal Code Section 1111 which appears and I think appendix B of the respondent’s brief requires cooperation of an accomplice’s testimony.

Now the situation has placed the police in at the time they receive the statement from Mr. Clay was that they had one man, one participant in the robbery.

They knew who the second one was or they felt they knew who the second one was and as we point out in the brief, Mr. Foster was perhaps a likely man for the police, he had a previous record.

The problem that they had was to have Mr. David identify.

Mr. David, the lone witnesses identified Mr. Foster as not unlike the situation outlined in Palmer versus Payton which is referred to by the Court in Stovall versus Denno where they talked about the understandable zeal of the police.

They believe that Foster was their man.

The question was whether the witness would identify him.

Turning to the lineups, two or three days after the robbery the witness was called to the police station to view a lineup, there were three men present.

The witness had testified that the one man was a taller man, approximately six foot tall who was in the lineup, hatless and was wearing a black leather jacket similar to what he said he saw under the coveralls of one of the individuals who robbed him.

The other two men were shorter men five foot five, five foot six, they were both required to wear hats, they both — and one had a mustache.

Evaluating this first lineup in terms of the considerations outlined in Wade, we would have to say that Foster, number one was the lone tall suspect, he was the only one wearing clothes similar to that which was allegedly worn by one of the men that robbed the Western Union office.

Both of these factors are things that were outlined in Wade, are part of the problems of lineups, problems of the police making suggestive factors available to the witness at the time of the lineup.

Now assuming that the witness gave a description of the men who robbed into the police indicating the dress that they wore, this first lineup, the composition of it clearly made Foster’s stand out, yet Mr. David did not make any identification at that time.

Shortly, after the lineup or at the time of the lineup he requested to speak to the individual later identified as Mr. Foster, this was the personal confrontation I spoke of.

Foster, the witness, the policeman and the Deputy District Attorney went to a private room where a conversation was held between Foster and David.

I’ll point out that no part of the conversation was introduced into evidence merely the fact that a conversation did take place.

Now we analogize this to the widely condemned practice of the single suspect confrontation.

Palmer versus Payton and Justice Douglas in his dissent in Biggers versus Tennessee last term, elaborated on the evils of the single suspect confrontation.

It’s clear that the witness has no alternative but this one individual that he’s looking at.

The police in effect are saying this is the man.

The second aspect related to our particular case is that this was a special procedure or an isolation of Foster versus the other two men in the lineup.

They handled him differently, it’s very hard to imagine a more suggestive situation and for the police to take one man to isolate him and to treat him differently in so far as the witnesses are concerned.

They could do nothing more if they turned around and said this is the man we believe is guilty of the crime.

Now, no further Court the case of Crum versus Beddow (ph) 383 F.2d which is outlined — I think is listed in both the briefs which presented a similar situation in so far as isolating an individual from a lineup at the request of a one of the witnesses.

Now, the court there looked at the situation and stated that this is very well a situation that violates due process to do this, to pull the men out, to suggest to the man — the witnesses that this is the man.

The distinguishing feature in the Crum (ph) case was the fact that there the witness said, “I’m sure this is the man.”

Kenneth L. Maddy:

The court pointed out that if this had not — if the positive identification had not been made by the witness that this very well would have been a violation of due process.

After this personal confrontation, the witness David still made no identification of Foster.

Ten days later the police presented the crowning blow, they called Mr. David back to a second lineup.

There were five men present.

They were all dressed similarly in jail (Inaudible).

Yet, the only man that was present in the second lineup who had been seen by David and present in the first lineup was Walter Foster.

We ask the question of what more could the police do?

To suggest and to implicate Foster as the individual that they were asking David to identify, the respondents indicate this is a situation where we just had a super cautious witness.

I think the record clearly shows it’s a situation where the witness could not identify the individual who was there until forced upon him by suggestion.

Now, if it please the Court we contend that each step taken by the police in the prosecution can be criticized as suggestive and unfair and pointed to Foster but more important is the cumulative effect of each of these three steps.

They made adversely impossible for the witness to make any identification other than that of Foster.

I think that one other aspect of this is that question of the necessity or as pointed out in Stovall versus Denno by Justice Brennan that the totality of the circumstances surrounding the lineup.

The respondents, it seemed to tie this in this question of totality of the circumstances with the harmless error rule and ask the Court in our brief to review all the facts of the case before deciding the due process issue.

We dispute this.

We interpret this reference to the totality of the circumstances to mean the events and circumstances surrounding the lineup alone.

What prompted the action of the police to bring about the lineup in the manner in which they did in Stovall versus Denno there was a dying witness that brought about the single suspect confrontation.

That single suspect confrontation was criticized but it was said that under all the circumstances the case that this was not a denial of due process.

In the Unites States versus Simmons which was decided last term there were the suspects where at large and it was indicated that there was a need for identification immediately with use of photographs, again, the totality of the circumstances.

People versus Ford and State versus Sears which are cited in respondent’s briefs where situations of on the spot apprehensions of individual suspected a crime and on the spot identifications which again are situations I believe that are involved the totality of the circumstances surrounding the lineup alone.

Necessary procedures which prevented a traditional lineup but when considers a whole — when the lineups are considered as a whole they were not a violation of due process.

I believe that in our case we have none of those circumstances, there are no imperative circumstances.

Foster was under arrest.

There was no necessity to proceed or to deviate from established procedures.

No excuse.

There was no question about Clay’s identification of this man?

Kenneth L. Maddy:

Only Justice Harlan that the witness did not at the time he testified a trial, properly identified Mr. Clay’s clothing that he wore that night.

There was a contradiction between Clay and the man.

There was no testimony concerning whether the witness was ever required to identify Clay.

No, but I mean Clay’s identification of suspects.

Kenneth L. Maddy:

No, no there was no question as far as Clay, at the time of trial, Clay said, “This is the man that was with me.”

Kenneth L. Maddy:

He also said that John Henry Grice was with him that evening.

And these factors that you’ve been arguing at a due process prior point, the role put to the jury where there’s identification?

Kenneth L. Maddy:

The identification procedures were brought out in cross-examination which I think is one of the real dangers in the lineup situation, because the witness himself has made his identification sometime prior.

This was a case with David.

He had made his identification, it took him as he said, well, it took the two lineups and the personal confrontation before he ever said that Walter Foster was the man that robbed him, yet at the time of trial when he was testifying, I think it’s page 27 of the brief.

He embellished this, he said I made hard looks at this man, I impressed in my memory about so that I would always remember them.

This again is one of the dangers so that it was necessary on cross-examination to bring out the lineups and the lineups were presented to the jury to a limited extent.

William J. Brennan, Jr.:

I gather that, is it your position that even though Clay identified Foster at the trial as the man who was willing, California rule is, there must be corroboration is that it?

Kenneth L. Maddy:

It’s our position —

William J. Brennan, Jr.:

And the state offered David as a collaborating witness, is that it?

Kenneth L. Maddy:

That’s correct it’s our position that the collaborating –- that Clay may never have testified the collaborating testimony was required and that David presented them.

William J. Brennan, Jr.:

And as the supposed — which you claim was an infirmity in his identification testimony.

Kenneth L. Maddy:

That’s correct.

We feel that the identification of David was in effect tainted that was suggested by the police that it was made only after all the suggestion, and that we feel despite whatever evidence was introduced by Clay or by whatever by the prosecution.

William J. Brennan, Jr.:

Well, do you stay in effect that there’s no constitutionally admissible collaborating testimony, is that it?

That David’s testimony had that infirmity in it?

Kenneth L. Maddy:

That’s correct.

William J. Brennan, Jr.:

That there is none, no collaborating testimony in the case.

Kenneth L. Maddy:

That’s correct.

Potter Stewart:

But now Grice was a fellow defendant and he was acquitted?

Kenneth L. Maddy:

That’s correct Your Honor.

We think that’s significant in so far as in we’re going to point that out as far as the question of harmless error.

Potter Stewart:

Yes.

Kenneth L. Maddy:

This is the point I was making concerning the harmless error rule that once that we feel that this Court must look at the procedures set forth in so far as the events and circumstances of alignment to decide whether or not that the lineups were so suggestive and as we said conducive to mistaken identification that they violated Foster’s rights the due process of law.

Once that point is considered, we feel that that is a basic right as indicated in Chapman versus California and would require a reversal at that point.

However, in the alternative if the Court feels that the rest of the facts of the case can be looked at defying to determine whether that denial of due process in this case was contributed to the conviction of Foster then we point to the fact that number one, under the law in the State of California, perhaps Clay’s testimony would never have been admissible, thus, the state would have had no case at that point.

And the second point that we make is the fact that to determine whether or not the testimony of David contributed to the conviction we pointed the fact that John Henry Grice who was as fully implicated in this crime and as Foster was by Clay, the only difference between the case presented between Grice and Foster was the witness — eyewitness identification and he was acquitted.

Potter Stewart:

That brings me back to my question.

Grice was acquitted.

Kenneth L. Maddy:

That’s correct.

Potter Stewart:

And since he did not enter the Western Union office there was no identification testimony of him by Mr. David.

Kenneth L. Maddy:

That’s correct.

Potter Stewart:

There was simply Clay’s testimony but there must have been some corroboration or else there would have been a directed verdict of acquittal.

Kenneth L. Maddy:

On the part of Mr. Grice.

Potter Stewart:

About Mr. Grice.

I’m just directing my brother Brennan’s question to you.

Kenneth L. Maddy:

To review the record I seriously question where there was any corroboration, the Court at that time allowed the matter to proceed to jury, that’s correct and in the opinion —

Potter Stewart:

Then the trial court didn’t understand that California law the way you’re telling us it is.

Kenneth L. Maddy:

At that time of the trial and the review of the record I would say that the trial court determined at that time that there was some corroboration for Mr. Grice.

Potter Stewart:

What was it?

Kenneth L. Maddy:

If the Court reviews the record like I have, I don’t see it.

I don’t believe it’s there.

I don’t believe that Grice is a — the question of Grice being in this case should have ever gone at the jury.

That’s my —

Byron R. White:

Well, you don’t have to really rely on this, on just the corroboration.

Do you — let’s assume there was no corroboration applied on the California law at all, that an accomplice testimony by itself isn’t there to convict.

The fact is that here not only the accomplice testifies to identity but David did, right?

Kenneth L. Maddy:

That’s correct.

Byron R. White:

Now the jury might not have believed the accomplice at all on its own and here was another witness who testified and there’s some constitutional question about his testimony.

Kenneth L. Maddy:

That’s our position that the testimony of David —

Byron R. White:

So, how could you really tell that the question be whether or not this allegedly tainted testimony of David, how it might have affected the jury?

Kenneth L. Maddy:

Well, our position is that if when the jury shouldn’t have heard it at all.

Our position is, I believe that we’re understanding each other Justice White, I believe that the point is that if the testimony of David was tainted by this lineups that was so improperly conducted then his testimony should be excluded.

That was a violation to due process that it requires reversal despite the only point that we make concerning Grice and the Penal Code Section 1111 where it applies, I believe, is involved with the harmless error rule which is raised by respondent and I feel that the basic question is whether or not these lineups and the procedures followed by the police as we’ve outlined violated due process.

Hugo L. Black:

What did you say constituted the violation of due process?

Kenneth L. Maddy:

The conduct of the police in these lineups, Justice Black.

Hugo L. Black:

I thought you said the fact that there was no corroboration.

Kenneth L. Maddy:

No, our basic premise is that the conduct of the police in the lineups, in the two lineups and the suggestions that were implied in the two lineups violated the due process as indicated in Stovall versus Denno.

The corroboration only we feel comes in to out of the question of what happened to John Henry Grice, the co-defendant and the question of corroboration comes in to what we feel if at all if this Court feels that the harmless error may apply in this case.

Byron R. White:

Was there testimony on David’s direct testimony?

Kenneth L. Maddy:

Yes.

Byron R. White:

Was there reference to the line?

Kenneth L. Maddy:

Yes, at page 33 of the record, the prosecution did bring out from David the fact that he had viewed two lineups and that he had made an identification following the second lineup.

The events and circumstances surrounding the lineups in the confrontation came about on cross-examination.

Thurgood Marshall:

What was the purpose of the personal confrontation?Is that in the record?

Kenneth L. Maddy:

It was merely indicated in the record that the witness, David wished to speak to the suspect, Foster.

Thurgood Marshall:

Nothing more?

Kenneth L. Maddy:

Nothing more, what was said at the confrontation was not brought out.

William O. Douglas:

Let’s see now.

I think you said that there were three in that first lineup?

Kenneth L. Maddy:

There were three in that first lineup.

William O. Douglas:

And I gather, David was not able to say was he of looking at the three of them that Foster was the one, is that it?

Kenneth L. Maddy:

That’s correct.

William O. Douglas:

And then David asked the officers if he could speak privately to Foster?

Kenneth L. Maddy:

That’s correct.

William O. Douglas:

What did they talk about?Does that appear?

Kenneth L. Maddy:

It was not brought out and it’s not in the record what they talked about.

It was merely that they had a conversation in the presence of the District Attorney and in the presence of the present of police officer in a private room, their conversation took place.

Earl Warren:

Was there some testimony on there that during the course of the holdup that the witness David had talked to the man, the taller man of the group.

Kenneth L. Maddy:

David testified that the taller individual uttered approximately four phrases.

I think comprising 18 words and he did make some reference in the testimony as to the softness of the voice.

Potter Stewart:

Now, didn’t David tentatively identify the man at the first lineup before he’d spoke to him?

Kenneth L. Maddy:

There is a reference in the record that David indicated that “I thought —

Potter Stewart:

That he thought it was the man?

Kenneth L. Maddy:

“I thought it was the man.”

Potter Stewart:

And then he wanted to make anyone who talk to him to make sure is that what he wanted.

Kenneth L. Maddy:

He wanted to talk to him, that’s correct.

The point is that he did not make and our point is that he did not make a positive identification that he said, “I thought it is the man” and we point to the fact that the composition of the first lineup which could only bring about one thing and that was that the individual would think that it was the man he was taller, he was the lone tall suspect, and he was dressed similar to the man described by David who robbed him.

We suggest to that suggestion in itself brought about the personal confrontation.

We have indicated in our —

Earl Warren:

May I ask what exactly did David say after he had talked to the defendant?

Kenneth L. Maddy:

He was unable to make an identification.

“I was not —

Earl Warren:

Is this precise language in there?

Kenneth L. Maddy:

In the record?

Yes.

The exact page, he says “I was” — I don’t have it right of hand.

He says, “I was not sure.

I could not make a positive identification.”

It was his answer on cross-examination and again the second lineup was 10 days later.

Now, we have made a second contention concerning a violation of privilege against self-incrimination, mindful of the Court’s decisions in Wade also we know that the dissents in Wade.

We believe this case may present a factual situation that the Court can again review, voice identification compelling a person to speak of the lineup in relation to Fifth Amendment.

There are no statements used?

Kenneth L. Maddy:

There were no statements, Justice Harlan, used.

It was merely the fact, it is in the record and it is clear in the record that a “conversation” took place and we ask the Court if there are certain considerations and points that we’ve made in our brief concerning this point which we believe are clear, I believe that there are certainly theories whether you use an active volitional versus passive theory or to this effect that requiring a man to speak is sufficient to violate his rights, we feel that the —

Potter Stewart:

That conversation been asked by the Chief Justice’s question a little earlier appears on the bottom of page 39 and top page 40 of the record on cross-examination of this.

Kenneth L. Maddy:

Yes, there was nothing in the direct examination as to that it was brought out on cross-examination the fact that they were unable — he was unable after the conference to make an identification.

Potter Stewart:

You said, “That’s the question you are not sure at that time.”

And he said, “Pardon me” and you repeated, “You are not sure at that time.”

The answer is, “I truthfully, I was not sure.”

That’s what you were referring to?

Kenneth L. Maddy:

That’s correct.

We will reserve a moment or two if the Court please to for rebuttal.

We respectfully request and submit that the facts and circumstances of these lineups and the personal confrontation were such that they violated Mr. Foster’s rights of due process of law and we respectfully request the matter of the Fifth Amendment rights to be reviewed also.

Earl Warren:

Ms. Maier.

Doris H. Maier:

Mr. Chief Justice and may it please the Court.

We would also call the Court’s attention at this point to the language in page 33 of the appendix, Mr. Justice Stewart has read from page 39 and this is the identification of Mr. David — of Mr. Foster at the first line that were he states in answer to a question, “Now with the first lineup, did you identify any person?

Was the defendant Foster in the lineup?

I did not at that time say specifically, “Well, let me ask you first with the defendant Foster in the lineup.”

“Yes, sir he was.”

Doris H. Maier:

“And did you identify him?”

I didn’t specifically say, “That is the man.”

I said, “I thought it was.”

Now, we believe that as an answer to the reason and right after that where the witness asked for the second lineup.

In this case, the rule of Stovall versus Denno should apply.

The case was tried prior to Wade or Gilbert, therefore, the basic question of counsel at the time of lineups is a critical stage of the proceeding is not a first importance in this particular case since under the rule of Stovall it would not be retroactively applied.

However, in Stovall this Court nevertheless, permitted a consideration of the confrontation depending on the totality of the circumstances surrounding it to consider a claim of lack of due process of law.

The petitioner in this case urges that the term “totality of circumstances” be limited solely to the exact circumstances of the lineup and not taken to consideration the entire case.

It is a position of the respondent that we would at least broaden the scope of this.

To take into consideration the facts involved prior to the time of the lineup proceedings.

Now, some of the criteria which may be used to determine whether the action of the police have been suggestive and tending to establish mistaken identification have been set forth as whether any preliminary information about the suspect was given to the witness or the victim prior to the time of lineup.

Whether, the victim knew the members of the lineup except for the suspect, whether, there was a prior identification by the witness or the victim of another individual.

Whether, there was a discrepancy between the preliminary lineup description and the actual one.

Whether, the witness or victim had an opportunity to observe the defendant at the time of the criminal act, the time that had elapsed between the crime and the lineup and then the facts pertaining to the actual lineup.

If we apply these criteria to the instant case, then we have in the first lineup it took place shortly after the robbery and after the co-defendant, Clay had turn himself into the police.

He then had apparently designated Foster as his co-defendant, Foster was apprehended.

At that time, the three men, the victim Mr. David was asked to come to the police station.

He was not told that they had apprehended any suspects, he was just asked to view a lineup.

In this lineup there were three men, they were all Negroes petitioner admittedly was the tallest by Mr. David’s testimony.

However, two of the other participants in the lineup who were shorter both had hats on which the robber did at the time of the robbery.

Petitioner, Mr. Foster had on a leather jacket but this apparently was his own leather jacket because he wore it at the time of the robbery underneath the coverall that was the distinguishing feature of the identification of Mr. David.

This lineup was not like Wade or Gilbert subsequent to the appointment of counsel.

It probably was prior to arraignment of petitioner’s since it was practically immediately after the petitioner’s apprehension.

There was no prompting of Mr. David the witness prior to this lineup by the police.

Earl Warren:

Was there anything about the clothing of this man in the first lineup that would distinguish this man from the others in relation to the crime?

Doris H. Maier:

No, Your Honor, except for the fact that the petitioner, Mr. Foster had on his own black leather jacket were not asked to try —

Earl Warren:

That make him that his leather is his own or whose it was.

Was there anything in the way this man were dress to indicate, to separate him from the others?

Doris H. Maier:

Well, there was no showing that all of the men were dressed alike in the first lineup.

No showing specifically is to what the other man wore.

Doris H. Maier:

Just Mr. David’s testimony that the petitioner had whom he tentatively identified at that time had this black leather jacket on.

Earl Warren:

And is that, is that the kind of a jacket that the robbery was supposed to have had owned?

Doris H. Maier:

Yes, underneath the coverall.

Earl Warren:

Yes, but it was observed before —

Doris H. Maier:

Yes, —

Earl Warren:

— at the time of the robbery?

Doris H. Maier:

— by Mr. David.

Earl Warren:

Yes, did any of the others have on such a coat.

Doris H. Maier:

No, neither the coat nor doesn’t show that they had on the coats or jacket.

Earl Warren:

What was the relationship of size to these men, four men?

Doris H. Maier:

The three — there were three men involved.

Petitioner was one of them.

The other two were smaller at this time but the other two had hats which at the time of the robbery the robbers both wore hats and petitioner did not have a hat on at the time of the lineup.

Now this lineup was apparently in the city jail and there was no showing other people were available at that time that could have been used for purposes of a lineup.

Earl Warren:

What city jail was that?

Doris H. Maier:

Fresno.

Earl Warren:

Fresno, rather large jail, isn’t it?

Doris H. Maier:

I don’t believe so, Your Honor.

Earl Warren:

Well, it’s the size of community.

Doris H. Maier:

Well that’s true it’s larger than some but it is not really Metropolitan area of California.

Then there was, as far as the circumstances of this lineup there was no showing of any brutally or police misconduct with relation to this.

And there was no showing that the petitioner, any of this man was asked to take any affirmative action at this lineup.

Right immediately after that when the victim, Mr. David had made his tentative identification.

He asked the police officer if he could hear or speak to Mr. Foster.

Earl Warren:

Now, where do we find that tentative identification that you’ve just mentioned?

Doris H. Maier:

That is on page of the appendix, page 33.

Earl Warren:

43?

Doris H. Maier:

33.

Earl Warren:

33 and let’s see just what it did say.

He had taken now his testimony at the trial.

Doris H. Maier:

We are talking Mr. David’s testimony at the trial.

Earl Warren:

Yes.

Doris H. Maier:

As to this.

Earl Warren:

Yes, now the tentative lineup that — or tentative identification that’s what I want to —

Doris H. Maier:

That was (a) 33.

Earl Warren:

And where — what is the language?

Doris H. Maier:

That was what I read at the beginning, Your Honor, I didn’t specifically say that “This is the man.”

I said, “I thought it was.”

Earl Warren:

I see.

Doris H. Maier:

And that is the position that Mr. David has taken through the course of this.

Now, right after that then in accordance with Mr. David’s request, Mr. Foster was brought into a room in which Mr. David was a police officer as well as a Deputy District Attorney.

The record shows that they had a conversation at that time.

No contents of any conversation in the state with used.

In fact, this confrontation was brought out solely by the defense counsel on cross-examination.

It was not introduced by the prosecution as part of its case.

At the conclusion of this, they still didn’t — Mr. David still didn’t make a positive identification.

But about a week or 10 days later, he was asked to view another lineup.

This lineup was apparently at the county jail.

There were five men all dressed alike in jail fatigues.

The accomplice Grice was in this lineup.

Apparently, he had not been arrested at the time of the first lineup but petitioner was the only one present, who had been present in the first lineup.

The victim identified petitioner at this time, but there was no showing that the victim had been primed between the first lineup and this last lineup.

Nevertheless, as far as the victim, Mr. David was concerned his memory improved and he was certain in his own mind that as of that time that it was Foster who was one of the robbers.

Earl Warren:

Was there any distinction as to dress or size of these particular men?

Doris H. Maier:

Not in this lineup.

Earl Warren:

I beg your pardon?

Doris H. Maier:

Not in this lineup, Your Honor.

At trial the — Mr. David and the accomplice identified petitioner and Mr. David then explained that at the time, at the scene of the robbery that he had taken a good look, a good hard look at the robbers so that he would know and impress on his mind later.

That’s on page 27 of the appendix he said “And I stopped and this at the time of the robbery, and I stopped and looked back at them I was about 10 or 12 feet from them and the place was well lit.

I could see clearly and I gave them what you call a hard look, I wanted to know in my mind and I wanted to impress in my memory that these two men were.”

Earl Warren:

Why would you think he would fail on this first lineup after he took another good hard look at them and then talked to them and then seven days later when they put him in another one he identified him now?

Doris H. Maier:

I think the man was extremely cautious individual that he was wanted to be absolutely certain in his own mind that he was accusing the right man.

That we have witnesses who desire to protect individuals and that they do not want to be guilty anyway of misidentification and this question I think in this case, Mr. David displayed.

We have several other facts with relation to the trial that I would call to this Court’s attention.

The first one was the fact that at trial no objection was raised as to the introduction of any of this evidence on any constitutional grounds.

No motion to strike was made.

Admittedly, this case was tried prior to the Court’s decision in Wade or Gilbert But it was subsequent to the Court’s decision in Malloy versus Hogan and therefore any alleged question of a violation of the privilege to get self-incrimination should have been raised by objection in the trial court.

This was not raised nor was any of the objections raised in motion for a new draft.

This fact appears in the opinion of the Fifth District Court of Appeals in the case.

It should be noted at the time of the trial, neither of the robbers were masked.

So that there was no question such as Palmer versus Patent that the question of voice identification was the ultimate.

At the time of the robbery, Mr. Foster spoke demanding the victim go get the money from the safe and told him to do it and then hurry and get the particular box.

Now, this request to get the particular box would tie in with his identity in which there was evidence brought forth at the trial of a prior conviction of Mr. Foster before a robbery of a Western Union Station in which there were — was brought forth both on the ground of similarity of modus operandi and for purposes of identity.

Earl Warren:

May I ask, Ms. Maier at the second lineup was his co-defendant of the petitioner present when Mr. David made the identification?

Doris H. Maier:

Yes.

Earl Warren:

They were both there together?

Doris H. Maier:

He did not identify Mr. Grice, the co-defendant because Mr. Grice had been the driver of the getaway car he had never entered the establishment.

Earl Warren:

I see.

Doris H. Maier:

There were three individuals participating in the robbery, Mr. Clay and Mr. Foster who were the two robbers who had entered the Western Union office and participated in the robbery.

Mr. Grice, the other accomplice had driven the get away car.

He at the time of trial testified and produced and alibi which apparently was believed by the jury.

At the time of the trial in this case, petitioner, Foster did not take the stand produced no evidence of alibi, there was no conflict in the evidence in that respect.

Earl Warren:

When with the relation to the first lineup did the co-defendant of this petitioner make his confession?

Was it before or after?

Doris H. Maier:

The record is not clear in that, Your Honor.

I would assume it was before but the record does not show.

Earl Warren:

Very well.

Doris H. Maier:

We submit that in this case the petitioner has not won verdict of proving that they’re aware of violation of his constitutional rights in the conduct of this lineup.

That petitioner had no constitutional right not to participate in the lineup.

That he also had no constitution or right not to speak for voice identification.

Doris H. Maier:

This, we believe, has been established in both the Wade, Gilbert, Schmerber cases as well as the earlier ones uphold in Breithaupt decided by this Court.

The voice identification here would only have been used this one factor of a physical identification.

It was a sound characteristic.

It was not the contents of the words that were spoken, that were of import for here.

It were the actual sound of the petitioner’s voice to the victim.

We asked this Court that if there should be any year of founding any lineups, then the application of a harmless error rule should be applied.

This Court in Chapman versus California recognized that you could apply a harmless error rule to a constitutional error.

We believe —

Earl Warren:

What standard do you think this Court set up in Chapman?

Doris H. Maier:

The standard of the error must be such that the Court could say beyond the reasonable doubt that the judgment would have been had other than the — whether it’s a particular evidence to particular error had been committed that notwithstanding this error.

Earl Warren:

Now in this case trying it according to California — the California rule, what corroborating evidence was there of the co-defendant, that would go to make this as a stand in verdict beyond in the exclusion of a reasonable doubt.

Doris H. Maier:

I believe you have not alone the testimony of the accomplice plus the corroboration of the description.

Up now, if we eliminate all of the lineup by identification by the witness, Mr. David it still would leave his testimony as to the elements of the court is to corpus delicti in his description of certainly of the clothing and the action taking at the time of the scene of the robbery would still would corroborate the accomplice’s testimony and I think you could be use the limited testimony for identification purposes.

Modus operandi could be use to aid the testimony of the accomplice.

And remember in under California law the testimony of the accomplice must be corroborated but the corroboration is required to be very slight.

And it must — it is necessary that it go to all of the elements of the event.

But we submit that in this case we have that corroboration.

Earl Warren:

Well, I’d like to know just what that corroboration is.

Let’s leave out the modus operandi that — but just as applied to this petitioner.

What’s corroborating evidence is there outside of the testimony of his co-defendant?

Doris H. Maier:

Well, you have the testimony of the victim —

Earl Warren:

The victim?

Doris H. Maier:

That as to the corpus delicti the elements of the offense of robbery.

The fact as to description of the individuals at the scene of the robbery at that time which would fully corroborate the testimony of the accomplice as to —

Earl Warren:

Well, it has to be — there has to be corroboration over and beyond the corps delicti always?

Doris H. Maier:

That’s correct.

Earl Warren:

That’s correct.

Doris H. Maier:

As to —

Earl Warren:

Now, what is the — what is there beyond the corpus delicti that attaches itself directly to this petitioner?

Doris H. Maier:

The identification of the clothing worn by one of the robbers which was petitioner at the time of the (Inaudible).

Doris H. Maier:

I’m not talking about the identification of the lineups but the — separate and apart from the petitioner himself as perpetrator.

The fact of the clothing one by one of those individuals would corroborate the accomplice.

Earl Warren:

What was that that was distinctive of this?

Doris H. Maier:

The coverall, the hat with the brim turned down, the black leather jacket showing out from underneath this coverall, the grayish-white shoes.

The accomplice at the time of the trial testified as to the clothing that the —

Earl Warren:

Well, let’s leave out the accomplice.

Now, I want the corroborating evidence.

Doris H. Maier:

Well, that’s what — it was I believe, Your Honor that the description —

Earl Warren:

Yes.

Doris H. Maier:

— of the clothing.

Earl Warren:

And that clothing was in the Court, was it?

Doris H. Maier:

That was not introduced as an exhibit, Your Honor.

Earl Warren:

Well, how do you apply —

Doris H. Maier:

It was testimony —

Earl Warren:

How do you apply that to this petitioner?

Doris H. Maier:

Well, this testimony came in through the testimony of Mr. David.

Earl Warren:

Well, I know but assuming that Mr. David’s testimony is out by reason of then, an unconstitutional identification, what corroborating evidence is there?

Doris H. Maier:

Well, if — Your Honor, Mr. David’s testimony only because of his testimony with relation to the evidence developed that the lineups would be out.

It wouldn’t strike his testimony as a witness is entirely from the firm.

That the lineup if assume — you assume that the evidence with relations to the lineups was improperly adduced with that that would not of necessity eliminate Mr. David as a witness in the case.

Hugo L. Black:

You mean to what he testified he saw and heard —

Doris H. Maier:

At the scene of the —

Hugo L. Black:

— at the scene of the crime?

Doris H. Maier:

Scene of the crime.

Potter Stewart:

Perhaps, at least to my mind, we could test out — test this out by — if I could ask you what corroboration was they would respect to Mr. Grice, the man was acquitted by the jury?

Doris H. Maier:

The only corroboration that would have been in the record —

Potter Stewart:

Mr. Grice according to his testimony sat in the automobile and never run into the Western Union office.

Doris H. Maier:

He was the one — he was only living in the same building with or next door to Mr. Foster in the room.

That was the testimony of the landlady that said they were associated there.

She had seen them as friends at that time.

Doris H. Maier:

That was the about this sum total of the corroboration as to Mr. Grice.

And Mr. Grice himself testified as to an alibi defense.

Potter Stewart:

Well, that’s certain — that certainly wasn’t proved against him?

Doris H. Maier:

No.

Potter Stewart:

So?

Doris H. Maier:

But that was the corroboration as this —

Potter Stewart:

It was very thin in other words.

Doris H. Maier:

Very, very thin.

Potter Stewart:

Questionable under —

Doris H. Maier:

And that there was a question — it was — the judge left it as a question of fact to the jury.

Potter Stewart:

Oh!

What is the question of fact?

You have the —

Doris H. Maier:

Whether there was sufficient —

Potter Stewart:

— the accomplice testimony.

Doris H. Maier:

Clay’s testimony —

Potter Stewart:

Clay and that’s all.

Doris H. Maier:

Clay was — the jury was advised that Clay was an accomplice as a matter of law and that his testimony must be corroborated.

Potter Stewart:

Yes.

Doris H. Maier:

Therefore the question was as to Grice whether there was sufficient corroboration in the jury’s mind.

Potter Stewart:

And you say the only corroboratory —

Doris H. Maier:

The only evidence that would have really it had as to —

Potter Stewart:

— evidence was the fact he had live nearby in the apartment?

Doris H. Maier:

Yes, with Foster.

Well, we would go one further point to the Court’s attention and that is at the time of this trial and under California law, the petitioner would have the right and have the right to have discovery proceedings in a criminal case that this petitioner would have had full opportunity to ascertain all the fact in circumstances of the lineup by a motion to obtain the statements of the witnesses to that lineup.

The police officers that were present and including any photos that may have been taken of the lineup by the police.

California case of Norton versus Superior Court decided in 1959, some six years or seven prior to the trial of this case would have given counsel for petitioner the right to obtain all of this material prior to its cross-examination for purposes of testing the identification.

Therefore, we have a rather unusual situation in this respect since the information was available to him and no showing was made in the record of whether petitioner did or did not avail of himself of it but he could have.

Earl Warren:

Well, what is that to do so far as this case is concerned?

Doris H. Maier:

Well, this Your Honor —

Earl Warren:

Should we would apply that on the record are we not as we have it?

Doris H. Maier:

But that is correct, Your Honor but we are referring in this to the effect on this case where the question in the primary question is the identification of petitioner.

Now, petitioner had full opportunity to develop any discrepancies in this case.

He wasn’t stopped.

The goal was I — correct the identification, a utilization of these procedures avoided by California would have given him full opportunity to explore this rights.

And we submit that in the light of the whole case petitioner has not borne the burden of proof of showing there was a lack of due process in his trial and conviction.

We ask that the judgment of the California Court be affirmed.

Earl Warren:

Mr. Maddy.

Kenneth L. Maddy:

May it please the Court, Mr. Chief Justice.

Just one or two comments on the statements of Ms. Maier.

First of all, an answer to the two points she made concerning discovery rules in California and concerning what Mr. David, the witness said at the time of trial.

I think that they’re both significant because they both point out to the real dangers involve with lineup situations.

First of all, discovery is not going to do the attorney any good except in the manner that he can bring things out on cross-examination.

As an attorney, you’re face with the problem of how far are you going to push on cross-examination because your first intent at that time is to win your case if you can at the time of trial.

You can’t try the case and hope that or the prospect as Mr. Foster to sit in false imprisonment for two years, waiting for a court such as this to change the decision based on the records you established.

In other words, I think this is the danger the prosecution is not going to bring out all the events of the lineup.

They’re going to put a witness on the stand who says, as Mr. David did, “I’m positively sure that that’s the man as I see him sitting there today.”

The point is that he made that determination based on the improper conduct of the lineup procedures before he got to court.

I think the majority of the cases do not show that the prosecution goes into prior lineups unless the individual, the witnesses cannot say for sure of the time of trial.

He has to refer that to the lineups.

So I think that the two points that the respondent makes our both pointing out dangers involved with the lineup situations.

The second point, I want to make is that Ms. Maier made to reference certain factors that should be considered by the Court in reviewing the lineups.

She mentioned, had the witness seen the man before?

Was he seen in the custody of police before?

Did he know anyone in the lineup?

Now, we feel and I contend that the second lineup is the most important lineup here because all of the things that she mentioned were violated in the second lineup.

As I said that’s crowning blow as far as the composition of the second lineup was concern it could have been perfect as far as height and appearances of the individuals but the significant point was that Walter Foster was the only man in that second lineup that was in the first lineup.

And as I say, there could not been anymore suggested situation than that presented by the prosecution at that second lineup.

Earl Warren:

Mr. Maddy, before you sit down I would just like to say to you that the Court appreciates your representation of this indigent defendant.

You’re appointed by this Court to represent him and we believe that such representation is a public service.

Earl Warren:

And we had to come for that in effect that lawyers are willing to assume that in the interest of justice.

So, we thank you and Ms. Maier, we thank you for the diligent manner in which you have represented the interest of your state.