Giaccio v. Pennsylvania

PETITIONER:Giaccio
RESPONDENT:Pennsylvania
LOCATION:General Petroleum Corporation

DOCKET NO.: 47
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 382 US 399 (1966)
ARGUED: Dec 06, 1965
DECIDED: Jan 19, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – December 06, 1965 in Giaccio v. Pennsylvania

Earl Warren:

Number 47, J. Giaccio, Appellant, versus Pennsylvania.

Peter Hearn:

Mr. Chief Justice, and may it please the Court.

Earl Warren:

Mr. Hearn.

Peter Hearn:

Thank you sir.

This appeal from the Supreme Court of Pennsylvania challenges the constitutionality of a Pennsylvania statute which provides that when a defendant is acquitted of a misdemeanor, the jury may, nevertheless, impose court costs upon him enforceable by commitment to jail.

In this case, following defendant’s acquittal, the costs were assessed upon him. He thereupon filed a motion for relief of costs which was granted by the trial court because it held the act was unconstitutional in that it was void for vagueness and that it violated certain procedural due process protections.

The statute —

William J. Brennan, Jr.:

How much were the costs?

Peter Hearn:

$230.95 sir.

On appeal to the Pennsylvania Superior Court, this result was reversed and the Pennsylvania Supreme Court affirmed the reversal, and on May 24th this Court noted its probable jurisdiction.

William J. Brennan, Jr.:

What does this cost cover?

Peter Hearn:

Most sir, were witness fees.

I believe about a $180 per witness fees.

There were some — for the Constable, some for the Justice of the Peace, and I believe that took care of just about —

William J. Brennan, Jr.:

There’s no transcript cost?

Peter Hearn:

No, sir, there is not.

William J. Brennan, Jr.:

No ordinarily is that the case?

Peter Hearn:

Well sir, I cannot speak from personal experience as to whether that is or is not as a matter of custom in other cases included.

Earl Warren:

When justice of peace received a part of his salary from the fees of this kind?

Peter Hearn:

Well, sir, I know that in Philadelphia County, he does not from which I come, but in Chester County from which this case comes, I believe he does but I’m not certain.

Earl Warren:

I see.

Peter Hearn:

The statute itself contains no standard whatsoever on its face.

It merely provides that the jury may impose costs upon an acquitted defendant.

If the jury does, the court and to use the statutory language, “shall forth with pass sentence to that effect and order him to be committed to the jail of the county until the costs are paid, unless he gives security.”

William J. Brennan, Jr.:

How old is this case?

Peter Hearn:

The particular statute was enacted in 1860.

However, its predecessor was — which was exactly the same in statutory language was enacted in 1804.

Therefore, on its face, the statute provides no standard which restricts in any manner the uncontrolled and arbitrary discretion of the jury in its practice.

Furthermore, the decisions have not removed this unconstitutional vagueness and I submit that the jury charge in this particular case was typical of jury charges in Pennsylvania and was in-line with the Pennsylvania authorities which attempted to construe this act.

In this case, the jury was charged where defendant is found not guilty of a misdemeanor, but the jury finds that he is been guilty of some misconduct less than the offense which is charged, but nevertheless, misconduct of some kind as a result of which, he should be required to pay some penalty short of conviction.

Peter Hearn:

The costs of prosecution may be placed upon him if his misconduct has given rise to the prosecution.

This charge stems primarily from an 1818 Pennsylvania decision which construes the act of 1804 which as I stated to Mr. Justice Brennan was the exact predecessor of the interns of statutory wording of the act which is now before the Court.

In that case, the court construed the statute and the situations in which it would be imposed as saying that costs would be imposed upon a defendant whose conduct may have been reprehensible or whose innocence may have been doubtful and the costs are imposed for impropriety of conduct or grounds of suspicion.

The result therefore is that not only did — does the act not have a standard on its face but as construed, it is unconstitutionality vague.

There is no standard to guide the jury in its deliberations.

Furthermore, a trial court in attempting to ascertain whether the jury abused its discretion has no standard to guide it.

William J. Brennan, Jr.:

Well, how is this done Mr. Hearn?

Is there evidence of what the costs are on which the jury makes determination or is there just an assessment cost that someone else has computed?

How is it done?

Peter Hearn:

I believe it’s the latter, Mr. Justice Brennan.

William J. Brennan, Jr.:

It is?

And who —

Peter Hearn:

Yes, sir.

William J. Brennan, Jr.:

Who computes it?

Peter Hearn:

Well, it is — it’s the question that —

William J. Brennan, Jr.:

Well, here is $230.

Peter Hearn:

Yes, sir.

William J. Brennan, Jr.:

Now, what was before the jury that made up $230?

Peter Hearn:

Well I can — there was a charge of the clerk of the court for $10 —

William J. Brennan, Jr.:

No, but it was — was the jury told that?

Peter Hearn:

On in — only the portion of the charge — of the court’s charge which dealt with cost has been transcribed in this case and it does not appear in there so that I — I cannot, but I believe the practice is that the — it appears from that portion of the charge that the question of costs is dealt with — in just those terms.

In other words, the jury doesn’t know under this practice how much — how much is involved?

There — it was —

Peter Hearn:

Mr. Justice Harlan, I cannot state that unequivocally.

I believe that’s the case on this —

No, how high can these costs –-

Peter Hearn:

Well, I do know that in a case pending the results of this appeal, the costs have exceeded $2000.

That case involved a misdemeanor of macing and involving political activity wherein there was a verdict of acquittal, but costs in excess of $2000 were assessed against the defendant and a motion for — in arrest of judgment has been taken and it has been held pending the results of this appeal.

I — there’s also another Pennsylvania case involving criminal liable where — also, awaiting the results of this appeal where I believe, although it does not appear from the published opinion that the costs exceeded $1000 and in that case, there was also a verdict of acquittal.

This applies in all — all crimes of Pennsylvania?

Peter Hearn:

No, sir.

It applies only in the cases of misdemeanors which are tried by jury.

It does not apply in the case of summary offenses nor does it apply in the case of felonies and in the case of felonies and misdemeanors — excuse me, summary offenses, it is expressly proscribed by statute.

So that —

Abe Fortas:

If a — excuse me sir.

If the misdemeanor is — if the jury has waived which I suppose is possible under Pennsylvania law —

Peter Hearn:

Yes sir it is.

Abe Fortas:

— does this provision still obtain?

Peter Hearn:

No, it does not?

Abe Fortas:

In other words, you not only have a time for misdemeanor with the right to jury trial, but you actually have to have a jury trial?

Peter Hearn:

That’s right.

But Mr. Justice Fortas, I might point out that in a — another count tried at the same time as the case here on appeal involving the same appellant, there was a directed verdict for the defendant, but the issue of costs was still submitted to the jury with the possibility that they would be placed upon the acquitted defendant.

However in that case, they were placed upon the county, but I think this shows that the practice is that even though the case on the misdemeanor is not sufficient to take it to the jury, still the costs issue does go.

So that — as construed the standard here provides no basis for an appellate court on review to determine exactly why the jury acted as it did.

It’s entirely possible for the jury to punish some defendants and not others, merely as it chooses, entirely in its arbitrary discretion.

While Pennsylvania is the only state which I know of which has the statute, I submit that other states would not be precluded from enacting such a device to abuse defendants if this statute were affirmed here?

Byron R. White:

What happen if the defendant is found guilty?

Peter Hearn:

If the defendant is found not guilty?

Byron R. White:

Found guilty.

Peter Hearn:

Found guilty, well then costs would be imposed upon him.

Byron R. White:

The jury has nothing to do with that act.

Peter Hearn:

Well, this Act speaks only in a cases of acquittals and it provides that they may be placed upon the county or the defendant or a private prosecutor.

Earl Warren:

Does it require the — the defendant to pay costs in any jury conviction in a misdemeanor case?

Peter Hearn:

No sir, it does not?

Earl Warren:

It does not.

So the jury still has the option.

It might find him guilty of a crime with which he is charged but does not require the jury to assess costs against him?

Peter Hearn:

Insofar as this statute is concerned —

Earl Warren:

That’s what I’m —

Peter Hearn:

Yes, sir.

Earl Warren:

— speaking.

Peter Hearn:

That is correct.

Earl Warren:

Yes.

Peter Hearn:

Yes, sir.

Earl Warren:

Yes.

Why — why you said that for us to be indicted in prosecutor, you mean a public prosecutor?

Peter Hearn:

No, sir.

The private prosecutor.

The private one.

Peter Hearn:

Yes, sir.

Oh.

Potter Stewart:

By that you mean the complainant or the prosecuting witness?

Peter Hearn:

Yes, sir.

The — the charge as indicated in the appendix to our brief directs the jury to — if they decide to place the costs upon the pros — private prosecutor to name him and in this case, it would be as I understand the term that complaining witness.

Byron R. White:

Well, would you be making the same argument appeared to represent it — instead been imposed on the private prosecutor in this case than you represented him?

Peter Hearn:

Well sir, I think I would because — while it’s not a strong case, it still involves no standard for the imposition of these costs.

Yes, it is a different case because a prosecutor always has the option of whether he wishes to embark upon this particular part — area, whereas the defendant does not.

But even so, I would think that there is no standard for this particular county because even in that case, the fine or the costs may be enforced by commitment to jail.

Potter Stewart:

There’s some indication of a — some sort of a standard on page 2 (a) of your brief.

The judge’s instructions to the jury saying that if they decided that the — if you find that the prosecution instead of being brought in good faith for the reasons set forth in the charge was on the contrary brought out of malice or some ill will or other improper motive, they — the jury should then impose the costs on the prosecutor.

So at least, there’s that much of a standard set out for him, isn’t it?

Peter Hearn:

Yes, sir.

I —

Potter Stewart:

Which is more than a set out for the — as a guide for their imposing cost of a defendant, is it not?

Peter Hearn:

Yes, sir.

That’s correct.

I — that is exactly correct, yes, sir.

So that the — if another State did enact a statute of this sort with which to abuse acquitted defendants, I think that it is entirely possible that it would sweep within its purview perfectly legal and even constitutionally protected acts.

Certainly, in the areas of political activity or civil rights demonstrations or the like, it would be entirely possible for a jury to be completely out of sympathy with the costs which the defendant espoused, even though there had been no case made out on misdemeanor.

Is there any other state that allows this?

Peter Hearn:

None that I know of.

I believe Mr. Justice Harlan, that Pennsylvania is the only state.

The vagueness of the statute permits this arbitrariness.

However, there are further and additional constitutional infirmities which deal with its implementation at trial.

Here, there are numerous procedural due process objections, each of which is sufficient to render the act unconstitutional, but taken cumulatively, they leave no doubt.

Initially, there’s a lack of requisite notice of the grounds for which this penalty may be imposed.

The defendant has no idea, only the costs may be assessed.

The only hearing is the hearing on the misdemeanor itself.

There is no hearing on this misconduct charge.

Therefore, any defendant who seeks to show that he — the absence of misconduct or the existence of good conduct, would not be permitted to do so.

The basic defense is further prejudiced by the fact that he might have to take the witness stand in his own defense merely to rebut the cost possibility whereas otherwise he would not.

And under Pennsylvania practice, if the defendant seeking to rebut against costs offered evidence of good character, the prosecution could come back with the — a record of prior convictions which it would not be otherwise able to do.

So that the — the defendant is forced to elect, and if he elects to defend against costs, he prejudices his defense on the merit.

Accordingly, I respectfully request that this Court reverse the Supreme Court of Pennsylvania and hold that the Act is unconstitutional insofar as if it — as it is applied to acquitted the defendants.

Thank you.

Earl Warren:

We’ll recess now.

Mr. Halsted.

John S. Halsted:

Mr. Chief Justice, may it please the Court.

I think at the outset, it might be helpful for the Court if they perhaps understood the basic position of costs in criminal cases in Pennsylvania.

To answer some of the questions, costs in felony cases follow the conviction.

If the felon is found not guilty the costs are paid by the county.

In misdemeanor cases only as we have here, the costs can be placed three places by the jury; on the prosecutor, on the defendant or in the county.

The jury also has the option of splitting them between the prosecutor and the defendant.

Potter Stewart:

Do you agree with your colleague that the prosecutor by that is meant to be private complainant?

John S. Halsted:

I cannot — Mr. Justice Stewart.

Usually the court in these matter charges of the jury that police officers or rather other public officials during their duty should not have the costs placed upon them unless it’s a clear abuse of their power.

In other words, clearly a case where the officer was using his authority to persecute someone, but it — it applies to all prosecutors, be they — officials or a private prosecutor —

Potter Stewart:

What do you — what do you call a lawyer who tries the case for the prosecution?

John S. Halsted:

Prosecutor District Attorney.

Potter Stewart:

Do you call him a prosecutor too?

John S. Halsted:

Not usually.

Potter Stewart:

Alright.

So this statute doesn’t refer to him.

The jury — so the jury doesn’t have the power to impose the costs on him personally, doesn’t it?

John S. Halsted:

No.

It is further limited — that the prosecutor must testify at the trial in order to have the costs placed upon him even though on the back of the bill of indictment, a name is indorsed as prosecutor, the jury can find that they are not the real prosecutor and put them on whoever testifies, who they feel is the prosecutor or the moving force behind the prosecution.

William J. Brennan, Jr.:

Testify as to what, Mr. Halsted?

John S. Halsted:

Beg your pardon?

William J. Brennan, Jr.:

Testify as to what at the trial?

John S. Halsted:

Of any fact.

William J. Brennan, Jr.:

That is bearing on guilt or innocence?

John S. Halsted:

Yes.

Any fact can make out the case of the crime charged —

William J. Brennan, Jr.:

Now what evidence, if there is any, of actual out-of-pocket costs does the jury hear?

John S. Halsted:

They have none.

This — the costs are compiled by the clerk of courts from his records and the jury has no idea what the cost would amount to when they pay a sentence.

They merely find that the defendant or prosecutors, as the case may be or the county shall pay the cost and they are assessed by the clerk.

William J. Brennan, Jr.:

And that’s true where there was the misdemeanor prosecution and acquittal of the accused?

Where there’s an acquittal of the accused, the jury — if it assesses cost —

John S. Halsted:

Yes.

William J. Brennan, Jr.:

— it doesn’t know where —

John S. Halsted:

It has no idea what the cost amount to.

William J. Brennan, Jr.:

And could these include the other costs of a transcript?

John S. Halsted:

No.

These are record costs.

These are the cost which include — they do include the justice of the peace cost, the magistrate cost in that when he sends a transcript to the clerk of courts, there is a $10 fee which the county immediately pays him and then, the county is reimbursed by the prosecutor or the defendant as the case may be or the county ends up bearing it.

William J. Brennan, Jr.:

Well, how — I think we heard Mr. Hearn was arguing of the — the couple of cases that where the mouth runs as high — thousands, couple of thousand dollars?

John S. Halsted:

That is correct and —

William J. Brennan, Jr.:

Well, how is it get that high?

John S. Halsted:

These, as Mr. Hearn point out are primarily witness fees because every time a witness appears at grand jury or for trial, every time that he signed in to appear in that case, he is entitled to the statutory witness fee plus mileage and that — if such a case which involves a lot of witnesses it soon builds up.

Earl Warren:

Does any part of this go to the salary of the justices of peace?

John S. Halsted:

Not directly, no.

The county in the first instance pays the justice of the peace when he sends his transcript in.

Earl Warren:

They pay him per case?

John S. Halsted:

Yes.

There’s a statutory —

Earl Warren:

When the case is finished?

John S. Halsted:

I believe he’s paid immediately.

Earl Warren:

Before it starts?

John S. Halsted:

That’s right.

As soon as his —

Earl Warren:

How could they know?

How could they know how long it was going to last to what it is?

Is there statutory fee for each case?

John S. Halsted:

Yes, Your Honor.

There’s a — I think its $10 for felonies and $5 for misdemeanors if — when he turns his transcript in —

Earl Warren:

Yes.

John S. Halsted:

— the County sends him a check for that amount.

Yes.

Tom C. Clark:

It does depend on guilt of finding –-

John S. Halsted:

No.

He is entitled to that under any case in — if the jury wants to under the statute reimburse the county which is about what it amounts to for what they have expanded.

Tom C. Clark:

(Voice Overlap) It’s been only applies where you have a jury?

John S. Halsted:

I beg your pardon sir?

Tom C. Clark:

Only applies where there’s a jury?

John S. Halsted:

That’s correct.

Tom C. Clark:

Then they have a free alternatives, One, the complaining witness, two, the prosecutor, and three, the defendant himself even though they find him not guilty?

John S. Halsted:

That’s correct or if they may split them between the prosecutor and the defendant if they find it was sort of a backyard fight or something of that nature then they — they can both bear the costs.

William J. Brennan, Jr.:

What — do you mean the jury comes in with the verdict then cost to be equally divided or something?

John S. Halsted:

Yes.

William J. Brennan, Jr.:

I see.

John S. Halsted:

Or they can say one-third, two-thirds of — it’s entirely up to them.

Tom C. Clark:

How do they know whose the complaining witnesses, is that always prove them or does that — difference but —

John S. Halsted:

In the court’s charge, the court will say on — so and so is endorsed as a prosecutor on this bill of indictment.

However, you may find that he is not the actual prosecutor and if another person has testified, who you believe to be the actual prosecutor, you may place the cost on him.

Tom C. Clark:

Because most of these cases they have a complaining witness, would they not?

John S. Halsted:

That’s correct.

In most of the cases, it’s a police officers, the prosecutor.

Earl Warren:

So a man might be subpoenaed as — as a witness for the prosecution and he would testify in accordance to that subpoena, and then the jury might decide that he’s a real prosecutor in the case in — and assess costs against him, is that right?

John S. Halsted:

That’s correct.

If they feel that — that he has brought this out of malice rather than — because he honestly believes some crime has been perpetrated for some misdemeanor.

Byron R. White:

Are there any statistics on how often that cost are placed some — on someone other than the county?

John S. Halsted:

I know of none.

I — from personal experience, very limited, I would say infrequently.

Earl Warren:

Infrequently?

John S. Halsted:

Infrequently and as the Supreme Court of Pennsylvania observed and it’s actually the case of — it’s usually and I don’t mean to be factious but it’s usually where the defendant is guilty but the jury doesn’t think that he should bear the burn of having a record maybe against him –-

Earl Warren:

The juries — jury says not guilty but said don’t do it again.

John S. Halsted:

That’s correct and that — that that’s actually how it works the majority of the time.

It’s a great benefit to defense counsel the statute that is just offered.

Tom C. Clark:

It’s justified against him —

John S. Halsted:

Pardon sir?

Tom C. Clark:

They just assess the finding against him though.

John S. Halsted:

Yes.

Except the —

Tom C. Clark:

— the fact, those words —

John S. Halsted:

— the Supreme Court of Pennsylvania observes it — costs aren’t applying because they’re separate and apart.

They follow in the judgment —

Tom C. Clark:

I just think of it as a practical pay.

John S. Halsted:

Well, that’s right.

It comes right out of his pocket.

Tom C. Clark:

Yes.

John S. Halsted:

There’s no question about that.

William J. Brennan, Jr.:

If there’s any suggestion that — I must confess, I’ve never heard of a statute like this before —

John S. Halsted:

Yes.

William J. Brennan, Jr.:

-– and I understand, this has been on Pennsylvania’s books since 1804.

John S. Halsted:

That’s correct.

William J. Brennan, Jr.:

Is there any suggestions of a reason why in the case of an acquitted defendant this practice was provided?

John S. Halsted:

You can only speculate from the history of the Act.

Back in 1791 when the legislator first started to deal with this, the preamble says, that if the defendant always paid the cost whether he was guilty or innocent and that this worked as injustice on the defendant and therefore, they sought to relieving.

In 1804, they reenacted the statute and they added the part putting the defendant and the prosecutor making them possibly both of them liable.

And then in 1860, they reenacted it with some more embellishments providing for the divisions and a percentage placed in their cost.

Earl Warren:

Well — may I ask, this — is there any reason that it has been stated why they would do this with the jury?

Why they would have a jury assess cost whether if a man didn’t waive the jury, it didn’t have a jury that the Court could not assess which cost against him?

John S. Halsted:

I have no idea unless they felt that the jury were better able to assess what they thought was improper behavior which led to the prosecution.

And the any other reason that I can give possibly when the statute was written, I would suppose that the jury trial were more prevalent.

I’m only speculating on.

Byron R. White:

But what — what was the situation in the ordinary crimes of say in the 16th to 17th Century?

The defendants always paid the cost whether they are guilty or innocent or they build there innocence that the common law or what?

John S. Halsted:

There — there some dispute of that.

As they say in England that this was not so but the Pennsylvania, the early Pennsylvania case say that at least in Pennsylvania and there’s evidence in Delaware, some cases there that guilty or not guilty, the defendant paid the cost.

And there’s a —

Byron R. White:

This was — this wasn’t an English view, was it?

John S. Halsted:

No.

The English had the statute somewhat comparable to this which if the judge failed to certify that there was a reasonable cost for bringing the prosecution, the prosecutor might have to pay the cost but there is nothing exactly like this.

Earl Warren:

May I ask just one more question, please.

This is a general state statute.

This — it applies in the City of Philadelphia and Pittsburgh just as it does in the other parts of the — of the state?

John S. Halsted:

It does, Your Honor.

Earl Warren:

And is it — is it followed in those cities?

John S. Halsted:

To the best of my knowledge, it is.

Earl Warren:

It is, alright.

John S. Halsted:

I know but I didn’t notice —

Earl Warren:

I — I know but I notice wherever I just — I just want to —

Byron R. White:

[Inaudible] accept that?

Abe Fortas:

But during — Mr. Hearn, can you help me at all with respect to the reason why or just the case you would before the differentiation between the misdemeanor and the felony?

No.

Mr. Halsted, I beg your pardon.

I’m so sorry.

John S. Halsted:

If I understand Your Honor’s question.

Why they picked on misdemeanor defendants rather than felony in —

Abe Fortas:

Why did the — why the statute felony on this too?

John S. Halsted:

Of — the only thing I can observe is what the Supreme Court of Pennsylvania observed that may the public interest in felony prosecutions was great enough that they would bear the costs in all cases.

You might from the legislative history go further and speculate that it’s the misdemeanor cases which are most likely to arise out of personal feuds if you will or things of that nature.

And that the — perhaps the public doesn’t have the greatest interest in some of them as they do in the felonies.

I would with regard to the summary matters of the justice of peace has broad power to dispose of the costs as he sees fit.

So that’s only speculation, there’s no legislative history which states this.

Earl Warren:

May — may I ask just one more question on procedure?

Does the statute say itemize what cost shall be assessed —

John S. Halsted:

No, it does not.

Earl Warren:

— in the case?

John S. Halsted:

It does not.

Earl Warren:

How is that determined?

John S. Halsted:

I suppose only by tradition whatever the costs which the county pays in which there is a record made.

Any costs which come out of county stock if you will and which the clerk has a record.

I think traditionally that has been considered on the cost –-

Earl Warren:

There no guidelines at all that — that the justice of peace must follow?

John S. Halsted:

Yes.

He — he’s only allowed certain costs and they are set out by statute what he may charge per case and the same —

Earl Warren:

Now, I will — to make specific in this case, I’d like to acknowledge if there’s any thing in the statute that — that prescribes, how this $263, or whatever it is, in this case is made up?

John S. Halsted:

Not in the statute which were here considering, no.

Earl Warren:

If — well, now, how does — how does the justice of peace to know that the costs in this case should be $263?

John S. Halsted:

Well, he has nothing to do with it as soon as the justice of peace returns his transcript to the clerk of the court’s session’s court, he is finished with the case and his costs are then paid and the remaining cost — he will have his cost for $10 plus a mileage for constable and then the remaining cost or witness fees and things that the clerk of the court keeps when he sends out a subpoena and a person reports then he marks them down for so many days and so many miles and this is assessed as a cost.

Tom C. Clark:

That’s all the things the statute but not —

John S. Halsted:

That’s correct.

Tom C. Clark:

— but this does it in the other statute —

John S. Halsted:

That’s right.

Other statutes —

Tom C. Clark:

The clerk gets so much with the stand which seal on the books —

John S. Halsted:

That’s right.

Tom C. Clark:

— and on the file.

John S. Halsted:

I see.

Of — our first point is that Mr. Hearn makes the point for the appellant that there’s no guidelines in the statute and we say, you’d have to look to the cases which have developed and applied this over the 161 years that’s been in operation and traditionally from these cases the guidelines are — if the court charges them some misconduct which has given rise to this prosecution.

In other words, some possibly antisocial behavior which you feel that the county should not have to bear the cost for the defendants’ behavior and you wish to punish him, if you will, in some regard and also relieve the county from the burden from these costs.

So the statute does not contain this language.

Only the way the Court supply it and the way that the Pennsylvania Supreme Court has interpret it, they say, “Of course, you could not make a defendant pay cost in a case where his conduct was completely unrelated to the — to the prosecution.

For instance, it would be abuse of discretion, I believe, should the jury quite the cost on a defendant who is found not guilty because there was some doubt about identity or he’d being the person who was actually perpetrated the misdemeanor.

Earl Warren:

Must the jury — must the jury assess costs against a convicted misdemeanor?

John S. Halsted:

No.

They follow the conviction.

Earl Warren:

I beg your pardon?

John S. Halsted:

They follow the conviction costs in cases of felonies and in case of convicted misdemeanor the costs are automatically —

Earl Warren:

No, I mean in this kind of a case?

John S. Halsted:

Yes.

Earl Warren:

In this kind of a case?

Conviction carries with it automatically the requirement to pay cost.

John S. Halsted:

That’s right.

It’s not even — it doesn’t have to be sentenced that way, although courts usually do.

Earl Warren:

Yes, yes.

John S. Halsted:

The next point that say that the statute puts the defendant on clear notice that this is a possibility.

It doesn’t say under what conditions but it says if you go to trial and if the grand jury finds a prima facie case and if the Commonwealth makes out a prima facie case and the case goes to a jury and the jury finds you not guilty, you may not be off the hook, you still may have to pay the cost of prosecution if they decide that the — your conduct has led to the prosecution and that we say that statute clearly notifies the defendants that this is a possibility.

John S. Halsted:

There’s an objection that there are no other guidelines.

We would say that if the evidentiary rules which control the evidence which would be produced at the trial of misdemeanor would keep excess or nondescript or unessential facts from the juries so that the — it wouldn’t be any prejudicial information come in because they are circumscribed by the rules of evidence.

And say that there’s a further safeguard that the court, if they feel the jury has abused there discretion and clearly, mismanaged the question of costs, the Court can relieve the defendant or the prosecutor if it seize fit of from the payment of these costs.

So we say, those are the safeguards which are defined them these statutes —

Hugo L. Black:

What are the guidelines given to the jury?

Did I understand you to say when they had told that if you put the defendant, you may also assess costs against?

What are the guidelines of the Court?

John S. Halsted:

The — the guidelines traditionally used are — if you find that the defendant has been guilty or has committed some misconduct which has given arise to the prosecution in this case, you may assess the costs against it.

If you find that —

Hugo L. Black:

He’s been guilty of some —

John S. Halsted:

Misconduct.

Hugo L. Black:

— misconduct which is unrelated to the case?

John S. Halsted:

No!

No, which has given rise to this prosecution, that is the way it’s usually charged.

Some misconduct —

Hugo L. Black:

Was mis — was misconduct — are they defined — have they defined for the jury?

John S. Halsted:

No.

Could the misconduct relate to something that’s not itself a crime under Pennsylvania law?

John S. Halsted:

I would suppose so.

If I may take the facts of this case as an illustration, the defendant here was charged with pointing and discharging a deadly weapon which is a misdemeanor.

His defense at trial was it — it was a blank pistol which he discharged.

In other words, no — if the pistol is inoperative, then there’s no crime under Pennsylvania law.

But the jury, I suppose found it because he discharged this blank pistol and because the people brought the prosecution had no way of knowing it was blank until he so testified that his conduct had given a rise to the prosecution and that he should pay the costs.

That — that’s how it works.

To answer you question, it is possible to having pay the cost for something conduct it is not a crime.

Earl Warren:

Suppose this conduct was in connection with an assault on someone and the defense was self-defense, no other defense except just self-defense and the jury found that he was not guilty because others — of his defense of self defense and then it chose to assess these costs against him, would that be sustained?

John S. Halsted:

Well, I could — I think it probably would if — it was his conduct with which gave rise to this and the jury felt that he was very lucky in missing the conviction so to speak and should relieve the county of the payment of cost.

It’s a case-by-case application.

That’s why the jury, I suppose, is asked to make the determination.

They are ones who have to view the facts and come to some conclusion about it.

Abe Fortas:

I started to notice that the statute says nothing about the Court supervisor, the magistrate supervisory power over the security of the termination of the cost.

John S. Halsted:

Yes.

Abe Fortas:

Do you know whether as a matter of fact there are instances — in the instances are frequent or are they rare where the magistrate has set aside the jury determination?

John S. Halsted:

I can only speak from personal experience and I know of only one case in last five years.

Abe Fortas:

Where that’s been set aside.

John S. Halsted:

Yes, sir.

Abe Fortas:

Because statutes says that the — after the jury makes its determination that the court shall forth with pass sentence to that effect.

John S. Halsted:

That’s correct.

Abe Fortas:

And there’s no indication of any standards or standards of review or standards of setting to decide no explicit recognition to that.

John S. Halsted:

No.

However, the Supreme Court in Pennsylvania has found that there is a common law power which the — then a case cited in my brief which is quite old in which the Court always has supervisory powers over the question of costs and over the workings of the jury.

William J. Brennan, Jr.:

Which court?

John S. Halsted:

This would be at the trial court, we’re not talking —

William J. Brennan, Jr.:

— made themselves?

John S. Halsted:

No.

Not the magistrate.

This would be an elected judge at the first trial court level.

William J. Brennan, Jr.:

But what if I get the [Inaudible]

John S. Halsted:

Sir?

William J. Brennan, Jr.:

What happened to — in acquittal before magistrate in the jury, is that it?

John S. Halsted:

Perhaps, we’re arguing about terms, but it’s not a magistrate.

It is in fact the judge.

William J. Brennan, Jr.:

He is the judge.

John S. Halsted:

Right.

William J. Brennan, Jr.:

Before him and a jury.

John S. Halsted:

That’s correct.

William J. Brennan, Jr.:

And then he — if the jury says, costs against the acquitted defendant — the statute sets forth with be shall sentenced the costs.

That’s what I —

John S. Halsted:

That’s correct.

William J. Brennan, Jr.:

— that is right?

John S. Halsted:

That’s correct.

William J. Brennan, Jr.:

And it goes to the — as I understand it, administratively it’s handled by the county clerk?

John S. Halsted:

That’s correct.

William J. Brennan, Jr.:

Now, may the acquitted defendant go back to the trial judge and while — ask that they — that whole jury determination in respect to cost be set aside?

John S. Halsted:

Yes, that’s what happened in this case.

William J. Brennan, Jr.:

Alright.

John S. Halsted:

I think he petitioned the Court did set aside the cost because the jury he said —

Byron R. White:

Well, yes, but the — he does have the power to set or decide?

John S. Halsted:

The judge does.

Yes.

Byron R. White:

Yes.

John S. Halsted:

And he —

Byron R. White:

If — that happened in this case?

John S. Halsted:

That’s correct.

The — the judge set it aside because he found the statute unconstitutional.

Earl Warren:

But does he have the right to set it aside under the statute because he doesn’t believe there’s any misconduct for which the jury should have assessed the cost?

John S. Halsted:

Not under the statute but it is a common law power.

Should a common law supervisory power over juries allows him to do this if they have abused their discretion and it feels that there’s no evidence to sustain their finding on costs, he can reverse their decisions.

Byron R. White:

What’s your — what’s the citation on it?

You have it there on the case that’s says the — on your Supreme Court case it says, the magistrate has that power.

Is that in your brief?

John S. Halsted:

Yes, it is Your Honor.

Byron R. White:

Alright.

Hugo L. Black:

Suppose he doesn’t pay this cost?

John S. Halsted:

I beg your pardon sir?

Hugo L. Black:

Suppose he does not pay the cost?

John S. Halsted:

If he doesn’t pay the cost or he doesn’t give security for the payment within 10 days and he can be incarcerated under the statute.

Hugo L. Black:

How long?

John S. Halsted:

Traditionally, I would suppose up to 90 days.

Abe Fortas:

The statute says until the costs are paid unless he gives security.

Abe Fortas:

Statute reads as if it were indefinite and he would kept in jail indefinitely?

John S. Halsted:

But — there is another statute in Pennsylvania which controls the case of people who cannot pay fines or costs and it’s a 90-day sentence and then they are discharged.

They can serve no more than 90 days on that —

Abe Fortas:

Is that cited in your brief?

John S. Halsted:

No.

That statute is not.

Did the defense [Inaudible]

John S. Halsted:

They tried but the Court does not usually let them argue this.

They —

[Inaudible]

John S. Halsted:

No.

It has not.

There’s never been any activity on —

Tom C. Clark:

90-day, is an [Inaudible] statute, is that right?

John S. Halsted:

I believe so.

It has to do with the indigents.

There’s also, if the Supreme Court found that if the defendant was unable to pay these then he could be discharged under the old bankruptcy statute without serving any time whatsoever.

But if he petitioned, he could be relieved —

William J. Brennan, Jr.:

I suppose he was just one of these stubborn people and there are people like that, they had thousands of dollars in the bank but he wasn’t going to sign any check to those costs.

He kept on there with 90 days limit, he has got all the money in the world?

John S. Halsted:

I would say, yes.

Hugo L. Black:

Suppose this was a statute said in terms if your answer for the independence but one issue by fine not more than 20 less than $5000 as to what — a man who engaged in misconduct, would that be valid sentence?

John S. Halsted:

I would think not.

Hugo L. Black:

Why?

John S. Halsted:

Misconduct is — is too vague, if there’s not tried to anything.

Hugo L. Black:

As I understand it, you’ll — that’s the standard your court says should be applied here?

John S. Halsted:

No.

I think — I think here you have a somewhat more.

You have misconduct which gave rise to this prosecution.

Hugo L. Black:

I suppose it made that the defense, that anyone guilty of misconduct which gives rise to its conference – for the prosecution to define not less than $550 but not more than $5000?

John S. Halsted:

No.

I don’t — they don’t think you could say any prosecution.

I think, it have to do with just like you done here, it had to be tied to the particular fact situation so, when the jury had all the facts before the court could say, if you find it misconduct gave rise to this prosecution for this misdemeanor —

Hugo L. Black:

Did — wouldn’t your trouble at either one unless it is here being used to the word misconduct to impose a penalty on that?

John S. Halsted:

Misconduct, it is obviously quite itself vague and the only thing that we could point —

Hugo L. Black:

From misconduct giving rise to a prosecution.

You still get the word misconduct which is the keyword in the –-

John S. Halsted:

But I think that in this case, the misconduct is further defined by the misdemeanor statute which that the —

Hugo L. Black:

How is it supposed the finding?

John S. Halsted:

Well in this particular case, the statute which was violating it was pointing and discharging of firearm.

The only evidence which would be admissible would be evidence tending to prove or disprove that particular violation and when the court would charge, he would be referring to evidence of that nature which was aimed at proving or disproving a particular misdemeanor rather than any misdemeanor.

The —

Hugo L. Black:

Did you have the offensive firing, shooting of firearm, that’s the offense.

John S. Halsted:

Correct.

Hugo L. Black:

Now you say it, it would be a misconduct and when to shoot the firearm even though they — they tried to shoot it even though he couldn’t shoot it.

Would that be an offense under your statute, is it offense?

John S. Halsted:

It — it is not the — as I understand, it’s not an offense.

This is a determination by the jury as to where the court should go and this is the basis that they do.

Hugo L. Black:

Even he has to pay out money on the basis —

John S. Halsted:

That’s correct.

Hugo L. Black:

— if somebody has find him guilty of misconduct which nobody has ever defined in the statute of — by an opinion.

John S. Halsted:

That’s right and the only thing that we can say is that this misconduct is defined on a case-by-case basis of by the facts which go into the particular proof of the misdemeanor which defendant is charged with.

Hugo L. Black:

That’s the very thing in the rule against vagueness rule establish to prevent, isn’t it?

Try a man for a conduct when he didn’t know when advance was a crime or offense?

John S. Halsted:

Yes.

But we would say that this is not the kind of statute as the appellant cite like Lanzetta and New Jersey and Baggett versus Bullitt because here, you cannot arrest a person of — for being guilty of some misconduct.

He has to be arrested and tried for some misdemeanor and it’s only after those facts are before the jury.

Hugo L. Black:

Or he asked acquitted of the charge if we can arrest him, put him in jail for not paying the fine for a misconduct which nobody has ever defined?

John S. Halsted:

But he — he can be made to pay the cost, that’s right and as I say it’s a unique situation in — in Pennsylvania but according to the legislative history or the old cases that — that this is actually a relief of a — of the defendant’s common law burden in which he had to pay the cost in every case, guilty or not guilty.

The legislature here obviously hasn’t gone as far as other legislatures that —

Hugo L. Black:

Of course, this — if you say, he couldn’t have been convicted of a crime if they’d just simply said that he is guilty of misconduct.

John S. Halsted:

So and the issue never arises until he’s arrested for a misdemeanor and it’s gotten past the grand jury and past the demurer and it’s actually there isn’t enough of case have made out.

Earl Warren:

Mr. Halsted, would you mind sending us the citation of that statute that limits incarceration to 90 days, please?

John S. Halsted:

I certainly will, Mr. Chief Justice.

Byron R. White:

And also, I don’t — you have a citation on that case I asked you about.

I don’t see it identified that way in your brief.

John S. Halsted:

Pertaining to the court’s powers to the —

Byron R. White:

Yes.

John S. Halsted:

It’s on page 17, Guffy versus Commonwealth, that’s to grant — which is 1853 Pennsylvania Supreme Court cases.

Byron R. White:

Oh!

Yes.

Earl Warren:

Mr. Hearn.

Peter Hearn:

I have no rebuttal, sir.

Earl Warren:

Very well.