Gray v. Maryland Page 16

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Audio Transcription for Oral Argument - December 08, 1997 in Gray v. Maryland

Roy W. McLeese, III:

--Well, two come to mind.

Spencer v. Texas is a case in which, at the defendant's murder trial, the jury is informed that the defendant has a prior murder conviction and is told, do not consider that in determining guilt or innocence.

Set that aside when you determine guilt or innocence.

Consider it solely for purposes of the appropriate sentence that you will later impose in a single guilt and sentencing proceeding.

Another comparable example is Harris v.--

John Paul Stevens:

That may not be as persuasive as it might have been, because most States after that have taken a different view on separating sentencing from guilt just because of the obvious risk of prejudice in that very situation, so you sort of have a general consensus that that case, maybe there was no constitutional violation, but there was obvious unfairness there.

Roy W. McLeese, III:

--But the relevant inquiry here is whether the risk of jury inability to set aside incriminating evidence is a constitutional violation, and what Spencer v. Texas said, whatever jurisdiction--

John Paul Stevens:

Well, if they do... no doubt about the fact, if they did treat this as admissible against the codefendant it would be a blatant constitutional violation.

You would agree with that?

Roy W. McLeese, III:

--I do agree with that.

The other answer to your question, Justice Scalia, is Harris v. New York, where statements that are taken illegally, in violation of Miranda, are admitted to the jury and the jury is told, you may consider this confession, this statement solely for purposes of assessing the credibility, the testimonial credibility of the defendant.

You must set it aside as it might be considered substantive evidence of the defendant's guilt, and I--

Stephen G. Breyer:

So what is the... you can't substitute for the defendant's name a concrete description.

You couldn't say, the man with the red hair and the limp.

Roy W. McLeese, III:

--No.

The rule that we--

Stephen G. Breyer:

All right.

So what is the rule, in your opinion, about when a blank separated by commas or some other pictorial depiction in a written confession is equivalent to the red eyed man, or red haired man with the limp?

What's the... how would you decide that one?

Roy W. McLeese, III:

--The rule we propose is limited to confessions which do not contain additional descriptive information of the kind that you suggest.

Stephen G. Breyer:

Why, in fact... I think one argument is that a blank separated by commas in the circumstance is quite close to a particular description because it sets the jury to thinking, and they see blank, blank, and some other guys, and they know who that is just as if it said, the red haired man with the limp.

Roy W. McLeese, III:

In this case--

Stephen G. Breyer:

So what's the test to decide whether they're right or not?

How would you formulate the test that would distinguish the blanks, or however you want to--

Roy W. McLeese, III:

--With respect to confessions, confessions that are... even as redacted contain additional descriptive information.

When that descriptive information is so vividly and obviously linked to the defendant... the example that comes to mind is this Court's decision in Harrington--

Stephen G. Breyer:

--Vivid and obvious, and if not that, if we accepted their view, are there many, many retrials that would be necessary throughout the country?

That is to say, if this interpretation of the Constitution of the United States is... in other words, has it been a habit of prosecutors simply to redact through the use of a blank with a comma?

Roy W. McLeese, III:

--I think that that is a widely... redaction that would be apparent to the jury, perhaps, but that deletes the names, is a relatively common practice in the State and Federal system.

Sandra Day O'Connor:

Well, where you say, physically, deletion, deletion, as opposed to simply leaving it out--