Griffin v. California

PETITIONER:Griffin
RESPONDENT:California
LOCATION:The Realtor Building, formerly McCrory’s Five and Ten Cent Store

DOCKET NO.: 202
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 380 US 609 (1965)
ARGUED: Mar 09, 1965
DECIDED: Apr 28, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 09, 1965 in Griffin v. California

Earl Warren:

Number 202, Eddie Dean Griffin, versus — Petitioner, versus California.

Morris Lavine:

Mr. Chief Justice, members of the Supreme Court and may it please the Court.

Now this is a death penalty case of an indigent Negro and the issues involved here are whether the use by the State of California in its prosecution and by the prosecutor to comment on the failure of the defendant to take the witness stand is in violation of the Fifth and Fourteenth Amendment of the Constitution of the United States.

The second point that I intend to raise is the question of whether the use of evidence brought in from Mexico after a judgment of dismissal by the Mexican Court was in violation of due process of law and in violation of those principles of law in which a defendant cannot be twice subjected to the same matters which have been previously adjudicated.

The third point that I intend to raise is the unconstitutionality under the Fourteenth Amendment to the Constitution of the United States of Section 190.1 of the constit — of the Penal Code of the State of California which permits on the penalty issue of a criminal trial, a prosecution to bring in all kinds of matters, the horrors of the particular crime charged allowed them to bring in evidence from Mexico, allows them to go back into the history of the defendant and the great many things which I have nothing to do with the crime that is on trial in which I respectfully contend is in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

If you had sentenced him in a trial, a separate trial from the from the —

Morris Lavine:

It was a separate proceeding of the same trial Your Honor.

The same jury?

Morris Lavine:

It’s the same jury, or a separate jury depending on the will of the judge.

But this evidence that you’re complaining about —

Morris Lavine:

Was with before the same jury —

— doesn’t — does no go in before the jury that tries the issue of guilt.

Morris Lavine:

No, it goes on — oh yes, it does unless the judge orders a separate jury or a different jury but it goes before —

No.

Morris Lavine:

— maybe I didn’t understand your question Justice Harlan.

Before the — in the first trial where the jury passes on guilt, essence of guilt, is this extraneous evidence as you call it introducible at that stage?

Morris Lavine:

No, that’s not Your Honor.

That’s what I meant.

Morris Lavine:

Now, the fourth point that I intend to raise is the insufficiency of the evidence in this particular case in contrary to the statement of counsel for the People I respectfully contend that there is no proof in this case of a substantial nature that there was any attempt, there was any rape or any attempt to rape the woman who is deceased.

This involves a 49-year old Negro woman.

I may state Your Honors that I have the privilege of standing before this Court 18 years ago in the case of People — of Adamson versus California formerly People versus Adamson in which Justice Black who now sits on the Court wrote the eminent dissenting opinion in which four justices concurred.

I may state that Your Honor as I’m looking at the landmark — the case that has been referred to by the People in Twining versus New Jersey in 211 U.S. which was a direct evidence case coming out of New Jersey in which they relied on in their brief that there is — that in that case the issue was not raised under the Fifth Amendment but was raised under the privileges and immunities clause and I know that something very interesting that there is a wonderful dissenting opinion by a Justice named Harlan J. whom I assumed is your illustrious father, it’s very long and I won’t take the time to read it but I will read one paragraph if I may of that dissenting opinion which should apply to the case today.

What let me inquire must then have been regarded as principles that were fundamental in the liberty of the citizen.

Every —

(Inaudible)

Morris Lavine:

Oh no.

I wouldn’t say that Your Honor was bound but I would say that you would look up to your illustrious parent who had a wonderful record on this Court and I merely cite this case to illustrate that even as far back as that case the principle which I have here is now again for reconsideration before this Court.

And I —

(Inaudible)

Morris Lavine:

Yes, grandfather, yes.

Morris Lavine:

I must look at the age, it was 1908 when that decision was written and I would say it was an — most excellent and persuasive character and touches on the very issues that we have here in which Justice Black so admirably presented in Adamson versus California.

Now we — California has fought this decision that time and since 1934 under Article 1, Section 13 of the constitution of California we, who have had the occasion to practice criminal law have had to walk the floors and stay at nights when the issue came up as to whether we should put the defendant on the witness stand because the prosecutor we knew would take his right and privilege that a defendant might have — does have under the Fifth and Fourteenth Amendment to stand on his silence and use his silence as the tool to convict him.

Now let us see what happened in this case and may I very briefly state the facts of the murder in this case or the killing as was involved in this case.

This woman who was a common law mistress or wife of a man, all colored, met the defendant and they went to a bar where the defendant paid 25 cents for drink and then presumably gave them $10 for other purposes.

Now, they — he was invited to go to the apartment and spend the night after closing time apparently or sometime during the night that he went there and then some fighting came up over a question of possibly an approach to her.

The only testimony regarding that approach of any immoral purpose as the statement of the (Inaudible) common law husband.

We don’t have any other substantial evidence of that.

Now the next morning there was some fighting that went on and during — and various fights occurred during the night.

Following the next morning, however, this woman was in a bin or a sawdust box adjoining or about 300 yards from the bottom of the steps, apparently, the live — room that they were in was an upstairs room and she was found there, she was seated there in the bin and some workman saw her there.

The defendant was leaving, somebody saw him adjusting his clothes, adjusting his pants.

He didn’t know what he thought the — that the defendant was doing as he said number 2.

Number 2 wasn’t defined in the course of a matter and anyhow she was taken to the receiving hospital where apparently she had a subdural hematoma.

Now, the doctor defined the subdural hematoma —

Tom C. Clark:

(Inaudible)

Morris Lavine:

Yes?

Tom C. Clark:

(Inaudible) 30 minutes (Voice Overlap) —

Morris Lavine:

I appreciate that Your Honor.

Tom C. Clark:

That one or one question of law as I under — recall?

Morris Lavine:

No, there are four questions of law Your Honor here.

I’m not — I’m only reviewing these facts to show —

Tom C. Clark:

But one of your questions of law that you’re now trying to review is — that there’s no evidence to support the conviction?

Morris Lavine:

There was no evidence, if — and as I understand the rule under Tho — under the Thompson case that there is — if there is no evidence —

Tom C. Clark:

That’s what I was afraid that you’re —

Morris Lavine:

Yes.

Tom C. Clark:

— aiming at.

Morris Lavine:

I — well, I’m aiming at that as one of the four points if Your Honor pleases because I contend there is not a scintilla of evidence to establish a rape and in order to establish a murder of the first degree there have to be proof of a rape.

And I contend that you can examine this record and I challenge the people to show where in this record there’s any proof of any rape.

William J. Brennan, Jr.:

I mean, I just say it for myself.

Morris Lavine:

Yes Your Honor.

William J. Brennan, Jr.:

Now, what I’m particularly interested in and I hope you reserve time for it is the issue, the Adamson issue of whether the violation of the privilege —

Morris Lavine:

I’m coming to that.

William J. Brennan, Jr.:

— and comment on the (Inaudible) to take the stand.

And I hope you’ll not use up all your time on the other question of the Court.

Morris Lavine:

I’m not going to, I’m coming to that — with that point because I want to demonstrate —

William J. Brennan, Jr.:

That’s the only point that I was interested in Mr. Lavine.

Morris Lavine:

Thank you Your Honor.

I’ll come to that immediately then.

Here is what the prosecutor did then on this insufficient evidence and this is why I say that the Malloy case and the insufficient evidences that has a bearing.

The prosecutor argued page 605-A64 of the record.

It is my contention that if the defendant had not beaten, dragged or pushed and I don’t mean dragged all the way down the alley.

I don’t know what he did.

He won’t take the witness stand and tell you in this courtroom under oath what he did.

Now, there are two things in that statement as I see it.

First of all, he says he doesn’t know what the defendant did.

He admits that the evidence is insufficient.

He wants to compel the defendant to take the witness stand and be — have his testimony extorted from him.

Now, then he goes down and says a defendant has a constitutional right not to become a witness as — in his own behalf.

When the defendant does not become a witness there is no link, if there’d be a missing link in the People’s case that is supplied by the defendant’s failure to take the stand or — and testify.

But if there are complete links but some of them are weak and the defendant would have the specific knowledge to explain or deny, then the failure of the defendant to explain or deny as a witness creates a situation in which the inference is unfavorable to the defendant are the more probable and the weak link if any.

Not the missing link, the weak link is strengthened.

The defendant certainly knows whether as he may have to speed up appearance at the time he left her apartment and went down the alley with her.

In other words, he says, “I don’t know.

The prosecution’s proof isn’t sufficient.”

But he says if the defendant takes the witness stand — if the defendant takes the witness stand then he can tell us what happened.

So he now is trying to extort testimony by — and argues to the jury that his failure to take the witness stand is an admission that these things that the prosecution has contended for were true.

Then he goes on and says, I’m still reading from page 605-A65 of the transcript, “What kind of a man is it that would want to have sex with a woman that beat up,” — if she was beat up at the time that he left.

Now he doesn’t know that she was beat up, he hasn’t proved it.

But now he wants to extort that testimony or else he wants the jury to infer that those things occurred by the fact that the defendant did not take the witness stand.

Hugo L. Black:

(Inaudible)

Morris Lavine:

60 — page 605-A65.

Hugo L. Black:

A65?

Morris Lavine:

That’s right.

I’m reading right from the record Your Honor.

He would know that.

Now here is what the — here is what the prosecutor argues, he would know that.

He would know how she got down the alley, what he says inferentially is the people haven’t proved it.

That is why Justice Douglas I was making the short point about the insufficiency of the evidence.

How would he know how the blood got on the bottom of the concrete steps?

He would know how long he was with her in that box.

He would know how her wig got off.

He would know whether he beat her or mistreated her.

He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.

These things he has not seen fit to take the stand and deny or explain and in the whole world, if anybody would know this defendant would know.

Essie Mae is dead.

She can’t tell her side of the story, the defendant won’t, I’m reading from page 605-A66, it’s in Volume 4 of the transcript Mr. Justice Black.

Hugo L. Black:

What you’ve read shows pretty surely that they didn’t argue that, isn’t it?

Morris Lavine:

What’s that?

Hugo L. Black:

That shows very clearly that that was argued, didn’t it?

Morris Lavine:

Very ar — very fully argued there.

William O. Douglas:

Was it raised in the Supreme Court?

Morris Lavine:

Oh yes, oh yes.

And —

Hugo L. Black:

And that’s the point you have before us.

Morris Lavine:

That’s one of the points I have before you.

I have a second point.

There are other places where he made the similar arguments.

I think I have cited them —

Hugo L. Black:

I guess that he made it that firmly, that would be enough to show what they utilized —

Morris Lavine:

That —

Hugo L. Black:

Were that — your time is so short that I’m hoping you would argue the legal part —

Morris Lavine:

Yes, now if (Voice Overlap) —

Hugo L. Black:

That seems too clear and I don’t see how it can be denied that — took advantage with fact that he fails to take the stand —

Morris Lavine:

Now if Your —

Hugo L. Black:

(Inaudible) with the jury.

Morris Lavine:

Now, if Your Honors please, in Malloy versus Hogan, this Court held that that the self-incrimination features of the Fifth Amendment are applicable to the Fourteenth Amendment.

And so, it is my contention here that this case is governed by Malloy versus Hogan and that this Court must reverse on this point.

I want to urge one other point for Your Honor’s strong consideration before I’m through.

But if Your Honors please, Malloy versus Hogan.

Is — it takes the position and has been followed by this Court although the people of the State of California petitioned amicus curiae in the Malloy versus Hogan case and objected to this position.

The earlier case of Adamson versus California Your Honor in which Your Honor was concurred in by four justices.

Mr. Justice, your own strong dissent in that case certainly spells out the law as clearly as I could make it before this Court.

And I also want to call your attention to the argument to the dissent of Justice Murphy in that same opinion which I think presents my point as far as the law is concerned.

Mr. Justice Murphy said, “If a defendant does not take the stand, his silence is used as a basis for drawing unfavorable inferences against him as to matters that he might reasonably be expected to explain.”

Thus he is compelled through his silence to testify against himself.

And silence can be as effective in this situation as oral statements.

Second, if he does take the stand thereby opening himself to cross-examination so it’s to overcome the effect of the provision and question is necessarily compelled to testify himself.

In that case, his testimony on a cross-examination is a result of coercive pressure of the provision rather than his own volition.

This guarantee of freedom from self-incrimination is rounded on a deep respect for those who might prefer to remain silent from their accusers.

Now Mr. Justice Goldberg in a — in an opinion that came out about the same time as the — this one did Murphy versus New York Waterfront stated that the right of self — to be protected against self-incrimination was just as important as one of the fundamental safeguards of human beings and I have the citation here that I thought was important enough just to quote even the first paragraph, “The privilege against self incrimination registers an important advance in the development of our liberty.

One of the great landmark that a man struggle to make himself civilized.”

And later you commented on the fact that the defendant can be whipsawed into incriminating himself.

And I want to say as a practicing lawyer, past president of our own Criminal Courts Bar that we stay awake at nights at the time we have to reach that crucial decision as to whether to put a defendant on the stand in California especially since 1934 or keep him off because we know the hazards and the use if we keep him off, we know that the prosecutor is going to make an argument that the failure of the defendant to take the witness stand is virtually an admission of his guilt and he makes this very dramatic argument.

He, ladies and gentlemen of the jury are asking you to do for him what he won’t do himself.

He’s asking you to come in with a verdict of not guilty but he won’t take the witness stand and say that he is not guilty.

And it certainly whipsawing the defendant and to — and using his right against self-incrimination as a sword instead of a shield that the constitution gave him the right to protect.

Now I have one other point that I want to call to the attention of the Court and that this is a matter of bringing up this evidence from Mexico.

It was done on the county phase of the case.

Time will not permit me to go into that because I want to reserve time for rebuttal if necessary but I do want to call Your Honors attention to the case that of Louisville — of United States versus Oppenheimer in 242 U.S. at page 85 to page 88.

The safeguard provided by the constitution against the gravest abuses have intended to give impression that when it did not apply in terms there was no other principle that could.

That was in using testimony from another country when there was a judgment of dismissal or acquittal in that country although there was the courts of California allowed the prosecutor to bring up witnesses from that country where the defense had no opportunity to bring them up and it was highly prejudicial.

Morris Lavine:

In this Oppenheimer case, the Court says the Fifth Amendment was not contended to do away with what in civil law is the fundamental principle of justice in order that when a man once has been acquitted on the merits to enable the Government to prosecute him the second time.

I submit that this principle is involved here.

I’d like to reserve some time for further arguments.

Have the Court any question in connection with the facts of the case or the self-incrimination features?

I take it there are none, I will reserve time, Your Honor.

Earl Warren:

Mr. Harris.

Albert W. Harris, Jr.:

Mr. Justice Black and members of the Court.

(Inaudible)

Albert W. Harris, Jr.:

I think I’ll limit my remarks to the question of the California comment rule unless I have a little time leftover I don’t think I will.

We are not here, incidentally let me make this clear.

We’re not here to reargue Malloy against Hogan.

We’re not here to argue that the Fifth Amendment is not applied to the states and that those protections are not protect — they are not given to people in California in state trials.

We are here to argue that under the Fifth Amendment the California comment rule is a valid and a constitutional rule.

This very issue was recently decided by the California Supreme Court about two weeks ago.

Hugo L. Black:

(Inaudible)

Albert W. Harris, Jr.:

Well, Your Honor they do that sometimes.

Hugo L. Black:

(Inaudible)

Albert W. Harris, Jr.:

And various —

Hugo L. Black:

(Inaudible)

Albert W. Harris, Jr.:

Well, I hope so Your Honor.

William O. Douglas:

(Inaudible)

Albert W. Harris, Jr.:

I think this that the Court having decided a reversal was in order, a retrial was in order.And therefore the question of comment —

William J. Brennan, Jr.:

Well, I know but I suppose you — that the Court might have anticipated we have decided this case before that we trialed it.

Albert W. Harris, Jr.:

Well, it — that could’ve anticipated that.

There were of course a number of cases pending before the State Supreme Court involving this issue.

There are countless cases of persons who have been tried under the comment rule in the last 30 —

William J. Brennan, Jr.:

Well, that doesn’t (Voice Overlap) —

Albert W. Harris, Jr.:

— 4 years.

William J. Brennan, Jr.:

— the stand as it, as an actual decision of the question.

Albert W. Harris, Jr.:

Well, I think the California Supreme Court considers it just that Your Honor.

Albert W. Harris, Jr.:

They’ve done it in other situations and we’ve accepted it as a determination of that question.

But regardless of that I would — we took the liberty of sending to the Court copies of the opinion because we weren’t certain that would be published in the event sheets by the time this case was heard.

And —

William J. Brennan, Jr.:

We had it before you submitted those.

Albert W. Harris, Jr.:

Your Honor, well, you seem to have —

Hugo L. Black:

(Inaudible) the idea that the Fifth Amendment self-incriminating clause, it protects the people in the state.

Albert W. Harris, Jr.:

That’s correct Your Honor.

Hugo L. Black:

You’re arguing only that the Fifth Amendment even if applied in the federal courts so are in the state courts permits the prosecutor to comment from the defendant’s failure to take the stand.

Albert W. Harris, Jr.:

That is correct Your Honor.

Hugo L. Black:

Factual issue.

Albert W. Harris, Jr.:

That is the issue.

Hugo L. Black:

To present.

Albert W. Harris, Jr.:

That is correct.

With it — the only qualifications to that being that the (Inaudible) — the comment permitted in California is of a limited nature and we rely upon that.

Hugo L. Black:

The Court —

Albert W. Harris, Jr.:

In support of its constitutionality, I’m not suggesting we would support or that any conceivable comment rule might be valid but then that’s not before the Court.

William J. Brennan, Jr.:

Well, Mr. Harris I — in the federal system of course it is barred by statute, isn’t it?

Albert W. Harris, Jr.:

That is correct Your Honor.

William J. Brennan, Jr.:

And I gather — I don’t know how many of the states (Inaudible) — many of the states also bar it from the statute, is that right?

Albert W. Harris, Jr.:

I think it’s a fair statement that most of the states do bar it by statute.

William J. Brennan, Jr.:

I gather your state and my own, New Jersey has been —

Albert W. Harris, Jr.:

In that — those two states, Ohio permits comment —

I gathered from your brief that in addition to your state that Connecticut, Iowa, New Jersey, Ohio, New Mexico and perhaps Vermont, (Voice Overlap) —

Albert W. Harris, Jr.:

That’s correct, I believe that’s correct Your Honor.

What you’re suggesting is that the rule of the federal system does not have a comment rule that no comment rule is not — is not of constitution or —

Albert W. Harris, Jr.:

That is correct Your Honor.

We feel it’s based on the federal statutes.

We — in that connection we rely on the decisions of this Court, the main — the case being the Wilson decision and the Bruno decision that came along a little later.

Byron R. White:

But Mr. Harris you do have to pick up with this case, this particular case, what kind of views were as the — the defendant is not taking the stand.

Albert W. Harris, Jr.:

That’s correct.

Byron R. White:

Not only — do you say that both the prosecutor and the Court have found that.

Albert W. Harris, Jr.:

That is correct Your Honor.

Byron R. White:

And that again if you say that — not any kind of the Congress would have to testify but do you say the one in this case was?

Albert W. Harris, Jr.:

Certainly, it was Your Honor.

We say that the comment provided for by the California Constitution is valid.

And the comment in this case was pursuant to that constitution.

There was no claim before the State Supreme Court that the comment here exceeded what would be proper comment under California law.

So I think there’s no issue about that in this case and you can go beyond the balance.

Byron R. White:

The gist of it — the comment here is bad, the Californ — the whole California comment rule is bad.

Albert W. Harris, Jr.:

I think that’s a fair statement Your Honor.

I think there’s no question about it.

And I think when counsel suggests that a prosecutor in California can say that a defendant is guilty because he didn’t take the stand.

He is in error but California law, a prosecutor cannot say that.

As a matter of fact, to the instruction that was given to the jury in this very case sets out the California comment rule in very detail and very accurately.

The jury is told that the failure of a defendant to take the stand — well, first they told the other constitutional right not to testify and in no uncertain terms.

Then they’re told that that does not — his failure to testify does not create a presumption of guilt.

They’re told that his failure to testify does not by itself warrant an inference of guilt.

They’re told that his failure to testify does not relieve the prosecution of the burden approving every essential element of the crime beyond a reasonable doubt.

They’re told that the defendant may rely on the insufficiency of the people’s evidence and the failure of that proof and decline to take the stand and that no lack of testimony by him may supply a failure of proof by the people.

Now that being so, the prosecutor wouldn’t argue and he didn’t argue here that we haven’t proved the point but since Eddie Griffin didn’t take the stand that proves such and such as the case.

That was not argued here.

Now what the jury can do and what we say the Fifth Amendment permits a state to do, what the jury can do is consider his failure to explain or deny evidence that has been presented in open court against him on essential elements of the offense.

They’re told that they may take into consideration his failure to deny or explain such evidence.

And they may consider that as tending to indicate the truth of such evidence.

Now that’s the evidence that people presented in open court, not some other evidence, or not some other facts.

And they’re told that among the inferences that may be available from that evidence and from all evidencethere are various inferences that can be drawn those unfavorable to the defendant or are more probable than the others.

But then their cautioned, its — that it is unreasonable to draw an unfavorable inference if the defendant does not have the knowledge in order to talking up here about the evidence shows, that he would need to deny or explain the event.

For example, if the evidence doesn’t show he was there or that some — something was not known to him.This puts a little burden on him.

We say that this instruction and the comment pursuant to it and the record here bears that out.

Only gives to the jury the opportunity to consider the failure to explain or deny evidence produced in open court to establish the guilt of the defendant.

Albert W. Harris, Jr.:

It does not permit any speculation.

It does not permit any implication of guilt from failure to testify because that all of the inferences must be based on evidence produced in open court.

And we say this is a much better rule and a much better practice in criminal procedure than to leave the matter wide open without any instruction whatever.

William J. Brennan, Jr.:

Because otherwise your ideas — the jury would think if he didn’t take the stand, he must be guilty.

Albert W. Harris, Jr.:

I think very likely.

Now I think the only other —

William J. Brennan, Jr.:

Except in the federal system and then in any states there is an affirmative duty on the part of the trial judge to instruct the jury just to the contrary.

Albert W. Harris, Jr.:

That’s correct Your Honor.

You mean to draw no inference whatever from the failure the defendant —

William J. Brennan, Jr.:

Right.

Albert W. Harris, Jr.:

— testified, that’s (Voice Overlap) —

Potter Stewart:

The duty to draw no inference whatsoever.

Albert W. Harris, Jr.:

That is correct.

Potter Stewart:

I don’t know if that’s true in every state which does not have your rule and maybe some states where there’s just no instruction at all.

But I —

Albert W. Harris, Jr.:

Yes sir.

Potter Stewart:

In many — in the federal system and I’m sure in many states there’s an affirmative duty on the part of the trial judge to extract the jury that they may draw no inference of any kind —

Albert W. Harris, Jr.:

That is correct.

Potter Stewart:

(Inaudile)

So that would —

Albert W. Harris, Jr.:

But —

Potter Stewart:

— that would meet the points you’re making now, aren’t they?

Albert W. Harris, Jr.:

That is true Your Honor.

Potter Stewart:

Insofar as we can assume the jury follow instructions.

Albert W. Harris, Jr.:

And I think that in the Bruno case, this Court held that the federal trial court had to give that instruction if requested.

Now you might as a defense attorney not want that instruction given.

You might want nothing said about it.

But if you ask for it, you’re entitled to it.

But that decision in Bruno was not based on the Fifth Amendment.

It was based on the federal statute and I don’t know of any authority that holds that the Fifth Amendment requires that instruction or at any event any authority from this Court.

Albert W. Harris, Jr.:

And I think the variation in the states that Mr. Justice Stewart is pointing out is a great variation and I don’t pretend to know every one of them.

But I think this very variation, the numerous rules that exist throughout the United States indicate that this is a matter of criminal procedure open to the states, that is to either have a comment rule, a no inference rule, a keep quiet rule or whatever they think is best suited.

And I don’t think it’s necessary that California show that our comment rule is the best conceivable rule that a human mind could devise.

I think it’s enough if that rule is permitted by the United States Constitution.

We think it clear that it is.

But to put it the other way around that it’s not prohibited by the Fifth Amendment.

Now, we think that we rely in this connection and this I think the essential issue is this comment rule prohibited by the Fifth Amendment.

The Twining case, the earliest decision and the landmark decision that was overruled on the question of the applicability of the Fifth Amendment indicated I think in all fairness —

Did you say overrule because Twining didn’t necessarily said it that way.

Albert W. Harris, Jr.:

Pardon me Your Honor, the — well, I meant overruled in the question of the Fifth Amendment application to the states, not on the question of the comment rule.

Actually that’s what I’m suggesting, the Twining case dealt no further — no — nothing more than the comment rule.

Albert W. Harris, Jr.:

That’s correct Your Honor.

They did not address themselves to the question of Malloy (Inaudible).

Albert W. Harris, Jr.:

Well, my understanding in the Twining decision was Your Honor that they —

There’s a broad language in it, but if you look in the decision closely, you will find that’s correct.

Albert W. Harris, Jr.:

Well, that’s — that certainly may be Your Honor but I think it’s also clear from that opinion, from the majority opinion in that case that the Court did not and certainly it did not say and did not imply that the comment rule would violate the Fifth Amendment —

Potter Stewart:

Oh.

Albert W. Harris, Jr.:

— if the Fifth Amendment were applicable to the states.

Potter Stewart:

Your — I think you and Mr. Justice Harlan are not far apart.

You —

Albert W. Harris, Jr.:

I think —

Potter Stewart:

Your statement — you’re saying that as you read it the Court in Twining said assuming, even assuming even going on the hypothesis which we do not decide that a comment rule —

Albert W. Harris, Jr.:

That’s correct.

Potter Stewart:

— would violate the Fifth Amendment.

Albert W. Harris, Jr.:

Right.

Potter Stewart:

And the last have to embrace it in the Fourteenth.

Albert W. Harris, Jr.:

All I’m suggesting in that connection is that I think have that Court been put to the test they would’ve upheld the comment rule judging from the language I agree that’s an arguable point.

But in Adamson the majority of the Court suggested and indeed Mr. Justice Black recognized that in his dissenting opinion, an implication in the majority opinion that the comment rule would be valid under the Fifth Amendment.

And I think it’s fair to say that Adamson held that the comment rule is valid as a matter of due process of law, as a matter of fundamental fairness, as a matter of reasonableness.

The federal rule based on statute we think should not be extended as a matter of constitutional law and we suggest the Court to give some thought to the decision incurred against California where you drew a distinction between the impact of the Fourth Amendment upon the states and federal statutes or rules handed down by this Court in it’s — the exercise of its supervisory authority.

Albert W. Harris, Jr.:

We think the same distinction can properly be drawn as to the Fifth Amendment that is the constitutional provision applicable to the states but variations and procedure provided for by statute or by rule of court leaving those open to the states for such a policy as they deem best suited to their interests.

I can see no compelling reason for any uniformity from one end of this country to the other on a question such as the comment rule.

We call to the Court’s —

Potter Stewart:

That’s a question maybe that has a compelling reason if the constitution requires it.

Albert W. Harris, Jr.:

Well, I’m —

Potter Stewart:

Right.

Albert W. Harris, Jr.:

— thinking of reasons extraneous from that Your Honor.

That is some need for uniformity in criminal procedure but certainly is not right now.

And I think the Court might bear in mind that it — if it did interject a rule requiring uniformity you might be throwing into jeopardy many, many convictions where there is no serious question of any guilt, no serious question of any denial of what was deemed a fundamental constitutional right and to do that all in the interest of some kind of a mathematical or logical uniformity throughout the country we submit it would not be warranted in a good judicial act.

Now, I would like also to call the attention of the Court —

Hugo L. Black:

(Inaudible)

Albert W. Harris, Jr.:

I appreciate —

Hugo L. Black:

(Inaudible) issue on this for some kind of doctrine has evolved to make it (Inaudible)?

Albert W. Harris, Jr.:

Well, this Court Your Honor has never developed —

Hugo L. Black:

I’m — I wasn’t saying we could.

Albert W. Harris, Jr.:

No, I understand Your Honor.

Hugo L. Black:

But isn’t that an inevitable consequence of proving that case?

Albert W. Harris, Jr.:

Well, I think it’s something that the — may very well be inevitable if the Court requires a uniform rule in situations of this kind.

Hugo L. Black:

Well, if it holds the law unconstitutional, that’d be another way of saying it.

Albert W. Harris, Jr.:

Yes, that’s right Your Honor.

Hugo L. Black:

You believe it’s unconstitutional and holds it unconstitutional may have that effect.

Albert W. Harris, Jr.:

We think the — that really the heart of it Your Honor comes down to the question of whether or not as a matter of law and as a matte of fact, our rule and our procedures compel the defendant to take the witness stand whether or not they compel him to testify.

The argument is as I understand it that because the prosecutor may comment upon his failure to take the witness stand that this is a weapon, a sword not a shield as to the defendant.

We say that’s not so that there is a dilemma that every criminal defendant faces in a criminal trial.

There’s no question that sleep is lost over whether the defendant should take the witness stand.

As anyone knows it’s of — probably one of the most important decisions that are made — that is made in the courts of a criminal trial.

But that’s just as important in a federal court as it is in the state court.

It’s just as important in New York as it is in California.

And the reason is that the dilemma does not come from our comment rule.

The dilemma comes from the fact that the people have put on incriminating evidence in open court that have either — is either proven conduct by the defendant or admissions by him and that it stands in the record.

Albert W. Harris, Jr.:

The jury has been told from the outset of that trial, or in the voir dire — under — every recess.

Don’t make up your mind about this case until all of the evidence is in.

Here comes the people’s evidence as in the Griffin case, very strong, very compelling evidence of Griffin’s guilt, not somebody else has but Eddie Griffin.

Now he attempted to rape or force himself on the victim.

Now he left.

Now, he broke back into the witness’ home that he see a — being the common law husband of the victim.

How Eddie attempted again to put Griffin out, there was a fight that he was hurt, he left and that was the last time the victim was ever seen alive.

The next morning, Eddie Griffin is seen coming out of the bin — walking out the alley.

According to an eyewitness, as cool as a cucumber.

A few minutes later, the beaten, broken body of the victim is found in that very bin that Eddie Griffin has just left.

Ultimately she dies I think the next day of the injuries.

The jury has heard that evidence and Eddie Griffin is sitting at the counsel table in front of them, under their very eyes when that case goes to the jury without him taking the witness stand.

I defy anyone to create any doctrine that will force or even permit a jury to strike that fact from its consideration.

It’s apparent.

It’s obvious.

This Court said in (Inaudible), “We need not close our eyes to the fact that every person accused of crime is under some pressure to testify unless the jury despite cheerfully framed instructions drawn unfavorable inference from his silence.”

And the Court knows the inescapable embarrassment that this poses to a defendant.

There’s no question about it.

It is an inescapable embarrassment but it’s inherent in our accusatory process.

Hugo L. Black:

It’s not inherent is it that it (Inaudible)?

Albert W. Harris, Jr.:

No, it isn’t Your Honor.

But the compulsion that arises from the incriminating evidence we submit is inherit in the process.

Now does the wit — then as the officer of the comment rule we submit that if the jury can draw any fair inference from that silence and we say the jury can do that as a matter of constitutional law then we say the prosecutor should be allowed to comment on it.

And in fact the detailed comment rule and I read to Your Honors the instruction which sets it forth in detail, gives a very fair and a reasonable statement of the impact of silence upon a criminal trial.

We don’t think it can be contended that the silence of the defendant as a constitutional rule can never be material or significant.

This Court has held in a whole line of cases going back to at least Yee Ham against the United States.

But certain presumptions created by federal statutes upon proof of one fact and the silence of the defendant give rise but properly to an inference of guilt of a particular offense.

As recently as a week ago, a week ago yesterday this Court handed down an opinion U.S. against Gainey upholding a presumptive law of this kind.

Now I’m unaware that Mr. Justice Black has spoken up a presumptive squeeze upon the defendant but we submit that this Court has held repeatedly for 40 years that there is no such presumptive squeeze as a matter of constitutional law.

Potter Stewart:

In the Gainey case the Court was careful to point out that as we understood the instructions there were nothing like this comment rule of California (Voice Overlap) —

Albert W. Harris, Jr.:

I appreciate that Your Honor but I think that was probably because this was a federal prosecution and of course the federal statute and the federal rule against —

Potter Stewart:

Right.

Albert W. Harris, Jr.:

— comment would’ve been violated not because the Fifth Amendment might have been violated by the comment.

Potter Stewart:

Well, whatever it’s because we — that’s the way we read the instructions now.

Albert W. Harris, Jr.:

Yes Your Honor.

Well, if you’d read them so, there was comment, you might have had to reverse under the federal statutory rule.

In Yee Ham it’s — the Court makes it clear that the constraint that arises during a criminal trial upon a defendant and there the Court was talking about a presumption.

Here we’re talking about a comment rule arises from the force of circumstances and not from the presumption itself and that we submit not from the comment rule itself.

If anything the California comment rule is far less subject to criticism, far less subject to criticism than federal presumptive.

Statutes, because under the federal statutes there’s a presumption of guilt and there was a — the statutory provision that such and such will be sufficient evidence if the defendant doesn’t explain.

That is not California law.

There can be no presumption of guilt in the California law, there cannot even be an inference of guilt under California law, from the failure to testify alone.

In addition, we’d like to point —

Hugo L. Black:

But that can be (Inaudible) as a second to —

Albert W. Harris, Jr.:

The failure to explain —

Hugo L. Black:

(Inaudible) by the constitution.

Albert W. Harris, Jr.:

Correct Your Honor but only as to matters that have been proven by the people and the effect of the failure of the defendant to explain or deny those matters that have been proven.

Not speculation, not — no argument that he is guilty because he didn’t take the stand.

The argument has to be a careful argument.

It has to be — Mr. Justice (Inaudible) points out in the California — in his concurring opinion in California you have to repeat just about this constitutional language whenever you talk about the defendant and you have to do what the prosecutor here did.

And we submit what he did was proper and was not an infringement of Griffin’s constitutional rights.

Byron R. White:

Well do you think there’s any substantial difference as far as the jury is concern between an instruction that says that draw no inference whatsoever and an instruction that says that you may draw an inference but here is what it did?

Albert W. Harris, Jr.:

In effect upon the jury Your Honor?

Byron R. White:

Yes.

Albert W. Harris, Jr.:

I’m sorry that’s hard to tell.

There is — I think a respectable body of belief that the instruction that you — you’re to draw no inference is confusing and really meaningless of the jury because of the facts I have just outlined that is they know this man was there.

They know he could take the witness stand and they know he is still sitting at the counsel table.

Byron R. White:

But you (Voice Overlap) —

Albert W. Harris, Jr.:

Wahatever you said —

Byron R. White:

If — do you think it’s necessary for you to win this case that it be held that the constitution permits an inference from silence, from the silence of the defendant?

Albert W. Harris, Jr.:

Well, I think we could —

Byron R. White:

That’s the way you put it a while ago (Voice Overlap) —

Albert W. Harris, Jr.:

I think we could probably reason around that but I think that’s the heart of the case.T

hat is whether the jury can properly infer any facts from his silence.

Byron R. White:

So if you lose the case, I would take then now that there might be some question raised about states which — they don’t permit a comment, they just permit nothing at all to happen or to states that don’t require an instruction not to draw an inference.

Albert W. Harris, Jr.:

Well, there might be some question, yes, Your Honor about those.

And I think there’d be a great deal of question about all of the federal presumptions and all of the state presumptions —

Hugo L. Black:

Would there be —

Albert W. Harris, Jr.:

— and every rule.

Hugo L. Black:

There’d be no reason for California to want to offer this — to permit this to be unless California courts submits it to argue that he didn’t take the stand.

Albert W. Harris, Jr.:

That’s — well I think —

Hugo L. Black:

(Voice Overlap)

Albert W. Harris, Jr.:

— that was the question —

Hugo L. Black:

(Voice Overlap)

Albert W. Harris, Jr.:

There no question Your Honor that’s why this is put in.

It was put in to convict guilty people to determine the truth in the course of a criminal trial but not to invade any constitutional rights —

Hugo L. Black:

(Voice Overlap)

Albert W. Harris, Jr.:

— where that —

Hugo L. Black:

— but on the inference, from the victim on inferences, from the fact that they take advantage of the constitutional privilege (Inaudible).

Albert W. Harris, Jr.:

No, I can’t agree with that Your Honor.

Hugo L. Black:

Why not?

Albert W. Harris, Jr.:

You can only convict him on competent evidence produced by the people in open court.

You can only rely on the — on silence on the failure to testify to draw inferences from the evidence produced in open court.

You cannot presume or infer guilt as such from the failure to testify.

Hugo L. Black:

But whatever words you used is — taken in court is (Inaudible) get from it is the fact that he didn’t testify, he took advantage of the constitution of privilege and take — takes advantage of it (Inaudible) conviction.

Albert W. Harris, Jr.:

We feel that’s going to be the result Your Honor under any rule you’ll hand down.

Potter Stewart:

Now, Mr. Harris didn’t you answer a little (Inaudible) to Justice Black’s question?

It’s your con — are you conceding here that California’s only interest is to convict these people?

Albert W. Harris, Jr.:

No, we — I —

Potter Stewart:

You’ve argued in your brief — you’ve argued in your brief that this comment rule can be a benefit to defendant —

Albert W. Harris, Jr.:

That’s correct.

Potter Stewart:

Because of the very broad inference that the jury would draw in the absence of this instruction that they can only infer certain things and certainly the other criminal rules of your state are not drawn on the interest of convicting defendants.

I’m thinking about — think like an automatic appeal or a free transcript and all the other things.

Is that the only interest of your state to convict people?

Albert W. Harris, Jr.:

That is not the only interest of our state Your Honor —

Potter Stewart:

— understand it was.

Albert W. Harris, Jr.:

— but it is —

Potter Stewart:

I don’t think you (Voice Overlap) —

Albert W. Harris, Jr.:

I’m sorry, perhaps —

Potter Stewart:

— to concede that.

Albert W. Harris, Jr.:

What I had in mind —

Potter Stewart:

Is that true?

Albert W. Harris, Jr.:

What I had in mind was this, that I think —

Potter Stewart:

Well, it’s not to (Inaudible) is it, if you offered it?

Albert W. Harris, Jr.:

Well —

Potter Stewart:

For justice, isn’t it?

Albert W. Harris, Jr.:

To do justice, that’s correct Your Honor, to convict the innocent and acquit — convict the guilty and acquit the innocent.

But I do, I do think that what you raised Your Honor is an important point.

And I don’t want to stand before the Court and suggest that this rule was put in the constitution to help criminal defendants or to help defense attorneys.

I don’t think any prosecutor could honestly say that this rule is helpful to defendants, it maybe but it’s not on the constitution for that reason.

But we think it does help determine the truth and that’s what we’re interested in California.

We’ve also noted, if it please the Court that the language of penalty is very significant in Malloy against Hogan.

Mr. Justice Brennan in his dissenting opinion in Cohen against Hurley at page 159 noted that neither Twining or Adamson which involves comment rules — that neither of those cases involved the question here presented of the constitutionality of a penalty visited by a state upon a citizen for invoking the privilege.

Both involved only the much narrower question whether comment was constitutionally permissible.

We say California imposes no penalty upon a defendant.

We say California does not compel a defendant to testify.

We say that the California comment rule is constitutional and consistent with the Fifth Amendment.

Thank you.

Morris Lavine:

May it please the Court.

Among the other comments made by the prosecutor in the whole world if anybody would know, this defendant would know, Essie Mae is dead, she can’t tell her side of the story, the defendant won’t.

Morris Lavine:

And a little later on in this argument he says if anybody — now Mr. Maple made some comment, Mr. Maple was the defendant — defense attorney, made some comment about Dr. Noguchi and he is saying some of these injuries or damages could have been caused by dragging.

That is Dr. Noguchi’s opinion.

I assume the defendant heard it.

If anybody in the whole world would know that this woman was not dragged it would be the defendant and he has remained silent in the phase of this so-called accusation.

Mr. Maple made a remark about the statement that (Inaudible) and therefore the defendant doesn’t have to take the stand to testify.

He has already reminded you, told you his story.

May I remind you, ladies and gentlemen, at the time of that interview the defendant didn’t know the woman was there.

And then there’s further discussion about his not taking the stand.

Now, coun — the counsel has erroneously stated some facts.

He stated that the woman was dead.

She was not dead when this man came along.

She was taken to the receiving hospital.

She gave the officers her name.

There was no further conversation at least recorded.

She died of the subdural hematoma which was the result of a doctor’s operation.

She did not die of any rape or any attempted rape nor of a subdural hematoma that occurred prior to that time.

The prosecutor made his argument and pointed out that the subdural hematoma that she had which was a filling of the blood in the head was not the one that caused her death.

Her death was caused by the operation of the Doctor.

I merely point those out to correct some of the facts here.

Now, in connection with the opinion in the Modesto case, I may have had some slight responsibility.

I was before the Supreme Court of California, Justice Brennan.

A few weeks ago before the Modesto case came down I told some of the members of the Court I was coming here to argue this case.

I know that as you did that they reversed the case.

Then they spent several pages discussing Malloy versus Hogan.

Now there’s an excellent dissent in that case by Justice Peters and one in the paragraph, one sentence that I would like to read to the Court in which he says that the majority — says that the majority concludes that the no comment rule doesn’t do anything.

That is to assert that the 1934 Amendment accomplishes nothing at all whether to accomplish a great deal because as will be later pointed out it was necessary to pass it in order to change the then existing California law which prohibited any comment at all.

And Justice Peters goes on to point out in his dissenting opinion by — an argument that I would like to take time to read but don’t have the time to do it.

I would like to point out one other thing that this opinion points out also that the rule of the Twining case was reversed by and has ceased to be the law in New Jersey in State versus Murphy 1964 at 204 A.2d 888.

I did not cite this in my brief.

Now, if Your Honors please, the Adamson case is not the case here.

Morris Lavine:

The Twining case was a case that passed on direct evidence of some — in a bank case, it was a misdemeanor case.

The question that came up was not under the Fifth Amendment, was under the privileges and immunities of citizens which the Court held was not applicable.

Later on they discussed due process but did not discuss it directly with relation to the Fifth Amendment and I again call your attention to the dissenting opinion and to the very able opinions of Mr. Justice Black and Mr. Justice Murphy in the Adamson case.

Now if there are any facts in this case that the Court would like to know I would like to answer any questions here.

I also did not have time to argue but I think that this is very important for Your Honors to notice the great prejudicial effect of the prosecution in this case in bringing witnesses from Mexico while the defense have no opportunity to meet them and to a relitigate a matter of that was once litigated in the Mexican Courts and decided adversely to the people but nevertheless they brought witnesses — those witnesses back again to California to prejudice this defendant.

Apparently, the prosecutor felt he had to do that because of the weakness of his case.

Thank you.

Hugo L. Black:

Mr. Lavine —

Morris Lavine:

Yes Your Honor.

Hugo L. Black:

This is not relevant, but how long has this been the law of California?

Morris Lavine:

Since 1934.

Hugo L. Black:

Was it adopted by referendum?

Morris Lavine:

No, it was adopted by an initiative measure.

There was a great wave of reform so to speak on criminal cases about 1933, 1932 there about and this was proposed and passed as an initiated measure in 1934, the first time —

Hugo L. Black:

Passed by whom as an (Inaudible)?

Morris Lavine:

By the people in the general election.

The —

Hugo L. Black:

That’s what I asked you.

Morris Lavine:

In the general election — yes.

It was a constitutional amendment amending Article I, Section 13.

Article I, Section 13 was the statute, the constitutional provision against self-incrimination.

They extended that statute to say that the prosecutors could comment on the failure of the defendant to take the stand and then applicable.

A legislation was passed subsequent to that in Section 1323 of the Penal Code of California.

So in passing on this you’ll have to depend on both Article I, Section 13 of the constitution of California and Section 1323 of the Penal Code.

Hugo L. Black:

Mr. Lavine, I noticed that you are — was the defendant presented a jury?

Morris Lavine:

Yes Your Honor.

Hugo L. Black:

And you are representing him, yes I understand it, he was defended by the public defender.

Morris Lavine:

That is correct.

The public defender —

Hugo L. Black:

And then he requested you to present a repeal.

Morris Lavine:

That is right.

Public defender requested me to present his appeal Your Honor.

They take the position they have no right to present any matters outside of California.

Hugo L. Black:

Well, the Court wants to express it’s appreciation to you.

Morris Lavine:

Thank you Your Honor.

Hugo L. Black:

For appearing in his behalf.

It’s one of the great services that the Bar can render, administration of justice and we appreciate it, (Inaudible).

Morris Lavine:

Thank you Your Honor.

Hugo L. Black:

But Mr. Harris, we would not let this case go by without expressing appreciation for the man in which you presented the case with complete, utmost frankness and fairness as I see it.

We’re happy to say that several times.

Albert W. Harris, Jr.:

I thank Your Honor.

This is my 18th appearance before Your Honors.

I haven’t been before all of the members of the Court before but I have been (Inaudible), the Adamson, (Inaudible) and several others.

Thank you Your Honor —

Earl Warren:

(Voice Overlap)

Albert W. Harris, Jr.:

— for that very kind comment.