Hoag v. New Jersey

LOCATION:First Unitarian Church of Los Angeles

DECIDED BY: Warren Court (1957-1958)

CITATION: 356 US 464 (1958)
ARGUED: Nov 19, 1957
DECIDED: May 19, 1958

Facts of the case


Audio Transcription for Oral Argument – November 19, 1957 in Hoag v. New Jersey

Earl Warren:

Number 40, William Hoag, versus the State of New Jersey.

Mr. Knowlton, you may proceed.

Robert E. Knowlton:

May it please the Court.

This case is here on certiorari to the Supreme Court of New Jersey, which held in a four-to-three decision.

The petitioner’s right to due process of law had not been violated.

The question is, whether it violates the sense of fundamental justice, to allow the State to dissect — to dissect one criminal transaction into four premises for the purpose of retrying the same issue upon the same evidence which led to an acquittal 29 months before.

The question of fundamental justice must be answered upon the facts of every case.

The facts in this case are that on September 20th, 1950, there was a robbery of a tavern and all of the people in the tavern.

In June of 1951, the Bergen County grand jury returned three indictments against petitioner.

Each indictment alleged the petitioner in concert with two unknown persons had robbed the specified individual.

The second count on the indictment charged carrying a concealed weapon.

These indictments were joined for trial and this was — these indictments were tried in May of 1952.

At that trial, the State called five witnesses.

This group of witnesses included the three victims named in the indictments and two other victims of the holdup.

Each of the five witnesses testified unequivocally and without contradiction, to the fact that he was put in fear and that as a result of that fear property was taken from this person.

These are the elements of the crime of robbery under the applicable New Jersey statute, and these were the elements that were alleged in the indictments.

However, three of the witnesses for the State stated affirmatively that petitioner was not one of the robbers.

A fourth witness where the State said, that he could identify under oath petitioner as one of the participants in the holdup.

As a result of the five witnesses for the State, only one witness, Elmer Yager, affirmatively identified petitioner as one of the robbers.

Petitioner testified as to alibi.

He stated that he had never been in the town of Fairview in New Jersey where the robbery took place, that he did not participate in the robbery, and that he was in — in New York City with his mother-in-law at the time of the robbery.

Upon the basis of this evidence the jury acquitted on all three indictments.

Petitioner was returned to New York for incarceration, and in July of 1952, the Bergen County grand jury returned another indictment against him.

This indictment was the same in all respect for the first three except that Elmer Yager was named as the victim.

Elmer Yager was the witness who had identified him in the first trial.

In May of 1954, petitioner was returned to New Jersey, placed in the Bergen County jail where he remained until October 18th and 19th, 1954 when he was finally brought to trial.

What did you say that time element was described between the first trial (Inaudible)

Robert E. Knowlton:

The first — first trial was in May of 1952, the second trial on October of 1954, 29 months, was taken.


Felix Frankfurter:

And what was the date of the indictment of the second trial?

Robert E. Knowlton:

The date of the indictment of the second trial was in July — I believe July 17th, 1952, about two months after the first acquittal.

Felix Frankfurter:

And didn’t get the trial until two years later is that it?

Robert E. Knowlton:

He was in New York.

He’d been returned from New York (Inaudible)

Felix Frankfurter:

And Yager is not mentioned in the other indictments.

Robert E. Knowlton:

No, sir.

At the second trial, they called just one witness, Elmer Yager.

He — he is the witness who had identified petitioner in the first trial.

He refuted his testimony once again.

The four witnesses who had testified for the State on the first trial and had disappointed them were not called by the State.

They testified for the petitioner.

They once again repeated their testimony.

Petitioner once again testified as to alibi.

This fact —

Earl Warren:

Is that — may I ask, Mr. Knowlton?

Was there a testimony in any respect different from — from their testimony at the first trial?

Robert E. Knowlton:


Earl Warren:

I’m talking about the alleged victims.

Robert E. Knowlton:

No, sir.

The —

Earl Warren:


Robert E. Knowlton:

— victims all testified to the fact that they were robbed and that they — the three of them said that he was not one of the robbers and the fourth said that he could not swear that he was one of the robbers.

At — at this trial, the jury convicted petitioner.

The State in attempting to sustain this second trial attempts to formulate other hypothesis for the first verdict other than the fact — lack of identification.

Petitioner contends that the only reasonable interpretation of the first verdict was that the first jury found that petitioner was not one of the robbers or at least that they found, that they had not proved him to be a participant in the holdup.

We contend this for a number of reasons.

In the first place, the State admits that the only issue in the first trial was the question of identification.

They admitted that before the New Jersey Supreme Court.

They admitted in their counterstatement of facts in their — in their brief in this Court.

Also, the facts of the robbery, the elements of the robbery have been conclusively shown by five witnesses and were not contradicted and were not disputed.

Robert E. Knowlton:

The question of identification has been raised by four out of the five State witnesses.

Finally, the only issue that could have been common and conclusive upon all three indictments was the question of whether petitioner was one of the robbers and the jury acquitted upon all three.

The State, in page 13, of their brief gave alternative hypothesis and I would like to spend a moment or two of mentioning them.

In the first place they say, that the jury might not have believed Mr. Cascio, Mr. Capezzuto and Mr Galiardo, the named victims, when they said that they were put in fear and had been robbed.

This — this wouldn’t require that the jury in relation to the three indictments disbelieve each one of these individuals upon testimony which was not contradicted and which was unequivocal, and testimony which was buttressed by the testimony of two additional witnesses as to the fact of the robbery.

They attempt to go further and say that maybe they didn’t believe him because of the retraction of a prior identification.

This statement is based upon an erroneous defunction of fact according to their counterstatement of facts.

Felix Frankfurter:

What is the — what bearing has determination — that determination there can be of why the jury acquitted?

Robert E. Knowlton:

It is one of the petitioner’s contentions that one — that there are three reasons why that violates the fundamental justice to allow the State to re-litigate the fact upon the same evidence which has lead to an acquittal.

Those reasons are — that it is — that the prohibition is uniformly accepted, I have been unable to find a case in which the Court has faced the problem and held that they said re-litigate the fact.

Second reason which I would like to expound later on is that according to Palko against Connecticut and Brock against North Carolina, the Due Process Clause protects the fundamental policies underlying the Double Jeopardy provision.

It is one of my contentions that there are at least three types of cases in the Double Jeopardy case which show that the prevention of the re-litigation of the same fact is the fundamental policy of the Double Jeopardy provision.

And finally, I believe that if the State can re-litigate the same fact upon the same issue, it undermined many of our most cherished safeguards in relation to an Anglo — of our Anglo- American adversarial system of trial.

Felix Frankfurter:

My — my question was what must I determine, must I make up my mind why the jury acquitted in order to deal with those propositions which you tended?

How can I — how can anybody know why that jury acquitted?

The jury might have acquitted because they saw a young wife in there sitting in Court.

The jury may have acquitted for a thousand of one reason.

When you get all truth, one hypothesis may be more attractive than another but it’d be nothing but a guess because we know jury acquit or convict for all sorts of reasons or for no reason.

It may have been too late in the day to settle the controversy about him.

A thousand and one reasons, they’ve entered into that judgment.

What I want to know is what the bearing on your propositions the determination of why that jury acquitted.

I can understand you’re telling what the issue was before the jury.

I can understand that.

That seems to be, of course, relevant and may be vital.

But what they did with the issue and we know all the quirks and the irrationality, if you please, that determines jury verdict, I do not understand.

Robert E. Knowlton:

The — the reasons that I attempted to bring this, the reason for the Court to allow it is that the State had contended and the Court — and the Supreme Court of New Jersey held that this was not the same offense and not the retrial of the same fact.

Felix Frankfurter:

Well, that I understand.

That — that’s right.

Robert E. Knowlton:

Because of the difference in the identity of the victim which had no trial significance.

It was my impression that if I could demonstrate why the jury acquitted.

Robert E. Knowlton:

And I — I —

Felix Frankfurter:

I think you — do you think you can do that?

Robert E. Knowlton:

My — I — I — in relation to that, Mr. Justice Frankfurter, I think that — unless you can, there can be no estoppel in relation to the State and in the same fact, and I believe that that would be contrary to the assumption in the U.S. against Sealfon but further than that, I believe that the jury is universally recognized as a fact finder in our system of law, and as such is entitled to a resumption — presumption of reasonableness.

It is true that they can acquit a retrial.

Well, I think that if this is an unreasonable institution, we have universally adopted then a system which — which gives it to them a power to be unreasonable and maybe we ought to try again.

Felix Frankfurter:

I hope I don’t subscribe the thought that was down in an unreasonable institution.

Earl Warren:

Mr. Knowlton, you may proceed.

Robert E. Knowlton:

May it please the Court.

In answer to Mr. Justice Frankfurter’s question, I think that the significant thing, of course, is that the issue at the first trial was the issue of my (Inaudible)

As I stated previously, this Court in the unanimous opinion, United States against Sealfon held that the Federal Government could not re-litigate an issue which has been previously decided.

There are three ways, I think, of showing that this rule is a rule of fundamental justice.

As previously stated, I think that it is uniformly accepted as true both in civil and criminal matters.

Secondly, I think that it is an underlying policy of the Double Jeopardy provision.

I think that both Palko against Connecticut and Brock against North Carolina assumed that the basic policies of the Double Jeopardy provisions are protected by the Due Process Clause.

As stated by Mr. Justice Frankfurter in his concurring opinion in the Brock case, the State falls short of its obligation if it — if it attempts to retry an individual upon a charge for which he had been acquitted.

There are three types of cases where this is significant or has been demonstrated to be one of the underlying policies.

For instance, a man cannot be tried for murder after having been acquitted of manslaughter of the same individual.

This was held in the case of U.S. against Graf.

The test that was approved by the Supreme Court and by Mr Justice Harlan who wrote the opinions of the Supreme Court was whether the first verdict negative to facts in the second charge.

This test gives emphasis to the fact that the first verdict was an acquittal, not a conviction.

Because on a lesser and included offense, the first verdict would do nothing more than affirm some of the facts in the second charge if it were a conviction.

This test also, I believe, emphasizes the danger of inconsistent verdicts.

The same evidence test is applied by Mr. Justice (Inaudible) for the majority in the Supreme Court of New Jersey would allow a re-litigation except where the evidence necessary to sustain a conviction under the second indictment, would have precluded the conviction under the first.

He reasoned further that since the victims were different, there could be no double jeopardy.

This gives undue emphasis to the identity of the victims which were not an issue at the — at the first trial.

The same maybe said for his rule in relation to collateral estoppels.

Whatever necessity there was in the past for the application of abstract logic to this proposition or this problem, that necessity does not exist today.

Today transcripts are kept of every trial.

Complete transcripts.

And a study of the transcript can demonstrate what the issues were at the first litigation.

Robert E. Knowlton:

The second type of case where the principle against re-litigation of the same issue has been demonstrated are the cases involving state appeals.

In the State of Wisconsin there’s a statute which allows the state appeal.

However, in State against Agnew it was held that the State could not appeal a determination of the trier of fact absent legal heir.

And the reason the Court gave for that holding was, that to allow such a — an appeal would be to successfully undermine the policies behind their double jeopardy provisions.

The third group of cases, I think, that — that demonstrate this principle go much further than the petitioner’s case.

Those are the abortive trial cases.

The rule is almost uniformly accepted that a State may not terminate the proceedings prior to verdict, and then try the defendant over again unless determination was absolutely necessary.

The reason for this has been given as a fear that the prosecution sensing that the first — the first jury was hostile, would attempt to terminate the proceeding prior to the verdict, so that they could try the same issue in front of another jury.

In the light of these three areas of double jeopardy, I believe that the prohibition against re-litigation of the same issue is a fundamental policy of the Double Jeopardy provisions and therefore protected by the Due Process Clause of the Fourteenth Amendment.

Finally, I think that to allow re-litigation of the same issue upon the same evidence is to undermine any for the basic safeguards of our adversary system of trial.

The State before it can incarcerate a man and deprive him of liberty has to prove that this man is guilty with a high degree of probability.

This has been incorporated into the requirement of proof beyond a reasonable doubt, which has been held to be requirement of due process.

Yet looking at this record today, no man can say whether or not Mr. Hoag was one of the robbers.

On the issue of whether he was one, the first jury acquitted.

The second jury convicted.

This does not refute Mr. Hoag’s continuing claim of innocence with anywhere near the sufficient or requisite degree of certainty.

One of the most basic safeguards of our system and one of the greatest safeguards that we have against erroneous conviction is the right to a fair trial.

This has been held to be due process in a great number of types of cases.

Yet, unless the verdict is given its broadest significance so that the State may not re-litigate the same issue, the concept of a fair trial loses its validity as a — a safeguard against erroneous conviction.

It does for the very simple reason that if the State can retry the same issue on the same evidence to successive jury even though the trials be fair, eventual conviction is a normal certainty regardless of guilt.

The same can be said about a jury trial which was described by this Court recently as one of the greatest bulwarks against governmental arbitraries.

It does a man little good to have a right to a jury trial with the same issue to be submitted to a successive jury.

Sooner or later, a jury will be found which will convict regardless of guilt.

Another aggravating factor in this case was the fact that the State’s knowing refusal to indict for Mr. Yager’s robbery until after the first acquittal caused the 29-month delay.

Mr. Yager had filed a statement with the police the day of the robbery so the Government knew, the State knew from the time of the robbery that he purported to be a victim.

Today it attempts to overcome this aggravation by stating that Mr. Hoag was in New York, incarcerated in New York and they couldn’t bring him to trial sooner.

This overlooks the fact that they knew from the day of the robbery that Mr. Yager was the victim and that they did not indict.

This overlooks the fact that they did have jurisdiction of Mr. Hoag the day and at the time of the first trial which was the ideal time to settle all of the issues.

Secondly, they say that it is not prejudicial to the defendant even though his mother-in-law died between the first and second trial, and petitioner can testify that he had been in New York City that he — with his mother-in-law at the time of the robbery.

They say that the failure of the first trial contemplates in the context to the fact than present.

Robert E. Knowlton:

The failure to call the mother-in-law at that trial, under those circumstances, shows that she would not have been helpful to the petitioner in the second trial.

The State having caused this delay by their own knowing action are in a particularly poor position and speculated to what the prejudice might have been to Mr. Hoag.

Is there anything in the record do you think that indicates why (Inaudible)

Robert E. Knowlton:

No sir, there is — there is nothing in the — in the record to show why they did not.

Therefore, the petitioner contends that his conviction and his incarceration under that conviction, violates the sense of fundamental justice.

The State knowingly refused to indict for a known victim, they cut one criminal transaction up into four offenses, they re-litigated the same issue upon the same evidence, 29 months after the first trial and for five months prior to the second trial he was incarcerated in the Bergen County jail awaiting that trial even though the only issue at the first trial has been his identification.

Therefore, the petitioners respectfully request that Bergen County court judgment in this case be reversed and that he be released from custody thereunder.

Earl Warren:

Mr. Furman.

David D. Furman:

Mr. Chief Justice if the Court please.

The State of New Jersey opposes the petitioner’s claim of the safeguarding and his double jeopardy under the benefits of res judicata or collateral estoppel.

The issue is whether under the facts a state court judgment of conviction amounts to a denial of due process of law in violation of the Fourteenth Amendment.

No case in this Court directly or by necessary implication compels that result.

No case in this Court that maybe fairly stated even suggests that result under these facts.

The Palko case and the Brock case may stand for the proposition although my brother from Illinois disputes this that the protection against double jeopardy is a fundamental right safeguarded by the Fourteenth Amendment.

This is not a double jeopardy case.

The Constitution of New Jersey as well as the Fifth Amendment bar a retrial after acquittal for the same offense.

William Hoag was — was tried and acquitted of the crime of robbing one Cascio, one Capezzuto, and one Galiardo.

He was then tried and convicted for the crime of robbing Elmer Yager separate crimes occurring at the same time, the same place as part of the tavern holdup, but each crime requiring proof of the elements of a robbery.

That is, putting in fear each of the victims, taking personal property forcibly from each of the victims, and a criminal intent.

New Jersey in the — in the Superior Court Appellate Division and then the Supreme Court applied the recognized common law test for double jeopardy.

And they found that a retrial and a conviction were not barred under those recognized tests.

Those are that same evidence tests and the single act test.

Now, the same evidence test is, as most commonly stated is, with the evidence necessary for a conviction on the second charge have been sufficient for a conviction on the first charge.

Evidence of the — of the putting in fear of Elmer Yager, or the taking of personal property from Elmer Yager would have been without bearing and the trial of the indictments for robbery of the other three men.

Earl Warren:

Does the record show why there was an — an indictment or the robbery of this fourth man at the time that they happened?

David D. Furman:

No it does not, Mr. Chief Justice.

Earl Warren:

Is there any explanation of it?

David D. Furman:

I can — I can offer an explanation off the record.

Earl Warren:

Yes, what — I am —

David D. Furman:

Mr. Yager lives in Monmouth County, New Jersey.

David D. Furman:

Now, the other three men live in Bergen County.

They were available apparently at the first grand jury proceeding.

Elmer Yager was not available and was not present at the first grand jury proceeding.

Now, that maybe the explanation why the indictments were returned for robbery of — of those three men and not of Elmer Yager.

Elmer Yager —

Earl Warren:

— (Voice Overlap) needed him for an indictment?

David D. Furman:


That they did not necessarily need him there, but I offer that as the only explanation I say.

Earl Warren:

All right.

David D. Furman:

He was available, of course, at the first trial.

He testified.

But we suggest that his testimony — when he was an alleged victim in the second trial was that much more compelling, because he was not a — he was not a complaining witness or an alleged victim at the first trial.

Hugo L. Black:

May I ask you a question about that?

You’re — you’re just starting out on the case.

As you see the case, was its possible under the evidence for this people who have been guilty of robbing Yager, if they were innocent of the charge of robbing the other three?

David D. Furman:

Mr. Justice Black, I — I think that it is possible that the — that the jury could have found the defendant innocent of the crime of robbing the other three and found him guilty of the crime of robbing Yager.

I think —

Hugo L. Black:

Do you mean the jury could have found that or was there any basis for it?

David D. Furman:

They —

Hugo L. Black:

— (Voice Overlap) what was the basis?

David D. Furman:

The only contested issue at the first trial, as has been stated by my adversary, was whether Elmer — whether Hoag was present and a participant.

The only testimony that he offered was testimony of an alibi.

The State at the first trial offered proof of the substantive elements of robbery of the other three men, but the jury might — did not necessarily did not have to find the defendant guilty of robbery of the other three men.

The burden was on the State to prove all those elements beyond a reasonable doubt and there is certainly nothing here to show that the jury did not decide because they thought that these individual men were not put in fear or did not decide because they — they did not believe that there was property taken from those men, or that they did not believe that there was a criminal intent as to those men.

There’s nothing in the — in the general verdict which would — which would show necessarily that that first jury decided on the issue of identity.

Hugo L. Black:

But whatever they decided on was, were the circumstances — did it all happen as a part of one kind of this action simultaneously were practically simultaneously insofar as (Inaudible) were concerned in connection with the robbery of the four individuals?

David D. Furman:

The robbery has occurred within a short period of time.

There was a tavern holdup.

Galiardo, one of the first victims, that is one of the victims who — for whom a robbery of whom the first indictments were returned was the owner.

And he served also as bartender.

David D. Furman:

Two of the other — the two other victims in the first indictments were patrons.

Mr. Yager testified that he was — that he was stopping off there, that he was returning from his — from relatives in New York City, and he was returning to his home.

And from all the testimony, he was — he was robbed at approximately the same time and in the same place as the other men.

Of course, as far as the other men are concerned, the jury — the jury may have disbelieved that a crime was committed as to the other three.

And the jury may have believed that the — that the crime was only committed as to Yager.

I don’t suggest or don’t suggest anything and I would certainly have to go into the realm of — of speculation and hypothesis.

But it’s a — it’s entirely possible that the jury did not believe.

For example, that the other three men were put in fear or that there was a criminal intent as to the other three men.

Hugo L. Black:

Was with all that’s part of one single transaction that came in, committed a robbery.

David D. Furman:

The —

Hugo L. Black:

Are the people in there, is that right?

David D. Furman:

The evidence indicated that there were at least three men who entered the tavern.

Two of them apparently had guns, those at — those at the bar watching a — a broadcast of a baseball game as well as Galiardo the owner were forced to go to — to go up against the wall with their hands up.

They have property taken from them.

Hugo L. Black:

Was Yager forced to go up against the wall?

David D. Furman:

That’s right.

And then they were taken into an adjoining room and — and compelled to — to lie on the floor.

Hugo L. Black:

Was Yager taken with them?

David D. Furman:


And they were all tied.

Hugo L. Black:

Yager —

David D. Furman:

— (Voice Overlap)

Hugo L. Black:

— Yager was tied.

David D. Furman:


Hugo L. Black:

So that the facts (Inaudible) the robbery was concerned, it was all a part of one single robbery so to speak?

David D. Furman:


Hugo L. Black:

Of three — of four different persons?

David D. Furman:


So it was all in — in a general sense one robbery although in — in New Jersey as well as I — and I suppose other common law jurisdictions a crime of robbery, is the taking from one person.

And the indictments were — were for the crime of robbery of each of these four men, the three first indictments and then the Yager indictment which was tried separately.

Hugo L. Black:

And what you say is that — that they’re conceding that that’s the fact.

They robbed them all at the same time.

You say that New Jersey has a right insofar as the Constitution is concerned to try a man for the four different robberies and four different cases.

David D. Furman:

I don’t necessarily say that, Mr. Justice Black.

We’re dealing with this case —

Hugo L. Black:

Well, two — two —

David D. Furman:

Which would — which —

Hugo L. Black:

— different robberies of two different people?

David D. Furman:

We say that under the — under these facts, where there was a trial for the robbery of — of the three men, the State offered proof of the elements of robbery.

The — the defendant offered proof only of an alibi and there was a general verdict of not guilty.

But the State can then retry for the crime of — of robbery of the fourth man.

There’s no showing here of any harassment, any — any deliberate attempt to subject him to — to retrials, any carelessness in the — in the language of this Court in — in Palko and Brock.

Earl Warren:

Well if your — if your theory is right, would there be any legal distinction between trying him twice as was done here and trying him four times for — on for the robbery of each one of them individually?

David D. Furman:

The only possible legal distinction would be whether — the four successive trials are not into harassment.

That is a possibility that is not offered in this record.

We — we respectfully urge.

Hugo L. Black:

But you — there are no other — other difference that you know of?

David D. Furman:

No, sir.

William O. Douglas:

What is — what do you mean on the Federal Constitution of harrassment?

David D. Furman:

Well as I understand, Mr. Justice Douglas, in — in the Palko case for example, Mr. Justice Cardozo was very careful to point out that there was no showing, that this — that the defendant Palko had been carelessly subjected to a retrial.

There was no showing that he had been harassed.

The same language is — is used in the — in the Brock case of where there was a mistrial.

Particularly in — in Mr. Justice Frankfurter’s concurring opinion, he says that there is no showing here of harassment a suggestion that if a — if a state court is harassing a man by forcing him again and again to trial of — of the same or — or substantially closed facts.

William O. Douglas:

Two — two would be enough for harrassment if the last (Inaudible)

David D. Furman:

We would — we would urge here that — two does not amount to harassment, that harassment would have to be presented in another record.

There’s no — there’s no indication here that — that this was other than a regular procedure or a reasonable effort to enforce the criminal laws.

William O. Douglas:

Do you think he (Inaudible)

David D. Furman:


William O. Douglas:

— it’s possible.

David D. Furman:


David D. Furman:

This — this case certainly does not fall under either the same evidence or the single act test of double jeopardy.

The — the same evidence test, as I’ve stated is inapplicable because the evidence of the — of the robbery of Yager was irrelevant and had no reference to the charge of robbery of the three other men.

The single act test has been described as an extension of — of the same evidence test or — or an extension of double jeopardy beyond the same evidence test.

Where the same act results in two criminal offenses, then — then a retrial of the second offense may be barred.

Again plainly unavailable, the robbing of Yager was not an –an essential ingredient or integral part of the alleged robbery of the three other men.

The knob of this case is in the — in the area of collateral estoppel and due process of law.

The theory or the principle of facts necessarily adjudicated cannot be retried.

The only contested issue at the first trial whether Yager was — whether Hoag was present.

The other issues necessarily in the case to overrule or to reverse the majority of the Supreme Court — this Court must be — must assign that identity was determined at the first trial.

Contrary to New Jersey law, this Court must then decide that the New Jersey determination was so unreasonable or so at war with — with fair play and justice that there was denial of due process of law.

Under New Jersey laws, the majority decided.

The general verdict is not open for a speculative inquiry into which of the several issues were decided by the jury.

A State is never entitled to a direction of a verdict in a criminal case.

The criminal defendant has a basic right that all issues be decided by the jury.

The burden of proof is on beyond a reasonable doubt.

It’s on the State and never shifts.

The acquittal here might have been due to the failure to establish the other facts at the trial of the Cascio, Capezzuto, and Galiardo indictments.

The acquittal might have been due to the jury’s realization that apparently, at least, Galiardo and one other witness had retracted from a previous identification and had recreated the problem.

And that if they could not be believed in — as they were inconsistent there, they perhaps were inconsistent in other things.

Perhaps when they said they were put in fear, they cannot be believed on that.

The result here is — is certainly inline with — with other cases in other courts which have considered comparable issues.

Now, this Court in the — in the Dunn case, for example, considered that there was no denial of due process of law in an erroneous jury verdict.

Where the jury returned inconsistent verdicts, one of acquittal on and one of — of conviction, that the — the criminal defendant could not get a reversal on grounds of due process of law.

Supposing a State says, “We won’t have any rule of collateral estoppel in New Jersey adequately.”

Does that violate the Fourteenth Amendment?

David D. Furman:

Certainly there’s no case —

— here by itself?

David D. Furman:

Certainly there’s no case, Mr. Justice Harlan, where this Court has — has held or composed to hold that — that the States were required to give collateral estoppel effect to — to parts of — of verdicts in state criminal cases.

Now — your question — raises one possible answer if — if you — if the state verdict clearly showed a decision on one issue.

If the state verdict clearly to show the decision on one issue and there was a retrial of that issue, then — then a different — and then a different case is presented, in this case.

David D. Furman:

But here, under state law, there — there was no determination of the issue of identity at the first trial.

The general verdict might have been put on one of many other grounds and we would urge that this Court should — should give in that case at least full effect to the New Jersey law which is not unreasonable and not — and not at war with — with fundamentals of justice.

Earl Warren:

Suppose in this case — in this case the defendant had been tried by — by a judge in the first instance.

And the judge said, “I find this man not guilty because I don’t believe they proved he was present at the — at the robbery.”

And then you proceeded to indict him for this fourth — fourth man, would you be in the same legal position that you are now or would you be in a different one?

David D. Furman:

We’d certainly be in a different legal position.

Earl Warren:

Would you be —

David D. Furman:

Because then —

Earl Warren:

— here?

David D. Furman:

— there — then there would be a positive determination of one issue.

Earl Warren:


Well that’s — that’s what I wanted to know if you —

David D. Furman:

I — I wouldn’t be prepared to say that the — the New Jersey judgment of conviction in that case should be reversed by this Court but it would be a different case.

Felix Frankfurter:

Does Jersey have — allow for a special verdict from those cases?

David D. Furman:

Yes, sir.

Felix Frankfurter:

That is a — would you mind stating out how that operates in New Jersey?

David D. Furman:

Well it’s a — I — I’m afraid I can’t answer in — in very great detail because I never had experience with one.

Felix Frankfurter:

All right.

David D. Furman:

But the rule does provide for it.

I think the rule is not often used but — the rule does permit submission of particular issues to the jury.

Felix Frankfurter:

But is this — is this something like a new rule?

David D. Furman:


I — I think the — the case of — of the two cases cited by the New Jersey Supreme Court are both worth the attention of this Court.

One was People versus Rogers, a New York case 1918 affirmed in the Court of Appeals.

How there — how the defendant was acquitted of robbery, one man.

His defense was an alibi.

And he was — he was convicted for robbery of another man at the same time and place.

That was a holdup of a store.

Two men — the two alleged victims were in fact brothers, proprietors of the store.

This — the — the conviction for attempted robbery in the second man was sustained.

David D. Furman:

Although the — the — again the contested issue was the defendant’s presence.

And the — the lower court said that the verdict spoke but one thing, that the defendant was not guilty.

The Burton case in — in Washington is substantially in the Court.

The jury here could have utterly disregarded all evidence of alibi and yet have returned a verdict of not guilty.

Now, there’s no res judicata effect on the alibi or on the issue of identity.

And the opinion of the New Jersey court apparently inline with — with the New York and Washington decisions.

The cases of Sealfon versus United States and — and the Emich Motors case are cited, both cases arising in federal courts.

Both cases suggested by the petitioner Hoag showed that this Court is prepared to examine into a general verdict and decide which of several issues have been determined.

As we read those cases they don’t hold that.

This — the Sealfon case was a — was on a — on a charge a fourth commission of the crime of — of defrauding the Government.

There’s been a prior acquittal on a charge of — of conspiracy to commit the offense.

And by established law of conspiracy to commit the offense and the substantive offense itself were separate and independent offenses.

Mr. Justice Douglas — analyzing the — the record in the two trials found that the — that the only proof, the only evidence upon which the defendant could have been convicted at either trial was the evidence of the writing of a letter.

Now the letter is something to the effect that some of — some of the syrups manufactured by or some of the syrups in which Sealfon dealt were being sold to the Brooklyn Navy Yard.

And he — he — the — the letter was the only — was the only testimony or the only proof either of a conspiracy or of the aiding and abetting in defrauding the Government.

And there because there was an identity that the — the substantive act asserted as a criminal act and both charges was identically the same and the proof had been before the first jury and the first jury had acquitted, this Court ruled that a second — that a conviction on the substantive offense had to be reversed.

That it was contrary to due process of law.

The Emich Motors case is a — is a case considering the effect in the civil proceeding of a criminal conviction under the Clayton Act.

And the statute provides that the criminal conviction shall have — shall have prima facie effect in the — in a subsequent civil — civil proceeding in establishing the general conspiracy in restraint of trade.

And that’s — that’s just about the — the holding of this Court — that the plaintiff in that case could — could put in evidence how that general conspiracy affected him and of his particular damages and to that extent the — the judgment.

In the first criminal case was given a res judicata effect by statute.

The — the two dangers which are sometimes cited — calling for the protection against double jeopardy or the danger of harassment or the danger of erroneous conviction.

We — we respectfully urge that there’s no showing of any harassment here.

In the Louisiana Electric Chair case, the — the lack of malice was presumed by this Court.

I cannot, without going outside the record, give any explanation for the pleasure to indict on the charge of robbery of Yager at the first trial and respond in the first instance.

In response to questions I have pointed out that Yager was not a witness in the first grand jury proceeding.

But certainly, the — the regularity and — and lack of malice of the State should not be questioned unless there is some affirmative showing and there is no such affirmative showing here.

Now, as to the — as to the danger of an erroneous conviction although this defendant pleaded not guilty, he has never attacked the fairness of the second trial as such or the validity of that conviction.

There is no plea in New Jersey of collateral estoppel.

Now, the plea is available in criminal cases are guilty, not guilty, nolo contendere, utraque acquit and utraque convict.

David D. Furman:

The — the lack of a plea of collateral estoppel is — is perhaps indicative of — of New Jersey law, substantive law.

The rules of joinder in New Jersey are discretionary.

It’s not mandatory.

That where there is one criminal transaction perhaps in the sense that Mr. Justice Black had used the term, that all indictments are — are tried — are joined together for trial.

Certainly if this Court should reverse here — it restricts the prosecutor in many cases where there is a transaction involving — involving multiple crimes against several people and one or more of the complaining witnesses are not available at the time of the — of the first trial or as the — as the case is ready for the first trial.

Shall the prosecutor hold up and not bring the — the other indictments to trial or shall he wait on the possibility that the — the other complaining witness returns.

Any — any reading of the — of the transfers of the two trials of William Hoag will lead to the conclusion certainly that — that Elmer Yager had — had a more detailed recollection of the events.

He testified in more detail.

The State suggests that he testified more accurately.

But he — he certainly was an impressive witness.

And at the second trial when the — when the jury realized that he was the — that he was the victim, he was — perhaps more — more impressive than in the earlier trial where he was not one of those for who — for whose robbery and indictment was being tried.

As — as an additional point, the petitioner Hoag has — has raised the — the lack of a speedy trial.

Now he had a — he had a remedy under New Jersey practice, he could have — he could have moved to fix a date for trial.

Never did that.

I don’t see how he can contend for — contend that he was denied due process of law.

The lack of a speed trial is — is it attributable first, he was a fugitive for about a year from the time of the tavern holdup until — that was in 1950, until the fall of 1951.

Second, after his acquittal on the charges of robbery of the other three men, he was returned to New York for incarceration.

He was there for two years.

He was brought back to Bergen County.

He was unable to raise bail.

He was confined in jail during the summer months when the Court was not sitting for criminal trials.

He had his remedy.

The remedy is set forth in our brief.

We — we contend that he failed to avail himself for that remedy and he was not denied due process of law in the federal sense.

The — the principle of — of unassailability of the general verdict established in New Jersey in accordance with other common law jurisdictions does not deny the fundamental essentials of — of a fair trial.

The Fourteenth Amendment exacts from the State’s fair dealing and justice and prosecution of criminal defendants.

That was accorded here and we respectfully urge that the judgment of conviction should be sustained.

Earl Warren:

Mr. Knowlton.

Robert E. Knowlton:

I’d like to point out to the Court that although accounts for the State mentioned the number of times separate issue, there was admittedly only one issue in the first trial and in the second trial as well.

That was the identity.

Robert E. Knowlton:

In relation to Mr. Justice Black’s question, there is no question on the facts which they do not take a contempt that these people were robbed by — the four victims were robbed by different people.

In relation to the problem —

William O. Douglas:

(Voice Overlap) present here?

Robert E. Knowlton:

There is no doubt that these four — the four victims named in indictment were all robbed by the same three robbers.

And this is demonstrated in a number of ways, one of which is that the first trial, the only identification was Mr. Yager’s identification.

And yet it — it — a directed verdict was refused showing the first trial court’s recognition of this — of this situation.

In relation to the problem of harassment under Palko against Connecticut, I’d like to point out that under the theory of the test of offense as used by the majority in New Jersey, there is no difference or there could have been four trials here and in logic there is no difference between two and four trials on the same issue.

If they — if he requires for harassment, a demonstration of the motives of the prosecutor that requires speculation and is very often an — an impossible task to demonstrate by the defendant.

I’d like also to point out this time that the term collateral estoppel has been used, that this case is — does not require collateral estoppel in — in its broadest sense where it would — as in Sealfon case where there was new evidence on the only disputed issue.

In this case there is no new evidence on the only disputed issue for insofar as the phrase collateral estoppel would preclude re-litigation on the same issue with new evidence this case did not go that far.

But I would like to point out that the term “offense” in the Double Jeopardy provision is the technical term that can be expanded and contracted and that Mr. Kirchheimer in the Yale Law Journal points up this term the act-offense dichotomy threatens to undermine the basic policy through the Double Jeopardy provision.

If you — if you define offense narrowly enough and the — the test used by the New Jersey courts in this case was described by the American Law Institute as being the outstanding example of all the tests today are so narrow that they fail to afford the defendant, any appreciable safeguard.

If you use the term offense in that nature, certainly some auxillary method is necessary to preclude re-litigation on the same side and upon the same evidence.

Felix Frankfurter:

Mr. Knowlton, would you agree that Palko decided that — that double jeopardy as a technical — by technical I don’t mean invidiously — it was an invidious admiralty that the — whatever content double jeopardy may have these constitutional provisions containing it is not as such absorbed by the Fourteenth — by the Due Process Clause.

Would you admit that was Palko’s standpoint?

Robert E. Knowlton:

Yes sir, I think that —

Felix Frankfurter:

Very well.

Then therefore the whole discussion of whole problem cannot be drawn out of what the scope limits are of double jeopardy for they knew the Constitution is?

Do you view that?

Robert E. Knowlton:

That is — that is correct sir.

Felix Frankfurter:

Therefore that we are entirely on the — on the different terrain.

Robert E. Knowlton:

Yes sir.

That is correct.

Felix Frankfurter:

And call these differences in opinion which has been revealed in — in this Court, (Inaudible) that clause came under review or — or not to Government, your problem, or this problem, or my problem.

Robert E. Knowlton:

That is correct, sir.

I believe that your statement in Brock against North Carolina where you said that the scope was a Double Jeopardy provision or the technical aspects of it were not incorporated but the due process does protect the fundamental policy.

Felix Frankfurter:

Now, have you any observations to make on the bearing of the rejected doctrine of inconsistency and verdict upon our problem here?

Robert E. Knowlton:

I believe that that problem is distinguishable because in that situation you have one jury with the possibility of a conviction on — on two counts or on two indictments joined for one trial.

In that situation, it has been recognized and in both the Dunn case and the Dotterweich case, which are cited in my brief, that the jury may compromise and — or they may be acting leniently.

Now, the first verdict in the first trial here was an acquittal upon three indictments.

Robert E. Knowlton:

There was no compromise in that verdict.

There was —

Felix Frankfurter:

But you remember in the Dunn case, Mr. Justice Holmes said that if there had been two separate indictments, separate trials for the maintenance of (Inaudible) the sale of illegal liquor and another one for the sale or the possession of illegal liquor.

The sale evidencing offered in support of each an acquittal on one could not be pleaded as res judicata of the other.

Robert E. Knowlton:

I think that he is applying here — I — I think that the — the same evidence we have.

He — he doesn’t go in — in that analysis.

He doesn’t go to the problem that we have here where there was only one issue.

He is stating abstractly that they may be different, may have involved —

Felix Frankfurter:

That presupposes that the issue here was the identification or the — or the killing or the attack to San Diego.

Now, that clearly was not an issue if the indictment of the definition of the scope of the inquiry.

Robert E. Knowlton:

But the only — since all four were robbed by the same robbers and since Yager’s testimony was the only identification, the first verdict is inconsistent with the second verdict since that was the only issue and either trial was Mr. Hoag one of the three robbers.

Felix Frankfurter:

And Dunn says that, “We can’t go into that for the reason — the only extensive reasoning is the quotation that Justice Holmes made of Judge Henderson.”

You need to inspect that.

The most that can be said in such cases is that the verdict shows that either the acquittal or the conviction, the jury did not pick the real conclusion but that does not show that they were not convinced of the defendant’s guilt.

We interpret the acquittal as no more than their assumption of a power which they had no right to exercise but which they were disposed to contend.

In other words you can’t go into those.

You can’t — there’s no way of determining what led or did not lead that jury to do what they did in relation to a difference in coming up with the second trial.

Hugo L. Black:

Well, that’s the one before you.

Robert E. Knowlton:

Well I — I thought that we had determined that the crucial question was the — the fact of the issue having then the identification.

I think that the State is asking speculate this other possible reason.

Felix Frankfurter:

I’m suggesting that Yager is not the — one of the defined people as to whom the crime or crimes were charged.

It is beyond the capacity of men to determine what it is that they did or didn’t decide with reference to Yager.

Robert E. Knowlton:

Well I — I think that in that point we choose to disagree.

I think that the Court is entitled to presume that the jury — I can — I can see the inconsistent verdicts in one trial where you can say that the jury some were for an acquittal and some were for a conviction and they convicted on only one of the two.

It’s a compromise.

But in the first verdict here, there was an acquittal upon all three.

There was no compromise there.

They found that — that he did not rob these three men in a trial where the only issue was whether he was one of the robbers.

It seems to me that under those circumstances a second verdict finding of guilty of robbing Yager is — is inconsistent.

It seems to me that this leaves open the utilization, the extremely narrow definition of offense.

Robert E. Knowlton:

The door — it leaves the door open to continually holding out one indictment in this situation and continually saving one to see if you can convict the second time around.

And it seems to me that under these circumstances, it goes beyond petitioner’s claim of the denial of due process to ordered liberty.

It seems to me that this constitutes a threat to any particular individual that the prosecutor determines he wants to convict because it seems if they can do this, they can convict eventually.

And I think that that is one of my —

Felix Frankfurter:

But it doesn’t — it doesn’t if you follow.

I tried to point out in my opinion in the Willie Francis case.

It doesn’t follow that because you can do this, you can go on doing this.

That’s — that’s the kind of abstract mechanical reasoning that is employed.

Robert E. Knowlton:

Well I think — I think that is true and I think that this is — that in — in some, and I think that is true that because they can do it the second time does not necessarily mean that this Court couldn’t say that a third time would be harassment but I — I myself, if I know logical distinction between one and two and they did do — it had two trials for petitioner Hoag.

Earl Warren:

Mr. Knowlton, the Court appreciates your acceptance in this assignment to represent this indigent prisoner, and we feel that you’ve done it with great diligence.

And it’s a — it’s a good public service since you were granted and we — we do appreciate it, sir.

And Mr. Furman, we — we appreciate the — the vigor and the fairness of which you have presented the — the rights of your statement in this — in this matter.

David D. Furman:

Thank you.

Earl Warren:

Very well.