Jenkins v. Anderson

LOCATION: Superior Court of San Diego

DOCKET NO.: 78-6809
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 447 US 231 (1980)
ARGUED: Jan 08, 1980
DECIDED: Jun 10, 1980

Carl Ziemba - for Petitioner
Robert A. Derengoski - on behalf of Respondent

Facts of the case


Media for Jenkins v. Anderson

Audio Transcription for Oral Argument - January 08, 1980 in Jenkins v. Anderson

Warren E. Burger:

We will hear arguments first this morning in the Jenkins v. Anderson.


Carl Ziemba:

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

If there is one major shortcoming in the administration of criminal law in this country it is in the restricted interpretation given to the concept of the presumption of innocence.

In my years at the criminal trial bar I have so often heard trial judges instruct the jury the defendant is presumed to be innocent and that the presumption starts at the beginning of the case and continues on until his guilt is proven beyond reasonable doubt.

I think that that is a misleading, if not mistaken, notion of the presumption of innocence.

I think that we are all as members of this society presumed to be innocent of the commission of crime.

William H. Rehnquist:

Wouldn't you say that Bell v. Wolfish last year that the presumption of innocence was something a word of art peculiar to criminal trials?

Carl Ziemba:

Yes, but I think that that is a restricted concept of it.

William H. Rehnquist:

You disagree with --

Carl Ziemba:

I agree with the Court's declaration so far as the Court went.

But I would say that the reason why a police officer has to have probable cause to believe that somebody has committed a felony or to see the person commit a misdemeanor in his presence before he can lay hold of him is because that person is presumed to be innocent of the commission of crime.

I think that the very genious of our system of criminal jurisprudence starts with the presumption of innocence which invests every member of our society and it must follow from that in our system of jurisprudence, criminal jurisprudence that if a person is presumed innocent he cannot be burdened with the duty of proving his innocence.

And therefore if the State accuses a person of crime the State has the burden of proving that crime.

And then of course they have evolved all of the facets of the principle of the right of nonincrimination investing every individual, which means to say that if the State chooses to charge a person with crime the State has the burden of proving that charge beyond a reasonable doubt without any assistance at all from the defendant.

And there is no burden upon the defendant to make an explanation or to make exonerating statements.

William H. Rehnquist:

Well, the defendant can be called before a grand jury and required to give blood samples, handwriting analysis, and that sort of thing; can he not?

Carl Ziemba:

That is true, but we have said that that is not testimonial in nature, have we not.

William H. Rehnquist:

Yes, but I take it the State wouldn't do it if it didn't feel it was helping prove its case.

Carl Ziemba:

Well, I suppose not.

Of course that is not to say that I am in absolute agreement with the concept that giving blood samples and things of this nature is not compelling a person to give evidence against himself.

But of course I am in the minority on that point of view.

But we do recognize the fundamental principle that when one is hailed into court and put on trial and all of the State's evidence marshaled against him is presented in court he still has the right to remain silent.

And nobody can comment upon that, upon the fact that he did remain silent.

Warren E. Burger:

But once he takes the stand in his own behalf the situation undergoes some change, doesn't it?

Carl Ziemba:

Yes, it does but we cannot -- we cannot punish a person for exercising a constitutional right simply because he exercises another right, and that is the right to give evidence under the Sixth Amendment.

In other words, here we have -- we have the potential of a person reading in the newspaper that the authorities suspect him of the commission of some crime though there is no formal charge made against him but still it is brought about that X done so and so.

Now, X must decide instantaneously then before any charge is formally filed against him whether he is going to testify in his trial if it should ever come to that, you see.

Because if he intends to testify in his trial he had better come out with an explanation in the face of these rumors and the stories in the newspapers now.

Otherwise, he is going to be damned on trial by his pre-trial silence in the face of these accusations.