Johnson v. Massachusetts – Oral Argument – March 07, 1968

Media for Johnson v. Massachusetts

Audio Transcription for Oral Argument – March 06, 1968 in Johnson v. Massachusetts

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Earl Warren:

Number 702 Ronald L. Johnson petitioner, versus Massachusetts.

Mr. Harrington, you may continue with your argument.

Abe Fortas:

Mr. Harrington I am very impressed with your response to the question that Justice Douglas asked you yesterday, whether the points that you are making here were properly raised below.

I assume you’re going to get to that this morning.

John Harrington:

I think that my argument will deal with that and if Your Honor does not feel so, I feel myself charged at some point to come back to your question.

Abe Fortas:

Well that’s Justice Douglas’ question yesterday which you said you were going to get to, I just wanted to remind you of it.

John Harrington:

Well to continue Mr. Chief Justice and may I please the court as you will recall at the — shortly before the afternoon recess of yesterday I had asserted that the position which I assert that the burden of proof of showing the voluntariness of a confession should be on the prosecution, was supported by Miranda v. Arizona and I say that primarily because I think it’s plain in Miranda and the Arizona that it is intended that the same procedural rules with respect to an involuntary confession applied in both state and federal courts.

I say it is not, it is of significance though not of the same significance that the Miranda rules themselves were such that the burden of proving compliance was placed squarely on the prosecution.

I should also observe that in Miranda Mr. Justice Clark in his opinion where he dissented in three cases and concurred in one says this is at page 503 of the opinion and I think that I would best read this sentence.

In the absence of warnings, the burden would be on the state to prove that the council was knowingly and intelligently waived or that in the totality of the circumstances including the failure to give the necessary warnings the confession was completely voluntary.

Now I think it’s perfectly clear that even that standard was in no wise observed in the case at bar where there was custodial interrogation.

There was clearly an absence of warnings.

The burden was not on the prosecution and indeed the voluntariness question was not considered in the light of the totality of the circumstances.

Hugo L. Black:

May I ask you of your argument as reference to burden of proof is confined entirely to the burden of proof that you are now mentioning.

John Harrington:

Well it has two aspects to it.

It has the aspect of the burden of proof in the voir dire that was held as a preliminary examination.

It also has an aspect that I will come to in just a moment that in this particular case the jury never received a question of the voluntariness of the confession.

Hugo L. Black:

It does go further than the waiver of the right to counsel the burden of proof.

John Harrington:

What I suggest, what I urge I that the burden beyond the prosecution of showing the voluntariness of the confession as well as warnings with respect to the confession.

This is the English rule, it is the rule in Ireland, it is the rule in the federal courts, it is the rule in most all of the states.

There are seven which to our research have the burden on the whole issue of voluntariness placed as Massachusetts places it.

My argument goes just to the voluntariness issue.

Hugo L. Black:

As I recall it — I have read my dissent recently in the Deno case, one of my arguments was that this was a burden that rested on the state to show that the jury had to preside but the court projected that.

John Harrington:

My argument I suggest Mr. Justice Black is entirely consistent with your dissent in the Denno case.

And your dissent contains the proposition for which I contend that the — in this case where there was no explicit waiver that the jury should have passed on the question of voluntariness.

Potter Stewart:

Will you make a two step deal Mr. Harrington.

Number one, I gather your proposition is there must a voir dire determination of voluntariness at which the state has the burden of proving voluntariness.

In other words, over the objection to the admission of the confession as I understand it, this creates the requirement of a voir dire.

John Harrington:

Correct.

Potter Stewart:

And in that proceeding, the state must bare the burden of proving voluntariness.

Potter Stewart:

And if the court determines that yes, the confession was voluntarily given then you go a second step and say nevertheless the issue of voluntariness must begin to be submitted to the jury for ultimate determination, is that it?

John Harrington:

Exactly with the burden still on the commonwealth or the prosecution show that it is voluntary.

And I suggest that —

Abe Fortas:

In addition to that that it includes the guidelines in Miranda?

John Harrington:

Yes, I of course, I’m not in any — in no way detracts from the guidelines in Miranda.

This problem arises of course in a pre-Miranda case.

And I suggest that —

Abe Fortas:

Is that the Johnson case retroactive —

John Harrington:

The Johnson v New Jersey?

Abe Fortas:

Yes.

John Harrington:

I say that was the last point but I might as well come to it right now.

There are perhaps three aspects to this, one I assert that these constitutional rules with respect to voluntariness and the procedures with respect to voluntariness are such that they are retrospective in application.

Indeed in Johnson v New Jersey this court said that the defendants convicted prior to the date of Johnson v New Jersey had the benefit of the increasingly meticulous test of voluntaries made it — and that Johnson v New Jersey quite plainly distinguished between the prospective application of the Miranda rules and the Escobedo rule and the test with respect to voluntariness.

So I say that on this branch of my argument as to procedures, there should be retrospective application with respect to the branch of my argument that goes to the point that as a matter of law in these circumstances, the confession should begin to involuntary — that involves no retrospectivity or prospectivity problem because those doctrines, when this court upon its own independent review has determined that a confession must be deemed to be involuntary that —

William J. Brennan, Jr.:

Are you saying anything more in your case and what you have labeled the Miranda rules then that the absence of warnings is relevant in the totality of the circumstances on the determination of voluntariness.

John Harrington:

Exactly.

William J. Brennan, Jr.:

You’re not saying anything more than that, are you?

John Harrington:

I’m saying that one of the circumstances which must be taken into account on the question of voluntariness in this free Miranda case.

William J. Brennan, Jr.:

Is the absence of warnings.

John Harrington:

Must have been the absence of warning.

William J. Brennan, Jr.:

Well, really it doesn’t help us any to talk about those as Miranda rules does it?

Byron R. White:

Well it isn’t I mean it certainly wasn’t — a de novo law but a time in the time of —

John Harrington:

I feel that I needlessly caused a confusion for which I am sorry.

My only point with respect to the Miranda rules and I should have made this clear, it is that sort of an elementary proposition that burden of proof can rise to constitutional dimensions and the fact that in Miranda, the rules on burden of proof were made part of a constitutional rule is perhaps that really doesn’t need to be said, despite of the Miranda—

William J. Brennan, Jr.:

I wonder if you’re not just going further than you have to

John Harrington:

Well, further in argument not on analysis I mean what I was going to say is the spice of the Miranda is a case which plainly illustrates that the burden of proof can rise to constitutional dimensions — that was the first demanded and I suggest that the offense involved in an involuntary—

William J. Brennan, Jr.:

May I turn to something else before you—

John Harrington:

Yes Mr. Justice Brennan.

William J. Brennan, Jr.:

If your proposition that the issue of voluntariness after the judges decided in voir dire out of the presence of the jury that the confession was voluntary as again to be submitted to the jury.

What’s your view of the defendant’s position if he is taken the stand in the voir dire under the presence of the jury, what does he do when the issue of voluntariness has then became the subject of proof before the jury after the judge’s determination.

John Harrington:

This is where the burden has the real bite because if Massachusetts for instance, and in many states indeed I think that this may be the federal rule, if you take this — if the criminal defendant takes the stand for any aspect of the case, he opens himself up on the whole case — sort of the converse of the federal rules of civil procedure where the cross is limited to the issue.

But in Massachusetts there’s no question.

If he takes the stand to testify to abiding the whole issue or his guilt or innocence is open on cross.

And if the defendant has the burden, he has often a very difficult choice to make.

If the burden is otherwise, if the burden is on the prosecution so that they have to prove that they have that burden then in all the circumstances, the confession was voluntary.

I don’t need to belay that the importance of the burden rule for that proposition.

It strikes me that if this court were to say that Jackson v Denno — and the case sensed that have not only the requirement that maybe this reliable and precise determination of the voluntariness issue before the case goes to the jury, but that also imports absent and post expressed waiver, are claiming that the issue go to the jury.

Thurgood Marshall:

In this case did he take the stand in front of the jury?

John Harrington:

No he did not Your Honor.

Thurgood Marshall:

Well was he involved in this case?

John Harrington:

Well I’m saying that the —

Thurgood Marshall:

Well, you say it’s a question for the jury.

The voluntariness of the confession — and the defendant to not take the stand before the jury, and puts on no evidence to support the involuntariness of the confession before the jury how can it then become a jury question?

John Harrington:

Well I have two answers to that.

One, this case in one a general answer.

The general answer, I suggest that if the burden of proof were different it then becomes always a jury case.

If this is part of the government’s burden, the jury always gets it.

In this case, even though the defendant did not take the stand.

I say that if the totality of the circumstances, rule had been applied, given the fact that there was before the jury, the evidence of this man’s injuries of his custodial isolation of his absence of warning it appeared in the negative way but the testimony was, is that all that they said and all that was said was a confession.

I mean it was perfectly obvious there was an absence of warning, an absence of counsel and isolation.

And I say that on a totality of circumstances test that question could have gone to the jury.

Now, the Supreme Judicial Court —

Thurgood Marshall:

Is good enough what you mean?

It could have gone —

John Harrington:

Should have gone sorry.

Thurgood Marshall:

Should have gone to the jury and failure to go to the jury is it error sufficient for reversion —

John Harrington:

Yes.

Thurgood Marshall:

Do you mean that or not?

John Harrington:

Pardon.

Thurgood Marshall:

Do you mean that?

John Harrington:

I mean that Your Honor.

I assert it and I say that the answer which the supreme judicial court gave to these propositions when advanced to them were twofold.

One, that there was no evidence of involuntariness before the jury and that brings up this sharp question.

There wasn’t any evidence if the only test was physical beating.

There was evidence if the totality of the circumstances must be considered.

That’s the very — both positions can’t be right on that.

Hugo L. Black:

If you are right on your burden of this argument why does there have to be an evidence at all as the defendants isn’t it?

John Harrington:

It doesn’t—

Hugo L. Black:

If you are right on the burden of proof, why does the state fail to prove indication.

John Harrington:

If I am right, that will be true, that’s always true in a criminal case where the prosecution has the burden and the defendant can sit there through the whole trial and move verdict of acquittal at the end of it and get a jury’s verdict at the end of it without ever having gotten out of his chair.

Hugo L. Black:

I understand if you’re arguing the defendant.

The evidence of a confession — in evidence of a confession, the jury has a right to pass all the truthfulness of that submission, decide it and that the fact and that it be fact then there was some lack of freedom of choice, is a question that the jury has to determine beyond the reasonable doubt, he is guilty.

John Harrington:

I would say that the jury should be entitled as the government having the burden to decide that the government had failed to carry it and had not persuaded them that the confession was in all the circumstances voluntary whether the judge has or has not — they don’t get the question unless the judge has satisfied himself that applying constitutional criteria that it was voluntary.

Abe Fortas:

But what are the issues though on the question of voluntariness and this particular case as I understand it, the only specific question that was raised was that of physical beatings.

And no other claim was made at best two of the question of voluntariness.

Is that right?

John Harrington:

That is right at the trial — by counsel at the trial, the only contention was made in response to the judge’s meticulous query was that a physical beating was relied on.

Abe Fortas:

And the court found that — found against the defendant on that.

John Harrington:

Right and after hearing his evidence.

Abe Fortas:

And do I remember correctly that you’re not challenging that finding?

John Harrington:

I am not challenging.

That is the finding of fact undisputed evidence I cannot challenge.

Abe Fortas:

Alright, now on the question of voluntariness.

Is it your position that although other issues were not raised, it is the state’s duty to go ahead and to show somehow that a length of the arraignment or the length of the confinement and questioning was not such as to produce involuntariness conclusion of involuntariness that he was well fared so that that didn’t have any bearing on it and it either had counsel or waived counsel or was or was not warned, is that sort of thing you’re telling us?

John Harrington:

Yes it is Your Honor.

Abe Fortas:

You’re saying that once a defendant asserts that the confession was involved the state has a duty without reference to any particularization of reasons on the part of the defendant as to why the defendant claims the admission was involuntary.

The state then has the duty to negative all possible factors, which might be result in a conclusion that the confession was involuntary.

Is that your position?

John Harrington:

Quite that way Mr. Justice Fortas, I wouldn’t put it that their duty was to negative every possible contention.

I would put that it was the duty of the prosecution to persuade the triar of fact in the first instance the judge at the voir dire and then the jury that the confession was voluntary.

Abe Fortas:

Now tell me how do you do that? How does the state do that?

John Harrington:

Well I would think that they would, by showing the circumstances and if they didn’t show, if for instance, if they had to show that there was no warning then they — in a sense they have shown some evidence that’s against them and then they have to show these circumstances under which the —

Abe Fortas:

But we assume that Miranda was not retroactive and if we assume that the warning is not as a matter of federal constitutional law necessary in this case because it’s pre-Miranda.

Then, I should think that it was not the duty of the state in this case or we can hold that that was the duty of the state in this case to show that the warning was given.

And I don’t understand frankly, I have a greatest difficulty and coming to grips with your point.

Now it’s possible quite possible to argue that when the defendant raises a specific issue such as that the confession was the result of physical beating.

When he raises that due to some evidence however small, then the state has the burden of proof to show that the either he was not physically beating or that the physical beating had no causal connection with the confession.

And I can understand your burden of proof argument in that respect.

But when you — I understand that you’re going much further than that in saying that regardless of the specific issues that the defendant tendered, the state has to go ahead and prove voluntariness.

I don’t understand it.

John Harrington:

Well my argument — I concede that my argument goes beyond the necessities of this particular case where it did appear from the evidence, from the defendant’s mouth that there was a beating.

And if the suggestion of Your Honor be that that is such to shift a burden of proof or indeed even at that point even a burden of going forward, this case meets that, however from my observation, my analysis, my research —

Abe Fortas:

Excuse me but right there, I wonder if it does because you say you’re not challenging the finding and there was no physical beating while he was in jail or as I understand it, is that a cause of connection with the confession?

But you’re not challenging then I don’t say we can conclude anything other than that the state whatever burden that has with respect to the physical beating charge.

John Harrington:

I was accepting what I thought was a suggestion that it was the contention rather than the proof to the satisfaction of the triar of fact which was enough to invoke the change of verdict but let me say only on that, that well I think my argument goes beyond the necessities of this case and perhaps it’s dangerous to argue beyond the necessities of the case, I suggest that an analysis of the authorities and analysis of the principles which go from them will indicate that the position that I have taken is the only one that reasonably can be taken.

Now I don’t have time enough to develop that.

I just want to very briefly in the moments that I have here to one last problem in this case, which I suggest has a variety of intellectual problems to it.

And that is that there may be a question of the prospectivity of the Miranda rules with respect to a new trial.

If this case were to be decided on the question that the matter of law — as a matter of law in these circumstances the confession was involuntary, no prospectivity or retrospectivity question is reached.

However, if this case were to be decided on a ground that the procedures adopted by the Massachusetts courts did not need constitutional standards and that for that reason Johnson was entitled for a new trial.

Then I suggest the question arises that this retrial would necessarily be after the Miranda decision that that question would arise in my brief I have pointed out the quite not split that has occurred on that and I command the reasoning of the Dorothy case in California.

Thank you Your Honor.

Earl Warren:

Mr. Concannon?

Brian Concannon:

Mr. Chief Justice and May I please the court.

In the totality of the circumstances, the confession here was a voluntary one.

There’s no question before this court as to the physical coercion that was found as a fact not to be served by the trial judge.

Whether or not there was psychological coercion is to be determined by balancing the circumstances of pressure against the power of the individual to resist that pressure.

The circumstances of pressure were delineated by my brother.

The power of the individual to resist in this case is as follows.

This was a 29-year old man.

Brian Concannon:

He had been to the eighth grade or in any event had attended junior high school, his IQ measured under less than ideal circumstances was 86 in the dull, normal range.

He had experienced in the military service as a (Inaudible) guard and as defendant.

He had significant experience with the police with regard to arrests and interrogations for violations, alleged violations of motor vehicle law, public utility law, assault with a dangerous weapon, armed robbery, disorderly conduct and homicide.

One of those investigations involved a 5-hour custodial interrogation.

Whatever deficiency if indeed there was a deficiency in this man’s IQ as theoretically measured should be more than out waived by his practical intelligence and by his sophistication in dealing with the police as a result of his experience.

Abe Fortas:

You mentioned that he was in the service, how did he leave the service?

Brian Concannon:

He left the service under it was not an honorable discharge.

I believe that it was as a result of not — I think it was inefficiency.

He was not able to perform I think it had something to do with his intelligence.

Abe Fortas:

Something to do with intelligence?

Brian Concannon:

Yes Your Honor.

On this occasion in question and on every other occasion which he had dealings with the police this man was not done as to his rights.

His statements to the police on this occasion and on other occasions negative it seems to me the aspect of an ignorant individual who was being intimidated by the police.

The record is abundant with his asseverations to the police.

I don’t have to make a call I don’t have to tell you cops anything.

I know my rights.

In addition to the spectacle of cross examining his accuses at the time of these confrontations and lineups are you sure that I’m the person, did you see me shoot the cop.

If there were 10 called on the lineup could you have picked me out?

Thurgood Marshall:

Mr. Concannon, do you go farther to say he didn’t need a lawyer to trial? But how efficient was he?

Brian Concannon:

He certainly was not as efficient Mr. Justice Marshall as a trial lawyer.

But I mentioned his activity in cross examining his accusers to point out not that he did not need a lawyer but that this was not the kind of individual that appears in the cases decided by this court showing — deciding involuntariness.

In no case this court has decided do we have a finding on involuntariness in such circumstances as these.

Certainly not — no case has gone this far with regard to the coercive pressures and no case has gone this far with regard to the power of the individual to resist and it’s for that purpose only that I mentioned it.

Thurgood Marshall:

May I ask why he questioned on 12 at midnight until 6 AM why?

Brian Concannon:

He was questioned for information.

Thurgood Marshall:

For what purposes?

Brian Concannon:

He was questioned for information.

Thurgood Marshall:

For what purposes?

Wasn’t it for the question of wrapping it up?

Brian Concannon:

I think that may have been on the minds of the police Your Honor yes.

Brian Concannon:

But this was not the kind of case showing an unyielding contrivance against this man because —

Thurgood Marshall:

The normal question people from 12 midnight until 6 in the morning is — he should be at sleep that time don’t you think?

Brian Concannon:

It’s not the practice today Your Honor.

Whether it’s normal, according to the police procedures I’m not sure.

Thurgood Marshall:

Well the courts don’t run 12 midnight until 6 in the morning.

Brian Concannon:

No Your Honor this was a killing of policeman that occurred in the early evening.

He was brought to the station and the police were very anxious to know as much about the facts of this case as they could find out.

There were witnesses, they were brought both to the headquarters, they were brought to station 10.

Thurgood Marshall:

Well at this point — is it true that Johnson was not a prime suspect isn’t it true that at 12 o’clock he was the one and only certain person?

Brian Concannon:

I’m not sure I would go that far but I would say he was the prime suspect.

There’s no question about that.

Thurgood Marshall:

He had a gun didn’t he?

Brian Concannon:

And there’s no question in my mind although I’m speaking off the record that the police were interested in getting a statement from this man.

Thurgood Marshall:

Well the purpose of convicting.

Brian Concannon:

I think that’s always the purpose behind getting a statement from quite candidly —

Thurgood Marshall:

You don’t need a lawyer when you’re trying to get a man, convict the man out of his own — he doesn’t need a lawyer.

Brian Concannon:

I would not argue that Your Honor.

There’s no question—

Thurgood Marshall:

(Inaudible)

Brian Concannon:

He did not have a lawyer and if the case were to take place today—

Thurgood Marshall:

He wasn’t warned that he didn’t have to say anything?

Brian Concannon:

I would like to qualify that a little bit if I may.

Thurgood Marshall:

Well can you qualify past the judge’s determination that there was a state of confusion—

Brian Concannon:

–caused by the activity of the petitioner himself.

Thurgood Marshall:

He created the confusion.

Brian Concannon:

Yes Your Honor.

This was a finding of – created partially yes — this was the finding of the court.

Lieutenant Richardson warned this man at the booking desk pursuant to Massachusetts law that he had the right to call a lawyer, a bail commissioner, a friend or a relative.

The trial judge found as a fact that this warning was not completely communicated to the petitioner, partly due to the confusion in the police station partly due to the obstreperous conduct of the petitioner himself.

Abe Fortas:

Mr. Concannon, you seem to stress that this man had had some experience with the courts and with interrogation and that he said he knew his rights and that he did not have to answer any questions of the police and that he would not answer their questions.

Abe Fortas:

Yet after that they questioned him from what it was 9:30 at night until 6 o’clock in the morning.

Would that not indicate that what he said was involuntary?

Brian Concannon:

I don’t think so Your Honor this questioning was not constant questioning, giving the greatest leeway to the interpretation of the record that we point out in footnote 10 of our brief.

This man could not have been questioned for more than two-and-a-half hours at most.

But I agree with Your Honor to this extent that this is conduct which is impermissible by today’s standards but we’re talking about pre-Miranda cases.

Abe Fortas:

Would you mind telling us what the surroundings were at the time he was questioned.

Who questioned him and what the surroundings were as to whether it might have been —

Brian Concannon:

Yes Your Honor, perhaps I can shortcut it for you.

We concede that this was a police dominated atmosphere.

Abe Fortas:

That would tell us how bad did it was?

Brian Concannon:

He was brought to station 10.

There were many policemen around at the booking desk.

He was struggling at that time so there were policeman needed to restrain him.

Abe Fortas:

How many were there?

Brian Concannon:

I think there was — at the booking desk I’m not sure — I think the record would indicated that in the immediate vicinity there was about a half dozen policemen.

Abe Fortas:

And then after that?

Brian Concannon:

Then he was given medical attention and put in a cell and these facts were not fully developed for the simple reason that at trial, he claimed that he was being beaten all the time.

The judge disbelieved this.

This opacity of facts as to just how many policemen were around.

There were many dozens of policeman that came to the court to testify so that at various times during the night he was in the presence of more than a hundred policemen.

Abe Fortas:

100 policemen and how many quizzed him?

Brian Concannon:

The record indicates that only Lieutenant Donovan conducted the interrogation.

Abe Fortas:

And was he the only man who spoke to the defendant in that period of time among the officers?

Brian Concannon:

Well Lieutenant Richardson warned him—attempted to warn him of his rights to call a lawyer.

As far as the record bears out I believe that Lieutenant Donovan was the only one who interrogated him.

Abe Fortas:

There’s some allegation that there were a great men — police officers who came in and (Inaudible) him and taunted him about certain things and so fort.

I think something like 32 is that correct?

Brian Concannon:

Well I don’t believe that’s a finding of fact in the record —

Abe Fortas:

No, but I’m talking about the testimony in the case that was not denied.

Brian Concannon:

I don’t think that’s true Your Honor but the testimony of course went much further for the defendant that he was beaten by the policeman but this was disapproved.

Abe Fortas:

No, but I’m not talking about the beating, I’m talking about the number who were there in the surroundings when he was being interrogated and who asked him questions and so forth.

Brian Concannon:

At the time of the lineups there were over a hundred policemen sitting back watching the lineup only Lieutenant Donovan as my brother pointed out questioned him at that time.

There was a stenographer present who said nothing, nearly took down what was said.

Abe Fortas:

Is there anything in the record itself the reason to have 100 policemen in that room while this man talks?

Brian Concannon:

Well this was a large city, the city of Boston Your Honor and there were many lineups during the night — not only in connection with this individual but many others.

The policeman—

Thurgood Marshall:

In Boston to have 100 policemen in the police precinct at 3, or 4 or 5 in the morning.

Is that common?

Brian Concannon:

I beg your pardon Your Honor this was the headquarters not the police precinct.

Thurgood Marshall:

Is that common to have that many police in the headquarters 3 or 4 o clock in the morning?

Brian Concannon:

I don’t know the answer to that question Your Honor.

Thurgood Marshall:

Would it help you if I would suggest that possibly you don’t hold lineups that time in the morning usually, or do they do that in Boston?

Brian Concannon:

I think they were doing it at the time when there was a serious crime and there were many serious crimes committed around this time.

I don’t know if there were many committed on that evening but the record doesn’t indicate and I don’t know whether all the policemen were here for this case or not.

William J. Brennan, Jr.:

At the initial objection, hearing at voir dire, am I right to think that this case what’s the theory on the premise that this was a voluntary confession, the argument of the counsel was that this man was —

Brian Concannon:

Yes Your Honor that’s correct.

William J. Brennan, Jr.:

Is that an accurate statement?

Brian Concannon:

That’s an accurate statement and if I may elaborate upon I think—

William J. Brennan, Jr.:

Accurate thinking that there was no request made or any additional request made — .

Brian Concannon:

That’s perfectly accurate.

More than that there was a bench conference at which the attorneys discussed with the judge what questions — what instructions would be given.

No mention was made of an instruction on voluntariness and a small wonder why because defense counsel deliberately shows not to emphasize the confessions of the jury.

This was an experienced criminal trial error, he chose rather to concern himself and to focus in the minds of the jury one question and one question only and that was the question of clemency.

The defense counsel had a perfect opportunity immediately after the voir dire and after the jury had been brought back into the room to mention to the jury that he was contesting voluntariness.

The trial judge said to defense counsel, when defense council objected the second time, what is the nature of your objection counsel whereupon trial counsel said and I’m paraphrasing, “Your Honor, the nature of my objection is the same I raised in the voir dire.”

He had a perfect opportunity to say at that time the nature of my objection, the confession was involuntary, he chose not to do that.

At the close of the testimony, the defense counsel addressed the jury in argument and said to them I wouldn’t now try to convince you to find the defendant Ronald Johnson not guilty.

I wouldn’t attempt to insult your intelligence, after that the petitioner himself addressed the jury in an un-sworn statement as is the custom and as is his right under Massachusetts law and he said all the evidence which the prosecutor presented to you was true where upon he asked the jury for clemency.

William J. Brennan, Jr.:

But beyond that he said there was no sense in my taking the stand because all the evidence points to you, I could have went out all day and probably all next week trying to prove that it wasn’t because all the evidence is there, the evidence was presented to the jury.

Brian Concannon:

That’s right Your Honor.

Brian Concannon:

The evidence was overwhelming in this case which was a sufficient reason to persuade counsel and petitioner to adopt this strategic waiver of contesting voluntariness before the jury.

Abe Fortas:

I suppose that your adversary’s position is that the state had the burden of proof on voir dire and the state had the burden of proof before the jury to show voluntariness, that’s my understanding of this decision.

I suppose we should find — I suppose we should conclude and by no means at that point but suppose we should conclude that the voir dire finding of voluntariness or that the case had not been made to show involuntariness.

Suppose we should conclude that that was error, then will it be your point that that’s immaterial and that we should nevertheless affirm the judgment below.

Brian Concannon:

Is it your question Your Honor that — is the assumption you are making that you would find that error because the burden of proof was assigned to the defendant?

Abe Fortas:

On voir dire.

Brian Concannon:

On voir dire?

Abe Fortas:

Yeah.

Brian Concannon:

And that the — at that point the commonwealth should have negatived any question of the —

Abe Fortas:

Right, suppose we went along with your adversary directing yourself only to voir dire, to the voir dire plan, would that require a reversal of the judgment here in, do you concede that that would require a reversal of the judgment or do you think that that’s voiced out by the failure of the defendant’s counsel to make a point before the jury.

Brian Concannon:

I think the latter that not only before the jury but he had another opportunity for motions to new trial.

Abe Fortas:

Do you think that there were constitutional error in the failure of finding voluntariness in voir dire that that is immaterial for the (Inaudible) procedure.

Brian Concannon:

No Your Honor, I think that if — I would like to change my answer on that.

I think that if the trial court violated the defendant’s constitutional rights by finding a confession voluntary which in law and in fact was involuntary that this court should not affirm the decision.

Abe Fortas:

If we find — so that we can dispose off this case by looking only at the voir dire proceedings and if we agree with your adversary and we agree that the allocation of the burden of proof was wrong, then we would have to reverse.

Brian Concannon:

I would say not reverse Your Honor, I would say remand to the Massachusetts court for further hearings using the proper standing.

Potter Stewart:

Do you mean Jackson v. Denno—

Brian Concannon:

Jackson v. Denno, Sims v. Georgia I think was —

Potter Stewart:

I mean that type of procedure whether it would a redetermination on voir dire under a correct standard of burden and then if it was determined it was voluntary or reinstatement of the conviction if not then that to your correct order a new trial is that it?

Brian Concannon:

Yes Your Honor.

Potter Stewart:

Incidentally I suppose, what about that statement, that un-sworn statement at 206 if there were a new trial here, did the state use that statement as part of its case?

Brian Concannon:

If there were a brand new trial, not unless he made the statement again I don’t think so.

I would say that the statement was prompted by the fact that the — by the total context in which it was given including the fact that the confession was found voluntary —

Potter Stewart:

Very damaging admissions —

Brian Concannon:

In essence it’s a confession on open court.

Potter Stewart:

Yet you don’t think it would be admissible on a new trial, as part of the state’s case — or do you surround the un-sworn statement with certain safeguards —

Brian Concannon:

I would Your Honor.

I would say that the un-sworn statement was the product of everything that had gone before. And if this court finds that it — the confession itself — confession in the technical sense was the product of coercion and everything said thereafter is the product of coercion.

I don’t suppose I have to go that far but that’s my belief.

(Inaudible)

Brian Concannon:

No, it settled law of course that unless the question were raised below or decided by the highest court of Massachusetts that it’s not probably before this court and I respectfully submit, the question is not before this court.

It wasn’t raised in the superior court level nor was it argued before the Supreme Judicial Court.

Though it’s true that my brother did include in is brief by way of a footnote on page 43 of that brief before the SJC, a discussion of the rule for the respect to burden of proof.

This wasn’t an argument however this was a dissertation.

It begins by saying it’s unclear under Massachusetts law whether the defendant has the burden of going forward or whether the defendant has the burden of persuasion as well.

The footnote goes on to discuss the Massachusetts law and it mentions indeed federal law.

But it was not a challenge, not a constitutional challenge to the rule to the rule assigning burden of proof at least the burden of going forward to the defendant and we say it was not raised —

Hugo L. Black:

Suppose it were not in this occasion, what do you think they — .

Brian Concannon:

I don’t think it would affect the case Your Honor as I read the case.

(Inaudible)

Brian Concannon:

Yes it is.

Hugo L. Black:

This is direct review, but what effect did Fay versus Noia have on being allowed to raise it as a separate proceedings by habeas corpus and if it is doen that way, why should we require to send back in order to upheld the habeas corpus.

Brian Concannon:

Well, I think the purpose of rule of assigning his error in any event of raising the question at the state level is to allow the state to decide the question which involves state law and federal law within the matrix of the state law.

Indeed a case cited by my brother, the case of Musser versus Utah makes that very clear, that this is the reason behind the rule and that this court should not decide the question without giving the courts of Massachusetts, an opportunity to pass upon the constitutional challenge to its laws.

I don’t think that that —

Potter Stewart:

Did you rely on Henry and Mississippi at all?

Brian Concannon:

Only—

Potter Stewart:

In that case didn’t we send something back for a determination in the voir dire kind of proceeding didn’t we?

Brian Concannon:

I cited Henry versus Mississippi in the brief Your Honor I believe to show that this court without passing on the question directly indicated at least in the opinion that it was possible for the counsel to make a strategic waiver which our position is — was done in this case.

Potter Stewart:

Well I was thinking of the procedure you suggest.

As I understand, your suggestion was that we find there was error in the allocation of burden of proof and we ought to send back only for a redetermination of voluntariness.

Brian Concannon:

Yes.

Potter Stewart:

Is that something like what we did in Henry?

Brian Concannon:

It may have been — the picture that’s clearest in my mind however Sims versus Georgia.

The petitioner argues that these — the standards set down by this court whenever used in weighing the factors indicating voluntariness in the court below.

But in the voir dire, the judge heard evidence of the defendant’s education, his occupation, his physical condition and appearance at that time, his apparent intelligence and temperament, the then apparent total lack of warnings and the fact that he was in a police dominated atmosphere.

Later on, on the hearing of a motion for new trial, he heard further evidence of the defendant’s prior experience with the police and he heard further evidence that warnings under the Escobedo rule were totally lacking in addition to the evidence that a warning was attempted to be given.

He heard evidence of the defendant’s activity in cross examining, accuses the fact that he have received food during the night in his prior military service.

Upon all this evidence, the judge said, I will satisfy by the fair weight of the evidence that the defendant gave the statement voluntarily.

So it may well be that even if the burden of proof which Massachusetts assigns to the defendant would theoretically violate the Fourteenth Amendment.

Brian Concannon:

It was harmless here because it made no difference.

The judge found that on the fair weight of the testimony in the evidence the defendant gave the statement voluntarily.

Thurgood Marshall:

Mr. Concannon, did the trial judge ever mentioned his weight rule?

Brian Concannon:

The weight of the evidence Your Honor?

Thurgood Marshall:

Did he ever mention that rule as such or that he was relying on that rule?

Brian Concannon:

No he didn’t Your Honor and to the extent that he didn’t — to the extent that he didn’t articulate because he couldn’t say Miranda then.

He said that he did not articulate the prior Massachusetts law for example saying that failure to warn with significant was caused by the purposeful methods of trial counsel.

The record is abundantly clear that the trial judge gave the defendant the opportunity to state the defendant counsel to state exactly what he was relying on.

And it seems to me that regardless of where the burden of proof is, a litigant be he a civil or criminal litigant has an obligation to the court to indicate to the court at least in a semi specific way of what he is relying on.

And in this case a load — although the defendant was given full opportunity he chose voluntarily this was not mistake on the part of trial counsel.

He was represented by quite competent counsel.

The counsel chose to zero in first on physical brutality and then on fairly to give the Escobedo warning.

Potter Stewart:

Because if your brother is correct as to the law, it wouldn’t be the duty of the defendant to do anything except for the duty of the prosecution.

Whenever there is a confession, whenever there is a confession, it’s the duty of the prosecution, according to him, to prove beyond a reasonable doubt to the satisfaction of the jury that the confession is voluntary.

That’s correct, if it doesn’t behold the defendant to do anything.

Brian Concannon:

I supposed that’s true Your Honor but in this case the defendant did do something and did point out to the trial judge what he was relying on.

So that it seems to me even if this Court says assign the burden of proof was error, that it should make no difference in this case.

Potter Stewart:

But the jury never heard anything about this.

If he is correct in his view of the law then what happened in the voir dire doesn’t have very much to do with it because the prosecution didn’t take the first step in proving that this confession was voluntary before the jury.

Brian Concannon:

I suppose —

Potter Stewart:

There was a jury as my brother however said upon the premise that it was voluntary.

Brian Concannon:

That’s correct Your Honor.

Assuming that this court decides that the state has the burden of going forward as well as the burden of persuasion then yes.

Potter Stewart:

But you could say that the state has a burden of proof on the voluntariness issue without concluding that it must order the jury to do it.

I’m assuming to say that the burden of proof in the hearing outside the presence of the jury was on the state.

It must sustain the burden without saying that it also has to sustain at the board of jury.

Brian Concannon:

I think well, I don’t know Your Honor.

Potter Stewart:

Did you mean to say that the burden of proof issue is 5316 rounded up with the argument that the whole voluntariness issue must go before the jury.

Brian Concannon:

Only if the defendant chooses to bring it up before the jury because I don’t believe that the jury has to hear the question.

Potter Stewart:

Well didn’t in Jackson and Denno, am I wrong didn’t we indicate that there was no constitutional requirement as long as there was a voir dire in the determination of voluntariness by the judge.

Brian Concannon:

Yes.

Potter Stewart:

Didn’t we — that there was no constitutional requirement, did then the issue of voluntariness go to the jury, didn’t we decide that in Jackson and Denno?

Brian Concannon:

That’s right, this court decided, said at least in the opinion—

Potter Stewart:

But why isn’t that your answer to your adversary, that we’ve already decided that question.

I’m sure Massachusetts’ completely free of it once, as I gather some states do, they have an initial determination of voluntariness by the judge and then they resubmit the issue of voluntariness to the jury.

But I thought we said in Jackson v. Denno, so far as the Fourteenth Amendment is concerned.

The only constitutional requirement is that if the determination of voluntariness by the judge outside the presence of the jury.

And after that except to the state but the constitution doesn’t compel it to submit the issue of voluntariness.

Brian Concannon:

That was the holding in Jackson versus Denno.

Potter Stewart:

But why isn’t that your answer?

Brian Concannon:

Well it is my answer but I’m going further than that Your Honor.

There’s no question Jackson v Denno does not require that the case — the question of voluntariness go before the jury.

Potter Stewart:

Are you suggesting that means that that also solves your burden of proof question?

Brian Concannon:

No I don’t think it does, it think it’s a separate question.

Potter Stewart:

Oh I wouldn’t think so.

Abe Fortas:

You still have the problem of what happened on voir dire don’t you?

That is say whether the state — whether the state has a burden of proof showing voluntariness on the voir dire and whether the state bore that burden of proof here.

Brian Concannon:

Well if this court decides that the burden of proof question is before it and if it also decides that the burden of proof question was not implicit in Miranda and it further decides that the state has the burden of going forward in the voir dire as well then I suppose that’s correct — that was constitutional–

Abe Fortas:

We better decide one other thing too which is somehow rather your brother’s concession that he is not attacking the finding of voluntariness in terms of the physical beating issue that is said that somehow rather that doesn’t preclude us from getting to this issue don’t we?

Brian Concannon:

Yes Your Honor.

That’s not being argued by my brother.

Lewis F. Powell, Jr.:

At the trial was there any testimony on the part of the state that the confession was voluntary?

Brian Concannon:

I don’t believe so.

Lewis F. Powell, Jr.:

Did the officer in the state that—

Brian Concannon:

Oh yes the normal prelude —

Lewis F. Powell, Jr.:

The normal prelude was there.

Brian Concannon:

The normal prelude which is contained in the confession itself I have it here at page 191 of the record.

Where the interrogator introduces himself and says who he is and that he’s in the presence of another policeman and that there is also a stenographer present and he says I’m going to ask you certain questions directing the statement to the defendant Johnson relative to an incident that took place on Boylston street.

Are you willing to answer the questions regarding this incident?

Yes I am.

Brian Concannon:

That goes on from there and largely a question in answer form up to the essential crime itself which incidentally is not in the type of question and answer form that this court has found on in prior cases.

It wasn’t really leading questions at that time.

Lewis F. Powell, Jr.:

But there’s nothing in the record, there were no promises made to him or to anything of that kind.

Brian Concannon:

No Your Honor.

Lewis F. Powell, Jr.:

Whether it was framed voluntary — no statement —

Brian Concannon:

Not before the jury.

Lewis F. Powell, Jr.:

Not before the jury.

Thurgood Marshall:

But it was in the statement.

He said in the statement that there were many (Inaudible) — may I just state beyond free will.

Brian Concannon:

It was in the statement —

Thurgood Marshall:

Then to the statement on page 199 that’s kind of (Inaudible) isn’t it?

Brian Concannon:

Yes it is.

Potter Stewart:

The circumstances under which the statement was made or rather the interrogation and the answers took placed were not brought to the—before the jury.

Is that right?

Brian Concannon:

That’s right Your Honor.

Potter Stewart:

I’m reading here at the record on page 190 up through 192 as far as I see it was simply the man got on the stand as you have indicated.

Lieutenant detective Donovan and simply read beginning on the bottom of page 191 to the jury.

Is that it?

Brian Concannon:

That’s it Your Honor.

That’s the only statement before the jury.

Potter Stewart:

Then how about beginning at page 201?

Now that has nothing to do with the — and that’s it so far as the jury abides in the circumstances.

Brian Concannon:

Yes, of course my brother argues that there was no evidence before the jury that warnings were given and for that and other reasons, other testimony before the jury for example apparently was injured he ran into a wall and 45 motor vehicles before he cracked into the bus.

That there was evidence so my brother argues.

There was evidence before the jury and that’s why the judge should have made the instruction anyway.

But —

Potter Stewart:

That puzzled me because surely on you don’t disagree as to what was before the jury and you just told me there wasn’t anything except what appears here on page 191.

What was the—

Brian Concannon:

The Supreme Judicial Court on this opinion said there was no evidence of voluntariness or involuntariness before the jury.

Potter Stewart:

What was before the jury bearing on this issue?

Brian Concannon:

Nothing very direct.

I think there was evidence that he was on an automobile accident and that he was injured.

But nothing that could raise the question it seems to me in a meaningful context that it was an involuntary statement.

Potter Stewart:

Was it before the jury that he had not been warned of his so called rights?

In those days those were not rights.

Brian Concannon:

I would say it was not before the jury because the defendant never attempted to get the question before the jury, in fact attempted to do the reverse.

He attempted to minimize anything except Plea for Clemency.

Potter Stewart:

The jury did know that he had been in this automobile collision.

Brian Concannon:

Yes.

Potter Stewart:

Shortly before he was taken to the —

Brian Concannon:

I believe so, yes Your Honor.

Potter Stewart:

And knew that they’re subsequently been on surgery for a brain injury or brain condition.

Brian Concannon:

I don’t think that was before the jury but I would stand correct that —

Potter Stewart:

Well it wasn’t of course but the state — he said that in that statement at the end of the trial whether he had this brain operation.

Brian Concannon:

Yes, it was on his un-sworn statement.

Potter Stewart:

Yes I don’t know if it was in the evidence at all.

Brian Concannon:

That’s not evidence Your Honor.

Byron R. White:

But of course, even if the voluntariness question doesn’t get for the jury the confession here did.

And I suppose it came in through an officer.

Brian Concannon:

Police stenographer.

Byron R. White:

Police Stenographer or any officers put on the stand and —

Brian Concannon:

Not before the jury.

Byron R. White:

But even if voluntariness is required to go to the jury, the defendant certainly call witnesses with respect to weight and the credibility.

Brian Concannon:

Not before the jury, only in the voir dire.

Byron R. White:

Now wait a minute, I would suppose the defendant had the right call witnesses going to weight and the credibility.

Brian Concannon:

Yes he did.

Byron R. White:

And did he?

Brian Concannon:

I don’t believe he did.

Byron R. White:

Certainly he could have put on I suppose that the testimony about his physical condition if he wanted to.

Brian Concannon:

He certainly couldn’t Your Honor it chose freely not to.

Brian Concannon:

I would conclude—

Thurgood Marshall:

Is it customary on Massachusetts for — or was it at this time customary in the case of the confession for the officers there or somebody who was there to testify that this statement was given free and voluntary that no promises were made or no threats were made or no coercion of any kind that it was free and voluntary would that be the practice in the Massachusetts?

Brian Concannon:

Yes Your Honor that’s an–

Thurgood Marshall:

I wonder why that was done in this case?

Brian Concannon:

Well —

Thurgood Marshall:

There were 100 police officers there and they yet not one of them testified to the surroundings of the confession or that it was free and voluntary in any respect, they just took the words of the defendant as they came from the statement itself.

Brian Concannon:

That’s right.

Thurgood Marshall:

I wonder why those tactics would have been used in this case.

Brian Concannon:

I suppose in the 1963—

Thurgood Marshall:

I’m talking about that time not as he do now.

Brian Concannon:

I suppose that in 1963 before Escobedo and Miranda the police were just not as conscious of this kind of constitutional challenge and that’s the only answer I would have as to why more wasn’t done in this case.

Thurgood Marshall:

But you say it was customary to do that.

Brian Concannon:

I believe so yes.

I should say I don’t know that it was — I don’t know how common it was.

I guess I’m answering a question by assuming that it was customary.

I’m — I did not prosecute the case at the trial level and I get this case as most others in the attorney general’s office on the appellate level.

So I’m probably not that qualified to state what the police practice was at this time in the city of Boston.

I would conclude by saying that the trial judge had before him in evidence all of the facts that this court has considered relevant to voluntariness of the confession.

Certainly the trial judge does not have to articulate all his findings and there is the normal presumption that a trial judge does consider all the evidence before him.

And to the extent that he did not state that all of the things were done which this court has now said should be done in the Miranda case.

This was prompted only by the purposeful trial tactics of the counsel and this court should not upset the finding of the trial judge to voluntariness which was obtained by one of — not one but two factual hearings.

In essence this is the third factual hearing which the petitioner is now seeking.

And I think this court can find that on the basis of all of the evidence in the record in the totality of the circumstances this confession was voluntary.

I don’t propose to color match but in no case before this court have facts of so little weight with regard to involuntariness that prompted the decision the confession was voluntary.

Thurgood Marshall:

Do you know of any case this court has had in which they held a man and questioned for about 6 hours intermittently, took into full lineups and have people ask him question which were taken down by a stenographer and then took him in a room with 100 policeman, do you know of any this is, in this court or any other court up in Massachusetts that approves such a procedure?

Brian Concannon:

The answer is no Your Honor but I don’t really think that that’s as coercive as something like what was done in the (Inaudible) case which this court decided was a case for voluntary confession where the defendant had no sleep for the first 42 hours of captivity.

I don’t think it’s as coercive as—

Thurgood Marshall:

Were he taken to full lineups during that time in the middle of the night?

Brian Concannon:

No, but he was kept for a matter of — no, no.

But again my answer is on the totality of the circumstances the man did not sleep for 46 hours.

Brian Concannon:

He was kept for a matter of weeks by the police and his confession was finally given after he said to the police if you take me out in —

Thurgood Marshall:

This was 48 hours continuous?

Brian Concannon:

42 hours without sleep.

Thurgood Marshall:

Continuous?

Brian Concannon:

I don’t think it was continuous interrogation, no.

But he was in captivity and he was not allowed to sleep.

Thurgood Marshall:

But this man was never during all that period, he was never in jail.

He was in the police headquarters, with nobody there but polices in the middle of the night.

Brian Concannon:

Ronald Johnson we’re talking about, yes Your Honor.

Thurgood Marshall:

In the middle of the night?

Brian Concannon:

In the middle of the night.

Thurgood Marshall:

All night.

Probably 6 o’clock in the morning, and you said we are bound to uphold that.

Brian Concannon:

I believe so Your Honor.

In the cases, where this court has found the confession involuntary, it seems to me in almost every case there is something shocking, something egregious 42 hours without—

Thurgood Marshall:

Well wouldn’t the question of a man in a room by himself with 100 policeman, could that possibly shock somebody?

Brian Concannon:

I’m afraid it doesn’t shock me Your Honor.

Thurgood Marshall:

Oh thank you.

Brian Concannon:

For all the reasons I have mentioned, the commonwealth respectfully urges to this court to affirm the judgment below.