Lego v. Twomey

LOCATION: Christian County, Kentucky

DOCKET NO.: 70-5037
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 404 US 477 (1972)
ARGUED: Nov 11, 1971
DECIDED: Jan 12, 1972

James B. Zagel - for respondent
Nathan Lewin - for petitioner

Facts of the case


Media for Lego v. Twomey

Audio Transcription for Oral Argument - November 11, 1971 in Lego v. Twomey

Warren E. Burger:

We will hear arguments next in number 5037, Lego against Twomey.

Mr. Lewin you may proceed whenever you are ready.

Nathan Lewin:

Mr. Chief Justice and may it please the Court.

This case is here on certiorari to the Court of Appeals for the Seventh Circuit which in a short per curiam opinion affirmed the District Court’s denial of petitioner’s application for writ of habeas corpus.

Petitioner is in the Illinois State Penitentiary, serving a 25 to 50-year term for armed robbery.

On this Court’s limited grant of certiorari, two questions are presented, both interrelated and both relating for the procedure used under Illinois Law by the Illinois Trial Court in admitting a confession made by the petitioner into evidence and allowing it to be considered by the jury.

Warren E. Burger:

Now, just to be sure that I have it in focus.

This case presents the issue left open in Jackson v. Denno?

Nathan Lewin:

It is an issue that in the light that Mr. Justice Black adverted to in Jackson v. Denno in its dissenting opinion, it was left open.

It is one of a range really of issues, Mr. Chief Justice that are left open under Jackson v. Denno.

What it presents is the question of the standard of proof that a trial judge must apply when under a state procedure he and he alone determines the voluntariness of a confession.

William J. Brennan, Jr.:

It has been -- in this case also presents the question or not whether after the determined voluntariness whether that issue is again submitted to the jury?

Nathan Lewin:

Yes, Mr. Justice Brennan that is, if in fact the first question were decided against the petitioner, we submit and our contention is that the two are interrelated that if in fact this Court were to sustain a standard less than proof beyond a reasonable doubt for a trial judge making such a finding, it should constitutionally require that at the very least the jury get a second look at that issue.

William J. Brennan, Jr.:

But then on that, if that would it be so, I take at the jury as in all other issues would make that determination by reason beyond the reasonable doubt standard?

Nathan Lewin:

That is right, we think that is what would be constitutionally required?

Warren E. Burger:

Do I understand you to say in effect on that point that a confession in this context is like any other piece of evidence?

Once it is submitted to the jury it is submitted to the jury to be evaluated along with all the other evidence and by the same standards.

That is your second point?

Nathan Lewin:

Well, I think my second point is slightly different from that because I think, as Your Honor has stated the position, I think it does reflect a position similar to that of the state in this case.

What the state is arguing is that once admitted a confession may only be considered in the context of all the evidence in the case.

Our contention is that if a confession is admitted must still be singled out to the jury and it must then be asked to decide the question of voluntariness vel non as a preliminary fact finding.

Warren E. Burger:

I did not mean to include that -- include that in my hypothetical.

You mean that this would be a special instruction in addition to the general credibility instruction?

Nathan Lewin:

Yes sir.

We think that would be constitutionally required if a judge were permitted to apply some standard less than proof beyond a reasonable doubt to his determination.

Warren E. Burger:

Would it be sufficient for these purposes if hypothetically the instruction was that when you come to consider the confession which has been admitted in evidence, you will bear in mind that as with other elements, it must find this voluntary beyond a reasonable doubt?

Nathan Lewin:

Yes, that –-

Warren E. Burger:

That would be enough?

Nathan Lewin:

That instruction we think would be constitutionally sufficient.

Of course, it was not given in this case and in fact that issue of voluntariness is not in any way singled out for the jury under the Illinois procedure.