Michigan v. Tucker – Oral Argument – March 20, 1974

Media for Michigan v. Tucker

Audio Transcription for Opinion Announcement – June 10, 1974 in Michigan v. Tucker

del

Warren E. Burger:

We’ll hear arguments next in 73-482, Michigan against Tucker.

Mr. Patterson, you may proceed when you’re ready.

L. Brooks Patterson:

Mr. Chief Justice and may it please the Court.

My name is Brooks Patterson.

I am the prosecuting attorney of Oakland County in Michigan, representing the people of the State of Michigan in this appeal.

Before stating the facts, there are four dates that I would like to stress because they have a bearing on the facts of this case.

Now, logically they are the date of the Escobedo decision in June of 1964; Secondly, the date of the offense in this particular case, April 19, 1966; Third, the date of the Miranda decision, June 13, 1966; And finally, the date of the commencement of trial of the Tucker case, October 18, 1966.

The facts of the case: On April 19, 1966, it is undisputed that Marline Cory (ph) was brutally beaten and raped in her home in which she lived by herself.

She was beaten so badly that she was never able to remember nor did she recall the time that she testified and make any identification of the defendant as her assailant.

She was discovered in her home by a co-worker who summoned the police.

This co-worker also noticed inside her home a dog and since Miss Cory did not own a pet, he brought this to the attention of the police.

The police followed this dog to the residence of the defendant, Thomas Wayne Tucker.

After making inquiries with the neighbors about the ownership of that particular dog, the police put out a broadcast to pick up the defendant and later that day, he was arrested and brought to the Police Station.

Before any interrogation of the defendant, he was advised of his rights as delineated at that time by the Escobedo decision.

Specifically, he was advised of his right to remain silent, that anything he said would be used against him at the Court of Law, and that he had the right to an attorney.

It was not advised, however, that he had a right to a Court appointed attorney, but that right was yet to be mandated in the Miranda decision two months hence.

During the interrogation that followed, the defendant said that he had obtained the —

Potter Stewart:

Was he told — was he told that he had a right to have a lawyer then and there?

L. Brooks Patterson:

No, he had a right to an attorney but not at — in no specific words then and there.

Potter Stewart:

Oh.

L. Brooks Patterson:

During the interrogation that followed, the defendant told the police that he had obtained the noticeable scratches on his face from the flarings of a goose that he had killed.

And this would also account for the blood on his clothing.

He said that all of these could be confirmed by one Robert Henderson, who he was with at the time of the alleged rape and thereby creating an alibi.

Later the next day, in an effort to confirm that alibi, the police sought out and talked to one Robert Henderson, who not only failed to corroborate the story told by the defendant Tucker, but actually gave testimony or a statement that refuted Tucker’s claim.

Henderson indicated to the police that indeed he did have a conversation with the defendant on April 19, 1966 and that he had asked the defendant how it came that he had these scratches on his face and whether he had gotten hold of a wild one or something, to which the defendant Tucker replied something like that, and then moments later added, “she was the widowed woman in her thirties who lived the next block over.”

The case went to trial several months later on October 18, 1966.

Potter Stewart:

This was city of Pontiac?

L. Brooks Patterson:

This was a sheriff’s department case in Pontiac Township, just outside the city of Pontiac.

On October 18th, it went to trial and because of the intervening decision of Miranda, none of the statements made by defendant Tucker were introduced into evidence.

However, Henderson was called as a prosecution witness and did testify.

L. Brooks Patterson:

The defendant was convicted by a jury trial and sentenced to a prison term of 20-40 years in view of his record.

Both the Michigan Court of Appeals and the Michigan Supreme Court affirmed that conviction with unanimous opinions.

Upon application by the defendant to the United States District Court for the Eastern District of Michigan for a writ of habeas corpus, the petition was granted under the theory that Henderson’s testimony had been improperly admitted into evidence by the Trial Court because of the Trial Court’s failure to apply the Fruit of the Poisonous Tree doctrine.

The Sixth Circuit Court of Appeals affirmed that opinion and we petitioned for a writ of certiorari which was granted by this Court on December 3, 1973.

We raise three issues this morning in our argument and first is the question of the retroactivity of Miranda.

One week after the Miranda case was decided, this Court held in Johnson versus New Jersey that Miranda would be applicable to all those trials that commenced after the decision date in Miranda.

I think you can see from that dates that I had set out when I first commenced, that we were caught in a limbo situation.

We had an interrogation under Escobedo on April 19.

Miranda came down in June and we commenced trial in October and even though Johnson said for the proposition that Miranda would be prospective in its application, we were experiencing retroactive effect because we were caught in this limbo.

And this is the particular injustice in this case that we complain about this morning, that at the time the police were interrogating the defendant, Tucker, he was properly advised of his Escobedo rights and the police at that time were doing nothing wrong.

And now by operation of the Johnson case and its retroactive effect, we are being told that the interrogation is illegal.

We feel that the Court should modify this retroactive application of Johnson because it places the — this Court in the position, and the local court in the position of saying that, Tucker’s interrogation was improper, but it only became improper by operation of an ex post facto type situation.

We feel that to make Johnson or the effect of Johnson to conform to its rationale and make it prospective would be in order.

The Court had done this —

Warren E. Burger:

The Court had decide, however, that the exclusionary aspect does not apply to live human beings who are ready and able and willing to come in and testify then, we don’t need to render these problems about retroactivity, do we?

L. Brooks Patterson:

No, we do not Mr. Chief Justice and that takes me immediately to the second issue which I think is —

William H. Rehnquist:

Before you get to that Mr. Patterson, you — really your first one is that Johnson versus New Jersey be overruled, isn’t it?

Because it itself dealt with the retroactivity of Miranda and to say that the decision dealing with retroactivity should be accorded on a prospective effect.

It is really kind of building a new dimension onto the thing?

L. Brooks Patterson:

Yes, Your Honor.

It should be and as such overruled because I think the Court had —

Byron R. White:

In which you have Miranda would be retroactive?

L. Brooks Patterson:

No, Your Honor, I think the — when I said overrule, I should have use a activity date as opposed to a trial date.

So, you would modify it, you would modify it?

L. Brooks Patterson:

Yes, Your Honor.

Thank you.

William J. Brennan, Jr.:

How many situations like this do you think would come up now, at this late date on the chance?

L. Brooks Patterson:

I wouldn’t believe that many, Your Honor.

The second issue —

William J. Brennan, Jr.:

I do not imagine didn’t you know of any likely in Michigan, do you?

L. Brooks Patterson:

No, Your Honor, I personally do not.

I’ve been involved with prosecution —

Byron R. White:

Perhaps would be any — they’re good.

Potter Stewart:

All you’d have be perhaps a new trial —

L. Brooks Patterson:

That is right.

Potter Stewart:

After many — that’s covered by Jenkins against Delaware?

L. Brooks Patterson:

That’s correct.

Warren E. Burger:

So, we would have heard of them by now?

L. Brooks Patterson:

I would hope so.

Your Honor, the second issue is the doctrine that you just mentioned would be the application of the Fruit of the Poisonous Tree doctrine.

And more specifically, we raise the question, whether the Fruit of the Poisonous Tree doctrine should be applied to the testimony on the identity of a witness, who was discovered during what is now declared to be an improper interrogation.

The Solicitor General has intervened on this particular issue and will be arguing as well on this point.

So, I’d like to highlight some of the more salient points of our brief.

This precise question of witness testimony being suppressed under the Fruit of the Poisonous Tree doctrine as yet to be presented to this Court and I take that lead from the footnote in Harrison versus United States, 392 US in Footnote 9.

It would be, to apply the Fruit of the Poisonous Tree doctrine to a witness who testifies, I think it would be unwarranted extension of that particular doctrine.

It would be unwarranted because the immediate distinction is that in this type of situation with Henderson, we have the testimony of a live witness.

And I do not feel that we should automatically equate a live witness and all of that and suggest the fact that he has own, a memory, and his own perception and his own will and his own intellect which are all going to interact down there when personally he takes his stand.

We should not equate that type of a human being with physical evidence automatically because we have at least that distinguishing characteristics which makes a human being unique.

Arguably is the fact that this witness when he comes into Court and takes the stand, he’s going to be subject to the rigors of cross examination by defense counsel.

He is subject to impeachment and all the other devices that defense counsel has to cross examine and that this was done in the case of Henderson when he took the stand before the jury.

And that he — a witness has the ability to have come forward on his own possibly as contrary to physical evidence, but I think more importantly is the fact that when Henderson’s name was brought up by the defendant Tucker, at that point, the name Henderson was at no evidentiary value as such.

It is not evidence the mere mentioning of a name.

It is not evidence per se.

By the independent labors of the police who sought him out and talked to him, at that point, he begins to become significance and when he comes in the Court and testifies, he then becomes evidence.

And I believe this Court, addressed this particular problem in a case one week after Miranda which would be June 20, 1966 in Schmerber.

In the case — in the language in Schmerber said that, “the privilege against self-incrimination is abide to compelling one to be a witness to give testimony,” but the Court went on to say but it is not a bar against that compulsion which makes the witness or the defendant or the accused the source of real or physical evidence.

And in this case, Tucker was the source we admit of Henderson’s identity, but it is not evidence the mere mentioning of that name.

The Fruit of the Poisonous Tree Doctrine rather than being extended should be curtailed and I think is being curtailed in decisions by this Court.

And I would say to Court, couple of the prime examples would be the case of Harris versus New York in 1970 when the Court permitted the prosecution to use for impeachment at the prior statement of the defendant which it was not being permitted to use in itscase, case in chief.

Even though, I think there would be the illegal fruit, it was still being — the prosecutor was is being allowed some use of it.

L. Brooks Patterson:

In U.S versus Calandra evidence which was illegally obtained during an illegal search and seizure was still being permitted to be brought before a grand jury for the use of that grand jury in its investigation.

The Court — this Court has developed as well as some of the lower Federal District Courts, I think theories which are now doctrines of law which permit or avoid the harsh application of the Fruit of the Poisonous Tree Doctrine; such theories as attenuation or the independent source.

These rules are being carved out judicially from the announced doctrine in order to avoid the extreme and I think harsh application of the automatic exclusion of evidence by the Fruit of the Poisonous Tree Doctrine.

But in the case that we have, in the case of Michigan versus Tucker, to apply the Fruit of the Poisonous Tree Doctrine and the purpose of that application of that doctrine is to deter unlawful police conduct.

In this particular instance, it would be itself unreasonable and unfair because the police first of all would not have engaged in any misconduct.

The interrogation of Tucker met the standards then in force under Escobedo.

And secondly, when they went out to talk to Henderson, this witness, they were following what was the alibi of the defendant.

The defendant had given a exculpatory remark and the police went out to check that alibi.

And how they checked out, it would have been a good probable belief that Tucker would have released had his alibi been confirmed and if the police had ignored that exculpatory remark, they would have been developed that responsibility.

The final issue that we have raised in our brief was the question of Miranda itself and we pose —

Warren E. Burger:

Mr. Patterson, that point that you’ve made, suppose the police had found that Henderson would exculpate the defendant here and they had not produced him as a witness, it’d be in violation of Brady and other cases, would they not?

L. Brooks Patterson:

Absolutely, Your Honor and it would be very unfair and obviously unethical thing for the prosecution or the police to have even consider to hide the witness which would have been a benefit to the defendant.

And this is again, we are now telling them, you’ve done something improper when actually what they were doing was being proper and very ethical.

The question we raised with regard to Miranda, was whether the standards which were enunciated in Miranda, whether they are too restrictive and they are exclusion of admissions and whether they are mandated by the US Constitution.

Although, majority writing in Miranda I think answer the second half of that question, when they said that we do not consider or we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsion of the interrogation process.

And those words, I think they admitted that the Constitution did not require the standards that they developed, but this was a judicially developed framework to protect the Fifth Amendment privilege.

The other half of the question are the standards set forth in Miranda too restrictive and I think at this point it’s undebatable that the standards which were enunciated in Miranda tolerate no deviance and the way the phrases were couched, they were couched with the use of the word “Must.”

These warnings MUST be given, waivers MUST be obtained and if there is any indication he does not want proceed, you MUST end your interrogation.

So, what the Court did in this instance whereas to develop an absolute and flexible and rigid test and the Court took what used to be a circumstances the Court would look to, the advising of certain constitutional rights, it elevated these in the form of standards what are now almost fundamental constitutional rights, the violation of which results in the automatic exclusion of a statement made by the defendant regardless of that statement might in fact be voluntary.

The Supreme Court way back in 1883 in Hopp versus Utah I think it said that the dealing with the question of confessions that we have wisely fore born to mark with absolute precision the limits of admission and exclusion, and I think they fore saw the problem when you do mark with a rigid test what is going to be admissible and what isn’t.

What now happens in the Trial Court and I’m sure this Court is aware of it, the focus is shifted from the will of the accused or what is on his mind or why he made a statement and the first focus is now on to the conduct of the police officer and we’d look to see what he did or how he acted in order to determine if this man made a voluntary statement.

Well, actually the test that police officer goes through, the advisement of those four rights in the obtaining of a waiver is not really bearing upon the question, is this a voluntary confession and the police officers scrutiny, if he makes one fatal mistake in the advising of the rights and later when he testifies in Court, at the Trial Court in a hearing like Jackson v. Denno, we call walker hearing.

If he testifies in his hearing about voluntariness and makes one mistake and how he said he gave his rights, the Court stops, at that point, it is inquiry as to the voluntariness of a confession and because the Miranda standards had been violated, maybe one had been omitted or had been incorrectly testified to, the inquiry stops and because of that deviation from the standard set forth, the Court, Trial Court will exclude any statement made by the accused.

The test is no longer now.

And Miranda, I believe was supposed to take us away from looking at the totality of circumstances and we are supposed to look into this condition precedent before we get to the confession.

There is now a condition preceding namely the four rights the officer makes and Miranda was supposed to take us away from examining the totality of circumstances and make a very simple to determine if indeed a voluntary statement was made.

And the old test of looking to the defendant to see if his will was over borne or if there was any inducement or coercion upon him or any threats to make him, make a statement or obtain a weaver, were supposed to have been taken out of the examination of voluntariness.

But in fact, I think that they we’re fooling ourselves if we don’t realize that we are still in the Trial Court and very much immersed in a total circumstances examination, a totality of circumstances.

We still look to all these factors and in determining whether the rights were properly administered.

We still, the Court will still look to the totality of circumstances to see how the rights were administered.

L. Brooks Patterson:

Were they administered after three days of incommunicado interrogation or were they —

Warren E. Burger:

The rights, you mean warning?

L. Brooks Patterson:

The warnings, yes.

And so, even though the warnings are there and a condition preceding to get into the level of examining the voluntaries, the Court still brings in all these circumstance of how that officer gave his rights, when did he give the defendant his rights, under what circumstances were the rights administered and was he intoxicated and so forth.

I think Mr. Justice White in his dissent foresaw some of these problems when he wrote, “today’s decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights and whether non-testimony of the evidence introduced at trail is the fruit of statements made during a prohibited interrogation” and Mr. Justice White was absolutely correct.

We now have these mini trials and the prosecution must prevail in everyone of this questions and more and should we feel on just one of these questions, even though we might prevail on six, if we miss on one of these mini trials, at that point the inquiry ends and the judge automatically excludes the statement that was obtained as a fruit or as a illegal confession.

Potter Stewart:

Mr. Patterson you say that was a — this whole mini trial is a step one and then you go on to see if in fact the statement was a voluntary or involuntary, are there any cases in Michigan that hold that even after all of the so-called Miranda rights were accorded that the statement was involuntary?

L. Brooks Patterson:

Your Honor, I do not believe that I can give a case, a specific case —

Potter Stewart:

I do not think we have ever seen a case since you are on a petition.

L. Brooks Patterson:

No, Your Honor, but you wouldn’t see if the Court has overruled that way and I’m sure they have.

Byron R. White:

You think they have?

L. Brooks Patterson:

Oh yes, I am surely they have in some instances when the Court has found it involuntary not because the rights were violated —

Potter Stewart:

No, no, no.

My hypothesis is all the rights were accorded.

He was told that he didn’t say anything and he was told he can have a lawyer and if you didn’t want it, couldn’t hire a lawyer, the State would have furnish him one then and there and all of that and then are there cases in Michigan that after all that was done that have held that this statement was involuntary?

L. Brooks Patterson:

Your Honor, I would cite this case as an example when at that point in time in 1966, all the rights have been incumbent upon the police to be administered were given and now we find that the statement in —

Potter Stewart:

There is no holding in this case that the statement was involuntary?

L. Brooks Patterson:

Oh, yes and the statement that the Tucker made was never used, any his remarks —

Potter Stewart:

Well, I know because they — the Miranda rules are violated.

There was no holding this, this was involuntary, was there?

L. Brooks Patterson:

No, that’s correct.

The rights, the warnings that had to be properly administered were not technically given and therefore —

Potter Stewart:

Therefore the statements were inadmissible under — his statement was inadmissible under Tucker and under Miranda.

L. Brooks Patterson:

That is correct.

Potter Stewart:

And that is not an issue here at all?

L. Brooks Patterson:

No, that part is not.

The totality of circumstances, the examination of all the factors surrounding the voluntariness of a confession is a manageable test and it is still being used again, the totality to examine how the warnings were given.

And this Court has reaffirmed the viability of the totality of circumstances test as recently as the Bustemonte case where totality of circumstances were examined to determine if proper consent had been obtained in order to make a search.

Potter Stewart:

And that — and the opinion in that case sharply distinguished the Miranda situation?

L. Brooks Patterson:

Yes, it did.

L. Brooks Patterson:

But I am going out to the totality of circumstances as being the test that the Court found it a manageable and a workable test to examine the circumstances under which the defendant then gave his consent.

The same thing in the case of Barker v. Wingo and again this Court, use the totality of circumstances rather than a fixed rule to determine whether the defendant had been denied his right of a speedy trial.

I suggest that we adopt and we move forward to a flexible standard of looking to the totality of circumstances and use the Miranda warnings as criteria in determining whether the defendant had been properly advised and whether they had given proper consent to waive his rights to remain silent.

And that — I adopt the language out of the Omnibus Crime and Control and Safe Streets Act where they say, “that the absence of anyone of these particular warnings should not be this sole determining factor on the admissibility of that confession but ought to be a factor that the Judge takes into consideration in determining the voluntariness of a confession.”

What is wrong with the warnings as they are required today is what we find wrong in the Tucker situation.

I don’t think there’s any question that Marline Cory was raped and there’s no question that the defendant found, the the jury found the defendant guilty of that offense.

And there’s no question that the police were engaged at that time in a proper pre-Miranda situation having advised him of his rights under Escobedo.

And there’s no question that the police were doing something very proper in going out, checking out his alibi which might well, have exculpated him.

But there is a question that if the warnings which are now required in the rigid test that there are in the Miranda doctrine, if they are continued to be enforced in the form that they are as the sole criteria in determining admissibility, there is going to be a question that Marline Cory and the people in the state of Michigan could have their day in Court.

But, the bigger question is that in the other cases that come after this one whether defendants who are only tied to their case by an admission can ever be brought to justice.

Thank you.

I’d like to reserve the time —

Warren E. Burger:

One question before you sit down.

If the Court should decide that the exclusionary doctrine cannot apply to a live human being who is ready, able and willing to testify then we don’t reach all these nuances, do we?

L. Brooks Patterson:

No, that’s right Your Honor.

If given the Court, I think several arguments anyone of which would allow Tucker case to be, the conviction which would be affirmed and we felt that the Miranda issue did have a bearing because that’s up to the second issue itself and that’s how we got into the Fruit of the Poisonous Tree because of a violation of warnings on the Miranda doctrine.

Thank you.

Warren E. Burger:

Very well.

Mr. Korman.

Edward R. Korman:

Mr. Chief Justice and may it please the Court.

We are not here asking that Miranda v. Arizona be overruled nor that Johnson versus New Jersey be overruled.

Rather the issue was whether the holding in Miranda versus Arizona should be extended to interrogation which elicits statements not admitted into evidence against the accused, but merely lead to the discovery of other evidence.

The arguments of the party is focused principally on whether the so-called Fruit of the Poison Tree doctrine extends to the testimony of a live witness whose identity was discovered as a result of interrogation without the Miranda warnings.

The critical assumption upon which this argument is based of course, is that there was in fact the poison tree, that it was clearly a violation of the self-incrimination clause to engage in informal custodial interrogation to obtain statements which were not admitted against the accused at trial but merely led to the discovery of other evidence.

While we agree with the State of Michigan, that if in fact the tree here was poisoned, the fruit should not be suppressed, it is our submission that this case presents two analytically distinct issues.

The threshold issue involves the scope of the protection that the self-incrimination clause affords to a subject in the context of informal custodial interrogation.

In Miranda, it was held that during such informal interrogation an accused may not be compelled to make any statements which could be admitted against him at trial.

That custodial interrogation even without the use of tactics which would render the statement involuntary was inherently coercive and that warnings were necessary to ensure that the privilege against self-incrimination was not violated.

We believe that in the peculiar context of informal interrogation, this protection is adequate to vindicate those bundle of values reflected by the privilege against self-incrimination.

And that where law enforcement officers elicit statements during such custodial interrogation which are merely used to discover evidence to prove which against self-incrimination has not been violated.

Edward R. Korman:

We do not regard this claim as having been foreclosed by Councilman against Hitchcock, where it was held that a witness subpoenaed before a grand jury could not be compelled under a threat of contempt to answer questions where the only use which could be made of the statements was to discover other evidence.

First, the defendant in this case did not refuse to answer any questions.

Nor did he assert his privilege nor is there is a matter of a fact as opposed to presumption any basis for the assertion that his statement was compelled in violation of the privilege against self-incrimination.

More significantly, in light of the values reflected by the self-incrimination clause.

There is a substantial basis for distinguishing first between compelled testimony before grand jury, a congressional proceeding or similar inquiry, an informal custodial interrogation.

And second, distinguishing between interrogation which leads to the admission of statements made by the accused at this trial and the use of those statements to obtain other evidence.

Those values were complete — the values reflected by the privilege against self-incrimination, a clause that was comprehensibly set forth by Mr. Justice Goldberg in his opinion for the Court and Murphy against the Waterfront Commission and the relevant excerpt from that opinion as set forth at page 15 of our brief.

Unlike grand jury witnesses, the defendant here was not subject to the cruel trilemma of self-accusation, perjury or contempt.

Moreover, he was not subject to inhumane treatment nor given the circumstances which led to his arrest can it reasonably be said that his custodial interrogation improperly infringed on the privacy values which are reflected by the privilege against self-incrimination.

And here again, such interrogation is substantially different from that before a grand jury or congressional committee where a witness can be compelled to appear without the slightest probable clause to believe that he has any information to give to the grand jury.

Moreover, they need be no concern here that the interrogation will lead to the admission of trial of self-deprecatory statements of questionable validity.

That concern was important to the Court’s decision.

It was specifically eluded to twice in the majority opinion in Miranda and also in the discussion of the purpose of the Miranda warnings which appears in Johnson versus New Jersey.

We do not deny that such interrogation which is intended to obtain leads to other evidence does implicate by policies reflected by the privilege that is that the Government and its context would be individual should shoulder the entire load and to a limited extent the preference for an accusatorial rather than inquisitorial system.

But, we submit that it does not violate those values anymore than has already been sanctioned by this Court in cases such as Schmerber versus California, United States versus Dionisio and Maier and other cases.

If for example, an individual maybe compelled to speak and when I use the word compelled, I mean under the threat of jail, so that a witness maybe able to testify at trial, that his voice was that for example of a kidnapper who telephoned to ask for a ransom, why may not that individual if he is apprehended before his accomplices have released the victim be interrogated without any such over compulsion regarding the location of the victim.

And, if the victim is found alive, why should not her testimony identifying the suspects so interrogated not be admitted or his fingerprints are found at the location where this victim has been found, why should the be suppressed, yet this is the import of the holding of a Court’s below.

Thurgood Marshall:

Can you cite me any case, a kidnapping where this happened?

Edward R. Korman:

No, I just —

Thurgood Marshall:

There never has been such a case?

Edward R. Korman:

I don’t know whether there has or has not Mr. Justice Marshall.

I’m merely citing a hypothetical.

Thurgood Marshall:

Possibility then.

Edward R. Korman:

Well, it would clearly come within the import of a holding of the Court’s below and one could only evoke the words of Mr. Justice Marshall in Miranda — in his Miranda dissent when he suggested that one is entitled to feel astonished that the Constitution —

Thurgood Marshall:

Miranda case I didn’t decide it —

Edward R. Korman:

I’m sorry, I mean Mr. Justice Powell.[Laughter]

One is entitled to feel astonished that the Constitution can be read to produce such a result.

It is our submission that as long as the interrogation is not marred by conduct which would be found offensive on due process grounds, that the values implicated by the privilege would be sufficiently protected by the exclusion of statements made by an individual if in fact the Miranda warnings are not given and that the statements are therefore regarded under Miranda as being compelled.

The leads derived from such statements should not be suppressed.

The second aspect of our argument, Mr. Chief Justice goes to the Fruit of Poison Tree doctrine and is based on the —

Potter Stewart:

What is the first aspect?

What if we had here a or a hypothetical case of coerced confession and in that coerced confession, Mr. Tucker, talked about this witness?

Edward R. Korman:

I think the Court, the case of the coerced confession would be more difficult because there we would be dealing with police conduct that would be offensive in and off itself regardless of what use is made of statements.

And there it could be reasonably suggested that what we’re concerned about is simply deterring this kind of conduct.

That it’s the conduct which the police engaged in them which is self offensive and therefore perhaps the exclusionary rules should be applied to its fullest extent, but we are not —

Byron R. White:

Was it in fact applied to its fullest extent to use your words, back in the pre-Miranda days when the Court thought that what was applicable here was the Due Process Clause of the Fourteenth Amendment?

Edward R. Korman:

I believe that it was, but I have not been able to find cases to that effect.

Although, we do cite cases that adhere common law at the time of the adoption of the Constitution of case involving this very issue with a live witness, the King versus Lockhart which is cited in our brief.

It’s an English case in which the confession was obtained which was excludable on the traditional voluntariness grounds and the English Courts held that the witness could be permitted.

Potter Stewart:

Well, that is the rule in England, I know.

Edward R. Korman:

Yes, it is.

I don’t —

Potter Stewart:

Of course England doesn’t have our Constitution?

Before the war.

Edward R. Korman:

That’s true.

On the other hand, when the framers who brought the privilege against self-incrimination sat down to write that clause, what they had in mind was the law of England at the time as Your Honor pointed out.

William H. Rehnquist:

Well, the phrase is a privilege against compulsory self-incrimination to in the Constitution, isn’t it?

Edward R. Korman:

That’s correct.

But as it was understood at common law again, this is a controversy that was engaged in by both sides in Miranda case.

At common law the notion was that compelled testimony and the compelled statements which were made by an accused under compulsion, under torture, under threats were excluded as a matter of common law evidentiary rule that those statements were inherently unreliable.

And that when the privilege was written, a privilege against self-incrimination was written, it was basically intended to reflect the British, or the English rule that you could not be compelled to appear under oath and testify as a witness.

But it was understood at the time of the adoption of the Constitution that you could be subjected to inform a custodial interrogation and statements which were really compelled under torture were excluded not because it was thought that this principle was violated, but because those statements were regarded as inherently unreliable.

Warren E. Burger:

We will resume there at one o’clock.

[Luncheon Recess]

Mr. Korman, you have about, I’m not sure just how much time they’ve probably advised you.

Edward R. Korman:

Yes, four minutes.

Just before, during the argument, Mr. Justice Marshall, you asked for a case involving a potential kidnapping.

There are several cases discussed at page 277 of Judge Friendly’s book “Benchmarks” in which he suggests and cites to kidnapping cases and other cases where it might be important for a law enforcement officers to —

Thurgood Marshall:

He cites the case that had had happened?

Edward R. Korman:

He cites a kidnapping case in which police attempted to question in order to learn the location of the —

Thurgood Marshall:

Well now, we have one?

Edward R. Korman:

Well, it maybe more.

Also Mr. Justice Stewart asked about whether in any traditional due process violation fruits would be excluded?

Of course Wong Sun versus the United States was a case in which a confession was the result not of any coercion but as an a result an illegal arrest.

Potter Stewart:

Fourth Amendment violation?

Edward R. Korman:

Yes, and the Court applied the Fruit of the Poisonous Tree to tangible fruits.

Potter Stewart:

Right.

Edward R. Korman:

Of course, we think that this case is different from Wong Sun because there has been no constitutional violation.

That is, it is impossible to say and there is nothing of course in this record to indicate that his — this defendant who stepped in a violation of any constitutional right.

And that is why it leads me to other point that I would like to make.

In many ways the argument we make, although it somewhat appear, maybe somewhat broader one than the state of Michigan in the sense that our — the analysis that we suggest would apply to all fruits in this kind of a case without distinction between tangible evidence and live witnesses.

It would only apply in a Miranda type situation and that it would not necessarily have to extend to where in fact there was a violation of the Constitution.

On the other hand, the live witness will based as it is on the notions of attenuation or notions that relate to that, that we can never know for certain that this witness sort of not come forward to testified but for the violation would of course apply across the board to all cases and to all exclusionary rules.

And being the cases in the District of Columbia, if I recall correctly, we are not Miranda type situations but the Fourth Amendment violations.

There are several points that I would like to touch upon as to why even if there is a — even if we are wrong on our initial argument, even if the Fifth Amendment does protect against compulsion during the course of custodial interrogation relating to both the statements and the fruits why that exclusionary rule of Miranda should not be extended to fruits.

First, we know that most of the empirical evidence that’s available and that’s cited in the briefs for the respondent indicates that Miranda has very little effect on the decision of a defendant on whether to make a statement or not.

In fact, to all of the studies suggest that it has had no effect on the decision that is where the warnings are given.

Byron R. White:

Mr. Korman, have there been good many cases on whether failure to comply with Miranda warnings is also an exclusion of physical, tangible evidence which is found through the use of the answers to the question?

Edward R. Korman:

Well, I know one which case is cited in all our brief, the case called United States versus Castellana which is now pending on —

Byron R. White:

Say the Alaska federal law where is the gun and he says its under the dresser or?

Edward R. Korman:

That’s exactly the facts in United States versus Castellana.

Byron R. White:

And that’s the one.

Edward R. Korman:

And the Fifth Circuit suppressed it as a fruit of not having given the Miranda warnings.

And I might add even —

Byron R. White:

And you would — do you think that’s an easier or harder case for you to win?

Edward R. Korman:

I don’t —

Byron R. White:

Do you think you can say, do you think they are on the same —

Edward R. Korman:

I still say that they are on the same level.

I might say that it might be somewhat harder because when you are dealing with a live witness, you have the additional element that you would never even know he might have come forward anyway.

William H. Rehnquist:

Because if the guy hadn’t said anything, you still might have seen the gun under the dresser?

Edward R. Korman:

Well, that’s exactly the argument we made to Fifth Circuit and they reject that also [Attempt to Laughter].

Warren E. Burger:

Petition has been filed, has it?

Edward R. Korman:

But, there is petition for a rehearing that is pending now in the Fifth Circuit but they are —

Byron R. White:

You brought this argument before I take it?

Edward R. Korman:

Well, United States Attorney lost it.[Laugher]

Thank you.

Warren E. Burger:

Thank you, Mr. Korman.

Mr. Mogill.

Kenneth M. Mogill:

Mr. Chief Justice and may it please the Court.

The first question presented for the Court’s consideration in this case is whether there is any basis in precedent logical policy for creating a distinction between physical and verbal derivative evidence in refusing to suppress from using the State’s case in chief.

The testimony of a witness which was illegally obtained, where it is — where the existence and identity of that witness were learned solely as a direct result of illegal police — of admitted illegal police conduct and where it is stipulated by petitioner that there is no independent source for the discovery of the witness’ existence and identity.

While this Court has not previously passed on this précise fact situation.

The distinction proposed by petitioner has never been accepted by this Court and has in fact expressly been rejected in circumstances closely similar to those of the case at bar.

Warren E. Burger:

In what page is that you are talking on?

Kenneth M. Mogill:

In the Wong Sun case where this Court –

Warren E. Burger:

Who the, a witness?

Kenneth M. Mogill:

The sole distinction between this case and Wong Sun is that the verbal evidence which was rejected in Wong Sun was that of the appellant rather than the witness.

The argument —

Warren E. Burger:

It isn’t completely at parallel, is it?

Kenneth M. Mogill:

Not completely, that’s correct.

The sole distinction between Wong Sun and this case is the fact that the witness, the testimony excluding witness in Wong Sun was that of the appellant rather than witness.

However, petitioner suggests, no circumstances which distinguished Wong Sun from the case at bar and then pointed that applying this Court’s traditional deterrent’s impact approach to exclusionary rule cases requires application of the same result in Wong Sun to facts of the case at bar.

And if I am might, I would like to go into detail regarding the circumstances, regarding the proposed test which you authored Mr. Chief Justice in Smith and Bowden case and which I submit may not be squared with the exclusionary principles enunciated by this Court in Wong Sun and previously in Nardone and Silverthorne.

The proposed distinction would have the admissibility of the testimony of a witness turned not on the relationship between the primary police illegality and the discovery of the witness’ existence and identity but rather on the voluntariness of the witness’ decision to appear in Court.

The test further distinguishes physical from verbal evidence on the grounds that there is no guarantee that a witness’ testimony will favor the prosecution.

That a witness is subject to cross examination and that physical evidence speaks for itself.

A further condition which has been articulated in this test is that the admissibility of the testimony of the witness goes to weight but not the admissibility of that test — of that evidence.

The voluntariness of the a witness’ decision to testify is not an appropriate consideration for the reason that it goes not to the relationship between the primary illegality and the discovery of the witness.

And since the focus that this Court has consistently applied in administering the exclusionary rules is the impact of deterrence.

This focus would be ignored by such a test.

Kenneth M. Mogill:

Moreover, voluntariness of a witness’ decision to testify is not appropriate consideration because a witness maybe compelled to come into Court and testify by the subpoena powers of the Court and if the witness refuses to testify, the witness is subject to a threat of contempt.

Warren E. Burger:

Would you then make a distinction between witnesses who appeared voluntarily and those who appeared under subpoena, under the compulsion of a subpoena?

Kenneth M. Mogill:

Such a distinction would have no bearing on the purposes of the exclusionary rule because it is has no bearing under relationship between the primary legality and the discovery of the evidence.

Warren E. Burger:

Well, I wondered then why — what — I was waiting for the point that you were going to make as to the distinction between the two.

Kenneth M. Mogill:

My point was that the distinction which is proposed by petitioner is not appropriate because the voluntariness of the witness is irrelevant given this Court subpoena power.

Thurgood Marshall:

You have drawn a lot subpoena witness and voluntary witness as significant.

You mean, a witness comes in and says I know about this case and I want to testify and says, ah ah?

Kenneth M. Mogill:

No, certainly not, certainly not.

I do not mean to suggest for a second that where a witness voluntarily appears that the witness may not be used.

However, in the case before this Court right now, it is stipulated that there was no independence source.

And once a primary taint has been established the prior case to this Court could consistently hold —

Thurgood Marshall:

Subpoenaed or are not?

Kenneth M. Mogill:

I am sorry?

Thurgood Marshall:

Was this witness subpoenaed?

Kenneth M. Mogill:

I have — at present I do not know although I would assume that he was as matter of practice in State Courts, subpoenas are sent out prior to trial.

The point I am making is that, because of the subpoena power of the Court, because a witness maybe made to appear regardless of his voluntariness apart from an independence source situation, the voluntariness of the witness’ decision is irrelevant.

Thurgood Marshall:

Well if I understand the State and the Government they say this witness might have volunteered?

Kenneth M. Mogill:

There’s no basis whatever in the record of this case.

Thurgood Marshall:

I did not say in the record but I said he might have and of course that’s true, is it not?

Kenneth M. Mogill:

It is possible.

Thurgood Marshall:

Alright.

Kenneth M. Mogill:

It was stipulated however that there was no independence source.

Potter Stewart:

The stipulation as I understand it is that they probably — the state learned of this witness only through the statement made by Mr. Tucker which statement was made in violation of his Miranda rights.

Kenneth M. Mogill:

That’s correct.

Potter Stewart:

That’s a given in this case.

Kenneth M. Mogill:

That’s correct and the petitioner has never alleged that there was an independent source for the discovery of the witness’ identity.

Warren E. Burger:

Do you think that includes entirely the possibility that it as with — as happens in many cases that witnesses volunteer?

Kenneth M. Mogill:

It fully does not preclude entirely, but because of the primary illegality the burden necessarily shifts to the prosecution.

Warren E. Burger:

Your point is the defense is purely speculative?

Kenneth M. Mogill:

That’s correct.

Kenneth M. Mogill:

The distinctions that had been urged between physical and verbal evidence regarding the nature of the evidence also are inappropriate for the reason that they ignore the relationship between the primary illegality and the discovery of the evidence.

But, they are also inappropriate for the reason that just as a search may not be justified on basis what it produces, the admissibility of the testimony of a witness has never turned on whose side it favors.

And the admissibility of physical evidence does not turn on whether or not it is in fact Marijuana for example or Oregano or it is in fact Heroine as opposed for example lactose.

Similarly the argument that live evidence is distinguishable from physical evidence on the grounds that live evidence is subject to cross examination.

Also does not hold up for the reason that in the case of physical evidence the defense attorney can and does cross examine the expert offering the testimony.

Similarly, the claim that the matter by which the witness testimony, the witness was discovered goes to the weight and not the admissibility of that witness, testimony is not an appropriate consideration for the reason that the weight of a witness testimony is determined by his opportunity and capacity for observation.

And on the basis of any interest or bias the witness may have.

How the police came to find this witness is irrelevant to that consideration and in point of that a defense attorney trying a criminal case would not be permitted to ask a witness how did the police find you.

William H. Rehnquist:

I suppose if the question were made to turn solely on the reliability of the type of evidence you can make a pretty good argument that physical or demands to that evidence tends to be more reliable in many respects than eyewitness evidence or at least testimonial evidence.

Kenneth M. Mogill:

In certain circumstances, I am not sure I follow your call Mr. Justice Rehnquist.

William H. Rehnquist:

Well, if you are addressing yourself and I do not think perhaps you are, but you at least comment and said yes, if we are talking about how reliable is the evidence being excluded, I should think a case could be made for the fact that the gun on which fingerprints were might be a good deal more reliable than a witness who recalls a particular encounter with the defendant.

Kenneth M. Mogill:

I am not relying on such a distinction and in fact this Court’s exclusionary rule cases do not consider the reliability of the evidence as a factor and assessing whether or not to apply the exclusionary rule.

I think that an appropriate case which is analogous for the point of this scope exclusion necessary is this Court’s decision in Kastigar.

Because the interest at stake in Kastigar were the same as those involved here and that is protection of the privilege.

And Court in Kastigar was considering the scope of exclusion necessary in order to restore the privilege, in order to maintain the privilege.

The only difference being that in Kastigar the view is perspective in maintaining the privilege whereas in the case the view is retrospective in terms of returning the parties to the status quo.

The petitioner in Kastigar challenged the sufficiency of the statute under consideration on the ground that, that statute would not protect against derivative use of leads and names of witnesses.

This Court rejected that contention, specifically stating that not only would the statute not permit derivative use of leads and names of witnesses, but that the statute could not permit such use in order to be consistent with the constitutional command.

In fact —

William H. Rehnquist:

Or should you got a plain violation of the Fifth Amendment the man being compelled to testify against himself.

Now, that isn’t the case here?

Kenneth M. Mogill:

Well, in this case there is admitted violation of Miranda.

William H. Rehnquist:

Yes, but not of the compulsory Self-incrimination Clause of the Fifth Amendment?

Kenneth M. Mogill:

This Court’s holding in Miranda was that in the absence of all the warnings required therein the compulsion inherit in interrogation process could not be met, so that any statement given was for constitutional purposes compelled.

William H. Rehnquist:

How do you define a holding?

Kenneth M. Mogill:

I do not think that I am a position to argue Holding versus the victim, and I do not think it is appropriate because even if Miranda was not decided on constitutional grounds, this Court has never required a violation to be constitutional.

Byron R. White:

If the — what do you use against him is on his words or his submission but some non testimonial objects then the question is how far you going to extend the fruits doctrine as a rule to implement the basic purpose.

Kenneth M. Mogill:

That’s correct and it is my position that —

Byron R. White:

So what is the argument?

Assume a question in violation with Miranda where is the gun and he says and you find the gun and independently you connect the gun to the defendant.

Byron R. White:

You never use as admission in court, now what’s your argument?

Kenneth M. Mogill:

If there was independent source for the discovery of the gun.

Byron R. White:

No, no, No, no there is not independence source, coincidently it came from the defendant but the gun is found and offered in evidence and it is connected to him by evidence independent of any question.

Kenneth M. Mogill:

Such as a finger print I would —

Byron R. White:

A finger print or –?

Kenneth M. Mogill:

Or ballistics, that would still be a direct and immediate result of a constitutional violation over his rights.

Byron R. White:

But it is not offering his words?

Kenneth M. Mogill:

That’s correct.

But this Court since in Nardone has refused to distinguish between direct and derivative fruits of illegal activity and in fact, the Court’s concluding paragraph in the Calandra case expressly reiterates the notion that direct –-

Byron R. White:

(Voice Overlap) itself is prophylactic rule?

Kenneth M. Mogill:

Similarly in a prophylactic rule.

Byron R. White:

And so now you want to put — so you are suggesting you should have a prophylactic rule on a prophylactic rule to be sure and get all the fruits in order to make the prophylactic rule more prophylactic?

Kenneth M. Mogill:

In order for Miranda to be affective, there must be remove any incentive to violate it and if a police officers is able to use in Court, verbal evidence which is directly derived from a violation —

Byron R. White:

Isn’t he does using the verbal evidence?

Kenneth M. Mogill:

Certainly, the testimony of the witness.

Byron R. White:

But that’s not his witness.

I mean, it is not the defendant’s testimony?

Kenneth M. Mogill:

His testimony which was obtained — it is testimony which was obtained solely and directly as a result of a statement elicited from the defendant in violation of Miranda.

Byron R. White:

The question is still though how far do you carry the fruits doctrine?

Kenneth M. Mogill:

Certainly and I think that this Court has consistency limited the application of the fruits doctrine to those situations where the deterrence aspect would be met.

And I believe that on the facts of this case there is not distinction between physical and verbal evidence that in point the fact an officer would be encouraged to violate Miranda if you were able to use the witness such as was found here.

And that the deterrent purposes recognized in Wong Sun and in the prior cases would require rejection of the proposed distinction between a witness and physical testimony.

Warren E. Burger:

You’ve got into some hypothetical analogy.

So, let me ask you another one that based partly on this case.

Suppose that Henderson, when the police went to him, did what the defendant hoped he would and said oh!

Yes he was with me and but not resenting that, the prosecution went forward on other evidence and then he was called his an alibi witness by the defendants and testified affirmatively in favor of the defendant’s theory that he was somewhere else at the time.

But then on cross examination, a vigorous cross examination as it sometimes does, brought out the fact that he was not telling the truth, and then he told all the things which he testified to in this case.

Would you says that that cross examination must be stricken, he must not be permitted to testify?

Kenneth M. Mogill:

On the basis of the hypothetical as you pose it Mr. Chief Justice.

I see no relationship between the any police legality and the cross examination of the witness.

Kenneth M. Mogill:

And for that reason —

Warren E. Burger:

You say that the cross examination could come in?

Kenneth M. Mogill:

In that case there will be no relationship.

There will be no evidentiary gain to the prosecution from its misconduct to find this gender hypothetical correctly.

Warren E. Burger:

Let me make another variation in the hypothetical and the question I’ll put you on this hypothetical is, would you extend the rule that you are not contending forward to this situations, suppose a kidnapping case, a kind that has been mentioned before occurs and the police have some word that the kidnapped victim maybe in a particular house, group of buildings, and they go to the house without a warrant.

They break into the house, find the kidnapped victim and perhaps one of the kidnappers.

Would you say the testimony of the kidnapped victim must then be excluded and suppressed because of the illegal entry and break in without a warrant?

Kenneth M. Mogill:

On the basis of the facts that you have hypothesized, the question I feel incapable of giving a definitive answer.

I think that the question would ultimately depend on the same principles —

Warren E. Burger:

Well, I am assuming and I think that my hypothesis that the police conduct was illegal, but they finally got —

Kenneth M. Mogill:

If there was independent source for the discovery of that victim then of course, witness testimony would be admissible.

Warren E. Burger:

How admissible?

Kenneth M. Mogill:

Yes, however —

Warren E. Burger:

She would not be able, she or he would not be able to testify that just this man and this man are the —

Kenneth M. Mogill:

However, I do not think that that would be result in your case because since kidnaps are normally for the purpose of ransom.

It is in the interest of the kidnapper initially to make the identity of the victim known so that there is no direct relationship between the illegality of that act of breaking in and discovering the existence identity of the witness.

So that in fact the witness testimony would be admissible.

Warren E. Burger:

Not withstanding the illegal manner in which the witness was found?

Kenneth M. Mogill:

Because that did not lead the police to the existence and identity of the witness.

There are maybe a partial exclusion, involves such as is involved in the Wade and Gilbert situation where if there is an independence source for identifying a defendant apart from an illegal lineup, the witness may still come in to Court, testify as the identity of the defendant on the basis of a previous observation, but not on the basis of the observation of the lineup.

So that the witness may well be permitted to testify as a complaining witness, but perhaps and I just do not have an answer that right now as to the offense related to the illegal break in.

The test which was — which is proposed by petitioner, I submit for the reasons I have stated is inconsistent with the deterrent principles of the exclusionary rule as previously fashioned by this Court.

But I believe that the test should be rejected for reasons beyond that because in those Courts which have attempted to apply the test, it is proven to be a workable.

To begin with, the test attempts to derive definite conclusions from the acts which are ambiguous, qualitatively more so than many others which the law permits, definite conclusions to be drawn from.

And think, this is demonstrated in the experience of courts which have attempted to imply to apply the Smith and Bowden test.

None has articulated any consistence standards towards application and in point of fact while Smith and Bowden and Edwards, the witness’ initial reluctance which was later overcome was viewed as attenuating factor which justified admissibility of the witness testimony in the taint case the same factual context was viewed is exploitation of taint requiring suppression.

In the original preceding this case in the Michigan Court of Appeals, the same result that was reached in Smith and Bowden was reached on the basis of the exact opposite reasoning.

The Court presuming without any foundation in the record, I might add, that Henderson’s testimony was probably voluntary, therefore there was no exploitation.

Therefore the witness testimony should be admissible and in Smith and Anderson, the witness’ initial reluctance, I am sorry the witness’ initial willingness was viewed as insufficient to break the clausal chain — to taint a chain.

There is no policy considerations which permit the Court to distinguish among these contradictory applications because of the fact none of them go to the traditional test of deterrence which this Court is applied that is the relationship between the illegality and the discovery of the evidence sought to be suppressed.

Kenneth M. Mogill:

And ultimately this test by focusing on the voluntariness of the witness’ decision to testify, would have the administration of important constitutional principles depend on the emotions of the witness and his feelings towards the defendant, the victim, the courts and the police.

I think that Smith and Bowden test —

Warren E. Burger:

Are those things are traditionally reached by cross examination, in motion by us additives?

Kenneth M. Mogill:

Certainly but how the police came to find the witness is not something which maybe reached by cross examination, so that the statement that —

Warren E. Burger:

I thought you were linking up the attitudnal factor with the ultimate risk of letting this person testify?

Kenneth M. Mogill:

Those factors go to the weight of the admissi — to the weight of evidence but not to its inadmissibility because they have no bearing on the constitutional principles at stake.

I believe that the Smith and Bowden test has for this reasons shown itself to the unworkable and that the principles previously annunciated by this Court have shown themselves to be capable of minimizing the loss of evidence by the various requirements of standing attenuation independent source.

Potter Stewart:

You referred several times to Smith and Bowden test is — I haven’t reread that.

I don’t have that opinion in front of me but as I recollect that was — the holding in that case is kind of alternative one wasn’t it?

At first at the initial tape had been dissipated is that, am I right about that?

Kenneth M. Mogill:

That’s correct.

Potter Stewart:

And secondly, it was emphasized that this was unlike gun or the county eleven this was human being and that the elements of the violation and so on were came into admit in different case.

Kenneth M. Mogill:

That’s correct.

Potter Stewart:

Now, when you were talking about the Smith and Bowden test, what are you talking about?

Kenneth M. Mogill:

I think that one of the problems which the courts that have attempt to apply the test have found themselves in is that they have not —

Potter Stewart:

What do you mean by the test by the Smith and Bowden test?

Kenneth M. Mogill:

Distinguishing live physical fruits on the basis of voluntariness of the witness’ decision to testify.

The characterization of the decision to testify is attenuation or exploitation has turned on the individual judges’ assessments rather than on the facts going to voluntariness of the decision to testify and so, I think the test ultimately is part of the voluntariness —

Potter Stewart:

Well it is not per se rule and since it is not, they are will be always be difficulties in its application, isn’t that right, to varying factual situations?

Kenneth M. Mogill:

I think the difficulties here have shown themselves however to be of such magnitude that the test has been unworkable and I think that for this court who adopt it would besides undercutting the established principles of exclusionary rule, would — the court would adopt a test which this Court concede today on the basis of the test or the cases which apply the test is an unworkable test.

Warren E. Burger:

Now, you try the cases that have held that it was unworkable or it is that, are you expressing your own analysis of it?

Kenneth M. Mogill:

I believe that the – no, I have said to my brief, I have not talk about it here.

Judge Gazelle’s opinion in the Austin case attempted to apply the conflicting opinions from the DC Circuit and Judge Gazelle concluded that the test was in such unusable safe that to decide the question in Austin he had to return to the primary principles of exclusionary rule and with those resolved the case exactly.

Warren E. Burger:

And the excluder admits?

Kenneth M. Mogill:

The evidence in that case was suppressed.

Byron R. White:

How do you distinguish the testimony that was admitted in Wong Sun that was obtained from Wong Sun himself?

Kenneth M. Mogill:

Well, in that situation Mr. Wong Sun had been arraigned by a magistrate and had come back voluntarily several days later after having had —

Byron R. White:

Yes, but they didn’t — they had no idea that he was connected with this crime until they exploited the information they got from Blacky Toy in an illegal search?

Kenneth M. Mogill:

That is correct.

Byron R. White:

In order to find Wong — to know about Wong Sun, they did it right then and there.

Byron R. White:

They found about it immediately and then, the information however that — his testimony came later or his information he came in.

But —

Kenneth M. Mogill:

That goes to a distinction I think between the position of a witness, who has no alternative of not coming into court and testify, and a person who has a potential dependence, such as Wong Sun who after being arraigned then came in and this Court held that his decision to testify was sufficiently remote —

Byron R. White:

I do not think it will run the other way?

Kenneth M. Mogill:

A witness has no choice not to testify.

Once the police have obtained and have come upon his existence and identity.

The Court’s opinion —

William H. Rehnquist:

Against self-incrimination, the same way a defendant can?

Kenneth M. Mogill:

Yes, but I am distinguishing between the situation of an accomplice witness who has a privilege and a witness who is not an accomplice, who does not have the privilege.

William H. Rehnquist:

Well, but the reason bu — the reason for which both the defendant and the witness have a privilege is the same, it’s a privilege against self-incrimination, isn’t it?

Kenneth M. Mogill:

But in situation of a witness to a crime who is not himself a suspect.

There is no privilege which would permit that witness to come into Court and say, “I refuse to testify just because I do not want to.”

William H. Rehnquist:

Well, but in either case it is based on a notion of self-incrimination.

Typically a witness want to incriminate himself by testifying the way a defendant would?

Kenneth M. Mogill:

I don’t believe at all your point.

The second question which I wish to address goes to the Miranda question and the question before this Court, at this point in time, is not whether Miranda should have been adopted although I submit that it was correctly adopted, but rather given the existence of Miranda as the operation of that decision in the last state years been shown to be so harmful to law enforcement in the exercise of constitutional rights as to justify departure from the principles of stare decisis.

The available evidence indicates that no harm has come to law enforcement as a result of Miranda.

William H. Rehnquist:

Do you think the decision of a Court of Appeals here isn’t some harm to law enforcement suppressing this particular evidence and not just going back to a new trial situation, but in fact letting this guy go scoot free?

Kenneth M. Mogill:

I see no harm the law enforcement and requiring the police to gain — in permitting the police to gain no evidentiary advantage as a result with their own illegality.

William H. Rehnquist:

So, you say the decision of the Court of Appeals here doesn’t represent any harm to law enforcement?

Kenneth M. Mogill:

Certainly.

Harry A. Blackmun:

This so even though the illegality was not established until after?

Kenneth M. Mogill:

Well, unless this Court overrules Johnson, then this case must be due in the context of a Miranda violation which took place after Miranda.

Harry A. Blackmun:

Do you regard Johnson is out of line with the Linkletter and some of the other retrospectivity cases?

Kenneth M. Mogill:

I think that – well, I would urge this Court not to reconsider Johnson.

Harry A. Blackmun:

But you’d have to.[laughter]

I say, you have to take that position?M

Kenneth M. Mogill:

Yes.

I mean, I am not attempting to evade your question Mr. Justice Blackmun.

I am just attempting to put the various points in my answer in an order.

Kenneth M. Mogill:

I believe that there is no appreciable impact whatever on the administration of justice by reconsideration of Johnson at this point in time and for that reason alone, it should not be reconsidered.

However in response to your question, I believe that the centrality of the Fifth Amendment privilege to the integrity of the fact finding process at trial sufficiently justifies the decision in Johnson as to make that a close question before in this Court today.

The Miranda decision was necessary —

Harry A. Blackmun:

Let me follow through with one more question.

What factors that were the foundation for the Miranda decision are impinged upon in this case in view of the chronology of your case?

Improper police conduct is one that is stated and yet that at the time this was not regarded as improper?

Kenneth M. Mogill:

What this Court found in Miranda, I submit is that application of the old due process test had shown itself to be so incapable of protecting the privilege that the integrity of the trial process was in jeopardy.

And that without a strict rule requiring the police to inform a suspect of all of those rights which are most critical at that time and reminding the police of restraints the law imposes upon them, that a trial was in danger of becoming that might appeal from the interrogation process.

These facts were so deeply to the part of our legal system that the decision in Johnson, applying Miranda partially retroactively is certainly not out of line with the prior — with other decisions of this Court involving retroactivity.

Today — the police today are familiar with the Miranda decision and they are fully incorporated into their day-to-day workings.

And Mr. Gribbs my co-counsel, representing Detroit Bar Association will address himself to that to a point in addition to my remarks.

Miranda has had a beneficial impact on law enforcement in toto and that it provides the police with a clear standard for determining what their own limits are and what they may or may not do.

And it also has provided the courts with an objective standard against which to measure any claims of waiver.

And as to the waiver question, Mr. Justice Stewart asked a question this morning as to any Michigan cases on that point.

There’s a recent case in Michigan Court of Appeals case, People v. McClendon, the citation which escapes me but in that case the defendant had been given the applicable Miranda warnings had refused to sign a waiver and had made a statement, and the Trial Court that held that there was a valid waiver.

The Michigan Court of Appeals vacated that — the conviction and remanded it for hearing saying that the evidence was insufficient on those facts.

Potter Stewart:

Well, that — so the issue there was whether or not there had been a waiver?

Kenneth M. Mogill:

That’s correct.

I believe that’s what your question had been this morning.

Potter Stewart:

My question was, and I asked your colleague on the other side that he know of any case, anywhere really, where Miranda had been fully complied with in every respect and there was a finding that the statement was coerced.

It seems to me almost a contradiction of terms but it there were suggested an argument that going through the Miranda is just step one, and then you — step two is to find out whether even though Miranda was complied with, the statement was coerced.

And I wondered if there was any case, anywhere holding that Miranda was fully complied with but nonetheless, the statement was coerced.

It would seem to me rather an odd situation if there is such a case.

Kenneth M. Mogill:

Unless one can imagine the situation of a police officer utilizing a suspect and at the same time, reciting the warnings.

Potter Stewart:

Yes.

Kenneth M. Mogill:

While doing that.

Byron R. White:

(Inaudible) after giving him the warnings?

Kenneth M. Mogill:

I’ve thought of that.

The decision in Miranda is also sound constitutional policy or to be paraphrase from the Escobedo decision, there’s no place in the democracy where a system of criminal law which comes to depend for its continued effectiveness and citizen’s abdication through unawareness of their constitutional rights.

The objections to the Miranda decision which are urged before this Court do not go to any claim that Miranda has caused an increase of crime which it clearly has not.

Kenneth M. Mogill:

But rather to its alleged inflexibility.

The modifications which are urged, however, each of them would swallow up the rule and effectively overrule the case.

I think it is incorrect to state that failure to advise an indigent of his right to court appointed counsel is a mere technicality.

Nor could it be considered a technicality not to advise someone of the right to silence in a single basis for distinguishing among failure to advise a person of anyone of those rights.

Inadvertence, like good faith is irrelevant and I would submit that none of the modifications urged in Miranda would be capable of effectuating that decision as each of them would swallow the decision.

And I give the rest of my time to the Detroit Bar Association, and Mr. Gribbs will address himself to the experiences of the police in applying Miranda.

Warren E. Burger:

Mr. Gribbs.

Roman S. Gribbs:

Mr. Chief Justice and may it please the Court.

As my brother counsel has indicated, I’m here on behalf of the Detroit Bar Association that has filed an amicus brief in connection with issue number two as it is presented by the petitioner.

The briefs speaks to that issue and I will limit my remarks to that issue and make it fairly brief. I would like to speak toward the rationale of the Miranda decision ever so briefly and then the practical results in the last seven-and-a-half, eight years in connection with Miranda and all of its implications.

Before I do, let me simply remind this Court that it asserts that the Court stepped backwards into history insofar as the practices and procedures required under Miranda.

Petitioner alleges that Miranda was too restrictive and thus urge to this Court to allow the test to go back to the totality of circumstances test that had been operative before Miranda.

Let me remind the Court that the Miranda warnings were not all new in 1966.

One was added; the warning as to statement that is not to be used against an individual — the fact that it need not make a statement was practiced before Miranda, the fact that it did and it was used, it was practiced before Miranda.

Escobedo established a practice of an attorney and finally Miranda said, “If you can’t afford it, the Court will appoint you an attorney.”

So, that four-fold statement and of course the requirements as to waiver as was set forth, were clearly set forth would settle that question.

Warren E. Burger:

I’m not quite sure, which one do you say is the only addition of Miranda?

Roman S. Gribbs:

The last one.

Warren E. Burger:

The fourth one?

Roman S. Gribbs:

Yes, the Attorney is Court.

The appointed Attorney, although that’s not quite as clear, assuming Escobedo required the fact that you can have an Attorney present and if so construed and then the Miranda warning was really the fourth one.

The rationale, may it please the Court, I’m sure it’s very well-known to this Court.

Let me simply point out that what Miranda protects goes to the very roots of the American Criminal Jurisprudence.

It puts life and meaning into provisions that are in the Constitution.

What it really does is put into the street, if you will, put into the police station the knowledge or the protection — protective aspects of the Constitution.

The warnings are given as now required.

There are interrogations.

They are continued if there is waiver.

There are, as a result of Miranda and after Miranda confessions that are garnered in spite of the Miranda warnings.

In the process of applying Miranda, the Court found expressly in that case, that as my brother counsel indicated, that other tests or measures to make those that are uninformed aware of these rights and to prevent police practices that were abrogating those rights, that this was the minimum requirement before admissions or confessions were allowed into Court.

Roman S. Gribbs:

The Court found that in custody interrogations were inherently coercive, be they physical but in these modern days, psychological.

That there just as no contest between the sophisticated police officer on this side and the accused that is frightened on this side.

It was really an adversary and is an adversary proceeding every time that there was an arrest, generally speaking, of course.

On one hand, we have Lieutenant Patterson here that trained either, perhaps with a degree or years of experience in interrogations in bringing out, if you will, questions and answers that would incriminate.

On the other hand, we have the accused that in all likelihood, has no education or very little and certainly no sophistication in the rules of law.

Warren E. Burger:

Apparently, what you’re talking about, Mr. Gribbs, affects this defendant’s giving the name of the alibi witness.

Do you suggest he did that because he was overpowered?

Roman S. Gribbs:

I’m here speaking solely — Excuse me?

Warren E. Burger:

Are you speaking of the generality of cases, not this case?

Roman S. Gribbs:

No, I’m speaking solely to the rationale and the basis in the continuation of Miranda itself which is the second issue presented to the Court and not the “fruits” doctrine.

Harry A. Blackmun:

And then you will bring those backgrounds into this case, in the facts of this case?

Roman S. Gribbs:

I can, if it please the Court [Voice Overlap] —

Warren E. Burger:

But that is not vital, don’t you think so?

Roman S. Gribbs:

— [Voice Overlap] and our brief is limited only to the Miranda itself as being directly attacked as being too restrictive and that bit and that rule should be modified.

William H. Rehnquist:

In other words, you’re not necessarily arguing for affirmance of the judgment of the Court of Appeals?

Roman S. Gribbs:

We join in his general request with the Bar Association as such did not brief it and do not speak to it and we’re speaking to Miranda only.

But in any rate —

Byron R. White:

Well then, if you’re speaking on that level and perhaps you will help me out.

What has the impact of Miranda been?

Roman S. Gribbs:

And that’s sir what I was about to speak to.

Byron R. White:

Well, do you think it’s a —

Roman S. Gribbs:

First, — yes.

Byron R. White:

Do you think it’s deterred admissions and confessions or not?

Roman S. Gribbs:

Ever so slightly, in a very insignificant fashion.

Byron R. White:

And so, it really wouldn’t make very much difference whether it was overruled or not?

Roman S. Gribbs:

No, I think, it would make a great difference because there are individual cases I’ve known where the warnings protect the innocent.

Byron R. White:

Sure.

Roman S. Gribbs:

And that’s the objective of the law and that’s the reason for the protective provisions in the Constitution.

Byron R. White:

But you’re saying — you say the impact has been ever so slight?

Roman S. Gribbs:

Insofar as we do see the confessions or admissions.

Byron R. White:

And it is — I mean, if it’s so, do you think if it’s been very — it had a very strong impact —

Roman S. Gribbs:

Impact as to number of confessions that are introduced, may it please the Court.

This is what I intended when I said that.

For example, at Pittsburgh study —

Byron R. White:

What other impact does it have?

Roman S. Gribbs:

It has the impact of professionalizing the operations of the police department.

It has the impact of advising individual of the constitutional rights and in number of cases, avoiding the use of their admissions or confessions in their trial.

Byron R. White:

Well, it hasn’t had the impact of preventing some admissions that otherwise might have been made?

Roman S. Gribbs:

Yes.

Byron R. White:

A substantial as was stated —

Roman S. Gribbs:

Well, in counting the numbers, we can only start what the surveys indicate and the numbers indicate in one study in Pittsburgh where there was a reduction of about a third in the number of confessions introduced.

There were no reductions — pardon me, there’s a one-half of one percent reduction in convictions in that same Court.

Byron R. White:

Well, it is not what I’m asking.

Do you have any evidence about one way or another, as to whether or not it has prevented admissions or confessions that otherwise might have been made?

Roman S. Gribbs:

Only the individual cases where they’ve been excluded, but as to a study of the total exclusions or not, we have just a few that are cited in general terms in the briefs.

For example, a study was conducted here in the District of Columbia to determine the degree of increase or decrease of interrogations after Miranda.

It was made in 1968 and cited in Michigan Law Review and it said there was no substantial variation in the number of interrogations here in this area.

But that does not take away, certainly, there’s no reason, in fact, there are reason to retain the Miranda rule for it does put life into individual cases and it’s not a deterrent to law enforcement as such.

The way to determine its impact on law enforcement was to talk to those in law enforcement.

And there are statements we plead in the briefs coming from Prosecuting Attorneys, Mr. Younger who now joins the prosecutor in opposing and filing a brief our opposition to Miranda but several years ago, he stated as District Attorney that he did not find any deleterious effect or impact as a result of Miranda in its operations.

And likewise Prosecutor of Wayne my area and I myself, may the Court please, had been on law enforcement for some 12, 15 years as prosecuting attorney and sheriff of Wayne County, during this time, the changing of the rule.

Well, let me conclude, if I may, with just of these notations that in 1966, which I feel have bearing under practical impact of Miranda.

In 1966, when this Court was hearing the Miranda case some 27 cases, states rather, joined in opposition to the proposed then Miranda rule.

And they are cited in the dissent.

Today you have that lone brief joining the Prosecuting Attorney in his urging that Miranda be overruled.

Miranda set standards that were minimal and to be enforced but they did not and in fact, the opinion expressly says that if States so chose as long as they met the minimal standards, they could use a different means or a mechanism to safeguard these standards.

Today, not one State has attempted to set up a different mechanism, meeting those same standards as set forth in Miranda, there is by an indirection, if not directly on occasion a reference in some of the briefs that because of Miranda, the increase in crime that’s been reported over a few years is direct or indirect result of Miranda.

The fact is that crime is going down in many communities and in the City of Detroit it has gone down three years in a row.

In 1971, it went down five percent, in 1972 it went down 16%, and in 1973 it has gone down an additional five percent in round numbers.

So, there was a decrease in crime in certain areas.

Roman S. Gribbs:

So, we urge it and may it please the Court that the rule not be modified or rescinded.

Warren E. Burger:

Very well.

Mr. Patterson, you have about six minutes left.

L. Brooks Patterson:

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

I’ll say two points raised by counsels for the respondent as they raise in seriatim.

The first one that Mr. Mogill mentioned to the Court was a stipulation that appears in the brown appendix on page 29, where in his formation of the question, he said that what we stipulated right there, there was no independent source.

And since there could be no independent source, that is not our stipulation.

Our stipulation was, I think as one of the justices indicated was that we admit that we learned of Henderson only through Tucker but that is not to say that he could not have come forward or would not have come forward on his own because if he’s now, as your particular facts in this particular case.

William H. Rehnquist:

But it is to say that the police had no independent source?

L. Brooks Patterson:

At that particular time, that’s right, Mr. Justice Rehnquist.

The next point raised by Mr. Mogill was that the granting or failure to apply the Fruit of the Poisonous Tree Doctrine to witness’ testimony would undermine the deterrent purpose of that particular rule.

And I think there’s a presumption here that the police are therefore going to go out and violate Miranda in the hopes of finding evidence of a third independent witness type and then use him.

That’s not a very good assumption to make that police are going to deliberately violate the Miranda doctrine in the hopes of finding a third witness which the rule doesn’t apply to.

Obviously that the police are going to try in all the interrogations to say within the guidelines as the police did in this particular case of interrogating Tucker in April.

The — Mr. Mogill also indicated that the Miranda has not been harmful as did Mr. Gribbs.

It has had not any harmful effect.

He said there was no evidence as such.

And Mr. Justice Rehnquist pointed out that here’s a case before you where we have, I think, a detriment to certainly the interest of Justice, sort of Ms Cory is concerned and the interest of the people of the State of Michigan because we’re here.

The amicus brief that was filed with us by the International Association of Chiefs of Police on page 18 and 19, and 20 and 21, set forth nine or ten cases where the Miranda, technical violation in how the rights were administered resulted in a confession being suppressed in the case either being dismissed or sent back for re-trial, many instances tantamount to dismissal.

Mr. Gribbs in his argument said that these studies show that there has been no depreciable effect on law enforcement and he cites the Pittsburgh study and in Pittsburgh, in that particular study, they called the remark that Tucker gave, an exculpatory statement, they didn’t include that.

They said, “Well, we won’t consider that a statement or admission or confession purposes of this survey.”

So that, that report really is inapplicable to the situations of this case.

William O. Douglas:

Then I’d still assume that the purpose of the provisions we’re discussing was to make it very difficult for Government to do things to the citizens and you barely want it very easy for Government to do things?

L. Brooks Patterson:

No, Your Honor, I have no intention of ever violating or whatever foreclose to come before this Court and suggest that we would want to compel somebody to be a witness against himself in a criminal trial.

I do not see that that is a situation in this particular instance.

I safeguard the Constitution and the Board of Rights as much any lawyer or any member of the Bar.

But I do not feel at all dirty by coming into Court and having a proper statement to present to a jury that is tantamount to a confession.

I think that is proper evidence as always been regarded by all the Courts of this land as always being reliable form of evidence which is good evidence to present by way of a trial on the merits of the case.

Thurgood Marshall:

And which is not in this case?

L. Brooks Patterson:

No, it is not.

L. Brooks Patterson:

It’s further removed than it is a confession or an admission of guilt it’s the evidence we’re trying to preserve is that of an independent witness and Mr. Mogill here says that you should not draw any distinction between an independent witness and a direct statement from the accused.

And I think that you have to see the distinction just on its face.

The fact that this witness and also all the reasons I enunciated it in my argument in Chief, could’ve come forward, might have been discovered.

He’s a human being of all the interaction of his characteristics.

Byron R. White:

Miranda was a prophylactic one to perhaps act as a deterrent to the kind of interrogations that shouldn’t take place and to stop the interrogation if the witness, if the defendant who’s in custody doesn’t want to talk, that’s the purpose of Miranda.

Then, I suppose that purpose is substantially implemented if you say that you may not interrogate him about other evidence even though you never intend introduce his statements.

I suppose if you prevail here, the officers may continue to interrogate the defendant in custody as long as their purpose is to build their case through independent evidence whereas to evidence that he leads them to.

So, that would be certainly quite a motive to continue to interrogate.

L. Brooks Patterson:

It would all depend on, I believe, Mr. Justice White, this Court’s ruling on the question of how Miranda is going to be continued.

If the Court continues that particular —

Byron R. White:

But if you win this case, I take it the one way of putting it is that there’s nothing wrong with continuing to interrogate to attempt get leads to other evidence.

L. Brooks Patterson:

No, I was starting to say that as long as that provision of the Miranda case which is now something that guides the performance of police still in force namely, when he says, he does not want to be interrogated.

He wishes to exercise his rights —

Byron R. White:

Yes, but the Court because they go ahead that the police continued to interrogate and they say, “Where’s the gun” or “Where were you at a certain time” and he finally gives an answer and says, “Well, I was with Henderson.”

L. Brooks Patterson:

And Mr. Justice White, I’m saying that —

Byron R. White:

And then you would say that was admissible?

L. Brooks Patterson:

No, I’m saying that the police do not do that now and they would not do that as long as that particular provision of the Miranda majority is still in force, namely, that when he says, “I don’t want to talk,” the police are instructed to stop their interrogation at that point and allow him to exercise his right.

William H. Rehnquist:

Well, just from the point of view, the police has own interest.

I suppose if they did what Justice White is suggesting to you they would do, they give up all chance of using a confession that the man might make?

L. Brooks Patterson:

Yes, Mr. Justice Rehnquist and that the point I was making.

I think, if he supposes that they’re going to deliberately violate the warnings that are required to be given and so forth in the hopes of finding independent evidence.

Byron R. White:

You know, they won’t be able to use a confession anyway?

L. Brooks Patterson:

That’s right.

Byron R. White:

Of the — and as they quit interrogating, he certainly isn’t going to give one.

So, they still have a motive to seek other evidence.

L. Brooks Patterson:

Yes, Mr. Justice but in fact they do stop and they do obey in great majority of the time as many times as we have an influence on them, they’d be prescriptions that have been delineated in the Miranda decision.

Warren E. Burger:

Thus, you’re still making the distinction I take it between the interrogation that produces a pistol as Justice White suggested and the interrogation that leads to finding a witness who then comes into the Courtroom to testify under oath?

L. Brooks Patterson:

Absolutely, Mr. Chief Justice.

That is the premise of our whole second issue that we briefed and argue.

Thurgood Marshall:

But they could still question that could keep on regardless of the man saying, he didn’t want to talk anymore and on the theory that if he got enough and the man made a mistake of taking the witness stand he can use it.

L. Brooks Patterson:

Mr. Justice Marshall —

Thurgood Marshall:

Wouldn’t be an incentive for him to continue?

L. Brooks Patterson:

No, Mr. Justice Marshall, because as we indicated also in our opening argument that, we feel that a totality of circumstances approach to evaluating the interrogation would cover that type of situation.

Thurgood Marshall:

And you say that when he says, “I don’t want to talk anymore,” you cut it off.

L. Brooks Patterson:

Right and I think —

Thurgood Marshall:

Well didn’t he say that when you first start questioning, do you — I mean, he’s not talking voluntarily from the beginning, right?

L. Brooks Patterson:

Well, I respectfully disagree.

If he has been advised of his rights and he’s making his statements, he is talking voluntarily.

Thurgood Marshall:

Well, I mean, before you advised — he doesn’t want to be advisers right.

He would rather leave him alone.

L. Brooks Patterson:

Well, he better not be arrested, I would suppose.

Thurgood Marshall:

Well that’s —

L. Brooks Patterson:

Thank you, Mr. Justice Marshall. [Laughter]

Warren E. Burger:

Mr. Mogill, you appeared by the Court’s appointment in this case and on behalf of the Court, I want to thank you for your assistance not only to your client but to the Court.

Kenneth M. Mogill:

Thank you, Mr. Chief Justice.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.