LOCATION:U.S. District Court Southern District of California
DOCKET NO.: 471
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 360 US 343 (1959)
ARGUED: Apr 28, 1959
DECIDED: Jun 22, 1959
Audio Transcription for Oral Argument – April 28, 1959 (Part 2) in Palermo v. United States
Wyllys S. Newcomb:
Mr. Justice and learned Justices.
I suggest that whether or not, as a matter of fact, the court below examined the document is something that should not be in issue here.
In our brief in the Court of Appeals, we’ve categorically stated that the Court did not examine the documents.
The appeal was argued by the Assistant United States Attorney who tried the case, and the argument in the Court of Appeals was all upon the basis that the Court did not examine the document.
And, I respectfully suggest that a simple check by the Solicitor General would suffice.
Let us, if the Court please, go back to the fundamentals.
Why are we here?
In examining Sanfilippo, I put to him this question which is the key to why we are here and, I respectfully say, it is why this Learned Court granted the petition for certiorari.
I said to him, we’re referring to Exhibit 6, “Mr. Sanfilippo, I ask you whether your memory of it was better then,” namely, on July 16th when he said, “I don’t know,” “than your memory of it when you testified here upon the trial, some 16 or 18 months later, and approximately four-and-a half or five years after you say you received this paper.”
He answered, “I feel my recollection of the circumstances is better today because we reviewed that several times.”
And petitioner does not challenge the right or even the duty of skilled investigators and prosecutors to refresh recollection of witnesses even by using repeated and suggestive interrogation, if honestly done.
The prosecution must be vigorous, determined and persistent.
Truth is not obtained from witnesses always in the first instance.
Therefore, the interest and right of the Government is that there should be vigorous investigation and prosecution.
But, as one who has been a prosecutor local, state and federal for many years, I have long been conscious as I am sure this Court is conscious of the fearsome power which the skilled investigator and the skilled prosecutor possesses if, may it please the Court, there is a record of a change and evolution of testimony on a vital point.
And it appears, as a matter of timing, that it occurred coincidental with repeated interrogation and preparation.
This is not an indictment of the Government, the prosecutor or the Investigator.
But, I say to the Court, with real sincerity, that if that is to be done, as it must be done, then the defense, when it occurs, must be given every reasonable, fair, intelligent opportunity to inquire as to whether it was done and, if so, how and when?
And I say to the Court that that right in this case was clearly denied to us.