LOCATION: Stanley's Home
DOCKET NO.: 39
DECIDED BY: Warren Court (1969)
CITATION: 395 US 208 (1969)
ARGUED: Nov 14, 1968
DECIDED: May 26, 1969
Facts of the case
Media for Perez v. California
Audio Transcription for Oral Argument - November 14, 1968 in Perez v. California
Number 39, Enrique Perez, petitioner versus California.
Peter G. Fetros:
Mr. Chief Justice and may it please the Court.
My name is Peter G. Fetros, I represent the appellant in this case, Mr. Enrique Perez.
In this case, there was a four-count indictment -- four-count complaint filed against my client concerning three different instances.
Two of -- the first two counts of the indictment at the trial, the defendant took the stand and testify upon.
On the third and fourth count which involved one incident which was separate from the first two, the defendant did not make any statement on the stand and upon being cross-examined or attempted to be cross-examined by the District Attorney, his defense attorney raised an objection which was sustained by the trial court.
Thereafter, there was no further attempt to cross-examine the defendant on a separate instant the third and fourth counts.
In addition to these three instances, which were involved in the case, there was a collateral crime which was brought into the case on the grounds that it was a similar modus operandi.
The Court allowed the collateral crime to come in but here again there was no cross-examination to the defendant when he was on the witness stand.
During closing arguments since Griffin had not been decided by this Court, the prosecutor made comment on the fact that the defendant did not testify as to counts three and four nor was he able to cross-examine him concerning counts three and four because the judge had told him that he was not able to cross-examine the defendant.
Then, the instruction was given which is the same instruction which is contained in the Griffin case and we have before us now a clear case to determine the scope of the waiver of the privilege of self-incrimination when a person takes to stand in a multi-count indictment.
Now, we have an unusual situation here in one respect that the trial court determined the District Attorney could not cross-examine on counts three and four.
The Supreme Court of the State of California said this was in error that the counts three and four formulated a common plan and design and therefore cross-examination under the California statute was permissible.
It then went on to say that due to the federal decisions which had been rendered in federal cases concerning the scope of the waiver of the privilege that the privilege extended to all that which encompass legitimate cross-examination.
And the Supreme Court of California therefore held that the man when he took the stand waived his right to self-incrimination as to counts three and four could've been examined by them and could not now complain.
And I say that this is wrong for three reasons and actually for four.
First, the crimes three and four were not specific -- were not a common plan in design by any stretch of the imagination although the Supreme Court held that in that case.
Case which came later now says that the Perez case which is the one on appeal here is to be very limited in scope when determining what is modus operandi.
The crimes which are charged involved holdups of grocery stores and taverns.
The collateral crime which was brought in was another holdup of a tavern.
The timings of the holdups were different.
There were holdups in the 7 o'clock area.
There were holdups in the 1:30 area.
The number of people involved were different.
The weapons that were used were different ranging from sort of rifles to pistols.
The descriptions of the people who supposedly committed the crimes were different.
Therefore, I say that there was not this common plan or design and a cross-examine -- what cross-examination was not permissible at state court level.
But even if there was a common plan and design in the specific case as other cases have ruled if examination for evidence is admissible for a particular purpose, its probative effect may be outweighed by the amount of prejudice which can be laid in against the defendant.
Now, on these multi-count complaints, the man is on trial for each separate crime that he has charged with.