Singer v. United States

PETITIONER:Singer
RESPONDENT:United States
LOCATION:Longshore and Warehouse Union

DOCKET NO.: 42
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 380 US 24 (1965)
ARGUED: Nov 18, 1964
DECIDED: Mar 01, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – November 18, 1964 in Singer v. United States

Earl Warren:

Number 42 Mortimer Singer, Petitioner versus United States.

Mr. Dorfman.

Sidney Dorfman:

Mr. Chief Justice, May, it please the Court.

The petitioner below was indicted for alleged mail fraud in connection with the conduct of his music publishing business.

Twice in the lower court, he attempted to waive trial by a jury.

In each instance, the government refused to exceed to a waiver of trial by a jury although the learned United States District Judge indicated that he was willing to try the case without a jury.

Parenthetically, Judge Yankwich who tried the case stated and it is in the record at page 29, that he did not believe that 23(a) of the Federal Rules of Criminal Procedure was constitutional insofar as it deprived the defendant of the right to waive trial by a jury.

Accordingly, a jury was empanelled, it tried the defendant over a two-week period, and convicted him on 29 of the 30 counts.

(Inaudible)

Sidney Dorfman:

Judge Yankwich indicated that he felt bound by Rule 23(a).

He felt that 23 (a) was an unconstitutional rule.

(Inaudible)

Sidney Dorfman:

Judge Yankwich felt, I suppose a great respect for Rule 23(a) having been promulgated by this Court in 1946, and didn’t feel disposed to overrule it himself on that level.

Where is his statement in fact in the record?

Sidney Dorfman:

At the bottom of page 29, Your Honor.

Thank you.

Sidney Dorfman:

The judge said at the court, “The government of course does not have to waive.

I have always questioned the constitutionality of that provision of the Supreme Court ruling saying that the Government must consent to waiver of jury trial.

The government is not entitled to a jury trial. The defendant did grant of a jury trial.

I always questioned it but I do not want to be the first judge in the United States to raise the point”.

We took an appeal to the United States Court of Appeals for Ninth Circuit and the United States Court of Appeals for the Ninth Circuit affirmed the conviction stating inter alia, that although the points that were raised concerning 23 (a) were not without some persuasive quality.

They were not sufficiently persuasive apparently to overrule 23 (a) on that level.

In oral argument before the Court of Appeals, Judge Barnes suggested that I bring the matter here to test the constitutionality of 23 (a) and after the judgment was affirmed, I petitioned this Honorable Court for certiorari which fortunately was granted and that is how we are here today.

The square issue before the Court is of course the validity of 23 (a) insofar as it purports to require the consent of the government before the defendant can waive a jury trial.

Stated in other way, the question is whether or not the defendant has a constitutional right to be tried by the Court and not by the jury.

Stated still another way, the question and it’s the same question is, does the United States of America have a constitutional right to a jury trial in a federal felony case.

Stated still another way and still the same question is can the government block a free and intelligent, involuntary choice on the part of the defendant and his counsel, particularly where the Court consents, can the Government block arbitrarily the defendant’s insistence upon trial by the Court and upon waiver of the jury.

Arthur J. Goldberg:

(Inaudible)

Sidney Dorfman:

I expect that I would be confronted with that question, Mr. Justice Goldberg.

And the question I’ve imagined really is, “Am I consistent in my position that neither the judge nor the government has anything to say about the defendant’s waiver of a jury trial?”

Sidney Dorfman:

And I would say that my position is this, that except in the egregious case, where a defendant obviously is not making an intelligent choice or his counsel is not paying attention to his duties as counsel and something is going so badly that it would be an error and reversible, not to step in, then the Court has nothing to say about it.

The judge has nothing more to say about that choice than he has to say about the defendant’s right to take the Fifth Amendment, than he has to say about the defendant’s right to plead guilty or not guilty, than he has to say about any of the procedural steps except in the exercise of a sound judicial discretion to protect the defendant where he obviously is not protecting himself or his counsel is not protecting him.

Byron R. White:

And if Congress passed a statute which required jury trial in all criminal cases in the federal courts, you would say that law would be unconstitutional?

Sidney Dorfman:

I would say it would be unconstitutional since Patton versus the United States.

Byron R. White:

Well, I mean your answer is yes.

Sidney Dorfman:

My answer is yes.

Yes.

Byron R. White:

Does the Constitution give the constitutional right to the defendant to choose, to plead — a right and a choice that nobody can interfere with.

Sidney Dorfman:

Definitely.

That is the position of the petitioner and I would like to develop that position —

Byron R. White:

(Inaudible), doesn’t it?

Sidney Dorfman:

It has to be, yes, Your Honor, in this.

Now, how do we come to this position?

I think we come to it on historical basis, on a logical basis, on a basis of the construction of the words of the Constitution, and on the basis of everyday, ordinary, practical common sense and the administration of criminal justice.

As far as the historical basis is concerned, I think it’s important to remember that although the history of the jury system is shrouded in mist, its origins are unknown, much of its development is still undetermined by whatever scholarship has turned its attention to this problem over centuries.

Still there are certain things that we do know about the jury system and one of the most important insofar as this case is concerned is that the jury system was a ‘Johnny come lately’ that the jury system was an outgrowth of other systems, that the jury system was not the original mode of determining matters in judicial bodies.

There were other techniques — other ways of trying cases before the jury system developed, either by Germanic counsels of the elders in the local area or by trial by battle or by trial by ordeal or by trial by compurgators, trial by witnesses, all kinds and varieties of techniques.

(Inaudible)

Sidney Dorfman:

You do have to go way back, Your Honor, but I think I can also travel that distance right up to the date of the adoption of the Constitution and trace the course of it briefly because we have that much time and also scholarship is limited.

But, there were ancient ways of trying cases upon which the jury system was engrafted, so that there were rights that were accorded to people with respect to trials that were other than jury system rights.

And when the jury system finally came into play, it existed conterminously with these other techniques.

There was a right to be tried by a jury and there was a right to be tried by battle.

As a matter of fact, it wasn’t until 1819, that the right to plead for trial by battle in England in murder and treason cases was abolished.

In the case of Ashford versus Thornton, 1 Barnwell and Alderson 405, in 1819, it was decided by the High Court of England that the defendant who pleaded the right to be tried by battle in a felony murder case had pleaded a constitutional right, the parliament immediately abolished it within a few months but it was still on the books.

And the point of this is to show the existence of alternative methods and that common law, we’re all familiar with the doctrine of forcing a plea by paying a voir dire by some form of torture when the defendant refused to plead or as is more pertinent to the case before the Court here.

When the defendant refused to specify whether he wished to be tried by means of a jury or by means of trial by battle or by means of trial by ordeal, they piled iron weights on him until he either specified or died.

The importance of that doctrine — the significance of it, however, is that the choice was the defendant’s.

It wasn’t the kings, it wasn’t the crown — the crown couldn’t say to him, “I will tell you what your plea is going to be”.

The medieval mind required him to choose whether he wanted to be tried by ordeal or by a jury or by some other technique or method.

In Colonial days, and the lesson of the Colonial days, is of course taught to us by the brief of the government in United States versus Patton, Mr. Erwin N. Griswold, who is now Dean of the Harvard Law School was a counsel for the government in United States versus Patton and he wrote much of the brief dealing with the history of the jury system and the right to waive jury trials during the Colonial days.

Sidney Dorfman:

In 20 Virginia Law Review in 1934, four years after the Patton case was decided, he elaborated on his brief in United States versus Patton and he took the position in the Patton case, which the government of course, urged very strongly, that there was a right to waive a trial by jury at the time of the adoption of the Constitution.

There weren’t a great many cases in Colonial days but Mr. Griswold explains that on the basis of the paucity of the record, there weren’t enough reported cases to give a clear picture of how prevalent the doctrine of the waiver of trial by jury really was.

But, it was his opinion and it was the government’s argument to this Court in Patton versus the United States that the reason that Article III Section 2 Clause 3 of the United States Constitution does not mean what it says when it says that all trial shall be it by jury, is that at the time that Constitution was adopted, it was well known that there were alternative methods of trial and that the doctrine set forth in Article III Section 2 Clause 3 and in the Sixth Amendment of trial by jury was an optional doctrine, optional with the defendant.

Mr. Griswold and the brief for the government in Patton versus the United States cites the Pennsylvania case, in the year 1685, Proprietor versus Wilkins, it’s in the Pennypacker’s Colonial Cases at page 88, it’s also cited in the report of Patton versus U.S. And that was a case in which the defendant was accused of a felony and he came before the Pennsylvania Court and he said that he wanted to be tried without a jury and that counsel for the government said, “This cannot be, you must have a jury trial” and the Court overruled him and held that it was permissible to waive trial by jury and jury was waived and he was convicted.

But the point is established according to the government brief in Patton versus the United States that there was a right to waive trial by jury, so that if you review the history of this thing, you find that the jury system was an outgrowth of other modes of trial which have existed right past the acceptance or the adoption of the Constitution.

You find that the choice was the choice of the defendant.

You find that at the time of the adoption of the Constitution, it was recognized in the cases that you could have an alternative method and if you then turn your attention to the Ninth Amendment of the United States Constitution, you’ll find that the enumeration certain rights such as the right to a jury trial shall not derogate or diminish or lessen the other rights of the citizens that are not enumerated in the Constitution and I submit to this Court that one of the rights that the citizens have at the time of the adoption of the Constitution was the right to waive a jury, the right to be tried by the Court alone.

Now, we turn to the alternative problem.

What right does the government have to insist upon a trial by jury?

If you look at this thing historically, the battle has not yet been fought in which the government won the right to interpose between the crown and the crown’s prosecutor and the crown’s judge, a jury of 12 good men in troop.

There never was a situation in political history in which a king or a group of kings felt themselves threaten to such an extent by the powerful defendants who were indicted in criminal cases, that they need — that the king needed a jury to protect the justice of the state.

There never was such a trend in political history.

It was always exactly the opposite.

It was always the situation in which the weak defendant terrified that the power of the crown fought for and won the right to the interposition of the jury against the power of the state.

Secondly, there isn’t a word in the Constitution of the United States that grants or hints at or intimates that the government has a right to a trial by jury, not —

Arthur J. Goldberg:

(Inaudible)

Sidney Dorfman:

Article III Section 2, you mean before Patton versus United States, Your Honor, or after?

Arthur J. Goldberg:

(Inaudible)

Sidney Dorfman:

Well, the Constitutional language says that all trials shall be by jury.

But, Patton versus the United States says that this means unless it’s waived.

As soon as the government pressed for an affirmance of the conviction in Patton versus the United States, it opened the door to this question, if Patton versus the United States had not been decided, we would not be here today because there would only be trial by jury in felony cases.

Arthur J. Goldberg:

(Inaudible)

Sidney Dorfman:

Yes, the Sixth is —

Arthur J. Goldberg:

(Inaudible)

Sidney Dorfman:

Well, and that was the Court did in Patton versus United States.

You’re quite right, Your Honor.

It reconciled Article III in favor of the language of the Sixth Amendment making it an optional right to be enjoyed by the defendant.

Byron R. White:

I would think that it would still be here today whether the fact had been decided or not.

You say a fact hadn’t been decided, there would only be one mode of trial, the jury trial.

Sidney Dorfman:

That’s right.

Byron R. White:

But your point is that it would be unconstitutional to provide only one mode of trial.

Sidney Dorfman:

Well, we wouldn’t be here on 23 (a), we would probably be here on —

Byron R. White:

Well, you would be here though saying, “I don’t need to be tried by jury if I don’t want to”.

Sidney Dorfman:

Probably, it would be urging that it should be modified.

But one of the discrepancies of course — one —

Hugo L. Black:

(Inaudible)

Sidney Dorfman:

I beg your pardon.

Hugo L. Black:

How did the argument — what should be modified?

Sidney Dorfman:

Probably that the Article — the language, the positive, unconditional language of Article III Section 2 Clause 3 which says that all trials, all crimes shall be tried by jury is too strong, that there is a method of waiver because as Mr. Justice Goldberg points out the Sixth Amendment does couch that same protection in terms of an enjoinment of a right by the defendant.

And I think that there is no question that it should be modified in terms of waivability.

Hugo L. Black:

You mean changed?

Sidney Dorfman:

Changed, well —

Hugo L. Black:

There’s a waiver provided for that.

Sidney Dorfman:

By constitutional amendment?

Hugo L. Black:

Yes.

Sidney Dorfman:

Of course, Patton versus the United States gave us an easier way.

Patton versus the United States said that the Article III Section 2 is and was intended to be modified in the light of the Sixth Amendment.

To me, that the right to a jury trial.

Hugo L. Black:

Now, you’re saying that it’s modified by the Sixth Amendment.

Sidney Dorfman:

Yes.

Hugo L. Black:

That’s a different argument saying that we ought to modify it.

Sidney Dorfman:

Well, I’m not suggesting that the Court has done anything except interpret the Constitution correctly.

What Constitution provision do you ultimately rest on?

Sidney Dorfman:

Fifth Amendment.

Earl Warren:

The due process clause?

Sidney Dorfman:

Due process clause, the Fifth Amendment, the Ninth Amendment, the Tenth Amendment, the Sixth Amendment — those groups, that group of amendments.

William J. Brennan, Jr.:

(Inaudible)

Sidney Dorfman:

I beg your pardon, Your Honor, I’m caught in the crossfire.

William J. Brennan, Jr.:

How do you bring the Ninth Amendment here?

Sidney Dorfman:

I bring in the Ninth Amendment this way.

Sidney Dorfman:

The Ninth Amendment —

William J. Brennan, Jr.:

This is a federal case?

Sidney Dorfman:

Yes, yes.

But, the Ninth Amendment does say that the enumeration of certain rights in the constitution shall not be deemed to disparage or diminish other rights which are reserved to the people.

I take the position of the right to trial by the Court was a right of the people at the time of the adoption of the Constitution and the fact that you have the right to trial by jury expressed and gives way to the Latin maxim of expressio unius inclusio alterius, except for the Ninth Amendment.

The Ninth Amendment preserves the other rights.

Hugo L. Black:

How do you think due process authorizes you this?

Sidney Dorfman:

I think that if the people —

Hugo L. Black:

To make the change, to make the change.

Sidney Dorfman:

How would the due process clause authorize —

Hugo L. Black:

How would that authorize it?

Sidney Dorfman:

Well, I think that if part of our system of trial, the time of the adoption of the Constitution and thereafter was to include a right on the part of the defendant to choose whether to be tried by a jury or by the Court alone.

To take that choice away from him is more than to take away a procedural right from him, is to take away a substantive right from him.

And when you take away a substantive right from a citizen, you violate the due process clause, and that’s why I think that 23 (a) —

Hugo L. Black:

That goes on the theory I suppose, they have to admit that constitution makers didn’t have a right to say, “He had to be tried exclusively by a jury.”

Sidney Dorfman:

I feel that they did — well, the Constitution makers of course probably had a right to do anything they like, when you make a constitution, I imagine you act de novo.

Hugo L. Black:

But the due process clause as I understand it, you would authorize us somehow to change what they had done on the grounds that we didn’t think it fitted due process.

Sidney Dorfman:

No, Your Honor.

I think that the Constitution properly interpreted and as this Court has interpreted it in Patton versus the United States and in Adams versus the United States ex rel, McCann in a opinion written by Mr. Justice Frankfurter in which he also permitted — or the Court permitted Mr. Justice Frankfurter writing the opinion, permitted a defendant to waive a jury trial without the assistance of counsel indicates that the Constitution does permit waiver.

Hugo L. Black:

You try to make activist out of us, aren’t you, saying, we can change the Constitution by referring to the due process clause.

Sidney Dorfman:

The last thing in the world that I would ever attempt to do would be to make an activist or a passivist out of any member of this Court, Your Honor.

All that I am trying to do is to help in whatever little way I can to guide the Court along the lines which it itself laid down in the Patton case at the behest of the government who was there seeking the conviction and got it, and to direct the attention of the Court to the somewhat anomalous position of the government here today when they sound in their brief as though they were writing a brief for the defendant in the Patton case, extolling the virtues of the jury trial now because they can gain a conviction by doing so.

Potter Stewart:

(Inaudible)

Sidney Dorfman:

The argument on the Ninth Amendment, yes Your Honor.

The Amendment Nine as I read it, and I think I read it correctly, provides that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

It is my position, based upon the research done by the government in Patton versus the United States that at a time of the adoption of the Constitution, people had alternative rights with respect to trial in felony cases, one right was to be tried by a jury, one right was to be tried by the Court.

When the Constitution pinpointed the right to be tried by a jury, they did not thereby, imply that you have lost your constitutional right to be tried by the Court.

The purpose of the Ninth Amendment is to preserve to the people their rights despite the failure of the Constitution to specify any particular right.

If the right existed at the time of the adoption of the Constitution, the failure of the Constitution to mention it does not abrogate that right.

William J. Brennan, Jr.:

(Inaudible)

Sidney Dorfman:

I would think it’s a restraint on the states as well.

I would think so, because the rights of the people pass beyond the state lines.

Earl Warren:

Does your argument mean that all the common law rights that people have had at the time the Constitution was adopted, remained in effect even though the Constitution might interpret them?

Sidney Dorfman:

No, Your Honor.

If the Constitution positively, clearly either by its own terms or as interpreted by this Honorable Court have removed from the people certain of their constitutional rights — certain of their common law rights, the Constitution controls and those rights are gone.

But where the Constitution does not do so, a right that the people had at the time of the adoption of the constitution, remains.

Earl Warren:

We’ll recess now.

Mr. Dorfman, you may continue your argument.

Sidney Dorfman:

Thank you, Your Honor.

I would like to address the Court briefly on the question of the practical considerations that are involved in this issue of the government’s vetoing the defendant’s right to a jury trial.

The jury system is commonly described as a shield for the protection of the defendants.

And I think that it’s a truism to remark that many people fight better without shields in certain kinds of cases and it is unthinkable for the adversary to be able to prescribe the particular armament that a combatant is to wear in a particular controversy.

There are cases as Mr. Justice Frankfurter pointed out in Adams versus the United States ex rel. McCann in which it is better for the defendant to be able to waive a jury.

There are cases such as issues involving great political problems such as accusations of communism, accusations of treason.

There are problems that face the country and the Courts today in the south, where a defendant be he from the north or from the south may well feel that the choice of being tried by a jury or by a judge alone is vital to the kind of defense that he can make out for the government to be able to say that we shall have the right to veto your choice.

Under 23 (a), we have that right, to veto your choice, to me seems to be unthinkable.

It seems that the arguments in the government’s or the Solicitor General’s brief to the effect that it is sometimes important for the government to be able to choose a jury because of some difficulties it may be having or fancies it may have with the particular judge is an unthinkable kind of an argument for the government to urge.

When the government speaks, when the government investigates, indicts, and prosecutes one of its citizens, it should speak like Joe from Olympus.

It should speak with a voice that can be heard by a judge, a federal judge as well as by a jury for the government to say that there are cases when we need an edge, when we have to be able to choose as to whether or not there’s going to be a judge or a jury seems unconscionable because the tremendous weight that the government already has, the tremendous edge that it already possesses is more than enough.

The investigative powers of the FBI, the batteries of lawyers, the almost unlimited funds with which to investigate and prosecute criminal cases.

When you balance this tremendous and awesome power of the greatest country in the world, focused upon one of its citizens to give — for the government to say that it needs an edge is absolutely unthinkable.

Potter Stewart:

I don’t think — the argument is that it needs a fair trial just as you do.

Sidney Dorfman:

The government —

Potter Stewart:

And not that it needs an edge —

Sidney Dorfman:

Well —

Potter Stewart:

I mean you’re asking for an edge.

Sidney Dorfman:

The Solicitor General’s brief does indicate that there are cases where it would like to have a jury rather than a judge.

Potter Stewart:

Well, this is not an ideal world and there are judges who are — who don’t behave like Joe.

There are trial judges who have the reputation of having preconceptions about a certain type of a person or a certain type of crime.

Some judges are notoriously lenient on tax evaders, criminal tax evaders, for example.

Potter Stewart:

We all know that, that’ a fact of life.

Sidney Dorfman:

Yes.

Potter Stewart:

Others are very — are notoriously tough on certain kinds of criminals or —

Sidney Dorfman:

But the argument that the defendants make in response to that observation and it is an accurate observation, but the argument that the defendant make is this, there is no question that when the defendant says he wants a jury trial, when he exercises his constitutional right to have a jury trial, Your Honor’s argument — in the mouth of the government has no effect.

When the government would like to have trial by a judge and not by a jury, when the defendant says, “I want trial by a jury”, there’s nothing that the government can do about it.

Now, why?

Potter Stewart:

Because that’s explicitly in the Constitution, that’s why.

Sidney Dorfman:

In the Constitution, right.

And I urge the Court that there should be no difference when the defendant says, “I want a trial by the Court alone”, with respect to what the government has to say about it, then there is with respect to the situation when the defendant says, “I want trial by the jury”.

Of course it a real world in which we live and there are certainly a number of cases but not a great many because in the vast majority of the cases Your Honor, in the great majority of the cases, the government is very to happy to waive a jury.

In the great majority of the cases, it wants trial by the judge because the government recognizes that the jury is the last bulwark, the one instrument to which the defendant can appeal to free him, irrespective of the law or the facts.

So that this problem arises insofar as protection for the government is concerned only in a very few cases, I see that my time is running out, if there were any time —

Byron R. White:

Your argument seems to me to leave open the possibilities of the middle grounds that’s in the case, that’s the — perhaps Congress could or some authority could require a jury trial in every case, constitutionally.

But that if it isn’t going to require a jury trial in every case, the choice must be left up to the defendant rather than to the prosecutor or the judge.

Sidney Dorfman:

I will certainly accept the latter part of that proposition Your Honor.

I’m not sure about the first part of that, in the light of the present situation since Patton versus the United States.

But —

Hugo L. Black:

You’ve referred to Patton a number of times, what was the holding in Patton?

Sidney Dorfman:

Here was the holding in Patton, in Patton the defendant was indicted for a violation of a federal statute, after trial had started, one of the jurors became ill and the Court asked counsel for the government and counsel for the defendant whether they wish to proceed with 11 jurors or have a mistrial.

Everybody agreed, counsel for the defendant, counsel for the government and the Court agreed to proceed with the jury of 11, the jury of 11 convicted.

Hugo L. Black:

That’s all that was held.

Sidney Dorfman:

That’s all that was held in Patton versus the United States, and it was held that — what was held of course was that the trial by jury of 11 which the opinion in Patton said was the equivalent of a non-jury trial, because it didn’t have 12 jurors.

Hugo L. Black:

But it clearly is not, quite a difference in saying you’ll be waiving the rights of 11 jurors and waiving the rights of jurors at all.

Sidney Dorfman:

There is of course a difference, no question about it, the difference is 11 fold.

But the Court impact and the Solicitor General’s brief also took the position took the position that the decision in Patton stands for the proposition that a jury trial can be waived in a federal felony case.

Byron R. White:

But they also — the Court also said in that case, in the end of it that of course the Government and the judge must dissent if it’s going to be waived.

Sidney Dorfman:

That’s what it said on the next to the last stage of the opinion and there was —

Byron R. White:

Yes, and this was a certified question case, Patton was.

Sidney Dorfman:

That’s right, Your Honor.

Byron R. White:

And part of the facts stated in the certificate of the question, had in it the proposition that the government consented.

Sidney Dorfman:

That is correct, but that last —

Byron R. White:

Well, whenever you want to talk about what the holding of the case was, it’s pretty hard to say the last one paragraph is a dictum.

Sidney Dorfman:

Well, if you’ll look at page 298 of the same opinion, you will find language which is exactly to the contrary, because on page 298 of the same opinion, the Court says explicitly.

Byron R. White:

Well, it says — it says that — it says that the defendant may waive and there needn’t be a jury trial as long as the government and the prosecution consent.

Sidney Dorfman:

Not on page 298, on page 298 the Court says that the right to a jury trial is a prerogative of the defendant which he may forgo at his election, and not a word is said about the consent of the government until you get to the very end of the opinion, when suddenly as an afterthought without citation of any authority, without any reasoning, without any basis in precedent, law, logic or practicality, the dictum appears in the opinion and its plaguing us to this very day.

Thank you Your Honor.

Earl Warren:

Miss Rosenberg.

Miss Beatrice Rosenberg:

May it please the Court.

The question before the Court in this case is the constitutional validity of Rule 23 (a), not it’s wisdom is a matter of policy, not the question of whether it should be changed for the future.

This rule was adopted by the Court and accepted by Congress over the suggestion of some people that the order provide for a waiver of a jury trial merely on the face that was extended.

And it was adopted in its present form which says that trial shall be by jury unless jury is waived by the defendant with the approval of a Court and the consent of the government.

So that it’s not what’s a good policy or what’s a bad, but what is constitutionally required.

In our view, the constitutional question is not the one which defendant has argued.

His claim is that he has a constitutional right to a trial by the Court because this Court decided in Patton that it was possible to have a valid tribunal, if a Constitution — if a constitutional right to trial by jury was waived.

That was the issue in Patton phrased in terms of — on the factual facts of 11 jurors, but the Court treated it more broadly.

The question was whether a jury was part of the structure of the Court, so that no waiver was valid.

And the fact that the Court decided that a District Court was a valid Court when in fact without the jury, doesn’t mean that the Court recognized a constitutional right to waive a jury.

What the Court said was that jury trial was primarily, primarily for the benefit of the defendant, and therefore he could waive it, and if all parties and the Court agreed, there was a validly set up court which could try the case.

But the fact that somebody has the right which he may waive, doesn’t give him a constitutional right to insist on the opposite.

For instance, a defendant has the right to a public trial, a right which may be waived.

This doesn’t mean that he can insist on a private trial whenever he wants it so then nobody will ever hear about his crime.

A defendant has the right to be confronted with the witnesses —

Potter Stewart:

Is that, have you gotten authority for that?

Miss Beatrice Rosenberg:

Yes it’s in our brief Your Honor, page 23.

All these illustrations, I’m giving are cited there with the cases that support them and I think some of them are fairly self evident without case citation.

Potter Stewart:

Now one citation here is of a dissenting opinion, I notice on page 12.

Miss Beatrice Rosenberg:

Well, the Colby case.

Then, we have a situation which we also refer to, which there is no citation but I think hardly needs citation.

A defendant has the right to waive confrontation of witnesses against him.

I don’t think it would be seriously contended that this meant that he had a right to insist that the government proceed by stipulation before a jury and never call a live witness.

Miss Beatrice Rosenberg:

A defendant has the right to a speedy trial, a right which he sometimes can waive.

I don’t think this gives him the right to insist that the trial be put off for ten years.

A defendant has the right to waive venue in the district of crime, this doesn’t mean that he can insist that the trial be held in whatever district happens to suit his convenience.

Defendant has the right to waive prosecution by indictment.

This doesn’t mean that he can insist that the government go ahead by information.

I think one can go to practically every one of the guarantees of the Sixth Amendment which are for the benefit of the defendant and show that the right to waive that under certain circumstances is not a right to insist on the opposite.

Moreover I point out that the right to regulate the conditions under which a defendant may waive the benefit of one of the constitutional guarantees has always been deemed subject to regulation by Congress or the Court through rule making or decision.

For example, many states and in effect the federal government provide that a jury trial cannot be waived in the death case, because under almost all federal capital crimes, the death penalty can be assessed only by the jury, if there were a constitutional right to waive the jury trial, of course, those would be invalid.

Even in lesser degrees, the rules do regulate the right to waive constitutional right.

For instance, Rule 7 of the present rules provides that prosecution must be indictment, must be by indictment in the death case and this Court quite recently in the Smith case gave out what the government regarded as a rather expansive reading.

Rule 20 provides that a prosecution may waive — that a defendant may waive the right to be tried in the district where the crime is committed and plead guilty in the district where he is arrested.

But the rule provides that, that must have the consent of the government, and as far as I know that’s never been questioned as a proper method of regulation.

And that these illustrations, it seems to me answer the suggestion which has been made in the brief of (Inaudible), that its beyond the rule making power of this Court to set forth the conditions for a waiver.

I think these rules show that conditions for a waiver had been deemed part of the rule making power.

Potter Stewart:

If a defendant waives the whole works of the Bill of Rights, and says, “I plead guilty”, can’t he insist then that there be no trial at all, does the government then have a right to put on witnesses and all these things?

Miss Beatrice Rosenberg:

The rules provide that the Court —

Potter Stewart:

He says, “I plead guilty”.

Then can the government insist on having a trial?

Miss Beatrice Rosenberg:

No, the rules don’t so provide Your Honor.

I think the Court — I think Congress and the Court could say if it deemed such a policy valid.

In a case of treason or a case of death penalty in particular, we think the matter should be aired and that we will not accept a plea of guilty.

I think the government would have — that the Congress and the Court would have that power.

I don’t think it would be bound to accept a plea of guilty and of course a judge may on some circumstances where he finds that the plea, that he —

Potter Stewart:

That was not —

Miss Beatrice Rosenberg:

That he doesn’t think it would be in the interest of justice.

Potter Stewart:

Not knowingly and intelligently made.

I’m not —

Miss Beatrice Rosenberg:

I’m not talking about knowingly intelligently.

If he thinks that the — he has some, say so a judge does, I don’t think that the government has ever been recognized to have that kind of a right.

The judge has some say so as to whether a man should plead guilty and particularly in death cases, I don’t think there’d be any serious problem of the right of Congress, if itself is of course desirable, to insist that the matter of criminality be aired and be subjected to decision by a jury and not by a judge, and there were great many states as a matter of fact in which death cases, if they’re tried at all, must be by jury and to the extent, if the Government wants to insist on a death penalty in the federal cases where only a jury can assess a death penalty, the defendant doesn’t have a right to plead guilty, because only the jury —

Potter Stewart:

Now, that’s true under for example the so called Lindbergh Act, where bodily harm has been inflicted on the victim, allegedly —

Miss Beatrice Rosenberg:

Only the jury can assess —

Potter Stewart:

And is the effect of that, that the defendant cannot plead guilty?

Miss Beatrice Rosenberg:

That’s right.

Potter Stewart:

Is it?

Miss Beatrice Rosenberg:

I think so, I don’t think its ever been determined, because I don’t think the government has ever where its taken a plea of guilty decided that it wanted to ask for the death penalty.

But the penalty can be only by a jury and there was no provision in the federal system for a jury to assess only damages.

They are in some states, but not in the federal system, so that I think it would inevitably follow.

Now, this isn’t done, as I say it’s a matter of practice, but I think that it must follow, that if a government wants to insist on a death penalty, a plea of guilty cannot be accepted.

Hugo L. Black:

Are any of the states though that violate the state Constitution to accept the plea of guilty in a murder case, and the jury fixes the verdict, a penalty?

Miss Beatrice Rosenberg:

Well, there are number of states, Your Honor, which do not permit the waiver of a jury trial at all.

There are other states, and it includes New York, about which there’s a great deal of talk in some of the briefs in which jury trial may be waived except in capital cases.

There were number of those.

Potter Stewart:

Well, Justice Black asked you about pleading guilty in other states.

Miss Beatrice Rosenberg:

Yes.

Well, there are some cases that — there are some states that provide that — where a man pleads guilty, they must still be.

Hugo L. Black:

But what they provide is, I think, at least it’s the way it was in my state and I’ve tried a number of them, where you plead guilty in a capital case, you must have the jury produce enough facts so that the jury can determine the facts of the case.

Miss Beatrice Rosenberg:

Yes, that’s so in Colorado and it is true in Washington.

Hugo L. Black:

The jury is not even bound to by certain powers to accept the recommendation of the prosecutor as to life instead of death and still live up to the jury.

You have to do it even though he pleads guilty.

Miss Beatrice Rosenberg:

That’s right, that’s true in Washington.

Hugo L. Black:

That’s the practice, but you do accept — they do accept the plea of guilty under the practice I’m talking about.

Miss Beatrice Rosenberg:

Yes.

Hugo L. Black:

I was wondering if there are any states that have held that you cannot waive — you cannot plead guilty and thereby in the trial, to say that, that ends the case, that, that violates the Constitution.

William J. Brennan, Jr.:

New Jersey is one of those who have capital indictment.

They’re not permitted to plead guilty to a capital indictment for this.

You might plead to a lesser offense, but not to the capital indictment.

Miss Beatrice Rosenberg:

Well, I think that the — I didn’t go into that aspect but there are a number states — capital cases aren’t treated separately in many states.

And there aren’t many, I think which are the equivalent of federal system, where in effect you can plead guilty if the capital offense is asked for — if the capital punishment is asked for, because only the jury can assess punishment.

Well, if we are correct about that and there is no absolute right to insist on a trial by the Court, as incidentally this Court said with respect to civil cases, very recently in Beacon Theatres case, said you have a Constitutional right to trial by a jury but no Constitutional right to a trial by the Court.

Miss Beatrice Rosenberg:

Then, the Constitutional question in this case comes down to the question —

Potter Stewart:

Nobody was trying to waive any of the jury in the Beacon case.

Miss Beatrice Rosenberg:

Oh, which is the statement, but it was an indication of the fact that the right to waive doesn’t stem from the Constitution.

If there is no constitutional right to waive, then the question comes down to the reasonableness of the requirement of the rule that a waiver of a jury trial must be with the consent of the government and the approval of the Court.

And I point out again, because the question is power and not policy.

There may be, I presume there are, considerations both ways as to whether the government should have a right to insist on a jury trial where a defendant wants to waive it.

But so long as there are reasonable considerations which support the policy which was deliberately adapted in the present rule, it seems to me the validity of the rule must be upheld and the change if it comes, to come in the revision of the rule.

Now it seems to me there are two quite fundamental concepts of our government which support the constitutional validity of the present rule and one is the importance which our system attaches to jury trial particularly in criminal cases.

I take it is the fundamental philosophy that underlies that — that 12 men or really 13, because after all the judge is never out of the picture in a jury case, are better able to determine guilt than one.

And that on some issues particularly issues of morality and intent that judgment of laymen may sometimes be better than the judgment of a legally trained mind.

There’s also another consideration which I think is not given enough weight in a lot of literature on the subject.

If you go through our whole system of government, it reflects the philosophy that unchecked power in one branch of the government or in one person is not a good thing.

And one of the very few examples really in our judicial system of the un-reviewable power of one man is a power which a judge has in a criminal case and which was recently reaffirmed by this Court in the (Inaudible) case, now that power becomes even greater when the judge is not only the presiding judge at the criminal trial, but is the finder of fact as well.

And it is some check, it isn’t much of a check but it is some check, for the government to be able to say, “Now, we think this is the kind of case where we have a right, we who must do justice have a right to insist on the constitutionally preferred method, one that our system accepts as the best method for finding facts, and that is a trial by jury”, at least the Congress and this Court in the rule (Inaudible) could think so.

If —

(Inaudible)

Miss Beatrice Rosenberg:

Well, if you assume a properly constituted jury which conforms the rules of this Court where there is no reason for a change of venue which is another remedy that’s open, I find it hard.

But I also frankly find it hard to conceive of circumstances in an abstract.

And therefore, all I can say is this certainly isn’t this kind of a case, the case that we were dealing with.

We are dealing with the kind of an accusation in a setting in which peculiarly, I think the judgment of laymen of a cross-section of the community is better than the judgment of a legally trained mind.

Arthur J. Goldberg:

(Inaudible)

Miss Beatrice Rosenberg:

Well, the government is arguing more broadly because the rule is broader.

All I can say about that kind of a case and I can’t commit the government to what may come up that at least, if a rule is going to be held invalid, it must be on some such personalized special basis, that is that the rule is run broadly and we have the right to assume that the rule is valid on the broad considerations, I have been talking about.

If in a particular case, when it comes, there is something peculiar about the circumstances as to that case that makes the rule invalid as so applied, we can deal with that when it comes — all I can say is that with the case with which I am dealing, there is absolutely nothing which would support that kind of view, because the charge here which is essentially a charge on the simple mind, is a question of playing on the hopes of amateur song writers that, “Oh, if somebody will just hear this song, they’ll have a great big hit”, and that sort of things and it’s very cleverly worded.

If you look at it carefully as a contract, nobody promises anything, we have the record available for motion picture rights.

Now the judge says, “That means exactly what it says, “It’s available”.

A jury looking at that whole picture is better able to judge the effect of this whole lure what (Inaudible) called the glittering promise.

This is a kind of case in which juries have to be a better judge than a judge.

I don’t mean to imply we didn’t have — that the judge would have been unfair, I am merely saying this is a kind of case, this kind of simple fraud, not complicated, simple, where a jury is assumption of our system and I think a valid one, that a cross section of the community is better able to determine intent to defraud and the ability to do fraud than is the legally trained mind.

But I’ve repeated again that this isn’t a good policy.

Miss Beatrice Rosenberg:

It can be changed.

The fact is that it was deliberately adopted by this Court and it seems to me it cannot be held unconstitutional, unless it could be shown that it has no basis in reason at all and it seems to me it clearly does have a basis in reason.

I point out also that Congress has historically recognized that the government is a party to a criminal action, that it has some of the rights of a party, and that the government as a party to a criminal action has an interest in the triar of fact.

Since 1855, Congress has given the government the right of peremptory challenge, the same as the right of a defendant, peremptory challenge a juror.

I presume on the basis that the government ought to have the same righteous dissent to see that the case was fairly tried.

And interestingly enough, the number of government challenges has gone up over the years.

Well, I think Congress and the Court has the constitutional power to say that the government has an interest in seeing that the jury as a whole is not in effect peremptorily challenged by eliminating the jury entirely.

And so it seems to me that considering the place that a jury trial occupies in our jurisprudence, and considering the fact that the government does have an interest that its case be fairly tried, it cannot be said that this Court was without power to decide, that if a constitutionally established method of trial of a criminal case is to be waived, the waiver must be consent of the government as well as the approval of the Court.

What is the practice of the government as a general rule?

Do they consent or they –?

Miss Beatrice Rosenberg:

Well, particularly, lately with the pressure on to dispose of criminal case, it’s very unusual as a matter of fact not to consent — I couldn’t get any figure.

But, the figures do show that about one-third of the cases now are tried without a jury and I think as near as I could find out that the only cases in which the government has not consented are the ones that are before this Court now, either as the — on briefs amicus or on here.

Potter Stewart:

Well Miss Rosenberg this, to my own knowledge, is to arise a decade or so ago in the Smith Act prosecution.

Miss Beatrice Rosenberg:

Yes, the government as —

Potter Stewart:

Question, and the government insisted on a jury trial —

Miss Beatrice Rosenberg:

The government —

Potter Stewart:

And the defendant insisted that he couldn’t get a fair trial from the jury —

Miss Beatrice Rosenberg:

That’s right, Your Honor.

In Smith Act cases, the government established as a matter of power that they would not waive into that case.

To my knowledge it is no longer that type of thing now where there is across the board refusal to waive in any one type of case.

I don’t know of any such policy, now that was ten years ago and it was done without regard to the personality of the judge, it was a policy that this type of case ought to be heard by the jury.

And I suppose now it can’t be denied that the chances are, that there will be an objection only when the Government feels that the judge has a bias against the prosecution, either because of the nature of the case, or because of the particular personality of the judge.

Hugo L. Black:

Was that directly followed?

Miss Beatrice Rosenberg:

You mean about the 11 jurors?

Hugo L. Black:

Yes.

Miss Beatrice Rosenberg:

Yes, Your Honor.

And as a matter of fact, there’s a case coming up now in question about —

Hugo L. Black:

Ever been directly followed in this Court?

I know that there were two cases and this Court declined to reach it, but has it —

Miss Beatrice Rosenberg:

Oh I don’t think the issue has ever come — has not —

Hugo L. Black:

But if they tried to present it in two cases.

In one case, two times, and this Court declined to reach it, but has it ever been followed directly by this Court?

Miss Beatrice Rosenberg:

Ah —

Hugo L. Black:

The case I’m referring to is the Riddle versus Dyche, D Y C H E.

Miss Beatrice Rosenberg:

Well, I meant —

Hugo L. Black:

255 U.S. 450

Miss Beatrice Rosenberg:

That was before Patton, Patton was in 281.

Hugo L. Black:

Yes, this was different — 255.

Miss Beatrice Rosenberg:

Well, that was before Patton.

Patton was in 281 United States.

I don’t — the only time that this Court has dealt with the Patton case directly is in Adams ex rel, McCann.

Hugo L. Black:

Well, that wasn’t the point.

Miss Beatrice Rosenberg:

No that wasn’t the point.

Hugo L. Black:

It was mentioned and the dissenters declined to say whether they would follow the —

Miss Beatrice Rosenberg:

Yes.

Hugo L. Black:

Patton case or not.

Miss Beatrice Rosenberg:

That’s right, I don’t think — now of course the Court has —

Hugo L. Black:

Except one decided, If I’m mistaken here — one dissenter said he wouldn’t allow the waiver.

Miss Beatrice Rosenberg:

Yes, Justice Murphy said he wouldn’t allow.

I don’t think it has come up in that sense, the Court has never been asked to decide the validity of trial of the waiver of a jury trial again.

It has been assumed there have been — I’m trying to think whether any other cases that came before this Court involved in fact a waiver of a jury trial.

I don’t think it’s been challenged the right to waive, that is neither defendants nor the government has —

Hugo L. Black:

Not here?

Miss Beatrice Rosenberg:

Have accepted Patton as setting forth the rule that you can have a competent tribunal on the waiver of a jury trial, so that in that sense it hasn’t been challenged either by defendants or the government.

Arthur J. Goldberg:

(Inaudible)

Miss Beatrice Rosenberg:

Yes.

Arthur J. Goldberg:

(Inaudible)

Miss Beatrice Rosenberg:

Well, as I understand that case if you — I don’t think we have the record here.

The government said they wouldn’t consent and then the motion was renewed at the trial.

And it is my understanding that this represents primarily the decision of the judge.

Miss Beatrice Rosenberg:

The judge then said, “I will disallow your motion”.

Now, I must say that the government in stating his motion, the defendant did say that the government had withheld consent.

But the Court said in the record, I will deny your motion, we have here issues of intent and — oh something else, which I think should be tried by the jury, so that there was at the very least participation by the Court in that determination.

William J. Brennan, Jr.:

(Inaudible) based on this Court’s Ninth Amendment argument.

Miss Beatrice Rosenberg:

Well, it dwells from I think the argument I made that when the Constitution granted a right to a jury trial, it didn’t grant the right to a trial by the Court, so that there was no reserved right to a trial by the Court.

And may I say that those historical materials which —

William J. Brennan, Jr.:

Well, that’s what as I understood Mr. Dorfman’s argument is predicated, that there was a right at the time of the adoption of the Constitution and the defendant can choose whether an election on —

Miss Beatrice Rosenberg:

I think you will find if we read Dean Griswold’s article which was part of the government’s brief in Patton and incidentally as he says in this argument, the Court didn’t bother to reach, decided it on other grounds in Patton, that all it really amounts to is a statement that there is — there is historical basis for the conclusion in Patton that it was — you had a competent tribunal.

For example, some of the cases, a waiver of a jury trial come from Massachusetts, Massachusetts had a 1621 statute which said that there was a right to waive a jury trial, and the other — so that the most that can be said about this material is that it furnishes some historical support where the Patton decision to be have said, that where there has been a waiver of a jury trial, there is a competent tribunal, it doesn’t establish a right.

William J. Brennan, Jr.:

Personal right of the defendant.

Miss Beatrice Rosenberg:

Yes.

Hugo L. Black:

Well, do you concede then that in there the rule and all the colonies in England at the time, the Constitution was adopted that the defendant could waive the right to trial by jury?

Miss Beatrice Rosenberg:

No, all I said was at the most it does is furnish some historical support and one will find that the greatest historical support which is in Massachusetts came from a statute so that there was in Massachusetts a — what’s called a Statute of Liberties which did incorporate a right to waive a trial.

Hugo L. Black:

It’s a right they had in Massachusetts under the Massachusetts law.

Miss Beatrice Rosenberg:

That’s right.