LOCATION: Superior Court of San Bernardino County
DOCKET NO.: 158
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State appellate court
CITATION: 390 US 129 (1968)
ARGUED: Dec 07, 1967
DECIDED: Jan 29, 1968
Facts of the case
Media for Smith v. Illinois
Audio Transcription for Oral Argument - December 07, 1967 in Smith v. Illinois
Number 158, Fleming Smith, Petitioner, versus Illinois.
Mr. Getty, I think you may proceed now.
Gerald W. Getty:
Mr. Chief Justice, may it please the Court.
This is the case of Fleming Smith that originated in Illinois and has taken on appeal from the Illinois Appellate Court.
The question involved here is the constitutional provision namely the Sixth Amendment and that part which states in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.
We are also concerned about the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment.
The question as we see it presented for review is, should the informer's privilege be permitted to encroach upon the accused Sixth Amendment right to be confronted by witnesses against him.
The facts of this particular case are -- as the normal case in a narcotic case where an addict is induced or the addict tells a police where he can supposedly make a purchase and this particular addict was searched and then escorted by two policemen to a restaurant on the South Side of Chicago, and there, this person by the name of James Jordan, and we do find from the record that this is not his correct name, did enter the restaurant and it is alleged and he did testify that he made a purchase of narcotics from one Fleming Smith in that restaurant.
The two policemen are outside of the restaurant and certainly could not observed whether he did or did not make a purchase and they never testified to such things in the record.
The person, James Jordan, testified on the stand that he made the purchase from Fleming Smith.
But when he was cross-examined and asked whether his name was James Jordan, there was an objection and further it was elicited finally that his name was not James Jordan.
And when it was asked whether -- what his name was, there was an objection and his name was never disclosed.
At that point, though they had produced this witness on the issue of guilt, it was denied, denied the facts and the defendant to know the person that was accusing him.
They took -- attempted to elicit the address of James Jordan and there was an objection and that was never disclosed.
When Fleming Smith took the stand, he denied any of the pur -- of the sale of narcotics to James Jordan.
Fleming Smith admitted that he was an addict and when he was arrested, sometime after James Jordan left the restaurant on February 28th, 1964, he did have a packet of narcotics on him.
He also had four single dollar bill on him that had been marked money.
The police at the time that James Jordan or just prior thereto entered -- that James Jordan entered the restaurant, did give him six $1 bills that were marked and four quarters.
The purchase according to James Jordan was for $4 and 75 cents, a $5-bag.
The four quarters were never found on Fleming Smith.
Fleming Smith explains in the trial the reason and why he had the four $1 bill is that he had just prior thereto paid for a restaurant bill and received them in change.
So that Fleming Smith at all times denied the sale.He said that James Jordan did approach him, he said he had no narcotics for sale but referred him to one Herbert Simpson in the rear of this restaurant.
Now the state in their brief presents the question, does the constitution require that the true identity and present address of a governmental informant be disclosed on cross-examination?
And our answer to that is yes, when it is on the issue of guilt.
This is not the case of the type of informer that merely points the finger of suspicion that the police depend upon for information, that type of person gives information to the police and there is a flow of information and we realized that this is probably one of the great scientific detection apparatus that law enforcement does have, the informant.
Am I wrong in thinking that counsel for the defendant said he knew this man, Jordan?
Gerald W. Getty:
There is some evidence that --
Page 78, he says he knew him and he represented him.
Gerald W. Getty:
There's never -- oh, the counsel?
Yes, the counsel.