United States v. Havens – Oral Argument – March 19, 1980 (Part 1)

Media for United States v. Havens

Audio Transcription for Oral Argument – March 19, 1980 (Part 2) in United States v. Havens

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Warren E. Burger:

The case is submitted.

We’ll hear arguments next in United States against Lee Havens.

Mr. Frey, I think you may proceed when you’re ready.

Mr. Andrew L. Frey:

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

This case is here on writ of certiorari to review a judgment of the United States Court of Appeals for the Fifth Circuit, reversing respondent’s convictions for possession and importation of cocaine on the ground that respondent’s trial testimony was improperly impeached by the use of illegally seized evidence.

On October 2nd, 1977, respondent’s coconspirator, McLeroth, a fellow attorney from Fort Wayne, Indiana, was apprehended by customs at the Miami Airport in possession of approximately three and a half pounds of cocaine, which was hidden in pockets sewn into a T-shirt.

Upon being questioned, McLeroth implicated respondent who had arrived in Miami with him on the same flight from Peru and had already cleared customs.

Respondent was located by the agents and arrested and his luggage was seized and searched.

It contained a T-shirt from which material was missing that correspondent to the material used in making the pockets in McLeroth’s shirt, in which the cocaine was secreted.

On respondent’s pre — pretrial motion, the District Court suppressed the T-shirt as the fruit of an illegal warrantless search of respondent’s luggage.

Now, McLeroth testified as the principal prosecution witness at trial.

He recounted several trips that he and respondent had made to Peru for the purpose of procuring cocaine and he described respondent’s role in preparing the pocketed T-shirt for use in the smuggling venture.

With regard to the ill-fated trip that culminated in their arrest, he described respondent’s actions in procuring the cocaine in Peru and secreting it in the shirt.

Respondent testified in his own defense and he denied any involvement in the cocaine smuggling.

In the course of his direct testimony, the following colloquy occurred which appears at page 34 of the appendix.

Question, “And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on, you heard that testimony?”

“Yes, I did.”

Question, “Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on that fourth visit to Lima, Peru?”

“I did not.”

On cross-examination, the prosecutor asked the following question which appears on page 35 of the appendix.

“Now, on direct examination, sir, you testified that on the fourth trip, you had absolutely nothing to do with the wrapping of any bandages or T-shirts or anything involving Mr. McLeroth, is that correct?”

Answer, “I don’t.

I said I had nothing to do with any wrapping or bandages or anything else.

I had nothing to do with anything with Mr. McLeroth in connection with this cocaine matter.”

And further down, toward the bottom of the page, he was asked, “Your testimony is that you had nothing to do with the sewing of the cotton swatches to make the pockets of that tee shirt?”

Answer, “Absolutely not.”

And when it became clear that the prosecutor intended to pursue the subject of the shirt found in respondent’s luggage, a bench conference was held.

The Court concluded that it would permit questioning about the shirt for impeachment purposes.

If respondent admitted that the shirt was in his luggage that would be the end of the matter.

But if he denied it, impeachment of his denial would be permitted.

Mr. Andrew L. Frey:

Respondent did in fact deny any knowledge that the shirt had been in his luggage.

Byron R. White:

What if he had answered, “Yes, the shirt was in my luggage”?

Mr. Andrew L. Frey:

I think that would have been — it — I think he could have been asked —

Byron R. White:

What would have been the —

Mr. Andrew L. Frey:

— how do you —

Byron R. White:

— what would have been the instruction, if any, about that answer, any?

Mr. Andrew L. Frey:

I don’t think there would have been any instruction about that answer.

Byron R. White:

Well, you said there was a bench conference about whether you were going to pursue this for impeachment purposes.

Mr. Andrew L. Frey:

Well, there was a bench conference about this whether this questioning would be allowed as cross-examination and whether if he answered in response to the cross-examination in a manner inconsistent with the —

Byron R. White:

Well, was the — was the question — the question — was the question ruled?

It must have been — the question must have been ruled proper cross-examination.

Mr. Andrew L. Frey:

Definitely was.

Byron R. White:

Is that what the argument was at the bench?

Mr. Andrew L. Frey:

The argument at the bench was about whether —

Byron R. White:

Because it was if, it was —

Mr. Andrew L. Frey:

— the Government could cross-examine on this subject.

Byron R. White:

If it wasn’t a proper cross-examination in the first place, surely it was not and nothing that happened thereafter was proper.

Mr. Andrew L. Frey:

Well, it is our contention that the cross-examination was proper.

Byron R. White:

You can’t go outside the scope of proper cross-examination and ask some — some question that you know you can impeach him on.

Mr. Andrew L. Frey:

It is — that — that’s correct.

It’s not our contention that you could ask something that’s outside the proper scope of direct, but when you’re dealing with a testifying —

Byron R. White:

So — so is that what the argument was at bench that was this a proper question for —

Mr. Andrew L. Frey:

No.

I think the argument involved the — the Walder-Harris issue about whether they would — it would be permissible —

Byron R. White:

So there was no object — ever any objection that as to whether this — this initial question was proper, namely, did you have a — did you have a — a shirt like this in your bag?

Mr. Andrew L. Frey:

Well, I — I’m sorry that I can’t specifically recollect whether that point was made.

The — the thrust of the discussion was that the prosecution had a right to ask the question if the question was answered in a manner inconsistent with the illegally seized evidence, impeachment of that answer by rebuttal testimony would be allowed and by introduction of the shirt.

Byron R. White:

Well then, would — if he answered yes to the question, did you have that — would that be inconsistent with anything he said on direct?

Mr. Andrew L. Frey:

If he answered, yes, it — yes, it would be inconsistent.

He would have to — he would have some explaining to do.

Byron R. White:

Well —

Mr. Andrew L. Frey:

It would be inconsistent with — both with his testimony that he had absolutely nothing to do with the cocaine smuggling.

Byron R. White:

Why?

Mr. Andrew L. Frey:

Well, if he had nothing to do with it —

Byron R. White:

If he just found the — the cocaine —

Mr. Andrew L. Frey:

It’s peculiar that he has —

Byron R. White:

He just find — tell him that shirt withholds in his bag.

Mr. Andrew L. Frey:

Well, the shirt withholds as the shirt that — that evidently was used in the preparation of the — of the shirt that McLeroth wore.

It is certainly a — a strongly suspicious circumstance that if he had no involvement whatsoever, if he didn’t know as he testified that McLeroth was obtaining cocaine —

Byron R. White:

At least as even though it weren’t flatly inconsistent, it’s very relevant to his direct (Voice Overlap) —

Mr. Andrew L. Frey:

It is — it is — yes it’s — It’s our contention that this is unquestionably proper cross-examination except for the fact that the evidence was illegally seized.

Harry A. Blackmun:

Mr. Frey, you have to take the position that it was proper cross-examination, don’t you? Otherwise, aren’t you right in the net of Agnello?

Mr. Andrew L. Frey:

Well, the — how much the net of Agnello picks up today I’m not sure, but Agnello itself is — is somewhat unclear as to exactly what the four ramifications of its rationale are.

Our view of Agnello is that — that its principal rationale was that you simply cannot use illegally seized evidence in court at all.

Harry A. Blackmun:

Rather than improper cross-examination.

Mr. Andrew L. Frey:

I — I don’t think that was the focus of it.

Byron R. White:

But if — if he’s answering, “Yes, I had a shirt like that in my bag.”

Was inconsistent with something he had said on direct.

Then you’re within — that is — that is impeachment itself.

That is — that is either if you’re using some illegally obtained information.

It’s used to — it’s used to contradict something said on direct examination consistently with our cases, our cases already decided.

Mr. Andrew L. Frey:

Clearly, the purpose of the cross-examination in this case was to try to give the light of his testimony that he had no involvement in the cocaine smuggling and he had no involvement in preparing McLeroth’s shirt and so on, on the last trip by — by calling him to account for evidence that exist, that the tendency of which is inconsistent with his testimony.

But, it seems to be perfectly normal.

William H. Rehnquist:

But why — it’s — it’s perfectly — rule would be perfectly rational under both Agnello and Walder that said that Government cannot use the illegally seized evidence in its case in chief.

And the defendant could move to dismiss and to close the case in chief, under Agnello, if the cocaine had been introduced at the Government’s case in chief.

And still if a defendant chooses to take the stand or if the Government — and the Government chooses to cross-examine him, then a different rule might apply.

Mr. Andrew L. Frey:

Well, I — I don’t think — I wish it were that easy, but I’m afraid it wouldn’t be perfectly consistent with Agnello, because in Agnello, the evidence was initially suppressed.

He then took the stand and testified and the evidence was introduced to impeach his answers on cross-examination.

In that respect, Agnello was structured in a manner parallel to the present case.So that — while I think the Court, as — as I will get to as — as it has matured in its thinking on this problem and in — in the more contemporary cases, the Court has clearly come to the view that the distinction that you suggest is the proper one.

The Court said in Harris unequivocally and it said it again in — in Oregon against Hass unequivocally, that the deterrent purposes of the exclusionary rule are adequately served by excluding the evidence from the prosecution’s case in chief, making it put on a case sufficient to go to the jury without any reliance upon the illegally obtained evidence.

Warren E. Burger:

But is it your position, Mr. Frey that anything within the area of — of the case itself, which tends to reflect negatively on the credibility of the — of the defendant on the stand is admissible.

How — how far do you carry it?

Mr. Andrew L. Frey:

Well, I — I think that we — well, we have two arguments in this case.

The — the first argument is which is on the broad issue, is that the distinction of the Court of Appeals attempt to draw between impeachment of answers given on direct examination and impeachment of answers given on cross-examination is not a valid distinction.

The way we would look at the case is to ask the question whether cross-examination on this point was proper.

If cross-examination on the point was proper, it is our view that the Government is entitled to conduct that cross-examination and the defendant is obliged to submit to it and that that is well settled by the decisions of this Court.

And if he then lies in response to the cross-examination, then the Government is entitled to impeach.

Now, as I said before to Mr. Justice White, I think there’s absolutely no question in this case that if this T-shirt had been found in a warranted search or had been found at the time Havens was going through customs and therefore, there was no question of the legality of the seizure, nobody would question for a moment that the T-shirt could be used in exactly in the manner it was used in this case and his answers could be impeached.

Warren E. Burger:

Could have they use it in the case in chief and that — and that’s —

Mr. Andrew L. Frey:

It could have been used in the case of chief, but if the prosecutions for some reason had not used it on the case in chief, it could have been used in connection with the cross-examination and for impeachment or rebuttal of the responses given on cross-examination.

William H. Rehnquist:

In battle or rebuttal on impeachment are two quite different things, are they not?

Rebuttal is the Government’s going forward with or — its own case on the second round so to speak, whereas impeachment is an effort to show that the defendant’s case is not to be believed.

Mr. Andrew L. Frey:

I — I understand that they are two conceptually different things.

There are times when impeachment and rebuttal tend to merge in the — in the tendency of the particular evidence.

I mean the case like Walder, is a — is a case where clearly only impeachment was involved and not rebuttal, because the evidence was evidence of a prior crime which was inconsistent with his denial that he had ever had drugs before.

Not admissible at all on the — on the issue of guilt or innocence in that case, but admissible only on the question of the defendant’s veracity.

William H. Rehnquist:

But Agnello speaks in terms of rebuttal.

Mr. Andrew L. Frey:

Well, I — that — I guess my — my view is that it reaches — there are some circumstances in which — in which there — the distinction is — while it exists is more technical and substantial in terms of the use, because in — in a case where the evidence, be it impeachment or rebuttal, relates directly to the guilt or innocence and not to any collateral question.

In order for the jury to conclude that the defendant’s testimony has been impeached, that is that he was not telling the truth, they will presumably, by virtue of that very conclusion, determine that the opposite of what he was saying was the truth or was likely to be the truth.

William H. Rehnquist:

Well, but the facts of the matter is that if the Government or the — the — in — in a civil case, the plaintiff or the defendant feels that they have successfully impeached the — credibility of the — of a principal opponent, they may choose not to put on any rebuttal.

Whereas, if they think the matter is still hanging in the minds of the jury, they may call two or three more witnesses and that would be rebuttal, but not impeachment.

Mr. Andrew L. Frey:

That would be rebuttal, but — but where the witness is called to contradict a specific statement that the defendant made in his direct or cross-examination, is where the distinction begins to pale, I think.

Byron R. White:

Mr. Frey, let me pursue my point with you at the moment.

Suppose — suppose at this bench conference, the — the objection was made that this question was not proper cross-examination and the judge said it doesn’t have to be within the scope.

And he said you may ask that question.

And if he says yes, that’s the end of it.

And if he says no, then you may fully introduce the T-shirt.

Mr. Andrew L. Frey:

Well, my — my —

Byron R. White:

You’d be — you’d have a little problem, wouldn’t you?

Mr. Andrew L. Frey:

Yes, but it wouldn’t be the problem.

Mr. Andrew L. Frey:

They wouldn’t be — involve the issue that’s presented in this case.

The — our problem in that case would not depend on the fact that the shirt had been illegally seized, but on the fact that the Court had allowed improper cross-examination that before —

Byron R. White:

And that you were manufacturing a — a — you were manufacturing an opportunity to impeach.

Mr. Andrew L. Frey:

Oh, I don’t know that that would —

Byron R. White:

Well, if you’re asking the —

Mr. Andrew L. Frey:

— matter.

Byron R. White:

— if you’re asking the question from — I suppose if you say — if — if you just asked him one cross-examination, “By the way, five years ago, did you have a — did you have a T-shirt in your bag?”

And he said, “No.”

And then you could prove he did, that would be improper.

It is completely irrelevant —

Mr. Andrew L. Frey:

Well, I’m — I’m not sure what — what the rule would be if — if the Court —

Byron R. White:

Well, here — here on page 43, in this — of the appendix at this bench conference, Mr. McCain, I take it that’s the defendant’s counsel.

Mr. Andrew L. Frey:

Yes, that’s –.

Byron R. White:

“How can he be impeached, Your Honor, it — if it was not covered on direct, whether or not he had?”

The court, “It does not have to be covered on direct.”

If he denies something under oath, which is — and then a cutoff, well, without even deciding that it was covered on direct or it was proper of the cross-examination.

This question was permitted to be asked and then the opposite of the question was permitted to be true.

Mr. Andrew L. Frey:

No.

I think — well, what is submerged in that is that the — the defendant’s attorney was suggesting that he never talked about the T-shirt that was found in his bag, which of course he wouldn’t since his tendency was purely inculpatory and it wouldn’t help him to talk about it at all.

What the court, I think was saying is, it doesn’t have to be covered with that degree of specificity on direct (Voice Overlap) —

Byron R. White:

That has to be —

Mr. Andrew L. Frey:

— in order to justify cross-examination.

And if he gives a false answer on cross-examination — and the court went on to say that if he says, “Yes, that shirt was in my bag and it had pieces missing.”

That — that would — there wouldn’t be no testimony about the discovery of the shirt, no actual introduction of the shirt.

But as I see the scenario and I — it seems clear to me, the question you ask is, “Is this proper cross-examination?”

And in this case, I don’t think leaving aside the illegal nature of the seizure of the shirt, there would be any doubt of the propriety of the cross-examination.

If he answers falsely in response to a question asked on proper cross-examination, that answer can be impeached by contradictory testimony.

Byron R. White:

Well, do you think —

Mr. Andrew L. Frey:

That —

Byron R. White:

— do you think that you — you don’t think your — in your — in your colloquy with Mr. — with Mr. Justice Rehnquist, do you think the Government just on rebuttal, without ever having gone through this thing, could have introduced the shirt found in the bag? Called the agent and said, “We found this in his bag”.

Byron R. White:

Because arguably, you’d say, that is absolutely contradictory to his direct testimony.

Mr. Andrew L. Frey:

I — I — my position is the Court does not have to go that far to decide this case, but I think if it had such a case, the Government should be permitted to do that.

And indeed I think that, that is the —

Byron R. White:

Because if the — If he had been asked — if he had been asked which he was, did he — “Did you have the shirt in your bag?”

And he had said, “Yes,” then I suppose the Government wouldn’t argue.

That quite inconsistent with his direct testimony or at least (Voice Overlap) —

Mr. Andrew L. Frey:

But there wouldn’t be anything to impeach that.

What would happen then is that that his answer might be further explored.

I mean — then the next question would be, “Well, how — how do you explain the fact that you have in your bag a shirt that was used in connection with the cocaine smuggling?”

And then he would give some explanation or no explanation and then that matter would be probe, but it would never be necessary to introduce the shirt separately from his own testimony.

And he must give that testimony on cross-examination because he chose to get up on direct examination to deny his guilt, to deny his involvement with the smuggling, to deny his involvement with the preparation of the shirt.

Thurgood Marshall:

Mr. Frey, in a case like this, is it accurate that the only way to keep out illegally seized evidence is to give up his right to testify?

Mr. Andrew L. Frey:

In a case like this, I — I think it is clear that if he chose to get on the stand and testify and deny any involvement in the cocaine, he — he would and did properly loose —

Thurgood Marshall:

So that’s — the only thing to do that is to give up his right to testify.

Mr. Andrew L. Frey:

Well, his right to testify, I think — it is clear that his right to testify is not a right to get on the stand and give false testimony and —

Warren E. Burger:

Didn’t we say precisely that in Harris?

Mr. Andrew L. Frey:

You said precisely that in Harris, you said precisely that in Nobles with — where the question was whether the investigator’s testimony to the Court, as you — you — in the plural sense, where the question was whether they had to turn over the investigator’s notes and the Court said the Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system.

One cannot invoke the Sixth Amendment as a justification presenting what might have been a half truth.

And then United States against Grayson, where the defendant claimed that his right to get on the stand would be inhibited by the possible effect on his sentence of the judge’s conclusion that he had lied.

Thurgood Marshall:

Well, they had (Voice Overlap) —

Mr. Andrew L. Frey:

The Court said assuming arguendo that the sentence —

Thurgood Marshall:

But the answer is still the same.

The only way for him to do it is to not testify.

Mr. Andrew L. Frey:

Well, that is correct, but he does not have a right.

He does not have a right in our view and I think the Court’s cases make that clear to get on the stand and present a false defense.

If he does that, then he has forfeited the benefits of — of suppression.

In so doing, because the purposes of the exclusionary rule has been —

Thurgood Marshall:

(Voice Overlap) he’s verifying that risk.

Mr. Andrew L. Frey:

Well, I don’t — I’m not sure what his rights were, but they didn’t include smuggling cocaine.

Warren E. Burger:

May I assume a hypothetical to you.

Warren E. Burger:

Suppose he — as — as here, he was trying in his testimony to dissociate himself from McLeroth completely.

Suppose his testimony had gone so far to say that — that he had never seen McLeroth in his life, didn’t know him and never had a conversation with him.

And then they brought the stewardess of the airline and — and he insisted on that on his — on his cross-examination.

Could he be impeached by bringing in the stewardess of the airline who said they sat together and were engaged in emanated conversations throughout the entire flight from Peru to Miami?

Mr. Andrew L. Frey:

Certainly, that would both be impeachment and rebuttal and although whether or not it would be rebuttal, would depend on whether the evidence went to guilt or innocence in the case or to a collateral question.

Warren E. Burger:

Well this doesn’t —

Mr. Andrew L. Frey:

But it —

Warren E. Burger:

But hypothetical doesn’t go to guilt or innocence —

Mr. Andrew L. Frey:

It would — it would be —

Warren E. Burger:

— that goes to whether this fellow — it would be a reliable witness.

Mr. Andrew L. Frey:

Then it would be impeached.

In that context, it would be impeachment and there’s no question that this could be done.

Warren E. Burger:

Is this — is — is this T-shirt fundamentally in terms of the law of evidence different from —

Mr. Andrew L. Frey:

Well —

Warren E. Burger:

— the testimony of the stewardess on the airline?

Mr. Andrew L. Frey:

Not — not in our view and certainly it involves no more smuggling in this — this suggestion that something insidious is being done by the prosecutor.

It’s no more smuggling into cross-examine about the T-shirt in view of its high relevance to the defendant’s testimony than it would be in the stewardess example.

Thurgood Marshall:

Well, couldn’t they have used the stewardess in their original form in the trial?

Mr. Andrew L. Frey:

Yes, and in this case, and that — that is —

Thurgood Marshall:

And that couldn’t use the T-Shirt.

Mr. Andrew L. Frey:

That is why the position —

Thurgood Marshall:

(Voice Overlap) are not the same, are they?

Mr. Andrew L. Frey:

That — that is why the position for which we —

Thurgood Marshall:

But they are not the same.

Mr. Andrew L. Frey:

They are — they are not the same in that respect and that is why the position for which we’re contending does not do damage to the objectives of the exclusionary rule, because the prosecution still must make its case against respondent without using the illegally seized evidence.

Only if it can get to the jury does this quest — with — without the illegally seized evidence, does this question even arise.

John Paul Stevens:

Mr. Frey, may I ask one question.

I may have misunderstood you, but putting to one side for the moment the effect that the evidence was seized in violation of the Fourth Amendment, I understood you to say that whenever a — a defendant makes a statement on cross-examination that the prosecutor believed to be false, the prosecutor has a right to impeach that statement.

It’s my understanding that there are certain collateral areas.

There are some that has developed on cross-examination as to which the judge in his discretion may say even if it’s false, I’m not going to allow the — for the impeachment.

Mr. Andrew L. Frey:

I think that’s right.

Yes.

John Paul Stevens:

You would agree with that.

Mr. Andrew L. Frey:

Yes.

But — but it would have to be collateral.

On this case it’s not collateral, if the (Voice Overlap) — if the testimony goes directly to — to guilt or innocence.

John Paul Stevens:

Would you — would you have said that it might well have been within the trial judge’s discretion in this case to say, “Well, I think we’ve gone far enough with this matter and I won’t allow the impeachment.”

I’m not suggesting it was error —

Mr. Andrew L. Frey:

I don’t — I don’t believe —

John Paul Stevens:

— for him to allow it, but I’m — I think perhaps the converse is also through —

Mr. Andrew L. Frey:

No, I — my view is that in this case, it would have been error for him not to — to permit the impeachment.

I think there — there is an area of cross-examination which goes to the issue that must be decided by the jury.

And within that area, the judge does not have discretion to cut off cross-examination or impeachment.

Then there are areas that are collateral to the basic inquiry and in those areas, I believe, the judge does have discretion to let it in or let it out.

This however, I think, was central because (Voice Overlap) the sheriff was evident —

Byron R. White:

Mr. Frey, tell me again or maybe you didn’t tell me.

If he had answered, yes to that question, “Yes, it was in my bag.”

And the Government — tell me why the Government is entitled to use that information against him that that answer in argument to the jury — obviously they obtained — they were put on to the question by an illegal act of theirs.

And —

Mr. Andrew L. Frey:

Well, not solely in this case since they also had the testimony of McLeroth about the T-shirt and about —

Byron R. White:

Well, they didn’t — they didn’t — yes, but the question was, did they have it in his bag?

Mr. Andrew L. Frey:

No, I understand that that if they had not (Voice Overlap) —

Byron R. White:

And — and he answered and says, “Yes, I had it.”

Now, tell me why you’re — you are entitled affirmatively to use that answer against him?

Mr. Andrew L. Frey:

Because we’re entitled to cross-examine him when he takes the stand and the policies of the exclusionary rule are not sufficiently advanced by restricting the traditional and essential right of cross-examination.

Byron R. White:

Even though — even though the question you ask, it has its source in an illegal — in an illegal search.

Mr. Andrew L. Frey:

Yes, sir.

Because that is — that was true in Harris and that was true in Hass, the questions that were asked and then impeached.

Asked on cross-examination, had their source in an illegal search.

It’s true —

Byron R. White:

And —

Mr. Andrew L. Frey:

— that the defendant adverted to the matter in his direct testimony, but they never would’ve been able to ask him about the statements if they hadn’t procured the statements.

So I don’t think this case is different in that regard.

The Court would have to go back and reconsider Harris and Hass in order to rest the decision on the — on the impropriety of the question itself.

Byron R. White:

I know but you’re — you’re not — you’re not exactly saying and that using this answer as you were in these other cases you referred to.

In the other cases, you say the man should not be permitted to — to lie on the stand.

And here, he lied and we’re just going to impeach him.

Mr. Andrew L. Frey:

Yes.

Byron R. White:

And here your — if you ask him the question and he answers, yes.

You aren’t impeaching him at all.

All you’re saying is that we don’t have a piece of evidence —

Mr. Andrew L. Frey:

I — I understand that.

Byron R. White:

— that maybe a critical piece of evidence in — in convicting him, not — not just to show that he’s dishonest, but it’s a critical piece of evidence that goes to Government’s case.

Mr. Andrew L. Frey:

Well, it happens to show — it happens to show both at the same time.

Byron R. White:

Well, why does it?

Mr. Andrew L. Frey:

Why does it show that he’s dishonest?

It doesn’t show that —

Byron R. White:

Or it doesn’t say —

Mr. Andrew L. Frey:

— he’s dishonest when — when answering our last question, but it shows that he was — it shows that he was dishonest in answering the questions on direct examination.

Byron R. White:

Unlike what?

Mr. Andrew L. Frey:

Like he had no involvement in the cocaine smuggling.

He had nothing to do with McLeroth and he had nothing to do with preparing the shirt.

Those answers are inconsistent with the (Voice Overlap) —

Byron R. White:

And so your argument is — so your argument is that any illegally seized evidence that the Government has should be able — you should be able to — you should be able to introduce in rebuttal in order to counter — if it goes to prove that what he said on — on direct examination was dishonest.

Mr. Andrew L. Frey:

Well, I don’t know whether it’s for rebuttal or impeachment.

I mean we’re back in that — our — our narrow position in this case, although —

Byron R. White:

But at least then on the cross, you’re — you — you are entitled to say, “By the way, on such and such a date, did you have this gun in your house?”

And go through a whole list of things that you illegally seized from his house.

And if he says, yes to every one of them, you’re — you’re home free and if he says no, you could reduce it.

Mr. Andrew L. Frey:

I — I suppose that’s right, assuming that they are within this realm of cross-examination that we’re entitled to conduct.

Mr. Andrew L. Frey:

I — I mean, I think the Court has made it clear that the existence of — of — for instance, a defendant can invoke his Fifth Amendment privilege against self-incrimination to resist cross-examination.

Once he elects to take the stand, there are consequences that flow from that and I think the Court has been steadfast in its adherence to the policy that the truthfulness of his testimony can be explored and cross-examination is the primary instrument.

Impeachment is secondary when cross-examination fails.

And — and our position —

John Paul Stevens:

In answer to Mr. Justice White, you — you said that it would be impeaching of his direct testimony that he’d had nothing to do with the T-shirts, but that was cross-examination testimony.

Mr. Andrew L. Frey:

No.

Well —

John Paul Stevens:

The only thing he said on direct was that he said, no to, “Did you ever engage in that kind of activity with these two people?”

Mr. Andrew L. Frey:

Well, I — we —

John Paul Stevens:

What kind of activity is it?

Mr. Andrew L. Frey:

We of course —

John Paul Stevens:

Saying he had the T-shirt in his bag wouldn’t have been impeaching of that, would it?

Mr. Andrew L. Frey:

Well, that — first of all, it impeaches his denial of any involvement with the cocaine.

He had nothing to do with McLeroth, he testified.

He had nothing to do with importing the cocaine.

Now, if he had nothing to do with those things, what was this T-shirt doing in his luggage?

It certainly demanded an explanation.

Now, it — it’s also our view, as we argue in our brief that that his testimony about draping and taping the material on the fourth trip, he was a lawyer, I think it’s clear that he was trying to tailor his testimony to waltz between the Walder, Agnello, Harris line.

But in our view, when we analyze it in our brief, that testimony amounted to the jury.

It communicated a denial of any involvement in preparing the shirt in which the cocaine was secreted and the —

John Paul Stevens:

Well, I suppose if he simply said, “I’m not guilty.

I had nothing to do with this transaction.”

You could impeach him in the same way?

Mr. Andrew L. Frey:

I think —

John Paul Stevens:

Under your analysis.

Mr. Andrew L. Frey:

Under our first position, that’s right, if it’s a legitimate cross-examination.

Thank you.

Warren E. Burger:

Mr. Lee.

William C. Lee:

Mr. Chief Justice, may it please the Court.

I’d like to comment on the statement of facts first, because I think there’s some expansion now, that’s useful to put the issues in the context of this case and show also the pernicious influence of the principle for which the Government is arguing.

William C. Lee:

The prosecution was based exclusively on the testimony of the codefendant, McLeroth.

McLeroth’s liability, as a general proposition, can be gained by the fact that he testified that he had been forced into this by the respondent because he was penniless.

He had no income for several years and not file any federal income tax returns.

Evidence shows that he had run a quarter of a million dollars through one bank account that was admitted into the evidence on his cross-examination.

It showed in fact, that he had telephone bills —

Warren E. Burger:

How — how did this develop, by impeachment of McLeroth?

William C. Lee:

Yes.

That was developed through a cross-examination of McLeroth, plus the fact that he had —

Warren E. Burger:

That was — no — no one questions that that’s perfectly valid cross-examination of —

William C. Lee:

That is correct.

Likewise —

Warren E. Burger:

Do you think there’s any difference between cross-examining a — a witness in chief, to undermine credibility and to do the same thing to a defendant who takes the stand?

William C. Lee:

Not as to the scope of the question.

I do not, Your Honor.

I think the distinction here is based upon the Fourth Amendment problem that this cross-examination has, that is the cross-exam — examination of the respondent.

Warren E. Burger:

Then you’re — you’re questioning Harris against New York?

William C. Lee:

No — no, Your Honor.

No.

No, I’m simply saying that — that Harris is distinguishable because in that instance, the defendant offered the testimony on his direct examination.

William H. Rehnquist:

Well and what Fourth Amendment problem is there?

William C. Lee:

The Fourth Amendment problem which we contend is raised by Agnello.

We think Agnello is virtually on all force with this case, because in Agnello, the —

William H. Rehnquist:

Well, Agnello and Gouled and Silverthorne are all pretty shaky, I think.

William C. Lee:

Well [Laughs] sir, I think Silverthorne and — and Agnello are clearly distinguishable.

What the Government has consistently referred to as the doctrine of Agnello that improperly seized evidence cannot be — cannot be used at all is not the doctrine of Agnello, that’s the doctrine of Silverthorne.

Agnello, in fact, dealt specifically with cross-examination, a denial of a prior event and then the use of that on rebuttal to try to impeach Agnello.

It’s on all force with this case.

And one of the points that I wish to leave with the Court is that if you’re going to sustain the Government’s position on this matter of the propriety of using this improperly seized evidence on cross-examination, you must overrule Agnello.

You cannot fit the Government’s argument into Agnello as they argued in their principal brief.

They — they make the —

Harry A. Blackmun:

You have to share Mr. Frey’s analysis of Agnello.

William C. Lee:

No, I do not.

I think that the — and holding of Agnello was narrower than the Government attributes to it.

Whereas they say, that Agnello holds that improperly seized evidence may not be used at all.

I think it clearly holds as — as we have quoted in our brief from it.

In his direct examination, Agnello was not asked and did not testify concerning the can of cocaine.

In cross-examination in answer to a question permitted over his objection, he said he had never seen it.

He did not nothing to waive his constitutional protection or justify cross-examination in respect of the evidence claimed to have been obtained by the search.

So we think Agnello is confined to the inadmissibility of improperly seized evidence through cross-examination.

Harry A. Blackmun:

In your — in your view is this a proper cross-examination?

William C. Lee:

I think, yes.

I think that given the broad latitude that would normally be permitted a cross-examiner, I think it’s — it’s obviously a judgment call, but I think that one could argue that — that the cross-examination per se, may have been proper in an effort to impeach —

Byron R. White:

Let me ask you —

William C. Lee:

— the defendant.

Byron R. White:

You’re saying even if that question arose out of — even came to — came to the Government’s mind because they had seized the —

William C. Lee:

No.

I mean —

Byron R. White:

(Voice Overlap) —

William C. Lee:

I think —

Byron R. White:

But suppose you’d take the position —

William C. Lee:

Yes.

Byron R. White:

— that this question that they asked —

William C. Lee:

No.

Byron R. White:

— about the possession of this T-shirt was — was — however or otherwise, it might be proper cross.

It was improper here, because it was —

William C. Lee:

Yes.

Byron R. White:

— provided, to have illegally seized evidence.

William C. Lee:

Precisely, what I meant to say was that it would’ve been proper, but for this defect.

Do — do I make myself clear?

Byron R. White:

Yes — yes.

William C. Lee:

Okay.

All right.

Byron R. White:

I suppose — I suppose you would say that if they had had a warrant and had seized the shirt properly, and then on cross-examination, I’d ask him this question, he would say that would have been a proper —

William C. Lee:

Absolutely.

Byron R. White:

— a proper question —

William C. Lee:

Absolutely.

Byron R. White:

— within the scope of direct examination.

William C. Lee:

Yes, absolutely.

Warren E. Burger:

Now, do you think your responses in conflict with what the Court did in Walder?

William C. Lee:

No, Your Honor.

Warren E. Burger:

The cross-examination in Walder was that he had never — he was asked — Walder was asked, “Have you ever sold narcotics?”

And he said, no, he hadn’t.

And then the Government introduced narcotics which he —

William C. Lee:

Yes.

Warren E. Burger:

— had been suppressed in another totally independent transaction years before.

William C. Lee:

But, Your Honor, the testimony to which you refer in Walder was elicited on his direct examination.

That’s the distinction.

You see this is the first instance in which the Government has sought to use cross-examination, that is to say, the first instance which has been presented to this Court.

It has sought to use improperly seized evidence on cross-examination to impeach a defendant or to rebut his testimony in some particular.

Walder, Harris, Hass, are all cases —

Byron R. White:

You mean it’s the first time where the statement in which to impeach comes out first on cross-examination?

William C. Lee:

Yes.

Byron R. White:

Because it was on cross that he was impeached in Walder.

William C. Lee:

Exactly.

I beg your pardon.

That that was — that was what I intend to say.

Warren E. Burger:

He didn’t cross-examine in Walder by the prosecutor, when he said he had never engaged and never had in his possession any narcotics.

William C. Lee:

Yes, but Mr. Justice White assisted me to point out that what we’re really talking about is the statement sought to be impeached.

The statement sought to be impeached in Walder was given by the defendant in his direct testimony.

Byron R. White:

And then it was repeated on cross like you would have to —

William C. Lee:

Yes.

Byron R. White:

— like you would have to.

William C. Lee:

Yes.

Byron R. White:

You see, you said on direct —

William C. Lee:

Sure.

Byron R. White:

— so and so and he repeats it.

William C. Lee:

And in this case, the statement sought to be impeached was first elicited on cross-examination.

And therefore, it is clearly distinguishable on the facts from Walder, Harris and Hass.

And falls, we believe, within the four corners of Agnello and requires this Court to overrule Agnello, if it’s going to grant the Government the relief that they seek.

The — just to continue on briefly with the facts, I — I want to pursue this because I think it shows the significance of this issue in a given fact situation.

McLeroth in addition, as I’ve pointed out to having been shown to be untruthful on the matters of his income, was shown by his own banker who was called to put his bank records in to have told him that in this instance, he was importing cocaine for the Government.

A Government agent was quickly called to the stand to deny that that was the fact.

The respondent, Havens, who testified in his own behalf, was never shown of any prior involvement in criminal activities.

He was shown to have traveled abroad to the Middle East on the same kind of export-import business that he testified he was on in Peru.

His partner in that business was called to corroborate that.

He put character witnesses into evidence and that did not elicit any response from the Government to show anything negative about him.

And in short, it was the T-shirt, just this cutup T-shirt that was the only piece of corroborative evidence that corroborated —

Thurgood Marshall:

What he had more of indicate that cutup T-shirt?

William C. Lee:

Well, we respectful —

Thurgood Marshall:

(Voice Overlap) —

William C. Lee:

— we respectfully submit, Your Honor, that the evidence does not establish that he did and — and let me pursue that point.

The Government —

Thurgood Marshall:

They were just taking —

Byron R. White:

Oh, yes.

William C. Lee:

The — the Government in — in its argument, Your Honor, clearly inferred that McLeroth’s testimony was that this shirt manufacturing process took place in connection with the trip upon which these two men were arrested.

That is not true.

McLeroth’s testimony is that the shirt manufacturing process took place earlier in September in Fort Wayne, Indiana.

William H. Rehnquist:

The jury convicted it, didn’t they?

William C. Lee:

I understand that, Your Honor.

And my point is that with this one piece of corroborative evidence, which we — which we contend, was improperly submitted.

William C. Lee:

This jury was out nine hours and finally convicted the respondent in a case which contrary to the Government’s Footnote 1, can most charitably be described as a very skinny case.

And —

William H. Rehnquist:

Well, but there are skinny cases and fat cases.

William C. Lee:

I understand that.

William H. Rehnquist:

But all would look at as jury verdicts and were talking about sufficiency of the evidence.

William C. Lee:

I understand that, but what I’m trying to point out is that this piece of evidence for which there is no logical connection, why would the respondent have transported a cutup T-shirt that was manufactured weeks earlier from Fort Wayne, Indiana to Peru and then transported it back to Miami International Airport?

And furthermore, he was not going to —

Harry A. Blackmun:

(Voice Overlap) together, weren’t they?

William C. Lee:

They were traveling on the same plane.

They were not down there on the same business according to the respondent’s testimony.

Harry A. Blackmun:

Does the record show who financed McLeroth’s four trips to South America?

William C. Lee:

The record shows, I think that he substantially financed them himself although I believe in one instance he said that he ran out of money while they were there.

And that Havens helped pay his hotel bill and, or some other expenses.

But the point is there is no logic to the Government’s position that he would have transported a T-shirt remnant from Fort Wayne, Indiana to Peru and back to the Miami International Airport, where it would have been in his luggage when he was arrested on October 2nd.

The conflict which the Government elicited on cross-examination was when Havens was asked, “Did you have this cutup remnant in your baggage when you were arrested on October 2nd?”

He said, “Not to my knowledge”.

Then he went on to explain at some length that he did acknowledge that when his luggage was returned to him the next day, Agent Martinez, in a very elaborate process, went through his luggage and (Inaudible) discovered the T-shirt and gave him a receipt for it.

Martinez testified when he put the shirt in, that in fact, he went through the luggage on October 2nd, found the T-shirt, disclosed it to Havens and talked to him.

Martinez never denied the conversation on October 3 and the question I would raise just as a practical matter since there’s been a lot of discussion of — of credibility.

Why would an experienced drug agent discover a T-shirt which was patently related to, according to the Government’s position, the courier that they had arrested four hours earlier and not take it into their custody at that time?

Why would they leave it in the luggage after having first discussed it with Havens allegedly on October 2nd to rediscuss it with him on October 3rd, and give him the receipt for at that time?

Thurgood Marshall:

Did you argue all that proof here?

William C. Lee:

I did not personally, Your Honor.

Thurgood Marshall:

Well (Voice Overlap) —

William C. Lee:

I presume that trial counsel —

Thurgood Marshall:

And the jury said, no.

William C. Lee:

The — the — I think that’s correct because they had the T-shirt in evidence and in the jury room with them.

I would like to touch on the matter of the two sub-arguments.

First, while we’ve — I’ve discussed the matter of the alleged perjury, the Government, of course, has maintained throughout in its principal brief that the reason that Agnello needs to be overruled is to protect the trial process from perjury by the defendant on cross-examination.

And they stoutly insist throughout their principle brief that that’s clearly what we have here.

William C. Lee:

I think a fair reading of the evidence demonstrates that it’s not perjury.

There’s a conflict between whether Havens admitted that he first became aware of the T-shirt on October 2nd or October the 3rd.

Warren E. Burger:

Well, it doesn’t make any difference to a credibility attack whether there’s outright perjury or whether there is faulty recollection.

You — you can undermine the credibility of a witness by showing much less than perjury, can’t you?

William C. Lee:

But the question then becomes, Your Honor, do we overrule in effect as Mr. Justice Marshall pointed out his Fourth Amendment right, because of a mere conflict that you want to impeach him on vis-à-vis, the opportunity to demonstrate that he’s committed perjury.

In other words, the Government takes the position that it needs this extraordinary remedy in order to curtail or prevent perjury.

And that’s what they talk about in their principle brief.

And then when they filed their reply brief, after we had taken the task to some extent, they say “Well, maybe it was just a matter of credibility and we ought to be permitted to do it anyway.”

And it’s our position that that simply impeaching someone or — or attacking their credibility in some particular maybe appropriate, but it doesn’t justify doing a way with their Fourth Amendment right.

Pursuing a point that Mr. Justice Marshall raised and of course, the Court of Appeals of the Fifth Circuit saw this very clearly, when it said as — as we quote in our brief, “According to the view of the trial judge and the prosecutor, the defendant could be asked on cross-examination a question which answered affirmatively, would admit the incriminating tendencies of illegal evidence and answered negatively, would allow the subsequent introduction of the illegal evidence for the purposes of impeachment.”

What the Government is really asking this Court to do by overruling Agnello is to do away with the Fourth Amendment right of any defendant who would like to testify on his own behalf.

Because if any prosecutor or deputy prosecutor or United States Attorney isn’t clever enough to devise a line of cross-examination, which would bring within the scope of the direct some object or fact which is in fact somehow connected with the event, he’s going to get it in.

William H. Rehnquist:

Well, you can’t have everything.

I mean, you — you’ve always got the right to remain silent.

William C. Lee:

I understand, Your Honor.

Warren E. Burger:

Well, isn’t —

William C. Lee:

But I think as we point out in our brief and I — I want to look at this from a practical standpoint and we cite an authority in the footnote for this proposition.

A defendant who goes to trial before a jury and does not testify in his own behalf has in my experience at some duration as a prosecutor, almost no prospect of acquittal.

It is absolutely essential for a criminal defendant to testify in his own behalf in a criminal jury trial.

William H. Rehnquist:

And why shouldn’t he be subjected to the same process of cross-examination that any other person who elects to testify it?

William C. Lee:

I think he should, but for the fact that here, we’re saying that there is some evidence that he’s been constitutionally and permissibly obtained.

And that simply that should not be used — we’re not saying that the cross-examination process should be impeded anyway, we’re simply saying that evidence which has been unconstitutionally seized, should not be used in that process.

Warren E. Burger:

Then you’re quarreling with Walder and Harris and —

William C. Lee:

I — I —

Warren E. Burger:

What did — let me remind you what Mr. Justice Frankfurter said.

“It’s one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained.

It is quite another to say that the defendant can turn the illegalness and by which the evidence in the Government’s possession was obtained to his own advantage and provide himself with a shield against contradiction of his untruths.”

William C. Lee:

Yes.

Warren E. Burger:

And you’re — you’re really arguing with that proposition.

William C. Lee:

Well, not really Your Honor, because you see in that case —

Warren E. Burger:

You tell me how that’s — how — how you are not arguing with it.

William C. Lee:

Pardon me?

Warren E. Burger:

Tell me how you —

William C. Lee:

All right.

Warren E. Burger:

— do not argue with that.

William C. Lee:

In that case, the defendant offered the testimony in question on direct examination.

He was in fact, as Justice Frankfurter pointed out on direct examination, trying to build a defense affirmatively and shield himself from this impermissibly seized evidence.

And I think the Court there and we concede in our brief.

We don’t have any quarrel with that proposition.

Warren E. Burger:

What do you say Havens was doing when he said he didn’t know McLeroth and never had anything to do with him.

William C. Lee:

He didn’t say that.

Oh, no.

He didn’t say that at all.

In fact, I think it’s important to analyze carefully —

Warren E. Burger:

What — what did he say about that?

William C. Lee:

The only thing that he said that they’re relying upon on direct examination is that — and Mr. Frey read it, “And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on you heard that testimony?”

“Yes, I did.” “Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on the fourth visit to Lima, Peru?”

Answer, “I did not.”

We contend under the Weeks case that that is simply a general denial of his involvement in the crime.

And I would suggest to the Court that if you would get to the point where you will rule that this direct testimony which I consider to be attenuated to use a word that was used in our earlier argument in its relationship to the T-shirt, I submit that you’re going to have all sorts of cases in which you’re going to be asked then to examine the specific phrasing and context of attenuated answers like this to try to tie them up to something specific like a t-shirt or a gun or the cocaine capsule in Agnello or whatever.

But I do think that there’s a — a distinction between Walder and this case and a very important one, because in Walder, the defendant on his own initiative, attempted to build a defense and shield himself from the improperly seized evidence.

And the Court there said he couldn’t do that.

Here, it’s the Government that’s trying to get into the evidence, the impermissibly seized evidence, by I think what can charitably be describe as an attenuated line of questioning.

William H. Rehnquist:

What if the Government — attorney had asked on cross-examination of the defendant who had voluntarily elected to take the stand, are you guilty of this offense?

William C. Lee:

Yes.

William H. Rehnquist:

Any of — anything wrong with that.

William C. Lee:

No.

I presume he would’ve said no and then the — then the question occurs to me as has occurred, I believe to Mr. Justice White and others, then is that — would that standing alone be a competent basis to admit the T-shirt and apparently Government’s position is that it would be.

So that if —

Byron R. White:

Well, I take it they would — they would say that — they would say that — that the T-shirt being in the bag — finding a T-shirt in the bag, a T-shirt like this is inconsistent with his testimony on — on direct.

William C. Lee:

Sure.

Byron R. White:

Just plain inconsistent — just introducing it tends to impeach —

William C. Lee:

I think that’s —

Byron R. White:

— the statements on his direct examination.

William C. Lee:

And if the T-shirt had been properly available to be admitted, no question that they could do that.

But here —

Byron R. White:

Well that’s — as I suppose they had gotten it by a warrant and they just hadn’t introduced it on —

William C. Lee:

Yes.

Byron R. White:

— on direct side of their case, I suppose — I suppose they can introduce it in rebuttal.

William C. Lee:

There might be some technical.

It would depend, of course, on the line of questioning because it would have to be, you know, related to —

Byron R. White:

Well, I — I just decided —

William C. Lee:

— but I think they probably could’ve shown that.

Byron R. White:

Let’s assume it was in the — you — you thought the question about it was perfectly — the — the question whether he had it, you thought was perfectly good cross-examination, if they had had a warrant.

William C. Lee:

Yes, that’s correct.

Byron R. White:

All right, and so — and I suppose on rebuttal, it would have been perfectly proper to introduce the T-shirt.

William C. Lee:

Yes.

Byron R. White:

If it — if there’d been a warrant?

William C. Lee:

Yes.

Byron R. White:

Now, why isn’t it arguable then that the T-shirt is as far as the exclusionary rule is concerned, you aren’t to do anymore to the exclusionary rule by permitting the T-shirt to be introduced to — on rebuttal, because it’s inconsistent with his direct examination.

William C. Lee:

Your — I think you’re abolishing the exclusionary rule for a — for a defendant who takes the witness stand because by hypothesis, if the object is closely enough related to the general subject matter of the case or the event, that — that they want to bring in, then a line of cross-examination can be devised to bring it in.

Byron R. White:

Well, if somebody had asked him on his direct, “Did you have a T-shirt in your bag?”

And then he had said, “No”, you could introduce the T-shirt.

William C. Lee:

Yes.

That’s right.

Byron R. White:

Well, now, I suggest you should — you could introduce your T — introduce the T-shirt because it is sufficiently inconsistent with his direct testimony that it would tend to disprove his direct testimony.

William C. Lee:

I think it would and if it — if it weren’t under this constitutional burden, I think it could be admitted.

John Paul Stevens:

(Inaudible) I’m little puzzled.

I think you’re changing your position a little bit and maybe you tend to but you are acknowledging then that it’s admissible under Harris and Walder?

William C. Lee:

No, no, no.

William C. Lee:

I’m — I’m admitting that it was — I’m sorry.

This was the distinction we had tried to derive before.

I’m admitting that it would be admissible, but for the constitutional defect.

John Paul Stevens:

Well, but still, I — I think you’re saying then it is — it is impeaching of direct testimony putting aside the Fourth Amendment argument.

If you admit that, then I would think it’s admissible under the rationale of Harris and Walder.

William C. Lee:

Well, I think that —

Byron R. White:

That was my — that — that was my suggestion.

William C. Lee:

I see.

Well, no, I disagree with that.

I think that the — the real issue and I think something has been lost in the case and I — it’s a point that I — I’m glad that you reminded me of is that the — the impermissible activity here really is the line of questioning, more or so perhaps than the admission of the physical evidence.

For example, in Agnello, there, they were — they did not offer the physical evidence because I presume it had long since been destroyed.

What they offered in Agnello was the agent who had seized the prior drug and the laboratory chemist who had analyzed it.

I really think a question was raised earlier that perhaps the objection should have been more vigorously and timely made when the line of questioning was brought up.

But I think if you read the transcript, you’ll see the trial counsel there was confronted with a typical dilemma and that is that as soon as the T-shirt is mentioned, if he pops up in front of the jury and makes an objection, immediately, he’s highlighted that evidence.

And the jury concludes either if he’s successful that he’s kept something out that he shouldn’t have or if he’s unsuccessful, he’s highlighted it.

What he did was to ask to approach the bench as soon as he could gracefully do so and he did raise it then in the bench conference.

William H. Rehnquist:

That’s true only in almost any case you tried though.

William C. Lee:

Yes.

William H. Rehnquist:

But the counsel, wishing to object, has to think over quickly in his mind by objecting, do I call the jury’s attention to the fact more than if I just sit there and would historically and act as if it didn’t make any difference?

William C. Lee:

But my point simply is, Your Honor, that I think that — that from a theoretical standpoint, it was the line of questioning that was really impermissible and I can concede that perhaps a more timely objection could have been made, but obviously if you read the record, that’s what happened.

He did get up to the bench very shortly after that issue was raised and did take it up with the judge at that time.

William H. Rehnquist:

But not — not at the moment it was raised.

William C. Lee:

No.

He did not in response to the initial reference to it in the cross-examination.

That is correct.

Warren E. Burger:

One of the English judges is often quoted in American opinions, Mr. Lee.

He said something to the effect that cross-examination is the greatest tool ever invented to — for the exposure of falsehood.

I take it, you generally agree with that.

William C. Lee:

I do and I think that in this case, one has to read very carefully the questions and answers given and put them in the context of some of the other facts that I pointed out.

Warren E. Burger:

Necessarily, that makes cross-examination a pretty rough business.

William C. Lee:

Yes.

Warren E. Burger:

Does it interfere with the — does — does the allowance of cross-examination interfere with the right to testify?

William C. Lee:

I think if you’re going to overrule Agnello —

Warren E. Burger:

Well, just in —

William C. Lee:

— and —

Warren E. Burger:

— the abstract.

No.

Just in the abstract.

William C. Lee:

Does any abstract —

Warren E. Burger:

It’s a — it’s a hazard —

William C. Lee:

It is a hazard — it is the hazard of testifying.

It is a hazard of testifying.

Warren E. Burger:

To take the stand in a criminal case for a defendant is hazardous.

William C. Lee:

That’s correct.

Warren E. Burger:

We’ll —

William C. Lee:

Thank you.

Warren E. Burger:

— resume at 1 o’clock