United States v. Havens

PETITIONER:United States
RESPONDENT:Havens
LOCATION:E.L. Aaron & Co., Inc.

DOCKET NO.: 79-305
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 446 US 620 (1980)
ARGUED: Mar 19, 1980
DECIDED: May 27, 1980

ADVOCATES:
Mr. Andrew L. Frey – for petitioner
William C. Lee – for respondent

Facts of the case

Question

  • Oral Argument – March 19, 1980 (Part 1)
  • Audio Transcription for Oral Argument – March 19, 1980 (Part 1) in United States v. Havens

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

    Warren E. Burger:

    Do you have anything further, Mr. Lee?

    William C. Lee:

    Yes, just if I — Your Honor.

    Warren E. Burger:

    Very well.

    William C. Lee:

    Mr. Chief Justice, members of the Court.

    Very briefly to conclude having taken the position and I hope supported it that if the Government is to be granted its relief, it will require the reversal for the overruling of Agnello.

    I’d like to discuss very briefly the policy considerations which have been touched on in the briefs about whether or not the abolition of the exclusionary rule in these situations would be appropriate.

    I think that there are some real problems in that as I’ve already suggested.

    First, I think any prosecutor who is competent to be in the courtroom could have, in this case or in many other cases where there is a piece of evidence that has been improperly seized which can be related to the transaction at issue, can surely develop a line of cross-examination to cause the admission of that evidence.

    If that’s the case, and if you accept the premise that it’s very important —

    Warren E. Burger:

    Well, is that different — is that fundamentally different from many tactical choices and options that are available in the trial of a lawsuit?

    William C. Lee:

    No.

    Except that in this instance, it’s our position, it’s violative of the Fourth Amendment.

    Warren E. Burger:

    Well, of course, that was argued in Walder and in Harris and —

    William C. Lee:

    Not — not where — as I’ve stated earlier, the issue was first raised upon the cross-examination of the defendant.

    Warren E. Burger:

    Well, if someone suggested before that that’s a line that’s sometimes difficult to identify.

    William C. Lee:

    It — it maybe but I think it happens to exist.

    Yes, Your Honor, I agree.

    Warren E. Burger:

    And sometimes it’s a moveable line.

    William C. Lee:

    Perhaps.

    Warren E. Burger:

    It’s not immutable.

    William C. Lee:

    Alright.

    The second point that I wish to make to relate to that is that because of the interest in the prosecution in keeping defendants off the stand and the opportunity to use improperly suppressed evidence to do so, there would be an incentive in fact to gather evidence, properly or improperly seized with the thought that as long as we have it in the file, we can use it to keep the defendant from the witness stand.

    And therefore, it will serve a very useful purpose in the prosecution of the case.

    Warren E. Burger:

    More often than not, the — the greatest hope that a prosecutor has in any case is that the defendant will take the stand.

    William C. Lee:

    I — well —

    Warren E. Burger:

    It’s — it’s hardly persuasive to suggest this —

    William C. Lee:

    We have — we have cited at Footnote 13 of our brief an authority for the converse of that, so I’ll have to let the Court evaluate that point.

    Warren E. Burger:

    Does it cite some substantial supporting data?

    William C. Lee:

    It is a handbook on criminal procedure which says that you should do everything you want to, to keep the defendant off the witness stand.

    [Laughs]

    Warren E. Burger:

    Yes, that’s why I suggest the prosecutor’s greatest hope is that the defendant will take the stand.

    Prosecutor can’t lose by that, can he?

    William C. Lee:

    I don’t think I can present it any further, Your Honor.

    I think I’m on an impasse there.

    John Paul Stevens:

    You said it was for use by prosecutors?

    William C. Lee:

    Yes.

    John Paul Stevens:

    But I thought you meant —

    William C. Lee:

    Yes.

    Byron R. White:

    Well, you prosecuted quite a few people.

    William C. Lee:

    Yes, I have.

    And today I’m here on the other side of the case and I thank you very much for your attention.

    William H. Rehnquist:

    Mr. Lee, before —

    William C. Lee:

    Yes.

    William H. Rehnquist:

    — your — your last discussions pertain to so-called policy —

    William C. Lee:

    Yes.

    William H. Rehnquist:

    — considerations.

    Would you think it to be at all weighed in the balance that there is presumably a multibillion dollar traffic in illegally some smuggled cocaine coming in from Columbia through Miami and that the — a truth finding prior trial least impeded by exclusionary processes is desirable?

    William C. Lee:

    With all due respect, I wouldn’t think that a policy consideration dealing with a substantive area of offense would be a competent basis for doing a way with this constitutional protection.

    Thank you.

    Warren E. Burger:

    Do you have anything further, Mr. Frey?

    Mr. Andrew L. Frey:

    A couple of points, Mr. Chief Justice.

    First of all, I wanted to be clear with regard to the question that Justice White asked earlier about whether the interrogation itself is a fruit of the illegal seizure that that was true in Walder, that was true in Harris, that was true in Hass.

    And therefore, in order to base a decision affirming the Court of Appeals in this case on that ground, you would have to retrace steps that you’ve already taken in those cases.

    Now, it seems to me that what we have here is basically the straightforward exclusionary rule policy case with which the Court has often been confronted, balancing the values of accurate trial outcomes and particularly, the value of — of exposing false testimony on the one hand against the deterrent values of the exclusionary rule.

    And I think that the balance has basically already been struck in Harris and in Hass.

    The Court made clear there.

    It stated explicitly that keeping the evidence out of the prosecution’s case in chief is sufficient deterrent.

    We’re now in the area of speculation which respondent engages in about whether the distinction between impeach and cross-examination answers an impeaching direct examination testimony, and as we’ve seen earlier in the argument of this case, that can be a very fuzzy distinction, will materially alter the behavior of police officers and secure a greater degree of compliance with the dictates of the Fourth Amendment.

    Essentially, the argument that the prosecution will arm itself with means of keeping the defendant off the stand was an argument that was equally applicable in Harris and in Hass.

    And indeed, in Hass, that was the very argument that was made that the prosecution — that the police there having given Miranda warnings and the defendant having asked for a lawyer, they could do nothing to get a statement that would be admissible on the Miranda at that point, therefore, they had every incentive to go ahead and collect this evidence for possible use for impeachment purposes and the Court refused to —

    Byron R. White:

    But — but, Mr. Frey, if they had answered this question yes and you — and you could — and you — you would say it would be substantive evidence, wouldn’t it?

    Mr. Andrew L. Frey:

    Yes.

    In the same sense —

    Byron R. White:

    And so —

    Mr. Andrew L. Frey:

    — that it’s both substantive and impeaching.

    Byron R. White:

    Yes.

    Well, substantive evidence.

    And it’s — and you — and you would use it because it’s arguably inconsistent with his direct testimony on his side of the case.

    And so, any — if — if the — if the reason for the — for the exclusionary rule is deterrence, I would think — I would think it could be foreseen that almost any piece albeit by evidence, if you could get a hold of it is — is very likely to turn up to be somewhat inconsistent with the defendant’s testimony if he takes the stand.

    Mr. Andrew L. Frey:

    Well, it can be —

    Byron R. White:

    And in which event, you could always use it.

    Mr. Andrew L. Frey:

    Well, it can be foreseen in many circumstances.

    I mean many of the exceptions for the exclusionary rule take the standing or requirement, for instance, if I can use that word to describe it.

    Byron R. White:

    But the problem is as long as the exclusionary rule here is one of — one of its limits.

    Mr. Andrew L. Frey:

    Well, that’s the question that we have before the Court.

    And our —

    Byron R. White:

    Exactly.

    And — and you keep — and one of the relevant questions to that is — is whether or not the — the amount of deterrence is worth the candle.

    Mr. Andrew L. Frey:

    Well, but the — the basis of the Court’s continued adherence to the exclusionary rule is that the fundamental deterrence of keeping the evidence out of the prosecution’s case in chief is still judged sufficiently worth a candle to retain the rule.

    The question —

    Warren E. Burger:

    Well, whether if it’s worth with — with credibility — challenges to credibility, the jury maybe instructed on request that the jury is to consider that evidence only with respect to credibility.

    Now, I emphasize for whatever that’s worth because if — if the jury may treat it as substantive evidence but that instruction, precautionary instruction is given, is it not?

    Mr. Andrew L. Frey:

    It was given in this case and —

    Warren E. Burger:

    And must always be given on request.

    Byron R. White:

    What would have been if he had answered yes?

    Mr. Andrew L. Frey:

    No, but our — but our position, of course, is that we are entitled to cross-examine him and we’re entitled to have truthful answers from him.

    And of course, the answers he gives on cross-examination are as much substantive evidence as the answers he gives from direct.

    Byron R. White:

    Well, yes, I know.

    You’re saying — you’re — you’re saying on the chance that he lie, I’m entitled to ask this question based on —

    Mr. Andrew L. Frey:

    No.

    Byron R. White:

    — on — based on illegally seized evidence.

    Mr. Andrew L. Frey:

    We are saying that we are entitled to ask the question in the hope that he’ll tell the truth.

    If he does not tell the truth, then we’re entitled to impeach his false answer.

    Byron R. White:

    And if he — if he tells the truth, you’re entitled to use it as substantive evidence.

    Mr. Andrew L. Frey:

    That’s correct.

    Byron R. White:

    Even though the source of your question is illegally seized evidence.

    Mr. Andrew L. Frey:

    That’s correct, and that was — that was —

    Byron R. White:

    That isn’t any prior case.

    Mr. Andrew L. Frey:

    That — oh, yes, that would’ve been true in Walder as well if he had — if on cross-examination —

    Byron R. White:

    You don’t — you don’t that it had been true.

    It might not, it — either there may still have been a — a question of — of —

    Mr. Andrew L. Frey:

    No.

    But supposed in Harris on cross-examination, they had said, “Didn’t you make the statements?”

    And he’d — and he’d said, “Yes, they — they are true, my testimony on direct examination —

    Byron R. White:

    Yes.

    Mr. Andrew L. Frey:

    — was wrong.

    I have now corrected in this manner.

    That would be used as direct evidence.”

    Byron R. White:

    Well, I know you keep saying that but it — conceivably, you could — the instruction could be considered as only for purposes of impeachment.

    Mr. Andrew L. Frey:

    Well, I — I do.

    I don’t want to recede in any way from my argument that this is also impeaching his — his answers on direct — his denials on direct of his complicity in the crime.

    If you had a bank robber and you found scheme masks and the loot in his apartment in an illegal search, and he got on the stand and said, “I had nothing to do with the bank robbery, nothing whatsoever,” the scheme masks and the loot would clearly impeach that denial of guilt as well as contradicted.

    Potter Stewart:

    What about just pleading not guilty?

    That’s a denial of guilt.

    When can you use it?

    Mr. Andrew L. Frey:

    I don’t know.

    I — I believe —

    Potter Stewart:

    Well, that’s exactly what Walder says you cannot do.

    You —

    Mr. Andrew L. Frey:

    If he just pleads not guilty, you clearly could not —

    Potter Stewart:

    That’s a denial of guilt.

    Mr. Andrew L. Frey:

    But it’s not the denial of guilt in that form that is the focus of the Court’s attention.

    The — first of all, you have the policy of the exclusionary rule which is inconsistent to some degree with the truth seeking function, but which — which hasn’t been limited before to the — to the direct case of the prosecution.

    The prosecution can’t use it.

    Now, the question is, “What uses can it make for impeachment or rebuttal?”

    And all the — the cases that the Court has decided since Agnello have all allowed an impeachment or rebuttal use of the evidence.

    It’s a matter of — of what deterrence you feel will be accomplished and it’s a matter of the policy that he’s entitled to plead not guilty even if he’s guilty of sin.

    But he’s not entitled in this Court’s view to get on the stand and testify falsely, and that policy comes into play once it does so.

    Thank you.

    Warren E. Burger:

    Thank you, gentlemen.

    The case is submitted.

    We’ll hear arguments next in Thomas against the Washington Gas Light —