Walton v. California

PETITIONER:Marvin Stuart Walton
RESPONDENT:California
LOCATION:Pittsburgh Party Headquarters

DOCKET NO.: 16
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: State appellate court

CITATION: 350 US 868 (1955)
ARGUED: Oct 17, 1955
DECIDED: Oct 24, 1955

Facts of the case

Question

  • Oral Argument – October 17, 1955 (Part 2)
  • Audio Transcription for Oral Argument – October 17, 1955 (Part 2) in Walton v. California

    Audio Transcription for Oral Argument – October 17, 1955 (Part 1) in Walton v. California

    Earl Warren:

    Number 16 on the docket.

    Marvin — Marvin Stuart Walton, Petitioner, versus the People of the State of California.

    Robert F. Peckham:

    Your Honors, this case arises from a criminal prosecution for driving under the influence of liquor where blood was extracted by the police to determine the alcoholic content.

    The defendant was found guilty by a jury in his second trial where he was permitted a trial by jury and then petitioned to the appellate department of the Superior Court of the State Of California being the court of the last resort under the laws of California in misdemeanor prosecutions.

    The appellate department affirms the conviction and having no further remedy, a petition for certiorari was filed and granted by this Court.

    The issue presented by this case Your Honors is whether the involuntary extraction of petitioner’s blood by the state police to determine sobriety and the use of the results of such a blood test as evidence against the petitioner are a violation of the Due Process Clause.

    The privilege against unreasonable search and seizures or — and the privilege against self-incrimination.

    A further issue has been raised in respondent’s brief and that is does the allocation of the preliminary questions of fact between the judge and jury violates the due process.

    Now the facts of this case briefly are these.

    John M. Harlan:

    Mr. Peckham, is there a California statute that provides for a blood test?

    Robert F. Peckham:

    There is not Your Honor.

    The petitioner left a restaurant — long left shortly before 10 p.m. on a Friday evening in his sports automobile and drove across the southbound lane of the El Camino Real, a highway and into the northbound lane, the State Highway patrol car was following the — along and noted that the petitioner was speeding according to the officers’ testimony and stopped the petitioner.

    The officers testified that he had accelerated his automobile to a speed of 60 or 65 miles per hour.The petitioner testified that he was traveling approximately 40 miles an hour.

    After stopping him and witnessing him walk, the officers took him to San Jose approximately 18 miles away to the Accident Prevention Bureau and there he was asked to perform certain balance and coordination tests which he declined to do.

    He also was asked certain questions on a form provided by the District Attorney’s Office for interrogation by officers of suspected drunk drivers and he declined to answer those questions with the words “No comment.”

    The officer and the technician and the petitioner all testify as to those facts in substance.

    Now, the officer testified that he had declined to take the blood test several times when that was requested of him.

    The technician testified that he had declined to take the test at least two times.

    The petitioner testified that he continued to refuse to submit to the blood test and that he expressed a protest to it at the time that it was taken from him against his will.

    The officer of the State Highway Patrol testified that the time of taking the blood test, that the petitioner requested that a doctor or a lawyer — that he be permitted to consult a doctor or a lawyer.

    And the officer testified that this was refused him.

    The officers testified, however, that he did express after refusing these number of times that he did say, well then go ahead and take it.

    The petitioner however has testified that he never did consent to it and continued to protest.

    John M. Harlan:

    (Inaudible)

    Robert F. Peckham:

    The petitioner testified that he was not manhandled or mauled.

    The petitioner testified that the officer held his arm and the technician inserted the needle to remove the blood and the technician testified that he did not remember anyone holding the petitioner’s arm but of course, he did inject the needle into his veins.

    Harold Burton:

    There’s no objection on the basis of pain or suffering or torture, any of that kind?

    Robert F. Peckham:

    No, Your Honor.

    Have you a reference to the place that he requested a counsel or is it (Inaudible)

    Robert F. Peckham:

    Yes, Your Honor.

    Well, if you don’t have it —

    Robert F. Peckham:

    Yes, sir.

    — right in front of me, don’t make it (Voice Overlap).

    Robert F. Peckham:

    Yes.

    Yes, Your Honor.

    At page 84 of the record, the petitioner testified to that — I beg your pardon — an Officer (Inaudible) testimony is more pertinent there at page 43 and 44 and 45.

    He raised a question (Inaudible)

    Robert F. Peckham:

    We — we submit that he did, Your Honor, in this way.

    That instructions were submitted to the jury on the issue of voluntariness setting forth the constitutional requirements that as — as alleged by the petitioner in this case that his blood could not be taken against his will and without his consent.

    In other words, the instructions which are set forth on page 21 of our brief and also in the record on page 144.

    Those instructions were submitted and were refused by the trial court.

    The refusal of giving those instructions was assigned as error in the statement of appeal that was passed upon by the appellate department of the Superior Court.

    Petitioner was then taken to the county jail where he was permitted to make a telephone call.

    At the trial, the criminologist who made the analysis testified that he did not know who made the analysis whether he did or whether it was assistant and it was admitted over objection.

    Now in this case, Your Honors, we — we submit that the failure to give these instructions raises the federal question as to whether or not under the Due Process Clause, a person such as petitioner can be compelled to give his blood when he is suspected of drunk driving.

    We acknowledge that the —

    Felix Frankfurter:

    May — may I interrupt?

    Robert F. Peckham:

    Yes, Your Honor.

    Felix Frankfurter:

    You were referring to instructions, requested instruction, 11 on page 144.

    Robert F. Peckham:

    Well, Your Honor, we submit that instructions 8 through 11 are relevant in this matter.

    Felix Frankfurter:

    And 11, the instructions there is to tell the jury that as a matter of law, and as to your point of view, that’s an instruction, that’s a ruling on law based on the finding that it was without consent against his protest, is that right?

    Robert F. Peckham:

    Well —

    Felix Frankfurter:

    I mean, whether — if it were agreed that it was then without the consent, attempt to struggle, then from your point of view, the Court would’ve — would have to instruct the jury, they would find for the defendant, is that right?

    Isn’t that your view?

    Robert F. Peckham:

    Well —

    Felix Frankfurter:

    Is it for the jury to determine what is or what isn’t within the due process, is it?

    (Inaudible)

    Robert F. Peckham:

    It is not.

    Felix Frankfurter:

    — the facts on which such a ruling is to be based and applied.

    Robert F. Peckham:

    In accordance with the instructions as to what the law is, Your Honor.

    Felix Frankfurter:

    And I wonder what — you have to look at the instructions specifically to see whether the proper instructions were asked and refused, assuming you’re right in your contention.

    First the arrest, (Inaudible)

    I suppose now that — to review that, and assuming you take yours under law, unless you subject himself here, subject himself against this defense without the application at all, of course not to make it unfair, I’m not implying mauling the man.

    The point I’m making is that what is — what is now violates the due process.

    This is a question for the jury.

    Robert F. Peckham:

    Well we submit, Your Honor, that it isn’t.

    That under California procedure, the question of voluntariness is for the jury to whether or not he gave his consent.

    Felix Frankfurter:

    I — I agree to that for the California law to put what I am inclined to say.

    So whether it is or it isn’t voluntary, whether he subjected to it, whether he agreed, whether he resisted, that’s to determine — that’s the fact issue.

    Robert F. Peckham:

    Yes, for the jury to determine.

    Felix Frankfurter:

    Yes.

    All I’m suggesting is that that isn’t what he — requested charges were.

    Robert F. Peckham:

    Well I submit, Your Honor, that they perhaps did not specify the different elements of what force or coercion may be but they do in their entirety certainly give the judge the request that if — if there was force or coercion exercised in the taking of blood and it was against his will that then they may — that if they find that that is not true and in fact was the case, notwithstanding the officer’s testimony that the petitioner said, “We’ll take it,” then they should disregard the blood test results and consider only the other evidence.

    Felix Frankfurter:

    I suppose if your requested charge nine that — that —

    Robert F. Peckham:

    I —

    Felix Frankfurter:

    This is a — it seems to be a proper division of responsibilities that you caused the jury.

    Robert F. Peckham:

    I would submit so Your Honor.

    And I would say that — I would say that that is correct, Your Honor.

    You don’t have to detect a (Inaudible)

    Robert F. Peckham:

    If there is a preliminary — if there is a — if — if as a matter of law the — arguing now from an analogy to coerced confessions, if as a matter of law, my understanding is, that a confession has been coerced on the objection, a preliminary and a preliminary examination by the Court it can then be excluded.

    If there is a conflict in the evidence, the issue of voluntariness where the content was given or not is one for the jury.

    It is my understanding that it’s analogous to an admission, that then the ultimate issue of volunteering is — is one for the jury.

    There was in the evidence intoxication (Inaudible)

    Robert F. Peckham:

    There — there was, Your Honor and there are also, of course, where the evidence that there was not intoxication including four other witnesses besides the petitioner testifying on his behalf as well as the officer and the technician testifying that there was indications of intoxication.

    Did the — did the Court charge anything under this matter?

    Robert F. Peckham:

    No, it did not.

    There were no — there were no instructions at all, Your Honor, in connection with voluntariness or in connection with any of the subject matter of these instructions.

    That is the question was raised, your argument is, the question was raised and the evidence is not to be admitted.

    He then objected to — did admit (Inaudible) evidence.

    Now, (Inaudible) that it was heard and you were overruled and nothing — there’s no further ruling in the Court to base that out.

    Except that the Court kept the declination of your proposed charges.

    Robert F. Peckham:

    Your Honor, I — I must — I must point this out, that there were objections made to the evidence.

    In the first instance, the Court interrupted counsel and overruled before any ground was stated.

    Subsequently, there was a motion to strike and I believe the ground, there also was some colloquy there as I recollect the nature of the interruption but ideally it was indicated the objections on the ground of hearsay.

    And then these instructions were submitted.

    (Inaudible)

    Felix Frankfurter:

    (Inaudible)

    Robert F. Peckham:

    It was not — it was — it does not appear — it’s not in the record Your Honor, no.

    Felix Frankfurter:

    (Inaudible)

    Your answer to Justice Clark, he admits the reach of this evidence but never objected on the ground that it’s in violation of due process of law.

    Robert F. Peckham:

    It doesn’t appear in the record, Your Honor.

    Felix Frankfurter:

    (Voice Overlap) that would be in the record.

    I’m looking at the record (Voice Overlap) —

    Robert F. Peckham:

    That’s right.

    Felix Frankfurter:

    (Inaudible)

    Robert F. Peckham:

    That’s right.

    There are objections.

    In the first instance, there is no ground stated.

    When the blood itself and the blood sample itself was admitted, counsel was interrupted and there was no ground stated.

    Hugo L. Black:

    What page is that?

    Robert F. Peckham:

    That is page 51.

    Felix Frankfurter:

    You’re not rearranging the points because you weren’t allowed to state the grounds of objecting, are you?You weren’t prevented from stating the ground of objection.

    Robert F. Peckham:

    Well I — I submit, Your Honor, that —

    Felix Frankfurter:

    I mean that isn’t — that would be another ground of — that’s another offense of Due Process Clause than the one you’re urging.

    Robert F. Peckham:

    Well, it’s a general circumstance surrounding this, Your Honor, and counsel did submit these instructions and that our — our basic, of course, our basic contention is that this adequately raised this issue for the trial court.

    That the petitioner was entitled to an adjudication of the issue of whether or not he gave his consent.

    And our view is that if —

    Felix Frankfurter:

    The question is whether that issue was properly propounded to the Court at the time it should have been (Inaudible) the Court should rule on it at the time evidence brings before the jury.

    Robert F. Peckham:

    Well, at — we submit, Your Honor, that it —

    Felix Frankfurter:

    Suppose — suppose your Supreme Court had gone on the ground that — I know the case is here, because (Inaudible) suppose the Court or the Supreme Court of California didn’t go to (Inaudible)

    Robert F. Peckham:

    No, appellate department without an opinion, Your Honor.

    Felix Frankfurter:

    Suppose he — suppose they had ruled that no timely objection was made or if that was the case in here.

    Robert F. Peckham:

    If that — if that were the law, that I assume is — is correct, Your Honor.

    But — but may I say this, at that time, there was not the evidence in the record to show that it was involuntary.

    The — it wasn’t until the presentation of the evidence on behalf of the defendant and the petitioner in his own testimony that the conflict in the record appeared.

    Felix Frankfurter:

    Remove the — remove the strike after there was evidence on that petition.

    I should suppose the state offered testimony but the question (Inaudible) that is extracted from him by force, we mean by that without his consent and overly submissive (Inaudible) and doesn’t have to — it doesn’t have to make battle with (Inaudible)

    I suppose you then and there (Inaudible) state a foundation that establishes that merely what (Inaudible)

    There was nothing like that here, was it?

    What you say that when he came to testify, they came to suspend.

    They then brought out the — when it goes over his rejection.

    Now, then (Inaudible)

    Suppose there — there’s a motion to strike out as the Court has charged a jury to disregard it.

    Robert F. Peckham:

    At the conclusion of the testimony, Your Honor, I don’t recall a motion to strike being shown in the record.

    I — the — he did — he did make the objection as I stated it earlier and — and — but without stating this ground.

    But it’s our — but on cross-examination, he did ask the officers, counsel for the petitioner, did ask the officers whether or not it was with his consent and they stated that — that it was.

    Felix Frankfurter:

    I referred from your answer that you were on — at that time.

    Robert F. Peckham:

    No, I was not Your Honor.

    And therefore –and therefore, it wasn’t until the presentation of this issue as to voluntariness or when petitioner states in chief that it came before the Court and then the element issue of voluntariness was such a clear cut conflict.

    There would be one for the jury under our state law is our contention.

    Has it — your contention as to instructions less specifically raised — well, specifically raised the questions.

    Robert F. Peckham:

    Yes, that is correct, Your Honor.

    I — I think it was still (Inaudible) agreed on the conflict of testimonies as to whether it was by force or not.

    That one testified one way and the other — or testified in the other.

    Robert F. Peckham:

    Yes, that is correct, Your Honor.

    We — it’s our contention that — that in as much as the issue of whether or not there was consent was never adjudicated below and that it would be part of due process that it be adjudicated, if in fact, a compulsory involuntary blood test is and thus violates the Due Process Clause of the Constitution.

    In other words, in as much as there was not a voluntary — an adjudication of this issue and if taking the defendant’s view of the case, there would be a such compulsion that it would be contrary to due process, then it would be — then it was essential that he have an adjudication on the issue of voluntariness.

    I think you’d take the position that if your instruction 11 as been given, if it’s been given, that is — and that’s for the jury to pass on the question of consent or not and also to pass on the judgment having passed unconstitutional.

    Robert F. Peckham:

    That is correct, Your Honor.

    And he would pass on it in his determination of the instruction and apparently —

    (Inaudible)

    Robert F. Peckham:

    Yes.

    We acknowledge, Your Honors, that the force and coercion employed here were, of course, less violent and more subtle than that found in the Rochin case, but nonetheless, the force is nonetheless present in that the blood was taken against his will and over his protest.

    And as he stated himself in the record, that at the point when the blood was to be taken from his veins, the only thing left for him to do was to resort to resistance of a physical nature and that he thought that the only thing — that that would — and that would aggravate the situation.

    Just as with coerced confession cases, the coercion is not alone confined to violence and brutality but also other less violent and brutal circumstances have been held to cause a confession not to stand.

    Now, in this situation where we have an analogy as was brought out in the Rochin case with the coerced confessions where you have the extraction of real evidence, you have a somewhat different situation in this respect that the length of time is not particularly or necessarily a factor in that when once over the protest and against the will of the petitioner, the police attempt to take the blood from his veins, he is faced with three alternatives at that time.

    It is not the question of how great the coercion is or how — over how long a period of time it goes in order to see if the pressure was so great that he no longer could resist the coercion.

    But at that point regardless of the amount of time, he must determine whether he is to submit and just continue orally to protest or whether he is to resort to physical resistance and thereby bring — in a sense bring himself within the Rochin doctrine if the officers themselves go on with further restraint to extract the blood.

    Otherwise, he is — he is — and for that reason we submit that the — that a — an extraction from the body of blood is a violation of due process when taken against his will and over his protest irrespective of the degree of force used to do so.

    Felix Frankfurter:

    There is no opinion by any of your courts on — on this substantive issue which was raised.

    Robert F. Peckham:

    That is correct, Your Honor.

    Felix Frankfurter:

    Has the — is it in the record the issue that you’ve raised in — before the jury of a court under your law?

    Must we state the grounds on which you go up in a superior court, in a municipal court.

    Robert F. Peckham:

    That is correct.

    Felix Frankfurter:

    Then they — are the grounds stated in this record?

    Robert F. Peckham:

    They are in — in this way.

    In the statement of appeal which is a part of the transcript, the first certification and that’s on page 147, the first assignment of error is that the Court erred in refusing the proposed instruction 8 through 11 submitted by the defendant.

    We submit, Your Honors, of what is offensive to our sense of fairness in this case is the intrusion of the person against his will and not the degree of force and brutality that is used.

    We submit that one medical procedure does not differ from another in this respect in that both caused the entry into the body of the defendant for the extraction of blood.

    The — the extraction of blood falls also — and under the circumstances of this case, we submit outside the scope of a reasonable search and seizure as well as falling below the minimal standards of due process.

    Here we have an intrusion, which is a — we submit a violation of the privacy of the individual.

    His blood was — the extraction of blood under these circumstances is certainly not within the classical concept of a reasonable search and seizure and — and it’s not for the purpose of — of obtaining the fruits of a crime or its instrumentalities or weapons that might endanger the officer or effectuate escape.

    The unreasonableness manifest itself further in the fact that he was refused the right to consult a doctor or an attorney at that time that he was requested to have his blood extracted from him.

    (Inaudible) are you depending on that?

    Robert F. Peckham:

    As one of the circumstances, yes, Your Honor.

    But that wasn’t in your instruction.

    Robert F. Peckham:

    It — it was not, it was evidence, I would — I would take it, Your Honor.

    It was evidence on which the jury could — could weigh in — in determining the issue of fact of the voluntariness of the — of the extraction of the blood.

    I submit that in California today, that in all probability, judging from the decision of People against the language in the decision of People against (Inaudible) that the taking of blood under the circumstances of this case would be deemed an unreasonable search and seizure.

    That was a case where a — decided by the State Supreme Court before the Irvine case and its consequent repercussions in our state in the form of People against Cahan and in — and there, a woman was involved in an accident and taken under the supervision of the state police to a hospital and a blood taken from her veins not only for medicinal purposes but also for purposes of determining the alcoholic content.

    Robert F. Peckham:

    The — the Court commented there while not expressly holding that there was — that it an unreasonable search and seizure but certainly clearly by implication by pointing out that the rule in our state at that time before People against Cahan was not of course the federal exclusionary rule which is now is.

    And therefore, the evidence though indicating that it was improperly taken, when it was taken from her when she was unconscious without her consent would be a — would indicate that that would be a violation of unreasonable search and seizure.

    And now under People versus Cahan, the rule of course in our state is that evidence obtained by an unreasonable search and seizure is to be excluded and not considered.

    Now, in the — the respondent’s brief, there is cited a legislation of states where blood tests are required for different purposes.

    We submit that none of those legislative enactments that are cited being under the police power are for the purpose of extracting evidence to be used against the petitioner, that they have as their purpose the protection of the safety, health and welfare of the people and not as their essential requirement of the extraction of evidence to be used against a defendant under the circumstances of this case.

    How about fingerprinting?

    Robert F. Peckham:

    Well, Your Honor, that does not — in — it’s the — it does not include the invasion of the body but the intrusion into the very person himself.

    (Inaudible)

    Robert F. Peckham:

    It is our contention that —

    That often fingerprinting is used in prosecutions.

    Robert F. Peckham:

    But it’s our — it’s our contention, Your Honor, that this case and any cases involving the intrusion of the body differ from those cases of trying on a garment or of a line up or a fingerprinting on the ground that the person himself is violated by the intrusion in obtaining the evidence.

    I suppose the same way you distinguish the examinations of this person being extendable (Inaudible)

    Robert F. Peckham:

    Well, that isn’t a criminal case, Your Honor.

    In the federal court?

    Robert F. Peckham:

    Yes.

    That would be a prosecution, don’t you think?

    Robert F. Peckham:

    Well, I — I know under our — it’s — as to my understanding under our state that when you — of course when you file an action for tort damages that you waive any privilege that you may have to refuse to consent as a part of your action in tort, you have to submit to a — at least one physical examination.

    And — and that would, of course, be the basis of our distinction.

    Felix Frankfurter:

    Are there any decisions in the law of federal courts on the — on compelling a figure, could it be in a prosecution, in a federal prosecution compelling the defendant (Inaudible)

    Robert F. Peckham:

    I don’t know, Your Honor, I assume there would be.

    Felix Frankfurter:

    (Inaudible)

    Robert F. Peckham:

    Well, it’s so universal with then, it may have.

    But I must — I might say Your Honor that — that there are two cases that what we’ve — that were decided by lower federal courts indicating that the extraction from the body would be an unreasonable search and seizure notwithstanding the validity of an arrest in connection with —

    Felix Frankfurter:

    Extracted (Inaudible) extracting what?

    Robert F. Peckham:

    In the United States versus Willis, it was the — it were capsules of narcotics.

    It was very — the factual situation was similar to the extraction of narcotics from —

    Felix Frankfurter:

    Is it in your brief?

    Robert F. Peckham:

    Yes — yes, it is in our — in our reply brief.

    Felix Frankfurter:

    I noticed a question of (Inaudible)

    Robert F. Peckham:

    U.S. versus Willis —

    Felix Frankfurter:

    (Inaudible)

    Robert F. Peckham:

    You — on page 3.

    Your take on — what do you say about X-rays and then a picture (Inaudible)

    Robert F. Peckham:

    Well, it’s a — it’s a matter — it’s — it’s a matter of degree.

    There is a — there is of course a — a reproduction of the contents of a body and if that reproduction could be — could be used for evidence, it perhaps would — would fall within this doctrine.

    But there of course again we have a — a situation where the body itself is not imposed upon to the extent that it is where a medical procedure is utilized that causes the intrusion of the body with instruments.

    Here, of course, there are rays which reproduced a photograph in layman’s sense of the contents of the body.

    That they can look inside but they can’t go inside?

    Robert F. Peckham:

    Well, I wouldn’t — I would — I would submit, Your Honor, that certainly under the — under the doctrine of — under the rule — under the doctrine of privileges against self-incrimination if that were to be the basis of such a — of cases such as this where there’s an extraction of real evidence, then, of course, that clearly would also be — a manner that would fall within the Due Process Clause.

    Felix Frankfurter:

    I would suggest — I would suggest, you’re arguing the case not on the assumption that the privilege of self-incrimination as part of the Due Process Clause is (Inaudible)

    You’re not suggesting we shouldn’t argue it and ask this Court to change the provisions on that clause.

    As of now, I suggest we cannot argue this case and hope to (Inaudible)

    So all you have to prove that there’s self-incrimination, isn’t that this case, the hardest act you might —

    Robert F. Peckham:

    If — I appreciate that, Your Honor.

    We submit that — that in — that such intrusion of the body that amounts to an unreasonable search and seizure should result in the reversal of a conviction.

    And we submit that any such force exercised for the extraction of such evidence would justify such a reversal.

    We note the language that contained in the Irvine case where in it is pointed out that there was an intrusion of the person in Rochin as compared with that in Irvine.

    And that we also submit and I have already related to this that in the event there was a — that this occasion arose in our state today under the doctrine of People against Cahan, which now has instituted in our state as a rule of evidence, the federal exclusionary rule that this evidence would not be permissible if it were in fact involuntary.

    Felix Frankfurter:

    What to do with — is there anything you can say about (Inaudible)

    Robert F. Peckham:

    Well, it’s — as I recollect that is the case of trying on the —

    Felix Frankfurter:

    Yes.

    Robert F. Peckham:

    — on the garment.

    Well, there again Your Honor, there is not a violation of the person in the sense of — of intrusion into the body through the use of a medical procedure.

    There — that case is — is — I would – I would place in the category of the fingerprints and also the — the lineup.

    Felix Frankfurter:

    But assume that fingerprinting is constitutional under your right.

    I assume no reason for assuming that — that in the federal part at least.

    I might say — I think, frankly, a common practice doesn’t make it — or violate a constitutional question.

    I would have great difficulty in a federal case not to regard that as self-incrimination.

    That’s precisely my difficulty.

    This is not a self-incrimination problem (Inaudible)

    Felix Frankfurter:

    Then it goes (Inaudible)

    Robert F. Peckham:

    Well under — considering that this arises under the Fourteenth Amendment, I have viewed it under the — under what falls below the minimal standards of due process is also what would be considered an unreasonable search and seizure.

    And for that reason, I — I submitted that the fingerprinting would not perhaps be.

    Felix Frankfurter:

    Well, I’d say (Inaudible) questions.

    Robert F. Peckham:

    If there are no further questions, I’m clear with my argument.

    Clarence A. Linn:

    I think the proper consideration of this case demands a more particular look at the facts.

    First, as to the testimony concerning the actual happenings and then also as to the objections that were made or as we will contend were not made in this case.

    First, the testimony as to the actual happenings by which the basis of force or the contention of force would have to be — be based.

    We’ll take Officer Shannon who was a highway patrolman who followed Walton as he shot out from the parking lot by (Inaudible) down near Palo Alto, a very nice place across the traffic into the other of the lane and the officers followed him, caught up to him.

    Well at first, he raised — this is of the officer’s testimony is.

    Officer Dailey asked him if he would submit to having a sample of his blood taken for a blood alcohol.

    Question What did Mr. Walton say to that?

    Hugo L. Black:

    Where are you reading from?

    Clarence A. Linn:

    I’m reading from pages — the testimony is at — from — on page 8 to 21, I’m reading.

    And then from 36 to 49, I’m reading from pages 42 and 43 of the printed record.

    Well at first he raised his right sleeve as though he was going to do it and then he stopped.

    He says, “I don’t want to.”

    Then what happened?

    Well, Officer Dailey kept asking him why he didn’t want a test performed and I don’t know Mr. Walton’s exact words, but the gist of it was that he didn’t.

    Well then finally, he had rolled his sleeve back up again and then he refused again.

    He went three or four times and eventually, he stuck out his arm, he says well, take it.

    Then again, Officer Shannon testified.

    Now Mr. Shannon — and this is on cross-examination.

    “Now Mr. Shannon, isn’t true that at all times Mr. Walton protested the taking of a blood sample?”

    Answer “Not at all times.”

    He seemed to (Inaudible) for a while then he would suddenly got an idea, he wanted to see somebody, or other.

    I forgot who he said he wanted to see that even still — we would still talk to him and he would roll his sleeve up and stick his arm out then he would refuse again.

    I don’t know what the idea was.

    That’s Shannon’s testimony.

    Then the technician who was called and he is a duly licensed technician under the laws of State of California for taking blood samplings upon request licensed for that purpose.

    Clarence A. Linn:

    Henry (Inaudible), the laboratory technician, and I say this took place in the automobile, the Accident Investigation Bureau maintained by the sheriff’s office, the District Attorney and the police of that area for the purpose of making examinations.

    No — no police station, no anteroom to a jail.

    This was a laboratory which is kept for that purpose.

    He wrote a question and he request — he was requested to take a blood test and he refused to do that, didn’t he?

    Answer At first he did.

    Yes sir.

    Hugo L. Black:

    What page is that?

    Clarence A. Linn:

    This is office — this is the technician (Inaudible), from page 52 of the record.

    “At first he did.

    Yes, sir.”

    And used — and used a question, and you stated that he did consent to taking the blood test after that?

    Answer He did consent to have his blood sample taken.

    Question Now, up to that time, his attitude had belligerent — been belligerent, had it?

    Yes, it had.

    Then, we go on this testimony on page 54.

    Now when the blood test was taken, did Mr. Walton protest?

    Answer Not when his blood test was taken.

    No.

    “But he did immediately before that?”

    Answer He had refused a couple of times before he finally gave his consent to having it.

    Question Did any of the officers threaten him in any way about taking the blood test?

    Answer No.

    Question Did any of the officers hold his hand while the blood test was taken?

    Answer No, I don’t believe so.

    Question You don’t believe so?

    Answer I generally take the blood test myself.

    I generally put their arm on the desk because it is right there and I take the blood test.

    Question Generally, that is true, what about this time?

    Answer I don’t remember the officers even touching him while he was taking the blood.

    And then we’d come to the testimony of the —

    Felix Frankfurter:

    Before you move on to it, did you say that that testimony implicated the — while sometimes he objected the (Inaudible)

    He resisted and objected — he objected (Inaudible) and finally they yield to persuade him, he — are we to infer that he is then (Inaudible) just I’m wrong, that was (Inaudible)

    Clarence A. Linn:

    I — I think so.

    Usually going to assume that or assume that the officers were doing something they shouldn’t do and I think —

    Felix Frankfurter:

    But the officers thought they have a right to take that test whether he likes it or not.

    Clarence A. Linn:

    Well, I — I don’t think so.

    I think he would found out.

    Felix Frankfurter:

    The officers had — am I to (Inaudible) that you think that if he answered no, no, no, no (Inaudible)

    And then taken (Inaudible) and persistent saying, no, no, no, the officers couldn’t make him do the test.

    Clarence A. Linn:

    I think that’s true.

    The officer would not.

    Felix Frankfurter:

    (Inaudible) — Why?

    Am I to infer from that?

    That that is why that an — there’s an assumption of the right to do this on the part of police authority?

    Clarence A. Linn:

    I think you’ll find — I don’t know what some police authorities they had but they think you would find down there around San Jose, they’re pretty cherry about this sort of thing.

    Police officers have feelings although some people may not think so and when they read opinions such as are published in the Rochin case, they have sensibilities.

    Now, I — I know that from personal experience.

    They — I’ve talked to them what — we can’t do anything and that’s their attitude.

    And they won’t do anything in a case like this unless the man — until the man consents.Now, here’s Walton’s testimony.

    (Inaudible)

    Clarence A. Linn:

    No.

    Walton comes near to it as anyone.

    Walton — and I’m reading from his testimony on page 82.

    Now you heard Officer Shannon testified that you protested giving blood from — for the test at first.

    Answer That is correct.

    Question Several times —

    Question And several times, an Officer Shannon then testified you’ve finally consented to give them the blood test.

    Answer I continued to protest.

    Question What happened?

    Answer The blood was taken from me against my will.

    Clarence A. Linn:

    Question Did anyone hold your arm?

    Answer What happened, they rolled up my left arm, the sleeve of my left arm, and injected the needle and remove the sample although, I continued to protest.

    “And you protested?”

    Answer I did.

    Afterwards, I wanted some notation made about my protest.

    And then I’m reading further on in his testimony from pages 104 and 105.

    He says, I was obliged to give a sample of blood.

    Question How were you obliged?

    Answer By telling that.

    And then there is a quotation in the record, “You had better comply or else,” and that closes the quotation.

    And then he adds, Walton, the “or else” being implied so I stopped.

    The officer didn’t say, you give us your blood or else.

    They asked him to give his blood.

    He said the “or else” was implied as far as he was concern.

    Felix Frankfurter:

    So then may I ask you this?

    We have no indication here from the trial judge or from the Superior Court of — the status of the denial from the questions brought by the trial.

    We have no indication that the state of mind of the trial judge on this court.

    Clarence A. Linn:

    Well —

    Felix Frankfurter:

    And we have no indication in the Superior Court read —

    Clarence A. Linn:

    That’s — that —

    Felix Frankfurter:

    — for affirming the conviction.

    Now, what I should like to ask you in the light of that question.

    Clarence A. Linn:

    That’s correct except — except when you read the record and see the objection that was put in.

    The Court then, throughout those requested instructions, because they weren’t responsive to any issue in the case.

    Felix Frankfurter:

    Now, that brings you to my question.

    I have nothing but (Inaudible) unexplained objection, denial of this (Inaudible)

    An unexplained affirmative conviction, that the matter of California law might be entitled to attribute to do — to grant and the affirmance of the conviction on any — on any middle ground in the record they justified.

    Clarence A. Linn:

    Yes.

    Felix Frankfurter:

    And therefore would I be justified in saying for all I know, this state conviction rest not on the assumption and the acceptance of a proposition at law that this maybe done against the resistance of defendant as it rest in this case and the fact, this is voluntary and the constitutional questions overreached.

    Clarence A. Linn:

    I — I’ll say it, you can come to this conclusion and must come to this conclusion that there were no objection when the evidence was offered in California as in many other states, the objection, for instance, to confessions which there maybe a question of force.

    Clarence A. Linn:

    Now, the Court itself will go into the matter at some time — some time on what we call a voir dire examination and decide the question, and that’s the end of it as far as the Court is concerned.

    At other times, the Court will say, “We — I will instruct the jury on the point and submit the matter to the jury.”

    Then the jury will decide it.

    But no constitutional point is presented if the Court itself acting upon the objections before it and the testimony before it rules on the question.

    If it ruled incorrectly, that might be reviewed if there is a proper objection made.

    But in this case, and that’s the point I was coming to, there is no objection.

    And one — one other fact I wanted to — before I leave the evidence, Walton was asked, “You stated, you — they did not push you around.

    You were not manhandled.”

    Answer That is true.

    Now that’s — now the other facts before I come to the legal part.

    There was something said about counsel and doctor being asked for it.

    Here are the facts about his detention.

    You can — we can pick it up from the record.

    I haven’t the reference here but I took it up.

    The man was arrested 10 o’clock at night.

    He reached the Accident Investigation Bureau at 10:20 at San Jose at the normal time.

    In fact, that’s a little too fast to get to that place, it’s 18 miles, they traveled it in 20 minutes.

    The technician came at 10:40.

    They called up the technician when they arrived.

    He — he arrived at the Bureau at 10:40.

    And at 10:55, the blood test had been taken then the man left.

    That’s all.

    And as far as counsel is concern, he did make a request to phone.

    I don’t know whether he’s had counsel or not.

    That’s — but the significant part is the discerning young man called his bartender who came and bailed him out.

    Now, he didn’t want counsel.

    He wanted to get out and he called his bartender, the man who — where he’s been spending the evening and came with the money and put it up and he got out.

    Now, that’s — that’s the terrible brutal treatment that this man received at the office — at the hands of the officers of California.

    Now, to his objections.

    Harold Burton:

    Mr. Linn, before you start on that, your first position is that there was consent?

    Clarence A. Linn:

    Yes.

    Harold Burton:

    And that would dispose of the case in your mind if we find that there was consent.

    Clarence A. Linn:

    Yes.

    Harold Burton:

    Suppose we don’t find that there is consent, but there was no objection, what then?

    Clarence A. Linn:

    There is no objection, then the court below is correct.

    Then I will say further, the — if it was over his objection —

    Harold Burton:

    Yes.

    Clarence A. Linn:

    — we are — I think of fairly an agreement, that this was not self-incrimination.

    Some members of the Court are not in agreement on it, but I think the decision so far would hold that this was not self-incrimination.

    Then the Rochin case was this that brutal and terrible conduct that shocks decency and so forth.

    We have these three propositions which we will proceed.

    Harold Burton:

    So that even though there was objection, you distinguish this from the Rochin case.

    Clarence A. Linn:

    Yes, oh yes, (Inaudible)

    Hugo L. Black:

    What was the objection of this (Inaudible)

    Clarence A. Linn:

    I will read it.

    I’ll go through the — or I’ll go to that one first.

    That was the testimony of the technician, Henry (Inaudible).

    Hugo L. Black:

    What was the distinct testimony to which this objection was made?

    Clarence A. Linn:

    Yes.

    I’ll read the colloquy here.

    Hugo L. Black:

    Is there something about in the exhibit — what was the exhibit?

    Clarence A. Linn:

    The exhibit was the blood and the report, the sample and the report.

    Hugo L. Black:

    In other words, that formed the first objection to the blood.

    You —

    Clarence A. Linn:

    I won’t say that there was — I’ve got them in order here, the objections, so I’ll proceed —

    Hugo L. Black:

    Well, in respect to that —

    Clarence A. Linn:

    Yes.

    Hugo L. Black:

    — that was an objection.

    Clarence A. Linn:

    That was on hearsay.

    Hugo L. Black:

    No.

    Clarence A. Linn:

    That’s —

    Hugo L. Black:

    No.

    Clarence A. Linn:

    Oh, let’s see —

    Hugo L. Black:

    What did that say?

    Clarence A. Linn:

    Objection will be over — yes, that’s the one that he doesn’t — he doesn’t say and I have made a notation, there was no further objection or motion to strike.

    Hugo L. Black:

    And then may I —

    Clarence A. Linn:

    Yes.

    Hugo L. Black:

    Are these in some other case where a lawyer made such objection, judge found — I don’t have to make anymore.

    It says, “Objection overruled.”

    (Inaudible) appellate court, they say that they were the one (Inaudible)

    Is that the rule of California or is there in others?

    Clarence A. Linn:

    There — let’s say the courts are somewhat selective on a matter of that kind according to the case.

    In one case, they’ll say he didn’t make any motion to strike and therefore, the objection on that ground may not be urged.

    Another case will say it’s evident that the trial judge would not permit him and it’s according to — to what happened.

    That is, there’s no hard and fast rule on the subject.

    If the Court just anticipates your objection and that’s what happened in this case because the objection has been made two or three times before and that’s why I wanted to go with — go to a (Inaudible) Bradford, who was the Director of the Laboratory of Criminalistics.His testimony is on pages 23 and 24.

    He testifies that this test was made in his laboratory under his direction.

    My record solely indicates who made the test.

    If it wasn’t made by me, it was made under my direction.

    Question What percentage of alcohol was present?

    Mr. DiMaria, he is the counsel for Walton.

    “I object to that question, Your Honor.

    It is hearsay on the ground that he didn’t make the test himself.

    The Court objection is overruled.”

    Hugo L. Black:

    But that — that objection wouldn’t apply hearsay but (Inaudible)

    Clarence A. Linn:

    Well, it’s the evidence of what the blood showed.

    It’s all been —

    Hugo L. Black:

    But here — here, there was — the blood was (Inaudible) and he objected this way, that objection is printed up in the evidence here.

    And the Court said that objection overruled (Inaudible)

    Clarence A. Linn:

    Yes.

    Hugo L. Black:

    And I will make (Inaudible) consistently without stating my ground that — the objection of that and the courts found where the (Inaudible) had gone in further.

    Clarence A. Linn:

    Well, he —

    Hugo L. Black:

    A conviction, a ground for —

    Clarence A. Linn:

    I don’t know about down where your practice but —

    Hugo L. Black:

    (Voice Overlap) — but that’s the general rule.

    Clarence A. Linn:

    Up — out there in California before a municipal judge who is a higher salary justice of the peace, he won’t object it.

    He rules.

    He — he — but if you’ll come back sir, if Your Honor please, I want to insert on the — my grounds, would have any objections.

    Sometimes, they — not permit you to make a jury argument when you make an objection.

    Unfortunately, sometimes they do permit you.

    What is that for?

    But they wouldn’t — the Court wouldn’t have objected to — that the whole record shows that the Court was not — was treating him all fairly.

    Then they — then he — then he makes another motion.

    John M. Harlan:

    Could I ask you a question —

    Clarence A. Linn:

    Yes.

    John M. Harlan:

    — before you go on, apropos what you were suggesting to Mr. Justice Burton.

    Supposing we came to the conclusion that the taking of this blood test without this man’s consent would violate the Fourteenth Amendment, but we couldn’t see from the record, ascertained from the record what the ground was on which the requested instruction was refused.

    Wouldn’t we then have to send the case back for a new trial on that issue?

    Clarence A. Linn:

    That has been done by the Court.

    In re Dixon was one of my cases here.

    It went back and the California court took — took quite a little time in coming to it, you’ve got to ask them twice.

    And finally, they — they rendered the decision and they based it upon a couple of adequate state grounds as I properly would.

    That procedure is possible, but here, I don’t think you could get that far because, first, you got to get over the hurdle of self-incrimination.

    Felix Frankfurter:

    (Inaudible) Justice Clark why the judgment read — why we don’t know on what ground it’s referenced.

    I don’t know the purpose (Inaudible) jurisdiction, if you ask (Inaudible)

    We don’t know whether they based it on state ground or in federal ground (Inaudible) state ground, in federal ground and not in the factual ground.

    Clarence A. Linn:

    Well, I — I vow respectfully, that’s what I have said in the Dixon case.

    It went back and they found a state ground and based it.

    I think Your Honor is absolutely correct on that, but I didn’t want to make a mistake with Mr. Justice Harlan and somebody bring the Dixon case out on me.

    Felix Frankfurter:

    It seems to me though and I think you have an unfortunate one, having counsel on both sides, people are generous (Inaudible) they might even understand me.

    Felix Frankfurter:

    (Inaudible)

    Clarence A. Linn:

    Well, we get used to things after a while a judge and — we — [Laughts].

    I think he will, the way you’re talking.

    Clarence A. Linn:

    [Laughs] We went along on Bradford’s testimony again.

    Mr. — Mr. DiMaria made a motion to strike the evidence from the record then, on the ground that it was hearsay.

    No objection was made at any time what Officer Shannon testified.

    He identified the blood that was taken.

    Officer Shannon at pages 17 and 18 of the record, he said the blood sample was taken in my presence.

    Was — was it taken in your presence?

    “Yes sir.”

    And they — I offer it for identification at this time, Your Honor, and the objection was again that it was hearsay.

    And it was overruled and put it on a game.

    The three places in the record that the objection was made on the ground that it was hearsay.

    Now we come to those instructions.

    As I say the instruction, the refusal to give the instructions from this case after the evidence was admitted without qualification can raise no constitutional point.

    All it means is that the Court decided the evidentiary question itself and did not reserve it for submission to the jury as it was done in the Stein case and has been done in California cases as well.

    The Court was satisfied and it made its ruling.

    The objections, if you would take them and argue them in a — in a California court or in this Court, the objection eight, a person arrested because it appears that he is intoxicated has a right to refuse to subject himself to any at all usual tests.

    I don’t know what is — object — to any all usual test and to a blood test.

    Well obviously, that is not a correct exposition of the law.

    That’s an argument to a jury, but it’s — it’s not — it’s not a legal objection.

    And then — then — in number 9, if any physical or other coercion frowned upon by due process as implied in taking a blood test.

    Well, what — what does that instruction mean?

    Any other coercion frowned upon by due process.

    There’s no explanation of it.

    There’s no — there’s no limitation.

    What is frowned upon by due process?

    (Voice Overlap)

    (Voice Overlap) —

    Harold Burton:

    In California, if you tender an instruction, must it be legally correct before error can be —

    Yes.

    Harold Burton:

    — concluded by the Court?

    Oh, yes.

    That’s — that’s California law.

    Then 10, the instruct — it is a denial of due process under the Due Process Clause if brutal or shocking force is exerted in obtaining a blood test.

    I submit there was no evidence of brutal or shocking force in this case even if there was coercion.

    And 11, it is a denial of due process if they had taken from him by force and without his consent and against his protest and must be disregard that entirely.

    These — these are not matters that tie themselves into a case.

    No municipal judge, superior judge would give instructions in this language.

    It’s — it’s a kind that our good friends of the defense make to the jury when they argue and they threw them in here before a judge of this case.

    Now —

    Hugo L. Black:

    I don’t quite understand that.

    I would think that you were saying that as you raise the question — you wanted to raise the question.

    Let’s assume now that — (Inaudible) of this law some other purpose, that if you compel the evidence, the state of it will violate the (Inaudible)

    Are there any cases?

    Clarence A. Linn:

    Well, you would have to tie — it would have to be tied in.

    Here, it is a denial of due process under the Fourteenth Amendment of the United States if a blood test is extracted of a person arrested because it appears that he is intoxicated by force and without the consent and against his protest.

    And the results of such blood test maybe disregarded entirely.

    Now, if you’re going to raise the —

    Hugo L. Black:

    Now, why wouldn’t that be a good —

    Clarence A. Linn:

    I — I was just going to say —

    Hugo L. Black:

    Assume the law.

    Clarence A. Linn:

    If you’re going to assume that this is self-incrimination, that — that maybe.

    Hugo L. Black:

    That would raise —

    Clarence A. Linn:

    That would raise that.

    But it wouldn’t raise the other due process of shocking and brutal force.

    It would not be and that’s the thing, self-incrimination, yes.

    That might — might raise that.

    Now, the appellate court, no other objection was made —

    You do think that this record shows that — that this man did properly object to the taking of his blood for a test?

    Clarence A. Linn:

    No, I don’t think the record by — I think the record shows that he was persuaded to give his blood.

    Now —

    Hugo L. Black:

    (Inaudible)

    Clarence A. Linn:

    He said — but — he says that.

    But the officers who took it say that he didn’t consent.

    So you have a conflict there.

    And now here you have — you have a 15-minute period of questioning.

    There’s no force or no manhandling.

    Now, if this is going to be self-incrimination, the nature of the confession wrung from him and you’ve got 15 minutes, what are you going to do with these four and five hour cases that come up here from time to time?

    Here, a man in 15 minutes, “Go on, let’s have your blood test.

    What are you afraid of?

    It will prove you’re innocent.

    I could — or we will prove you’re guilty.

    This is a sure way for you to get out if you’re not drunk.

    This is an accurate test.”

    That’s the kind of things that go on in the — in the station house.

    Felix Frankfurter:

    I should say that your present testimonies are better than the police one.

    Clarence A. Linn:

    Well [Laughter], I’m glad, I can approve on it.

    [Laughter] Let’s see.

    But that the policeman said, he wasn’t manhandled.

    There was no show of force.

    Hugo L. Black:

    That’s the power for the — we have to (Inaudible) the charge.

    What would they — there was a criminal basis here.

    Clarence A. Linn:

    Yes.

    Hugo L. Black:

    They took away from it and they say (Inaudible)

    Clarence A. Linn:

    And the Court decided that.

    The Court decided that and removed it from the consideration of the jury, if you will.

    And that does not raise a constitutional point.

    They removed it from the jury.

    The Court has a right to decide questions of evidence and — or it may be left to a jury.

    Clarence A. Linn:

    But whether the Court does one thing or the other does not raise a —

    Hugo L. Black:

    When did the court reach that?

    Clarence A. Linn:

    What?

    Hugo L. Black:

    When did the Court resolve (Inaudible)

    Clarence A. Linn:

    When it admitted that the — the testimony — when it admitted the blood test, the Court decided it.

    Hugo L. Black:

    How do we know that?

    Clarence A. Linn:

    By reading the record.

    That’s the —

    Hugo L. Black:

    I know but I didn’t see (Inaudible)

    Clarence A. Linn:

    Of course, that was not raised directly.

    Felix Frankfurter:

    Well you said here — but on your answer a minute ago, he admitted it.

    Clarence A. Linn:

    He admitted —

    Felix Frankfurter:

    That’s the only answer you’ve got — you’ve got on it.

    Clarence A. Linn:

    That he admitted what?

    Felix Frankfurter:

    That he admitted his testimony and that’s covered by jury.

    Clarence A. Linn:

    Well, he admitted it —

    Felix Frankfurter:

    Yes.

    Clarence A. Linn:

    But he didn’t let the question go to the judge of whether it was forceful or over the man’s objection.

    He didn’t let it go the jury on that point.

    He refused the instruction on that point.

    Felix Frankfurter:

    That’s because he decided.

    Clarence A. Linn:

    That’s because he decided.

    Hugo L. Black:

    The judge (Inaudible) that it was admissible even though they should be away from it.

    They know.

    Clarence A. Linn:

    It could have been either and both.

    Hugo L. Black:

    That’s right.

    Clarence A. Linn:

    And probably was both in this — in this type of a case.

    Hugo L. Black:

    It could have been (Inaudible)

    Clarence A. Linn:

    Well, the — I don’t like to delve too deeply into the judicial mind.

    People have gotten in trouble for that.

    It getting aside, it wasn’t raised in time, didn’t it?

    Clarence A. Linn:

    Yes.

    It wasn’t raise in time.

    Get it decided —

    Clarence A. Linn:

    At the end of the case — the end of the case, for instance, now, let’s — let’s be practical about it.

    Supposing an objection had been made when this evidence was produced, as to the question of consent.

    There were three other officers present at the time the blood test was taken and then an issue had been raised on that, a substantial issue warranting a consideration of the Court during the trial.

    That they’ve called in the other officers, put them on the witness stand, and have them testify as to what had happened.

    But he doesn’t do that.

    He makes his objection to the introduction of the evidence after the case is closed and the Court is giving his instructions to the jury.

    They give their instructions to the jury in California after the arguments are read.

    And they’re going to open the case again, and say we’re going to consider this evidence over again.

    We want to prosecute — we want to rebut the implication that counsel now draws, attempts to draw.

    We want to rebut that by introducing further evidence.

    Hugo L. Black:

    He didn’t decide it on that.

    Clarence A. Linn:

    No, but —

    Hugo L. Black:

    If you have that (Inaudible) if you have the conflicting evidence, one, (Inaudible)

    What other way it raised the question (Inaudible) — that’s — if you want to raise the question that this was for — the jury ought to find that.

    And if they find that (Inaudible) they’d have to get to the trial.

    What way except the charge that he have done it?

    Why would he (Inaudible)

    Clarence A. Linn:

    He could have done it when the evidence is introduced.

    When the evidence is produced that we offer this in evidence.

    The California practice would suggest then that, if Your Honor please, just a moment, we want to examine the officers who gave — who took this blood test as to the facts and circumstances.

    We want to object on the ground that this was done by force.

    Hugo L. Black:

    That evidence is the only evidence he have, isn’t it?

    Clarence A. Linn:

    Oh, but — but if the objection was made, then the people could have produced further evidence.

    Hugo L. Black:

    But when the blood was offered, he didn’t (Inaudible) on the blood result.

    Clarence A. Linn:

    Well —

    Hugo L. Black:

    On page 51.

    Clarence A. Linn:

    Yes, but the — the objection three times — twice previous to that had been on the grounds that it was hearsay.

    Hugo L. Black:

    Whatever — whatever it was (Inaudible)

    Clarence A. Linn:

    But — as — and that’s —

    Hugo L. Black:

    (Voice Overlap) — as to the charge, there was evidence.

    The judgment is by the jury or by the — decide it either way, that conflict.

    Clarence A. Linn:

    Yes.

    Hugo L. Black:

    And he can’t ask for a (Inaudible)

    Clarence A. Linn:

    But the —

    Hugo L. Black:

    They would hold — be weighed as something, I don’t —

    Clarence A. Linn:

    But the judge —

    Hugo L. Black:

    I don’t see I could.

    Clarence A. Linn:

    The judge took the matter from the jury on that point and decided it himself but he did that.

    If he did it in no other way, he did it by rejecting the instruction.

    Hugo L. Black:

    But you’ve just said a moment ago that it might have been for that reason, I’ve done it long ago.

    Clarence A. Linn:

    As long as he might have done for — for that reason, that’s enough.

    William J. Brennan, Jr.:

    Was there — there was one expert to testify in the brief.

    Clarence A. Linn:

    Yes.

    William J. Brennan, Jr.:

    That is the man who took the blood.

    Clarence A. Linn:

    Yes.

    William J. Brennan, Jr.:

    And he’s instructed by the jury that because of the way the (Inaudible)

    Clarence A. Linn:

    Yes.

    William J. Brennan, Jr.:

    The question whether about the usages, waive the evidence specifying that will (Inaudible)

    Clarence A. Linn:

    Yes, he asked the Court to give that instruction but —

    William J. Brennan, Jr.:

    Is that (Inaudible) — I think on page 136.

    Clarence A. Linn:

    136, I think that —

    (Inaudible)

    Clarence A. Linn:

    136.

    John M. Harlan:

    Asked for deferment.

    Clarence A. Linn:

    Duly qualified experts may give their opinions on questions in controversy at the trial.

    To assist in deciding such questions, you may consider the opinions with the reasons stated therefore, if any, by the expert who gives the opinion.

    Clarence A. Linn:

    You are not bound to accept the opinion of any expert as conclusive.

    That is the usual instruction given on the testimony of experts.

    William J. Brennan, Jr.:

    Was he the only expert who testified, was he the one (Voice Overlap) —

    Clarence A. Linn:

    Yes.

    John M. Harlan:

    Do you have your briefs in the court — in your appellate court to show how this question was argued before them?

    Clarence A. Linn:

    We have caused to be lodged with the Court the briefs.

    We were advised that it was not usual that the counsel had to print the record.

    We asked that the briefs be included in the printed record and we were advised that that is not usual, but that they would be available to the Court.

    John M. Harlan:

    They’re here?

    Clarence A. Linn:

    They’re here.

    Yes.

    John M. Harlan:

    That might throw some light —

    Clarence A. Linn:

    Yes, that will —

    John M. Harlan:

    — on the ground of the state court’s decision.

    Clarence A. Linn:

    Yes, it would.

    And I — we have referred to it some place in our — our brief.

    Now, the Rochin case to me is our hurdle, but I’ll say I think it’s a low hurdle in this particular — particular case.

    I’m not referring to — I’m using that in the athletic.

    That is the low hurdle.

    I’m not referring to the reasoning or anything in the case.

    I want to assure Your Honors of that point when I use unfortunately that term low hurdle, but we come to that case and what does — what does the case decide?

    And that’s the point that has been of some — of course we haven’t had the opportunity of the opinion of this Court on the Rochin case, except as it is expressed in the Rochin case.

    We have all kinds of opinions and I have — had noticed at — occasioned to see in California when the counsel for the defense cites the Rochin case, it is — it sustains all sorts of things.

    We hope that we will get some satisfaction in this case as to what the case does — we think we know what it means, the elements of unlawfulness and the acquisition of evidence which were present in the Rochin case were brutality, force, beating, and illegal arrest.

    Maybe I am doing even better than Judge Frankfurter did in the case but I’ll stop at that point.

    Felix Frankfurter:

    I don’t mind getting through beyond that, in the Rochin case.

    And subsequently —

    Clarence A. Linn:

    In the Rochin case, I don’t want to.

    Felix Frankfurter:

    You don’t also approve of that?

    You don’t like it?

    Clarence A. Linn:

    I don’t like it.

    I am not in the — if I could say something that would be effective at this point, within the issues of this case on that subject, I might do it.

    But, I asked to be relieved of that burden at this time.

    Felix Frankfurter:

    We know the Supreme Court, they rather — change its mind of this general claim, hasn’t it?

    Clarence A. Linn:

    I do not consider it an accomplishment but it’s been done.

    And I vow, bloody but —

    Felix Frankfurter:

    But, it only means that these cases coming here because your Supreme Court, those making decisions and I hope you would (Inaudible) don’t they?

    Clarence A. Linn:

    But I just let you in on a secret.

    Since the — since they have changed the rule, the Supreme Court has taken over onto itself 20 cases involving searches and seizures.

    They say they are not bound by the fine — the refinements of the federal rule and that they will go into this matter themselves.

    When they started, there were four cases but now they’ve got 20 and —

    Felix Frankfurter:

    Do you think they’re really aware of those?

    Clarence A. Linn:

    I don’t think they have an enjoyable session.

    The Court is divided as you know.

    But to think they have — you probably think they’re reviewing the case rather than (Inaudible)

    Clarence A. Linn:

    Yes, that’s — but there — there we are.

    Now, in the Rochin case, if I want to look — if I want to look for the bases of the Rochin case, I assume that I am entitled to look to the precedent side of the Rochin case.

    The essence of the Rochin case is a reference to Brown versus the State of Mississippi.

    They said that in the Rochin case, you can’t do these things and they’ve referred to Brown versus Mississippi.

    In Brown versus Mississippi, Brown was hanged by the neck three times and let down three times.He was tied to a tree and whipped again and again.

    The other defendants were stripped and their backs were cut to pieces with a leather strap, with buckles on it.

    They confessed but that wasn’t enough.

    Their beatings continued until they confessed to the details asked by the prosecutors.

    They were arraigned on one day.

    Counsel was appointed that day.

    The next day, this trial started and the third day, they were convicted and sentenced to death.

    That was the precedent cited for the Rochin case.

    And in the Rochin case, the Court here said, “There was an illegal battering in the doors.”

    There was a breaking into the premises illegally and illegal arrest.

    The man was grabbed around the throat.

    Clarence A. Linn:

    His mouth forced open, but he swallowed the capsules, he was taken incidental to a hospital strapped on a gurney and the instrument — a tube thrust out his neck.

    A mixture cord down to it which made him — as our late Judge (Inaudible) said, come up with the evidence.

    Now, that was the — that was the Rochin case.

    Now, this case is as far from that case, it sunrises from sunset.

    You have here a legal arrest.

    A man was going down the highway violating the laws, the traffic laws and an immediate danger to the lives of other people.

    He was taken into custody legally.

    He was taken at once to the Accident Investigation Bureau and 15 minutes of interrogation, he consented, we believe, to his blood being taken.

    If he didn’t consent, it was taken without his consent.

    But —

    Now what — suppose —

    Clarence A. Linn:

    Yes.

    — suppose it was taken without his consent.

    Clarence A. Linn:

    Now, that’s a — but there is none — there are none of the elements of brutality.

    There are normally elements of brutal force.

    He — it he wasn’t taken by force.

    The most that could be said was a psychological coercion.

    If you could do that in 15 minutes — if the Court can conclude that that is an overpowering of the man by asking him for 15 minutes — the questioning —

    (Voice Overlap) — won’t we have to think this case as though he never consented, that he refused to consent in (Inaudible) and what do the conviction state?

    Clarence A. Linn:

    Well, since there’s contradictory evidence on it, you must take the evidence that he — take the evidence as though he did consent because there’s a conflict, which has been resolved against him.

    (Inaudible)

    Clarence A. Linn:

    The Court, when it admitted the evidence when it took it away from the jury.

    (Inaudible) I assume the question that’s here before us under (Inaudible)

    Clarence A. Linn:

    We come back — it will not raise — it can’t — it cannot come up under the question of brutality on the Rochin case.

    Then it must be under the question of self-incrimination.

    I’d rely on the decisions of this Court on that point.

    But what do you say is the plain proposition is?

    If a man is — had his blood taken for a test and used against him in a criminal case, whether or not that denies or does not deny due process of law that in itself, the taking of the blood and using the test denies due process without his consent.

    Clarence A. Linn:

    No.

    You don’t think it does?

    Clarence A. Linn:

    No.

    No, it does — it does not unless you get the question of brutality into it.

    For instance, you could — you could — Mr. Justice Frankfurter in his dissent in Sibbach versus Wilson, and he made it very strongly that the taking of blood or the physical examination — let’s say, the physical examination did not raise a constitutional question.

    He believed that under the rules that the rules did not — lacking a federal — acting an enactment of Congress.

    It was illegal but he said, it did not present a constitutional issue.

    Of course that was a civil matter but the self-incrimination, I think this Court has decided that.

    Now the self-incrimination, the fingerprints at the state level, so that Justice Frankfurter won’t worry about that point, at the state level the taking of fingerprints is self-incrimination, because you identify the man by connecting him up with the murder weapon.

    That’s done — that’s done in every state — taking the accumulations from under his nails and identifying them with the deceased.

    It’s done privately.

    The hairs of the head or the body is done all the time.

    The man, he’s made to put on a set of clothes, but on a hat.

    He is taken out and he is caught.

    He’s put into an impression in the sand.

    He is made to put on the shoes that were found.

    That’s all.

    It might be self-incrimination.

    He’s made to do those things, but this Court has not said that those things were self-incrimination as —

    Felix Frankfurter:

    We have control — the grounds there, one way or the other.

    Clarence A. Linn:

    Well, there’s a lot of people in jail who would want to get out if anything happens along that line.

    But get back to the Rochin case due process.

    Now, this is what it said in the Rochin case, due process empowers this Court to nullify any state law, and we could say that this is a state law to a certain extent, if its application shocks the conscience, offends a sense of justice or runs counter to the decisions of civilized conduct.

    And then — then anticipating — anticipating a statement of this was a nebulous sort of thing.

    This Court went on to say, the state practices are to be measured not by our reason, speaking of the Court, or by the traditions of the legal profession, speaking of this side of the statute, but by the community sense to fair play and decency by the traditions and conscience of our people or by those canons of decency and fairness which expressed the notions of justice of English speaking people.

    Now the taking of blood, when accomplished in a medically approved way, does not smack of brutality.

    Then remember the Armed Forces has to submit to the taking of blood.

    Every person who applies for a marriage license in California is by statute required to give his blood.

    Every pregnant woman in California is required to submit to a blood test.

    Chemical test to determine the degree of intoxication in suspected driving cases were used in 45 states in 1953 generally without statute.

    Four hundred and sixty four cities of over 10,000 population use chemical test during 1953.

    The contemporary American scene does not regard the taking of a simple blood test as shocking to decency as brutal, as adverse to the traditions of the country.

    Clarence A. Linn:

    If we’re going to decide — not there yet.

    If the Court is going to decide that this matter is repugnant to the taking of a simple blood test, things that were done by the hundreds everyday in this city and other cities is repugnant to decency, then you are deciding according to your cases and not to the taste of the people because after all, civilization and decency are things that go throughout the country.

    Now, was the taking and use of the blood in this case under the circumstances related?

    Did that offend that fundamental concept of justice?

    There was no physical violence.

    There was no psychological coercion.

    There was no illegal detention.

    A man was legally arrested.

    He was asked to submit to a blood test that would prove him innocent if he hadn’t been drunk.

    Mr. Attorney General:

    Please the Court.

    In a serious matter of this kind, where I submit the — the liberty of the right against physical entry into the body of a person who is involved, I would regard it as perhaps less than necessary to be flippant about some matters as my friend, the general has been.

    But nevertheless, if I may proceed to answer some of the questions that have been raised, some of the justices at court, I think it will become evident that question — federal question was raised below, and that Rochin — whatever the checklist of brutalities that this Court sought fit to write into it is still available to the petition.

    Now, first, question was raised by a number of the justices and Mr. Justice Reed, the first one who asked about it, as to whether or not the involuntariness of the matter was raised.

    Well, we submit that it was.

    And Mr. Attorney General’s answer to or attempted answer to the fact that we don’t know what the trial judge considered in the matter in excluding or rather in receiving that evidence is no answer because the counsel below, Mr. DiMaria, was permitted to argue to the jury, the question of involuntariness.

    Now if, as the Attorney General says to Your Honors, I don’t know what persuaded the judge below in receiving the evidence.

    I don’t know what motivation he had in refusing to give the instructions but in any rate, I wouldn’t read into it, a determination that he did not think there was force applied.

    John M. Harlan:

    Is counsel’s argument in the record?

    Mr. Attorney General:

    I would answer — yes sir.

    John M. Harlan:

    Where — what page?

    Mr. Attorney General:

    I would answer by referring, if you will, Mr. Justice Harlan, to page 120 and this is from the argument to the jury.

    And I will be — given with your permission and patience to read it because it is — it’s rather lengthy.

    I knew it because I think it is important to focus the matter.

    This is Mr. DiMaria speaking in behalf of the defendant below and petitioner here.

    Now, I would like to bring up the question here of the testimony of Mr. Walton, relative to his being forced to give a blood test and I think that should be considered very seriously by the jury, because it is the beginning of the police state.

    It is brutal and shocking conduct in the part of officers to inject a needle into a person and withdraw blood.

    If we permit that, it is the next step to inserting a needle and injecting some truth serum.

    It is the next step to permit in the Soviet Police states to get anything.

    Brainwashing is next.

    Get anything you want from not an accused, let’s call him the victim, and that is something I think that this jury should not condone, should stop, it did its tracks.

    Mr. Attorney General:

    It is not American.

    And Mr. DiMaria goes on to say, now, there is another thing, the question may come up as to whether it was taken against his will.

    Testimony is without contradiction that right after the blood test, Mr. Walton was belligerent not cooperative.

    Refused to answer questions except if you brought out and he was still belligerent after the blood test.

    It is logical that he would refused to answer questions, that he would refuse to walk a line, take any test, is it logical?

    I’m sorry.

    That he would refuse to answer questions, that he would refuse to walk a line, take any test, yet, permit the insertion of a needle into his arm to take a blood test.

    I submit it isn’t.And I submit the blood sample was taken from Mr. Walton without his consent despite his protest and by force.

    Now this, if the Court please, with that conclusion of the case at a time when the court below had received evidence and if the judge had made the determination which, the Attorney General, would lead to us to believe he did as to the voluntariness, would he not then have cut off the attorney —

    John M. Harlan:

    Well, under your —

    Mr. Attorney General:

    — at that point.

    John M. Harlan:

    — under your state practice, are there request to charge submitted before or after the Court makes its charge.

    Mr. Attorney General:

    They are submitted before the charge is made.

    As a matter of fact and as a matter of practice, they are submitted, under our rule, they are required to be submitted before the case starts.

    That is before a witness has sworn.

    There is some leniency, thank heavens, but the point is, that the instructions are permitted very early in the case and they were so submitted here.

    And I might say, I might observe one other thing is perhaps parenthetically, these instructions must have been submitted before the trial started in the morning and certainly perhaps, during the recess because the entire case, 6, 7 witnesses in all including the impanelment of the jury and the consideration of the jury and their finding took only one thing.

    So those instructions have been submitted to the Court.

    Felix Frankfurter:

    Now, did the District Attorney or the prosecutor argued the question of voluntariness to the jury?

    Mr. Attorney General:

    Yes, Your Honor, I —

    Felix Frankfurter:

    And apparently the issue was argued before the jury.

    How do we know that it was before the jury and why aren’t you entitled to state the jury finding against him?

    Mr. Attorney General:

    Well, if the Court please —

    Felix Frankfurter:

    And one more thing, and that the charges as it’s present was not given because he is open to the judgment as the charge probably because a certain (Inaudible) to the record, to the evidence hasn’t gone forward and partly because it embraces both questions of law and questions of fact.

    Mr. Attorney General:

    Well, may I answer —

    Felix Frankfurter:

    If the judge thought the case wasn’t open, I suppose he would have (Inaudible) in your court, he would have shut off the argument that you raise.

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    So, there’d be a lot of (Inaudible) and be allowed to prosecute it to meet this (Inaudible) and show the issue of voluntariness, whatever the charge (Inaudible) the issue wasn’t before the jury.

    You would rather send what the answer to that —

    Mr. Attorney General:

    Well, the answer to that Your Honor please, is that in abstract, I would put it that way with your permission, that may have been testimony which had been coming in on both sides and raise the conflict, but under our practice, we are entitled to instructions on the law and these instructions, numbers 8 to 11, particularly number 11, do raise the question of law as they are to circumscribe the conflict in evidence which under trial may have been.

    Mr. Attorney General:

    And for that reason, Your Honor, I would say to Justice Frankfurter that that matter was not submitted to the jury as a matter of law and we were entitled to instructions.

    Felix Frankfurter:

    They didn’t — and they didn’t instruct — to the contrary it isn’t — they gave one of the exact — instruct the charges and so far as I’m concerned (Inaudible) that’s true, isn’t it?

    Just gave a — they didn’t deal with this issue.

    Mr. Attorney General:

    It didn’t, I don’t believe —

    Felix Frankfurter:

    They left it to the counsel on both sides to deal with it and they (Inaudible)

    Mr. Attorney General:

    Well, we submit, Mr. Justice Frankfurter that in the court above, in the appellate term, we would be denied the right of review, the right of that judicial review of the court below unless we had raised the question of voluntariness by request of the charge for a determination by the jury, request the charge and instruct the jury on matters of law as they apply to the conflict of the facts.

    Hugo L. Black:

    Now, is it possible to tell how the jury’s finding of voluntariness —

    Mr. Attorney General:

    That’s precisely the point Mr. —

    Hugo L. Black:

    — for reason that the judge didn’t decide — they found that it was voluntary.

    They had (Inaudible) by the question.

    So that you simply have a question of — submitted though about voluntariness and they’ve said, as it — it was held that to be involuntary, we want you to tell us (Inaudible) that you cannot consider this blood test at all that we shall determine.

    There’s no consequences so far as the charge that the jury had to decide whether it’s vague, whether it’s voluntary or not.

    So how can we know whether they can find that?

    Mr. Attorney General:

    Well —

    Hugo L. Black:

    One way or the other.

    Mr. Attorney General:

    Except —

    Hugo L. Black:

    The charge had been given enough for us since they had considered it (Inaudible).

    They wouldn’t know whether this was given a basis (Voice Overlap).

    Mr. Attorney General:

    Well then, Mr. Justice Black, it searches the record in this respect.

    That is we understand some decisions on the role of the judge — of the jury and we mentioned Stein in pressing and referred to others as to the question of voluntariness of confessions, coerced confessions.

    It is a question for determination by someone preliminarily as to whether or not the question of the voluntariness of submission to the injection of the needle and the extraction of this blood was one that was voluntarily given by Walton, the petitioner.

    Now, the objections were raised as we went along and it’s pertinent to observe.

    Mr. Justice Black did on — I believe page 51.

    It’s very pertinent to observe that when the Exhibit 1 for identification was being offered — were referred to, and the testimony of the expert who had drawn the blood, Mr. (Inaudible), technician, was being handled.

    An objection was proposed to be offer, and it was cut off.

    Now I am not on a mission and I am not proposing to stand here to state to this Honorable Court, precisely, what it is that Mr. DiMaria had in mind when he was stopped at the point, I object that its introduction into evidence is “dash.”

    The Court objection will be overruled but, I would attribute to trial counsel below.

    That understanding of the law, which is buttressed by the fact that he had instructions on the law, to have had in mind that if he were permitted to complete his objection, he would have raised the question of voluntariness of the same thing that was taken, Exhibit 1, that he was cut off —

    Stanley Reed:

    Mr. (Inaudible), the Attorney General, as I understood him, said that in California, they didn’t — have had the accurate instruction (Inaudible) that the Court did not require him any instruction (Inaudible)

    Mr. Attorney General:

    Well I would say, Mr. Justice Reed, in answer to that, that we deal with what is known as sometimes referred to as formula instructions.

    Mr. Attorney General:

    We have what is known as a body of instructions contained in a book which had been superintended and supervised by our superior courts.

    They are instructions in form with citations at the bottom of cases to which those instructions apply.

    And in submitting these instructions, lawyers are very careful and I would critique Mr. DiMaria to have done the very same thing, to submit instructions under law as applicable to particular facts as they devolved themselves in the trial and my answer there is that these instructions —

    Stanley Reed:

    These instructions of (Inaudible) taken out in the form of a motion?

    Mr. Attorney General:

    No, sir.

    I wouldn’t think so.

    But generally that is the rule.

    Stanley Reed:

    I think — suppose that in — suppose that instruction is not correct, which is what they raised in the question with regard to the (Inaudible) the blood test, could the judge require it to go ahead and formulate the (Inaudible)

    Mr. Attorney General:

    I think I have an answer of some help, at least I think it will be of some help to the Court.

    The procedure and practice is that when instructions are presented by both sides in the morning, that sometimes during the course of the day as the trial proceeds, the judge has the opportunity to examine the instructions and having examined the instructions, he then has the opportunity and the practice is to then sometime, particularly during recess, to call counsel in the chambers and discuss the instructions as to whether or not they apply or keep the facts in the case.

    Nothing of that sort was done here.

    There was just a simple refusal.

    For whatever reason, the judge below thought it desirable, just a simple refusal to these — to the instructions.

    Felix Frankfurter:

    May I —

    Mr. Attorney General:

    Yes, Mr. —

    Felix Frankfurter:

    Would you satisfy my curiosity as to why this case shouldn’t go to the Supreme Court of California?

    Mr. Attorney General:

    Yes sir.

    Felix Frankfurter:

    This is a constitutional question (Inaudible) your Supreme Court.

    Mr. Attorney General:

    No, the last court of resort in a misdemeanor case —

    Felix Frankfurter:

    No matter what the issue is, no matter what the issue?

    Mr. Attorney General:

    That’s right.

    In this kind of a case by the judicial counsel — the rules of the judicial counsel which set up the municipal court and appeals from there declare and we have cited it in our petition for certiorari.

    Felix Frankfurter:

    I’m — I’m not questioning it.

    I’m just —

    Mr. Attorney General:

    Yes.

    Felix Frankfurter:

    — surprised (Inaudible) so many cases, is that a real constitutional question as I believe this to be, the Supreme Court I think may bring about.

    That’s enough for me.

    Mr. Attorney General:

    No, sir.

    I —