Wardius v. Oregon

LOCATION: Navajo Reservation

DOCKET NO.: 71-6042
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: State appellate court

CITATION: 412 US 470 (1973)
ARGUED: Jan 10, 1973
DECIDED: Jun 11, 1973

William H. Rehnquist - .
Justice Bernnan -
J. Marvin Kuhn -
W. Michael Gillette -

Facts of the case


Media for Wardius v. Oregon

Audio Transcription for Oral Argument - January 10, 1973 in Wardius v. Oregon

Warren E. Burger:

We’ll hear arguments next in 71-6042, Wardius against Oregon.

Mr. Kuhn, you may proceed.

J. Marvin Kuhn:

Mr. Chief Justice, may it please the Court.

Petitioner in the instant case was convicted for the sale of Narcotics and sentence to 18 months imprisonment.

During the trial of his case, he was not permitted to present alibi testimony through an alibi witness and his own testimony because he felt comply with requirements of ORS 135.875 Oregon’s notice of alibi statute.

Pursuant to the requirements of this statute, the defendant not less than five days prior to trial must file a written intent of notice to rely on alibi evidence.

The notice must include within it the place or places the accused claim to have been at the time the crime was alleged to have been committed plus the names and addresses of the witnesses he intends to call.

The sanctions levied upon a defendant for failure to comply that the witness or witnesses are not allowed to testify as to an alibi defense and under the construction of the Oregon Court of Appeals, the defendant himself is not permitted to take the stand and give testimony as to his whereabouts at the time the crime was alleged to have been committed.

In the instant case both the defendants’ prospective witnesses’ testimony and its own were stricken.

Now, petitioners believes that this Oregon statute and as construed by the Oregon Court of Appeals is unconstitutional and that it denies him due process of law because it fails one to provide any reciprocity on a part of the State and that it gives no discovery rights to the defendant.

Justice Bernnan:

If it had, would you be here?

J. Marvin Kuhn:

If it had, I believe he would have been here, Your Honor perhaps not on that issue but on the other side.

I believe he would have there.

Justice Bernnan:

But not on the attack on the alibi statute?

J. Marvin Kuhn:

On the alibi statute, yes.

The other grounds however on the reciprocity probably not, not on that particular issue, no sir.

Justice Bernnan:

What would be left, if this provided reciprocity?

J. Marvin Kuhn:

I believe that what would be left in this particular case, Your Honor, is the fact that the Oregon statute applies to the defendant’s testimony and that the requirements that he file a written notice as to his whereabouts prior to trial as a condition of his taking the stand would get us here.

Warren E. Burger:

Did you ask for any disclosure that you didn’t get?

J. Marvin Kuhn:

I was not the trial attorney but --

Warren E. Burger:


You’re speaking of the record.

J. Marvin Kuhn:

From the record there was no request.

Didn’t your Oregon Court of Appeals say that they just had no occasion that passed on the extent to which reciprocity would be required since the record didn’t raise the issue?

J. Marvin Kuhn:

Yes, Your Honor, the Court of Appeals held that they would not reach this issue because the State did not offer any rebuttal evidence.

However, the petition does appeal like that is valid in this case because the State was not required to offer any rebuttal evidence because the defendant’s alibi testimony was stricken from the record.

So there would be no reason for the State to offer rebuttal evidence.

That was the reason given by the Oregon Court.

Now, petitioner also believes that the statute denies due process and that it prevents the defendant from testifying in his own behalf if he fails to give notice as required by the Oregon statute.

Also that denies him his Fifth Amendment right not to incriminate himself because of the written notice required as the condition precedent to his taking the stand and giving alibi testimony.