Wardius v. Oregon

PETITIONER:Wardius
RESPONDENT: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

ADVOCATES:
William H. Rehnquist – .
Justice Bernnan
J. Marvin Kuhn –
W. Michael Gillette

Facts of the case

Question

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:

Oh!

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.

J. Marvin Kuhn:

And that it denies him his right to the Sixth Amendment to rights of compulsory process.

Now, this Court in Williams versus Florida did uphold the alibi statute from the State of Florida.

However, one of the main bases as petitioner reach the case once that Florida did provide for a liberal reciprocity in their statute that the Oregon statute does not.

Under the terms of the Florida statute, both the defendant and the State are required to submit the names of their proposed alibi witnesses.

The defendant for his alibi, the State for any prospective rebuttal witnesses they may wish to call.

If either party under the Florida statute failed to give the required notice, that party including the State would not be allowed to call their alibi witnesses.

The Florida statute was therefore equal in placing the duty, responsibility as well as the sanction equally among the parties for failure to comply with it.

The Oregon statute places the entire obligation on the part of the defendant that requires nothing on the part of the State.

The State has no duty to disclose any rebuttal witnesses nor as there any sanction applied against the State for failure to do so.

Can you be sure of that just from a reading of this one section of the Oregon statute?

Isn’t it possible to read the Oregon Court of Appeals’ opinion here is saying that had a request been made to apply the same rule to the State that very likely as a matter of its interpretive authority it might have applied that rule to the State?

J. Marvin Kuhn:

It may have Your Honor.

However I could not answer that.

However, a recent case passed them down.

The statute has been further interpreted.

It is cited in the State’s supplemental brief State versus Kelsaw.

In that case, the Oregon Court of Appeals has recently held that a defendant does not have to require with the Oregon alibi statute now, unless and until the State supply him with the specific time and place that the crime was alleged to have been committed.

If the State fails to do this either by way of indictment or information relayed to the defendant’s attorney by the District Attorney.

The defendant does not have to comply with the statute.

However, I believe all of that may alleviate the problems someone in Oregon.

I don’t believe it’s going to solve it because once the State has given this information to the defendant.

The defendant then is in the same boat that the petitioner here is and that he must then comply with the statute.

If he does not comply with it, he is not permitted to testify nor any of his witness permitted to testify.

Justice Bernnan:

I might clear Mr. Kuhn.

Is your present argument the omission of any reciprocity provision?

Is this an argument on the face of the statute?

J. Marvin Kuhn:

Yes, Your Honor.

Justice Bernnan:

Well, and yet your Court of Appeals says as you said that Mr. Justice Rehnquist earlier refuse to reach the question since there’d been know demand for reciprocity by trial counsel, is that right?

J. Marvin Kuhn:

Not because there was no demand of that may have been included in that they said specifically because the State had not offered any rebuttal testimony in the instant case.

Justice Bernnan:

Well, were you in the Court of Appeals?

J. Marvin Kuhn:

Yes, Your Honor.

Justice Bernnan:

Well, did you make the argument of the face of the statute?

J. Marvin Kuhn:

Yes, Your Honor.

Justice Bernnan:

But I don’t quite understand how the basis upon which your Court of Appeals refuse to consider.

J. Marvin Kuhn:

Neither do I, Your Honor.

I don’t understand either, I believe that —

Justice Bernnan:

But you are telling as you did in the Court of Appeals make the argument on the face of the statute?

J. Marvin Kuhn:

Yes, Your Honor that the statute was unconstitutional because it — there was no reciprocity on the face of the statute.

Yes.

J. Marvin Kuhn:

Unlike the Florida statute in line for his support.

Well, Mr. Kuhn do you contend that if reciprocity is to be accorded by Oregon law it has to be in the same section of the statute at which as the one in which this requirement is impose on the defendant?

J. Marvin Kuhn:

Oh!

No, Your Honor.

I do not believe it has to be in the same section however Oregon has no discovery at all.

But it could be by judicial decision in the — as you have accord your client the right he claims, didn’t he?

J. Marvin Kuhn:

Yes, Your Honor.

It could be by judicial decision that we have taken one small step towards that by the recent decision in State versus Kelsaw however naturally I do not feel it not quite far now and not finished yet.

Justice Bernnan:

How far they full insured?

J. Marvin Kuhn:

Well, a long way I believe they have as I indicated as of now the defendant does not have to comply with the statute and if the State gives him specific time and place of the date the crime was alleged to have been committed.

However, the Oregon law —

Warren E. Burger:

I don’t follow you on that.

That’s the Kelsaw case?

J. Marvin Kuhn:

Yes, Your Honor.

Potter Stewart:

In the respondent’s supplemental brief filed today here or filed this week?

J. Marvin Kuhn:

Yes, Your Honor.

Potter Stewart:

Is that available?

If I were to specific second what’s that the back sheet?

J. Marvin Kuhn:

A specific report.

Potter Stewart:

Right.

Thank you.

Thurgood Marshall:

In Oregon without that statute don’t you have a right to find that out by bill of particulars?

J. Marvin Kuhn:

No, Your Honor.

Thurgood Marshall:

You don’t have a bill of particulars in Oregon?

J. Marvin Kuhn:

No, we don’t.

There are practically a no discovery procedures available in Oregon on the part of the defendant.

Thurgood Marshall:

I thought so.

Warren E. Burger:

What about the indictment?

J. Marvin Kuhn:

The indictment.

Warren E. Burger:

What does that tell?

J. Marvin Kuhn:

The indictment up until the Kelsaw decision gives the date and the county in which the crime was committed.

Warren E. Burger:

And what more now?

J. Marvin Kuhn:

The State must now tell them the specific time.

The crime was alleged to have been committed.

Warren E. Burger:

In any hour of the day, (Inaudible).

J. Marvin Kuhn:

Approximately the date.

The date I believe is which probably going to be construed as well as the specific place such as an address.

In this case, they would probably have alleged or given to the defendant the specific house number and location of where the sale was made.

Justice Bernnan:

And then the State will have a burden of proving that date and that place?

J. Marvin Kuhn:

The law in Oregon is and under Kelsaw remains to be that the State is not bound by the date alleged in the indictment and that the defendant by filing a notice of alibi or by claiming alibi cannot make time material.

So —

Justice Bernnan:

Well, I don’t — I don’t frankly understand what you say is a small step of the Supreme Court of Oregon was taking.

J. Marvin Kuhn:

Well, that is it.

Justice Bernnan:

The rights of discovery.

J. Marvin Kuhn:

That is it, Your Honor.

Justice Bernnan:

Well, that didn’t sound to me as they put anything which stated it.

J. Marvin Kuhn:

I don’t feel that it aids the defendant or assist in this problem very much at all because it’s easy for the State to give this information to the defendant.

The defendant is then tried back in other terms of the statute.

Harry A. Blackmun:

Mr. Kuhn, I share this confusion.

Would you repeat for my benefit precisely what the holding in the Kelsaw case is now?

J. Marvin Kuhn:

The Kelsaw case held that the defendant in Oregon does not have to comply with the terms of the Oregon alibi statute.

J. Marvin Kuhn:

If the District Attorney supplies to the defendant the specific time and place where the alleged crime was committed and that is —

Potter Stewart:

That the defendant has to comply only if —

J. Marvin Kuhn:

If that information —

Potter Stewart:

— and that he doesn’t have to comply unless the prosecutor does for any said information.

J. Marvin Kuhn:

Correct, Your Honor.

Justice Bernnan:

Well then why isn’t that — why is that not complete reciprocity?

As I understand it the — what you’re now telling us is the defendant does not have to provide anything, the statute calls for unless the prosecutor gives him what the State claims to be the time and place of the offense.

J. Marvin Kuhn:

Yes, Your Honor correct.

Justice Bernnan:

Is that right?

Well if they give them the time and place of the offense, what more is he entitled to do, even if there is an express reciprocity provision.

J. Marvin Kuhn:

Well, without the reciprocity provision which there still would not be under the terms of the Kelsaw —

Justice Bernnan:

What more if there were a reciprocity provision would be in –would he be entitled to the names of the State witnesses?

J. Marvin Kuhn:

Yes, Your Honor specifically the names and addresses of the state witnesses.

Justice Bernnan:

Anything else?

J. Marvin Kuhn:

That would be — that is what we believe the Florida statute indicated what was fair.

Warren E. Burger:

But since the whole focus of your case is on the alibi statute.

J. Marvin Kuhn:

Yes, Your Honor.

Warren E. Burger:

And the Kelsaw case now takes care of the disclosure with respect to that subject, why are these other matters relevant in the abstract?

J. Marvin Kuhn:

Well, because if as I read the Kelsaw case.

It only gives time and place, that’s it.

Once the State has furnished that we have the alibi statute coming in to full play again where the defendant should he wish to call alibi —

Justice Bernnan:

As to name the witnesses but the State does not?

J. Marvin Kuhn:

Yes, Your Honor correct.

Justice Bernnan:

But the Kelsaw went on and say also that the state must in addition give the names of the State witnesses and support of those allegations of indictment?

Done where what would your situation be?

J. Marvin Kuhn:

Then I wouldn’t have a case on the reciprocity issue.

Byron R. White:

Yes.

But only on that issue.

J. Marvin Kuhn:

Yes, Your Honor, on the reciprocity issue.

Now, petitioner also feels that under the terms of this Oregon specific statute and as interpreted by the Oregon Court of Appeals that he has been denied due process and that he has not been allowed to take the stand and testify in his own behalf because he has failed to give the State the required notice specifically saying that where he was at the time the crime was alleged to have been committed.

J. Marvin Kuhn:

This is made a condition precedent as to taking the stand and giving alibi testimony.

Justice Bernnan:

Do you say that’s an unconstitutional condition?

J. Marvin Kuhn:

I believe that that is unconstitutional.

Justice Bernnan:

Under what provision of the constitution?

J. Marvin Kuhn:

Condition, Your Honor.

I believe that under a very general due process clause Fourteenth Amendment I believe that it’s a denial of a due process.

Now, I realize that this Court has not held that the defendant has and unfettered constitutional right to take the stand and testify in his own behalf.

However, petitioner believes that there should be a right of the defendant anytime he is charged with crime.

And do you believe that completely consistent with Williams against Florida for your — the arguments you’re making now?

J. Marvin Kuhn:

I believe so with the theory of it perhaps as to Williams I believe that Williams, the defendant actually as a matter of fact did testify.

As well —

Harry A. Blackmun:

But should Florida — but Williams against Florida wasn’t — isn’t the defendant exempt from the requirement?

J. Marvin Kuhn:

Yes, Your Honor.

Harry A. Blackmun:

[Voice Overlap] by statute?

J. Marvin Kuhn:

The defendant in Florida is exempt specifically under the terms of the Florida statute and that the failure to file notice under Florida Statute does not affect his right to take the stand and give testimony.

In Oregon does not have that provision and I believe that of this Court in Specht versus Patterson has indicated that the defendant in a criminal case has a right to be heard, has a right to be confronted with the witnesses against him the right cross-examine and the right to offer evidence of his own.

The petitioner believes that the right to be heard and to offer evidence of his own must necessarily include the right of the defendant himself to take the stand so that he make deal his side of the story.

I think that anytime a person is charged with the crime he should have this right.

And that the Oregon statute unconstitutionally abridges his right because it requires the defendant prior to trial to tell the State what his trial testimony is going to be as a condition precedent of his getting up on the stand and testifying.

I believe that this is an unconstitutional abridgement of his right to testify.

Both the New York and Iowa have held that the notice of alibi statute in those states do not apply to the defendant testimony on — of his, unlike Oregon.

The petitioner feels that the sanction under the Oregon alibi statute is simply not justifying because the defendant is denied the right to testify on material issue that goes to the very heart of this case and as in the determination as to whether or not he is going to be deprive of his liberty.

Finally, not finally, I believe that the defendant’s right against self-incrimination is violated by the statute for precisely the same grounds again in that since the statute does apply to a defendant’s testimony and not just witness’ testimony he must tell the State prior to trial what his alibi testimony is going to be as a condition precedent to his taking stand and giving that testimony.

And if it applied only to the witnesses perhaps there would be no denial of right against self-incrimination as this Court held in Williams versus Florida.

However, I do believe that this is a distinguishing feature of the Oregon statute and this case vis-à-vis the Williams decision and that the defendant in Williams were specifically excluded from the terms of that statute here he is not.

And he must reveal his testimony prior to the time of trial where as the police would have no right to that testimony under decision of this Court unless the defendant voluntarily wished to waive his right against silence.

Under Oregon procedure, does giving of that sort of notice by the defendant committee and then in any way to take the stand or is the statement that he makes there independently usable by the State if he does not take the stand?

J. Marvin Kuhn:

He does not have to take the stand, Your Honor however, and the issue hasn’t come up.

However, I am certain under Oregon law this could be classified as an admission against interest and could be introduce into evidence against them.

Harry A. Blackmun:

Because you have no law of that thing?

J. Marvin Kuhn:

There is no law.

The issue has never risen to my knowledge in Oregon.

And we just do not believe that the legislature should force should be able to force the defendant to reveal his testimony, alibi testimony prior to trial when the police would have no right to that testimony themselves unless the defendant voluntarily wish the waive his Fifth Amendment rights.

Finally, petition believes that he was denied his right to compulsory process in this case under the terms of this Court’s decision in Washington versus Texas where the Court held that the right to compulsory process was complaint terms the right to present a defense and it was a fundamental element of a due process of law.

Petitioner believes that here because his witness was in Court, was physically able to testify had knowledge of a material fact that for the Court to strike her testimony was a denial on his Sixth Amendment right to compulsory process.

Potter Stewart:

The statute talks about a good cause —

J. Marvin Kuhn:

Yes, Your Honor.

Potter Stewart:

— excusing him from the requirement.

Are there many cases deciding what good cause then?

J. Marvin Kuhn:

There has been only one and that’s the Kelsaw decision.

Potter Stewart:

That’s all?

J. Marvin Kuhn:

They ruled there that there was not good cause.

Potter Stewart:

And in this case of course they ruled there was a not a good cause.

J. Marvin Kuhn:

Yes, Your Honor.

However, I did not — that was not an issue as to whether there was good cause shown.

The issue of the Court of Appeals was a constitutionality of the statute.

Potter Stewart:

But your state court —

J. Marvin Kuhn:

Yes.

Potter Stewart:

— could in terms of whether or not there was good cause.

J. Marvin Kuhn:

Yes, Your Honor.

The Court did indicate on that basis that there was not good cause here.

Potter Stewart:

But there is except for Kelsaw on this case, there is no — there is no case law on what is or is not.

J. Marvin Kuhn:

No, You Honor, those are the only the two cases in State versus Blake, however, it doesn’t indicate and adds nothing new.

Potter Stewart:

Thank you.

Warren E. Burger:

Mr. Gillette.

W. Michael Gillette:

Mr. Chief Justice and may it please the Court.

Questions have arisen this morning with respect to Oregon procedure and I should like for a moment if I may to attempt to clarify little further for Justice Brennan, the present status of Oregon law with respect to discovery.

First of all, there is no general discovery statute in Oregon with respect to the right to criminal defendant.

And included in that, there is no right to a bill of particulars as the law now stands.

I believe that after the legislatures concluded its work at the present time there will be one but there is not at the moment.

W. Michael Gillette:

The Kelsaw case represents really the first major step by any Oregon Court of Appeals whether the Supreme Court or the Court of Appeals to establish any right of discovery on the part of the criminal defendants.

In that case only goes as far as it does I believe because that’s all it was called to do in that particular case.

Now, it establishes the right of a defendant to refuse to comply with the alibi statute unless that the defendant is in possession at the time the compliance is called for.

It is in the possession of information supplied by the state which tells him the time, the date in which the crime was alleged to have occurred and a place where it is alleged to have occurred.

And this ruling is made on the basis of a theory of fundamental fairness to the effect that the defendant cannot be held responsible for disclosing that he was at place “X” until he knows that he’s charged of having been at place “Y.”

Now, the Court of Appeals went no further because there was no need in the Kelsaw case.

Justice Bernnan:

No discussion at all of the names of witnesses.

W. Michael Gillette:

No sir, there was not.

But I would submit to the Court that in an appropriate case where the defendant applied at the time he gave the notice applied for in order from the Court requiring the State to disclose to the defendant the names of any witnesses it propose to call and rebuttal to his alibi testimony their names and addresses and so on that he would be granted that.

And I think that would be called for on a basis of this Court’s decision in Williams versus Florida.

The point is the Oregon courts have not yet had a chance to deal with this question and when they are given the chance to deal with this question, I believe they’ll deal with it in the same way they dealt with the Kelsaw problem.

They’ll analyze it, they’ll take this Court’s decision in Williams and they’ll apply it.

And one of the points that I want to urge upon the Court this morning is that state courts in general and the Oregon courts in particular are capable of taking constitutional decisions of this Court and applying to them to their own statute and —

Thurgood Marshall:

And has there been any request for a bill of particulars in any case before the Oregon Supreme Court as of now?

W. Michael Gillette:

Yes, sir it has, and it’s been denied.

Thurgood Marshall:

And they turned it down?

W. Michael Gillette:

Yes, they have.

Those cases are cited in our brief.

Thurgood Marshall:

So how do we get all this great hopes about wha they got and do?

W. Michael Gillette:

Those cases were decided prior to Williams and I am speaking only with respect to what is meant to happen under notice of alibi case.

I am not trying to suggest that in general, defendants are going to be granted broad discovery powers but —

Thurgood Marshall:

Do you think that Oregon could pass a statute requirement defendant to advise the State of what its defense will be?

W. Michael Gillette:

No.

Thurgood Marshall:

Well what’s the difference between that statute and this one?

W. Michael Gillette:

Well, the rational of alibi statute, as I understand them and as I believe they are explained in the Williams case, is that the alibi defense is a peculiar kind of defense it offers opportunities for surprise that the general defense does not.

And the State has a special interest in avoiding the kind of surprise that an alibi defense represents.

Thurgood Marshall:

Well, assuming that applies to other witnesses that doesn’t apply to the defendant, does it?

W. Michael Gillette:

An alibi is just as surprising when the defendant raises it by himself as when he calls —

Thurgood Marshall:

Well, what could the state do to counteract it?

W. Michael Gillette:

Call witnesses to show that either the defendant was somewhere else or call witnesses who were at this place where the defendant claims to have been to show that he wasn’t there.

Thurgood Marshall:

It’s almost unbelievable.

I can understand why you want to examine the other witnesses.

But the defendant himself, I thought, had a right to do one of three things not testify, testify, and to take any position he wants to take at that moment which could be directly contrary to the position he wanted to take before the trial.

Am I right or wrong?

W. Michael Gillette:

I think you’re right.

Thurgood Marshall:

But this is one instance where he can’t.

W. Michael Gillette:

No, sir.

This statute does not interfere with the defendant’s ability to take any position to trial.

There is no authorization in this statute.

Thurgood Marshall:

You mean he can testify as an alibi?

W. Michael Gillette:

No.

Thurgood Marshall:

The defendant here?

W. Michael Gillette:

No, I am sorry perhaps I miss understand your question.

As I understand what you are saying you are suggesting that his disclosure of his intention that for evidence of alibi binds him to that defense.

Thurgood Marshall:

No, I didn’t say that.

I said that unless he made it he couldn’t do it.

W. Michael Gillette:

Oh!

Alright, yes sir that’s right.

Thurgood Marshall:

He might of when he went to trial, he might have said I am not going take the witness stand which he has a right to do and during the trial he changes his mind and says I want to take the stand and I want to put my alibi in.

He is prevented from doing it.

W. Michael Gillette:

He is not.

Thurgood Marshall:

Don’t you agree that interferes with his right to testify?

W. Michael Gillette:

I don’t think it interferes with his right to testify if during the time limit provided by the statute prior to trial he was aware on it, informed his counsel of the fact that he had alibi testimony to offer.

If he kept that information to himself and did not tell his counsel until the case it actually proceeded and he finally — and this happens.

I am told by colleagues who are in the defense business.

If he finally after the trial has proceeded, first turned to his counsel and says, “look, I will now tell you what I was doing, I was with a girlfriend somewhere and I didn’t want to bring her name up but the case is going badly and I have obviously got to.”

If that occurred, I think that would constitute good cause for the waiver of the alibi notice.

Potter Stewart:

But is no longer that affecting?

W. Michael Gillette:

No, there’s not.

Not one way or the other at this point.

Potter Stewart:

Right.

Thurgood Marshall:

And you’re dealing with the constitutionally protected right to testify or not to testify?

W. Michael Gillette:

Well, if you’re saying that we’re dealing with an absolute right to testify, then I don’t think this Court has said that.

I think that’s the issue before the Court.

Is the right absolute or can it be qualified by writ of requirement of disclosure?

Thurgood Marshall:

You don’t believe that the defendant has an absolute right to testify to save his neck?

I take it you wouldn’t be here arguing if you agree that there was an absolute right to testify.

W. Michael Gillette:

That’s right, we wouldn’t.

Warren E. Burger:

Well, doesn’t Williams – didn’t the Williams’ holdings settled some of these questions, Mr. Gillette?

W. Michael Gillette:

Well, I think the Williams’ holdings settled the question of whether or not the notice of alibi is constitutional.

I thought that was settled.

Byron R. White:

And against the Fifth Amendment?

W. Michael Gillette:

Yes, sir.

But only against of Fifth —

Potter Stewart:

And as applicable only to third party witnesses, right?

W. Michael Gillette:

That’s right.

Neither the —

Potter Stewart:

Not the defendant.

W. Michael Gillette:

Neither the two parties.

Neither the issue as to the defendant himself in all the issue of the exclusion of the testimony was before the court at that time.

Byron R. White:

Will settle whether or not giving notice of the alibi violated the defendant’s Fifth Amendment rights against itself.

Right.

W. Michael Gillette:

If that’s the way I understood the case, yes sir.

Now, I’d like to make one more point with respect to Oregon procedure if I can return to that for the moment.

A question arose from one of the Justices I believe it was Mr. Justice Rehnquist with respect to rebuttal testimony.

I — perhaps I have already finished that statement but I — the question of whether or not the defendant is entitled to that information.

Information which the Georgia statute or the Florida statute, pardon me, called for with respect to the names, addresses, nature of the testimony from the rebuttal witnesses.

The question of whether the defendant is entitled that’s not settled but it seems to me that the conclusion of the Oregon courts would have to reach this, pretty well dictated by the language of Williams.

And I would have thought that at the very least it would be the value for the Oregon courts to be given an opportunity to settle that question on their own based upon an appropriate motion by the defense.

Justice Bernnan:

Tell me Mr. Gillette, do you agree with your brother that the question of constitutionality of the statute on its face was raised before your Court of Appeals?

W. Michael Gillette:

No, sir I really don’t.

Justice Bernnan:

I see.

W. Michael Gillette:

I feel the entire context to that argument which Mr. Kuhn and I made was the question of whether the statute was constitutional as applied in that case and there was no real issue on constitutionality on the face of the statute.

Justice Bernnan:

Then do you suggest that question is not before us in consequence?

W. Michael Gillette:

I really don’t think it is.

I really think the Court is faced here with the question whether the statute is constitutional as applied.

Byron R. White:

Could you just tell me what the State’s interest is in having this alibi statute?

W. Michael Gillette:

Yes, it is the same interest that’s referred to in the Williams case.

The alibi defense is one which involves — usually involves surprise to the State because it develops the testimony in an entirely new line.

The testimony for the prosecution goes whether the defendant was in certain place where they perform certain acts.

The alibi testimony gives a right turn to the entire proceedings.

It is surprising by definition.

And the interest as referred to in Williams is the interest of full and fair disclosure of all the issues which go to the guilt or innocence of the accused.

Byron R. White:

And what interest of Florida is lost if at the time an alibi witness is offered that hasn’t been previously been disclosed, that the trial is adjourned until — so that the state may accomplish its aims of investigation and avoidance of surprise then of fraud and perjury?

W. Michael Gillette:

I think the concern their shifts.

The concern then becomes concluding the business of that particular trial particularly in jury section with crowded dockets without being faced with an arbitrary really is surprising delay due to the fact the defendant did not make a disclosure at a time when he was aware they could have made it.

Let me put this way, let’s supposed that the matter is being tried for at jury.

Now, this case was not but I think it’s fair to say that whatever the Court decides that they will apply to both trials to juries and trials to the Court.

If the case is being tried to a jury and the jury spent about two weeks hearing testimony in a relatively complicated criminal matter and the defense for the first time at the end of those weeks discloses that they intend to offer evidence of alibi and they make available, let’s say the names of four or five witnesses and the State has then granted a continuance.

You’re asking a jury which could be used under other circumstance to hear other cases in the panel of a (Inaudible) frequently is limited in jurisdictions such as the one I came from in Portland.

You are asking that jury to sit on its hands until the State has concluded its investigation.

They can’t be assigned in any other case because they may not be available to reconvene the trial.

You are asking that the judge be made available.

You are asking that those things occur, those delays occur which could have been avoided by supplying information ahead of time.

You are asking that the judicial system, the system were trying to take care of crowded dockets be interrupted by that period of time.

Now, it’s easier with the judge and with the jury.

It’s much more complicated with the jury because they ought to be [Voice Overlap].

Byron R. White:

What do you suppose the State will do if we disagree with you to sustain your position?

With your colleague I supposed there will be adjournments, would there?

W. Michael Gillette:

Yes, sir.

W. Michael Gillette:

They’ll do what they’re told.

Byron R. White:

I think.

I know there will be adjournment.

They wouldn’t — nobody would tell them to adjourn.

Say one, they didn’t want to avoid surprise, they don’t need to avoid surprise.

But do you suppose they would actually start adjourning trials?

W. Michael Gillette:

Yes, I think that’s what would be done.

Warren E. Burger:

Mr. — how long as a practice the matter can you adjourn the criminal trial?

W. Michael Gillette:

Well, the Ellsberg case [Voice Overlap] a long time.

That’s true I had to —

Warren E. Burger:

They tried and it didn’t work.

W. Michael Gillette:

I can only suggest to the Court based upon my own limited experience that it is impractical to adjourn matters like that for any extended length of time.

Byron R. White:

Like what?

10 days?

W. Michael Gillette:

I think it’s impossible to identify the period of time.

I think 10 days are too long but I have no [Voice Overlap] period time will do.

Byron R. White:

When does the defendant have to give notice of alibi under the —

W. Michael Gillette:

Five days prior to trial.

Byron R. White:

So that’s all the State may need is five days.

W. Michael Gillette:

That’s what the statute apparently it arises.

Byron R. White:

Well, would need anymore in that jury trial, would it?

W. Michael Gillette:

No, unless they find witnesses they have to give notice to the defendant to who in which case I assume he is entitled longer.

Warren E. Burger:

In Oregon, do you know if — is it customary to adjourn a trial criminal trial more than 24-48 hours?

W. Michael Gillette:

No, it’s not.

Harry A. Blackmun:

Because most states do not have an alibi statute.

W. Michael Gillette:

16 States have them.

So —

Harry A. Blackmun:

So the other 34 —

W. Michael Gillette:

Just less —

Harry A. Blackmun:

— get along without it and —

W. Michael Gillette:

Yes, sir.

Harry A. Blackmun:

Take their risk on the journey.

Potter Stewart:

16 States, they have some kind of an alibi statute.

How many prevent the defendant himself from testifying without prior?

W. Michael Gillette:

I am not sure the exact number I think five or six.

Potter Stewart:

Most of them or at least some of them are large percentage only prevent third party witnesses from testifying, is that correct?

W. Michael Gillette:

That is right.

Some of them have a specific exemption with respect to the defendant.

Potter Stewart:

Himself?

W. Michael Gillette:

Some of them do not provide for exclusion in any case the statute —

Potter Stewart:

What sanction do they impose?

W. Michael Gillette:

Sometimes the continuants, in fact I think the continuance is usually the sanction imposed.

Potter Stewart:

Yes.

W. Michael Gillette:

The statutes are a classic example of various states experimenting with the procedures.

And in fact, the Oregon statute as I recall is the most recent to this statute.

Potter Stewart:

When was this enacted?

W. Michael Gillette:

It is not the 1969 makes it for more recent in the majority of them which were enacted during the 30’s.

Potter Stewart:

Did you have anything akin to this before 1969?

W. Michael Gillette:

No, we didn’t?

Potter Stewart:

Nothing.

W. Michael Gillette:

No.

Justice Bernnan:

Mr. Gillette, may I get back again to this quest ion of whether the constitutionality of the statutes on its face is before us, what is the argument procedure by which you raise a question in the trial Court is this by a point raise in the brief or do you have some assignment of it or something?

W. Michael Gillette:

Oregon law requires that the issue the constitutionality of the statute either on its face or as implied be raise in the Trial Court and that the record be made of that and it is becomes the designated matters on field.

Potter Stewart:

Did you say — Excuse me.

Are you telling us if this was not raise entire court either on its face or as applied?

W. Michael Gillette:

The matter in which this whole question came up is set out at length in the appendix and I think it’s of some significance.

What occurred was — this trial happen about two or three months after this Court’s decision Williams versus Florida.

And it’s — I think it’s evident from the transcript if you examine it in the appendix that the Trial Court was aware neither of the alibi statute nor this Court’s decision in Williams so that both of those things came as a surprise to the trial Court.

On the other hand, the defendant was aware both of them because as the transcript shows the defense counsel gave a copy of the Williams decision to the prosecutor during the noon recess.

And he came in the afternoon and put on the proceeded put on his alibi testimony which was well the only testimony offered by the defense.

W. Michael Gillette:

And the first time, the Court was aware that there was an alibi statute or there was a problem with an alibi statute was when the prosecution entered in objection.

So, what occurred after that is not particularly clear the defendant was given an opportunity to make it showing of good cause where the requirements of statute should not be waive — should be waive?

And his offering was to the effect that first he thought that the date on the indictment was wrong and he was prepared after alibi witnesses on a different date.

But of course he had notice those either.

And then secondly, he also said that he was not aware the name of his alibi witness and again the transcript shows that even if he was not aware that his defendant was he dated the girlfriend of that year.

So, neither of those showings was —

Justice Bernnan:

And yet when you got to the Court of Appeals I think you told me earlier, your Court of Appeals did determine a question of the constitutionality of the statute as applied, isn’t that right?

W. Michael Gillette:

Well, it is difficult for me to describe any particular posture that opinion quite frankly.

Justice Bernnan:

You mean, you can’t say whether the Court of Appeals decided any constitutional question of that statute?

W. Michael Gillette:

They decided that with respect to the Fifth Amendment issue with respect to whether requiring the disclosure of this constitutional that, that was proper under this Court’s decision in Williams.

Thurgood Marshall:

But the trial court did consider the constitutional point and did consider Williams, right?

W. Michael Gillette:

It had Williams v. Florida, yes.

Thurgood Marshall:

Didn’t it consider it and did it write it on page 15?

And he says, he admits that the defendant raised the point that it denies him to effective benefit of his right to compulsory process to obtain witnesses in his own behalf, which is his right to testify.

And then in the next paragraph he said, we will consider these contentions in order and the first line is Williams against Florida.

How do you interpret that?

Warren E. Burger:

Is that the trial court’s memo or the Court of Appeals?

W. Michael Gillette:

That’s the Courts of Appeals’ decision.

Thurgood Marshall:

Is that 12 (b)?

W. Michael Gillette:

Yes, sir.

Thurgood Marshall:

And so they did consider it, didn’t they?

W. Michael Gillette:

They considered the Fifth Amendment issue, yes.

But with respect to the other issues we are talking about.

This is the point I am trying to make, they were not even clearly raised in the trial court.

The issue for us is with respect to the sanction to be imposed.

It’s really not raise in the trial court.

There’s no discussion of the [Voice Overlap].

Thurgood Marshall:

Your position is that he was banking on the point that has changed in date, excused him from complying with the statute and that was his only complaint, is that what you’re saying?

W. Michael Gillette:

No, because he says one other thing in that transcript.

He says essentially the statute simply is not constitutional because of Williams versus Florida.

W. Michael Gillette:

He simply offered the Court the decision it said, here is the statute you can only beside the other and that is the end of it and I supposed in that sense you could say that the issue of the constitutionally of the state [Voice Overlap] raise was more properly raise before the trial court than on an appeal.

Thurgood Marshall:

He was really trying to get under the good cause form.

W. Michael Gillette:

No, I don’t think so.

He was trying to get out of complying with the statute never mind what the reason was whether he had good cause or not, even the same statute was inapplicable period.

Now —

Potter Stewart:

Inapplicable or unconstitutional?

W. Michael Gillette:

Well, unconstitutional.

I misspoke.

Potter Stewart:

Right.

Justice Bernnan:

Well, just so I’m clear.

You would, in the State at least, isn’t here telling us there wasn’t any constitutional question before us?

W. Michael Gillette:

No, sir.

Byron R. White:

What would you suppose the interest of the defendant would be in not notifying of an alibi if he was reasonably confident that — if he didn’t notify and still — and nevertheless offered alibi witnesses during the trial, the trial would be adjourned?

He anticipated in the adjournment if he offered unannounced witnesses, what would be as interest in not notifying before trial?

W. Michael Gillette:

Well, I think the adjournment procedure makes available to the defendant that is a close to the states case a period of time in which he can figure out what to do.

If he’s serious of notice of alibi by which he is not back, he simply gets himself a five-day recess or whatever the period time is and which he can sit down perhaps even get full transcript of all the testimony and go over all the testimony and plan what it is he is going to do.

It is a kind of built-in five-day delay in the trial process.

Byron R. White:

If he plans to offer alibi?

W. Michael Gillette:

Well, but he doesn’t have to.

He can conclude after the five-day recess if he chooses not to offer the alibi testimony.

He is not bound by that in the recess.

Byron R. White:

I know but if he gave notice ahead of time before trial in complying with the statute, there would be any adjournment during the trial?

W. Michael Gillette:

No, there wouldn’t.

Byron R. White:

But if he doesn’t give notice, he doesn’t give notice and then offers.

He is going to have to offer some alibi witnesses then before there’s any, going to be any adjournment, he is going to have to decide to offer some alibi witnesses.

And when he offers them then the state would ask for an adjournment.

And let’s assume that defendant knew that if the state requested adjournment that would be granted.

And what interest would he have in not complying with the statute?

W. Michael Gillette:

I think the answer is the same, the fact that he is called a witness where in fact, I don’t think he have to do that I think it’s simply after advice the Court of this time in which t o serve notice of alibi.

And I think this trial process of calling the witness and not asking the first question — receiving the objection having the juries and ask and giving [Voice Overlap].

Byron R. White:

Nobody is going to have — he is not just going to have to give notice.

He is going to have new witnesses.

W. Michael Gillette:

That’s right and —

Byron R. White:

[Voice Overlap] So you as witnesses are –.

W. Michael Gillette:

That’s right.

Byron R. White:

There’s always a name of it.

W. Michael Gillette:

That’s right.

Warren E. Burger:

Could you — under Oregon law could he, the prosecutor, properly argue the belated disclosure of alibi?

W. Michael Gillette:

To the jury?

Warren E. Burger:

Yes.

W. Michael Gillette:

Oh!

I think not.

Warren E. Burger:

And do you think that would be precluded by Oregon law or by some provision of the Federal Constitution?

W. Michael Gillette:

Well, I think it would be precluded by Oregon law.

The courts of — Oregon courts have been rather severe about that promise of the jury on anything that is not directly in evidence and that would constitute testifying as to matters not an evidence.

I think that Oregon [Voice Overlap].

Warren E. Burger:

Oh!

But it’s something that jury — they do see the alibi witness ultimately and your point is that it would be a testimonial to develop the fact that, that was a late tactic.

W. Michael Gillette:

Yes, I think so.

Warren E. Burger:

Would — then I take it too that if the prosecutor got up and objected on the grounds that it was a belated tender, he’d be in the same trouble?

W. Michael Gillette:

He’d be riding the same difficulty I think it might well service grounds for mistrial at that point if he did it in the presence of the jury.

Now, if I may Your Honor, I’d like to finally refer to the question of compulsory process which counsels referred to when he specifically say that the Washington versus Texas case and I would submit that the difference between this case and the difference between the problem pose by this case and the line of cases represented by Washington versus Texas, Pointer versus Texas, Ferguson versus Georgia and the like is that in those case witnesses were incompetent period.

The statute made the man available to the defendant no matter what he did.

He simply could not qualify them as witnesses.

Washington, you may recall, involved a situation where the defendant could not call on accomplice to testify a co-principal to testify at all.

He was deemed incompetent by Texas statute.

Now, in this case the only step that the defendant needs to take to make the witness confident is to serve the notice.

The power to make the witness confident lies within his own hands and I would submit that makes the statute as applied.

Significantly, different in the entire line of cases represented by Washington versus Texas.

Unless the Court has further questions, that concludes my remarks.

W. Michael Gillette:

Thank you, Your Honor.

Warren E. Burger:

Thank you, Mr. Gillette.

Do you have anything further Mr. Kuhn?

J. Marvin Kuhn:

No, Your Honor.

Byron R. White:

Could I ask you Mr. Kuhn?

J. Marvin Kuhn:

Yes, Your Honor.

Byron R. White:

You are representing a defendant.

J. Marvin Kuhn:

Yes, Your Honor.

Byron R. White:

You know ahead of trial that if you offer surprise alibi witness, he is going to be on adjournment.

States are going to have an opportunity to investigate your witnesses?

J. Marvin Kuhn:

Yes, that’s correct.

Byron R. White:

And you know that that’s going to happen if you do not comply with the statute and rather than comply for the witness unannounced.

You know that this is going to be an adjournment and what be your choice to comply with the statute or to waive?

J. Marvin Kuhn:

I think that I would probably tell the district attorney that I was going to have an alibi.

Byron R. White:

And why would you do that?

You do not see any particular advantage in waiting then if you are going to have to be subject to an adjournment anyway.

J. Marvin Kuhn:

No, Your Honor.

However, whether there would be an adjournment or not, well that —

Byron R. White:

Well, I know but assume there would be, assume there would be, assume that the Court —

J. Marvin Kuhn:

If there would be, although I would probably offer no more then the fact that there would be an alibi defense and not complying with the remaining terms of the statute assuming we had a statute.

Byron R. White:

Or you wouldn’t give the names of the witness?

J. Marvin Kuhn:

No, Your Honor.

Byron R. White:

But you would have to name them — you have to call them sooner or later to their call.

J. Marvin Kuhn:

Yes.

Byron R. White:

And as soon as you called them, the State would ask for them and would get an adjournment?

J. Marvin Kuhn:

Yes, in that case I would see no reason not to give the names and addresses of the witnesses.

Byron R. White:

Ahead of time.

J. Marvin Kuhn:

If I could obtain an agreement to get them back.

However, I would not submit the defendant’s testimony as to where he was at the time.

Warren E. Burger:

Thank you gentlemen.

Warren E. Burger:

The case is submitted.