Williams v. Florida

PETITIONER:Williams
RESPONDENT:Florida
LOCATION:Metropolitan Dade County Justice Building

DOCKET NO.: 927
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: State appellate court

CITATION: 399 US 78 (1970)
ARGUED: Mar 04, 1970
DECIDED: Jun 22, 1970

Facts of the case

In 1967, the state of Florida passed legislation to allow six-member juries in criminal cases. Johnny Williams was tried and convicted for robbery by such a jury. Williams, lost in a Florida appellate court; he appealed to the U.S. Supreme Court.

Question

Did a trial by jury of less than 12 persons violate the Sixth Amendment?

Warren E. Burger:

We’ll hear arguments in Number 927, Williams against the State of Florida.

Mr. Kanner you may proceed whenever you’re ready.

Richard Kanner:

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

Known as this case involves the validity of the Florida procedural requiring the defendant in a criminal case to on proper notice to give the prosecuting attorney the names and addresses of any alibi witnesses which the defendant might use.

Your Honors, the case also involves the validity of Florida six-men criminal trial jury.

The facts are not in the list of dispute, they are reflected both in my brief and in the state’s brief without any dispute.

I will not dwell on them here other than to note the state apparently acknowledges that the questions were properly raised and preserved below and that the state apparently acknowledges now that to the Fifth and Sixth Amendments applied to the state.

Your Honors, I will discuss the interpretation of the terms witness, compulsion and against himself in discussing the Fifth Amendment right.

And I will also discuss reasons why Your Honors in my opinion the number 12 is fundamental to the jury system in this country.

Warren E. Burger:

In the State of Florida, does the statute require the prosecution to furnish this to its witnesses?

Richard Kanner:

Your Honor we have a procedural rule which is the same affect as a statute which when I offer to disclose all of my witnesses, the state is then required to disclose all of their witnesses.

Potter Stewart:

It’s conditional?

Richard Kanner:

It is conditionally Your Honor on that I have.

Potter Stewart:

On defense counsel has been making that offer?

Richard Kanner:

Yes sir Your Honor.

We have another statute that is not conditional Your Honor that the state without any conditional on my part must disclose the name of their witness upon whom the information is based as distinguished from their witnesses on the case.

Potter Stewart:

That would be the chief prosecuting witness, if he were the victim of the offense presumably?

Richard Kanner:

Presumably yes sir.

Warren E. Burger:

But you proceed only by information and the Florida not by indictment at all?M

Richard Kanner:

Your Honor, the statutes in Florida provide for indictment on capital cases.

On non capital cases Your Honor the prosecuting officials have the right to proceed by either information or at least has been in my experience in solitary cases, even in misdemeanors sometimes that they are proceeded on by indictment but this is strictly up to the prosecuting authorities.

Your Honors, the Fifth Amendment is historically simple.

No person shall be compelled to be a witness against himself.

Your Honors, whatever this prohibition means and I’m going to get to this in a minute.

This prohibition Your Honor is utterly and completely without qualification or exemption, absolutely.

This prohibition, the Fifth Amendment is absolutely, positively never ever, ever subject to competing public interest regardless of how vast this public interest might take.

Warren E. Burger:

Are you talking about it now on the context to the —

Richard Kanner:

Alibi.

Warren E. Burger:

Well, I am speaking of the defendant himself when you say it’s absolute and subject to no qualifications, do you mean that no one can make him take the stand under oath and testify or not under oath and testify?

Richard Kanner:

I mean Mr. Chief Justice, the Fifth Amendment says this, the cases of this Court I think of which I’ve cited in my brief.

Warren E. Burger:

I was wondering what scope you were giving it.

Richard Kanner:

Only the scope that this Court has given it Your Honor because the state has argued in its brief that the reason for the alibi rule is to combat perjury.

The reason for the alibi ruling Your Honors is in a quest for the search for truth.

In arguendo Your Honors, I concede all of this absolutely for the sake of this argument.

I would also concede Your Honors if they would ask and without being utterly facetious about it that the alibi rule would stop pollution and stop the war and anything else because Your Honors, I think not subject to reasonable question that whatever comes within the scope of the Fifth Amendment it is not subject to competing state interest.

The state has not been able to show a solitary case which came within the Fifth Amendment that this Court or any other Court has said or at least that this Court has said, well even though this comes within the Fifth Amendment, the rights of the state in this context are so great that we are not going to bring it out of the Fifth Amendment.

Your Honors, I suggested in my brief or at least cited in my brief an early case Boyd versus United States which had to do with the forfeiture of goods but in the — and Boyd, this Court quoted from an English trespass case and there the English justice noted that trespass in a single nature is just absolute.

And I suggest that at least whatever the Fifth Amendment says it’s true here, that as the English case said.

If you’re going to have an invasion of this privilege, you have got to go back to the common law principles and find some justification for it and that the silence of the books according to the English justice is authority against the invasion.

The state is not been able to cite a solitary case of this Court or any case in principle in history which would sanction the use of an alibi witness.

The fact I note parenthetically that the alibi witness rule has been proposed twice in the federal rules and rejected but I don’t think that that is determinative of all.

Potter Stewart:

Well, isn’t it rather incumbent upon you to show us why this is constitutionally invalid, here is a statute or rule of law that state of Florida would use it quite rightly if it does violate the Fifth Amendment to the constitution, even if we might think it does a good or wise rule if it violates the constitution that violates the constitution, but that as I understand your argument is what you told us so far now isn’t it incumbent upon you to tell us why it violates the constitution?

Richard Kanner:

Yes your honor I’m going to discuss —

Potter Stewart:

Not up to Florida to find cases, it’s rather up to you to find the precedence.

Richard Kanner:

I agree, I believe I’ve cited them in my brief but I’m going to discuss now the interpretation of these words in the Fifth Amendment compelled to be a witness against yourself and let’s see what these words mean.

Let’s take the first one which I think is easiest and that is witness.

I believe Your Honor is that the state concedes that this alibi and notice rules falls within the term ‘witness’ and I think they correctly concede that.

While they cite in their brief some of the physical test cases Schmerber versus California the blood alcohol test, I believe there they might not cite the finger print test cases.

All going outside the Fifth Amendment privilege and properly so, is I understand the rationale of those cases.

The Court said the that the Fifth Amendment is related solely to communications and that the physical test not being communications or not being documents or not within Fifth Amendment and I only suggest to the Court that this rationale should not be expanded today because since the state apparently concedes that the notice of alibi rule is within the purview or the category of witness, let’s leave it at that.

I know that one case that I cited in my brief Albertson versus Subversive Activities Control Board which was the case which this Court said the communist need not register.

Now, this is the same thing, the mere fact that it’s a document, a pleading prior to trial by counsel should not take this Court out of the term or this case rather out of the term of witness.

Warren E. Burger:

The communist case of course turned to a large extent on the fact that there was incriminatory aspect to the registration, did it not?

Richard Kanner:

Yes sir that’s —

Warren E. Burger:

What you see is the incriminatory aspect of furnishing the names of witnesses?

Richard Kanner:

Your Honor, the Fifth Amendment doesn’t say incriminatory Your Honor.

The Fifth Amendment says no person shall be compelled to be a witness against himself.

Warren E. Burger:

Well, doesn’t against himself imply the same thing that might could be?

Richard Kanner:

Your Honor this is position that the state takes.

The state says this, that the alibi notice rule is not incriminating but its exonerating.

Warren E. Burger:

You’re going to bring the witness and to help you, aren’t you?

Richard Kanner:

You’re going to bring this witness into trial to help you anyway and the mere acceleration of the disclosure of notifying the state attorney is to when this witness is going to come in can only exonerate you.

Well Your Honors as I reach the case —

Thurgood Marshall:

Mr. Kanner, assume a case where the defendant never talks to anybody, police or anybody else and does not testify at the trial.

How do you get that under the Firth Amendment witness word?

Richard Kanner:

Your Honor —

Thurgood Marshall:

He has never been a witness by this.

Richard Kanner:

The state says this —

Thurgood Marshall:

He has never been a witness earlier.

Richard Kanner:

The defendant is never going to witness, the state —

Thurgood Marshall:

Well, that’s the only one he can put the claim on it.

Richard Kanner:

Your Honor, the state says this in answer to your question Mr. Justice Marshall.

They say that should defendant give the name of my witnesses prior to trial to the prosecuting attorney is according to the procedural rule that no notice can be ever be given to the jury by way of opening or closing argument that here, the defendant supplied the state with the names of the alibi witnesses, where are those alibi witnesses?

Your Honor, the defendant says or rather the state says that there can be no argument like that to the jury.

They have not cited any cases and I have not found the first case Your Honor which would support their contention that should I comply with the statute that this alibi witness will not become known to the jury.

And I believe Your Honor that that is a context.

Thurgood Marshall:

Well, suppose he is there (Inaudible)

Richard Kanner:

Yes sir, Your Honor.

Thurgood Marshall:

Once he is done in this case?

Richard Kanner:

No Your Honor, it was not done in this case.

Thurgood Marshall:

Well, how does the court (Inaudible)

Richard Kanner:

We only suggest this is what the —

Thurgood Marshall:

(Inaudible)

Richard Kanner:

No Your Honor, I’m suggesting Mr. Justice Marshall that in answer to your question, if the defendant would not testify, how the alibi notice rule would be a witness.

I’m only trying to suggest a possibility that the state in arguing opening and closing argument to the jury will announce to the jury that the defendant has an alibi.

We do not believe that this alibi is proper.

This the only —

Thurgood Marshall:

That assumes that a prosecutor will say it and that a judge will let him say it and that the state court rule have said it.

That’s four assumptions.

Richard Kanner:

These assumptions made by the state in its brief Your Honor.

Thurgood Marshall:

Well, which side do you argue?

Richard Kanner:

I’m arguing my side Your Honor that the only possible way that the witness rule can apply is if the defendant does not testify as in the context that I have suggested.

That is the state apparently it concedes in its brief that the alibi notice rule comes within the purview of witness at least as I understand their brief.

Warren E. Burger:

Well, that doesn’t bind us anyway.

Richard Kanner:

No Your Honor but I only suggest the — regardless of whether their brief buying support, I only suggest that in the communist case and then Schmerber versus California, this Court held that witnesses mean anything communication and I feel that the alibi notice rule is a communication within the Fifth Amendment scope of a witness.

Potter Stewart:

Well this is what is requires the defendant to do as I understand it specify number of days before on trial to ten days is to give the prosecution, a list of people who are going to testify on behalf of the defendant and his behalf and then his favor.

Richard Kanner:

Our only alibi.

Potter Stewart:

In support of his alibi defense that’s what I mean.

How does this — I don’t really — certainly these people are going to be witnesses, the defendant says they’re going to be witnesses, there’s no question about, no problem about that but how does this requirement violate the defendant’s right against or anybody else’s right against self incrimination?

Richard Kanner:

No —

Potter Stewart:

Or constitutional right not to be a witness against him?

It’s all to be a witness against himself.

Richard Kanner:

Your Honor as I read the cases.

I — or at least I as counsel have the sole right of the determining when I am going to make this judgment as to what to put forth by alibi witness.

Potter Stewart:

What’s that, perhaps that’s true and that is true in many jurisdictions but what does that have to do with the self incrimination clause of the the Fifth Amendment?

Richard Kanner:

As I read the cases that I’ve cited in my brief —

Potter Stewart:

Schmerber doesn’t decide that?

Richard Kanner:

No!

Schmerber only says that, what is a witness, I didn’t cite Schmerber, as I read the case —

Potter Stewart:

I would suppose you would.

You make the suggestion earlier that Schmerber made the dichotomy between communicative and non communicative?

I thought the dichotomy in Schmerber was testimonial and non testimonial?

Richard Kanner:

Those words may have been used Your Honor.

Potter Stewart:

They were, aren’t they?

That’s rather different isn’t it?

The test is not whether the violation of the memo to communicate something in advance, whether it’s testimonial or non-testimonial, isn’t it, as far as the privilege is concerned?

Richard Kanner:

Your Honor, I have possibly used the term testimonial and communicative synonymously.

Warren E. Burger:

How does this disclosure become testimony in any term, how does it become giving evidence or becoming a witness?

Richard Kanner:

Your Honor it’s —

Warren E. Burger:

That’s what you left me in the dark on so far.

Richard Kanner:

Your Honor, the test as I read the cases Your Honors is not whether the disclosure is incriminating.

As I read the cases Your Honor, the test is whether this evidence is going to be used or whether this information can be used by the state at trial.

Warren E. Burger:

Well, I did not include in my question any incriminatory aspect.

I just said, how is it giving evidence becoming a witness, how is it, how does it trespass the Fifth Amendment in its precise language?

You said you were depending on the precise language.

Richard Kanner:

Yes sir Your Honor.

Warren E. Burger:

Now how does it trespass that?

Richard Kanner:

I feel that cases here bring the notice of alibi statute within the term witness.

I feel that it brings the language — the cases that I cited brings the notice of alibi rule within the language witness against himself because as I read particularly like Garrity versus New Jersey, Brown versus Walker that the defendant’s absolute right to remain silent and the test of against himself at least as I read the cases is not whether it is incriminating.

True that in most all instances or every instance that I’m aware of, the rational has been that the testimony of the communication was incriminating but I don’t read the Fifth Amendment like that as you — as I read the Fifth Amendment and as I read the cases without taking things out of context, the test of against himself is whether evidence from the defendant’s own lips is to be used against him at his trial.

Garrity versus New Jersey as I recollect was a case where some policeman testified at the civil service area and then this evidence was used in their trial.

Well the record doesn’t disclose Your Honor but theoretically these policeman would not have testified at the civil service hearing anything but what they thought would have exonerated.

So I don’t feel Your Honors that the test of against himself is necessarily incriminating and it maybe —

William J. Brennan, Jr.:

But I gather for example finger prints that are taken before trial are used by the prosecution against the defendant at trial.

That’s information they obtain for the purpose of using it against the defendant in that trial.

You would not claim that that in anyway violated privilege, would you?

Richard Kanner:

Not in the list Mr. Justice.

William J. Brennan, Jr.:

Nor blood test?

Richard Kanner:

Not in the list Your Honor.

William J. Brennan, Jr.:

So you really have to hear to establish that in giving the notice on the name of the witness, this is testimonial in the sense that we do a distinction between testimonial and non-testimonial Schmerber and the other case?

Richard Kanner:

Yes sir Mr. Justice.

William J. Brennan, Jr.:

But the whole thing comes down to, does it?

Richard Kanner:

Well, I believe that the state is conceded that it’s testimonial.

I think the state says though that is not compulsion and the reason that they say that it’s not compulsion, I believe it was even the Chief Justice raised or maybe Justice Marshall raised the question that since this alibi witness is going to be used to trial anyway, there’s no compulsion about it and my answer to this Your Honor is quite simply that I believe that I as counsel have got the absolute positive right to wait until the conclusion of the state’s case before I want to make a decision is to whether I wish to put an alibi witness on.

We have without a doubt.

Warren E. Burger:

You don’t have to put them on because you disclosed his name though.

Richard Kanner:

Your honor —

Warren E. Burger:

Your position is not impaired except on this hypothesis that you went around with, that it might be used in argument by the prosecutor but if Justice Marshall said that case isn’t here today, how are you injured in this sense by disclosing the name when you come to the decision of whether you are going to put on witnesses?

Richard Kanner:

Mr. Chief Justice, I don’t believe that the Fifth Amendment requires that I be injured.

I don’t believe that the Fifth Amendment requires that I incriminate myself.

Richard Kanner:

I believe that the Fifth Amendment says that I cannot be compelled to be a witness against myself and I believe that your point is certainly the most difficult that I have to overcome that is what is the test of “against himself.”

I believe that that is the strongest argument that the state has, that this is really not against himself.

And the only answer that I have to this Your Honor is I feel that I have an absolute right to remain silent up until the very close of the state’s case that there are factors that are going to be apparent only at trial even the composition of the jury that I’m going to base my decision on.

There may not be anything incriminating and I believe the analogy is reasonable if we uphold the alibi-notice-rule, the state can come back and say ask that question of the defendant by a procedural rule, are you going to testify?

Well, I don’t believe it would be any question about that as being invalid.

I believe that we uphold the alibi notice rule.

The state can come back with a procedural rule, give me the names of your character witnesses if you’re going to use them.

William J. Brennan, Jr.:

Your argument goes so far as to say that it will be now criminal discovery of any kind against himself?

Richard Kanner:

Not quite Mr. Justice but almost.

The only criminal discovery that I would sanction and against the defendant is the notice of insanity and the reason that I would — I believe that the notice of insanity rule is good.

Notice of insanity is very similar to the alibi in Florida and I believe it’s predominant through out the state.

If the defendant is going to rely on insanity, he advices the state a certain amount of days before trial with the names of his witnesses.

But there Your Honors, there is always a presumption of sanity and once you file a show that you are insane, this gives the state an additional burden of proof other than the facts that are in the information.

Well of course the alibi-notice-rule does not.

So Mr. Justice, in answer to your question, the notice of insanity rule is the only criminal discovery that I as a trial attorney would allow.

Potter Stewart:

Well, it’s not what you might allow, it’s which in your opinion the Fifth Amendment allows?

Richard Kanner:

Yes sir Your Honor, I’m sorry.

Hugo L. Black:

Suppose the defendant refused to give the name, what could he then —

Richard Kanner:

Mr. Justice Black, the statute provides that the alibi witness cannot testify, the defendant himself in Florida can testify at all times as also provision in the rule that the judge if the circumstance is warranted can excuse the defendant from the provisions of the alibi notice.

Hugo L. Black:

You mean they would decline to the familiar relevant witness to testify in its favor?

Richard Kanner:

Well, Your Honor we are getting into the Sixth Amendment right here which I noticed in my brief of Washington versus Texas and I’d like to only make this comment that I raised the point and I suggested in my brief Washington versus Texas which was a case which a defendant try to subpoena a co-defendant who was not on trial and the Texas procedure apparently was that the co-defendant could not testify.

I am going to answer your question Your Honor.

This Court held that the Sixth Amendment right of compulsory attendance of witnesses was inapplicable to the states.

Your Honor, I did not specifically raise the Sixth Amendment during trial but I have always relied on the Fourteenth Amendment and I suggest only that this Sixth Amendment right in the context Your Honors that I presented it here today is similar to our Fifth Amendment right against self incrimination.

In answer to your question Mr. Justice, the law of the procedural rule in Florida is clear that should there not be notice given, the defendant or the witness rather is not a confident witness at trial unless the judge within the exercise of his own discretion —

Hugo L. Black:

Which is happened in this case?

Richard Kanner:

No Your Honor because I complied — I received the notice of alibi form, I move for a protected order on the Fifth Amendment on grounds and also the Florida declaration rights ground and the Fourteenth Amendment and my motion for protective order was denied which is how this case got here.

Byron R. White:

And then you went to trial?

Richard Kanner:

Yes sir, Your Honor.

Byron R. White:

And you’re convicted, did you present your alibi witnesses?

Richard Kanner:

Yes sir, Your Honor.

Byron R. White:

And so how did hurt you even if it did violate the Fifth Amendment?

Richard Kanner:

Your Honor, we get down here to the — I see here that my time is about running out, I’m going to answer your question Mr. Justice.

Byron R. White:

Oh you’re done, sorry.

You go ahead and you would argue the jury point I would assume.

Richard Kanner:

Yes sir, Your Honor and I want to take five to argue the jury point.

Byron R. White:

Go ahead.

Richard Kanner:

Your Honors my initial reaction on the jury point was that Florida being Spanish domain, our six-man jury came from that.

In the words of the vernacular Your Honor suggests isn’t so.

My research that there are four states with less than 12 man juries, of the four Your Honor, only Utah has had a six-man jury from the inception.

South Carolina in its 1776 constitutional and up to 1865 had 12 man juries.

Florida had — Andrew Jackson’s first order when he was territorial government said that all criminal cases shall be tried in accordance to the principles of the common law.

Louisiana Your Honor, there’s a specific federal statute when Louisiana was admitted to a territory that said all criminal cases there shall be a jury of 12.

So Your Honors, I feel that the number 12 whether it’s good or bad regardless the number 12 Your Honors is sufficient and rather as fundamental to our jury system.

Your Honors I only suggest —

Byron R. White:

I wonder why that should be, why is it fundamental, you mean just because historically has always been 12.

Richard Kanner:

Yes sir, Mr. Justice —

Byron R. White:

We know why 12 is —

Richard Kanner:

I did in — during this period of time while this case was pending.

I did a great deal of reading to try and answer your question but I have not been able to find anywhere Mr. Justice.

Potter Stewart:

What was the size the jury in the original hundreds when the jury system got started?

Richard Kanner:

Your Honors as I read it, the jury was always 12 or more and that the reason, the 12 came out —

I think sanctity — this trial was 500, wouldn’t it?

Richard Kanner:

That at least to the common law Mr. Justice that at least 12 persons had to agree and if they couldn’t get 12 persons to agree they — throughout some of the juries and they brought in some more juries and held 12 could agree.

I believe that at least historically is how I read it but I don’t know the number of 12. Your Honor I only suggest here that the Bill of Rights were enacted not to protect the guilty or rather to protect the innocent but rather they were made by our founders to protect the innocent and that the reasons which dictated the Bill of Rights 200 years ago, that is that all Governments want to get rid of all trouble makers as quickly as possible is certainly is true today as it was way back then.

And Your Honors the Bill or Rights being to protect the guilty and to shield the guilty from the powers of the state, I feel that it’s incumbent on this Court to read them in the manner in which they were written.

And then answer to one of the — I guess — one of the justices, there is no criminal discovery in a — against to the defendant unless we’re going to change the literal terms of the Fifth Amendment compelled to be a witness against himself.

Warren E. Burger:

Thank you.

Mr. McCrary.

Jesse J. McCrary, Jr.:

May it please the Court.

Jesse J. McCrary, Jr.:

The respondent would like to respectfully address itself to the issues as they have been raised in our brief.

The first issue being, do the due process clause of the Fourteenth Amendment and the Fifth Amendment privileges against self incrimination violated by requirement that a defendant disclosed ten days prior to trial, his intent to rely on alibi defenses.

First, I would like to say that Florida’s rule of notice of alibi as we were referring to it is fundamentally fair and it’s not unconstitutional.

The rule is not designed in any way for a defendant to say anything against himself.

The rule is a rule of procedure.

Now, the constitution, it do not think does not grant to a defendant the right to so have the kind of defense, so that the state cannot check the veracity of that defense and that’s what he is suggesting here.

All that the constitution or all that we profit to the Court today is that upon a written demand by the prosecuting attorney and we want to straighten out a few of the concessions that we were supposed to have made that there must be a written demand by the prosecuting attorney first to a defendant asking whether or not he intends to rely on an alibi defense.

If he so does, then and only then is he required to give the names of the witnesses as are known to him who will testify for him.

Hugo L. Black:

Why does the state need that?

Jesse J. McCrary, Jr.:

Your Honor, I think it’s necessary during a time when we are trying to modernize criminal law in its search for truth.

And I don’t think —

Hugo L. Black:

Search the truth?

Jesse J. McCrary, Jr.:

Yes sir.

Hugo L. Black:

Or who’s going to be a witness for the alibi?

Jesse J. McCrary, Jr.:

Yes sir, I think it is because if Mr. Justice Black, I think it helps to avoid the popping up of phony alibis.

Hugo L. Black:

How would it?

Jesse J. McCrary, Jr.:

How would it?

Hugo L. Black:

Yes.

Jesse J. McCrary, Jr.:

Because if the state has an opportunity or the state knows of the witnesses that the defendant intends to use as an alibi and the alibi statute probably states that if alibi, the defendant was not at a particular place at a particular time, therefore he could not have permitted the crime.

It gives the state an opportunity then if nothing else to know a price or to dismiss the matter.

Hugo L. Black:

I presume it wouldn’t be looking forward to Mr. 3200 to investigating the witness and the people around it.

Jesse J. McCrary, Jr.:

I think that you are correct sir, I think that the state is looking to find out the truth of the matter whether or not a person did commit a crime.

Thurgood Marshall:

Do you think the state has the right to talk to those witnesses?

Jesse J. McCrary, Jr.:

Your Honor I think the state does have the right to talk to those witnesses.

Thurgood Marshall:

But you think it’s unethical?

Jesse J. McCrary, Jr.:

No sir, I do not.

Thurgood Marshall:

For a lawyer to talk to the witness on the other side?

Jesse J. McCrary, Jr.:

I don’t think it’s unethical Mr. Justice Marshall.

I find that in the same rule that the state does provide that we are obligated to give to you the names of all of our witnesses and we are under continuing obligation to give to the defendant.

Thurgood Marshall:

Well, why would you say that a rule of the Florida that a defendant must 15 days before trial divulge the name and address of every witness he intends to use?

Jesse J. McCrary, Jr.:

Your Honor this is not the rule.

Thurgood Marshall:

I agree but would that rule be alright when you get more truth, is that right?

Jesse J. McCrary, Jr.:

You may get more truth Your Honor.

Thurgood Marshall:

But you wouldn’t call us —

Jesse J. McCrary, Jr.:

I will not advocate that rule to the Court today.

Thurgood Marshall:

But you don’t think it will stand up either, do you?

Jesse J. McCrary, Jr.:

I am not sure.

Thurgood Marshall:

You prefer to stick with the Alabama.

Jesse J. McCrary, Jr.:

Yes sir.

Potter Stewart:

I suppose your position would be then that the Florida constitutionally could have a statute which simply says that the accused shall ten days before the trial provide the prosecutor with the names and addresses of all the witnesses he expects to call in his defense, would you?

Jesse J. McCrary, Jr.:

You Honor, I don’t want to go that far over on the —

Potter Stewart:

Why not, what’s your theory that why can’t you do it here?

Jesse J. McCrary, Jr.:

I think we can do it here because we — it’s an attempt to modernize and it’s reciprocal kind of discovery.

I see nothing unconstitutional about it, there is no abridgement of his right to remain silent.

It is not testimonial.

Potter Stewart:

Then your answer is that constitutionally the state could go that far?

Jesse J. McCrary, Jr.:

Yes sir but it just — this does not abridge his right as he maintains under the Fifth Amendment to remain silent.

When we look at the rule, the rule is, it is absolutely reasonable and constitutional.

Hugo L. Black:

To remain silent about what?

Jesse J. McCrary, Jr.:

He is not required in anyway to say anything that will incriminate himself.

Hugo L. Black:

About what?

Jesse J. McCrary, Jr.:

About the crime or the offense.

Hugo L. Black:

About the trial.

Jesse J. McCrary, Jr.:

About the trial.

Hugo L. Black:

They are the witnesses.

Jesse J. McCrary, Jr.:

Well, I don’t think that talking about the witnesses Your Honor has anything to do with incriminating him or it’s not testimonial to the extent that the Fifth Amendment would cover that situation.

I think that all he is doing at this point is tendering a name, the names of witnesses that he is going to use for one instance, alibi.

Hugo L. Black:

But they wouldn’t give them the right to remain silent.

Jesse J. McCrary, Jr.:

He has that right.

Hugo L. Black:

The state — no he could remain silent as the state can go and say, now what witnesses you’re going to bring in here to prove you are not guilty and they could force him to do it.

Hugo L. Black:

He doesn’t have a right to remain silent.

Jesse J. McCrary, Jr.:

Your Honor he has the right to remain silent as I understand.

This Court’s decision in Malloy versus Hogan.

Hugo L. Black:

About what?

Jesse J. McCrary, Jr.:

He has the unfettered right to remain silent about incrimination and what he gives to the state in terms of witnesses does not incriminate him.

And what they are suggesting to us is that we ought to make criminal law.

Hugo L. Black:

That weakens his hands of course.

Jesse J. McCrary, Jr.:

Your Honor it does not weaken his hands.

Hugo L. Black:

I would take, I take as a very valuable thing for a prosecutor to have in advance and they have been the alibi witness.

Jesse J. McCrary, Jr.:

Your Honor, I think it is very valuable. Additionally, I think it’s very valuable to a defendant to have the names of the witnesses that the state will use to rebut this testimony.

Hugo L. Black:

They may be allowed but the constitution requires that’s help it.

Jesse J. McCrary, Jr.:

Sir?

Hugo L. Black:

I think maybe there are a lot of state law of our constitutions that do requires that the state give the names.

Jesse J. McCrary, Jr.:

Yes sir.

Hugo L. Black:

In the Senate.

Jesse J. McCrary, Jr.:

State of Florida does too.

I would suggest to —

Hugo L. Black:

But I presume that nothing in the constitutions says that state shall not be compelled to give any testimony on either side in advance.

Jesse J. McCrary, Jr.:

I don’t remember anything in the constitution saying that I — as we discussed this I am reminded of Schneider versus Massachusetts where a former member this court Mr. Justice Cardoza said that while due process is due to the accuser it is also due to the accused and that’s precisely what we are talking about.

That we are not abridging him of any right to remain silent under the Fifth Amendment.

Potter Stewart:

Mr. McCrary, Mr. Kanner suggested that you concede on that — this information though this and remain the witnesses it’s testimonial.

Jesse J. McCrary, Jr.:

No sir, the state of Florida does not concede that it’s testimonial.

What I think we are talking about here is that petitioner is probably trying to make criminal law like a poker game so that the person who has the biggest surprise at trial then should win and probably would in many instances.

But we had cases in this Court, and other inferior courts probably have suggested that the whole purpose of trials in both criminal and civil proceedings is the search for truth.

Now, we are not suggesting in any way that this defendant should be required to get on the stand or not to get on the stand.

We are simply saying that if you intend to use alibi —

Hugo L. Black:

Why don’t you put him on the stand when you require that he give the names of the witnesses he intends to use?

Jesse J. McCrary, Jr.:

Your Honor, this would be a clear violation of all of the cases that this Court have decided, if we forced a man to testify and we are not suggesting that.

Hugo L. Black:

Won’t this force him to testify?

Jesse J. McCrary, Jr.:

No sir it does not.

Hugo L. Black:

That he is maybe not something relevant to the actual commission of the crime and certainly does make him testify and give the names of the witnesses he intends to use.

Jesse J. McCrary, Jr.:

Your Honor I respectfully —

Hugo L. Black:

I’m not saying it is good or bad, I’m just saying it does make him do that.

Jesse J. McCrary, Jr.:

Your Honor I respectfully disagree with the Court, Mr. Justice Black with you on that position.

It does not in my opinion require him to testify because it is a matter of timing.

Hugo L. Black:

What does it require him to do?

Jesse J. McCrary, Jr.:

It simply requires him to disclose the names of the witnesses.

Hugo L. Black:

That he intends to use?

Jesse J. McCrary, Jr.:

For alibi alone.

This is all —

Hugo L. Black:

Yes but suppose you said everything, why wouldn’t he think good about alibi, why couldn’t he do it about everything?

Jesse J. McCrary, Jr.:

Then I suppose they could do it about everything and I don’t think I’m in a position to discuss the constitutionality of that principle on this occasion.

Thurgood Marshall:

But the real problem I have with the graph is that do you agree that in that stage, Florida has no right to ask him and require him to answer anything other than his alibi witnesses.

Jesse J. McCrary, Jr.:

I would agree.

Thurgood Marshall:

Why the alibi would?

Jesse J. McCrary, Jr.:

Under this rule Your Honor.

Thurgood Marshall:

I thought under all the decisions of this court, he doesn’t have to tell you anything?

Jesse J. McCrary, Jr.:

He does not have to give any information that would incriminate him and this —

Thurgood Marshall:

He doesn’t have to tell you anything either he not to give you his name.

Jesse J. McCrary, Jr.:

I would agree Your Honor.

Thurgood Marshall:

He can stand absolutely silent.

Jesse J. McCrary, Jr.:

He can stand mute.

Thurgood Marshall:

But on this one question he can’t stand silent.

Jesse J. McCrary, Jr.:

Your Honor, the rule — if the rule does provide that he can stand silent.

Thurgood Marshall:

But he can’t use an alibi?

Jesse J. McCrary, Jr.:

No the rule does not go that for us Mr. Kanner said.

The rule to answer Mr. Justice Black’s question specifically provides that if he does not comply with the rule, the trial judge may exclude the testimony.

It does not say that he can not use that.

Hugo L. Black:

I guess there’s another provision in the constitution says that the man shall be entitled to summon witnesses with no things that are relevant to testify on his behalf.

Jesse J. McCrary, Jr.:

Mr. Justice Black, I would quite agree, I think that the same Court that decided this case, the Third District Court of Appeal is mindful of this and we cited it at page 14 in our brief, (Inaudible) versus State of Florida and Wilson versus the State of Florida where the defendant did not comply with the notice of alibi rule and the Court still let those witnesses testify so that the rule is not an un-reasonable rule where we say —

Hugo L. Black:

Well I know the next judge wouldn’t do differently and make him.

Jesse J. McCrary, Jr.:

Your Honor, I have to assume from my position that judges are fair and that they are knowledgeable and reasonable that they will apply —

Hugo L. Black:

But then you’ll be saying then that a fair thing a judge would do would be not to the enforce the rule.

Jesse J. McCrary, Jr.:

Oh!

No sir.

I am certainly not saying that.

I’m simply saying that the Florida cases have been decided on this rule.

The judge has allowed the alibi witness to testify even where the defendant in some instances did not comply with the request.

Hugo L. Black:

Why they do that?

Jesse J. McCrary, Jr.:

He thought that it was the proper thing to do.

Hugo L. Black:

That was violation of the rule.

Jesse J. McCrary, Jr.:

No sir it’s not a violation of the rule Your Honor because the rule provides that the judge may exclude the testimony, it does not say he cannot.

Hugo L. Black:

He has the right to do it if we wants to.

Jesse J. McCrary, Jr.:

Yes sir.

Warren E. Burger:

Your friend seems to have conceded if I heard him correctly that it does not violate the constitution to require the defendant to give advance notice of the claim of insanity by way of defense.

I take it defense there, insanity is an affirmative defense in Florida.

Now, do you see any distinction between the advance notice which he concedes as constitutional and the advance notice on alibis which he argues is unconstitutional?

Jesse J. McCrary, Jr.:

Your Honor I think that the — they are both the same.

They are identical except for the defenses.

Now, the names of the defenses, the purpose is the same.

If one is going to plead insanity, he should be required to give notice of that intent.

Hugo L. Black:

Or that law should be provide that he’s compelled to give the state the names of all witnesses that he claims witness to the crime.

Jesse J. McCrary, Jr.:

Well, once again Mr. Justice Black I think this Court has decided that the defendant can remain absolutely mute and say nothing.

Hugo L. Black:

But he can remain absolutely mute, he has to give the name of the witnesses he’s going to use.

Jesse J. McCrary, Jr.:

Yes sir, he could remain mute under the situation and we’ve had cases where it’s been done.

They remained mute in 4325 versus the State of Florida.

Hugo L. Black:

The state court might tell him that he can’t afford to put on these witnesses.

Jesse J. McCrary, Jr.:

Mr. Justice Black, — once again I’m not in the position to say what those gentlemen would do.

I don’t know what the state court could do —

Hugo L. Black:

But they could, can they?

Jesse J. McCrary, Jr.:

I can only go based on the decision —

Hugo L. Black:

They can under the rule, can’t they?

Jesse J. McCrary, Jr.:

Mr. Justice Black, I assume that they could but I can only go by at this point of what they have done and I have to watch.

Hugo L. Black:

You mean they’ve always violated the rule?

Jesse J. McCrary, Jr.:

No sir, I’m not saying that.

I’m saying that the appellate court of Florida have — when they’ve had appeals in situations like this, they have said it was not error for this person to testify and the trial judge properly let him testify under the provisions of the rule even though he didn’t comply.

And I think that I’ve been simply speculating to this Court, if I said that they would rule some other way and have to abide by the precedence that they’ve set down here.

Hugo L. Black:

You mean that we’d have to assume that they’ll always — he then have to give the name?

Jesse J. McCrary, Jr.:

Your Honor I think that I have to assume at this point.

Hugo L. Black:

That they’ll always never enforce it?

Jesse J. McCrary, Jr.:

I can’t go that far and I think that simply back myself in the corner and never get out.

Potter Stewart:

I should think in your argument that you would almost have to assume that if the names weren’t, given the defendant couldn’t use those witnesses on his behalf.

That’s what the statute provides can happen and that’s what the constitutional issue really is, isn’t it?

Jesse J. McCrary, Jr.:

Yes sir.

Warren E. Burger:

That might give us another case some other day.

Jesse J. McCrary, Jr.:

Sir?

Warren E. Burger:

That might give us another case on a different point some other day.

Jesse J. McCrary, Jr.:

I did — it very well may Your Honor but at this point I don’t think that this is the question before this Court, I don’t not understand it as being the question before this court.

Potter Stewart:

Here the names were given and the witnesses were used.

Jesse J. McCrary, Jr.:

Were used.

Potter Stewart:

Isn’t that correct?

Jesse J. McCrary, Jr.:

Yes sir and if we talk about the trial strategy, there was nothing that prohibited the defendant from testifying in his own behalf if he wanted to at any time during the trial.

What we are really talking about is a bit of timing.

Now, he can determine at the close of the state’s case whether he wants to put on alibi witnesses or he can determine 15 days before trial that he does not — that he wants to put or does not want to put on alibi witnesses.

Now, the way it harms and is absolutely (Inaudible) to me and there is not any violation anywhere of the Fifth Amendment here because he is not required to put on anybody on the stand.

He is not required to testify or not to testify in his own behalf.

Hugo L. Black:

Well, that’s quite a different argument the one you’ve been making up today, isn’t it?

Jesse J. McCrary, Jr.:

No, I don’t think it’s a different argument but Mr. Justice Black I think that I —

Warren E. Burger:

It means to me to be entirely different say well even if that is rule, it wasn’t broken and certainly he couldn’t have been harmed by it.

Jesse J. McCrary, Jr.:

Your Honor what has happened here is that defendant did comply with the rule.

Jesse J. McCrary, Jr.:

He complied with the rule.

Warren E. Burger:

Maybe it’s not an issue in this case at all.

Jesse J. McCrary, Jr.:

May not be.

The non-compliance is not a issue I submit to the Court.

The fact is that he did comply that he did as a matter of trial strategy decide to put on his alibi witnesses.

Hugo L. Black:

Maybe he did it because he thought he’d have to under the rule.

Jesse J. McCrary, Jr.:

Your Honor I can’t — Mr. Justice Black I certainly cannot stand here and say that I can make up counsel’s mind.

Warren E. Burger:

You only have about three minutes left and we haven’t got to the six-man jury question, so after lunch we’ll hope you will address yourself to that.

Jesse J. McCrary, Jr.:

Yes sir.

I just like, well conclude a statement to the question given before the Court.

The first issue is that, certainly it’s not incriminating, what might have happened is not before this Court and as suggested by Mr. Justice Brennan and Mr. Justice Stewart in the total effect over here, it was absolutely harmless to the defendant to have those witness to testify where he complied with the rule.

The second issue is raised in our brief is to the Fourteenth Amendment due process clause and the Sixth Amendment entitle a state defendant to a trial of 12-men jury.

First, I think to understand or towards to get to the core of this problem, we first must necessarily talk about the 12-men jury of a purpose of the jury trial as defined by this Court’s decision in Duncan versus Louisiana.

I think the majority opinion stated that the purpose of the jury and the Anglo-American system was protection against arbitrary power.

The jury of a pierce gave this kind of safeguard from overzealous prosecutor and overzealous federal and State Governments.

Secondly, there have been decisions from this Court, says that the federal standard only requires that we adhere to the essentials of the common law jury.

And to number the essentials, we think that the essentials are one, that a person’s needs or should have the right to a jury trial in serious offenses.

Another essential of the jury system as we think the unanimous verdict as defined by this code in Patton versus United States and the only decisions tend to say Maxwell versus Dow and Thompson versus Utah suggest that 12 men is an essential of the jury system.

(Inaudible)

Jesse J. McCrary, Jr.:

Yes sir, that word suggest did not — I didn’t mean suggest, the Court said or held, but they were only applied then in terms of the federal standard.

Now, we have to look at what are the essentials of the jury system.

(Inaudible) we think that this is essential because of the possible confinement.

Unanimous verdict and Florida complies with this but when we talk about the 12 men jury, there is nothing, there’s no particular reason for having 12 men on a jury as opposed to six men.

We find that the common law or the reason that we have to have is merely a carry over of the common law at the time we adopted the constitution in 1789.

Potter Stewart:

How about one man, excuse me?

There are some offenses in the six brothers and 12 jurors and so.

Jesse J. McCrary, Jr.:

Your Honor, the State of Florida does provide for 12 men juries or 12 person juries, I might say in capital offenses.

Potter Stewart:

Why the distinction or other offenses of six-man jury?

Jesse J. McCrary, Jr.:

Your Honor I truthfully think that it is a vestigial remain of the common law, that’s all and there’s nothing more.

Warren E. Burger:

Well, even if it isn’t to that or if it’s that, it may also be just a matter of line drawing.

Warren E. Burger:

They might have drawn the line, the defense is over one year or defense is over two years or as some other states have?

Jesse J. McCrary, Jr.:

Your Honor there is a line drawing in the 12 versus 6 in the State of Florida and the capital offenses — these are the offenses at the time it was drawn and the present time carry with it a death penalty.

Potter Stewart:

This petition, they got a life imprisonment —

Jesse J. McCrary, Jr.:

Yes sir.

Potter Stewart:

So you get up the life before a six-man jury and if that’s involved, it’s a 12 man?

Jesse J. McCrary, Jr.:

Yes sir.

I would like to point out to the Court of Florida does provide for 12 man jury in eminent domain cases as we’ve cited in our brief.

Potter Stewart:

Really?

You know of any place in the country where there are fewer than 12 persons on the jury in the capital cases.

Jesse J. McCrary, Jr.:

Your Honor, I’m not familiar with any place where there is less than 12 on a capital offense.

Potter Stewart:

But I suppose if your position is sustained, the states would be free to have fewer than 12 in capital cases like all other cases.

Jesse J. McCrary, Jr.:

I think there would be sir.

Potter Stewart:

Have as few as three?

Jesse J. McCrary, Jr.:

Your Honor I don’t know where we can draw the line in terms of the numbers gained and I think that this is what it is, it’s a numbers game.

I look at it to say a jury of peers which would suggest to me.

Sir?

Thurgood Marshall:

You said a jury of what?

Jesse J. McCrary, Jr.:

One should be tried by a jury of his peers which was suggested to me the plural of the word peers would mean more than one.

Historically we have seen and I think it’s lost in history that sometimes people were tried by 500 as have been suggested today or down to as many as three.

When this jury system was developing but there is no statistical data available that has been presented by the petitioner which suggests that a man tried by 12 is going to receive a fairer trial than a man who was tried by six.

Thurgood Marshall:

Isn’t it true that if you have 12 jurors as compared to 6 you lose opportunity of six, one votes for hung jury?

Jesse J. McCrary, Jr.:

You use that —

Thurgood Marshall:

If you have 12, you already had convinced one out of 12 to get a hung jury?

Jesse J. McCrary, Jr.:

Yes sir.

Thurgood Marshall:

And if you have six, you only six chances to find that one.

Jesse J. McCrary, Jr.:

Mr. Justice Marshall you’re absolutely correct but I think that we come back to a number’s game and this Court is —

Thurgood Marshall:

Well it would be better to have 25 under my theory.

Jesse J. McCrary, Jr.:

Your Honor, if we took to this to the logical conclusion, we ought to have the population of Washington sitting on one case.

So long as we provide, as this Court said in the jury system a buffer between overzealous prosecutors or overzealous state officials and we provide it by a fair and impartial manner, I think that this is all that’s required and if we play the number’s games I would suggest that we shouldn’t use 12.

Byron R. White:

Well, there any fewer than 12 man juries anywhere in the states when the constitution was adopted, was anyone trying criminal cases or a jury trial was required with any fewer than 12?

Jesse J. McCrary, Jr.:

Your Honor, my research does not reveal that, it does reveal that Thompson versus Utah, before they were a state, I think this was about 1898 decided by this Court stated that Thompson wanted to be tried by eight people or some number less than 12 and the Court said — that the State of Utah, not the state but the territory of Utah could not do this because they were on the federal jurisdiction.

To me, the dicta sort of indicated that had not, they had been on the federal jurisdiction that he would have been allowed, it would have been okay to try him by a people or by a number less than 12.

Warren E. Burger:

They use six now don’t they or they did —

Jesse J. McCrary, Jr.:

Your Honor, I think the State of Utah use a six and I think that there are some 12 states at some trial proceedings throughout from the lowest court up to the highest trial court use less than six on one occasion or another, I mean less than 12 on one occasion or another.

Warren E. Burger:

Well, in Utah it historically was a matter of the lack of man power.

Jesse J. McCrary, Jr.:

Your Honor this historically, I think that Florida might have gotten this rule too.

In its legislative history —

Hugo L. Black:

When did it adopt six men jury law?

Richard Kanner:

Sir, it first appears under constitution of 1875 by constitutional amendment.

Harry A. Blackmun:

As a reconstruction which is statutory?

Richard Kanner:

Yes sir.

We suggest that in our brief we put in our brief joined Mr. Justice Harlan’s words that there’s nothing significant about the number 12 that we’ve come to get this number based on the anti-establishment clause that its basic reference comes from the bible, 12 disciples to 12 stones to 12 tribes of Israel to 12 gates to Jerusalem, all and there’s nothing significant about it.

And that six people can provide what Mr. Justice White did say that we put to provide a buffer between Government and the people so that this kind of a pressure is not put on people by overzealous prosecutors or overzealous Government.

There have been some statistical study shown in Winchester Massachusetts District Court, the legislature authorized there six-men jury and the report said that it’s been found the six member juries render the same kinds of verdicts that 12 member juries render or their render the same kind of lawyers would expect from 12-men juries.

It was also found true to be — this to be true in the state of New Jersey.

To quote Mr. Justice Holmes in our position, he says that it is revolting that we have no better reason for keeping a rule than that rule was laid down in the time of Henry IV.

He says that it’s more revolting as the grounds upon which it was laid down long vanished and the rule persist from the blind imitation of the past.

We think that the 12 men jury should not be required on the states, additionally we think that the numbers game is not essential to fulfilling the purpose that this Court pronounced in Duncan versus the United — versus Louisiana and that the sole purpose of the jury is to protect the public and whether that number is six or 12, it is fulfilled and that there is nothing violative of the Fourteenth Amendment or the Sixth Amendment when you use six men on a jury trial.

We respectfully urge this court on both issues to affirm the District Court of Appeal and to hold particularly that a six men jury does not violate the constitution and the notice of alibi does not violate the Fifth Amendment nor the due process clause of the United State constitution.

Thank you.

Warren E. Burger:

Thank you, Mr. McCrary.

Richard Kanner:

Your Honor unless the Court has any question, I have no further argument.

Warren E. Burger:

I guess not.

Thank you for you submission Mr. Kanner and Mr. McCrary.

The case is submitted.