Opposition — United States v. Hale

IN THE

SUPREME COURT OF THE UNITED STATES

RECEIVED

NOV 19 1974

OFFICE OF TWE CLERK

SUPREME COURT, U.S.

OCTOBER TERM, 1974

No. 74-364

UNITED STATES OF AMERICA, Petitioner

WILLIAM G. HALE, Respondent

MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

The respondent, William G. Hale, asks leave to prceceed in

forma pauperis and to file a single typewritten copy of Respondent's

Brief in Opposition to Petition for Certiorari to the United States Court

of Appeals for the District of Columbia Circuit, pursuant to Rule 53.

The affidavit of petitioner's counsel in support of this motion

is attached hereto.

LARRY /RITCHIE

Counsel for Respondent

(Appointed by the United States Court

of Appeals for the District of

BEST COPY AVAILABLE | Columbia circuit

Georgetown University Law Center

600 New Jersey Avenue, N. W.

Washington, D. C. 20001

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-364

UNITED STATES OF AMERICA, Petitioner

WILLIAM G. HALF, Respondent

AFFIDAVIT

DISTRICT OF COLUMBIA, ss:

I, Larry J. Ritchie, being first duly sworn according tc law,

depose and say, in support of respondent's motion for leave to proceed

in forma pauperis:

1. I am counsel for respondent William G. Hale in the

above -entitled case, having been appointed by the United States Court

of Appeals for the District of Columbia Circuit.

2. Despite diligent efforts to reach the respondent since

receiving notice of the government's Petition for Writ of Certiorari,

I have been unable to contact him.

3. The United States Court of Appeals for the District

of Columbia Circuit granted the respondent leave to proceed in forma

pauperis as appellant before that court on the basis of respondent's

affidavit that he was unable to pay fees, costs or security therefor.

4. Because I believe in the truth of respondent's

affidavit before the United States Court of Appeals and because I am

unaware of any facts that would indicate that the respondent is sot

still impoverished, I believe that he is unable to pay fees, costs or

security therefor in the above-entitled case.

5. I believe that respondent is entitled to effectively

present his opposition to the petition for certiorari in said case.

6. The nature of said case is breifly stated as follows:

The respondent was tried and convicted of robbery

under 22 D.C. Code § 2901 (1971) before the United States District

Court for the District of Columbia. He appealed this conviction to the

United States Court of Appeals for the District of Cclumbia Circuit.

The United States Court of Appeals reversed his conviction on the

ground that respondent, who testified at his trial, was improperly

cross-examined on his silence at the time of his arrest. The United

States of America has petitioned this Court for a writ of certiorari.

ITCHIE, ESQUIRE

Respondent

Georgetown University Law Center

600 New Jersey Avenue, N. W.

Washington, D. C. 20001

Duly witnessed and sworn to

before me, a Notary Public,

this day of 2

1974.

P C. Aun

Celt ey : 52 2

.

NOY 19 8A

e OF Mee CLERA

SUPREME COURT, US.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-364

UNITED STATES OF AMERICA, Petitioner

WILLIAM G. HALE, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

on vst \

Counsel for Respondent

(Appointed by the United States Court

of Appeals for the District of

November 19, 1974 Columbia Circuit)

LARRY J. RITCHIE, Esquire

HSI Georgetown University Law Center

600 New Jersey Avenue, N. W.

Washington, D. C. 20001

INDEX

QUESTION PRESENTEPI¹PPP³ UDP Pi

e eee eee ee eee „„ „ „ „% „ „ „46 „

ARGUMENT T.. „„ „„ „ „ „% „„ „„ „ „ „ „„ „ „ „ „ „„ „„ „ „ „

Z

CITATIONS

Cases:

Fagundes X. United States, 340 F.2d 673 (1Cir. 1965)....

Fowle ». United States, 410 F. 1d 48 (9 Cir. 1969).......

Gillison v. United States, 399 F.2d 586 (D.C. Cir. 1968).

Griffin v. United States, 336 U.S. 704 (1949)..... eecccces

Grunewald v. United States, 353 U.S. 391, 77 S.Ct.

963 , 1 L. Ed. 2d 931 (1957/ę.,‚üU

Johnson v. Patterson, 475 F.2d 1006 (10 Cir. 1973)

Kelly v. United States, 99 U.S. App. D.C. 13, 236

F. 2d 746 Dh abeasheseesseoeserosecéeoscoes er „ „

Naples v. United States, 120 U.S. App. D.C. 123,

344 F.2d 508 eee 923953434

O'Hearn x. State, 79 Neb. 513, 113 N. W. 130 (1907).

People v. Simmons, 28 Cal. 2d 699, 172 P. 2d 18

Tht 66660666066 „ „„ „ „ „6 „ „ % % „„ „„ „„

Pinkard v. United States, 99 U.S. App. D. C. 394, 240

F. 2d 633 eee eee eee eee eee 6 „ „ „„ re

Skiskowski v. United States, 81 U.S. App. D.C. 274,

180 PF. 24 177 (166%%᷑nnrrr „„ 4„„6“

State v. Hester, 137 S.C. 145, 134 8. E. 885 (1926)

United States v. Anderson, 498 F.2d 1038 (D. C. Cir.

eee eee ee se eee eee eee ee eee eee “ene „„ „4

6. 10. 11

10

IN THE

SUPREME COURT OF THE UNITED STATES

Miscellaneous:

McCORMICK, EVIDENCE (1972). ..c-eceeeeceecccecees 5,6

OCTOBER TERM, 1974

Proposed Federal Rules of Eviden neee. 5,6

Note, Tacit Criminal Admissions," U. Penn. L.

Rev. 210 1063) . 6 6 0 %%% %% %% %%% %%% 5

No. 74-364

WIGMORE, EVIDENCE (198727/uviir 5

(Chadbourn rev. 1972)

UNITED STATES OF AMERICA, Petitioner

V.

WILLIAM G. HALE, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the District

of Columbia Circuit was correct in its ruling that as a matter of local

evidentiary law, a defendant who has given exculpatory testimony at

trial cannot be cross-examined as to why he failed to offer such in-

formation at the time of his arrest.

2. Whether the Fifth Amendment bars cross-examination of a

defendant who has given exculpatory testimony at trial as to why he

failed to offer such information at the time of his arrest.

ii

|

STATEMENT

Along with a co-defendant, the respondent was tried by jury in

the United States District Court for the District of Columbia for robbery,

in violation of 22 D.C. Code § 2901 (1967). The respondent testified

on his own behalf—denying guilt, offering an alibi, and asserting that

$158 found in his possession after his arrest was money that his wife

had given him in order to purchase money orders for her (Tr. 217-19).

He had previously been arrested on a narcotics charge (Tr. 253-54).

On cross examination, the prosecutor questioned him about his silence

at the police station to which he was brought after his arrest (Tr. 259-

260):

Q. When did they [the police] inform you of the charge ?

When I was at the precinct.

Q. Did they search you?

A. Yes, they did.

Q. Did you in any way indicate where that money came

from”?

A. No, I didn't.

Q. Why not?

A. I didn't feel that it was necessary at the time.

Q. You were advised of your rights, were you not?

Yes.

THE COURT: He is not required to indicate where the money

came from. There is no responsibility on his part in re-

gard to that.

DEFENSE COUNSEL: Thank you, your Honor.

COUNSEL FOR CO-DEFENDANT: I ask that the question and

answer be stricken.

THE COURT: I indicated to the jury that it is clearly an in-

appropriate question. You may disregard it, ladies and

gentlemen. The defendant is not required to give any

explanation whatsoever at the time of his arrest.

PROSECUTOR: If he was asked the question--

THE COURT: I have ruled, sir.

PROSE -“UTOR: All right, your Honor. Fine.

Later, at the bench, counsel for respondent moved for a mistrial be-

cause of this questioning (Tr. 261-262):

DEFENSE COUNSEL: ... I think questioning into whether or

not he [respondent] explained where the money came from

was highly improper as the Court pointed out. I am not

at all sure that an instruction to the jury could cure that.

THE COURT: Do you have any evidence that he gave a con-

trary statement to the police.

PROSECUTOR: They asked him, ‘Where did you get the

money? He couldn't account for it. }

THE COURT: What did he say?

PROSECUTOR: He wouldn't say anything. He couldn't account

for it. They asked him whether he was working or

wasn't working. He wouldn't indicate.

THE COURT: ... Your motion for mistrial is denied.

These are the only portions of the record that are pertinent to the

question presented.

The jury voted to convict, but the United States Court of

Appeals for the District of Columbia Circuit reversed, holding that the

cross-examination of the defendant had been improper. United States v.

Anderson, 498 F.2d 1038 (D.C. Cir. 1974).

ARGU MENT

1. The Court of Appeals held that, as a matter of evidentiary

law, a defendant who has given exculpatory testimony at trial cannot be

cross-examined as to why he failed to offer such information at the

time of his arrest, stating:

In sum, application of the principles enunciated

in Grunewald compels a finding that, ae matter

of law, there was nothing inconsistent between

|

-4-

Hale's silence in interrogation and his alibi at

trial. Thus, the basic premise required for

triggering the Harris rationale is absent, [498

F. 2d at 1043, footnotes omitted].

The court also found such cross-examination to be constitutionally im-

permissible, stating:

Even if it could be said that appellant's silence

at the police station was inconsistent with his testi-

mony at trial, Harris would nevertheless be in-

applicable in the present circumstances, [498 F.2d

at 1043).

2. Mr. Hale was convicted of robbery in violation of 22 D. C.

Code § 2901. The district court was trying a case brought under a

statute which applies only to the District of Columbia and thus was

sitting as a local court. See Griffin v. United States, 336 U.S. 704

1/

(1949).

As a local court, the rules of evidence which would apply

would not be federal rules of evidence; they would be matters of local

law as are the rules of evidence prevailing in the state courts.

2/

Griffin v. United States, 336 U.S. 704, 709 (1949).

Griffin, 336 U.S. at 717: "“[T]he law of evidence and procedure govern-

As stated in

ing criminal trials in the District of Columbia is in the keeping of the

Court of Appeals for the District and is not to be exercised by this

Court.

1/ In fact, this Court has been at pains to point out that

~ Congress ... recognized the expediency of separate

provisions’ pertaining to criminal justice applicable

exclusively to the District of Columbia in contra-

distinction to the Criminal Code governing offenses

amenable to federal jurisdictions elsewhere. Johnson

v. United States, 225 U.S. 405, 418.

Griffin v. United States, 336 U.S. 704, 713 (1949).

2/ As stated in Griffin at page 717:

int has become settled practice for this court to

recognize that the formulation of rules of evidence for

the District of Columbia is a matter purely of local

law to be determined—in the absence of specific Con-

gressional legislation—by the highest appellate court

for the District.

-5-

3. A uniformly recognized principle of evidence is that the

credibility of a person who takes the witness stand to testify may be

impeached by the showing of a prior inconsistent statement made by

the witness.

McCORMICK, EVIDENCE §§ 34-37 (1972). Whether

silence can amount to a statement depends on the factual circumstances

3/

of the case.

Whether a failure to assert a fact will amount in effect

to an assertion of the non-existence of the fact depends on whether it

would have been natural under the circumstances to assert the fact.

mA WIGMORE, EVIDENCE § 1042 (Chadbourn rev. 1972). Identical

considerations app'y to the determination of whether silence can be used

as a tacit admission (adoption of the statement of another by silence).

IV WIGMORE, EVIDENCE § 1071 (Chadbourn rev. wn” In both

situations, prior to the introduction of silence as a statement, it must

be found that there was a confrontation or a statement made by another

which would under the circumstances naturally call for a reply.

Whenever there is a preliminary question of fact which must

be determined prior to the introduction of evidence, the factual question

is to be decided by the judge outside of the hearing of the jury. Proposed

3/ The Proposed Federal Rules of Evidence, Rule 801(a)

define statement as follows: A statement is (1) an oral or

written assertion or (2) nonverbal conduct of a person, if it is

intended by him as an assertion.

4/ See also Note, "Tacit Criminal Admissions’, 112

U. Penn. L. Rev. 210, 215-16 (1963), where it is stated:

[Clourts generally have imposed seven conditions

for the introduction of evidence that an alleged ad-

mission by silence occurred. If silence is the only

response by the defendant, the accusation must have

occurred (1) in the defendant;s presence and (2)

within his hearing; (3) he must have understood it;

(4) it ordinarily must have embraced facts within

his personal knowledge; (5) he must have been

physically able to speak and (6) psychologically at

liberty to speak; and (7) the statement and surround-

ing circumstances must have naturally called for 2

reply. [footnotes omitted].

5/

Federal Rules of Evidence, Rule 104. In this case, there was never

any showing by the government that a statement had been made or a

question directed to Mr. Hale by the police officers. The only proffer

of any sort by the government was the response to the court's question

during the bench conference at which the motion for a mistrial was

6 /

made. (Tr. 261-262). It would thus appear from the record and from

5/ "[T]he question of fact whether the party's conduct

manifested his assent to the statement of the other

person is a preliminary question for the judge.

Unless he so finds, the statement is excluded."

[footnote omitted].

Naples v. United States, 120 U.S. App. D.C. 123, 344 F.2d 508, 512

(1964) [quoting from McCORMICK, EVIDENCE, § 246, at 527 (1964).

It is of course, an elementary rule of evidence that

prior statements may be used to impeach the credibility

of a criminal defendant or an ordinary witness. But

this can be done only if the judge is satisfied that the

prior statements are in fact inconsistent. 3 Wigmore,

Evidence, § 1040. [emphasis added].

Grunewald,v. United States, 353 U.S. 391, 418-19 (1957).

The theory underlying this rule is that the natural

reaction of an innocent man to an untrue accusation

is to enter a prompt denial. Where his response is

silence, envasion, or equivocation, it is for the trial

court to determine in the first instance whether the

accusation has been made under circumstances calling

for a reply, whether the accused understood the state-

ment, and whether his conduct or response was such

as to give rise to an inference of acquiescence or

guilty consciousness. Where the trial judge determines

that such an inference may be drawn, the statement is

then admitted, not as substantive evidence in proof of

the fact asserted but merely as a basis for showing the

reaction of the accused to it.

People v. Simmons, 28 Cal. 2d 699, 172 P.2d 18, 25 (1946).

6/ As stated by Judge Wilkey in his dissenting opinion below,

498 F.2d at 1047:

Rey. fully, I must point out that the dialogue-in

quotes—my colleagues cite in the text at note 7 and

in note 12, as testimony as to what defendant Hale said

the manner in which the question presented is phrased in the petition

for certiorari, that the government's position is that a suspect under

arrest would naturally volunteer exculpatory information to the police.

Even assuming that there was a question directed to Mr. Hale

by the police, before the prosecutor can use his silence as a statement,

the circumstances must have been such that it would have been natural

to reply. The circumstances were that Mr. Hale had just been arrested

on the street for robbery, taken into the police station, searched, and

advised of his right to remain silent. It should also be noted that

Hale was no stranger to police procedures, having been arrested on a

previous occasion.

Many jurisdictions have adopted a per se rule that the arrest

of an accused excludes evidence of a subsequent admission by silence.

As stated in People v. Simmons, 28 Cal.2d 699, 172 P.2d 18, 26

(1946):

It is also apparent that when a person is in the

hands of his accusers he may well and soundly con-

clude that his best interests will be served by

silence, evasiveness, or equivocation. For this

reason, in a number of jurisdictions it has been held

that the mere fact of arrest is sufficient to render in-

admissible the fact of the accused's failure to deny

accusatory statements when made in his presence and

hearing. These courts maintain that it is the common

knowledge and belief of men in general that silence

while under arrest is most conducive to the welfare of

an accused whether he be guilty or innocent; that the

maintenance of silence is the best strategic policy for

one in the custody of the law, and that it entirely con-

sistent with innocence. [citations omitted].

(Fn. 6 cont.) in answer to police questioning, is not evidence at all.

Hale never testified to this, no police witnesses testi-

fied to this, the jury never heard any such words.

The dialogue is lifted from a bench conference at

which the Assistant U.S. Attorney purported to give his

belief as to what occurred at the police station. The

jury never would have been permitted to receive any

such hearing from the prosecutor, who of course was

never there.

In Kelly v. United States, 99 U.S. App. D.C. 13, 236 F.2d

746, 749 (1956), the court discussed some of the motives which might

cause an accused under arrest to remain silent in the face of

accusation. The court quoted from the case of State v. Hester, 137

S.C. 145, 185, 134 S.E. 885, 898-899 (1926):

{I]t cannot be disputed that many people, and even

persons who are entirely innocent of wrongdoing, are

afraid to talk in the presence of detectives. We must

not forget, too, that from time immemorial it has

generally been conceded an unwise thing for those charged

with criminal offenses to talk to anybody and everybody

about their cases, and especially to engage in conversa-

tion with those who may not be friendly to them. For

years and years the members of the bar have cautioned

their clients not to discuss their cases with those with

whom they came in contact, unless absolutely assured

of their friendship, and many good lawyers have advised

clients to refrain from talking at all. This has been

the practice so long that it has become a well-known

fact to our people generally.

The court also quoted from the case of O'Hearn v. State, 79 Neb. 513,

522, 113 N.W. 130, 134 (1907):

[T]he very surroundings of the accused in such

cases are such as to render it entirely proper and

natural for him to keep silent in the fear of mis-

quotation or misconstruction. A person in such a

situation would naturally fear that the worst possible

interpretation would be placed upon his language, that

the memories of those present would to state-

ments prejudicial to his interests, and that an officer

seeking to convict might supply through zeal any de-

fect in the statement which was actually made.

Apparently, the District of Columbia has not adopted the per

se rule in the tacit admissions area, but would look to all of the

surrounding circumstances. In Naples v. United States, 120 U.S. App.

7/

D. C. 123, 344 F. 2d 508, 511 (1964), the court stated:

7/ See also Pinkard v. United States, 99 U.S. App. D.C.

394, 240 F.2d 633 (1957); Skiskowski v. United States, 81 U.S.

App. D.C. 274, 158 F.2d 177 (1946).

Testimony that an accused adopted statements of

another person as his own admissions may be let in

under this exception [adoptive admissions] if it

clearly appears that the accused understood and un-

ambiguously assented to those statements.

There is, however, an additional factor (other than arrest)

involved in Mr. Hale's case —he was told by the police officer that he

had the right to remain silent and that anything which he said could be

used against him. Particularly in view of this warning, as an evi-

dentiary matter, silence at the police station after his arrest is not in-

consistent with Mr. Hale's offering of exculpatory testimony at his

trial. There is simply no inconsistent statement for use as impeaching

material.

In Fowle v. United States, 410 F.2d 48 (9 Cir. 1969), the de-

fendant, accused of a narcotics violation, took the stand in his own

defense and testified to certain exculpatory facts. The prosecutor on

cross-examination inquired into the defendant's silence at the time of

his arrest. The Ninth Circuit (like the D.C. Circuit in Hale) reversed

the conviction on two grounds—the evidentiary point and the constitutional

issue. In discussing the principle of evidence law, the court at page 50

stated:

A person's silence in most circumstances is so

highly ambiguous that it is generally inadmissible,

for its lack of probative value, on the question of

whether, by his silence, that person has expressed

agreement or disagreement with contemporaneous

statements of others. One situation in which

silence has been deemed more meaningful and

thought to be so significant as to have probative

weight is the case wherein it persists in the face

of accusation. It has been assumed that an accused,

in such circumstances would, more likely than not,

dispute untrue accusations. It was upon this im-

plicit assumption that the Raffel court held that the

prior silence of the accused was admissible. There

are, however, situations in which an accused is

clearly under no duty to speak and where there are

— —

-10-

important reasons, regardless of guilt or innocence,

for his maintaining silence. In such circumstances,

since innocent and guilty alike may choose to stand

mute, silence, even in the face of accusation, is

highly ambiguous; hence, proof of such former

silence should be excluded under universally

recognized principles of evidence [citations omitted].

Considering the prosecutor's use of Fowle's silence as purely a question

of evidence lew, the court found a solid basis for reversal. 410 F.2d

at 51.

Having been arrested and warned of his right to silence and that

anything he said could be used against him, it is impossible to say that

Mr. Hale would naturally have replied to questions put to him by police

officers, by offering exculpatory information which he later offered at

trial. As stated in Fagundes v. United States, 340 F.2d 673, 677

(1 Cir. 1965):

When one takes the stand in his own defense he

of course puts his credibility as a witness in issue.

Nevertheless we think it reversible error to permit

evidence of refusal to talk and of request for counsel

on arrest to be used for the purpose of impeachment.

In the first place such evidence is ambiguous.

Fagundes' words when arrested can as well be taken

as indicating reliance upon constitutional rights as

supporting an inference that his ability was an after-

thought. There is nothing to indicate which interpre -

tation is more probable. Cf. Grunewald v. United

States, 353 U.S. 391, 415-524, 77 S.Ct. 963, 1 L.Ed.

2d 931 (1957).

See also Johnson v. Patterson, 475 F. 2d 1006, 1068 (10 Cir. 1973);

Gillison v. United States, 399 F.2d 586 (D.C. Cir. 1968).

4. In Grunewald v. United States, 353 U.S. 391, 420 (1957),

relied on by the court below, this Court found improper the er oss

exeminetion of a defendant as to his silence before a grand jury be-

cause, in the circumstances of the case, the probative value on the

issue of credibility was so negligible as to be far outweighed by its

11

pessible impermissible and prejudicial impact on the jury. In that case,

the Court was reviewing the federal rules of evidence and was exercis-

ing its supervisory control over the federal courts. The decision in

the Hale case is not in conflict with Grunewald—indeed, it relies on

the Grunewald decision. However, in any event, the District of

Columbia Court of Appeals was sitting in Hale as a lecal court passing

on local rules of evidence. See Griffin v. United States, 336 U.S. 704

(1949).

The constitutional considerations descussed by the court in the

Hale case are unnecessary to its decision and do not have to be reached.

If this Court were to accept certiorari in this case, the issue of

whether the prosecutor's question was constitutionally permissible would

not be reached because of the proper disposition of the case by the

court below on local evidentiary principles. Indeed, the Court would

be faced again with much the same situation posed in the Griffin case.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

Georgetowr University Law Center

600 New Jersey Avenue, N. W.

Washingten, D. C. 20001

November 19, 1974