Amicus Brief — Weatherford v. Bursey

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

JaCK M. WEATHERFORD, ET AL., PETITIONERS

Vv. |

. Brerr ALLEN BURSEY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS. AMICUS CURIAE

_ Ricwarp L: THORNBURGH,

Assistant Attorney General,

Deputy Solicitor General,

FRANK H, EASTERBROOK,

Assistant to the Solicitor General,

Magc PHiuip RICHMAN,

MICHAEL W. FARRELL,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Questions presented

Interest of the United States

LSE EE LE “

Summary of argument...

Argument

Introduction _.... a ee eee a oS ee

I. The Sixth Amendment does not estab-

lish a per se rule forbidding an under-

cover agent to meet with a defendant’s

counsel

The constitutionality of petition-

ers’ conduct must be evaluated by

considering the extent to which

such conduct may undermine the

proper functioning of the adver-

Sary system _.

There is no reason to erect a pro-

phylactic rule that all overhear-

ings of meetings with counsel vio-

late the Sixth Amendment

Weatherford’s conduct in this case

did not jeopardize the defense or

inhibit respondent’s discussions

with his attorney ....

If Weatherford’s presence at the

meeting with counsel did not vio-

late the Sixth Amendment, then

neither did his testimony at re-

spondent’s trial -....-_..._..

it Ii!

Argument—Continued Page Cases—Continued Page

1. Weatherford’s testimony was Estelle v. Williams, No. 74-676, decided

not a “fruit” of his attendance May 3, 1976 . 41,51

at the meetings 46 Fisher v. United ‘States, ‘No. ‘74-18, “de-

; , cided April 21, 1976 —... . 12, 23

2. We atherfor d's testimony — re Gagnon v. Scarpelli, 411 U.S. 778 - 25

trial is not an appropriate Geders v. United States, No. 74-5968, de-

source of civil liability ___. 49 cided March 30, 1976 . 23

II. The constitution does not require the Gideon v. Wainwright, 372 U. Ss. 335. 22

prosecution to disclose before trial the Glasser v. United States, 315 U.S. 60_. 23

identities of undercover agents who Guerro v. Mulhearn, 498 F.2d 1249 __. 51

— eee See 52 Herring v. New York, 422 U.S. 853 __.. 23, 27

4 61 Hilliard v. Williams, 516 F.2d 1344, cer-

see tiorari denied, 423 U.S. 1066 50

Hoffa v. United States, 385 U.S. 293.16, 24, 25,

CITATIONS | 29, 36, 44, 46, 47

Cases: Imbler v. Pachtman, 424 U.S. 409 50

Anders v. California, 386 U.S. 738 __. 23 Jackman v. Rosenbaum Co., 260 U.S. 22. 56

Argersinger v. Hamlin, 407 U.S. 25. 22, 25 Johnson v. Avery, 393 U.S. 483. =——i«é

Bivens v. Sic Unknown, Named — Kirby v. Illinois, 406 U.S. 682 23

403 U.S. 388 - ~ Lewis v. United States, 385 U.S. 20619, 36, 40

Black v. United States, 385 U.S. 26... 15, 38, Lopez v. United States, 373 U.S. 427.36, 39, 40

39, 40 Martin v. Merola, 532 F.2d191..——=C«*S

Brady v. Maryland, 373 U.S. 83 10, 52, 53 Massiah v. United States, 377 U.S. 201. 23, 30

Brawer v. Horowitz, 535 F.2d 880... 50 Mastracchio v. Ricci, 498 F.2d 1257_. 52

Brooks v. Tennessee, 406 U.S. 605 23 Middendorf v. Henry, No. 75-175, decided

Caldwell v. United States, 205 F.2d 879. 29, 30 March 24, 1976 © we

Cardillo v. Zyla, 486 F.2d 473 —.. 52 Miranda vy. Arizona, 384 U.S. 486 26

Clark v. United States, 289 U.S. 1 __... 26 O’Brien v. United States, 386 U.S. 345. 15, 38,

Coleman v. Alabama, 399 U.S. 1 — 23 39, 40

Coplon v. United States, 191 F.2d 749. 29, 30 Preiser v. Rodriguez, 411 U.S. 475 51

Doe v. McMillan, 4:2 U.S. 306 50 Radzanower v. Touche Ross & Co., No.

Douglas v. California, 372 U.S. 353 23 75-268, decided June 7, 1976 =. 52

Ellis v. Dyson, 421 U.S. 426 0000... B22 Rizzo v. Goode, 423 U.S. 362 60

Ross v. Moffitt, 417 U.S. 600 23, 24, 25

Cases—Continued Page

Roviaro v. United States, 353 U.S. 53 11, 12,

20, 21, 27

Sachs v. Stecker, 60 F.2d 73 __ ae 50

Scoggin v. Schrunk, 522 F.2d 436 52

Sims v. Adams, 537 F.2d 829 __..... 61

State v. Tune, 13 N.J. 203, 98 A.2d 881. 55

Stovall v. Denno, 388 U.S. 293 23

— v. United States, 398 F.2d

558 | 31

Tennessee v. . Dunlap, No. 15-95, ‘decided

June 10,1976 — 52

United States v. Acosta, 526 F. 2d 670. 54

United States v. Agurs, No. 75-491, de-

cided June 24, 1976 _. 16, 17, 54, 57, 59

United States v. Ash, 413 U.S. 300 28, 24

United States v. Blackburn, 446 F.2d

1089 . 26

United States * v. , Bolden, 514 F. 2d 1301. 56

United States v. Brown, 484 F.2d 418,

certiorari denied, 415 U.S. 960 — . 35

United States v. Cannone, 528 F.2d 296 55, 56

United States v. Chemical Foundation,

Kne., 373 US. 1 --.--. 38

United States v. Conder, 423 F.2d 904,

certiorari denied sub nom. Pegram v.

United States, 400 U.S. 958 - 55

United States v. Crow Dog, 532 F. 2d 1182,

certiorari pending, No. 75-1843 . 34

United States v. Gartner, 518 F.2d 633 25, re

United States v. Harflinger, 436 F.2d

928, certiorari denied, 402 U.S. 973... 56

United States v. Jordan, 466 F.2d 99 56

United States v. Lusterino, 450 F.2d 572. 35

Cases—Continued Page

United States v. MacCollom, No. 74-1487,

decided June 10, 1976 - 25

United States v. Marion, 404 U. S, 307. 44

United States v. Massingale, 500 F.2d

1224 - 56

United States v Vv. _ McCord, 509 F. 2d 334,

certiorari denied, 421 U.S. 930 - 35

United States v. Miller, No. 74-1179, de

cided April 21, 1976 36

United States v. Miller, 529 F. 2d 1125 54

United States v. Murphy, 480 F.2d 256,

certiorari denied, 414 U.S. 912 _ rae 56

United States v. Nakaladski, 481 F.2d

289, certiorari denied sub nom. Coco v.

United States, 414 U.S. 1064 - 56

United States v. Nobles, 422 U.S. 225 31

United States v. Park, 421 U.S. 658. 61

United States v. Payseur, 501 F.2d 966. 56

United States v. Rispo, 46C 7.2d 965 35

United States v. Rosenberg, 146 F. Supp.

555, reversed, 245 F.2d 870 .-——s—sé<C—Sséi iS‘ DUG

United States v. Rosner, 485 F.2d 1213,

certiorari denied, 417 U.S. 950.25, 29-30

United States v. Russell, 411 U.S. 423 20

United States v. Scott, 521 F.2d 1188,

certiorari denied, No. 75-5799, March

8, 1976 _ _----. 04°85

United States v. Valencia, CA. 6, No. 75-

1342, decided September 2, 1976 __..... 35

United States v. Verse, 490 F.2d 280, cer-

tiorari denied, 416 U.S. 989 —s_|. 56

United States v. Wade, 388 U.S. 218 - 23

United States v. Werker, 535 F.2d 198_ - 58

Cases—Continued Page

United States v. White, 450 F.2d 264... 56

United States v. White, 401 U.S. 745 __ 15, 36,

37, 39

Wardius v. Oregon, 412 U.S. 470 _..... 17, 57

White v. Maryland, 373 U.S. 59 23

Wood v. Strickland, 420 U.S. 308 ___.. 11, 37

Constitution and statute:

United States Constitution:

First Amendment ___ NANG EOE 18

Fourth Amendment... ss 15

Fifth Amendment .... = 52

Sixth Amendment _... Spas

Fourteenth Amendment ....—-———S—S, 9, 5

18 U.S.C. (Supp. V), pp. 1318-1319. 55

££ * Yachts _2, 51, 60

Miscellaneous:

Cardozo, The Nature of the Judicial Proc-

OD WEED kctnccccieeasinmetienendn ms 24

Federal Rules of Criminal Procedure:

Rule 11(e) me | , 58

Rule 16 rea 16

Harper and James, The Law - Torts

(1956) _......... 50

Holmes, Privilege, Malice, and Intent, 8

Harv. L. Rev. 1 (1894) __. _. 37

McCormick, Evidence (2d ed. 1972). 31

VIII Wigmore, Evidence (McNaughton

rev. 1961) . 26, 31

Wright, Federal Practice and ‘Procedure:

i an 54

enema

Iu the Supreme Cout of the United States

OCTOBER TERM, 1976

No. 75-1510

JACK M. WEATHERFOR., ET AL., PETITIONERS

Vv.

BRETT ALLEN BURSEY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTIONS PRESENTED

The United States will discuss the following ques-

tions: ’

1. Whether the presence of an undercover agent

during a defendant’s conversation with his counsel,

without more, violates the defendant’s right to the

assistance of counsel.

*We briefly discuss at note 40, infra, the third question

presented by the petition.

(1)

2. Whether due process of law requires that the

existence of an undercover agent be disclosed to the

defense in advance of trial.

INTEREST OF THE UNITED STATES

This is an action for damages against an under-

cover agent and the chief of the state law enforce-

ment agency for which he worked. Although the

claims here are founded on the Fourteenth Amend-

ment and 42 U.S.C. 1983, which apply only to the

States and persons acting under color of state law,

damages actions against federal officers may, in some

circumstances, be based upon other provisions of the

Constitution. Bivens v. Six Unknown, Named Agents,

403 U.S. 388. The Court’s disposition of this case

therefore may affect the personal liability of officers

and employees of the United States.

Perhaps even more important, the decision in this

ease will elucidate the constitutional norms governing

the conduct of law enforcement investigative efforts

whenever undercover agents or confidential inform-

ants are employed, and the need to preserve their

“cover” comes into potential conflict with the confi-

dentiality of defense planning in a criminal case. The

federal government uses undercover agents, especially

in investigations of narcotics and terrorist activities,

and the Court’s decision will affect the conduct of such

operations.

Finally, federal prosecutors are not generally

aware of any due process obligation to make pretrial

disclosure of damaging evidence in their possession.

The court of appeals’ ruling on this aspect of the

case, if upheld, would radically transform the nature

of federal criminal prosecutions. This case thus is

likely to have a substantial impact upon the admin-

istration of the criminal justice system, giving the

United States a pressing interest in the resolution

of the questions presented.

STATEMENT

1. After a jury trial in the Richland County Court

of General Sessions of the State of South Carolina,

respondent was convicted of. causing the malicious

destruction of county property (A. 245, 250-251).

Respondent took part in the vandalism of the Richland

County Selective Service office in Columbia, South

Carolina, by spraying and splattering red paint on

the outside and inside of the building and throwing

a brick and note through a window. The next mor-

ning, respondent and petitioner Jack M. Weatherford

were arrested as participants in the vandalism. Two

other participants in the incident, as well as other aid-

ers and abettors, were not arrested (A. 241). Weath-

erford was in fact an agent of the South Carolina

State Law Enforcement Division, and he testified

against respondent at the latter’s trial. Respondent,

who took the stand and admitted his part in the events

(A. 250), was sentenced to 18 months’ imprisonment.

He did not appeal or seek collateral relief. After

fleeing the State and remaining a fugitive for more

than two years, respondent was captured and served

his sentence (A. 52, 250-251).

2. Three years after being convicted, respondent

began this suit for money damages against Weather-

ford and against petitioner Pete Strom, Chief of the

South Carolina State Law Enforcement Division, and

other, unknown state agents (A. 3-6). The complaint

alleged that Strom, Weatherford, and others delib-

erately infiltrated the defense camp for the purpose

of becoming privy to defense communications, that

Weatherford learned “contemplated defense strate-

gies, pertaining both to factual and. legal theories of

defense,” and that Weatherford reported to Strom

or others, “who in turn communicated information

pertaining to [respondent’s] defense strategies to

* * * the State’s prosecuting attorney” in the crim-

inal trial (A. 5).

Petitioners’ motion for summary judgment was

denied (A. 12-20), and a nonjury trial was held. The

facts do not appear to have been subject to serious

dispute. Following the draft board incident, Strom

and Solicitor John Foard, who was to be the prose-

cutor at respondent’s trial, decided that conditions on

the campus of the University of South Carolina were

explosive because of the reaction to the war in South-

east Asia, and that it would be advantageous for

Weatherford (the State’s only undercover agent on

campus) to maintain his guise and continue his work

(A. 105, 118). Weatherford’s usefulness depended

on concealing his status.’ As part of the plan of con-

cealment, Weatherford was indicted for the draft

board vandalism and provided with an attorney.

Weatherford told respondent, who had retained sep-

arate counsel, that they would be tried separately

(A. 84, 131, 155, 172-173, 248-249). Strom and oth-

ers expected that Weatherford would not testify (A.

106, 210-219), although it was understood that there

might be a change in that plan (A. 128, 176).° He

did not testify at respondent’s preliminary hearing.

Weatherford never sought to take part in meetings

between respondent and his counsel (A. 67, 96, 248).

Because it was necessary to maintain his cover, how-

ever, Weatherford cooperated in two meetings ini-

? There also was thought to be some danger to Weather-

ford’s life if his status were revealed, for he had partici-

pated in many other investigations involving potentially dan-

gerous people (A. 130, 132; but cf. A. 107).

* The district court concluded that, until the date of the

criminal trial, the prosecutor “intended to use as the primary

witness for identification of [respondent] and his participation

in the crime one William Burt Finney, III, * * * who * * * had

written out for [respondent] the note which was attached to

the brick found inside the Selective Service Office” (A. 249-

250). The prosecutor testified that he learned of the damage

to the draft board the morning after the incident, but that he

had not spoken to Weatherford about it, although he knew

Weatherford had participated (A. 128). By the time of trial,

however, Weatherford’s cover was believed lost through other

events (A. 250). Not until the jury had been sworn on the

morning of respondent’s trial did the prosecutor decide to use

Weatherford (A. 131). The prosecutor then did not know

that Weatherford had met with respondent’s attorney (A. 10,

131).

tiated by respondent (A. 97). Respondent arranged

these meetings so that his attorney, C. Rauch Wise,

who had expressed a desire to meet with all those

involved in the case, could meet with Weatherford

(A. 34-35).

The first meeting took place at respondent’s house;

Weatherford testified that when he accepted respond-

ent’s invitation, he did not know that respondent’s

attorney would be present, and that he considered

the meeting coincidental (A. 182-183).* As Wise de-

scribed the meeting (A. 81): “It was a case of my

asking him questions and he answering, also not only

about the case, but * * * about his personal back-

ground and so forth, along that line.” There was no

discussion of defense witnesses, because “we hadn’t

gotten into the case enough to decide precisely along

[w]hat lines we would proceed’ (ibid.). Wise testi-

fied that defense strategy was discussed only to the

extent that “we all agreed there was an informant,

and [Merrick, the third person present during the

draft board incident] was mentioned as being a good

probability, due to the fact that he hadn’t been ar-

rested and had fled the State and nobody had seen

him since the incident” (A. 80). The meeting, then,

apparently was devoted primarily to Wise’s interro-

gation of Weatherford as a potential witness (A.

252).

* Respondent testified that Weatherford knew in advance

that respondent’s attorney would be present (A. 65); the

district court did not resolve this conflict in the testimony.

Wise suggested that another meeting would be

helpful. He and respondent went to see Weatherford

at the house of a mutual friend. Weatherford, who

did not know in advance about the visit, arrived later

(A. 81-82). During this meeting Weatherford, Wise

and respondent again discussed the possible exist-

ence of an informant. Wise testified that Weather-

ford denied being an informant and vouched that he

would not testify for the prosecution (A. 82-83) ; the

district court concluded, however, that Weatherford

was never asked if he were an informant and did not

deny being one (A. 249). Wise expressed the view

that the defense would be bolstered if no eyewitnesses

testified (A. 82-83).

Wise testified that Weatherford may have learned

two items of “defense tactics” during the meetings:

that while the defense suspected the existence of an

informant, they did not know that Weatherford was

the informant; and that the defense believed its case

would be stronger if the prosecution did not present

eyewitness testimony (A. 97-98). Wise agreed on

cross-examination that the fact that Weatherford was

an undercover agent “had no effect [on the defense]

that would not have been present had he not been an

undercover agent” (A. 93).

Weatherford’s belief that he could not maintain

his cover if he were to avoid meetings proposed by

respondent was confirmed by respondent himself, who

testified (A. 69) that if Weatherford had declined

to meet with him, “it would be a chain of events that

ultimately he [Weatherford] would have been caught

up in.”

Just as he did not tell respondent or Wise that he

was an agent, so Weatherford did not disclose prior

to respondent’s trial any information exchanged dur-

ing the meetings with Wise—or even the fact that

they took place—to Strom, Solicitor Foard, or any

other state official (A. 10-11, 104-105, 109, 130-131,

155, 158, 166, 249). If it had been possible to do

so, Weatherford would have continued his under-

cover role and not testified at respondent’s trial.

Shortly before the trial, however, Weatherford was

seen and recognized in the company of state officers

(A. 250, 258 and n. 2), and state officials decided

that his further usefulness as an undercover agent

was jeopardized. Thus, on the morning of trial, So-

licitor Foard decided to call Weatherford as a witness.

Weatherford’s testimony at the criminal trial (A.

225-240) revealed the story of his undercover work

up to and including the vandalism of the draft board.

The testimony did not refer to his meetings with

respondent or his counsel. Respondent made no ob-

jection to the propriety of Weatherford testifying or

to the admissibility of any of his testimony.

The district court found that Weatherford did not

initiate the meetings in question, did not seek in-

formation from respondent or his counsel, and did

not pass any information about the meetings to any

officer of the State (A. 248-249). The court wrote

that the meetings represented an attempt by Wise

and respondent to obtain information from Weather-

ford (A. 252), rather than an attempt by Weather-

ford to intrude. The court also found that state

officials, until the very morning ef trial, had intended

to present their case without Weatherford’s testimony

rather than “run the risk of revealing him as an

undercover agent, due to other matters Weatherford

was investigating” (A. 250).

The court concluded that “{n]jothing was done by

Weatherford, * * * Strom, any [other] agents, the

prosecutor or Weatherford’s atterney to attempt to

obtain information about [respondent], his attorney

or his defense plan” (A. 252) ; it also concluded that

because information about defense plans had not been

relayed by Weatherford to other officials, Weather-

ford’s presence when defense matters were discussed

“did not in any way interfere with [{respondent’s|

right to assistance of counsel or right to a fair trial”

(A. 251). Finally, the court held that Strom was

not liable because, even assuming arguendo that

Weatherford had violated respondent’s constitwtienal

rights, “there is no testimony connecting defendant

Strom with any of such acts allegedly committed by

Weatherford” (A. 2656).

3. The court of appeals reversed (528 F.2d 483;

A. 256-264). It held, first, that Weatherford’s meet-

ings with respondent and Wise violated the Sixth

and Fourteenth Amendmersits (A. 260-261). It wrelte

(A. 260): “whenever the prosecution knowingly ar-

ranges or permits intrusion into the attormey-client

relationship the right to counsel is sufficiently en-

dangered to” constitute a violation of the Sixth

Amendment. The court apparently constructed a per

se rule against such meetings, concluding (A. 260):

“That the intrusion [into the attorney-client relation-

ship] was not for the purpose of obtaining informa-

tion but was to maintain Weatherford’s cover is, we

think, of no consequence.” Nor did the court think

it relevant that the meetings did not prejudice the

defense, writing (A. 261): “In the context of a civil

suit, our holding that [respondent’s] sixth amendment

right to counsel was violated sustains his suit ir-

respective of any showing of substantial prejudice

to his defense.”

The court also held that state officers had denied

respondent a fair trial by “‘coumtenancing” (A. 261)

Weatherford’s activities. Referring to Brady v.

Maryland, 373 U.S. 83, it concluded that the govern-

ment could not “conceal the identity of an informant

from a defendant during his trial preparation” (A.

261) or allow the informant to “deny up through the

day before his appearance at trial that he will testify

against the defendant, * * * then testify with de-

vastating effect” (A. 262). The court thought that

the prosecutor’s decision not to disclose Weather-

ford’s status as an agent until the beginning of trial

lulled respondent “into a false sense of security” (A.

262) and deprived him of “the opportunity (1) to

consider whether plea bargaining might be the best

course, (2) to do a background check on Weather-

ford for purposes of cross-examination, and (3) to

attempt to counter the devastating impact of eyewit-

ness identification” (ibid.).

Finally, the court held that Strom might also be

liable to pay damages because his “own decisions”

(A. 263) relating to the concealment of Weather-

ford’s identity “directly caused the violation of [re-

spondent’s] constitutional rights, and that is a sepa-

rate basis for liability” (ibid.). The court remanded

for further proceedings at which petitioners would

be allowed to present a “good faith” defense pursuant

to Wood v. Strickland, 420 U.S. 308 (A. 263-264).

SUMMARY OF ARGUMENT

Undercover agents and informants are a necessary,

if unpleasant, part of the enterprise of detecting and

punishing crimes. Their usefulness (and often their

safety) depends upon secrecy, however; once an

agent’s status is known, he must move on to other

things. The Court therefore has recognized that there

is a legitimate interest in preserving an agent’s

“cover” as long as possible, consistent with the rights

of defendants. Roviaro v. United States, 353 U.S.

53. The error of the court of appeals in this case

stems from its failure to appreciate this interest and

from its simultaneous failure to assess the facts of

this case in light of the policies served by the Sixth

Amendment’s guarantee of the assistance of counsel

in criminal cases.

The court of appeals has provided defendants with

a fail-safe method of detecting informants. Any de-

fendant could invite one suspected of being an in-

formant to a meeting with counsel. If the invited

individual refused to attend, his status as an in-

formant would be confirmed; if he attended, he would

be required to answer in damages, and the defendant

might well escape conviction for his crime. We sub-

mit that the Constitution does not require such a

result.

We have no doubt that the Sixth Amendment, which

protects many features of our adversary system of

criminal justice, establishes at least a qualified right

for a defendant to have confidential discussions with

his counsel. The ability to keep trial preparations

secret from the prosecution is an important attribute

of the adversary system. Confidence is necessary else

“the client would be reluctant to confide to his lawyer

and it would be difficult to obtain fully informed

legal advice.” Fisher v. United States, No. 74-18,

deeided April 21, 1976, slip op. 11.

But the right to counsel does not require confidence

or absolute secrecy of trial preparation under all cir-

cumstances. For example, even the attorney-client

privilege does not apply to conversations held in the

presence of unrelated third parties, nor does it shield

discussions of future crimes or discussions unrelated

to legal matters. Moreover, as Roviaro plainly illus-

trates, cases such as this require consideration of

legitimate and important countervailing societal in-

terests that may be imperiled by an absolutist ap-

proach. The rules governing these cases must be

formulated with reference to the policies that the Sixth

Amendment right to counsel, which is being invoked

to condemn petitioners’ actions, is designed to serve.

In our view, the primary purpose of that right is

the preservation of the fair and efficient functioning

of the adversary system of criminal justice, and the

governing rules in cases like this properly depend,

therefore, upon an assessment of the actual or po-

tential effect of the challenged actions upon the ad-

versary system.

Applying these principles, we believe it is not dif-

ficult to draw a rational line between improper in-

trusions into confidential defense planning and

strategy, on the one hand, and conduct that is per-

missible even though entailing some contact between

a government informant or agent and the defense, on

the other. Thus, a defendant’s constitutional rights

(either to the assistance of counsel or perhaps, more

logically, to due process of law) are infringed when

the government insinuates an undercover operative

into the defense camp for the purpose of securing in-

formation to aid the prosecution in the preparation

or conduct of a criminal trial or, similarly, when sur-

reptitious eavesdropping on communications between

a defendant and his lawyer is undertaken. Even

when there has been no deliberate campaign of intru-

sion, the utilization by the prosecutor in connection

with a criminal trial of confidential defense strategy

information that has come into his possession would

ordinarily raise serious questions.

But where there has been neither an attempt to

intrude nor an improper utilization of confidential

information, there is little threat to the fair func-

tioning of the adversary system, and thus little need

to enforce an absolute prohibition under the Sixth

Amendment. Passive “intrusions” justified by con-

siderations such as an informant’s need to protect

his cover should be tolerated so long as they produce

no unfair advantage to the prosecution at the trial

and do not jeopardize a defendant’s ability to present

any legitimate defense he may have. The distinction

we suggest will protect a defendant against the types

of government deceit and use of confidential informa-

tion that have the greatest potential to undermine

legitimate strategy or to inhibit a defendant’s com-

munication with counsel.

To be sure, it may be difficult in particular cases

for courts to distinguish between prohibited inten-

tional intrusions and permitted “passive” involve-

ment. Whatever difficulties may exist do not appear

sufficient, however, to call for the establishment of a

prophylactic rule that would outlaw all participation

by informants and agents in meetings between de-

fendants and their lawyers. Such a rule would bear

too high a price, because it would entirely sacrifice

one legitimate endeavor (the use of undercover agents

investigating ongoing activities) to another.

We submit that it is not unfair to require a defend-

ant to bear part of the risk that those in whom he

places trust may turn out to be agents or informants.

A defendant can alleviate almost all of this concern by

not inviting third parties to sensitive discussions.

True, there may be times when the defense perceives

a need to invite third parties to legal discussions, but

we submit that, at least in the absence of a govern-

mental purpose to intrude or to capitalize on infor-

mation learned during such discussions, if a defend-

ant “has no doubts, or allays them, or risks what

doubt he has, the risk is his.” United States v. White,

4v1 U.S. 745, 752. In this respect the case is similar

to Fourth Amendment cases in which the Court has

held that the Constitution does not protect a person

against the risk that his confidence in someone else

may be misplaced.

The court of appeals thought that Black v. United

States, 385 U.S. 26, and O’Brien v. United States,

386 U.S. 345, “read together, establish * * * a per se

rule” (A. 260) that any participation in discussions

with defense counsel is forbidden by the Sixth Amend-

ment. Both Black and O’Brien, however, concern

electronic surveillance, an intruding third ear of

which the defendant and his lawyer were wholly un-

aware; neither involves a misplaced confidence prob-

lem. Moreover, both Black and O’Brien dealt with

situations in which the trial had been completed he-

fore the illegal surveillance was discovered; here, by

contrast, respondent and his attorney knew that

Weatherford had attended two meetings with them,

and counsel’s cross-examination of Weatherford could

proceed accordingly. Black and O’Brien therefore do

not support the court of appeals.

The fact that Weatherford testified at respond-

ent’s criminal triai after participating in the meet-

ings does not affect our analysis. The violation of

the Sixth Amendment occurred, if at all, either when

Weatherford attended the meetings or when the

prosecution capitalized on information Weatherford

learned. We have argued that Weatherford’s attend-

ance in order to protect his cover did not violate the

Constitution, and the district court found that he

did not convey any information to the prosecutor or

capitalize upon it in his testimony. See Hoffa v.

United States, 385 U.S. 293, 307-309.

The State did not deny respondent a fair trial by

withholding notice of Weatherford’s status until he

testified at trial. Weatherford’s testimony and iden-

tity were not exculpatory evidence; indeed, it was

precisely because of their damning effect that the

court of appeals required advance notification. But

there is no requirement that the prosecution notify

the defense, in advance of trial, of its most potent

evidence. “[I]t has always been the Court’s view that

the notice component of due process refers to the

charge rather than the evidentiary support for the

charge.” United States v. Agurs, No. 75-491, decided

June 24, 1976, slip op. 14 n. 20.

Discovery in criminal cases is a recent develop-

ment. As late as 1944, when Fed. R. Crim. P. 16

was first promulgated, there was none in the federal

courts. The long acceptance of criminal practice

without pretrial discovery suggests that the Due

Process Clause does not compel the prosecution to

surrender to the defense its best evidence; only three

years ago the Court wrote that the “Due Process

Clause has little to say regarding the amount of dis-

covery which the parties must be afforded” (Wardius

v. Oregon, 412 U.S. 470, 474), and nothing has hap-

pened since then to call for a different rule.

The government’s constitutional duty to disclose

extends no further than the duty to disclose material

exculpatory evidence known to the prosecutor. See

generally United States v. Agurs, supra. Important

considerations, including preservation of the tradi-

tional adversary system, prevention of manufactured

* evidence, and forestalling threats to or subornation

of potential witnesses, weigh against a system of

pretrial disclosure of the prosecution’s case. The only

harm to petitioner here was caused by his surprise

at the turn of events when Weatherford was offered

as a witness. The usual remedy for genuine surprise

is a continuance. Respondent’s counsel did not re-

quest a continuance, however, and respondent cannot

now complain that his trial was fundamentally un-

fair.

ARGUMENT

INTRODUCTION

It is perhaps useful to observe at the outset that

this case does not present any question whether this

use by state law enforcement officers of an under-

cover agent to monitor activities on the campus was

a proper law enforcement activity under the circum-

stances or was an unjustifiable invasion of the First

Amendment rights of respondent and others. Evi-

dence introduced by petitioners indicated that the

State used Weatherford as an undercover agent to

help it prevent, detect, and punish crimes of violence

during a time of great turmoil on the Nation’s col-

lege campuses.° Respondent may well contend that

the true motive behind Weatherford’s undercover ac-

tivities was to impede or stifle the legitimate expres-

sion of controversial views. However, respondent’s

complaint (A. 3-6) did not allege that Weatherford’s

activities violaced his First Amendment rights or

that the undercover use of Weatherford was illegal,

except insofar as Weatherford participated in. the

two meetings with respondent’s counsel and testified

at trial, and insofar as both petitioners failed to dis-

close Weatherford’s true status in advance of trial.

Accordingly, there was no occasion for the district

court to consider the propriety of the State’s under-

cover investigations, and it properly made no find-

ings on the subject. Nor does the court of appeals’

opinion indicate that its decision depends in any way

upon conclusions regarding the legitimacy of the un-

dercover investigation in a particular case; rather,

the principles it announced would apply to all such

investigations.

° Weatherford detected and reported plans to make and use

Molotov cocktails, and he testified that respondent acquired

and kept weapons (A. 241, 227-229). Solicitor Foard testi-

fied that there was some concern that Weatherford’s life might

be in danger once his status as an agent became known (A,

130, 182).

ge ey,

Thus, we need not and do not, in presenting our

arguments in this case, express either approval or

disapproval of the State’s purposes and methods in

pursuing undercover investigations through the use

of petitioner Weatherford (a matter on which no ade-

quate record has heen developed). While under our

analysis the reasonableness of a decision that an

agent’s undercover status should be maintained may

be relevant to the legitimacy of his continued contacts

with a criminal defendant (see pages 20-22, 27-31,

infra), the issues before this Court concern general

standards of conduct in connection with the activities

of undercover agents engaged in investigations whose

legitimacy is not questioned. Thus, the way the Court

réSolves the questions here will likely determine

whether, and to what extent, law enforcement officers

can continue to make use of undercover agents after

the first arrest for a crime about which they may

have knowledge.

Undercover agents are a necessary, if unpleasant,

part of the enterprise of detecting and punishing

crimes. “Indeed, it has long been acknowledged by

the decisions of this Court, see Grimm v. United

States, 156 U.S. 604, 610 (1895), and Andrews v.

United States, 162 U.S. 420, 423 (1896), that, in

the detection of many types of crime, the Govern-

ment is entitled to use decoys and to conceal the

identities of its agents.” Lewis v. United States, 385

U.S. 206, 208-209, footnotes omitted. Without the

use of informants and undercover agents the govern-

ment would be unable to prosecute many crimes;

others, especially those such as narcotics offenses, in

which the victims cooperate in or facilitate the crime,

would not even be detected. See United States v.

Russell, 411 U.S. 423, 433.

The informant and the undercover agent therefore

are important parts of the arsenal of weapons

against crime. But their usefulness depends upon

secrecy; once an informant or agent has testified or

revealed his status, he must move on to other things.

If law enforcement officers regularly revealed the

identity of an informant or agent as soon as he had

acquired information about a single crime or offender,

the utility of such an informant or agent would be

severely diminished. This Court therefore has recog-

nized that there is a legitimate interest in maintain-

ing an informant’s or undercover agent’s “cover” as

long as possible, consistent with the rights of defend-

ants. Roviaro v. United States, 353 U.S. 53. Some-

times secrecy may be maintained indefinitely, even

through the criminal trial of one with whom the in-

formant or agent has been associated. Sometimes the

informant’s identity must be revealed at trial, as in

Roviaro. Here, as elsewhere when fundamental in-

terests are involved, there is no easy solution, and “no

fixed rule with respect to disclosure is justifiable. The

problem is one that calls for balancing the public in-

terest in protecting the flow of information [about

crime] against the individual’s right to prepare his

defense.” Roviaro, supra, 353 U.S. at 62.

In Roviaro the public interest “in protecting the

flow of information” about crime clashed with the

defendant’s ability to call witnesses at trial and to

present potentially relevant information to the jury.

In this case the public interest “in protecting the

flow of information” about crime may conflict with

the defendant’s right to have the assistance of

counsel for his defense. Here, perhaps even more

than in Roviaro, “no fixed rule” that the informant’s

identity must be disclosed is desirable. Yet the court

of appeals has fashioned just such a “fixed rule” by

holding that the Constitution requires informants

and undercover agents never to meet with defendants

or their counsel, even at the expense of revealing

their status, and that the Constitution requires the

undercover agent’s status as an agent to be disclosed

before trial.

Roviaro held that secrecy of an informant’s status

could often be maintained, recugnizing, moreover, that

secrecy (at least until the time of trial) is desirable.

The court of appeals appears to have assumed that

secrecy after the date of a suspect’s arrest is undesir-

able. The rule formulated by the court of appeals

gives defendants a fail-safe device to detect inform-

ants or undercover agents: any defendant could sim-

ply invite one suspected of being an informant or

agent to a meeting with counsel. If the invited in-

dividual refused to attend, his status as an agent

would be confirmed; if he attended, he would be re-

quired to answer in damages, and the defendant

might well escape conviction for his crime, Accord-

ing to the court of appeals, an undercover agent ap-

proached by a defendant or his counsel (or even sur-

prised by them at the house of an acquaintence) must

either disclose his status on the spot or quickly turn

and walk away before the attorney can ask him any

questions; to do anything else would risk exposure to

damages and jeopardize the State’s ability to prose-

cute for the crime. We submit that nothing in the

Constitution requires this unreasonable result.

The values that may come into conflict when an

informant or agent meets with a defendant’s attorney

are weighty, and the clash between them requires

sensitive tools for its resolution. The court of appeals

has used a blunt instrument where a scalpel was re-

quired. We believe that the resolution of the ques-

tions presented here calls for a more detailed analysis

of the interests at stake.

THE SIXTH AMENDMENT DOES NOT ESTABLISH

A PER SE RULE FORBIDDING AN UNDwRCOVER

AGENT TO MEET WITH A DEFENDANT'S COUNSEL

A. The Constitutionality of /etitioners’ Conduct Must

Be Evaluated by Consider .* the Extent to Which

Such Conduct May Underrm. © the Proper Function-

ing of the Adversary System

1. The Sixth Amendment’s guarantee of counsel

comprises a multitude of rights for a defendant in a

criminal case. The Amendment establishes the de-

fendant’s right to have counsel even if he is impov-

erished,’ the right to have counsel present during

° Gideon V. Wainwright, 372 U.S. 385; Argersinger v. Ham-

lin, 407 U.S. 26.

critical stages of the case,’ and the right to have

counsel perform the traditional functions of an ad-

vocate,® including meeting with his client,’ planning

the defense,” presenting evidence and arguments,”

and marshalling the case on appeal.” It establishes, in

short, a constitutional right to present a reasonably

effective defense.

We therefore have no doubt that the Sixth Amend-

ment establishes at least a qualified right to have

confidential discussions with counsel. While confiden-

tiality of attorney-client discussions usually is pro-

tected by the common law attorney-client privilege,

that objective also has some constitutional dimen-

sions; otherwise “the client would be reluctant to

confide in his lawyer and it would be difficult to ob-

tain fully informed legal advice.” Fisher v. United

States, No. 74-18, decided April 21, 1976, slip op. 11.

The Sixth Amendment also establishes a right for

the defendant and his attorney to protect their con-

* United States v. Wade, 388 U.S. 218; Stovall v. Denno,

388 U.S. 293; White v. Maryland, 373 U.S. 59; Massiah v.

United States, 377 U.S. 201; Coleman v. Alabama, 399 U.S. 1.

But cf. United States v. Ash, 413 U.S. 300; Kirby v. Illinois,

406 U.S. 682.

* See Glasser Vv. United States, 315 U.S. 60.

* See, e.g., Geders v. United States, No. 74-5968, decided

March 30, 1976.

” See Brooks v. Tennessee, 406 U.S. 605, 612-613.

™ See, e.g., Herring v. New York, 422 U.S. 853, 857-858.

12 Douglas v. California, 372 U.S. 353; Anders v. California,

386 U.S. 738; but cf. Ross v. Moffitt, 417 U.S. 600.

fidences from the prosecutor, their opponent in the

adversarial system. We conceded as much in our brief

in Hoffa v. United States, 385 U.S. 293," and the

Court assumed arguendo that it is so (385 U.S. at

307).

The court of appeals thought that this is the

end of this case. It is not. It is only the beginning.

It is necessary to define the dimensions of the right

and to consider its interplay with other important

societal interests. Although it may be tempting to

declare that there is an absolute “right to confidence,”

such a declaration would bear too high a price. Rights

may have a tendency to declare themselves absolute

to the limit of their logic (cf. Cardozo, The Nature

of the Judicial Process 51 (1921)), but they rarely

can be absolute in practice. This is true of the right

to the assistance of counsel, as it is of other rights.

For example, there is no right to counsel at every

stage of the criminal process; “ there is no right to

the best possible counsel; there is no right to counsel

18 We stated (Br. 71) that the Sixth Amendment is violated

“if the government places an informant in the defense camp

during a criminal trial and receives from that informant

privileged information pertaining to the defense of the crimi-

nal charges. That is true, we believe, because the Sixth Amend-

ment’s assistance-of-counsel guarantee can be meaningfully

implemented only if a criminal defendant knows that his com-

munications with his attorney are private and that his lawful

preparations for trial are secure against intrusions by the

government, his adversary in the criminal proceeding.”

14 United States v. Ash, supra; Ross v. Moffitt, supra. Cf.

Johnson Vv. Avery, 398 U.S. 483, 487-488.

when imprisonment is not involved; * and a defend-

ant does not have a right to a particular legal service

simply because he thinks it might be useful.** Most

pertinent here, there is no right to perfect confidence

in meetings with counsel, especially those to which

third parties are invited. The Court held in Hoffa

that the Sixth Amendment did not preclude an in-

formant from testifying after being present during

conversations between a defendant and his attorneys.”

The Court found that the intrusion had not been used

by the prosecution to learn or benefit from confiden-

tial communications and consequently that there had

been no wrong done to the defendant by the employ-

ment of tainted “fruit.” Similarly, courts regularly

have held that a defendant who attends strategy ses-

sions with other defendants, and later decides to co-

operate with the prosecution, can testify about the

crime itself despite a claim that he has overheard

confidential discussions.**

8 Argersinger V. Hamlin, supra; cf. Middendorf v. Henry,

No. 74-175, decided March 24, 1976; Gagnon v. Scarpelli, 411

U.S. 778.

1 Ross Vv. Moffitt, supra, 417 U.S. at 616; United States v.

MacCollom, No. 74-1487, decided June 10, 1976.

1" The testimony in Hoffa was given in a trial for a crime

(juror bribery) committed during Hoffa’s first trial. The

Court assumed arguendo that the informant could not have

testified during the first trial itself, but it held that even if

such a bar existed it would not survive in perpetuity.

18 See, e.g., United States v. Rosner, 485 F.2d 1213, 1220,

1223-1228 (C.A. 2), certiorari denied, 417 U.S. 950; United

States v. Gartner, 518 F.2d 633, 636 (C.A. 2) ; United States v.

Even the attorney-client privilege is not an absolute

shield. It does not forbid disclosure of communica-

tions involving the attorney and a third person, so

long as the latter is not the agent of either the client

or the attorney. 8 Wigmore, Evidence § 2311 (Mc-

Naughton rev. 1961); United States v. Blackburn,

446 F.2d 1089, 1091 (C.A. 5). It also does not es-

tablish a shield against disclosure of discussions of

future crimes, plans for concealment of past crimes,

or other discussions unrelated to a proper legal de-

fense. Clark v. United States, 289 U.S. 1, 15

(dictum) ; 8 Wigmore, supra, §§ 2298, 2299."

2. What transpires at a meeting attended by a

defendant and his counsel, then, is not forever and

inevitably covered by a cloak of secrecy. There are

no absolutes here. Rather, the proper rule for as-

sessing the propriety of participation by an under-

cover informant or agent in meetings at which a

defendant and his lawyer are involved in preparation

for a forthcoming criminal trial depends upon con-

sideration of the policies underlying the protections

afforded by the Sixth Amendment to the trial prepa-

ration process.

Rosenberg, 146 F. Supp. 555 (E.D. Pa.), reversed on other

grounds, 245 F.2d 870 (C.A. 3). These cases allow the witness

to testify about the details of the crime; they do not involve

use by the prosecutor of defense confidences.

1° Cf, Miranda v. Arizona, 384 U.S. 486, 477-478 (citizens

have a duty to report the commission of crimes, and informa-

tion relating to them is not privileged).

We submit that the Sixth Amendment generally,

and its guarantee of assistance of counsel in par-

ticular, is designed to ensure the operation of a fair

and effective adversary system of criminal justice.

As this Court has said: “[T]he right to the assist-

ance of counsel has been understood to mean that

there can be no restriction upon the function of coun-

sel in defending a criminal prosecution in accord

with the traditions of the adversary factfinding

process * * *.” Herring v. New York, 422 U.S. 853,

857; cf. Middendorf v. Henry, No. 75-175, decided

March 24, 1976, slip op. 14. Accordingly, in determin-

ing whether particular actions infringe the Sixth

Amendment right to the assistance of counsel, the

Court must ask—as the court of appeals failed to do

—whether the actions threaten to undermine the

proper functioning of the adversary system.” Only

when there is a potential for subversion of the ad-

versary system does the possibility of a Sixth Amend-

ment violation arise, and even then the gravity of

any danger should, as in Roviaro, be weighed against

such substantial countervailing interests as may le-

gitimately require consideration.

The present case does not, we submit, cross the

threshold of potential constitutional violation, for

2° This does not mean that the Sixth Amendment enshrines

every feature of the adversary system now commonly used.

The Amendment requires only that the system have certain

basic adversary characteristics, including freedom from pre-

trial meddling that unjustifiably undermines the effectiveness

of counsel.

there was no plan or purpose by state officials to

acquire defense strategy information and thereby fa-

cilitate the prosecution’s task in the trial of respond-

ent, nor was there any actual acquisition of informa-

tion about defense strategy that might have aided

the prosecution in its contest with the defense. What

happened in this case had, as we discuss fully below,

neither actual nor potential detrimental effect on the

functioning of the adversary system in respondent’s

criminal trial.

In saying the foregoing, we do not mean to deny

that effective representation of a criminal defendant

requires substantial freedom from intrusion by the

government, the defendant’s adversary in the crimi-

nal proceedings. The defendant must feel free to ex-

change ideas and information with his lawyer; and

the nature of the adversary system requires that

neither side be permitted to gain unfair advantage

over the other by secret acquisition of information

about the adversary’s trial preparation. Accordingly,

to the extent that an intrusion upon the confidence

of a meeting between a defendant and his attorney

unfairly yields knowledge for the prosecution, or in-

sofar as it unjustifiably inhibits communication be-

tween defendant and counsel or otherwise impedes

the defendant’s legitimate preparations for trial, it

should not be tolerated.

We can envision several sorts of intolerable intru-

sions. The first and most serious is an attempt by

the prosecution to insinuate an agent into the defense

camp for the purpose of learning information vital

to the defense, or the prosecution’s use of physical

searches or electronic surveillance to the same end.

The danger created by this type of intrusion is

patent; at the same time there is no countervailing

legitimate governmental interest in employing such

tactics. The two leading cases characterized by this

Court as involving “government intrusion of the

grossest kind upon the confidential relationship be-

tween the defendant and his counsel” (Hoffa, supra,

385 U.S. at 306), grew out of episodes of this sort.

Coplon v. United States, 191 F.2d 749 (C.A.D.C.),

condemned the surreptitions overhearing of privileged

legal discussions, followed by use of that information

to the detriment of the defense. Caldweil v. United

States, 205 F.2d 879 (C.A.D.C.), condemned the

practice of instructing an agent to inveigle his way

into strategy sessions and to report to the prosecu-

tion what was said.

In both of these cases, and in others of similar pat-

terns, the government’s conduct has been character-

ized by “offensive interference with the defendant’s

rights without any justification” other than the ac-

quisition and use of privileged or confidential infor-

mation. United States v. Gartner, 518 F.2d 633,

637 (C.A. 2). In these cases some sanction against

the governmental conduct is necessary. “The constitu-

tional barrier is raised when it is the Government

that unlawfully intrudes on legal strategy conferences,

as when it eavesdrops by electronic means * * * or

when it ‘plants’ a spy in the legal conference * * *.”

United States v. Rosner, 485 F.2d 1218, 1227 (C.A.

2). The violation of the Sixth Amendment is caused

by the “corrupting conduct” (ibid.) of the govern-

ment, conduct engaged in solely to gain unfair ad-

vantage over the defendant in the forthcoming crimi-

nal trial.”

Coplon, Caldwell, and similar cases involved a

frontal attack by the government on the proper func-

tioning of the adversary system. In those cases there

was deliberate, surreptitious acquisition of defense

secrets, which were communicated to the prosecution

to assist it at trial. There were, moreover, no coun-

tervailing interests justifying such behavior (indeed,

it would be difficult to imagine such interests in that

context). Such conduct can reasonably be found to

deprive the defendant of the effective assistance of

counsel (or, perhaps more reasonably, to violate due

process standards by undermining the fairness of the

trial).

There may also be danger in prosecutorial use of

defense secrets acquired in less devious ways. It is

arguable that any use by the prosecutor, in the course

of preparing for and conducting a criminal trial, of

*t Massiah v. United States, 377 U.S. 201, provides an inter-

esting counterpoint to the instant case. The government ar

ranged for an informant to meet with Massiah in the absence

of his counsel, and Massiah made incriminating statements.

The Court held that the use of such statements against Mas-

siah at trial (but not necessarily the meeting itself) violated

the Sixth Amendment because it represented an attempt to

capitalize upon the absence of counsel without legitimate jus-

tification. Moreover, the Court seemingly implied that a meet-

ing with counsel present would not have violated the Consti-

tution.

oo —- -___ =. —-

confidential information about defense strategy should

be condemned, no matter how the information was

learned.” There is no significant legitimate prose-

cutorial interest in capitalizing upon confidential in-

formation about defense tactics, so long as those

tactics are themselves legitimate. Use of such infor-

mation, however acquired, could create a significant

risk of interfering with the ability to mount an ef-

fective defense. There is a potential for mischief in

the “subtle benefits that might consciously or un-

consciously accrue to the government in knowing the

planned procedure, or even the state of mind of the

defendant and his counsel with respect to the trial,

quite apart from hearing affirmative evidence, or

leads to evidence.” Taglianetti v. United States, 398

F.2d 558, 570 (C.A. 1) (emphasis in original), af-

firmed on other grounds, 394 U.S. 316.

*# A similar rule applies to information covered by the

attorney-client privilege. 8 Wigmore, supra, §§ 2327-2329;

McCormick, Evidence § 93 (2d ed. 1972). There also is an

analogy to the work product doctrine, which shields from dis-

closure information created by the attorney or at the attorney’s

request and important to effective trial preparation or strat-

egy. The work product doctrine applies in criminal cases and

may be so important to the adversary system that it is pro-

tected by the Constitution. United States v. Nobles, 422 U.S.

225, 236-240. As Nobles itself indicates, however, trial prepa-

ration by the defense is not inevitably immune from disclosure,

but may be compelled when appropriate in accordance with the

traditional workings of the adversary trial system (i.e., to the

extent similar material could be required to be disclosed by

the prosecution).

B. There Is No Reason to Erect a Prophylactic Rule

That All Overhearings of Meetings With Counsel

Violate the Sixth Amendment

1, The dangers we have discussed so far all arise

only when there is either (1) governmental action

directed at procuring defense strategy information to

aid the prosecution at trial or (2) actual acquisition

by the prosecution of confidential defense strategy

information. Sixth Amendment concerns are acti-

vated in such circumstances because of the threat

posed to the fair functioning of the adversary system.

In this case, the findings of the district court estab-

lish that neither of these predicates to a Sixth Amend-

ment violation was present. It remains to ask whether

an absolute prohibition should be adopted for pro-

phylactic purposes even though there is evidence of

neither purpose to invade nor design to capitalize

upon defense secrets. We think not.

Without the use of governmental power to intrude,

and without the acquisition of confidential informa-

tion by the prosecutor, no unfair advantage can ac-

crue to the prosecution, and there ordinarily would

be no constitutional violation. A prophylactic rule

absolutely prohibiting any participation by a govern-

ment agent in meetings with defendant and counsel

can be justified, if at all, only on the ground that

otherwise defendants and their counsel might feel

inhibited by the fear that an intrusion would occur

and that the prosecution might learn and capitalize

upon their private exchanges. If such apprehension

were widespread, the adversary system and the ef-

fectiveness of counsel might be eroded to an unac-

ceptable degree. We submit, however, that the pos-

sibility of inhibiting attorney-client communications

does not support a per se rule that excludes any in-

quiry into the nature or extent of the problem in

particular cases.

Much of the potential for inhibition is, after all,

within the control of the defendant and his attorney.

If they are concerned that a third party may turn

out to be an agent or an informant, they have a

ready remedy: they can avoid inviting third parties

to defense meetings. Also, the attorney can meet

with third parties, such as Weatherford, alone. And

during any meetings, the defendant and his attorney

can ask questions but avoid revealing defense strat-

egy. These approaches are open whenever a co-

defendant has separate counsel and will be tried

separately, and so it could have been followed here

even though Weatherford was also charged with the

offense. Weatherford told respondent at the outset

that they would not be tried together, and Weather-

ford and respondent had separate counsel. Respond-

ent was not compelled to admit Weatherford to his

strategy sessions or to convey information to him.

We do not claim that the defendant’s option to ex-

clude third parties is in every case sufficient to guard

against inhibition. Discussions with co-defendants,

witnesses, or others are often valuable, and it may

be difficult to gather necessary information without

revealing some confidences. But important govern-

mental interests, too, are involved. We have discussed

(pages 19-22, supra) the importance of using inform-

ants and undercover agents and of keeping their

identities secret as long as possible. So long as this

practice continues, there is always a risk that an

agent or informant may be drawn, without knowl-

edge or even against his will, into discussions with

a defendant and his attorney. Unless the Court is

willing to hold that the agent so invited must prompt-

ly disclose his status, there must be some room for

such meetings consistent with the Sixth Amendment.

So long as the agent does not take the active role or

invite himself to defense meetings, and so long as the

agent does not disclose defense strategy information

to the prosecution or alter his testimony to capitalize

upon what he learned, the defense cannot suffer.”

We submit that defendants, aware of the prospect

of such relatively harmless overhearings on rare oc-

casions, would not be so afraid to communicate with

their lawyers that their defense would suffer.”

** The Federal Bureau of Investigation has taken steps to

ensure that federal agents and informants will not unjusti-

fiably overhear defense planning sessions. Agents and in-

formants are instructed not to attend such sessions, if they

can be avoided consistently with maintaining the secrecy of

their status. They also are instructed that if they are drawn

into meetings with counsel, they should not report to their

superiors or to a prosecutor what they have heard.

* Our submission is supported by the decisions of most

courts that have considered the problem. See United States v.

Gartner, supra, 518 F.2d at 637; United States v. Crow Dog,

532 F.2d 1182, 1197-1198 (C.A. 8), petition for a writ of certio-

rari pending, No. 75-1843; United States v. Scott, 521 F.2d

1188, 1192 (C.A. 9), certiorari denied, March 8, 1976 (No. 75-

An informant’s or undercover agent’s “passive” at-

tempts to protect his disguise may require him to

participate in meetings with a defendant, and a rule

permitting such participation would compel a defend-

ant to bear some of the risk that his confidence in

those whom he invites is misplaced. The Court con-

sistently has held, however, that “the Fourth Amend-

ment [does not protect] a wrongdoer’s misplaced

5799) ; United States v. McCord, 509 F.2d 334, 353 (C.A.D.C.),

certiorari denied, 421 U.S. 980; United States v. Brown, 484

F.2d 418, 424 (C.A. 5), certiorari denied, 415 U.S. 960;

Manuel v. Salisbury, 446 F.2d 458, 456-457 (C.A. 6). Cf.

United States v. Valencia, C.A. 6, No. 75-1342, decided Sep-

tember 2, 1976, slip op. 8 (although we agree with much of the

test articulated in this case, we do not agree that the court cor-

rectly applied it to exclude evidence as to the attorney, and per-

sons not his clients, who engaged in crimes planned by the

attorney).

The court of appeals here attempted to draw support from

United States v. Rispo, 460 F.2d 965 (C.A. 3). But Rispo de-

clined to “lay down a rigid standard of prejudice per se”

(id. at 977) and reversed a conviction only after finding

that “the factual tableau presented here is shocking” (ibid.).

In Rispo the government had permitted an informant to be

tried (and, indeed, to be convicted) together with his co-

defendants before revealing his identity to the court or jury.

The informant’s attorney had consulted actively with counsel

for the other defendants both before and during trial and had

discussed those strategy sessions with the informant (id. at

976 n. 22). The court emphasized that the “deception prac-

ticed here continued through the entire trial, with the result

that the Government foisted the deception upon the trial court”

(id. at 977). It concluded that this was “a preconceived and

intentional plan to disregard legal standards and precedents

in criminal prosecutions” (id. at 978). See also United States

v. Lusterino, 450 F.2d 572 (C.A. 2) (informant tried with

other defendants).

belief that a person to whom he voluntarily confides

his wrongdoing will not reveal it.” Hoffa, supra,

885 U.S. at 302. See also United States v. White,

401 U.S. 745, 751-752; Lewis v. United States,

supra; Lopez v. United States, 373 U.S. 427, 438.”

A similar principle should apply to Sixth Amendment

claims. The government should not be required to

shoulder the full responsibility for preserving a de-

fendant’s confidences.”

The defendant can protect his own confidences, as

we have pointed out, by not inviting third parties

to defense meetings at which sensitive or confidential

matters will be breached. A defendant who invites

others to join his council should not be able, by issu-

ing an invitation, to compel an agent to reveal his

identity. Indeed, so much seems clear from Lewis,

in which the Court wrote (385 U.S. at 211) that

“Ta] government agent, in the same manner as a

private person, may accept an invitation to do busi-

ness and may enter upon the premises for the very

purposes contemplated by the occupant.” There may

be risks in inviting third parties to legal discussions,

just as there are risks in inviting third parties to

2° Cf. United States v. Miller, No. 74-1179, decided April 21,

1976, slip op. 7-8.

*° This concern is particularly pressing where the third

party is a casual informant rather than a full-time agent. The

prosecution, and the government as a whole, has significantly

less control over the activities of “informants” than it does

over the activities of “agents,” and it would be unrealistic to

treat these cases as if all of the informant’s decisions are in-

evitably chargeable to the government.

commit crimes, but we submit that, at least in the

absence of a governmental purpose to intrude on

legal discussions or to capitalize from information

learned during an intrusion, if a defendant “has no

doubts, or allays them, or risks what doubt he has,

the risk is his.” White, swpra, 401 U.S. at 752 (plur-

ality opinion).

2. We recognize that at times it may be difficult

to determine whether any defense confidences have

been passed on to the prosecution by an agent in

Weatherford’s position or have been used in some

indirect way to ease the prosecution’s burden. A

prophylactic rule automatically condemning the pres-

ence of agents or informants at meetings with de-

fendants’ counsel without regard to the circumstances

would relieve the courts of occasionally difficult prob-

lems of decision that will be presented in particular

eases, but this is insufficient to justify an absolute

prohibition. Decisions turning upon motive, purpose,

and intent may be difficult, but they are often made:

a defendant’s criminal liability may turn upon his

intent, as may the size of his taxes and whether he

has commited a tort. Cf. Wood v. Strickland, supra.

The difficulty in the application of these factors has

not prevented their use where they provide the proper

dividing line between the prohibited and the per-

mitted. Cf. Holmes, Privilege, Malice, and Intent, 8

Harv. L. Rev. 1 (1894). The problems in applying

the standards we have advocated are surmountable.

Perhaps other cases will reveal difficulties we do not

now perceive in making the distinctions we believe

the Constitution requires, but there will be time

enough to adopt a prophylactic rule in the future if

case-by-case adjudication proves impractical or pro-

vides illusory protection for criminal defendants’

legitimate interests.”

3. Our analysis thus requires a case-by-case scru-

tiny of claims that official conduct has undermined

the defense by invading its confidences, and the ac-

tion of the government would be condemned only if

there were a governmental purpose to invade confi-

dences or prosecutorial capitalization upon knowledge

of defense strategy. The court of appeals eschewed

such an approach, adopting instead a per se rule that

informants never can meet with defendants and their

attorneys. It wrote that Black v. United States, 385

U.S. 26, and O’Brien v. United States, 386 U.S. 345,

“read together, establish * * * a per se rule” (A. 260)

that any participation in discussions with defense

counsel is forbidden by the Sixth Amendment. We

think that the court of appeals has read Black and

O’ Brien—which were decided the same Term as Hoffa

—for a much broader proposition than they will sup-

port.

In both O’Brien and Black the Solicitor General

advised the Court of the government’s discovery that

federal agents, using electronic devices, had moni-

27 In the absence of evidence to the contrary, the Court

should presume that, once it has clarified the obligations of

agents and informants, they will undertake their roles faith-

fully to the requirements of law. United States v. Chemical

Foundation, Inc., 272 U.S. 1, 14-15.

tored conversations between the defendants and their

attorneys during trial preparations. In Black the

contents of the recorded conversations had been in-

corporated in memoranda used by the prosecuting

attorneys; in O’Brien the Solicitor General repre-

sented that the monitored conversations had not been

communicated to the prosecutor. In both cases the

Court, without the benefit of briefs on the merits

or oral argument, reversed the judgments and re-

manded for a new trial. In Black the Court explained

that “[t]his will give the parties an opportunity to

present the relevant evidence and permit the trial

judge to decide the questions involved” and would

“permit the removal of any doubt as to Black’s re-

ceiving a fair trial * * *” (385 U.S. at 29).

We believe, with the dissenting Justices in Black

and O’Brien, that justice could have been fully served

by a remand to the district court for a hearing into

whether the defendants’ convictions had been tainted

by the overheard information. However that may

be, Black and O’Brien concern only surreptitious

electronic surveillance of defense strategy meetings.

Neither case suggests that the Sixth Amendment is

violated whenever a defendant, misplacing his confi-

dence in an informant, invites him to attend a meet-

ing with counsel. Indeed, White and Lopez make it

clear that there is a fundamental difference between

‘misplaced confidence” cases and surreptitious over-

hearings.

Black and O’Brien involved electronic surveillance;

each gave rise to the specter of the “surreptitious

[presence of a] third ear” (United States vy. White,

401 U.S. 745, 784 (Harlan, J., dissenting) ). In each,

“unknown and unwanted intruders * * * furtively

listened to [privileged] conversations.” Lewis v.

United States, supra, 385 U.S. at 212. In each, the

defendant and his attorney not only were unaware

of the intrusion at the time it took place, but also

remained ignorant of the intrusion until long after

the criminal trial had been completed. During the

Black and O’Brien trials the defendants and their

attorneys lacked the knowledge that would have per-

mitted them to listen to the trial testimony alert for

evidence that might have been derived from an intru-

sion into defense strategy sessions; they could not

probe on cross-examination the source of prosecution

testimony to find out whether it was derived in part

from defense discussions. It may well be that the

Court believed that a taint hearing several years

later would not be an adequate substitute for the

type of scrutiny that takes place before or during

the trial.

In the instant case, however, respondent and his’

attorney knew from the moment Weatherford took

the stand that he had participated in the two dis-

cussions with counsel; they sat through his testimony

with the knowledge of what had been said at the

meetings; they could have cross-examined him with an

eye towaru exposing any effect the defense discussions

might have had on his recollection of the events. Con-

sequently, respondent and his attorney had an oppor-

tunity to expose any fruits of the sessions. Their

failure to mention to the court that Weatherford had

participated in defense discussions, their failure to

raise the question on appeal, and their failure col-

laterally to attack the conviction demonstrate that

there was no taint. Accordingly, even if automatic

reversal is necessary in the Black and O’Brien situ-

ation, it does not follow that a constitutional viola-

tion took place here. Cf. Estelle v. Williams, No. 74-

676, decided May 3, 1976.

C. Weatherford’s Conduct in This Case Did Not Jeopar-

dize the Defense or Inhibit Respondent’s Discussions

With His Attorney

If the rule for which we have argued is correct,

then it follows that Weatherford’s attendance at the

two meetings between respondent and Wise did not

violate the Sixth Amendment. Weatherford did not

set out to invade any confidences; he did not pass any

information to the prosecutor; he did not undermine

respondent’s defense or inhibit respondent’s discus-

sions with his counsel.

Following the arrest of respondent and Weather-

ford the day after the incident at the draft board,

Strom decided to attempt to maintain Weatherford’s

cover in order to help maintain order at the univer-

sity (A. 105). Weatherford was the only undercover

agent on campus (A. 118). At the time, no one in-

tended to use Weatherford as a witness in respond-

ent’s criminal trial (A. 104, 107), although Strom

and Foard recognized that Weatherford might be

called (A. 128, 176). Respondent himself described

the events that suggest that this decision was not

unreasonable (A. 44-45) :

(T']hat May was a rather hectic period of activ-

ity for a lot of anti-war activists all over the

country. Cambodia had been invaded by Mr.

Nixon. There was a widespread response all

across the country. * * * [T]he University of

South Carolina [was shut down] by vote of the

student body * * * to indicate their displeasure

with * * * the war * * *, * * * [T]here was a

vote * * * to strike classes * * *. [D]uring that

time was * * * the killings at Kent State, when

four students were shot. The National Guard

was on the campus at the University of South

Carolina. * * * It was a very high level of emo-

tions at that time * * *. People who had a very

definite commitment to oppose the war [in South-

east Asia] were very angered and upset by what

was going on, and it was a time of high emo-

—

Weatherford had been an undercover agent for ap-

proximately a year and had established his “cover”

well enough to be able to monitor the “high emotions”

from the inside (A. 45). The intelligence Weather-

ford was able to supply made it more likely that the

state officials could take steps to avoid mass con-

frontations, which sometimes lead to violence.

Weatherford could not be replaced on short notice;

it had taken him a long time to establish his cover.

Respondent himself recognized that Weatherford’s

status would have been jeopardized if he had con-

tinued to avoid meeting with respondent and his at-

torney (A. 69).

We do not contend that it was imperative that the

State continue to employ Weatherford as an under-

cover agent; we have pointed out at pages 17-18,

supra, that the propriety of Weatherford’s activities

as an agent has not been challenged here except to the

extent of his meetings with Wise and his testimony

at trial. That being so, the Court must assume, as

the district court concluded (A. 250, 253), that the

State had a legitimate interest in maintaining Weath-

erford’s cover and was entitled to take reasonable

steps to do so.

Weatherford never sought to initiate the meetings

with respondent; in fact, he discouraged them by re-

taining his own attorney and telling respondent that

his case would be severed (A. 67, 96, 244). Weather-

ford testified that both meetings with respondent and

his attorney were unanticipated (A. 182-183). Wise

testified that he thought an informant was involved

(A. 78); it made little difference to the defense

whether Weatherford or someone else was the inform-

ant (A. 93).

Moreover, there is no indication that Weatherford

learned anything useful at the defense discussions.

One does not need to be privy to defense strategy

discussions to know that the defense case is stronger

if the prosecutor does not have any eyewitnesses tes-

tifying at trial; yet this (together with the informa-

tion that the defense did not know that Weatherford

was the informant) was the only thing revealed to

Weatherford during the discussions (A. 97-98). The

rest of the meetings consisted of Wise’s questioning

of Weatherford (A. 81). Even the trivial informa-

tion Weatherford learned was not relayed to Strom,

to the prosecutor, or to anyone else (A. 249).” It is

difficult to see what else Weatherford and Strom could

have done to protect respondent’s rights, other than

to disclose Weatherford’s role as an undercover

agent.” Yet they deemed that avenue to be foreclosed

** The court of appeals noted (addressing the issue of dam-

ages) that Weatherford, who was “fully acquainted with

[respondent’s] trial strategy, talked with Solicitor Foard, who

prosecuted the case, before trial * * *” (A. 261). That conver-

sation occurred only minutes before the trial and evidently

consisted of no more than Foard’s indicating to Weatherford

the possibility that he might have to call him as a witness

(A. 182-183, 192-198). There is no evidence that Weatherford

gave valuable information to Foard, and the district court

explicitly found (A. 249) that he did not. Nor, of course, is

there any evidence that Weatherford was “fully acquainted”

with respondent’s trial strategy.

* One alternative course might have been to postpone

arresting respondent for the vandalism of the draft board until

Weatherford’s usefulness as an undercover agent had been

exhausted. This course, too, would have had its dangers; if

Weatherford had continued to associate with respondent after

the crime and before respondent’s arrest, respondent might

have claimed that the delay had been arranged in order to pro-

duce an advantage for the prosecution (cf. Hoffa, supra, 385

U.S. at 309-310). Respondent also might have asserted that the

pre-accusation delay violated the Due Process Clause. Cf.

United States v. Marion, 404 U.S. 307, 324-325. Although we

believe that a legitimate desire to protect the “cover” of an

informant or agent is an adequate reason for delay, a defend-

ant might claim that evidence disappeared during the interim.

If expeditious trials are advantageous for defendants, it is

oe me ee ee ee

by what they perceived to be the dangerous situation

on the university campus, These facts do not bespeak

a violation of respondent’s right to the effective as-

sistance of counsel.

In sum, this case involves no exercise of govern-

mental power or guile to intrude into secret councils;

Weatherford was invited to attend even though the

defense suspected there was an informant and had

reason to believe he might be the informant (A. 253).

This case involves no design on the part of a govern-

ment agent to observe or hear the defendant’s strat-

egy; the defendant made the request, choosing the

times, places, and subjects of discussion. This case

involves no plan to relay information to the prose-

cutor; the agent kept what he learned to himself.

This case involves no disruption of the defense strat-

egy; the agent did not volunteer misleading informa-

tion.” The agent may have influenced the course of

the defense, but that influence depended on the decep-

tion inherent in the maintenance of his “cover,” not

upon his attendance at the meetings with counsel.

There was no risk of interference with respondent’s

ability to consult with counsel and to defend himself,

hard to say whether they would, as a rule, prefer to have their

trials postponed (because of pre-accusation delay) or to take

the slight chance that confidences will be heard during an ex-

change with counsel. The Constitution should not be read to

compel the State to choose delay rather than the course it fol-

lowed here.

*% See A. 253. Respondent contends that Weatherford did

volunteer misleading information, but the district court dis-

agreed.

ee eeeaeeeEeee SS

and therefore there was no violation of the Sixth

Amendment.

D. If Weatherford’s Presence at the Meeting With Coun-

sel Did Not Violate the Sixth Amendment, Then

Neither Did His Testimony at Respondent’s Trial

The court of appeals held that Weatherford’s pres-

ence at the meetings with respondent and Wise vio-

lated the Sixth Amendment independent of any later

events. It is possible to argue, however, that even if

Weatherford’s mere attendance at the meetings was

not improper, he should not thereafter have testified.

We submit, however, that his testimony is not open

to such a challenge.

1. Weatherford’s testimony was not a “fruit” of his

attendance at the meetings

If Weatherford had not met with respondent and

Wise, there would be no question about the propriety

of his testimony, which was wholly concerned with

events observed prior to those meetings. Any error

in allowing him to testify could come about only be-

cause allowing testimony after a prosecution witness

has met with defense counsel would somehow confer

an unfair advantage on the prosecution. Such an

advantage would be likely to occur, we think, only if

the agent were allowed to testify about what tran-

spired at the meetings or if it were shown that he had

capitalized upon what he learned there.

This argument is consistent with, if it is not re-

quired by, this Court’s decision in Hoffa. While

Hoffa was standing trial for one offense, an inform-

ant, Partin, regularly saw Hoffa and participated in

discussions with Hoffa’s associates. The Court as-

sumed that Partin was engaged in these endeavors at

the government’s behest, that he took part by invita-

tion in meetings between Hoffa and his attorneys,

and that he reported some of what he heard to fed-

eral agents. The Court concluded, however, that these

overhearings did not affect Partin’s testimony at

Hoffa’s later trial for obstruction of justice and that

there was no need to exclude Partin’s evidence from

that trial. Hoffa stands, at a minimum, for the propo-

sition that an informant’s presence during a defend-

ant’s discussions with his lawyer does not invariably

infect the informant’s later testimony. The Court

assumed in Hoffa that Partin’s overhearings of the

discussions with counsel were improper; it neverthe-

less held that Partin’s testimony was not a fruit of

his overhearings and that it therefore was admissible.

If the testimony was admissible in Hoffa even on

the assumption that the overhearings were improper,

it follows directly that Weatherford was entitled to

testify at trial, if, as we have argued, the overhear-

ings in this case did not violate the Sixth Amend-

ment.” Weatherford’s testimony was not in any sense

* The Court assumed arguendo that Partin could not have

testified at Hoffa’s first trial. That assumption was based upon

the further assumption that Partin’s conduct during the first

trial violated the Sixth Amendment. We have argued that no

violation took place during Weatherford’s meetings with Wise,

however, and, if we are right, there would be no reason to bar

Weatherford from testifying at any time.

a fruit of what he heard. It was eyewitness testimony

describing what he saw during the crime.” The dis-

trict court found that the prosecutor’s questions and

strategy were not influenced by what went on at the

meetings Weatherford had with respondent and Wise,

because the prosecutor did not know about these

meetings (A. 249-250, 252); the court of appeals did

not disagree. Wise had an opportunity to cross-

examine Weatherford at respondent’s criminal trial,

and nothing in this cross-examination suggests that

Weatherford’s eyewitness testimony was strengthened

by what he later heard (A. 234-240). Because

Weatherford’s testimony was not the fruit of any

constitutional violation, it was admissible.”

* Weatherford’s testimony consisted almost entirely of

his eyewitness observations of respondent's participation in

the assault on the Selective Service office (A. 225-240). More-

over, there is no indication in this record that respondent and

Weatherford had ever disagreed about the facts of the offense.

(There is thus no reason to believe that Weatherford’s talks

with respondent and Wise enabled him to anticipate defense

cross-examination on the facts.) Respondent took the stand in

his own defense and conceded his involvement in the acts

charged, disputing only the State’s characterization of his

intent as malicious within the meaning of the statute (A. 250).

“In cases in which it is alleged that an informant has

overheard defense strategy discussions it will, of course, ordi-

narily be necessary to hold a taint hearing. It may be difficult,

in many cases, to determine whether testimony at trial is a

fruit of what the informant learned, and courts might properly

resolve doubts in favor of defendants. We perceive no reason,

however, for a rule that entirely dispenses with such an in-

quiry, other than as a sanction for governmental misconduct

of a kind that was wholly lacking here.

2. Weatherford’s testimony at trial is not an appro-

priate source of civil liability

There is an important difference between the argu-

ment that Weatherford should not have met with

Wise and the argument that Weatherford should not

have testified: the former may show a violation of the

Sixth Amendment regardless of its effect upon events

at trial, but the latter is an assertion that the trial

itself was infected by error. The usual remedy for

trial error is an objection at trial and, if the objec-

tion fails, an appeal. If Weatherford’s testimony at

trial was a constitutional violation, a timely objec-

tion presumably would have prevented any error in

allowing him to take the star 1. We submit that there

is little justification for civil damages liability when

a defendant has bypassed the ordinary mechanism for

asserting a trial-type right of this sort. At a mini-

mum respondent should not be allowed to complain

about damages that are attributable to his failure

to mitigate his losses by objecting at trial. Several

arguments support this result.

a. Weatherford was called to the stand by Solicitor

Foard. Weatherford had no valid privilege to refuse

to testify and no reason to believe that, if his testi-

mony would be improper, respondent’s attorney would

fail to object. Strom, too, was not empowered to coun-

termand Foard’s decision. Although Strom evidently

did not attempt to dissuade Foard from calling Weath-

erford, Strom should not be required to anticipate that

respondent’s attorney would fail to interpose any

valid objection. It is particularly difficult to second-

guess Strom’s inaction in light of the fact that Strom

did not know that Weatherford had met with Wise

(A, 248, 251, 255). Solicitor Foard is absolutely im-

mune from damages on account of his actions as a

prosecutor (/mbler v. Pachtman, 424 U.S. 409). No

useful purpose could be served by requiring Weather-

ford or Strom to answer in damages for actions di-

rected by Foard, and for which Foard is immune. Cf.

Doe v. McMillan, 412 U.S, 306, 312-313.

b. Weatherford is absolutely immune from dam-

ages for truthful testimony given during a criminal

trial, whether or not he was under a compulsion to

testify. Sachs v. Stecker, 60 F.2d 73, 75 (C.A. 2);

Harper and James, The Law of Torts § 5.22 (1956).

Compare Brawer v. Horowitz, 535 F.2d 830, 836-837

(C.A. 3) (immunity extends even to perjury), with

Hilliard v. Williams, 516 F.2d 1344, 1349-1350 (C.A.

6), certiorari denied, 423 U.S. 1066, (witness may

be liable for false or misleading testimony).

e. If respondent has suffered loss at the hands of

the State because of a constitutional violation arising

from Weatherford’s act of testifying, it is only be-

cause he should not have been convicted on the basis

of such testimony. The Sixth Amendment’s guaran-

tees are safeguards ensuring that an accused has

assistance in his attempts to understand the case

and resist unjust conviction. We doubt that a remedy

of money damages should be available when the only

claim raised is that the State has adduced improper

evidence at trial, at least while the criminal convic-

tion, which necessarily rests upon the assumption that

the trial was fair, still stands.

First, to the extent that respondent is arguing that

Weatherford should not have testified, his appropriate

remedy was to object during his criminal trial, to

move to strike the testimony, or to move for a mis-

trial. He did none of these things; Nor did he appeal.

Under these circumstances an excellent argument

could be made that, if respondent had a right not to

have Weatherford testify, it was a “trial type” right

that was bypassed when not raised at trial. See

Estelle v. Williams, No. 74-676, decided May 3, 1976.

Second, it is far from certain that respondent can

use a damages action under 42 U.S.C. 1983 to make

what amounts to a collateral attack on the criminal

proceedings in which he was convicted.“ See Guerro

v. Mulhearn, 498 F.2d 1249 (C.A. 1); Martin v.

Merola, 532 F.2d 191 (C.A. 2). The propriety of

Weatherford’s testimony could have been put at issue

in respondent’s criminal trial. He failed to put it at

issue, and collateral estoppel therefore may preclude

his litigation of the question in this civil suit. More-

over, the State’s very right to try respondent on the

criminal charge was at least implicitly at issue in

the criminal trial. To the extent respondent now

argues that Weatherford’s activities (whether by

testifying or by simply attending the meetings) un-

% Cf. Preiser V. Rodriguez, 411 U.S. 475, which holds that

Section 1983 cannot be used to attack the very fact or dura-

tion of confinement. This principle does not apply here directly,

for respondent is no longer incarcerated.

dermined the prosecution itself, collateral estoppel

is a bar to this action for damages. See Mastracchio

v. Ricci, 498 F.2d 1257 (C.A. 1); Cardillo v. Zyla,

486 F.2d 473 (C.A. 1); Scoggin v. Schrunk, 522

F.2d 436 (C.A. 9). Cf. Ellis v. Dyson, 421 U.S. 426,

440-441 n, 6, 442-443 (Powell, J., dissenting).

d. We do not explore these arguments further,

however, for they were not raised below and have

not been presented in the petition for a writ of

certiorari. The Court therefore need not consider

them. Radzanower v. Touche Ross & Co., No. 75-

268, decided June 7, 1976, slip op. 3 n. 3; Tennessee

v. Dunlap, No. 75-95, decided June 10, 1976, slip

op. 5 n. 3. We mention them because it should be

clear that a decision in favor of respondent on the

questions presented here need not lead to judgment

in his favor on remand,

THE CONSTITUTION DOES NOT REQUIRE THE

PROSECUTION TO DISCLOSE BEFORE TRIAL THE

IDENTITIES OF UNDERCOVER AGENTS WHO WILL

TESTIFY

The court of appeals held that petitioners violated

the Due Process Clause of the Fifth and Fourteenth

Amendments by failing to disclose in advance of re-

spondent’s criminal trial that Weatherford was an

agent and would testify for the prosecution (A. 261-

262). The court relied for this proposition on Brady

v. Maryland, 373 U.S. 83, reasoning that by permit-

eo a

ting Weatherford to conceal his identity and “deny

up through the day before his appearance at trial

that he [would] testify against the defendant,” then

“testify with devastating effect,” the prosecution had

“lull[ed]” respondent “into a false sense of security

and thus den[ied] him the opportunity (1) to con-

sider whether plea bargaining might be the best

course, (2) to do a background check on Weatherford

for purposes of cross examination, and (3) to at-

tempt to counter the devastating impact of eyewit-

ness identification” (A. 262).

The court did not link this holding to its prior

conclusion that the prosecution had deprived respond-

ent of the effective assistance of counsel. Nor is

there any logical connection between the two issues;

the “lulling’” and the “false sense of security” were

attributable to the fact that respondent did not know

the strength of the prosecution’s case, and to the de-

ception necessary to maintain Weatherford’s cover,

rather than to any governmental knowledge about

respondent’s preparations for trial. The court of ap-

peals therefore necessarily has held that the govern-

ment must disclose before trial the names of its “dev-

astating” witnesses, if not all of its “devastating’

evidence, or it will jeopardize the conviction and ex-

pose its witnesses to personal liability.

No decision of this Court supports this revolution-

ary rule. Brady, upon which the court of appeals

relied, requires only the disclosure of certain evi-

dence favorable to the defense. The fact that Weather-

ford would testify for the prosecution was hardly

evidence favorable to the defense; it was “devastat-

ing” precisely because it was strong evidence of guilt.

Thus, the court of appeals has held that the prosecu-

tion must give the defendant pretrial notice of the

important evidence that will support the charge; but

“it has always been the Court’s view that the notice

component of due process refers to the charge rather

than the evidentiary support for the charge.” United

States v. Agurs, No. 75-491, decided June 24, 1976,

slip op. 14 n. 20. Even when the Constitution re-

quires the prosecution to disclose information, it does

not require the disclosure to occur before trial

(ibid. ) .*°

It has been a fixed rule of our jurisprudence that

neither the prosecution nor the defense need expose

its case or its evidence to the other in advance of

trial. “Discovery in criminal cases is a recent * * *

development.” Wright, Federal Practice and Pro-

cedure: Criminal § 251 (1969). In 1944, when the

Advisory Committee proposed Fed. R. Crim. P. 16,

it was able to write that it was “doubtful” whether

existing law allowed any discovery in criminal cases.

In 1953 Chief Justice Vanderbilt of the Supreme

Court of New Jersey, who had been Chairman of the

Advisory Committee, wrote a strong opinion arguing

against the desirability of discovery in criminal cases

35 See also United States v. Acosta, 526 F.2d 670 (C.A. 5),

and United States v. Miller, 529 F.2d 1125, 1128 (C.A. 9),

which discuss in some detail why the Constitution does not

require pretrial disclosure even of evidence favorable to the

defendant.

and questioning the wisdom of judicial innovations in

the field. State v. Tune, 138 N.J. 203, 98 A.2d 881.

The development of criminal discovery has been

almost entirely a legislative or rulemaking process,

and courts “ave played little or no role in it. No

statute or rule in South Carolina required the prose-

cutor to disclose in advance of trial Weatherford’s

status, or the fact that he would testify. Nor is there

such a rule in the federal courts. The Advisory Com-

mittee’s proposed amendment to Rule 16 in 1974, as

originally promulgated by this Court, would have

required the prosecution (and the defense) to dis-

close the names of witnesses in most cases (see 18

U.S.C. (Supp. V) pp. 1318-1319), but Congress de-

leted this proposed revision. The Conference Com-

mittee report (see id. at 1322) stated: “A ma-

jority of the Conferees believe it is not in the in-

terest of the effective administration of criminal jus-

tice to require that the government or the defend-

ant be forced to reveal the names and addresses of

its witnesses before trial. Discouragement of wit-

nesses and improper contact directed at influencing

their testimony, were deemed paramount concerns in

the formulation of this policy.”

3° Recently, some courts have suggested that the judiciary

has an “inherent power” to order discovery against the govern-

ment, despite the lack of a rule or statute. See, e.g., United

States v. Cannone, 528 F.2d 296 (C.A. 2) (dictum). Contra,

United States v. Conder, 423 F.2d 904 (C.A. 6), certiorari

denied sub nom. Pegram v. United States, 400 U.S. 958. We

think that Cannone cuts against a long history that cannot be

so easily overlooked.

There is no reason to interpret the Due Process

Clause to override this time-tested policy,” to discard

the process of legislative experimentation, and to erect

a presumption in favor of disclosure before trial. As

Mr. Justice Holmes put it, “[i]f a thing has been

practiced for 200 years by common consent, it will

need a strong case” for the Constitution to upset it

now. Jackman v. Rosenbaum Co., 260 U.S. 22, 31.

There is no “strong case” for the Constitution to

** Although there has been debate concerning the power

of the federal courts to order the prosecutor to disclose before

trial the names of its expected witnesses, there has heretofore

been no suggestion of any prosecutorial duty of disclosure in

the absence of a court order. United States v. Cannone, supra,

which indicated that district courts have such power, never-

theless reversed a disclosure order, concluding that the govern-

ment’s interests in avoiding disclosure usually outweigh the

defendant’s interests in obtaining disclosure (528 F.2d at 301-

302). In cases in which the district court has denied a pre-

trial request by the defense for disclosure (surely a more

compelling situation than that presented here, where there was

no request), the courts of appeals have consistently affirmed

convictions on the ground that the defendant has no general

right to such information except in capital cases, where it is

created by statute. See, e.g., United States v. Bolden, 514 F.2d

1301, 13812 (C.A.D.C.); United States v. Payseur, 501 F.2d

966, 972 (C.A. 9) ; United States v. Massingale, 500 F.2d 1224

(C.A. 4) ; United States v. Verse, 490 F.2d 280, 282 (C.A. 7),

certiorari denied, 416 U.S. 989; United States v. White, 450

F.2d 264, 268 n. 6 (C.A. 5); United States v. Harflinger, 436

F.2d 928, 936 (C.A. 8), certiorari denied, 402 U.S. 973. Cf.

United States v. Nakaladski, 481 F.2d 289, 297 n. 5 (C.A. 5),

certiorari denied sub nom. Coco v. United States, 414 U.S.

1064; United States v. Murphy, 480 F.2d 256, 259 (C.A. 1),

certiorari denied, 414 U.S. 912; United States v. Jordan, 466

F.2d 99, 101-102 (C.A. 4).

upset the practice of non-disclosure of the names of

prosecution witnesses.

The pros and cons of pretrial disclosure of the

identity of witnesses in criminal cases have been and

should remain a matter for determination by the leg-

islative authority. Three years ago the Court wrote

that “the Due Process Clause has little to say regard-

ing the amount of discovery which the parties must be

afforded” (Wardius v. Oregon, 412 U.S. 470, 474),

and that the Due Process Clause does not require a

State to adopt reciprocal pretrial discovery devices

(id. at 475). The court of appeals has not proffered

sufficient reasons to support a contrary view.

The government’s constitutional duty to disclose

under the Brady line of cases rests upon the proposi-

tion that a trial is fundamentally unfair if conducted

while the defendant is ignorant of material exculpa-

tory evidence known to the prosecutor, and the prose-

cutor has violated a duty to disclose that evidence.

See generally United States v. Agurs, supra. The

court of appeals did not suggest that Solicitor Foard

violated any duty to respond to a request by the de-

fense for exculpatory evidence; there was no defense

request of any kind, Weatherford’s testimony and

identity were not exculpatory, and, of course, they

were not withheld during trial.

The court of appeals’ reasoning leads directly to a

requirement that the prosecution open its files in ad-

vance of trial. Only with all of the prosecution’s evi-

dence in front of it could an accused “consider

whether plea bargaining might be the best course;” ™

only with the names of all the prosecution’s witnesses

in front of it could the defense “do a background

check” on each; only with all of the prosecution’s

evidence in front of it could the defense have more

time to “attempt to counter [its] devastating impact.”

This Court has long recognized, however, that impor-

tant considerations—including preservation of the

traditional adversary system, prevention of manu-

** The court of appeals’ argument with respect to plea bar-

gaining is also wide of the mark because an accused has no

constitutional complaint if the prosecution simply rebuffs all

requests to bargain. See generally the Advisory Committee’s

commentary on Fed. R. Crim. P. 11(e) and United States v.

Werker, 535 F.2d 198 (C.A. 2). Solicitor Foard could have

refused to bargain, and it therefore cannot be a violation of

the Constitution that the prosecution’s tactics simply made a

plea arrangement less likely.

*° There is some irony in the court of appeals’ argument that

the prosecutor’s decision to use Weatherford as a witness de-

nied respondent and his attorney the opportunity to investi-

gate Weatherford and his story. The first meeting between

Weatherford and Wise—a meeting that the court of appeals

found violated the Sixth Amendment—was devoted primarily

to Wise’s attempts to find out about Weatherford’s observa-

tions and background. See A. 81, 249, 252.

Moreover, Wise had an opportunity at the criminal trial to

cross-examine Weatherford about his background and declined

to do so. No evidence has subsequently been discovered that

could have been used to impeach Weatherford’s testimony.

After the criminal trial Wise learned, “simply [by] talking to

people” (A. 94), that Weatherford may have been arrested on

a narcotics charge (cf. A. 90). But at the civil trial Weather-

ford testified that he had not been arrested other than as part

of his undercover activities (A. 189), and respondent has not

produced any evidence to cast doubt upon this testimony.

At end

factured defenses, and forestalling threats to and

subornation of potential witnesses—militate against

a system of pretrial disclosure of the prosecution’s

ease. “[T]here is, of course, no duty to provide de-

fense counsel with unlimited discovery of everything

known by the prosecutor” (United States v. Agurs,

supra, slip op. 9).

The considerations invoked by the court of appeals

show no more than that surprise may have its effects.

It can be debated how “surprising” Weatherford’s

testimony was to the defense; the district court con-

cluded that the defense had ¢. se to suspect all along

that Weatherford was an informant (A. 253). The

defense was not unaware of Weatherford’s existence;

respondent knew that he was an eyewitness, Wise had

interviewed him, and the only uncertainty was

whether he would testify. But however that may be,

a claim of genuine surprise would merit at most a

continuance. Perhaps it would have been an abuse of

discretion for the state court to have denied a request

by respondent for a continuance of his criminal trial

in these circumstances, but his counsel never requested

a continuance, and there was no appeal. It is mystify-

ing how these events can give rise to a constitutional

claim for money damages.

We also submit that the court of appeals has se-

lected the wrong remedy, even assuming that it cor-

rectly held that Weatherford’s status as an agent and

potential witness should have been disclosed in ad-

vance of trial. There has been no showing of improper

motive; it appears to be unquestioned that the prose-

cutor did not decide until the morning the trial began

that he would use Weatherford as a witness (A. 249-

250). The arguments we have made at pages 49-52,

supra, apply with special force to the decision to call

Weatherford as a witness. The decision was made by

Solicitor Foard, not by Weatherford or Strom, and

no purpose could be served by requiring Weatherford

or Strom to respond in damages for the acts of Foard.

The right at stake—the right to a fair trial—is one

that ordinarily must be vindicated through the trial

and appellate process. A defendant should not be al-

lowed to make no objection, bypass his appeal, and

then complain years later that decisions of the prose-

cutor and other governmental personnel so infected

the trial with unfairness that a monetary remedy is

appropriate. If the Court rejects our submission that

there was no unfairness here, we submit that it should

remand the case to the court of appeals for further

consideration of these arguments.“

*° The third question presented by petitioners (Pet. 2) con-

cerns the liability of Chief Strom, Weatherford’s superior

officer. The court of appeals’ decision on this question appears

to involve primarily the facts of this case rather than any

disputed legal principle, and we therefore do not address the

matter at length. If our argument that none of Weatherford’s

acts violated the Constitution is correct, then the court of

appeals’ judgment must be reversed as to Strom as well.

Even if Weatherford’s acts (or those of Solicitor Foard)

violated the rights of respondent, however, there is no reason

to impute these acts to Strom. Cf. Rizzo v. Goode, 423 U.S.

362, 371, 376-377. If respondeat superior applied in actions

under 42 U.S.C. 1983 (a question on which we express no

opinion), it would not lead to liability for Strom. The doc-

trine requires the employer of an employee to answer for

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

ROBERT H. BORK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

ANDREW L. FREY,

Deputy Solicitor General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

MARC PHILIP RICHMAN,

MICHAEL W. FARRELL,

OCTOBER 1976. Attorneys.

the employee’s acts. However, Strom was not Weatherford’s

employer, but simply his supervisor.

The court of appeals appeared to conclude that Strom’s

liability rested upon his failure to prevent Weatherford’s

acts (A. 262-263). Although we agree with the court of

appeals that this may in special cases be an adequate basis of

personal responsibility (cf. United States v. Park, 421 U.S.

658, 670-673), we believe that this principle does not support

Strom’s liability in this case. Strom did no more than allow

Weatherford to continue acting undercover. He did not know

that Weatheford had participated in meetings with respondent

and Wise, and he was not responsible for Solicitor Foard’s

decision to call Weatherford as a witness (A. 106, 131, 247-

251). Even the court of appeals concluded that there was “no

evidence of Strom’s direct personal supervision of” Weather-

ford’s undercover activities (A. 258). The most that can

be said is that Strom did not attempt to prevent Foard and

Weatherford from acting as they did; unless the Constitution

creates a duty to act in these circumstances, Strom cannot

be liable for his inaction. Cf. Sims v. Adams, 537 F.2d 829

(C.A. 5).

W ov. 6. covennwant paintine orrice; 1976 220806 309

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.