Petition — Sapia v. New York

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

JOSEPHL SAPLA,

Petitioner,

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

- - - os ——— =

“ ———— SS —— ~—

Petition for Certiorari to the Court of Appeals, State of

New York.

— — Ee — — -=—-- — ee

Inving ANOLIK

Attorney for Petitioner

225 Broadway

New York, N. Y. 10007

TABLE OF CONTENTS.

Statement : . . . . : : 1

Opinion Below ° . “ . : . 2

Jurisdiction . . . . . . 2

Questions Presented . : . ‘ ‘

Constitutional and Statutory

Provisions Involved : : : 4

The Background of the Case. . . 4

Argument . . ° . ° ° . 9

Point I. The prosecution's case

relied heavily upon the hearsay

utterances and aes recordings

of conversations involving an

undercover informer, Earl

Fodderell, whom the prosecutor

incredibly failed to call as

his witness. The appellant

was severely prejudiced by the

trial judge's ruling that Sapia

could not compel Fodderell to

testify for the defense in the

face of Fodderell's assertion

of the Fifth Amendment privi-

lege against self-incrimina-

tion, rejecting appellant's

contention that as a cooperat-

ing informer-agent, Fodderell

had no basis for ete that

privilege. . , . . 9

ii.

Page

The trial court below, rea-

lizing that the people had

utilized Fodderell to its

great advantage through

the lips of police offi-

cers and tape recordings

without risking his im-

peachment by preventing

the defendant from con-

fronting him in cross

examination, implored the

District Attorney to

agree to grant Fodderell

immunity in this case,

which supplication the

prosecutor scorned ° ° 9

The petitioner maintains

that by using Fodderell

in an undercover sopeeewy

there was no possibility

of his incrimination since

he was in the locus standi

of a police officer who

aided an arrest. The

petitioner was therefore

denied a Sixth Amendment

right of cross examina-

tion (confrontation) as

well as the right to com-

pel witnesses in his

behalf . . . >. . 10

Fodderell wanted to testify

and told the court, out of

the presence of the jury,

that he had exculpatory

information and that Sapia

iii.

was innocent, but insisted

that he first be assured

that the testimony he

wanted to give would not

be used ee him by

the District Attorney.

This the court would not

do . . . . 7

Point II. The trial court pre-

cluded the defense from inter-

posing an entrapment defense

by ruling that a tape record-

ing and registered letter pre-

pared ante litam motum could

not be introduced: nor could

the defense counsel (Mr.

Bobick) testify. Finally,

the court rules that the

informer Fodderell could not

be made to testify despite

his revelation that Sapia

was innocent . ; , ,

Point III. Although there was no

conspiracy charged nor any

allegation of acting in con-

cernt, the court in essence

judicially amended the indict-

ment to the surprise and

prejudice of Sapia, bY ruling

that Sapia was _ of an

uncharged conspiracy with

Gardner. This was an error

of constitutional dimension

(Fifth and Fourteenth Amend-

ments) . ; . . . ;

Page

iv.

Page

Point IV. Other Errors: (A) The

(B)

people, via oo Rollo inter-

rogated petitioner after arrest

and indictment in the absence

of retained counsel and refused

to disclose the contents of the

tape. This was a violation of

Massiah v. United States and

Spano v. New York. It also

had a chilling effect on Sapia's

taking the stand as the remarks

might be used in cross examina-~-

tion (Harris v. New York) . ; 57

The trial court charged incor-

rectly by refusing to charge

that in order to use circum-

stantial evidence, the jury

must eliminate to a moral

eoatenesy every reasonable

hypothesis, but that of guilt. 57

Conclusion . . : . . . . 58

Appendix:

Order of Appellate Division . ; , 59

Opinion of the Appellate Division , 61

Dissenting Opinion of Murphy, J. . 69

Order of the Court of Appeals :

Opinion of the Court of Appeals .

Vv.

CASES CITED.

Page

Alderman v. United States, 394 U. S.

165 (1969) . : " . , 17, 20

Alford v. United States, 282 U. S.

267 : . . ° , . : 20

Brady v. Maryland, 373 U. Ss.

83. . . . . ; 20, 34, 36

Bruton v. United States, 391 U. S.

123 . . . , . ‘ . . 22

Chambers v. Mississippi . . . ; 44

Cole v. Arkansas, 333 U. S. 196,

202 >. . . > >. . 56

Dennis v. United States, 384 U. S.

855 (1966) . . . . : 17, 19

Douglas v. Alabama, 380 U. S. 415

(1965) . . . . . . . 17

Ex Parte Bain, 121 U. S. 1, 12 . . 56

Glasser v. United States, 315 U. Ss.

60, 75, 76 (1942) . ; : : 51

Harris v. New York, 401 U. S.

222 . . . . . . 3, 8, 57

Hinds v. John Hancock Mutual Life

Ins. Co., 155 A. 24 721, 723

(Maine, 1959) . . . ‘ : 41

In re Oliver, 333 U. S. 286 (1948) . 17

Jencks v.

Keys v. State,

Mar.

vi.

United States, 353 U. S&S.

at 670, 672 . .

14, 1975, 337 A.

(17 Cr. L. 2043) .

Krulewitch v. United States,

U. Ss.

Massiah v. United States, 377 U. S.

201

Moore v. Illinois, 408 U. S. 786 at

457. . .

809-810 : : .

Delaware

24 18

11, 12,

336

O'Chiato v. People, 214 Pac. 404,

405 (Sup. Ct. Colo., 1923) .

O'Connell v. United Ctates, 40 F.

24 201, 205 (C. A. 2, 1930)

People v.

429

People v.

145,

People v.

Pointer v.

Cleague, 22 N. Y.

Harris, 136 N. Y.

Kennedy, 32 N. Y.

146 . . .

Taddio, 292 N. Y.

Texas, 380 U. S.

(1965) . . . :

2a 363

423,

141,

4e68 .

400

Poller v. Columbia Broadcasting

System,

(1962) . . : .

368 U. S. 464, 473

Page

. 19

14, 32

. 51

: 57

32, 35

. 41

. 42

. 58

. 17

vii.

Powell v. Alabama, 287 U. S. 45,

57-58 (1932) .

Sartor v. Arkansas Natural Gas

Corp., 321 U. S. 620 (1944)

Smith v. Illinois, 390 U.

131, 132 . .

Snyder v. Massachusetts, 291 U. S.

97, 105 . .

129,

Spano v. New York, 360 U. S. 315

Stirone v. United States,

212 : . .

361 U.

Twining v. New Jersey, 211 U. S.

78, 91 (1908) .

United States v. Allied Stevedoring

Corp., 241 F. 2d 925, 933 (2d

Cir. 1957), cert. denied 353

U. Ss. 984, 77 s. ct. 1282,

L. Ed. 24 1143 (1957)

United States v. Andolschek,

1944) . . .

United States v.

2144 (decided 10/16/75)

United States v. Arcuri, C. A. 2d,

142

lada, 18 Cr. L.

403 F. 24 491, cert. denied

394 U. S. 1003.

19,

viii.

United States v. Austin-Bagley

Corp., 31 F. 2d 229 . . .

Unitea States v. Baum, 482 F. 2d

1325 (2d Cir. 1973) ° . .

United States v. Benjamin, 120 F. 24

521 (C. A. 2, 1941) . ; °

United States v. Coplon, 185 F. 2d

629, 639, 2a Cir. 1950 . . .

United States v. Esteppa and

Catino, C. A. 24 403 F. 24

491, cert. denied 394 U. S.

1003 . >. > > . . >

United States v. Falcone, 109 F. 24

579 (2d Cir., 1940), aff'd 311

U. Ss. 205 (1940) . . . .

United States v. Gomez-Rojas, F.

2d 16, Cr. L. 2451, decided

Pebruary 10, 1975. . . °

United States v. Housing Foundation

of America, 176 F. 2d 665

(C. A. 3, 1949) . . . .

United States v. Hysohian, 448 F. 24

343 . . . . . . 49,

United States v. Miller, 80 F. Supp.

979, 981 (E. D. Pa., 1948) . :

United States v. Peoni, 100 F. 24

401, 403 (2d Cir. 1938) . °

ix.

United States v. Robel, 389 U. S.

258 (1967) . . . .

United States v. St. Pierre, 132 F.

2d 837, 840 (C. A. 2, 1942) .

United States v. Suba, 227 F.

Supp. 445 . . . . . 7

Walder v. United States, 347 U. 8S.

62 J . >. . >. >. . >.

Washington v. Texas, 388 U. S. 14

(1967) . . . . . . .

Williams v. North Carolina, 317

U. S. 287, 292 . . . : "

Willis v. Hunter, 166 F. 2d 721,

723 (10th Cir.), cert. denied

334 U. S. 848 (1948) . .

STATUTES CITED.

28 U. S. C. §1257(3) ; ; ,

5 Wigmore Evidence §1367 (3d Ed.

1940) . . . . . . .

6 Wigmore Evidence $1834 (34 Ed.

1940) . ° ° ° . . °

8 Wigmore on Evidence (3d Ed.),

Page

§2268, page 402 . . : 40, 42

OTHER AUTHORITIES.

Donnelly, Judicial Control of

Informants, Spies, Stool-

pigeons, and Agents Prova-~-

cateurs, 60 Yale L. J. 1091,

llli (1951) . . . .

Goldstein, "The State and the

Accused: Balance of Advantage

in Criminal Procedure," 69

Yale L. J. 1149, 1175 (1960)

Mayers, “Shall We Amend the Fifth

Amendment” (1959) at 187 :

Page

. 45

38, 39

In the

SUPREME COURT OF THE UNITED STATES

October Term 1976.

JOSEPH SAPIA,

Petitioner,

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR CERTIORARI TO THE COURT OF

APPEALS, STATE OF NEW YORK.

STATEMENT .

Petitioner Joseph Sapia respectfully

prays that this Court will grant a writ

of certiorari to the Court of Appeals of

the State of New York, to review its de-

termination rendered the 28th day of

December, 1976, which affirmed the order

of the Appellate Division of the Supreme

Court, First Department, which in turn

affirmed the judgment of the Supreme Court,

New York County, rendered the l4th day of

November, 1974, convicting petitioner of

the criminaly sale of a dangerous drug in

the first and third degrees, after trial

before Sandler, J., and a jury.

Sapia is presently incarcerated pur-

suant to a mandatory prison term of 15

years to life.

In the Appellate Division, First

Department, Justice (now Presiding Jus-

tice) Francis T. Murphy, Jr., dissented

with an opinion.

OPINION BELOW.

The opinions of the Court of Appeals

and the Appellate Division, First Depart-

ment, are reprinted in the appendix hereto.

JURISDICTION.

The jurisdiction of this Court is pre-

dicated upon 28 U. S. C. §1257(3). The

Court of Appeals of New York affirmed the

order of the Appellate Division, First De-

partment, on the 28th day of December,

1976.*

QUESTIONS PRESENTED.

l. Whether petitioner was denied a

Sixth Amendment right to confrontation

* Petitioner is incarcerated and informed counsel

just recently that he wished a petition filed. He

had to borrow funds to do so.

and a Fifth Amendment right to a fair

trial by virtue of his inability to call

a prosecution informant, Earl Fodderell,

as a witness, despite the fact that the

indictment was predicated in part upon

his testimony, and tapes containing his

conversations were played to the jury?

2. Whether the prosecution violated

the Fifth Amendment right to a fair trial

by indirectly using the informant, Earl

Fodderell, as a witness, through the play-

ing of tape recordings, but denying a

right of cross examination by failing to

call Fodderell as a witness, and by re-

fusing the Trial Court's request that it

grant Fodderell immunity so that petitioner

could compel him to testify?

3. Whether the use of a statement

taken by the police from petitioner, after

his indictment, while he was in jail, in

the absence of his attorney, violated

Sapia's rights under the Fifth and Sixth

Amendments of the United States Constitu-

tion?

4. Whether the Trial Court erred in

declining to permit petitioner's counsel

or petitioner to learn what statement he

had made to the police after his arrest

and while he was in custody? This ruling

had a chilling effect on petitioner's

determination whether to take the stand

(Harrie v. New York, 401 U. S. 222).

5. Whether petitioner was given a

fair trial?

6. Whether petitioner was deprived

of a Sixth Amendment right to call wit-

nesses and of a Fifth Amendment right to

a fair trial, when the Court precluded

him from adducing evidence from his attor-

ney and from other witnesses who were

available, that he was entrapped?

7. Whether petitioner was deprived

of due process of law by the Trial Court's

presentation of a conspiracy to the jury

when none was charyed in the indictment?

8. Whether petitioner's Fifth Amend-

ment right to a fair trial was violated

by the prosecution's failure to apprise

him of the fact that a hearing had been

held wherein witnesses testified concern-

ing Sapia, but the identities of which

were withheld from Sapia.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED.

The Fifth and Sixth Amendments of

the United States Constitution are in-

volved herein.

THE BACKGROUND OF THE CASE.

Petitioner had been indicted on June

27th and July 6th, 1973, for drug viola-

tions predicated upon information sup-

plied as a result of the efforts of a

confidential informant by the name of

Earl Fodderell.

The indictments were consolidated

for trial and both failed to allege any

conspiracy.

We submit that it is fair to say

that without the assistance of Fodderell,

it is not likely that an indictment could

have been returned against the petitioner

herein. Although the record is somewhat

prolix, we s t that the legal issues

to which we shall advert, infra, mandate

reversal irrespective of the factual con-

siderations. We do not concede that the

facts adduced warranted conviction for

criminal "sale" of a dangerous drug.

1 - But the transcendant issue which

stalks through the pages of the record

is the use by the People of a "“confiden-

tial informant,” Earl Fodderell. Fodder-

ell was the essential link necessary to

arrest and indict Sapia.

It was Fodderell whose voice was on

tape; who told the police about Sapia; who

was present at or instrumental in the

various transactions leading up to Sapia's

arrest.

Yet, incredible as it may seem, the

defense was precluded from confronting

this most important of all witnesses to

the alleged transgressions. The People

elected not to use him as their witness,

since they were more than content to

utilize him via the testimony of the

undercover officer, Heyward, and through

the tapes.

Conversations in which Fodderell was

quoted, were revealed to the jurors.

Since Fodderell was a cooperating

informer, and for all intents and pur-

poses was playing out & stenario written

and directed for him by the police when

he met appellant, we submit that he could

not be deemed a co-"defendant" and there-

fore, could not be incriminated by any-

thing that was said or done by him while

playing that role. This was true since

Fodderell was a police agent, working

hand-in-glove with Officer Neyward and

the others.

Yet, when the defense called Fodder-

ell as their witness, he was permitted

to plead the "Fifth Amendment!" and fore-

stall any examination since the prosecu-

tion urged that he could be incriminated,

and also refused to offer him immunity,

which the Court suggested it do as a

matter of fairness.

To make the matter worse, Fodderell

admitted on the stand, out of the jury's

presence, that if permitted to testify,

he would SS Sapia, whom he des-

cribed as “an innocent man."

2 - The Trial Court also precluded

the petitioner from interposing an en-

trapment defense by ruling that the defend-

ant would have to waive his Fifth Amend-

ment privilege and testify if he chose to

urge such a defense.

The Court was told that a tape re-

croding and sealed, self-mailed regis-

tered letter was in the possession of the

defense, which was prepared before the

petitioner knew he was indicted, which

would raise an entrapment defense. His

trial attorney Boblick was ready to tes-

tify, but was not permitted to do this.

Nor was he permitted to produce available

witnesses to establish the authenticity

of the tape and registered letter through

trustworthy testimony.

To exacerbate the matter further,

however, the Trial Court and the prose-

cutor also effectively foreclosed using

the People's informer, Fodderell to estab-

lish entrapment, since the prosecutor

successfully combined with Fodderell's

attorney (Mr. Schmuckler) that Fodderell

could invoke the Fifth Amendment privi-

lege, despite his role as informer, and

police agent.

3 - The Trial Court read into the

record a portion of Officer Williams’

self-serving report, the thrust of which

was that on July 6, 1973, Sapia sold a

kilo of heroin to Fodderell. This was

pure hearsay, and the Court conceded

error. The damage was done.

4 - The Court charged the existence

of a conspiracy which was not charged in

either of the two indictments upon which

the case proceeded, One Gardner, accord-

i to the testimony, was the main cul-

nn and used Sapia as an agent, giving

the best view the People can advance.*

This in essence amended the indictment

without approval of the grand jury.

5 - It was also conceded that Sg.

Rollo and others had interrogated the

defendant~-petitioner in jail, following

his indictment and arrest, in the absence

of his lawyer. It is not denied that the

* Two indictments, one relating to June 27 and

the other to July 6, 1973 were combined for trial.

Neither alleged any conspiracy, nor acting in

concert.

officers were aware that Sapia had a

lawyer. The Court would not permit the

defense to see the transcript or other-

wise to learn of thé nature of this im-

proper interview. (The Rollo tape was

Exhibit 20 for ident.). This chilled

Sapia's desire to testify (Harrie v. New

York, 401 U. S. 222).

6 - The Trial Court moeaoves, Bs -

mitted the unsworn tapes which included

Fodderell's conversations to be consi-

dered, as evidence-in-chief, and thus

permitted the jurors to predicate guilt

on unsworn statements which were not sub-

ject to cross examination.

7 - The Trial Court refused to

correctly charge on the law of circum-

stantial evidence, namely, that in order

for the jury to consider such material,

it had to be satisfied that the evidence

excluded, to a moral certainty, every

reasonable hypothosis, but that of guilt.

There are other errors, but the fore-

going, we contend, are sufficient in this

ntroductory to establish a need to grant

certiorari.

ARGUMENT.

POINT I.

THE PROSECUTION'S CASE RELIED HEAVILY UPON

THE HEARSAY UTTERANCES AND TAPE RE-

CORDINGS OF CONVERSATIONS INVOLVING

AN UNDERCOVER INFORMER, EARL FODDER-

ELL, WHOM THE PROSECUTOR INCREDIBLY

FAILED TO CALL AS HIS WITNESS. THE

PETITIONER WAS SEVERELY PREJUDICED BY

THE TRIAL JUDGE'S RULING THAT SAPIA

COULD NOT COMPEL FODDERELL TO TESTIFY

FOR THE DEFENSE IN THE FACE OF FOD-

DERELL'S ASSERTION OF THE FIFTH

AMENDMENT PRIVILEGE AGAINST SELF-

INCRIMINATION, REJECTING PETITIONER'S

CONTENTION THAT AS A COOPERATING

INFORMER- » FODDERELL HAD NO

BASIS FOR INVOKING THAT PRIVILEGE.

A. The Trial Court below, realizing that

the people had utilised Fodderell to

ite great advantage through the lipe

of poltece officere and tape record-

inge without risking hte impeachment

by preventing the defendant from con-

fronting him in croee examination,

implored the Dietrict Attorney to

agree to grant Fodderell immunity in

thie case, which eupplicatton the

prosecutor ecorned.

B. The petitioner maintaine that by

using Podderell in an undercover

capacity, there wae no possibility

of hie inorimination einece he was

in the locus standi of a police

offieer who aided an arrest. The

petitioner wae therefore denied a

Stzth Amendment right of croese exam-

ination (confrontation) ae well ae

the right to compel witnesses in hie

behalf.

C. FPodderell wanted to teetify and TOLD

THE COURT, out of the presence of

the jury, that he had EXCULPATORY

information and THAT SAPIA WAS INNO-

CENT, but ineteted that he firet be

aseured that the testimony he wanted

to give would not be used againet

him by she Dietrict Attorney. Thie

the court would not do.

The defendant-petitioner was charged

with very serious crimes, "A" felonies.

The case rested in large measure upon an

unsworn “witness,” whose name was men-

tioned innumerable times, and whose voice

was heard on tapes, and whose statements

were repeated by police officers. This

tom was Earl Fodderell, an undercover

nformer, who was himself facing a prison

term for a federal drug offense.

The People, obviously as a calculated

trial stratagem, omitted to call Fodderell

as a witness since they reaped great bene-

fit from the use of his “testimony” through

“unsworn” tape recordings, and hearsay

references to his utterences via the libs

of police officers.

The People therefore, effectivel

precluded any confrontation of this wit-

ness.

The Supreme Court of Delaware re-

cently dealt with a surprisingly similar

situation and reversed a burglary-kidnap-

ping conviction in an incisive opinion.

While there was a statute involved, the

Delaware Court made it clear that the

result rested upon non-statutory grounds

including “the practicalities of a fair

criminal trial."

Thus, in Xeye v. State, --Delaware--,

Mar. 14, 1975, 337 A. 2d 18 (17 Cr. L.

2043), the Supreme Court of Delaware

opined (id. at 21):

"* * * We do not find it

necessary to determine whether

the admission of [Wells']) state-

ments was error under the con-

frontation provision of the

Sixth and Fourteenth Amendments

of the United States Constitu-

tion [Pointer v. Texas, 380

U. S. 400 (1965) ) because we

find the admission violated the

Statute itself and was there-

fore error. And we say so for

two general reasons: the stat-

utory language used by the

General Assembly and the prac-

tiealities of a fair criminal

trial.

"In view of the fact that

this statute represents a de-

parture from the common law

rule that prior out-of-court

etatemente are not admiesible

except for epecial purposes,

it should be strictly construed.

"We find that the Statute

was not intended by the General

Assembly to dispense with the

traditional requirement that

the State produce the live tee-

timony of the witnees. More-

over, we feel this interpreta-

tion is compelled by the sta-

tutory language.”

The Court continued 337 A. 2d at 23

(17 Cr.

2044):

"We find a second general

reason also compelling. The

admission of out-of-court state-

ments can have an impact on the

practical ebb and flow of the

criminal trial drama * * *"

"(In this case the trial

court considered that Wells'

presence at trial was suffici-

ent and allowed the statements

to be introduced through tes-

timony of a police investiga-

tor and a prosecutor. In front

of the jury the judge advised

defense counsel that "Mr. Wells

still remains in the courtroom

subject to your cross examina-

tion if you desire to call him

as ——— and cross examine

him.

"This scene dramatizes the

chief issue in this appeal. The

prosecution, instead of bearing

the burden of sponsoring as a

witness the out-of-court decla-

rant (who, for a while at least,

appears to have been an accom-

plice and who had been granted

immunity and whose testimony

is thus doubly suspect], is able

to present the out-of-court

statement through an officer

of the law and an officer of the

Court. ([T)he Court refused to

give the customary cautionary

charge about accomplice testi-

mony or the testimony of one

granted immunity because '[i)t

should be noted Mr. Wells was

not a witness.') Additionally,

the burden is shifted to the

defendant to call the witness

and it thus appears to the jury,

regardless of technicalities of

cross examination and formal

vouching for the witness, that

the defendant is sponsoring the

witness or refusing to sponsor

him. That burden is not fair.

If the State carried ite posi-

tion to ite logical extreme,

The State could rest ite case

without calling a single eye-

witnese to any pertinent fact.

That is not a trial as we know

it. The State should not be

able to rest its case without

calling the witnesses it re-

lies upon to prove it. This is

particularly true when the State

relies on witnesses who have

obvious vulnerability as to

credibility.

rove ite case through a single

“We are unable to say that Sotéee witness who 40d not abe

the error here was harmless or the incident and who relied

harmless beyond a reasonable solely on what eyewitnesses told

doubt. Superior Court Criminal him. It would be unfair for the

Rule 52; Chapman v. California, speeding defendant to have to

386 U. S. 18." See, Point III, defend against such an attack.

supra. (Emphasis ours.) The principle is no less valid

in a serious case carrying a

severe punishment."

The concurring opinion of Chancellor

Quillen explains the serious undermining

of the hearsay rule and contrary holding See, United States v. Allied Stevedoring

would have (337 A. 2d at 24): Corp., 241 F. 2a 925, 933 (2d Cir. 1957),

; "“Coneurrence: First, I

think it is important to attempt

in capsule form to demonstrate

for public understanding how

the issue in this case is one

of broad application and signi-

ficance which could affect any

citizen. It is important to

do so because this case and

others now pending on appeal,

involving similar or related

issues, concern criminal ac-

tions of some of the most seri-

ours crimes in our free society.

I am keenly mindful of the

seriousness of the allegations,

from the state's point of view

as well as the defendant's.

But the princtple involved te

aleo vital to the individual

freedom of everyone. The de-

eteton ia not based on an irrel-

evant technicality. The aver-

age citizen accused of speeding

would feel great resentment

if the State were permitted to

cert. denied 353 U. S. 984, 77 S. Ct.

1282, 1 L. Ed. 24 1143 (1957).

"This Court has recognized

the value to the fact finder of

contradictions which were the

consequence of live testimony.

Husband v. Wife, Del Supr., 253

A. 24 63 (1968). The Supreme

Court of the United States has

emphasized the importance of

live testimony in factual de-

terminations where credibility

is a factor. Uvrivereal Camera

Corp. v. National Labor Rela-

titone Board, 340 U. S. 474, 495,

71S. Ct. 456, 468, 95 L. Ed.

456 (1951). Even the cases

which hold that, given an ade-

quate opportunity for cross ex-

amination, a physical confron-

tation of the witness before

the defendant, Court and jury

is not required by Confrontation

Clause of the Sixth Amendment

emphasize the value ‘of compel-

ling (the witness) to stand

face to face with jury in order

that they may look at him, and

judge by his demeanor upon the

stand and the manner in which

he gives his testimony whether

he is worthy of belief.' Mattox

v. United States, 156 U. S. 237,

242-243, 15 S. Ct. 337, 339,

39 L. Ed. 409, 411 (1895);

Douglae v. Alabama, 380 U. S.

415, 418, 85 S. Ct. 1074, 1077,

13 L. Ed. 24 934, 937 (1965).

"The witness's presence

before the tribunal is import-

ant because the demeanor while

testifying will enable the

trier of fact to better deter-

mine the worth of his testimony.

See 5 Wigmore, supra, at 126.

This is why the hearsay rule

requires that the tribunal ob-

serve the witness testifying

in order to receive his testi-

mony. A witness's demeanor is

part of his testimony * * *"

“Live testimony can give

rise to contradictions and a

demeanor which puts an entirely

different light on the bare

word. Such contradictions and

such demeanor are properly the

burden of the offering party.

Indeed, some courts go so far as

to say demeanor can be used to

establish facts contrary to the

words used by the witness."

See, United States v. Areurt, C. A.

2d 403 F. 2d 491, cert. denied 394 U. S.

1003, and United Stated v. Esteppe and

Catino, C. A. 24 403 F. 2d 491, cert.

denied 394 U. S. 1003..

That the confrontation clause re-

guires an opportunity for cross examina-

tion is so obvious that it scarcely re-

quires extended discussion.

In any adversary proceeding, liti-

gants, generally have four basic rights:

public trial, cross examination and con-

frontation, compulsory process, and assis-

tance of counsel. The right to public

trial is a safeguard against mendacity

and incorrectness. In re Oliver, 333

U. S. 286 (1948); 6 Wigmore Evidence §1834

(34 Ed. 1940), and United Statee v. Cop-

Lon, 185 F. 2d 629, 639, 2d Cir. 1950.

The right of cross examination, “the

greatest legal engine ever invented for

the discovery of truth" insures that the

eavesdropping agents' claims about the

scope of their activities and the People's

attorney's claim about the limits on dis-

closure are subject to testing by counsel

for the defense, who alone has an interest

in showing them up as ill-founded or mis-

taken (see Alderman v. United States, 394

U. S. 165 [1969]; Douglae v. Alabama, 380

U. S. 415 [1965]; Pointer v. Texas, 380

U. S. 400 [1965]; Dennie v. United States,

384 U. S. 855 (1966); and 5 Wigmore Avi-

dence, §1367 [3d Ed. 1940)).

It is not fanciful to argue herein

that the defendant Sapia was pro tanto

denied the assistance of counsel because

counsel was refused access to materials

which may prove the difference between

imprisonment and freedom. This analyti-

cally is cognate to denying counsel

access to his client (see Powell v. Ala-

bama, 287 U. Ss. 45, 57-58 [1932]}). It

also denies Sapia and his attorney “ample

opportunity to acquaint himself with the

facts." Willie v. Hunter, 166 F. 2d 721,

723 (10th Cir.), cert. denied 334 U. S.

848 (1948).

At this juncture, it may be appro-

priate to remind this Court that a tape

was made of a post indictment interview

of Sapia by the authorities in the ab-

sence of his reteined attorney, while he

was in custody. The prosecution and the

Court refused to reveal this tape to

appellant, and would not furnish a trans-

cript or summary (882-897; 1478; People

Exhibit 20 for ident.).*

In addition, the People had failed

to reveal that there had been a hearing

on the Sapia case where statements of

People's witnesses had been uttered, but

not furnished to the defense for cross

examination. By the sheerest luck, Sapia

learned of this (1509-1519; 1505).

If the State may insulate itself

behind such epithets as “national secur-

ity” or “confidential informant” or “no

standing,” then, of course, for all in-

tents and purposes, the defendant is

denied proper means of defending himself

* Numerals in parentheses refer to pages of the

official Court Reporter's minutes of trial.

(see, Goldstein “The State and the Accu-

sed: Balance of Advantage in Criminal

Procedure,” 69 Yale L. J. 1149, 1175

(1960]}).

This is a task for open hearing and

not for summary procedures for the proof

is surely in the hands of the State and

“hostile witnesses thicken the plot."

Poller v. Columbia Broadcasting System,

368 U. S. 464, 473 (1962). See, Sartor

v. Arkaneae Natural Gae Corp., 321 U. S.

620 (1944); United States v. Coplon,

eupra.

The Supreme Court has held in a re-

lated context that fundamental freedoms

are not to be held out for sacrifice with-

out full exploration of alternative means

of dealing with the evils their exercise

gives rise to. United Statee v. Robel,

389 U. S. 258 (1967).

The rationale of United Statee v.

Andolechek, 142 F. 24 503, 506 (2d Cir.

1944), cited with approval in Dennie v.

United Statee, 384 U. S. 53 (1967), dic-

tates that unless the government is will-

ing to open its files to the extent neces-

sary to insure, through adversary proce-

dures in open court that its unlawful con-

duct did not produce leads or evidence

which contributed to defendant's convic-

tion, the case must be dismissed (see

Jencke v. Untted Statee, 353 U. S. at

670, 672). Moreover, the claim that in-

vestigative files reflecting lawful tech-

niques should be kept free from scrutiny

would be more graciously received if ex-

perience showed that the government con-

sistently and carefully separated illegally

gathered material from that legally

gathered, to permit easy identification

of the source of any given communication

or item of intelligence.*

The Court's actions would seem to

be wholly inconsistent with Alderman v.

United States, supra, to say nothing of

Brady v. Maryland, 373 U. S. 83. The

defense was entitled to confront Fodderell

under the Sixth Amendment. Such refusals

have been held to be error of a grave

nature; Smith v. Illinote, 390 U. S. 129,

131, — Alford v. United States, 282

U. Ss. Ve

The Sixth Amendment guarantees not

only a right to be "confronted with the

witnesses against him,” but also “to have

compulsory process for obtaining witnesses

in his favor."

Fodderell was working in close asso-

ciation with the police. Officer Heyward,

who acted in an undercover capacity, as

well as Officer Bruno and others conceded

that Fodderell was a certified undercover

confidential informant who had even been

assigned an official number (Bruno, 26,

96-98; Heyward, 476, 936).

Officer Bruno admitted that Sapia

was mentioned to him by Fodderell and

that is how Sapia came under investiga-

tion by him (21-26). Incidentally, Bruno

had never seen Sapia carry anything (98).

* We refer to the revelations of the Ellsburg

and Watergate cases.

Heyward met Fodderell on June 26,

1973 (476).

One Robert Gardner, who was appar-

ently the chief culprit in the investiga-

tion seemed to give Sapia orders, and he

too was linked into the case by Fodderell.

In order to permit the hearsay utterances

of Fodderell and Heyward and Gardner to

be used against Sapia at times he was not

said to be present, the prosecution, with

the blessings of the Court concocted a

“conspiracy” theory (486, 487). It is

noteworthy that the Court itself conceded

that there was no conspiracy charged in

either indictment (1353-1369).

Just as a glaring example of the

hearsay use of Fodderell's statements, it

is appropriate to look at page 1062 of

the record where the Court read a hearsay

report of Officer Williams, quoting Fod-

derell when Sapia was not present:

"On July 6, 1973, one kilo

was purchased from Sapia * * *

by undercover, UC 14547 [Fod-

derell)]. First meeting was in

the vicinity of Sapia's resi-

dence and the buy was trans-

acted in the vicinity of 55

West 100th Street, 24th pre-

cinct."

At pages 1083 and 1084, the Court was

told of the grave error it had committed,

and admitted it was error. The jury was

not informed that this was hearsay and

was not binding on Sapia. An instruction

would exacerbate the situation.

The Court further ruled that it would

admit any conversations involving Fodder-

ell and Gardner (484-6). But the Court

permitted conversations between Officer

Heyward and Fodderell, even without the

presence of either Gardner or petitioner

(508; 648 tapes).

It was pointed out to the Court that

if Fodderell was to have his statements

admitted on the theory of his being a co-

conspirator (a fact we reject), then there

is a clear violation of Bruton v. United

States, 391 U. S. 123, since it is the

admissions of a non-testifying co-defend-

ant or conspirator. Some conversations

were post indictment, so the conspiracy

had to have terminated by then (1355;

1354).

A perusal of the record reveals in-

numerable references to and conversations

with, or statements of Fodderell.

Turning now to the grave error that

was made by the Court and the prosecutor

combining to preclude the defense from

using Fodderell as a witness because of

the implied threat by the District Attor-

ney that he would be prosecuted if he so

testified for the defense, we wish to

quote some portions of the record.

Bear in mind, that Fodderell said

that he could establish "Sapia's inno-

cence” and that his testimony would be

exculpatory of Sapia!

The prosecutor had no right to deny

that Fodderell was not subject to prose-

cution for testimony about his role in

this case. It is just as if Officer

Heyward would have refused to testify on

the grounds of self incrimination, even

though everyone knew that he was an under-

cover agent and could not be involved

since he was a police agent, and there-

fore could not have had any criminal in-

tent.

A recent case decided by the United

States Court of Appeals for the Second

Circuit, United Statee v. Anglada, 18

Cr. L. 2144 (decided 10/16/75), confronted

a similar issue to that of the case at

bar wherein a witness-informer called to

the stand invoked the Fifth Amendment.

The Second Circuit held that some "“care-

fully phrased, limited questions” would

have been permissible. In remanding the

case to the Court below, he Second Cir-

cuit cited the failure of the Trial Judge

oe submit the entrapment issue to the

ury.

In Anglada, as in the case at bar,

the defendant sought to obtain the testi-

mony of one Santana, whom he called as a

aan a Rag oe there also held a

outs of the ju

and learned that while Santana A By

to be interviewed by defense counsel, he

had nevertheless spoken freely to the

prosecutor and the police about the

events of the case. Santana's assigned

counsel advised him to assert his Fifth

Amendment privilege inst self-incrin-

ination. (Fodderell in the instant case

followed similar advice from his assigned

counsel).

Court treats the situation as follows:

The opinion of the Circuit

"Over defendant's objec-

tion, the judge sustained the

privilege and excused Santana

from testifying. Appellant

claims that this ruling was

erroneous considering the unique

nature of Santana's testimony

in establishing the entrapment

defense (he was the only other

participant in the crucial con-

versation), the protection

afforded Santana against a cri-

minal charge in the Anglada

transaction because Santana was

acting at the Government's re-

quest, the lack of connection

between the Anglada sale and

the state charge, the possible

waiver of his Fifth Amendment

rights by his conversations with

the prosecutor, and the possi-

bility that his reluctance to

testify was based upon fear of

Anglada's retaliation rather

than on the Fifth Amendment.

"The question thus posed

is not a simple one. Such

cases as UJ. S. v. Domenech, 476

F. 24 1229, 1231 (2d Cir.),

cert. denied, 414 U. S. 840

(1973); Uv. S. vw. Llanes, 398 F.

24 880, 884-85 (2d Cir. 1968),

are not necessarily controlling.

Only in Llanee was the reluct-

ant witness asked to shed light

on an entrapment issue, and,

unlike this case, there was

nothing to indicate that the

witness had been a police infor-

mer who had allegedly ‘set up’

the defendant. As against the

lesser showing there of the

defendant's need for the evi-

dence, the reluctant witness

‘was himself under indictment

for a narcotics violation which

allegedly occurred at the same

time and place as appellant's

alleged violation,’ which was

‘a classical situation for the

full exercise of the privilege. '

398 F. 24 at 884. In this case,

there was no apparent connection

between the state drug charge

used to justify the privilege

and the incident on which tes-

timony was sought. It may be

that on retrial the issue will

be simpler since the state

charge may already be disposed

of. In any event, we suggest

that if the situation arises

again, the trial judge take a

harder look at any blanket

assertion of privilege and also

at the possibility of allowing

some carefully phrased, limited

questions by Anglada's counsel.”

(Emphasis ours.)

cert. denied, 393 U. S. 1032 It will therefore be noted that the

(1969); and U. S. wv. Chandler, Circuit Court would have permitted some

380 F. 24 993, 997 (2a Cir. 1967),

questioning, albeit limited. Moreover,

since in the case at bar Fodderell was

only to be questioned about the case on

trial, there was no reason to exclude

his testimony altogether since admittedly

he had been a cooperating witness playing

an undercover role for the police. He

could not possibly have incriminated him-

self with respect to the charges on trial,

as the dissenting opinion in the Appellate

Division correctly observes. Thus the

following quotations are important (1585-

1586):

"THE COURT: You understand

you were brought here from West

Street at the request of the

counsel for Mr. Sapia as someone

they wished to ask questions of

as a witness in this case. Do

you understand that? That's

all I'm asking at this point.

"THE WITNESS: {[Fodderell }

Yes, sir.

"THE COURT: Now, Mr.

Schmukler has told us he aM

spoken to , and after talk-

ing to aie yee have indicated

that if you were asked questions

about your activities in connec-

tion with the matters that led

to Mr. Sapia’s arrest, that you

would invoke a privilege against

self-incrimination unless the

Court granted you immunity from

prosecution for the matters you

will be talking about. That's

what he told us.

"Now I'm sure he was tell-

ing us in good faith what he

thought your position was, but

z want to know from you, is that

your position?

“THE WITNESS: Well, my

position is that I don't know.

I just tried to explain to him,

I hope I'tl be able to speak

freely. I don't want to eee an

imnocent man go to jail for

something he's totally not

reeponetble for. Then on the

other hand, I don't want to

incriminate myself. I don't

want to be prosecuted because

I'm doing enough time."

The Court was deeply concerned with

the dilemma posed by the Fodderell matter,

but the prosecutor was adamant (1566-1567):

"THE COURT: My prelimin-

ary reading of the appropriate

section is to the effect the

Court would not have the power

to confer immunity without con-

sent of the District Attorney's

office.

"As to what the testimony

would be, I think it would be

a fair summary that if believed

by the jury, would be ezculpa-

tory. Whether or not the testi-

mony had been indicated on the

record on behalf of Mr. Fodder-

ell, if called as a witness, he

would invoke the privilege

against self-incrimination and

your criminal practice act seems

to indicate the Court cannot

confer immunity, although on

the basie of what was told to

me, tf he invoked the privilege

and I had that power, I would

have done 8o.

"Mr. Wilson indicated he

did not feel the District Attor-

ney should cooperate or consent

to such granting of immunity.

I believe that is your position

still, Mr. Wilson?

"MR. WILSON: That is cor-

rect."

it's fair to say that my belief

is that it would be appropriate

and helpful for the District

Attorney to consent to immunity

and I am genuinely saddened they

would not do so.”

The defense responded (1567-1568) :

"MR. ANOLIK: I will have

to express an exception on the

record for several grounds.

"THE COURT: Yes.

"MR. ANOLIK: I think when

the prosecution undertakes to

use an individual as an informer

and is even given a number as a

police informer, and utilizing

The Court then adverted to the same

position taken by the chief of the divi-

sion and expressed its sadness (1566-1567):

his evidence to get the indict-

ments and to prosecute a defend-

ant, and then it develops that

"THE COURT: I think it

would be fair to add that I had

a telephone conversation in Mr.

Wilson's presence on my side of

the phone with Mr. Rogers, in

which I expressed the view that

the District Attorney should

consent to immunity and Mr.

Rogere dieagreed and I don't

say that as a criticism of him,

because I don't think it's that

clear an issue from his stand-

point, and on the basis of the

information he has, but I think

that same informer has informa-:

tion which would be perhaps

exculpatory to the defense, that

the prosecution must, not may,

but must grant immunity in the

event the informer becomes a

talisman, for the reason is

that in that case, this is a

witness who is not subject to

examination through the tapes,

that is, as being used against

us by the prosecution to their

advantage, and then they util-

ize their power, not given to

a defendant, only to a prosecu-

tor, to forestall and prevent

Mr. Anolik continued (1568):

us from gleaning and develop-

ing exculpatory material or

material which might show the

informer or is under pressure

or perjured himself or entrap-

ped the defendant. We think

it's a denial of the equal pro-

tection of the laws.

"I know it's a novel area,

but I think under these unusual |

circumstances, that the prose-

cution has an ethical duty to

grant immunity.”

"Now on the other aspect

of it, I would ask the Court to

consider the possibility, which

I think te proper, that by be-

coming an informant and by assie-

ting tn the prosecution of thie

case, chis individual, Mr.

Podderell, has waived hie right

againet self-incrimination.

"He can't have it both

ways, because in effect, he has

already testified.

——s

"THE COURT: I take it, if

I may address you from the wall

of the Court, Mr. Schmukler,

you don't share the last opinion

expressed, do you?

"MR. SCHMUKLER: No, I

don't."

The Court agreed that the testimony

of Fodderell, if believed, would be ex-

culpatory (1570).

On 1572, the following occurred:

"MR. BOBICK: Anybody who

says he can't have immunity.

In this case, I say it's prose-

cutorial misconduct for the

District Attorney's office to

say to a man, go out and entrap

somebody; go out and do some-

thing which you don't ordinarily

do; go out and be a confidential

informer and if somebody says

to you, what's the truth of the

matter, we will stop them from

talking to you * * *,

"THE COURT: I believe the

point you are making has some

possible merit.

"MR. ANOLIK: The question

must be broached. Whether or

not they have the right -- they

being the prosecution -- whether

or not they have the right to

use an informer and insulate

him from cross examination by

saying, don't worry, we won't

give you immunity. You just

get there and take the Fifth

Amendment, so they can never

cross examine you."

Regrettably, the People did not act

fairly with the petitioner as is seen

from the foregoing and as will be demon-

strated, infra, as well. The People should

have volunteered the information that

there had been a hearing at which state-

ments of the People's witnesses were made

before a federal Judge (Gagliardi). The

prosecutor should have disclosed the tape

and conversation that Sgt. Rollo had of a

post-indictment, post-arrest interview

with Sapia in the absence of counsel. To

date, we still have not seen that.*

The District Attorney should have

joined with the defendant in seeking the

testimony of the crucial witness, Fodder-

ell -- indeed, the prosecutor should have

called him as its own witness initially

(Keys v. State, supra). Instead, the

prosecution threw every conceivable road-

block in the way of adducing testimony

from Fodderell and spurned the trial

Judge's entreaties to remove the aura of

prejudice by acknowledging that Fodderell

would not be exposed to prosecution if he

testified about this case. Again the

District Attorney rejected the suggestion.

We must remember the fact that Fodderell

said that he had exculpatory evidence and

would testify that Sapia was innocent of

the charges. Yet by dint of questionable

procedural barriers and ploys, he was

kept from disclosing this information.

In Moore v. Illinotie, 408 U. S. 786, at

809-810, the Court ruled:

* Chambere v. Mississippi, 410 U. S. 284; United

States v. Pacelli, 491 F. 2d 1108, 1119; United

States v. Phinget, 477 F. 24 177, 194-195.

"When the State possesses

information that might well

exonerate a defendant in a

criminal case, it has an affir-

mative duty to disclose that

information. While frivolous

information and useless leads

can be ignored, if evidence is

clearly relevant and helpful

to the defense, it must be dis-

closed.

"Obviously some burden is

placed on the shoulders of the

prosecutor when he is required

to be responsible for those

persons who are directly assist-

ing him in bringing an accused

to justice. But this burden

is the essence of due process

of law. It is the State that

tries a man and it is the State

that must insure that the trial

is fair. ‘A citizen has the

right to expect fair dealing

from his government, see Vitar-

ellit v. Seaton, 359 U. S. 535,

and this entails * * * treating

the government as a unit rather

than as an amalgam of separate

entities.' S & E Contractors,

Inc. v. United States, 406 U. S.

1, 10 (1972). ‘The prosecutor's

office is an entity and as such

it is the spokesman for the

Government.’ Giglio v. Untted

Statee, 405 U. S. 150, 154

(1972). See also Santobello

v. New York, 404 U. S. 257, 262

(1971); Barker v. Wingo, 407

U. S. 514 (1972)."

In view of what transpired with re-

spect to Fodderell and his prognostica-

tions that he would exculpate Sapia, we .

have no recourse but to assume that the

People deliberately proferred false im-

pressions and allowed incorrect evidence

to be heard by the jury. Thus in Brady

v. Maryland, 373 U. S. 83, 87, the Supreme

Court said:

ee ee - ee

"The Third Circuit in the

Baldi case construed that state-

ment in Pyle v. Kaneae to mean

that the ‘suppression of evi-

dence favorable’ to the accused

was itself sufficient to amount

to a denial of due process.

195 F. 2d at 820. In Napue v.

Illinois, 360 U. S. 264, 269,

we extended the test formulated

in Mooney v. Holohan, when we

said: 'The same result obtains

when the State, although not

soliciting false evidence,

allows it to go uncorrected

when it appears.' And see

Aleorta v. Texas, 355 U. S. 28'

Wilde v. Wyoming, 362 U. S. 607.

Cf. Durley v. Mayo, 351 U. S.

277, 285 (dissenting opinion).

"We now hold that the sup-

pression by the prosecution of

evidence favorable to an accused

"The principle of Mooney

v. Holohan is not punishment

of society for misdeeds of a

prosecutor but avoidance of an

unfair trial to the accused.

Society wins not only when the

guilty are convicted but when

criminal trials are fair; our

system of the administration

of justice suffers when any

accused is treated unfairly.

An inscription on the walls of

the Department of Justice

states the proposition candidly

for the federal domain: ‘The

United States wins its point

whenever justice is done its

citizens in the courts.' A

prosecution that withholds evi-

dence on demand of an accused

which, if made available, would

tend to exculpate him or reduce

the penalty helps shape a trial

that bears heavily on the de-

fendant. That casts the prose-

cutor in the role of an archi-

tect of a proceeding that does

not comport with standards of

justice, even though, as in the

present case, his action is not

‘the result of guile,' to use

the words of the Court of

Appeals. 226 Md., at 427, 174

A. 2d at 160."

upon request violates due pro- In Moore v. Illinote, supra, the

cess where the evidence is ma- Supreme Court further cautioned (408 U. Ss.

terial either to guilt or to at 808):

punishment, irrespective of the

good faith or bad faith of the

prosecution.

"In my view, both Brady v.

Maryland, 373 U. S. 83 (1963),

and Napue v. Illinote, 360 U. S.

264 (1959), require that the

conviction in this case be re-

versed. WNapue established that

the Fourteenth Amendment is

violated ‘when the State, al-

though not soliciting false

evidence, allows it to go un-

corrected.' Id., at 269. And

Brady holds that suppression of

material evidence requires a

new trial ‘irrespective of the

good faith or bad faith of the

prosecution.' Supra, at 87.

There can be no doubt that

there was suppression of evi-

dence by the State and that the

evidence that the State relied

on was ‘false’ in the sense that

= was incomplete and mislead-

ng.” :

In Brady, supra, the Court further

ruled (373 U. S. at 86):

"This ruling is an exten-

sion of Mooney v. Holohan, 294

U. S. 103, 112, where the Court

ruled on what nondisclosure by

a prosecutor violates due pro-

cess:

"'It is a requirement that

cannot be deemed to be satis-

fied by mere notice and hearing

if a State has contrived a con-

viction through the pretense

of a trial which in truth is

but used as a means of depriv-

ing a defendant of liberty

through a deliberate deception

of court and jury by the pre-

sentation of testimony known

to be perjured. Such a contri-

vance by a State to procure the

conviction and imprisonment of

a defendant is as inconsistent

with the rudimentary demands

of justice as is the obtaining

of a like result by intimida-

tion.'"

To make matters worse, the Trial

Court would not permit the defense to call

Fodderell to the stand in the presence of

the jury, so that it could hear him invoke

the Fifth Amendment. True, the Court ex-

plained this to the jury, but that is not

the same as calling the witness, especi-

ally when the veniremen must have been

——y ~~~. h~ > Fodderell since his name

was ment so often in testimony and

the tapes.

The Fifth Amendment guarantees that:

"No person * * * shall be

compelled in any criminal case

to be a witness against himself

* *

It is apparent that the language of

the Constitution refere to an accused and

not a witnese.

its terms is probably owing to a misun-

"Taken by themselves the derstanding of the Amendment:

words nor can he be compelled

to gtve evidence againet him-

self are, doubtless, broad enough "It [the privilege against

to a8 a witness as well as self-incrimination] was in fact

an accused. But occurring in a | unknown in the nineteenth cen-

sentence beginning with the tury. It does not occur in

words in all capttal or ertminal either of the two historic

prosecutions, and sandwiched Supreme Court decisions on the

as they are between clauses privilege toward the end of that

which can only relate to the century (the Boyd decision in

accused, they seem unmistakably 1886 and the Counselman decision

intended to apply only to him: in 1892). It does not occur in

a conclusion which the word he, the 1891 edition of Story's

already used just a few words Commentaries on the Consetitu-

previously to refer unmistak- tion or in the 1893 edition of

ably to the accused, strongly Greenleaf's Evidence--both

reinforces. standard works of the period."

"* * * Quite clearly, had

the framers of these provisions Mayers, id. at 311, 312 footnote 16.

intended them to include the

witness, the fact that the con- Arguendo, even if it be conceded

text might be construed as nega- that the privilege against self-incrimi-

tiving such a construction would nation protects witnesses, other serious

have been apparent to them; and questions are raised by the trial court's

they would have rewritten the | actions.

provision to remove the ambigu-

ity. One must conclude that In United States v. St. Pierre, 132

the thought that the witness FP. 2d 837, 840 (C. A. 2, 1942), Judge

might be regarded as included Learned Hand observed:

never occurred to them. And the

reason why it did not seems

clear." Mayers, Shall We Amend "The result of using this,

The Pifth Amendment (1959) at like any other privilege, is to

187. deprive people of evidence

which would be otherwise avail-

able; at best, a disastrous

In a footnote, the same author notes necessity, for disputes ought

that the supposition that a “witness”

as well as an accused is protected by

to be settled so far as they

can by resort to the whole

truth.”

The privilege is designed and inter-

preted “to protect the innocent" even

though it may prove "a shelter to the

guilty." Twining v. New Jersey, 211 U. S.

78, 91 (1908).

Even if the witness had the privi-

lege to invoke, the Trial Court committed

egregious error in denying Sapia the

right to put the questions to the witness

in the presence of the jury.

Petitioner did not intend to, and

could not, abuse the opportunity to ques-

tion the witness despite his expressed

intention to invoke the Fifth Amendment.

He only sought permission to put questions

to the witness.

The trial judge acted on the erron-

eous premise that the Fifth Amendment pro-

hibits inquiry.

However, the Trial Court was plainly

wrong. The witness was merely privileged

not to answer them--as probative as they

were. Actually, “except in the case

of an accused in a criminal case [for an

accused cannot be called as a witness,

the privilege against self-incrimination |

is merely an option of refusal, not a

prohibition of inquiry." 8 Wigmore on

Evidence (3d Ed.) $2268, page 402.

"The right to trial by

jury includes the right to have

the jury present when tent

questions are propounded to a

witness. While a witness may

refuse to answer if the answer

would tend to incriminate him,

yet the privilege does not bar

the asking of the question."

O'Chiato v. People, 214 Pac.

404, 405 (Sup. Ct. Colo., 1923).