Amicus Curiae Brief — Lloyd v. United States

Subject Index

Page

Statement of Amicus Curiae ...............cceeeeeeeenes 1

Reasons for Granting the Writ ..............seeeeeeeeeee 4

RPMI in EE. rk La BIR. tbc eke Bho emaeslds ve ae 5

I. This case affords an opportunity to articulate rules

II.

III.

that will preclude indiscriminate use of the business

and official records exceptions to the hearsay rule

inimical to the right of confrontation and due process

‘in criminal trials. The court will thereby resolve the

growing conflict and confusion in the lower courts....

Federal court cases .......... cece cece eeeeeeees

This case affords an opportunity to rule that the gov-

ernment may not offer records as its sole proof of

an essential and disputed element of a crime when

witnesses who observed the recorded events are able

to testify and be cross-examined .................55

This case affords an opportunity to articulate mini-

mum standards of proof and evidence in a federal

criminal case, namely that the federal statutory ex-

ceptions to the hearsay rule were not intended to and

do not permit the government to convict and imprison

a federal defendant without presenting any other evi-

dence of his crime but a government file ..... er.

CS .-. ok aaa ks eee % cs Saab ud Ae 4 a ee

13

Barber v. Page, 390 U.S. 719 (1968)..............--005- 6

Bennett v. State, 448 P.2d 253 (Okla. Cr. 1968).......... 10

Brookhart v. Janis, 384 U.S. 1 (1966)................... 6, 14

Bruton v. United States, 391 U.S. 123 (1968)............ 6

California v. Green, 399 U.S. 149 (1970).............--- 5,13

Chapman v. California, 386 U.S. 18 (1967).............. 12

Douglas v. Alabama, 380 U.S. 415 (1965).............+--- 6

Dutton v. Evans, 39 U.S.L.W. 4015 (Dec. 15, 1970)... .6, 13,15

Greene v. McElroy, 360 U.S. 474 (1959)...............5. 18

Hanley v. United States, 416 F.2d 1160 (5th Cir. 1969),

cert. denied 397 U.S. 910 (1970)............. ee eee eee 11

Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938)..... 12

Kemp v. United States, 415 F.2d 1185 (5th Cir. 1969), cert.

denied 397 U.S. 969 (1970) ........c eee eee cee eeeeeeee 9

La Porte v. United States, 300 F.2d 878 (9th Cir. 1962) 9

Lopez v. United States, 373 U.S. 427 (1963)............. 15

Mapp v. Ohio, 367 U.S. 643 (1961) .............ceeeeeees 12

McDaniel v. United States, 343 F.2d 785 (5th Cir.), cert.

denied 382 U.S. 826 (1965) .........cc cece ee cece eceeee 8

MeNabb v. United States, 318 U.S. 332 (1943)............ 16

Palmer v. Hoffman, 318 U.S. 109 (1943)................ 12,13

Peters v. Hobby, 349 U.S. 331 (1955)............--ee0e- 18

People v. Braswell, 12 Mich. App. 685, 163 N.W.2d 461

(19GB) 04. be cased 5a wed ores ad ees wenn embic 9:4 caveiewess 11

People v. Bryan, 3 Cal.App.3d 327 (1970)............... 11

People v. Carmichael, 198 Cal. 534, 246 Pac. 62 (1926).... 15

People v. Fiddler, 102 Ill.App.2d 319, 243 N.E.2d 515

a | Serre Peay parr errr ret eee eee POY 11

People v. Gambos, 5 Cal.App.3d 187 (1970).............. 11

People v. Hislope, 13 Mich. App. 63, 163 N.W.2d 675

e) | eOrrrreyy yr rr ere rk eye Ce Peake ez 11

People v. Ziebeil, 82 Ill.App.2d 350, 227 N.E.2d 127 (1967) 11

Pointer v. Texas, 380 U.S. 400 (1965)....... aeeke cua 6

Rea v. United States, 350 U.S. 214 (1956)................ 17

Reilly v. Pinkus, 338 U.S. 269 (1949)...............eee- 14

R.F.C. v. Beaver County, 328 U.S. 204 (1946)............ 12

Richardson v. State, 432 S.W.2d 100 (Tex. Cr. App. 1968) 11

. Serra

Tase or AUTHORITIES iii

ae Pages

Roberts v. Russell, 392 U.S. 293 (1968).................. 6

Robison v. State, 430 P.2d 814 (Okla. Cr. BIBT) i o.ve sds 11

Smith v. Illinois, 390 U.S. 129 (1968)................... 14

State v. Adrian, 51 Hawaii 125, 453 P.2d 221 (1969)..... 10

State v. Colvin, 19 Ohio St. 2d 86, 249 N.E.2d 784 (1969) 11

State v. O’Brien, 225 La. 704, 232 So.2d 484 (1970)...... 11

State v. Tims, 9 Ohio St. 136, 224 N.E.2d 348 (1967).... 9,10

Tehan v. Shott, 382 U.S. 406 (1966).................... 15

| Thomas v. United States, 368 F.2d 941 (5th Cir. 1966).... 17

Tomlin v. Beto, 377 F.2d 276 (5th Cir. 1967)............ 11

Thompson v. Louisville, 362 U.S. 199 (1960)............. 12, 13

United States v. Burruss, 418 F.2d 677 (4th Cir. 1969)... 11

United States v. Holmes, 387 F.2d 781 (7th Cir. 1967),

cert. denied 391 U.S. 936 (1968)...................... 9

United Staies v. Johns-Manville Corporation, 225 F.Supp.

Gl UBD; Pe, TOMO) ccc cas cv akca) «anes teers 8

United States v. Van Hook, 284 F.2d 489 (7th Cir. 1960),

rev’d per curiam for resentencing, 365 U.S. 609 (1961) 7,9

Wong Wing Foo v. McGrath, 196 F.2d 120 (9th Cir. 1952) 7

Yaich v. United States, 283 F.2d 613 (9th Cir. 1960)..... 9

Constitutions

United States Constitution:

Fifth Amendment ............ccccccccccccccccccccs 15

Sixth Amendment: si 5s sis dR idh cc cicccccadvececté 5,17

Rules

Federal Rules of Criminal Procedure, Rule 26...:........ 17

United States Supreme Court Rules, Rule 42............. 2

Texts

28 U.S.C. Sees. 1732-1733...... CEASE R Cea edaaers 2, 6, 16, 17, 19

bE Lame Ore rs ree y eee eer ire err eae .. 89

50 U.S.C. App. See. 462 (1967)......... ccc cece cece ae 2

Confrontation and the Hearsay Rule (comment), 75 Yale

[hs (109G ( 19GB). Ss MARTINS. CHS CES 6

Preserving the Right to Confrontation—A. New Approach

to. Hearsay Evidence in Criminal Trials (note), 113

U Ma ls Be 16 GO). ic 6

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4

In the Supreme Cont

OF THE

United States

OctToBER TERM 1970

No.

DANIEL OWEN LLoyp, Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

d

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Amicus Curiae urges that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Ninth Circuit, entered in this case

December 8, 1970.

STATEMENT OF AMICUS CURIAE

The American Civil Liberties Union of Northern

California is a non-profit and non-partisan organiza-

2

tion dedicated to preserving the individual liberties

guaranteed by the Bill of Rights. In pursuit of this

objective, it files this brief with the consent of the

parties.’ We are deeply concerned that a person can

be imprisoned when the prosecution’s only evidence is

a file, used not just to prove incidental or uncontested

facts, but as the sole proof of specific criminal intent,

a necessary element of the crime. Trial by file is

unconstitutional.

The petitioner, Daniel Owen Lloyd (“Lloyd”), was

indicted for refusing to submit to induction into the

Armed Forces in violation of 50 U.S.C. App. $462

(1967) |

At his trial, Lloyd did not dispute that he had

failed to submit to induction after reporting as

ordered.* He did, however, deny the requisite criminal

intent, t.e., that his failure was a knowing and wilful

one. (Specific criminal intent is an essential element

of the offense. See Appendix A.) The government’s

only evidence was a copy of Lloyd’s Selective Service

file, which contained a printed report from the ind-1c-

tion center. After routine authentication, the file was

introduced into evidence,* over Lloyd’s timely con-

frontation and hearsay objection, as a business and

official record under a statutory exception to the

hearsay rule, 28 U.S.C. §§1732-1733 (1964). The

1Pursuant to Rule 42, letters of consent from counsel for each

party are on file with the Clerk.

2Unless otherwise noted, facts stated are taken from the Court

of Appeals’ opinion. (Appendix A to Petitioner’s Brief.)

$Petitioner’s Brief at 8.

4Government’s Exhibit 1.

3

government produced no witnesses. Once the file was

admitted, the prosecution rested.

Lloyd then testified without dispute that he had

been a lifelong Jehovah’s Witness (R.T. 174), that he

shared the beliefs of that religious organization

against killing and participation in war (R.T. 174-5),

that he was generally ignorant of the Selective Ser-

vice law and his rights thereunder, relying upon in-

accurate information from his friends (R.T. 176-187),

and that he claimed conscientious objector status when

he originally registered, but did not send in the

follow-up Form 150 because he mistakenly thought it

applied only to full-time ministers. (R.T. 176-7).°

‘The trial court interrupted Lloyd’s direct testimony to cross-

examine him vigorously, and in so doing left little doubt of its

views of Lloyd’s knowledge and intent. (R.T. 179-182.) For ex-

ample:

“The Court: If I vuderstand Jehovah’s Witness (sic), they

all object to serving in the Armed Service, and that ir the

continued (sic) problem with all of them. It is their common

objective. You are not alone in this. You associate with other

Jehovah Witnesses (sic), don’t you?

The Witness: Yes.

The Court: I understand that they are quite congenial

with one another and get along with one another. You pray

with them and go through other religious ceremonies, don’t

you?

The Witness: Yes.

The Court: Didn’t you discuss the draft problem with

them——

The Witness: No, I should have.

The Court: —because normally speaking, Jehovah Wit-

nesses (sic) are well advised of their rights. They are prob-

ably the best advised group of people we have, and you tell

me that you didn’t even talk to these people in your own

church who know their way around? There are such people

in your church, or your very own church in Santa Cruz. I

think that is the church you belong to?

The Witness: Yes.” (R.T. 181-2.) (Emphasis added. )

4

Lloyd also subpoenaed officials of his local board

to testify that it had never considered his original

claim for an exemption. The government’s motion to

quash these subpoenas was granted.

After denying Lloyd’s motion for acquittal, the

court allowed the case to go to the jury, instructing it

that the only questions to decide were (1) whether

Lloyd ‘‘failed to submit for induction into the Armed

Forces of the United States, after he had reported as

ordered by the Local Board” and (2) whether ‘‘the

omission or failure to submit was wilfully and know-

ingly done.”

After a verdict of guilty, the court sentenced Lloyd

to federal prison for 18 months, without probation.

On Lloyd’s appeal, the Court of Appeals for the Ninth

Circuit affirmed the judgment against him, hence his

petition and this brief amicus curiae.

REASONS FOR GRANTING THE WRIT

1. This case affords an opportunity to articulate

rules that will preclude indiscriminate use of the

business and official records exceptions to the hearsay

rule inimical to the right of confrontation and due

process in criminal trials. The Court will thereby

resolve the growing conflict and confusion in the

lower courts.

2. This case affords an opportunity to rule that

the government may not offer records as its sole proof

of an essential and disputed element of a crime when

4)

witnesses who observed the recorded events are able

to testify and be cross-examined.

3. This case affords an opportunity to articulate

minimum standards of proof and evidence in a federal

criminal case, namely that the federal statutory ex-

ceptions to the hearsay rule were not intended to and

do not permit the government to convict and imprison

a federal defendant without presenting any evidence

of his crime but a government file.

ARGUMENT

I. THIS CASE AFFORDS AN OPPORTUNITY TO ARTICULATE

RULES THAT WILL PRECLUDE INDISCRIMINATE USE OF

THE BUSINESS AND OFFICIAL RECORDS EXCEPTIONS TO

THE HEARSAY RULE INIMICAL TO THE RIGHT OF CON-

FRONTATION AND DUE PROCESS IN CRIMINAL TRIALS.

THE COURT WILL THEREBY RESOLVE THE GROWING

CONFLICT AND CONFUSION IN THE LOWER COURTS.

The several recent cases in which the Court has

considered the right of confrontation® have involved

testimonial hearsay evidence presented by the prose-

cution when there was cross-examination either of the

original declarant, e.g., California v. Green, 399 U.S.

149 (1970) (preliminary hearing testimony of in-

former), or of the witness through whom a peripheral

6Sicth Amendment.

In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been cor-

mitted, which district shall have been previously ascertained

by law, and to be informed of the nature and cause of the

accusation ; to be confronted with the witnesses against ‘im;

to have compulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his d2fense,

6

statement was introduced, e.g., Dutton v. Evans, 39

U.S.L.W. 4015 (Dec. 15, 1970) (fellow prisoner testi-

fying to a co-conspirator’s statement). In these cases,

the Court was reluctant to find a violation of the right

of confrontation.

When, however, the admitted evidence was critical

and there was no chance for effective cross-examina-

tion, the Court has found such a violation. Roberts v.

Russell, 392 U.S. 293 (1968) ; Bruton v. United States,

391 U.S. 123 (1958); Barber v. Page, 390 U.S. 719

(1968); Brookhart v. Janis, 384 U.S. 1 (1966);

Douglas v. Alabama, 380 U.S. 415 (1965) ; Pointer v.

Texas, 380 U.S. 400 (1965).?

None of the foregoing cases raised the issue in the

instant case, namely whether the government can try

a defendant by file alone, without witnesses and with-

out any cross-examination.

The file was admitted under the federal business

and official records exceptions to the hearsay rule,

embodied in 28 U.S.C. §§1732-1733. The main reason

for these exceptions are the practical necessity or

convenience of using generally trustworthy documents,

the likelihood that the record maker will not remember

the event he recorded, and the inconvenience of pro-

ducing as witnesses, sometimes from areas distant

from the trial court, government employees who have

created numerous records in the course of conducting

7For well-reasoned analyses of the subject, see Comment, Con-

frontation and the Hearsay Rule, 75 Yale L.J. 1434 (1966) and

Note, Preserving the Right to Confrontation—A New Approach

to Hearsay Evidence in Criminal Trials, 113 U. Pa. L. Rev. 741

(1965). -

7

their daily government business. See Wong Wing Foo

v. McGrath, 196 F.2d 120, 123 (9th Cir. 1952) ; United

States v. Van Hook, 284 F.2d 489, 493 (7th Cir. 1960)

rev'd per curiam for resentencing, 365 U.S. 609

(1961).

It is clear that the government and the courts would

be inconvenienced if the right of confrontation re-

quired the government to produce the original de-

clarant every time it wanted to have facts that are

recorded in a document qualifying for the hearsay

exception admitted in evidence, no matter how inci-

dental or undisputed the facts, how trustworthy and

probative the documents, or how difficult the task of

producing witnesses or alternative evidence.

On the other hand, it is equally clear that the

exceptions cannot be used indiscriminately. They can-

not be used in criminal trials to prove essential and

disputed points when witnesses are available. They

cannot be used to send people to prison solely on the

basis of government files. This case affords an oppor-

tunity to say so, and thereby begin to clarify this

troubled area of the law and resolve the growing

conflict and confusion in the lower courts.

The urgency of the situation is established not only

by the instant case, but by the increasing importance

of confrontation as a. test of due process in cases

turning on documentary evidence. Records created,

processed, computerized and stored in business and

official activity multiply. See, ¢.g., Westin, Privacy

and Freedom, passim (1967). Crime involving proof

of records proliferates and the forensic techniques for

8

using and interpreting them become steadily more

sophisticated. The conflict between the admission of

hearsay evidence under the business and official

records exceptions to the hearsay rule and a defend-

ant’s right of confrontation, of first impression in

this Court, signifies a growing problem area in the

lower courts, federal and state. Three examples from

each illustrate the point.

Federal court cases

(1) In United States v. Johns-Manville Corpora-

tion, 225 F. Supp. 61 (E.D. Pa. 1963), defendants in

a criminal antitrust case moved for a pretrial ruling

that §1732 was inapplicable in a criminal proceeding.

The trial court refused to render such a blanket

ruling, but stated that it agreed with the contention

of the defendants that not all documents covered by

§1732 are admissible in a criminal] trial. “[T]he trial

judge has the duty to determine whether such docu-

ments are constitutionally admissible under the Sixth

Amendment guarantee of confrontation” and “the

Government should produce the maker of any import-

ant record wherever possible, having in mind the

language of the federal courts on this subject and the

language of the Sixth Amendment.” (7d. at 63) (Em-

phasis supplied.)

(2) In McDaniel v. United States, 343 F.2d 785,

789 (5th Cir.), cert. dented, 382 U.S. 826 (1965), in an

appeal resulting from a conviction for violation of the

federal securities laws, the Fifth Circuit, although

rejecting the defendant’s particular claim, acknowl-

edged that not all documents covered by §1732 are

admissible in criminal trials.

(3) Defendants in prosecutions brought under the

Selective Service laws have challenged the admis-

sibility of their files in several instances. The leading

case is United States v. Van Hook, 284 F.2d 489 (7th

Cir. 1960), in which the defendant appealed in part

on the grounds that the written record of proceedings

at the induction center was hearsay and had been

improperly admitted. The Seventh Circuit rejected

his contention.*®

State court cases

(1) In State v. Tims, 9 Ohio St. 136, 224 N.E.2d

348. (1967), the Ohio Supreme Court reversed a con-

viction of rape because of the admission into evidence,

under Ohio’s business record exception, of a hospital

record to show the results of a physical examination

made of the victim. The prosecution had failed to

produce as a witness the physician who had examined

the victim and drawn up the record.

8It bears emphasis, however, that in the Van Hook case, unlike

the instant case, the prosecution also produced a Special Agent

of the Federal Bureau of Investigation, who had interviewed the

defendant at the induction center, to testify and establish the

elements of the crime. The written record was only secondary

evidence, the government having produced a witness who could

be cross-examined. See also La Porte v. United States, 300 F.2d

878 (9th Cir. 1962) (similar). In several other Selective Service

cases involving hearsay objections, it is not aj.parent frem the

opinion whether or not the file was secondary to a government

witness, ¢.g., Kemp v. United States, 415 F.2d 1185 (5th Cir.

1969), cert. denied, 397 U.S. 969 (1970) ; United States v. Holmes,

387 F.2d 781 (7th Cir. 1967), cert. denied, 391 U.S. 936 (1968);

Yaich v. United States, 283 F.2d 613 (9th Cir. 1960). In none of

these cases was the issue before the Court, trial by file alone,

10

The Court stated that:

“What may be an acceptable liberalizing of the

rules of evidence in civil cases is not necessarily

acceptable in a criminal prosecution. The dif-

ficulty of obtaining witnesses is not sufficient

grounds for liberalizing an exception to the hear-

say rule if the effect of such liberalization is to

deny an accused a fair trial. Expediency is the

reason for the Business Records as Evidence Act,

but expediency is not a sound ground upon which

a denial of a constitutional right may be based

. . . This right of confrontation includes the right

of cross-examination of the person who is the

actual witness against him. If applicable in a

criminal case, the Business Records as Evidence

Act denies him such right.” (Id. at 350-1).

(2) In Bennett v. State, 448 P.2d 253, 264 (Okla.

Cr. 1968), the Court of Criminal Appeals of Okla-

homa held that the trial court had properly excluded

hospital records relating to the psychiatric condition

of the defendant, at issue in a murder case, where the

defendant had attempted to introduce them without

supplying the doctor as a witness. The Court held

that admission of the records under the Oklahoma

official and business records exception to the hearsay

rule would have violated the State’s right to cross-

examination, reasoning that if a defendant has the

right to cross-examine witnesses against him, so does

the prosecution.

(3) In State v. Adrian, 51 Hawaii 125, 453 P.2d

221 (1969), the Supreme Court of Hawaii held that

the defendant, charged with embezzling from the hotel

where she worked, was denied her constitutional right

11

of confrontation when the trial court admitted letters

from hotel guests and their hotel receipts into evidence

against her when the guests themselves did not testify.

The court termed the production of the letters rather

than the witnesses, who lived on the mainland, an

‘‘egregious denial of due process.” (453 P.2d at 226.)

The instant case is strikingly similar to the three

state cases described above. In two, the prosecution,

and in one, the defense, tried to prove a critical point

by producing documents rather than witnesses. In

each, the court held the documents inadmissible.°®

*Further illustrating the confusior in the lower courts are

numerous other cases within the past several years in which the

admissibility of documentary evidence was challenged on con-

frontation grounds. Excluding cases involving the admissibility

of confessions or preliminary hearing testimony, which this Court

has ruled on recently, the objections were sustained in at least

two cases. United States v. Burruss, 418 F.2d 677 (4th Cir. 1969)

(police theft reports); Robison v. State, 430 P.2d 814, 817-18

(Okla. Cr. 1967) (medical records).

On the other hand, the confrontation objection has been over-

ruled in a number of cases, some of which confuse coni‘rontation

and hearsay questions and consider satisfaction of a documentary

exception to the hearsay rule sufficient to overcome either chal-

lenge. See, e.g., Hanley v. United States, 416 F.2d 1160, 1167-68

(5th Cir. 1969), cert. denied, 397 U.S. 910 (1970) (bank collec-

tion slips); Tomlin v. Beto, 377 F.2d 276 (5th Cir. 1967) (record

of prior convictions) ; People v. Gambos, 5 Cal. App.3d 187, 193-94

(1970) (evidence of purchase of car); People v. Bryan, 3 Cal.

App.3d 327, 345 (1970) (record of prior convictions); People v.

Fiddler, 102 Ill.App.2d 319, 243 N.E.2d 515 (1968) (certified copy

of death certificate) ; People v. Ziebell, 82 Il. App.2d 350, 227 N.E.

2d 127 (1967) (weight certificate) ; State v. O’Brien, 255 La. 704,

232 So.2d 484 (1970) (hospital records); People v. Hislope, 13

Mich.App. 63, 163 N.W.2d 675 (1968) (certified copy of driving

record) ; People v. Braswell, 12 Mich.App. 685, 163 N.W.2d 461

(1968) (certified statement from state police commissioner that no

record existed showing defendant licensed to carry a concealed

weapon) ; State v. Colvin, 19 Ohio St. 2d 86, 249 N.E.2d 784 (1969)

(certificate issued by secretary of state dental board to effect that

no record existed showing defendant licensed to practice den-

tistry); Richardson v. State, 482 S.W.2d 100 (Tex. Cr. App.

1968) (record of prior eenvictions).

12

If this Court were to articulate guidelines for con-

frontation in this case, it would facilitate rather than

complicate both trial court action and appellate review

in subsequent cases. It is reasonable to anticipate that

trial records will improve if prosecutors have a clear

responsibility not to make indiscriminate use of ex-

ceptions to the hearsay rule and not to try their cases

solely on the basis of government files.

Such guidelines are no less vital to the preservation

of constitutional rights than are comparable stand-

ards already laid down, e.g., that the prosecutor must

have some evidence of guilt, Thompson v. Louisville,

362 U.S. 199 (1960); that no reasonable doubt must

exist that error is harmless, Chapman v. California,

386 U.S. 18 (1967) ; that a search must be reasonable

to be valid, Mapp v. Ohio, 367 U.S. 643 (1961) ; that

a “contract” must exist before it can be impaired,

Indiana ex rel. Anderson v. Brand, 303 U.S. 95

(1938) ; or that “property” must exist before a state

can exercise Congressional permission to tax it. R.F.C.

v. Beaver County, 328 U.S. 204 (1946). Each of the

foregoing standards requires constant adaptation to

each factual context. In the main, however, such

adaptation is the responsibility of the lower courts.

Over twenty-five years have elapsed since this Court

undertook a careful analysis of the business records

exception to the hearsay rule, and that analysis con-

cerned its application in a civil case. Palmer v. Hoff-

man, 318 U.S. 109, 111-116 (1943). The Court upheld

the exclusion of a record and refused to open “wide

the door to avoidance of cross-examination.” Id. at

13

114, Since then, documentary evidence has become

increasingly important, even in criminal prosecutions.

This Court must set a standard for the veasonable use

of such records in criminal cases, Otherwise, records

will be heedlessly used without regard to the right of

confrontation and due process of law; in increasing

numbers, defendants will be indiscriminately tried by

file alone.

Il THIS CASE AFFORDS AN OPPORTUNITY TO RULE THAT

THE GOVERNMENT MAY NOT OFFER RECORDS AS ITS

SOLE PROOF OF AN ESSENTIAL AND DISPUTED ELE-

MENT OF A CRIME WHEN WITNESSES WHO OBSERVED

THE RECORDED EVENTS ARE ABLE TO TESTIFY AND BE

CROSS-EXAMINED.

The “paradigm evil the Confrontation Clause was

aimed at” was “trial by affidavit.” Dutton v. Evans,

39 U.S.L.W. 4015, 4021 (1970) (Harlan, J., coneur-

ring) ; California v. Green, 399 U.S. 149, ........ (1970).

In the instant case the prosecution did not even try by

affidavit, for the documents in Lloyd’s Selective Ser-

vice file were not even sworn. The unsworn, uncross-

examined document was critical, and it constituted

the prosecution’s entire case.

A defendant cannot be convicted of a crime when

there is no evidence of guilt at all. Thompson v. Louis-

ville, 362 U.S. 199 (1960). It ought to be equally ob-

vious that a defendant cannot be convicted of a crime

solely on the basis of hearsay from a declarant who is

neither confronted, cross-examined, nor even sworn.

In such a case, “‘A reliable evidentiary basis is totally

lacking.” California v. Green, 399 U.S. 149, ...... n. 15

(1970).

14

The government cannot move against a person ad-

ministratively without giving him the right to cross-

examine the witnesses on an essential question of

intent, Reilly v. Pinkus, 338 U.S. 269 (1949) (mail

fraud order), and it ought not to be able to move

against him criminally without allowing him to con-

front and cross-examine the witnesses against him on

the same type of issue.

The Court has recently stated that “a denial of

cross-examination without waiver . .. would be consti-

tutional error of the first magnitude and no amount

of showing of want of prejudice would cure it.” Smith

v. Illinots, 390 U.S. 129, 181 (1968), quoting Brook-

hart v. Janis, 384 U.S. 1, 3 (1966).

Even if a showing of prejudice were necessary, it

is easily made: Lloyd was convicted of a knowing

and wilful violation of the law upon the cold language

of a printed form. (Government’s Exhibit 1.) The

recitals of the forms were printed long before the

event. The attesting officer merely had to insert

Lloyd’s name and fill in a few blanks. The form itself

has no perceptions. It cannot reveal whether Lloyd

or any other potential inductee knew what he was

doing, or whether instead he was confused, incompe-

tent, or even insane,

On the other hand, the inducting officer, and more

particularly, the Special Agent of the FBI who inter-

views men who refuse to step forward at the induction

center, can present testimonial evidence concerning

their perceptions of a defendant’s state of mind and

the event. In the instant case, counsel for Lloyd would

15

have had the opportunity to demonstrate, upon cross-

examination, that Lloyd was ignorant, that he did not

understand what he was doing, and that he was, in a

confused way, merely trying to assert his right to his

statutory exemption as a conscientious objector.’

Testimony favorable to Lloyd elicited through

effective cross-examination of government witnesses

would have been far more telling than Lloyd’s own

testimony was. See People v. Carmichael, 198 Cal. 534,

547-548, 246 P. 62, 67-8 (1926) (prejudicial error

since the defendant’s testimony was not nearly so

effective or probative on a key point of his defense

as that potentially available from an impartiai third-

party witness whom he was not allowed to question).

Finally, as a practical matter, the government’s

method of proof forced Lloyd to relinquish his Fifth

Amendment privilege against self-incrimination in

order to get in any testimony probative of the issue

of criminal intent. See Dutton v. Evans, 39 U.S.L.W.

at 4023 n.2 (Marshall, J., dissenting).™ )

10See Appendix A.

11It bears reminding that ours is an accusatory system. Lloyd

was not required to testify as he did, and requiring defendants

in similar cases to testiiy would reverse the usual presumption

of innocence and place the burden of proof on them.

Similarly, Lloyd was not required to subpoena the inducting

officer or the Special Agent of the FBI. Ordinarily, in our Sys-

tem, the prosecution must “shoulder the entire load.” Tehan v.

Shott, 382 U.S. 406, 415 (1966). “[T]he duty to confront a crimi-

nal defendant with the witnesses against him falls upon the

state... .” Dutton v. Evans, 39 U.S.L.W. at 4023 n.4 (Marshall,

J., dissenting). It is not incumbent upon defense counsel to go

to the cost and trouble of bringing in the government’s witnesses,

accepting their testimony as his own, and taking the risk of its

being adverse to his client or impeachable by the prose-ttion. See

Lopez v. United States, 373 U.S. 427, 445 (1963) (Warren, C.J.,

concurring).

16

The notion that boilerplate forms suffice to estab-

lish specific criminal intent shocks the conscience.

Unless it is promptly dispelled, its indulgence by the

courts below will erode the right of confrontation and

will encourage the kind of prosecutorial laxity,

aggravated by temerity, illustrated by this case.

The rule that we suggest would meet the require-

ments of confrontation and due process, without im-

pairing any legitimate government interest. It is a

narrow and workable one: The government may not

offer records as its sole proof of an essential and dis-

puted element of a crime when witnesses who observed

the recorded events are able to testify and be cross-

examined.

Ill. THIS CASE AFFORDS AN OPPORTUNITY TO ARTICULATE

MINIMUM STANDARDS OF PROOF AND EVIDENCE IN A

FEDERAL CRIMINAL CASE, NAMELY THAT THE FEDERAL

STATUTORY EXCEPTIONS TO THE HEARSAY RULE WERE

NOT INTENDED TO AND DO NOT PERMIT THE GOVERN-

MENT TO CONVICT AND IMPRISON A FEDERAL DEFEND-

ANT WITHOUT PRESENTING ANY OTHER EVIDENCE OF

HIS CRIME BUT A GOVERNMENT FILE.

Articulation of the rule suggested above would

reconcile 28 U.S.C. §1732-1733 with two vital prin-

ciples of federal criminal law and procedure:

1. That the federal courts have the responsibility

to supervise the administration of criminal justice in

the federal courts, and a duty to establish and main-

tain fair evidentiary and procedural standards not

limited to the minimum guarantees of due process.

McNabb v. United States, 318 U.S. 332, 340-41 (1943) ;

17

Rea v. United States, 350 U.S. 214 (1956); Thomas

v. United States, 368 F.2d 941, 947 (5th Cir. 1966)

(collecting authorities).

2. That in criminal cases there is a clear prefer-

ence for first-hand oral testimony. This preference is

illustrated not only by the Sixth Amendment and the

hearsay rule, but by the language of Federal Rule of

Criminal Procedure 26.7?

The purpose of the official and business records

provisions, 28 U.S.C. §§1732-1733,'* was to facilitate

proof of record evidence and eliminate unnecessary

impediments to efficient litigation, not to obviate the

duty of prosecutors to come forward with first-hand

oral testimony, subject to cross-examination, to prove

critical elements in criminal cases.

12“Tn all trials the testimony of witnesses shall be taken orally

in open court, unless otherwise provided by an act of Congvess

or by these rules. The admissibility of evidence and the coimpe-

tency and privileges of witnesses shall be governed, except when

an act of Congress or these rules otherwise provide, by the prin-

ciples of the common law as they may be interpreted by the

courts of the United States in the light of reason and experience.”

18The sections, in pertinent part, read:

§1732 (a) In any court of the United States and in any

court established by Act of Congress, any writing or record,

whether in the form of an entry in a book or otherwise,

made as a memorandum or record of any act, transaction,

occurrence, or event, shall be admissible as evidence of such

act, transaction, occurrence, or event, if made in regular

course of any business, and if it was the regular course of

such business to make such memorandum or record at the

time of such act, trausaction, occurrence, or event or within

a reasonable time thereafter.

§1733 (a) Books or records of account or minutes of any

department or agency of the United States shall be admis-

sible to prove the act, transaction or occurrence as a memo-

randum of which the same were made or kept.

18

Furthermore, none of the major reasons for having

the federal business and official records exceptions to

the hearsay rule, as stated by the federal courts, are

presented in this case. First, the records in Lloyd’s

Selective Service file were not trustworthy or of

significant probative value, because they were ambig-

uous concerning the disputed element of the charge—

Lloyd’s criminal intent. Second, only a short time had

elapsed between the event and the trial so that the

memories of the witnesses from the induction center,

especially the Special Agent of the FBI who inter-

viewed Lloyd, would not be stale and, in any event,

could be easily refreshed from memoranda they made.

Finally, calling such witnesses would have produced

only minor inconvenience and would have been pro-

tective of a fair trial. The induction center was within

the District,’ there was no indication that the wit-

nesses were unavailable, and the governmert custom-

arily calls their counterparts in many other prosecu-

tions under the Selective Service laws.

In Greene v. McElroy, 360 U.S. 474, 508 (1959),

this Court stated its concern that “traditional forms

of fair procedure not be restricted by implication or

without the most explicit action by the Nation’s law-

makers, even in areas where it is possible that the

Constitution presents no inhibition.” See also Peters

v. Hobby, 349 U.S. 331 (1955).

14See list and citations on page 7 of this Brief.

15Government’s Exhibit 1.

19

Congress has not through the hearsay exceptions

expressed any purpose to allow trial by file. Those

exceptions have the narrower purpose of facilitating

proof of collateral issues. They should not by impli-

cation be expanded to allow people to be imprisoned

on the basis of a printed form.

In short, 28 U.S.C. §§1732-1733 do not, and never

were intended to, override fair evidentiary and pro-

cedural standards and the preference the law has for

first-hand oral testimony, subject to cross-examination,

in criminal cases. This Court should openly recognize

that fact.

oe

CONCLUSION

Petitioner’s trial by file violated his right of con-

frontation and denied him due process. It was inimical

to principles of fair evidence and procedure. This

case affords the Court an opportunity to articulate

rules which will preclude such indiscriminate use of

the hearsay exceptions. Denial of the writ, now that

trial by file alone has been sustained by the Court of

Appeals, will give prosecutors a license to proceed with-

out producing witnesses, so long as they can find an

applicable exception to the hearsay rule.

The petition for a writ of certiorari should be

granted and the judgment of the Court of Appeals

reversed. A rational determination of the issues in

20

this case is essential to ensure the responsible ad-

ministration of criminal justice.

Dated, January 7, 1971.

Respectfully submitted,

Faut HAbvontiK,

CHARLEs C. Marson,

Staff Counsel, American Civil Liberties

Union of Northern California,

MICHAEL TRAYNOR,

LEE F. BENTON,

By Lee F. Benton,

Attorneys for Amicus Curiae

American Civil Liberties Union

of Northern Caltfornia.

(Appendix A Follows)

" a Date

Appendix A

It is settled that specific intent is an element of the

crime. As the Court of Appeals for the Eighth Circuit

stated in Smith v. United States, 391 F.2d 543, 545

(8th Cir.), cert. denied, 393 U.S. 874 (1968) :

‘“‘The parties are in agreement that the criminal

intent is an essential element of the offense pro-

scribed by Section 462(a). This principle was

firmly settled in United States v. Hoffman, 137

F.2d 416, 419 (2d Cir. 1943) and has been con-

sistently recognized and applied. See, e.g., Silver-

man v. United States, 220 F.2d 36, 39-40 (8th

Cir. 1955); Graves v. United States, 252 F.2d

878, 881-882 (9th Cir. 1958) ; Whitney v. United

States, 328 F.2d 888, 889 (5th Cir. 1964).”

It is also settled that the prosecution has the burden

of proof on each element of the offense. United States

v. Lybrand, 279 F.Supp. 74, 81-3 (E.D.N.Y. 1967).

As the Court of Appeals for the Third Circuit

stated in United States v. Rabb, 394 F.2d 230, 233

(3d Cir. 1968) (reversal for error in instructions to

jury on criminal intent):

“The Government must establish knowledge of the

legal obligation and voluntary action or omission

with the purpose of failing to perform such

obligation.” :

The Rabb court also pointed out that the term

“wilful” cannot cover carelessness or negligence, how-

ever inexcusable. (Id. at 232-3)

The case most similar to the instant one is United

States v. Sobczak, 264 F.Supp. 752 (N.D. Ga. 1966).

The district court judge, in a bench trial, acquitted

the defendant, in part because the evidence, in his

view, did not establish a wilful violation.

The defendant, being tried for the same offense as

Lloyd, was also a Jehovah’s Witness. His local board

failed to send him a Form 150 (which Lloyd’s board

did send him) after he had signed the statement of

conscientious objection upon registration (which Lloyd

also signed). After it had classified him I-A, he called

and told the clerk that he was a Jehovah’s Witness.

The judge labelled this phone call a second claim for

exemption on his part. At the induction center, he

(like Lloyd) also informed the authorities of his

reasons for refusing to step forward (his third claim,

the judge held). Only upon indictment (like Lloyd)

did he see an attorney and complete the Form 150.

Under these circumstances, the judge found that he

did not have the requisite criminal intent.

See also United States v. Kurila, 401 F.2d 448 (3d.

Cir. 1968) (judgment vacated and case remanded for

more evidence on several points, one of which was

intent); Kidd v. United States, 386 F.2d 422, 423

(10th Cir. 1967)) (judge below had correctly instruc-

ted jury that the defendant’s claim that he believed

he was entitled to a minister’s classification went to

the issue of intent and should be considered in de-

termining whether his failure was “knowing and

wilful’).

heen

7} 2