# Amicus Curiae Brief — Lloyd v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1096%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1971
- **Citation:** 403 U.S. 911

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1096%3A2. Public record. Not legal advice.