Brief for Respondent — Lego v. Twomey

Supreme Court brief1972

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INDEX

PaGE:

Questions Presented .............. estes sak ey ew we os 1

Statement of the Case ...... ooures goo senses aseees 2

Summary of Argument ............. beeeeeeee eee ed, 3

Argument:

I. The Standard Of Proof Beyond A Reasonable’

Doubt. Should Not Be Constitutionally Re-

quired When State Courts Determine The Ad-

_missibility Of Confessions ...................

A. There Is No Justification In Precedent Or

Policy For Requiring The Prosecution To

-. Prove Beyond A Reasonable Doubt Both

¥ The Guilt Of The Defendant And The

Constitutional Propriety Of Each Item Of

Evidence Tending To Establish Guilt ....

Pp. Nothing In The Specifie Nature Of Con-

fessions Requires That ‘The: Reasonable

Doubt Standard Apply To.The Question

Of Admitting Confessions Into Evidence

@.

C. Jackson v. Denno Does Not Require The

Application Of A Reasonable Doubt Stand-

ard To The Determination Of The Admissi-

bility Of A Confession ..................

TT. There Is No Constitutional Requirement That

The Defendant Receive A Jury Trial On The

Tssue Of The Voluntariness Of His Confession

Conclusion ....... 0.0... eee eee eee ccc eee ec coo.

14

21

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TaBLE oF AUTHORITIES

' Cases:

Ballew v. State, 249 Ark. —, 495 S.W. 577 (1970) 15

Boles ¥ Stevenson, 379. U.S. 43 (1964) 220000000. 21

Booze v: State, 390 P. 2d 261 (Okla. 1964) 2.00.00... [2

Boykin v. Alabama, 395 US. 238 (1969) .......0., 21

Brady v. United States, 397 U.S. 742 (1970) ..000... 24

Bruton v. United States, 391 U.S. 123°(1968) ..7... 97

Brown v. Walker, 161 U.S: 991 (1896) .....00000.. 17

Bumper v. North Carolina, 391 U.S. 543 (1968) .... 10

Caruthers v. State-A9 Tenn. 21, 406 S.W. 2d 159

(1966) ee ee ee ee 10

Chapman vy. California, 386.U.S. 18 (1967) 1.0... , 6, 13

Clifton v. United States, 371 F. 2d 354 (D.C. Cir.

Collins v. Sullivan, 319 F. Supp. 184 (Ore. 1970) _.. 18

Commonwealth vy. Mayhew, 297 Ky. 172, 178 S.W.

2d 928 (1943) oe 16

Commonwealth v. Polian, 288 Mass. 494, 193 N.E. 68

(1934) el, OV Geeneeewasn ens tae decuus 9

Commonwealth vy. White, 353 Mass. 409, 232 N.E. 2d

335 (1967) .. 2... Soh tn i= oo guceadys uur sens soses "15

Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141,

239 A. 2d 426 (1968) 2... eine 7, 15

Davis v. United States, 160 U.S. 469 (1895) ...0000.. 7

DeStefano v. Woods, 392 US. 631 (1968) ........., 26 -

Dodel v. State, 232 So. 2nd 235 (Fla’ 1970) 2.00. 0.. 16

Duncan v. Louisiana, 391 U.S. 145 (1968) ........., 15, 25

Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965) 15

: iii.

Fernandez v. Beto, 281 F. Supp. 207 (NLD. Texas ;

VOCS) cca eg ouucrsesenseusers Dns qwaesieesBaeeses 16

Fullbright v. United States, 392 F. 2d 432 (10th Cir. 3

1968) cert. denied 393 U.S. 830 ..............005- 11

Gardner v. State, 10 Md. App. 2338, 269 A. 2d 186

COTO) ecan es wes here ee eee eensee Con caeegsans 19

Gdbert v. California, 388 U.S., 263 (1967) ... atiet 12

’ Harrington v. Califonia, 395 U.S. 250 (1969) Soe ags 13

| Harris v. New York, 401 U.S, 222 (1971) sepheeasees 7

Holland v. United States, 348 U.S. 121 (1954) ...... 7

In re Winship, 397 U.S. 358 (1970) ...0.......020.. 6, 7

Irby v. United States, 314 F. 2d 253 D. C. Cir. 1968) 10

Jackson v. Denno, 378 U.S. 368 (1964) a pune nes

4,9, 8, 21, 22, 23, 25, 26, 27

- Jarabo v. U nited States, 158 F. 9d 509 (1st Cir. 1946) 11

Johnson v. Thite d States, 426 F. 2d 651 (D.C. Cir...

1970) ...... Goan dey Sane peasy seer eeeceeeeeanses: 24, 25

Lee v. State, 936 Miss. 716, 112 So. 2d 254 (1959): 16

Leland v. Oregon, 343 U.S. 790 (1952) ......0.200. 7, 18

Lopez v. State, 384 S.W. 2d 345 (Texas Crim. 1964) 16

McGautha v. California, 402 U.S. 188 (1971) ...... 24, 25

McKee v. State, 198 Ind. 590, 154 N.E. 372: (1926) .. 9

McMann v. Richardson, 397 U.S. 759 (1970) ........ 24

Manuel vy. United States, 355 F. 2d 344 (5th Cir.

MOOG) acca etyaes cue er vensuaeese ses ts te apews oes 11

Miranda v. Arizona, 384 U.S. 436 (1966) .......... 14

E. J. Monts v. Henderson, 409 #. 2d 17 (6th Cir. |

A) a

Monts v. State, 218 Tenn. 31, 400 S.W. 2d 722 (1966) 15

St PR TORN

F IV.

Moore ‘y. State, 244 Ark. 1197, 499 S.W. 2d 122,

(1968) 2. Wott ee ieeeeeeeseecct. 9

Moser v. United States, 381 F. % 363 (9th Cir. 1967) 16

Mullins v.. United States, 382 PF. 2d .258 (4th Cir.

1967) SA Fete bedatewas oseu.! — 17

Nardone v. United States, 308 U.S. 338 (1939) .... 17

Nolan v. United’ States, 493. F, 2d 1031 (10th Cir,

1970) oe ee ee ee 1

North Carolina vy. Alford, 400 U.S. 25 (1970) 2.0, 24

Parker v. North Carolina, 397 U.S. 790 (1970) ...., 4

Pea v. United States, 397 F. 2a 697 (D.C, Cir.

1967) 1.0... Ri SAR e Maeda seen eraiegaatc, 7... 16, 17

| People v. Albertson. 93 Cal. 2d 550, 145 P. 24 7

WEE), eee Rireey auccne ..) ta Mina neue tere... . 9

People. y.. Berrios, 28 N.Y. 4 361, 270 N.E. 2d 709

IED Weenie Sanaciets Seen taseurast. 1

People v. Caruso, 68 Cal. 2d 183, 436 P. 2d 336 (1968) 12 -

People v. F erguson, 376 Mich. 90, 135 N.W. 2q O37

(1965) (aemeekent an ae 1

People v. Golson, 32 Ml. 2d 398, 207° N.E. 2d 68

(1965) cert. denied 384 US.1023 15

People.v. Huntley, 15 N.Y. 2d 72, 204 N.E. 2q 179

(1965) 2... os 16

People vy. Johnson, 45 Ill. 2d 38, 257 N.E. 2d 3 (1970) 12

People v. Lego, 32 Ill. 24 76, 203 NB. 94 875 (1965) 3

People v. Ludkowitz, 266 N.Y. 223, 194 NE. 688

(1935) OSs ee xen mies edaa meen «cox 9

Vv.

‘People v. «Luna, 37 Til. 2d 299, 226 NE. 2d 586

(1967) oo... eee. ee er 23

People v. Morales, 263 Cal.’ App. “2d. 368, 69 Cal. °

Rptr. 402 (1968) .......... 0. eee eee ee eee. 10

People vy. Nelson, 40 Il. 2d 378, 238 N.E. 2d 378

GE <) feesencoateues 12

People v. -Rodriguez, 10 Cal. App. 3d 18, 88 Cal.

Rptr. 789 (1970) .............02. eevdatuvecoetas 12

People v. Stroud, 273 Cal. App. 2d 570, 78 Cal.

Rptr.. 270 (1969) Pr PeeeLOeseeneeeeetemnenenegeva 10

People xv. Wright, 42 Tl. 2d 457, 248 N.E. 2d 78

CLs) 11

Pierce v. United States, 252 U.S. 239 (1920) ......, . 24

Ragland vy. State,’ 238 Ala. 587, 192 So. 498 (1939) 9

Ralph v. Warden, 438 F. 24 786 (4th Cir, 1970) .... 17

Rogers v. Richmond, 365 U.S. 534 (1965) ........ .. 18

Scott v. State, 107 Ohio 475, 141 N.E. 19 (1923)... 9

Simmons v. United States, 390 U.S. 377 (1968) ....° 23

Sims v. Georgia, 389 US. 404 (1967) ............ 14, 21

Smith v. State,'249 N.E. 2d 493 (Ind. 1969) ........ 16

Speiser v. Randall, 357 U.S. 513 (1958) ........ coe. «6

State v. Brewton, 238 Ore. 590, 395 P. 2d 874 (1964) 15

State v. Brewton, 238 Ore. 590, 344 F.2d 744 (1959)

State v. Clybourn, 273 N.C. 284, 159 ‘S.E. 2d: 868

(1908) secsdeeeacns on eeeendanseees ee vewuauoee a 16

State v. Crank, 105 Utah 332, 142 P. 2d 178 (1943) 15

State v. Davis, 73 Wash. 2d 271, 488 P. 2d 185

(1968) ....... eee Te ee eee eee ~: 15

_ State v. Dillon, 93 Idaho 698, 471 P. 2d 553° (1970) .. 15

Vi.

State v. Elias, 205 Minn. 156, 285 N.W. 475 (1939)

State v. Freese, 166 N.W. 2d 785 (Iowa 1969) ....

State vy. Hall, 1 Ohio App. 2d 297, 204 N.E. 2d 557

(1964). Pawdninawen eeeeee st Snatcnc..

State v. Holt, 415 S.W. 2d 761 (Mo. 1967) e,

State y. Keiser, 274 Minn. 265, 143 N.W. 2d 75 (1966)

.

State v. Longmore, 178 ‘Neb. 509, 139 N.W. 24 66

(1965) eee, a |

i

State y. Merrill, 82 S.D. 609, 152-N.W. 2d 349 (1967) ©

State v. Milow, 199 Kan. 576, 433 P: 2a 538 (1967) ..

State v. Monich, 74 N.J. 152, 64 A. 1016 (1906) ....

State vy, Nolan, 423 S.W. 2d 815 (Mo. 1968) ........

State v. Pokini, 45 Haw. 295, 367 P. 2d 499 (1961)

» State v. Pulliam, 87 Ariz. 216, 349 P. 24 781 (1960)

15

State v. Yough, 49 N.J. 587, 231 A. 2d 598 (1965) 16, 17

State ex rel. Goodchild v. Burke, 27 Wis. 2q 244,° 133

N.W. 2d 753 ( 1965) cert. denied 384 ‘U.S. 1017

IPED) sag se odenidatsbanwedesteaesaaiat,..... .

16

Stovall vy, Denno, 388 U.S, 293 (1967) 12, 26

1956) ee, base eudeaae. teste aa stants ea ey .

Vil.

: Tucker v. State, 82 Nev. 127, 412 P. 2q 970 (1966) .- 10

United States v: Cleaver, 402 F, 2d 148 am Cir.

BOR) ses aeeex eves ean tina gacwaiceiae.¢ia.,. 10

United States Vv. “Eliott, 437 F. 24° 1953. (Sth, Cir |

BOE): ORivenesegeruae oor ibang ix dewerteancd.... 10

United States y. Feinberg, 140 F. 2d 592 (2nd Cir

1944), cert. denied 322 U.S. 726... Wertesiecey 4

United States y. Ferrone, 438 F. 2d 381 (3rd Ciy.

BADOL). Geen Geek elie ge wnyeicawsenwereenc.. Oeewes 11

United States Vv. Halbert, 436 F. 1226 (9th Cir...

SPO) Sun aediad reas nanshns Geneeevaemaamdames «., 14

United States vy. Inman, do2 F. 2d 954 (4th Cir.

1963). oe: (Gee See oe eee ees veal, 17

United States vy. “Morin, 378 F. 2d 472 (ond Cir. 1967) 11

United States vy. O’Leary, 201. F. Supp. 926 (E.D.

Tenn. 1961) ........... geeeas seeewue ‘eeeneudas .. Il

United States vy. Panepinto, 430 F. ‘2d 613 (3rd Cir.

TOD) sian saambinsamuswdisvavseuneowesecds..c., 26

United States v. Poppitt, 227 F. Supp. 73 (Del. 1964) 11

United States v. Sacco, 436 F: 2d 780 (2nd Cir. 1971) 11

United States -v. Schipani, ai F. Supp. 43 fies

Bg TOON) acc teang vest neliraanceeac.... , 18, 20

United States v, Thompson, 421 F. 2d 373 (Sth Cir,

Ed) eee 10 .

United States vy. Wade, 388 U.S. 218 (1967) Pe eeseas 12.

United States ex rel. Heath v. Rundle, 298 F. Supp. :

1207 (EAD. Pa. 1969) 2. 15

United States ex rel, Lego v. mane 308 F ‘Supp. 38 |

_ Tll. wm! ee re re eee 3

1966) ee ee Ree eee Gee ees 16

SETS TE AE ALAR aia

viii. |

Watson v. United States, 249 F. 2d 106 (D.C. Cir.

TOR) pees socsenecase. rere er rer sear eneas ae

Williams vy. Florida, 399 U.S. 78 (1970)... 006.225. 25

Wilson v. United States, 218 F. 2d 754 (10th Cir.

P9G5) audgienseevercentus ts ee teoueen eyes: ll

STATUTE! : ,

Ilinois Revised Statutes, Ch, 38, See. 114-11 (d)-,.e.

) o

MISCELLANEOUS: .

3 Wigmore, Fvidence, § S61" (8rd Md. 1940) 0.200000. » 25

y) Wigmore, Evidence, § 2497 bese es sae ee eee nea a

Q Wigmore, Evidence, § 2560 2... ee cee eee eee 9d

* 3 Wigmore, Evidence, § S61 (Chadbourn Rev: 1970) 25

Illinois Pattern Instruetions—Criminal ONE suscep nes 27

IN THE - | ;

Supreme Court of the United States

— Ocroser Term, 1970

————__4.__

No: 70-5037

DON RICHARD LEGO,

Petitioner,

: VS.

JOIN TWOMREY, Warden, | | :

| | Respondent.

On Writ Of Certiorari To The United States

Court of Appeals For The Seventh Circuit

BRIEF FOR RESPONDEN T

| QUESTIONS PRESENTED

Whether a standard other than. proof beyond a reason-

able doubt may constitutionally be utilized by. a trial

court. making a determination. of the voluntariness of a

confession upon a motion to suppress.

Whether the defendant in a criminal case has a con-

s‘itutional right to have the voluntariness of his confes:

sion decided by the trial jury even though the question

of voluntariness has previously been reliably determined

by the trial court. | .

9

STATEMENT OF THE CASE

The petitioner was convicted of the offense .of armed

robbery after trial by a court and jury. The verdict was

returned on February 24, 1961 and the Circuit Court

fixed sentence at a penitentiary term of twenty-five to

fifty years.

Prior to trial, palitioner filed-a motion to suppress his

confession on the grounds that it was not voluntarily

made. (App. 23-24). The trial court held a full pre-trial

hearing on the issue of voluntariness. Allegations of

_ physical violence were made and rebutted by police offi-

cers.* At the end of the hearing the trial court con- —

cluded. that “F don’t believe the defendant’s testimony at

all that he was beaten up by the Police.” (App. 25).

Upon trial by the jury, the petitioner testified and at-

tacked the validity of his confession. .

Following conviction, petitioner appealed directly to

the Supreme Court of Illinois alleging error in the fail-

ure to conduct a competency hearing, in the determina-

tion on the merits of the issue of voluntariness, in the

*The petitioner discusses some of the details of the evi-

dence at the hearing, presumably to show that since the

facts were in dispute, the burden of proof might be signi-

ficant. (Petr’s Br. 7-8). To avoid confusion we note here

that the issue of voluntariness is not before this Court.

It is significant ‘that the voluntariness of the statement

has been previously litigated in .federal court and the

issue found against petitioner. See. United States ex rel.:

Lego v. Pate, (No. 66, C 129, United States District Court

for the Northern District of Illinois, Eastern Division) -

(unreported). We also note that, in light of the trial

* Judge’s assessment of the credibility of the defendant’s

contested evidence, it is doubtful that the burden of proof

is significant in this case.

3

determination of the issue of voluntariness in the absence

of allegedly material witnesses and the comments of the

trial court. The Supreme Court reached the issues on >

their merits and affirmed the Judgment. People v. Lego,

32 Ill. 2d 76, 2038 N.E. 2d 875 (1965). Neither of the

issues presented to this Court were decided on petition-

er’s direct appeal to the Supreme Court of Illinois. After

afhrmance, petitioner unsuccessfully sought state post-

conviction relief but did not appeal the denials of relief.

On April 8, 1968, petitioner sought relief by filing a

Petition for a Writ of Habeas Corpus in the. United

States District Court for the Northern District of Illi-

nois. Eventually the District Court considered the merits

of petitioner’s claims and ruled against them. United —

States ex rel. Lego v; Pate, 308. F. Supp. 38 (N.D. IIl.

1970). On October 8, 1970, the Court of Appeals affirmed

the District Court, adopting the reasons given in Judge

Will’s opinion. On March - 29, 1971 this Court granted

certiorari.

SUMMARY OF ARGUMENT

The standard of proof. of guilt beyond a reasonable

doubt is designed to protect: the innocent. The standard

is applied to the evidence as a whole to determine

whether the elements of the crime are proved beyond a

reasonable doubt. The standard does not apply to the

proof of each individual evidentiary fact nor does it

govern the question of admissibility of evidence. The

contention that the prosecution should be required to

establish the constitutional validity of its evidence by

proof beyond a reasonable doubt is inconsistent with ex-

isting precedent which, in many instances, places the.

4

burden of proof upon defendant to establish his right to

exclusion of evidence. More unportantly, the exclusionary

’

.

rules are not primarily intended as a safeguard against

the erroneous conviction of the innocent. The application

of the reasonable doubt standard to the exclusionary rules.

Will not serve the fundamental purposes underlying that

standard. Therefore, ‘there is no Justification in the‘laneu-

age or the poliey of the reasonable doubt rule that. re-

quires its applieation. to motions to suppress. |

The particular nature of confessions does not require

an exception to the general rule’ that questions of ad-

missibility of evidence are not to be judged by the rea-

sonable doubt standard. The interests protected by other

exclusionary rules of evidence relating to search and

seizure and eyewitness testimony are as important: as

those served by the voluntary confessions rule. More--

over, there is no evidence that confessions are intrinsi-

uly more damaging than other forms of evidence and

good reason to suspect they are not.

_ The criminal, defendant in Tllinois is notin a tacti-

cally less desirable position than the defendant in Jack-

son v. Denno, 378 U.S. 368 (1964). The Illinois defendant

is guaranteed -a separate hearing on the issue of volun-

tariness in which the issue is considered isolated from

the question of his guilt and, if he prevails, the confes-

sion is never heard by the jury. This is far different

from the situation in Jackson where the effect of the pro-

cedure was to deny defendants a separate hearing on the

issue of voluntariness, Even if the Tllinois procedure

presents difficulties for defendants the relative tactical

benefits of two differing procedures is not an appropriate

criterion for. deciding whether either is in conformity

with the Constitution. Finally, the defendant in Illinois

is not subjected to an unconstitutionally hard choice in

she - ad

catnthiniitteens eG ne ode? Saline

D

deciding whetlier to testify at trial concerning a confes-

sion admitted after ‘a court finding of voluntariness, [His

choice is less difficult. to make than the decision faced

under the pracedures. approved by this Court with re-

spect to pleas of guilty, discovery against the defense,

and sentencing in capital cases,

At common law ‘the jury did not decide questions of

admissibility of ‘evidence and the Constitution does not

require more of the-States than the granting of a com-

mon law jury trial. Consequently, the Constitution does

not. require that a jury trial be held. on the issue of the

admissibility of a confession. More importantly, it is a

basic tenet of Jackson v. Denno that a jury cannot prop--

erly consider the issue of voluntariness and a jury ought.

not to be asked to decide a question it is incapable of

deciding, : .

DLS ALM EI I Saab ty He mae

6

ARGUMENT

a

THE STANDARD OF PROOF BEYOND A REASON.

‘ABLE DOUBT SHOULD NOT BE CONSTITUTION.

ALLY REQUIRED WHEN STATE COURTS DETER.

MINE THE ADMISSIBILITY OF CONFESSIONS.

A. ;

There Is No J ustification In Precedent Or Policy For

Requiring The Prosecution To Prove Beyond A Reason-

able Doubt Both The Guilt Of The Def endant And The

Constitutional Propriety Of Each*Jtem Of Evidence

Tending To Establish Guilt.

The requirement of proof of guilt beyond a reasonable

doubt is essentially a safeguard against convicting the

innocent.’ “It is the prime instrument for reducing the

risk of convictions resting on factual error.” Jn re Win:

ship, 397 USS. 398, 363 (1970). The standard arises out

of concern over potential errer in factfinding on questions

of guilt [Speiser v. Randall, 357 U.S. 513, 525-26 (1958) ]

and is reflective of: the presumption of innocence [Coffin

v. United States, 156 U.S. 432, 453 (1895)].

The reasonable doubt standard requires proof of “every.

element of the offense. charged beyond a_ reasonable

l. It is worth noting that petitioner seems to agree,

He relies in his first argument on In Re Winship, 397

U.S. 358 (1970) and Chapman v. California, 386 U.S. 18

(1967) and says of these two cases: “Essentially, they

come down to the proposition that ‘we do not view the

social disutility of convicting an innocent man as equi-

valent to the disutility of acquitting someone who is

guilty’ 397 U.S. at 372” (Petr’s Br. 11).

7,

doubt. .”’ Holland v. United States, 348 U.S. 121, 138

(1954). “The question of proof beyerfd a reasonable doube

as to all the elements or facts necessary to constitute the

crime (In re Winship, 397 U.S. at 366) is to be considered

in light of all the evidence in the éase. Davi ws v. United

States, 160 U.S. 469, 484 (1895), See Leland v. - Oregon,

343 U.S. 790, 800 (1952).

The petitioner misreads the reasonable doubt rule and

argues tlfat it requires that all of the facts .proved by

the prosecution be established beyond a reasonable doubt.

This is inconsistent with the settled rule that the “mea-

sure of reasonable doubt need not be applied. to the speci-

fic detailed’ facts, but only to the whole issue.” 2 Wig-

more, Evidence, § 2497, P: 324 (3rd. Ed. 1940); -Comnion-

wealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A. 2d

426 (1968). Indeed, most of the facts concerning the ac-

quisition and admissibility of evidence are not even rele-

vant to the question of guilt and are not ordinarily pres-

ented to the trier of fact.

In United States v. Schipani, 289 F. Supp. 43, 57

(E.D. N.Y. 1968), the principal case cited by petitioner,

the court said that the question was one of choosing a

proper standard among two alternatives: (a) proof be-

yond a reasonable doubt by evidence properly: admitted

- in the trial or (b) proof beyond a reasonable doubt by

legally obtained evidence. We do not pause to discuss

which choice is correct because both alternatives are in-

appropriate.

Neither the question of proper admission of evidence

nor the question of its acquisition are related to the

operation of the reasonable doubt rule applied by a

trier of fact. The trier of fact must decide whether on

all the evidence before it, the defendant has been proven

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suilty beyond a reasonable doubt. It is not the concern

of the trier of fact whether the evidence before it is

properly admitted. Doubt has been expressed as to whe-

ther a jury ean reasonably he expected to consider ques-

tions as to the admissibility of evidence it has heard.?

See Jackson vy. Denno, 378 U.S. 368, 383 ( 1964).

The basic contention of the petitioner that the prosecu- -

tion must prove beyond a reasonable doubt that its évi-

dence was lawfully acquired’ is faulty for another reason.

The exclusionary rules are designed primarily to deter

misconduct by law officers. -The exclusionary: rules are ,

not designed to protect the innocent so much as they are

- Intended to influence official practices. The. purpose served —

hy the reasonable doubt standard is protection of the in-

2. This does not mean that a trier of fact may not

also be asked to decide questions of admissibility. But

even if this practice is adopted it is clear that the ques-

tion of admissibility is different from. the question of

guilt. And at least part of. the teaching of Jackson v.

Denno, 378 U.S. 368 (1964) is that these questions must

be separately considered.

3. The petitioner’s position on this point is not com-

pletely manifest since he seems first to rely on a reason-

able doubt rule and then. shifts to the lesser standard of

clear and convincing evidence. He states:

“The Winship and Chapman decisions, in combina-

tion, require that the reasonable-doubt standard. be

applied to all preliminary factual determinations re-

garding prosecution evidence that has been allegedly

obtained hy unconstitutional means. For if a lesser

standard of proof is permitted at this juncture, the

constitutional assurance ean be undermined: by pre-

liminary determinations ‘on admissibility made on

proof which is less than clear and convineing.” |

(Petr’s Br. 12).

&

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CERNE: a “ATS SSRN Nias

9

se

nocent. The differing purposes served by the two rules

are consistently overlooked by petitioner. And it is clear

that as important as the purposes the exclusionary rules

may he thought to serve, they are not nearly so significant

as the pretection against an erroneous judgment of guilt.

— Cf. Harris v. New York, 401 U:8, 222 (1971). In. practical

terms it is difficult to see for ex: ample how the use of

illegally wiretapped conversations concerning disposition

of stolen jewels violates any safeguard “against convic-

tion of an innocent man.” (Petr’s Br. 14).

The existing precedent is inconsistent with petitioner’s

theories. Ordinarily the court will hear arguments

and take evidence, if necessary, before it rules on dis-

puted questions of evidence. But “the rule of reasonable

doubt has here no possible application » :’’? 9 Wigmore,

Ievidenee, § 2550, p. 503, n. 6 (3rd Ed. 1940). There are

isolated categories where such proof is required but even

these cases represent minority viewpoints.‘ There are

4. Though some’ courts may require that the validity

of dving declarations be established beyond a reasonable’

doubt, most courts adopt lesser standards. See. Common- _

we alth v. Polian, 288 Mass. 494, 193 N.E. 68 (1934) (pre-

ponderance), State v. Monich, 74 N.J. 522, 64 A. 1016

(1906) upper ed | by “any legal evidence’’); State v.

Brewton; 238 Ore. 590; 344 P. 2d 744 ee) (anv: evi-

dence); People V. Ludkowitz, 266 N.Y. 223, 194 N.E. 688

ee (clearly established to court’s satisfaction) : State

. Elias, 205 Minn. 156, 285 N.W. 475 (1939) (proved to

court's satisfaction) ; McKee v. State, 198 Ind. 590, 154

N.E. 872 *(1926) (“clearly established’’) ; Ragland y.

Staté, 238 Ala. 587, 192 So. 498 (1939) (“reasonably

satisfv” the court).

Evidence of other crimes need not meet the reasonable

doubt standard. See Scott v. State, 107 Ohio St. 475, 141

N.E. 19 (1923); People v. Albertson, 23 Cal. 2d 000, 145

{perigee reese ee nce cc

eG Rascieatizes

Means SA LEMME ta OH Nd asec

10

many evidentiary rulings of vital importance in ¢riminal

trials where the prosecution’s burden is less_than proof

beyond a reasonable doubt.

For example the prosecution need not prove the exist-

“ence of a conspiracy beyond. a reasonable doubt in.order

to secure the admission of highly damaging out-of-court

statements by alleged co-conspirators. See United States

v. Eltiott, 437 -F, 2d 1253, 1255 (5th Cir. 1971); People v.

Morales, 263 Cal. App. 2d 368, 375-76; 69 Cal. Rptr. 402

(1968), cert. denied 393 U.S. 1104. The question of whe-

ther a witness is an accomplice may mean the difference

between conviction and a. directed verdict but the prevail-

ing rule places the burden on defendant to prove that

the witness is an accomplice. See People v. Johnson, —— .

Cal. App. 3d , 95 Cal. Rptr. 316, 348-19 (1971) (eases .

cited therein).- |

Examination of the Garden of proof in consfitutional

exclusionary rule cases. does not alter this perspective. -

This Court has dealt only rarely with burden of proof

on. motions to suppress but it has never imposed a rea-

sonable doubt standard. , |

Under Bumper v. North Carolina, 391 U.S. 543, 548

(1968) the prosecution bears the burden of persuasion

when it relies on consent to justify. a search. However,

under federal rules, the defendant bears the burden of

proving the illegality: of a seizure of evidence pursuant

to warrant. See United States v. Thompson, 421 F. 2d

373, 377 (5th Cir. 1970); United States v. Cleaver, 402 F.

2d 148 (9th Cir. 1968); Irby v. United States, 314 F.. 2d

P. 2d 7 (1944); State v. Waits, 1 vo App. 463, 404 P.

2 729 (1965); Caruthers v. State, 219 Tenn. 21, 406 S.W.

2d 159 (1966) See also Tucker v. State, 82 Nev. 127, 412

P. 2d 970 (1966) (“plain, clear and convincing evidence’),

CLE LEIA LT ANCES AES Ore: 3S SR OR ne ee

11

251, 253 (D.C. Cir. 1963).6 Under federal rules the

defendant must prove that he has standing to object

‘to an illegal seizure. | United “Stages v. Sacco, 436 F.

2d 780, 784 (2nd Cir. 1971); Fullbright v. United

States, 392 F. 2d 432, 435-36 (10th Cig, 1968), cert. de-

nied 393 U.S. 830. A federal defendant must prove that .

wiretapping was unlawfully employed against him in

order to secure suppression of wiretap evidence. Nardone

v. United States, 308 U.S. 338, 341 (1939); Nolan v.

United States, 423.¥. 2d 1031, 1041 (10th Cir. 1970). A

defendant claiming abuse of civil summons must prove

that no proper civil purpose underlay the summons.

United States v. Ferrone, 438 F. 2d 381, 387-88 (8rd Cir.

1971). Most significantly, even where _the prosecution

hears the burden on motions to suppress physical evi-

dence, the burden is not that of reasonable doubt. Manuel

v. United States, 355 F. 2d 344, 346 (Sth Cir. 1966).

Many states provide that on motions to suppress seized

evidence the burden of proving illegal seizure is, in all

eases, except consent search, borne by the defendant. See

People v. Berrios, 28 N.Y. 2d 361, 270 N.E. 2d 709, 712-

I+ (1971); People v. Wright, 42 Ill. 2d 457, 248 NE. 2d

78 (1969); People v. Ferguson, 376 Mich. 90, 135 N.W. 2d

937 (1965); State v. Holt, 415 S.W. 2d-761, 764-65 (Mo.

“5. There are several federal cases seemingly holding

that the-htrden of proof is upen defendant to establish

the illegality of any ehallenged seizure but these casés.do

not seem to represent the prevailing federal rule. See

United States v. Morin, 378 F. 2d 472, 475 (2nd Cir.

1967); Watson v. United States, 249 F. 2d 106, 108 (D.C. -

Cir. 1957); Wilson v. United States, 218 F. 24 754, 757

(10th Cir. 1955); Jarabo v. United States, 158 F. 2d 509,

513 n. 3 (1st Cir. 1946); United States v. O'Leary, 201 F.

Supp. 926, 929 (1.D. Tenn 1961). Cf. United States v.

Poppitt, 227 F. Supp. 73, 80-81 (Del. 1964).

12

1967); State v. Freese, 166 N.W. 2d 785, 78% (lowa 1969) ;

State v. Towles, 155 Conn. 916, 235 A. 2d 639, 640 (1967):

Moore vy. State, 244 Ark. 1197, 429 SW. 2q 122, 125

_ (1968); State v. Merrill, 82 S.1. 609, 152 N.W. 2d 349,

“351 (1967); State v..Pokini. 45 Haw. 295, 367 P. 2d 499,

905 (1961); Booze y. State, 390 P. 2d 261, 265-66 (Okla.

1964); State v. Hall, 1 Ohio App. 2d 297, 204 N.E. 2d

997, 559-60 (1964). |

Of special interest are the “lineup” cases. In United

States v. Wade, 388 U.S. 218 (1967). and Gilbert v.-Cali-

fornia, 388 U.S. 263 (J967) this Court established a right

to counsel at dineups and in Stoyall v. Denno, 388 U.S.

293 (1967) recognized a due process right to non-sugges-

tive lineups. Tn dealing with burdens of proof the

- Court held that even where there was an illegal lineup,

the prosecution could still intfoduee an in.court identi-

~ fication upon clear and convineing proof that there was

an independant basis for sueh an identification. The bur-

den of proof beyond a reasonable doubt is not required

even where there is a clearly established primary illegal-

itv. Moreover, the Court was silent on the issue of who

hears the burden of proof as to primary illegality. Two

States that have explictly decided that question ‘are in

agreement that this burden is on the defendant. People

ve: Caruso, 68 Cal. 2d 183, 184; 436 P. 2d 336 (1968) ;

People v. Rodriguez, 10 Cal. App. 3d 18, 88 Cal. Rptr.

789, 796 (1970); People v. Nelson, 40 Tll.. 2d 3%, 238 N.E.

2d 378 (1968); People v. Johnson, 45 Til. 2d 38, 257 N.E.

2d 3 (1970). °’ — ;

Simply stated, the petitioner’s first argument that the

prosecution must prove beyond a reasonable doubt that

its evidence was lawfully acquired. is obviously inconsist-

ent’ with the pattern of decided cases in this country. It

13 .

is unsupported by the policies or the precedents requir-

ing proof of guilt beyond a reasonable doubt. In fact,

the only decison-on which petitionér relies did not even

constder the ‘question of whether such a standard was

constitutionally required, See United States v. Schipani,

289 F. Supp. at 59. |

To the extent petitioner relies on Chapman vy. Cali-

fornia, 386 U.S, 18 (1967) his relianee seems misplaced.

Chapman dealt with the problem of the effect of arn ad-

mitted violation of constitutional rights and sought to.

prescribe a standard for determining its effect on A trial.-

Chapman gives nov guidance as to what rules must be '

applied in determining whether error did occur. Presem:

- ably Chapman would not change the federal rule requir-

ing a defendant to prove that a seizure pursuant to a

warrant was illegal. Chapman would guide the determin-:

ation of whether: the introduction of the seized matter

was harmless in a case where thé trial court erroneously

ruled that the defendant had not sustained his burden of »

proof: ,

The petitioner regards Chapman as indicative of the

importance of protecting against infringements of fed-

eral rights. In truthsChapman was significant because it

refused to sanction the tdea that constitutional oo

ments can never be held harmless. The extent to.which.

Chapman allows a finding’ of harmless error has been

viewed broadly hy this Court, so broadly: that some have

claimed that the restrictions li Chapman were overruled.

See Harrington v. California, 395 US. a; 255 (1969) :

(dissenting opinion).

Lastly, it must be ‘noted that the: imposition of a rea-

sonahle doubt standard for. all questions of exclusion of

evidence would add substantial burdens to the existing

Le ”

14

criminal justice system and would add these burdens

despite the fact that the questions involved do not serve

to improve or refine the essential] function of that system

—the proper resolution of questions of guilt and sen-

tence.

B.

| Nothing In The Specific Nature Of Confessions Re-

quires That The Reasonable Doubt Standard Apply To

The Question Of Admitting Confessions Into Evidence.

This Court has rarely decided questions of the burden

of proof on confession issues. In Miranda vy. Arizona 384

U.S. 436, 475 (1966) the Court held that the prosecution

bears a heavy burden to prove waiver ‘of rights but it

does not require the prosecution to hear other significant

burdens, i.e, proving that the interrogation was non-

custodial or that a statement was volunteered. It is gen-

erally conceded that the defendant bears the burden of

proving a violation of McNabb-Mallory. See United States

Vv. Halbert, 436 F. 2d 1226, 1230 (9th Cir. 1970); Tillot-

son v. United States, 231 F. 2d 736 (D.C. Cir. 1956).

In Sims vy. Georgia, 389 U.S. 404 (1967) the petitioner.

"apparently had the initial burden of proof and the error

in the case was not said to be.the placing of a burden |

on the accused but rather the failure to rebut the ac- .

cused’s evidence. 389 U.S. at 406. Sims is consistent with

placing an initial burden, and perhaps even an ultimate

burden of proof upon the accused who seeks to suppress

his confession. Sims was essentially a casein which the_

burden was met. .

The question’ of whether an accused may bear any

burden with respect. to suppression of confessions is

MEISE SESS NITES R BET Ea ni ton =>

15

not, however, before the Court in. this case. Illinois

requires the prosecution to’ bear “the burden of going

forward with the evidence and the burden of prov-

ing the confession .. . voluntary.” The defendant is en-

titled to insist that the prosecution call all material wit-

neses, This procedure was basically the one under which

petitioner was tried. Tllinois Amnotated Statutes, Ch. 38,

Sec. 114-11 (d) (Smith-Hurd) (1964).

. Several .courts have considered the question of burden

~ of proof on the issue of voluntariness. The majority of

Jurisdictions adopt standards less than reasonable doubt

although several courts have reached a contrary result.®

6. The cases specifically adopting a standard less than

reasonable doubt are: People y. Golson, 32 Ill. 2d 398,

207 N.E. 2d 68 (1965) cert. denied 384 U.S. 1023 (pre-

ponderance); Commonwealth ex rel. Butler vy. Rundle,

429 Pa. 141, 239 A. 2d 496 (1968) (same); Ballew y.

State, 249 Ark. » 499 S.W. 2d 577 (1970) (same); Monts

v. State, 218 Tenn. 31, 400 S.W. 2d 729 (1966) (same):

State v. Dillon, 93 Idaho 698, 471 P. 2d D593 (1970)

(same); State y. Davis, 73° Wash. 2d: 271, 4388 P. 2d. 185

(1968) (same); United States ex rel. Heath v. Rundle,

298 F. Supp. 1207 (E.D. Pa. 1969); Gardner y. State, 10 -

Md.-"App. 233, 269 A. 2d 186 (1970) (prima facie proof

of voluntariness);-Dunean vy. State, 278 Ala. 145, 176 So.

2d 840 (1965) (same); State y. Nolan, 423 S.W. 2d 815

(Mo. 1968) (same); Commonwealth y. White, 353 Mass.

409, 232 N.E. 2d 335 (1967) (Satisfaction of court as to

voluntariness); State v. White, 146 Mont. 226, 405 P. 2d

761 (1965) cert. denied 384+ U.S. 1023 (same); State y.

Brewton, 238 Ore. 990, 395 P. 2d -874 (1964); State ¥.

Crank, 105 Utah 332, 142 P. 2d 178 (1943) (same); State

’ ov. Pulliam, 87 Ariz. 216, 349 P. 24 781 (1960). See also

| State v. Milow, 199 Kan. 576, 433 P. 2d 538 (1967) (issue

of admissibility decided by same rules that govern other

preliminary matters),

16

There is little if any authority that the reasonable doubt,

standard is. constitutionally required.’ In. the principal

Many jurisdictions never speciically deal with burden

of proof but it is clear that, the standard is less than

. Teasonable doubt. The usual rule leaves the decision to

the trial court: whose rulme need only be supported by

the record, K.g. Monts v. Henderson, 409 BL 2d 17 (6th

Cir. 1969): Moser y. United States, 381 I 2d 262 (9th.

Cir. 1967); Wakaksaw y. United States, 367 F.2d) 639

(Sth Cir. 1966): State Vv. Clybourn, 273 NG. PS4. 159

S.E. 2d 868 (1968) = Dodel x. State, 232 So. Pd 235 (Ila.

1970); Smith y. State, 249 NUE. Pd 49% (Ind. 1969),

The cases adopting a reasonable doubt standard are:

United States y, Inman, 352 FL 2d 954 (4th Cin 1965):

Pea v. United States, 897 FL. 2d 627 (D.C. Cin. 1968);

State v, Ragsdale, 249 La. 420, IST So. 2d 427 (1966)

cert. denied 385 U.S. 1029 (1907); State y. Keiser, 274

Minn. 265, 143 NAW. 24 ) (1966): Lee y. State, 236

_ Miss. 716, 112 So. 2d @54 (1959); State v. Longmore, 178

Neb. 509, 139 NUW. 2d 66 (1965); State y. Yough, 49 NJ.

O87, 231 A. 2d 598 (1965); People. y. Huntley, BD N.Y.

2d 72, 204 N.B. 2d 179 (1965); State ex rel. Goodehild ve,

Burke, 27 Wis. 2d 244,133 NW. 2d 753 (1965) cert. de-

nied 384 US. 1017 (1966): State v. Thundershield, 83

S.D. 414, 160 NAW. 2d 408 (1968); Lopez v. State, 384

S.W. 2d 345 (Texas Crim. 1964); Commonwealth v. Mav-

_ hew, 297 Ky. 172, 178 SW. 2d 928+ (1943): People y.

’ Stroud, 273 Cal. App. 2d (70; 78 Cal. Rptr. 270 (1969)

‘(noting that the California Supreme Court has not de-

cided the question); Compare Fernandez Vv. Beto, 281 EF.

Supp. 207 (N.D. Texas 1968) with Edwards v. Beto, 446

F. 2d 18 (Sth Cir. 1971 ).

¢. One judge has expressed the view that the reason.

able doubt standard: is constitutionally required. See

Clifton v. United States, 371 F. 2d 304, 360 (D.C. Cir.

1966) (coneurring opinion). The view was largely if not

completely on the premise that the voluntariness require-

ment is not a mere rule of evidence. 371 F. 2d at 361.

SEPA RSESEE LaR SRE REND Ice LAE TT ie nS aaa

17

‘ase cited by petitioner, Pea v. United States, 397 F. 2d

627, O37 (D.C. -Cir. 1967), the court expressly grounded

its decision on the exercise of supervisory power. See

IS UNC, §§ DIOL, 3502 (Congressional provisions for

admission of confessions): State vy. Yough, 49 N.J. 587,

231 A. 2d 598, 605 (1965).

It is especially significant. that the court to which the

decision in Pea looked tor authority has itself explicitly

rejected the. proposition that the reasonable doubt stand-"

ard ix constitutionally required. In Pea the court relied

heavily on United States v. Inman, 352 F. 2d 954 (4th

Cir. 1965) which had adopted a reasonable doubt stand-

ard. However in Ralph v. Warden. 488 I. 2d 786, 793

(4th Cir. 1970) the Fourth Circuit said:

“Ralph iiow argues that admission ot his contessiou

Violated the Fifth and Fourteenth Amendments De-

cause the court did not. fited it Voluntary beyond, a

reasonable doubt. This standard, he claims, is re-

quired by United States y. Inman, 352-F. 2d 954 (4th

Cir. 1965), and Mullins v. United States. 382 F. 2d

ee ae ne ne a See a

The opinion cited Brown v. Walker, 161 U.S. 991, 596-97

(1896) which said of the privilege against self-inerimina-

tion “| This] maxim, which in Kngland was ‘a mere rule

of evidence, became clothed in this country with the im-

pregnability of constitutional enactment.” It ix apparent

that the opinion misconstrued Brown vy. Walker. Consti-

tutional enactment does make a rule relatively more im-

pregnable than ordinary legal rules. It does not change

the nature of the rule itself, it only makes the repeal of

the rule more difficult. The power of Congress “To Extah-

lish Post Offiees and Post <Rgads” (Art. I. See. 8) is

clothed with the “impregnability” of constitutional enact-

ment but the nature of the power and the purposes

served by its exercise are no different. than if the power

Were non-constitutional in origin, 1.e., resting on statutes

enacted under the Commerce Clause.

18 |

258 (4th Cir. 1967), which hold that federal courts

in this -cireuit must find a confession voluntary he-

yond a reasonable doubt before allowing its presenta-

tion to the jury. By their own terms these cases are

‘distinguishable. As we reiterated in Morris vy. Boles,

386 FL 2d 395, 402 (4th Cir. 1967), these eases d6

not ‘prescribe a rule of constitutional application to

prosecutions in state courts within this Cirevit.” In-

stead, they rest on our supervisory power over dist-

rict courts.” .

See also Edwards v. Beto, 446 F. “d 18 (Sth Cir. 1971);

Collins v. Sullivan, 319 F. Supp. 184 (Ore. 1970) Cf. Le-

land vy. Oregon, 343 USS. 790, T98 (1952).

The petitioner's position in this matter is twofold. Tlis

first argument was that the prosecution must prove he-

yond a reasonable doubt that all of its evidence was con-

stitutionaHy acquired. His second argument is that even

if his first premise fails, the special nature of confessions

requires the application of a reasonable doubt standard.

Petitioner contends that the values Which underlie the

confession rule are more numerous or more important

than the values underlying other exclusionary rules. These

factors he states are deterrence of police misconduct, un-

reliability of involuntary admissions and the preservation

of the specific guarantees of the fifth amendment privilege

against self-incrimination.

This list of factors underlying the confession rule is at

‘ fam)

least partially incorrect. It is true that probable imre-

liability of involuntary admissions was mentioned in some

early confession cases but in Rogers v. Richmond, 365

US. 534, 540-41 (1965) the Court said:

“. . convictions following the admission into evi-

dence of confessions which are involuntary . 2. can.

not stand. This is so not because such confessions

R

romero

lia needa aa eo ¥ ie Em.

19

are unlikely to be true but because the methods used

to extract them offend an underlying principle in the

enforcement of our eriminal law: that ours is an

accusatorial and not an inquisitional system—a sys-

tem in which the State must establish guilt by evi-

dence independently and freely secured and may not

by coercion prove its charge against an accused out

of his own mouth.”

The Court further held that voluntariness cannot be

Judged by reference to a legal standard which took into

account the circumstances of probable truth or falsity.

See 365 U.S. at 543-44. |

It is apparent that deterrence of police misconduct and

the specific. guarantees of the fifth amendment are now

the underpinnings of the involuntary: confession rules.

Yet the same sort of purposes are served by the fourth

amendment exclusionary rules and unless one is prepared

to state that fitth amendment rights are vastly more im-

portant than fourth amendment rights, there is no reason

to apply more stringent rules in confession cases than

are applied in search cases. In the case of eyewitness

identification exclusionary rules, the same purpose of de-

terrence of police misconduct is served as well as the

protection of the sixth amendment right to counsel. In-

deed, those exclusionary rules are grounded on the addi-

tional concern with the reliability of eyewitness evidence

hut the reasonable doubt standard is not required and,

to some extent, burdens of proof are placed on the de-

fendant. The “values’? underlying the confession cases

are nO more extensive or important than the values served

by other exclusionary rules.

The petitioner claims that an aceused’s confession will

likely have greater importance in the trial than will

other forms of evidence excluded by constitutional man-

%

_ weGh APs S FOREN DER ASS SAR! 4

date. It is difficult, of course, for any reviewing court to

Weigh generally the relative importance of evidence in

criminal cases, Reviewing courts do not, except for cer-

tain uncommon advisory opinion provisions in a few

states, entertain appeals from acquittals. It is impossible

to judge the effect of evidence when one sees only the

records of convictions. The words of one trial judge in

this regard are appropriate here

“Any evidence which is Ulegally obtained may he

damning, so that the decision ‘annot turn on the

importance of a confession in a case. Frequently,

having lost on a motion to suppress, the defendant’s

chance of avoiding conviction. is hopeless. A ‘Con-

fession’ may contain exculpatory material, be ineom-

plete, or he unreliable so that it is no more the

equivalent -of a plea of guilty than is key evidence

iNegally obtained. Certainly the burden of proof ata

preliminary hearing should not depend upon how

critical the evidence sought to be Suppressed may be

at the trial. The Judge is often unable to accurately

predict at that stage whether a particular item of

evidence will clinch the prosecution’s case.”

This comment is of special note since it.comes from the

chief, if not sole, opinion on which the petitioner relies in

Point T. A. of his argument. The quote is found in United

States v. Schipani, 289 F. Supp. at 58.

It is clear that many items of proof may be far more

damaging that confessions, Many confessions are given

only heeause the suspect realizes that the other evidence

against him is overwhelming, The seizure of a large

quantity of heroin from the person of the defendant or

the finding of stolen jewels in his briefease or the testi-

mony of an undercover agent or the tapes of defendant’s

conversations planning or executing a crime will usually

cause any confession to pale into insignificance. The testi-

eee ee ey

| 21

mony of eyewitnesses is thought by many to be more

damaging than a confession. The evidence acquired by

seizure or given by eyewitnesses rarely contains the kind

of self-serving excuses or disclaimers of intent present in ,

many confessions. To. the extent that juries may enter-

tain suspicions of the reliability of confessions the de-

fendant is in a better position to argue against the weight

of such evidence than he is. to argue about the reliability

of the comparison of his fingerprints (the securing of

which may present a question for the exclusionary rule)

with the fingerprints found at the scene of the crime or

on a murder weapon. ,

The petitioner offers no evidence to support his con-

tention that confessions are inherently more damaging

than other forms of evidence. No such evidence exists. In

many eases confessions may be less important than other

forms of evidence. There can easily be overwhelming

evidence in a case where no confession was made and

eases in which confessions were made can be extraordin-

arily weak.

In sum, the petitioner’s attempted distinction between

confessions and other fornis of evidence subject to consti-

tutional exclusion is unsupported and ought to fail.

C.

Jackson v. Denno: Does Not Require The Application

Of A Reasonable Doubt Standard To The Determination

Of The Admissibility Of A Confession. © ,

Jackson v. Denno, 378 U:S. 368, 395 (1964) held that

“a proper determination of voluntariness be made prior

to the admission of the confession to the jury.” See also

Boles v. Stevenson, 379 U.S. 43 (1964); Sims v.. Georgia,

885) US. 5388 (1967); Boykin v. Alabama, 395 U.S. 238

.

g RS at IR ah a a ae tan ee

OT re eae

o

24

resolution of guilt questions and which is subject to re-

view on appeal.

Finally, it is clear that the Constitution does not pro-

tect « defendant from having to make hard choices.

MeGautha vy. California, 402 U.S 1838, 213 (1971). The

defendant fine no right to an adjndicotion that the prose-

eution’s evidence will establish vuilt beyond a reason-

able doubt before he decides whether to plead eulty.

Nor is he entitled to a clear and correct adjudication of

the admissibility of the evidence against him before he

decides his plea. He may have to decide between risking

his life to challenge the procedures used against him and

saving his life by submitting and fleading culty. These

kinds of choices a defendant may be compelled to make.

See VWellann vy. ardson, 397 U.S. 759 (1970); Brady

v. United Stat (om U.S. 742 (1970); Parker v. North

Carolina, 397 U.S-#90'(1970); North Carolina v. Alford,

400 U.S. 25 (1970). ° |

In particular «the decision to testify or to offer a de-

fense is traditionally foreed upon a defendant without

any adjudication that the evidence against him proves

his guilt beyond a reasonable doubt. See Pierce vy. United

States, 252 U.S. 239, 251-52 (1920): Johnson v. United

States, 426 F. 2d 651, 653 (D.C. Cir: 1970) (standard ‘for

directed verdict is whether evidence could persuade a

jury to find guilt beyond a reasonable doubt); I/nited

States v. Feinberg, 140 F. 2d 592, 594 (2nd Cir. 1944)

(L. Hand, J.) cert. denied 322 U.S. 726 (preponderance

of the evidence) Courts: do not pass upon questions of

credibility on motions for directed verdicts at the end

of the prosecution’s case and, it is after the denial of

such motions that the defendant must choose to testify.

He must decide whether to risk not only impeachment

U

29

but the possible strengthening of the Case against him. -

MeGautha’ vy. California, 402 US. 183, 215-16 (1971):

Johnson v. United States, 426 F. 2d at 659-56. Decisions

to testify or to offer a defense are hard decisions and

forced decisions and are all made before there js any

adjudication based Onea reasonable doubt standard. Cf.

Williams y, Florida, 399 U.S, 78, 84-85 (1970). Under

the standards established in McGautha vy. California, 402:

US. at 213-20, a defendant in Illinois who is given a

totally. separate hearing and adjudication on the issue

of voluntariness prior to trial is not placed in an unfair

position when he must thereatter choose whether to dis-

pute his confession at trial.

The Tlinois procedure does not require a criminal de-

fendant to face unconstitutionally harsh dilemmas nor

does it fail to provide for a clear-cut, reliable determina-

tion of voluntariness required by Jackson y: Denno.

IT.

THERE IS NO CONSTITUTIONAL REQUIREMENT

THAT THE DEFENDANT RECEIVE A JURY

TRIAL ON THE ISSUE OF THE VOLUNTARINESS

OF HIS CONFESSION.

Duncan y. Louisiana, 39} U.S. 145 (1968) imposed the

common law right to Jury trial embodied in the sixth

amendment npon the States. It did not expand the tradi-

tidnal comion law function of the Jury which was insul:

ated trom decisions as to the admissibility. of evidence.

Jackson y. Denno, 378 US. at 387 n. 13; 3 Wigmore, Evi-

dence, § 861, P. 345 (3rd Kd. 1940) (P. 568 in Chadbourn

Rev. 1970) (admission of confession is a question for the |

judge). Nevertheless, petitioner claims that Duncan re- .

~~ SWRI MOLARS Kei.

oe 2 Y

22

(1969). The Court did not comment on the question of

burden of proof. See 378 U.S. at 404-05 (dissenting opin-

ion). It is diffieult to conceive that the necessary implica-

tion of Jackson y. Denno is a determination that the

Standards of proof used to determine the merits of the

cause in nearly every important state and federal ejvi]

litigation are insufficient to insure a reliable determina-

tion of the’ preliminary question of voluntarinegs of a

defendant’s statements,

In Jackson the Court ruled that the “overall determin-

ation of... Voluntariness , .’. requires facing the issue

squarely, in illuminating isolation and unbeclouded by

other issues and the effect of extraneous but prejudicial

evidence.’’ 378 U.S. at 390. The Court recognized the

rights to a “reliable and clear eut determination of...

voluntariness” 378 US. at 391 and “to have an involun-

tary .confession entirely disregarded” 378 U.S. at 389,

Neither right was adequately protected by leaving the

question of voluntariness to the jury. First, it was im-.

possible to know whether the jury did actually decide the —

question of voluntariness. 378 U.S. at 379-80. Further, the

jury’s judgment on the issue of voluntariness was likely

to be improperly influenced by their Judgment as to the

The petitioner claims that, in a tactical sense, he is in

worse position under the Illinois procedure than he would

have been under the old New York procedure. Even if

this were so (and it is not), the relative tactical benefit

to criminal defendants is scarcely an appropriate criterion

for the delineation of constitutional rights. Jackson vy.

Denno did not decide that whatever makes it more diffi-

23

cult ‘to present confessions to the jury is constitutionally. :

required, ;

The petitioner submits that “many criminal defend-

ants’’ would prefer the old New York procedure to the

assertion is incredible. At the very least, it’I9) untenable

in light of the findings of Jackson vy. Denno. In Jackson

the Court said: _

“Under the New York procedure, the evidence given

the jury inevitably injects irrelevant and *imperthissi-

~ble considerations of Arutlifulness of the confession

into the assessment of voluntariness.” (378 U.S. at

386). . :

In essence, under New York procedure it did not matter

what the standard of proot of voluntariness was because

the practice prevented the defendant from ever getting

a hearing on the isolated issue of voluntariness,

The petitioner further argues that the Illinois pro-

cedure places a defendant in the same hard dilemma a

New York defendant faced in determining whether he

US. 377, 394 (1968)] or for purposes of impeachment.

wished to testify before the jury on the*issue of volun-

¢

present Illinois practice, (Petr’s Br. 19). We think this *

tariness and risk Impeachment. The short answer to the

argument is that the Illinois defendant is not in the.

Same position. Unlike the New York defendant, he is

entitled to a pre-trial determination of voluntariness be-

fore the jury even hears the confession. He may give his

testimony at a motion to suppress and that testimony

cannot be used against him at a trial either in the prose-

cution’s case-in-chief [Simmons v. United States, 390

[People vy. Luna, 37 Ill. 2d 299, 308; 226 N.E. 2d 586

(1967) ]. The petitioner has received a clear-cut determin-

ation on the issue of voluntariness which is isolated from

+

_~

CWe se Recs

26

quires that the jury determine voluntariness.®

It has been held that the submission of issues of vol-

untariness to the jury is not constitutionally required.

United States v. Panepinto, 430 F. 2d 613, 617-18 (3rd

Cir. 1970). It also seems that Jackson v. Denno, implicit-

ly approved the Illinois practice which follows the ortho-

dox ruie. 378 U.S. at 378.

Whether Jackson v. Denno so held is not important

for the findings of the Court in Jackson v. Denno make

it abundantly clear that the jury does not and cannot

properly resolve questions of voluntariness. To reiter-

até, the Court found that a jury which considers volun-

tariness along with the evidence in the whole case® is

trapped by a procedure that “inevitably injects irrele-

vant and impermissible considerations . .. into the as-

sessment of voluntariness.” 378 U.S. at 386.

The practice in Illinois is to- allow the defendant to

challenge the weight and credibility of his confession

before the jury. In this case, petitioner did just that. (R.

* 223-26). However, even in those jurisdictions where the

jury is supposed to decide voluntariness as well .as

weight, the jury does not do so. It does the same thing

8. If-the Court were to hold that this is true, it’s rul-

ing should be fully prospective (De Stefano v. Woods,

392 U.S. 631 (1968) except, of course, for petitioner in

this ease. See Stovall v. Denno, 388 U.S. 293 (1967).

9. We do not read petitioner’s argument to eall for a

separate jury at the hearing on the motion to suppress.

Yet it seems apparent that: only such a jury can be said

to have considered voluntariness and decided the issue.

Neither Duncan nor existing trial practice nor the best

interests of the administration of criminal justice lends

support to the notion of a jury trial on motions to sup-

press. so

SES RE Bane Se oe Ce ee ae

27

that the Ilinois jury does, it judges the credibility of

the confession in light of the circumstances of its making

including the cireumstances relevant to the issue of vol-

untariness. FE. g. Illinois Patkern Jury Instructions—

Criminal 3.07 (1968). It is the fundamental teaching of

Jackson _v. Denno that this is all a Jury can be expected

to do.

If it is not clear enough from Jackson v. Denno that

a jury cannot perform-the mental gymnastics required

in-separating questions of voluntariness from questions

of truthfulness and guilt, then Bruton v. United States,

391 U.S. 123 (1968) should remove any doubt. There

the Court said that “we explicitly rejected the proposi-

tion that a jury, when determining the confessor’s guilt,

could be relied on to ignore his confession of guilt should

they find the confession involuntary.” (391 U.S. at 129). .

Simply stated, a jury ought not to be constitutionally

required to decide a question that this Court recognizes

it is ineapable of deciding.

The respondent Warden asks that the

28

CONCLUSION

judgments of

the United States Court of Appeals for the Seventh Cir-

eult and of the United States District Court for the

Northern District of Illinois be affirmed.

Respectftlly submitted,

,

Warren IK. SMooT,

Wituiam J. Scorr,

Attorney General,

State of Illinois,

Jory M. Fiaum,

First Assistant Attorney General,

JAMES B. Zacst,

Assistant Attorney General,

188 West Randolph Street, Suite 2200,

Chicago, Illinois 60601 (312-793-2570),

Attorneys for Respondent.

Assistant Attorney General,

Of Counsel.

a Ph Be

Pr mons ep i aa |

Syllabus

LEGO v. TWOMEY, WARDEN .

. CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 70-5037. Argued November 11, 1971—

Decided January 12, 1972

Following a pretrial suppression hearing at which conflicting evi-

dence was presented as to the voluntariness of a confession: that

petitioner had given the police, the trial judge, presumably apply-

ing the Illinois preponderance-of-the-evidence standard, held the

confession admissible, and it was introduced into evidence at the

trial, which resulted in petitioner’s conviction. The judge had

instructed the jury as to the prosecution’s burden of proving

guilt but did not instruct that the jury had to find the confession

voluntary before it could be used in reaching its verdict. In a

habeas corpus proceeding petitioner challenged his conviction.

The District Court denied relief, and the Court of Appeals

affirmed. Petitioner contends, relying upon Jn re Winship, 397

U. S. 358, that the trial judge should have found the confession

voluntary beyond a reasonable doubt before admitting it into

evidenice, or, alternatively, that the admissibility of the confession

value) had to be determined by a reasonable-doubt standard to

protect the values that exclusionary rules are designed to serve.

Petitioner also urges that, even though the trial judge ruled on his

coercion claim, he was entitled under Duncan v. Louisiana, 391

U.S. 145, to have the jury decide that issue anew: Held:

1. The hearing on the voluntariness of a confession required

by this Court’s decision in-Jackson vy. Denno, 378 U. S. 368, is

not designed to implement the presumption of innocence and

enhance the reliability of jury verdicts, but to prevent the use

of a coerced confession as violative of due process quite apart

from its truth or falsity. Consequently, determining the admis-

sibility of a confession by a preponderance of the evidence is not

inconsistent with the: mandate of In re Winship, supra. Pp. 482-

487.

2. Petitioner has not demonstrated that admissibility rulings

based on the preponderance-of-evidence standard are unreliable

or that imposition of any higher standard under expanded exclu-

sionary rules would be sufficiently’ productive to outweigh the

> ‘

4

Oe FP PARR RD EIN CREE BRIO PRS oo Satyr

LEGO v. TWOMEY 477

as evidence in a criminal trial (quite apart from its probative

ger Te eae

et pate

ee iiUicaicc

478 . OCTOBER TERM, 1971

‘Opinion of the Court 404 U.S

public interest in having probative evidence available to juries.

Pp. 487-489. : 7 °

3. The proesedure followed here comported with the require-

ments of Jackson, supra, and petitioner was not entitled to have ~

the voluntariness issue which had been resolved by the trial judge

also submitted to a jury for its separate consideration. Nor did °

Duncan, supra, change the rule that determining the admissibility

of evidence is a function of the court rather than of the jury.

Pp. 489-490.

Affirmed. |

Wuire, J., delivered the opinion of the Court, in which BURGER,

C. J., and SrewARr and BLacKMUN, JJ., joined. Brennan, J., filed

a dissenting opinion, in which Dovcias and MarsHALL, JJ., joined,

post, p. 490. PoweLtt and REHNQUIST, JJ., took ng part in the

. consideration or decision of the case.

Nathan Lewin, by appointment of the Court, 402 U.S

928, argued the cause and filed a brief for petitioner.

James B. Zagel, Assistant Attorney General of. T]hi-

nois, argued the cause for respondent. With him on

the brief were William J. Scott, Attorney General, Joel

‘M. Flaum. First. Assistant Attorney General, and War-

ren K. Smoot, Assistant Attorney General.

Mr. Justice WHITE delivered the opinion of the Court.

In 1964 this Court held that a criminal defendant who

challenges the voluntariness of a confession made to

officials and sought to be used against him at his trial

has a due process right to a reliable determination that

the confession was in fact voluntarily given and not the

outcome of coercion which the Constitution forbids.

Jackson v. ‘Denno, 378 U. S. 368. While our deci-

sion made plain that only voluntary confessions may

be admitted at the trial of guilt or innocénce, we did

not then announce, or even suggest, that the factfinder

at a coercion hearing need judge voluntariness with refer- .

ence to an especially severe standard of proof. Never-

LEGO v. TWOMEY 479

477 . Opinion of the Court

theless, since Jackson, state and federal courts have

addressed themselves to the issue with a considerable

variety of opinions.’ We granted certiorari in this case

to resolve the question. 40] U. S. 992 ( 1971).

‘State courts which have considered the question since Jackson

have adopted a variety of standards, most of them founded upon

state law. Many have sanctioned a standard of proof less strict

than beyond a reasonable doubt, including proof of voluntariness

by a preponderance of the evidence or to the satisfaction of the

court or proof of voluntariness in fact. E. g., Duncan vy. State,

278 Ala. 145, 176 So. 2d 840 (1965); State vy. Dillon, 93 Idaho

698, 471 P. 2d 553 (1970), cert. denied, 401 U. S. 942 (1971);

People v. Harper, 36 Ill. 2d 398, 223 N. E. 2d 841 (1967); State

ve Milow, 199 Kan. 576, 433 P. 2d 538 (1967); Barnhart v. State,

5 Md. App. 222, 246 A. 2d 280 (1968); Commonwealth v. White.

353 Mass. 409, 232 N.-E. 2d 335 (1967); State v. Nolan, 423 S. W.

2d 815 (Mo. 1968); State v. White, 146 Mont. 226, 405 P. 2d 761

(1965), cért. denied, 384 U.S. 1023 (1966): State v. Brewton, 238

Ore. 590, 395 P. 2d 874 (1964); Commonwealth er rel. Butler y.

Rundle, 429 Pa. 141, 239 A. 2d 426 (1968); Monts v. State, 218

Tenn. 31, 400 S. W. 2d 722 (1966); State v. Davis, 73 Wash. 2d

271, 438 P. 2d 185 (1968) - :

Other States, using state law or not specifying a basis, require

proof beyond a reasonable doubt. EF. g., State v. Ragsdale. 249

La. 420, 187 So. 2d 427 (1966), cert. denied, 385 U. S. 1029 (1967); ,

State v. Keiser, 274 Minn. 265,143 N. W. 2d 75 (1966); State v.

Yough, 49 N. J. 587. 231 A. 2d 598 (1967); People v. Huntley, 15

N. Y. 2d 72, 204 N. E. 2d 179 (1965); State v. Thundershield, 83

S. D. 414, 160 N. W. 2d 408 (1968); State ex rel.’ Goodchild y:

Burke, 27 Wis. 2d 244, 133 N. W. 2d 753 (1965), cert. denied, 384

U. S. 1017 (1966).

Two federal courts -have held as an exercise of supervisory power

that voluntariness must be proved beyond a reasonable doubt.

Ralph v. Warden, 438 F. 2d 786, 793 (CA4 1970), clarifying United

States v. Inman, 352 F. 2d 954 (CA4 1965); Pea vy. United States,

130 U.S. App. D. C. 66, 397 F. 2d 627 (1967) ; cf. United States vy.

Schipani, 289 F. Supp. 43 (EDNY 1968) , aff'd, 414 F. 2d 1262 (CA2

1969), cert. denied, 397 U.S. 922 (1970), requiring the Government

to prove beyond a reasonable doubt that certain evidence was not

tainted by violation of the Fourth Amendment.

pree: ott r

=~

480 . OCTOBER TERM, 1971

Opinion of the Court , 404U.8.

Petitioner Lego was convicted of armed robbery in

1961 after a jury trial in Superior Court, Cook County,

Illinois. The court sentenced him to prison for 25 to

50 years. The evidence introduced against Lego at trial

included a confession he had made to police after arrest

- and while in custody at the station house. Prior to trial

Lego sought to have the confession suppressed. He did

not deny making it but did challenge that he had done

so voluntarily. The trial judge conducted a hearing,

out of the presence of the jury, at which Lego testified

that police had beaten him about the head and neck with

a gun butt. His explanation of this treatment was that

the local police chief, a neighbor and former classmate of

the robbery victim, had sought revenge upon him. Lego

introduced into evidence a photograph that had been

taken of him at the county jail on the day after his arrest.

‘ The photograph showed that petitioner’s face had been

swollen and. had traces of blood on it. Lego admitted

that his face had been scratched in a scuffle with the rob-

bery. victim but maintained that the encounter did not

explain the condition shown in, the photograph. The

police chief and four officers also testified. They denied

either beating or threatening petitioner and disclaimed

knowledge that any other officer had done so. The trial

judge resolved this credibility problem in favor of the

police and ruled the confession admissible.? At. trial,

Lego testified in his own behalf. Although he did not

dispute the truth of the confession directly, he did tell

his version of the events that had transpired at the

?In ruling the confession admissible, the judge stated:

“The petitioner has admitted under oath he had a struggle with

the complaining witness over the gun; he was wounded, obtained a

facial wound. The ences testified he was bloody at ‘the time he

“was arrested.

- “I don’t believe the defendant’s testncey at all that he was .

beaten up by the Police. The condition he is in is well explained

by the defendant himself.”

LEGO v. TWOMEY 48]

477 Opinion of the Court

police station. , The trial] judge instructed the juty & as to

the -prosecution’s burden of proving guilt. He did not

‘instruct that the jury was required to find the confes-

sion voluntary before it could be used in judging guilt

or innocence.* On direct. appeal the Illinois Supreme

Court affirmed the egnviction. People vy. Lego, 32 Til.

2d 76, 203 N. E. 2d 875 (1965). ,

Four years later petitioner challenged his conviction

by seeking a writ of habeas corpus in the United States

District Court for the Northern District of Illinois. He

maintained that the trial judge should have found the

confession voluntary beyond a reasonable doubt before °

admitting it into evidence. Although the judge had

made no mention éf the standard he used, Illinois law

provided that a confession challenged as involuntary

could be admitted into evidence if, at a hearing outside

the presence of the jury, the judge found it voluntary by

& preponderance of the evidence.* In the alternative

petitioner argued that the voluntariness question should

also have been submitted to the jury for its separate con-

_ 4 Illinois followed what we described in Jackson v..Denno, 378 U.S.

368 (1964), as “the orthodox rule. under which the judge himself ©

solely and finally determines the voluntariness of the confession... .”

Id., at 378. While the procedures of all the States could not be

neatly classified, we noted that -some followed “the Massachusetts

procedure whereby the judge himself first resolves evidentiary con- -

flicts and determines whether a confession is ‘in fact. voluntary. If

he is unable so to conclude, the confession may not be admitted into’

evidence.. If judged voluntary and therefore admissible, the jury must

also determine.the coercion issue and is instructed to ignore a con-

fession it finds involuntary. Jd., at 378 n. 8. Other States had

. adopted the New York procedure at issue in Jackson. Our decision

in Jackson cast no doubt upon the orthodox and Massachusetts pro-

cedures but did call into question the practice of every State that

did not clearly*follow one of these procedures. A thorough tabula:

tion of what States did in the wake of Jackson appears in 3 J ” Wig-

more, Evidence 585-593 (J. Chadbourn rev. 1970).

* People v. Wagoner, 8 Ill. 2d 188, 183 N. E. 2d 24 (1956); .

People v. Thomlison, 400 Ill. 555, 81 N. E. 2d 434 (1948).

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

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