# Brief for Respondent — Lego v. Twomey

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0333%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Respondent
- **Published:** January 1, 1972
- **Citation:** 404 U.S. 477

## Text

~

Se ee ear

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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li.

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
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

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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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9

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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

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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 ‘

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0333%3A3. Public record. Not legal advice.