Petitioners Brief — Watts v. Tennessee

Supreme Court brief1972

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-5908

LEON CHAMBERS,

Petitioner,

V..

STATE OF MISSISSIPPI,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

BRIEF FOR THE PETITIONER

RAMSEY CLARK

oe” PETER WESTEN

oO & 1775 K Street, N.W.

gs a Washington, D.C. 20006

ge (202) 293-6370

Counsel for Petitioner

Of Counsel:

Lawyers’ Committee for

Civil Rights Under Law

Wastington O C. THIEL PRESS 20

(i)

TABLE OF CONTENTS

| Page

Sn ei ie Se hee ee 1

I iis vb deans ia awo ee bees ewe ns ees 2

QUESTIONS PRESENTED .......------+eeeseecrcee 2

CONSTITUTIONAL PROVISIONS INVOLVED .......----- 3

Sixth Amendment to the United States Constitution ....... 3

Fourteenth Amendment to the United States

RN oo cc in vac aye bee Re kha eas Fe eS 3

BOAT Cy bo ns hhc us cg e Rana Pee et kee pacua es 3

1. The Shooting .........2-- ese eeeceererernces a

2. The Pretrial Proceedings .......---eeeeeeeeeeee a

ain cs dae os. oS 40 a 64 ee ses 7

4. The Verdict and Appeal ........----eeeeeeees 11

SUMMARY OF THE ARGUMENT ........--+++-++++> 12

A i oc oc ha a ob he 04 8 oa ee 5 Rs 15

I. The Mississippi Hearsay Rule Is Unconstitu-

tional Insofar As It Prevents Witnesses For The

Accused From Testifying That Someone Else

Confessed To The Crime ......-----+-+eeee eee: 15

A. Chambers Has a Right to Offer the Excul-

patory Testimony of Witnesses in His Favor... .... 15

1. The Due Process Clause Protects Excul-

patory Testimony .......-----+-+-++-0> 16

2. The Compulsory Process Clause Protects

Exculpatory Testimony ........---------> 18

” B. Mississippi Has No Legitimate Interest in

Applying Its Hearsay Rule .......----------- 21

1. The Exclusionary Rule for Declarations

Against Penal Interests Is Widely Dis-

(ii)

ee 25

3. The Rule Discriminates Against the

Accused in Favor of the Prosecution ....... 26

4. The Purpose of the Exclusionary Rule

Are Better Served by Less Restrictive

esi: fe ren 27

Il. A Witness for the Accused Becomes a Witness

Against Him When He Gives Material Testi-

mony that Contradicts the Defense ............. 31

A. Chambers Has a Right to Confront Wit-

nesses Who Testify Against Him ............ 32

B. The Mississippi Rule that Prevents an

Accused from Impeaching His Own Wit-

nesses Is Arbitrary and Irrational ............ 35

1. The Rile that Prevents a Party from

Impeaching His Own Witnesses Is Irra-

whim. et Oe ae 36

2. The Rule Operates in an Arbitrary Manner . sae

3. The Purposes of the Rule Are Better

Served by Less Restrictive Methods ........ 40

wntainnagage LE OO ee RE ee 42

TABLE OF AUTHORITIES

Cases:

Alexander v. State, 84 Nev. 737, 449 P.2d 153 (1968) ..... 25

Alford v. United States, 282 U.S. 687 ( ASS 40

Baldridge v. Stribling, 101 Miss: 666, 57 So. 658 (1911)... .25

Bates v. Little Rock, 361 US. ae 15

Bivens v. Six Unknown Agents, 403 US. 388 (1971) ..... 30

Brady v. Maryland, 373 U.S. 83 (1963), 226 Md. 422,

ees ak | Se ae nearest +++ + passim

(iti)

Brookhart v. Janis, 384 U.S. 1 (1966) .........-....--- 33

Brown v. State, 99 Miss. 719, 55 So.961 (1911) ........ 22-23

California v. Green, 399 U.S. 149 (1970) .......... 29, 33, 43

Cameron v. State, 153 Tex. Crim. App. 29, 217

5 Re Eh. |) re Le a Sys Sh ke & 0 25

Chambers v. Mississippi, 252 So.2d 217 (1971) ............ 2

Chism v. State, 70 Miss. 742, 12 So. 852 (1893) ............ 39

Citizens Bank of Coldwater v. Callicott, 178 Miss.

947, 174 So. 78 (1937) .. ....-. ee 21

Clark v. Lansford, 191 So.2d 123 (Miss. 1966)......... 35, 39

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .......-. 30

Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552

Ce ee a ee ..41

Daugherty v. State, 154 Fla. 308, 17 So.2d 290

Re et ea yr Sore ae ee . 41

Deike v. Great Atlantic & Pac. Tea Co., 3 Ariz.

App. 430, 415 P.2d 145 (1966) ..............-- . .24

Dennis v. United States, 384 U.S. 855 (1966) ............ 15

Donnelly v. United States, 228 U.S. 243 (1913) ........ 24, 25

Douglas v. Alabama, 380 U.S. 415 (1965) ............... 34

Duncan v. Louisiana, TR 8 ee rere 18

Dunk v. State, 84 Miss. 452, 36 So. 609 (1904) cena ewes 39

Dunn v. Blumstein, 405 U.S. 330 (1972) .............-. 15

Dutton v. Evans, 400 U.S. 74 (1970) ........ hia we ele 33

Estella-Ortega v. United States, 423 F.2d 509 (9th

eo a a ih hoe sae hw we es 41

Ferguson v. State, 365 U.S.570(1961) ...............4. 16

Fieldler v. State, 235 Miss. 44, 108 So.2d 590 (1959) ....... 23

Forrest County Coop. Ass’n v. MeCaffrey, 253 Miss.

WG) 196 Ba FEET NE) zh 5. oi oi Sis ee 25

Funk v. United States, 290 U.S. 371 (If Wo or, sia 30

| | |

(iv)

Giglio v. United States, 405 U.S. 150 PM ak 5 Shige oc cx 18

Hall v. State, 250 Miss. 253, 165 So.2d 345 WE S6650-05% as 39

‘Handshoe v. Daley, 211 Miss. 189,61 So.2d 230(1951)...... 21

Harris v. New York, 401 U.S. 222 MP ies 30, 35

Henry v. State, 209 So.2d 614 (Miss. MS ey tt ek. 27

Hickory v. United States, 151 U.S. 303 a, a aa 40

Hines v. Virginia, 136 Va. 728, 117 S.E. 843 i eee 24, 26

Houston Contracting v. Atkinson, 251 Miss. 220, 168

ca mecletviininhiems GA LEE Ta Pee 21

In re Oliver, 333 U.S. 257 (1948) ............... 16, 32, 42

In re Winineger’s Petition, 337 P.2d 445 (Okla. Crim.

WO No oe ck 25

Jenkins v. McKeithen, 395 U.S. 411 Ps Ge 16

Johnson v. Baltimore & O. R. Co., 208 F.2d 633 (3d

Cir. 1954), cert. denied, 347 US. 943 Be eae 36

Kirby v. United States, 174 U.S. 47 ( MO eerie. oes, 32

Kissic v. State, 266 Ala. 71,94 So.2d 202 es 41

Kramer v. Union Free District, 395 U.S. 621 , SBS eee 15

Litsinger v. United States, 44 F.2d 45 (7th Cir. 1930)...... 41

Manning v. State, 188 Miss. 393, 195 So. 319 A EN eo 38

Mask v. State, 32 Miss. 405 (1856) ................... 35

Mason v. United States, 257 F.2d 359 (10th Cir.), ~

cert. denied, 358 US. 831 (1958) .................. 24

McClain v. Anderson Free Press, 232 S.C. 248, 102

ME PE oe a 25

Miranda v. Arizona, 384 U.S. 436 (1966) ............... 30

Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554

gg | SEE OE Ge II GN EO ee 41

Murphy v. State, 129 Miss. 634, 92 So. 694 to | RPE rage 27

NAACP v. Button, 371 US. 415(1963)................ 15

(v)

Ottinger v. Siegfried, 349 F.2d 647 (10th i Oe sa ce ican 3%

Parker v. Gladden, 385 US. 363 (1966) ......---+++-++> 33

People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825,

257 N.E.2d 16 (1970) .. 1... - 2. ee ee eee cere ecenee 2s

People v. Donovan, 272 Cal. App. 2d 413, 77 Cal.

es Ob) 4l

People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488 (1952)...... 2s

People v. Spriggs, 36 Cal. Rptr. 841, 389 P.2d 377,

60 Cal. 2d 6. Riana Sree a ee 24, 26

People v. Williams, 22 Ill. 2d 498, 177 N.E.2d 100

(1961); cert. denied, 369 US. 806 (1962) .... 2-2-2 eee: 41

Pevey v. Alexander Pool Co., 244 Miss. 3S. 139 So.2d

ORE.) BBS ee Oe Oh ere re te ee ll 21

Pointer v. Texas, 380 U.S. 400 (1965) ......---++--> 32,33

Portales v. Bell, 72 N.M. 80, 380 P.2d 826 (1963) .....---- 41

Roberts v. Interstate Life, 232 Miss. 134, 98 So.2d

OCT Ey, Sea Ra ue ae ea 23

Rosen v. United States, 245 U.S. 467 (1918) .....------ 29-30

Rossano v. Blue Plate Foods, Inc., 314 F.2d 174 (Sth

Cir.), cert. denied, 375 US. 866 (1963) a a ae gr ie 40

Roundtree v. State, 107 Miss. 166, 65 So. 125 (1914). ee ee 22

Sanders v. State, 237 Miss. 772, 115 So.2d 145 (1959). ...... 27

Scolari v. United States, 406 F.2d 563 (9th Cir.),

cert. denied, 395 US.981 (1969) .....----+--++--5- 24

Shapiro v. Thompson, 394 U.S. 618 neni 15

Shelton v. Tucker, 364 U.S. 479 (1961) .....------+---> 27

* Sherbert v. Verner, 374 US. 398 (1963) ......----+---+: 15

Skinner v. Oklahoma, 316 U.S. 535 (1942) ....---------- 15

Smith v. Illinois, 390 U.S. 129 (1968) ......-----+-> 32,40

Smith v. United States, 331 F.2d 265 (8th Cir. 1964),

cert. denied , 379 U.S. 824 (1964) .....---- secre: 41

Specht v. Patterson, 386 U.S. 605 (1967)

(vi)

State v. Hines, 270 Minn. 30, 133 N.W.2d 371 (1964) ....... 41

State v. Larsen, 91 Idaho 42, 415 P.2d 685 MO oo ka css 25

. State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273 Se 41

State v. Sejuelas, 94 N_J. Super. 576, 229. A.2d 659

ws Co ee ee 25

Street v. New York, 394 U.S. 576 OOO tiger oS oe 12

Stoots v. Commonwealth, 192 Va. 857, 66 S.E.2d

sete olga A ee OO Pe es 41

Sucher Packing Co. v. Manufacturing Cas. Ins. Co.,

245 F.2d 513 (6th Cir. 1957), cert. denied, 355

ee ee ce 24

Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 | eee 25

Thomas v. Maryland, 186 Md. 446, 47 A.2d 43 Ss Saree 25

Townsend v. Burke, 334 U.S. 736 hn Se OS ae 32

United States v. Annunziato, 293 F.2d 373 (2d Cir.)

(per Friendly, J.), cert. denied, 368 US. 919

a EOE OE ee ome

United States v. Browne, 313 F.2d 197 (2d Cir. 1963)...... di

United States v. Dovico, 261 F. Supp. 860 (S.D.N.Y.

1966), aff'd, 380 F.2d 325 (2d Cir.), cert. denied,

er ee Oi ets 24

United States v. Freeman, 302 F.2d 347 (2d Cir.

1962), cert. denied, 375 U.S. 958 DR gi 36

United States v. Harris, 403 US.573 .................. 24

United States v. Lineberger, 444 F.2d 122 (4th Cir. 1971) ... .36

United States v. Seyfried, 435 F.2d 696 (7th Cir.),

cert. denied, 402 US.912(1971) .................. 24

United States v. Stamps, 430 F.2d 33 (5th Cir. an, BEERS 36

United States v. Wade, 388 U.S. 218 Wo a 30

Washington v. Texas, 388 U.S. 14 ( i) eee passim

Wilkinson v. State, 143 Miss. 324, 108 So. 711 (1926) .... . .35

(vii)

Constitution and Statutes:

United States Constitution, Amend. VI .........---- 3, 19, 32

United States Constitution, Amend. XIV .......-+--++++>:> 3

y Ri Sele oy 6) Ee a ee ade 2

Alaska R. Civ. Proc. 43(gK11) (1963) .......---+-+--+5> 36

Ark. Stat., §28-706 (1962) ..... 2.2... eee ee eee ee eeee 36

Cal. Evid. Code §785 (1965) .......- 2-2 - ee eee ee eeee 36

Canal Zone Code, Title 5, §2824 (1963) .......-..--+-- 36

Idaho Code Ann., §9-1207 (1948) ......------e ee eee: 36

Ind. Stat. Ann., §2-1726 (1968) ......------+++2eeeeee 36

Kan. Stat. Ann., §60-420(1965) .......---+++.eeeees 36

Ky. R. Civ. P. 43.07 (1963) ... 2.6.0 eee ee ee eee eee 36

Mass. Gen. Laws Ann., Ch. 233, §23 (1959). ............ 36

Miss. Code, §1710 (1942) ... 2... 2. eee e ee eee eee eees 38

Mont. Rev. Codes, §93-1901-8-(1964) ........--....-.-- 36

ee | er re re ee 36

N.Y. Cplr, §4514 (1963) .... 2.6... eee eee eeeee ‘a4 bes 36

Cun. Mine, Stat, BAB SIO CUSED) . «wo eee ec sev cee 36

Wyo. Stat. Ann., §1-143 (1957) .. 0... 2-2 eee eee ener 36

Miscellaneous:

Advisory Committee Notes on Rule 607 of the

Proposed Rules of Evidence for the US. Courts ....----- 37

Advisory Committee Notes to Rule 804 (second

ee Se ge er ee Ae ee 2 ee a 24

Federal Rules of Civil Procedure, Rule 43(a) ......-.----> 40

J. Goebel, History of the Supreme Court of the

United States: Antecedents and Beginnings to

1801. (1971) ....... De Nae Ra Oe es 8 he 42

Jefferson, Declarations Against Interest, 58 Harv. L.

ee AR ass eee olay aes 22

C. McCormick, Evidence) §38 (1954) ......-.---+-+++-+-

(viti)

C. McCormick, Evidence §54953 (1954) ............._. 25

H.T. McElroy, Mississippi Evidence oe ge | ee 22

Model Code of Evidence, Rule 106(1)(1942) .........._. 37

Model Code of Evidence, Rule $09(1) (1943)’............ 25

E. Morgan, Basic Problems of Evidence, §70-71 (02). 6 os 36

Morgan, Declarations Against Interest, 5 Vand. L.

visitas tone ee Oe 25

Orfield, The Hearsay Rule in Federal Criminal Cases,

32 Ford. L. Rev. 499 (1964) ...... BE og cso sk, 25

Proposed Federal Rules of Evidence, Rule 607.......... 36-37

Proposed Federal Rules of Evidence, Rule614............ 41

Proposed Federal Rules of Evidence, Rule 804....._... 24, 28

Uniform Rules of Evidence, Rule 20(1953) ............. 37

Uniform Rules of Evidence, Rule ses os 25

3A J. Wigmore, Evidence §898 (Chadbourn ed. , RS 38

3A J. Wigmore, Evidence §899 (Chadbourn ed. as, Se Oe 38

3A J. Wigmore, Evidence § 1018 (Chadbourn ed. 1970)... .. . 29

5 J. Wigmore, Evidence §1476 (3d ed. 1940) ........... 23

5 J. Wigmore, Evidence §1477 2 NS pI ase aE 23-24

Wright, Uniform Rules and Hearsay, 26 U. Cinn. L.

sscthicitlety a uae ad a CR Oe 25

— yee of the United States

OCTOBER TERM, 1971

No. 71-5908

LEON CHAMBERS,

Petitioner,

Vv.

STATE OF MISSISSIPPI,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

BRIEF FOR THE PETITIONER

OPINION BELOW

The opinion of the Supreme Court of Mississippi with

the dissenting opinion of Justice Rogers (A. 150-58)’ is

References to “A.” are to the single printed appendix

which the parties prepared for the Court. References to “R.” are to

the original record of the circuit court of Amite County which has

been filed with the Clerk.

reported at 252 So. 2d 217 (1971). No Opinion was

rendered by the circuit court of Amite County, Missis-

- Sippi.

JURISDICTION |

The judgment of the Supreme Court of Mississippi was

entered on June 28, 1971 (A. 159), and rehearing denied

on September 14, 1971 (A. 160). Mr. Justice Stewart

signed an order on November 29, 1971, extending to

December 23, 1971, the time for filing the petition for

writ of certiorari. The petition for writ of Certiorari was

filed on December 23, 1971, and was granted on March

20, 1972 (A. 165). The jurisdiction of this Court rests on

28 U.S.C. $1257(3). Mr. Justice Powell admitted the

petitioner to bail by entering an order on February 1,

1972 (A. 162) that he reaffirmed with opinion on

February 14, 405 U.S. 1205 (A. 162-63)..

QUESTIONS PRESENTED

The petitioner Leon Chambers was charged with

murder and put on trial for his life. He based his defense

on being able to show that another man, Gable

McDonald, had repeptedly confessed to the crime. State

rules of evidence prevented him, however, from demon-

strating his innocence. First, Mississippi hearsay rules

Prevented Chambers from introducing McDonald’s oral

confessions. Second, when McDonald appeared as a

defense witness and retracted his written confession,

Mississippi witness rules prevented Chambers from cross-_ .

examining and impeaching him. The questions presented

pes are: -—. ; .

1. Does the Mississippi hearsay rule violate the due

Process clause of the Fourteenth Amendment and the

compulsory process clause of the Sixth Amendment

insofar as it prevents witnesses for the accused from

testifying that someone else confessed to the crime?

2. Does a witness for the accused become a witness

against him, within the meaning of the Sixth and

Fourteenth Amendments, when he gives material testi-

mony that directly contradicts the defense?

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the

United States provides in pertinent part:

_ “Tn all criminal prosecutions, the accused shall enjoy

the right...to be confronted with the witnesses

against him [and] to have compulsory process for

obtaining witnesses in his favor. . . gg :

The Fourteenth Amendment to the Constitution of

the United States provides in pertinent part:

“Section 1....{NJor shall any State deprive any

person of life, liberty, or property, without due

process of law. ...”

STATEMENT

The petitioner Leon Chambers was convicted in

October, 1970, and sentenced to life imprisonment for

the murder of Officer Aaron Liberty. Chambers asserted

his innocence at trial and based his defense on showing

that another, Gable McDonald, had killed Officer

Liberty. |

Mississippi rules combined to prevent Chambers from

offering McDonald’s oral confessions, and from cross-

examining and impeaching McDonald as an adverse

witness. He argued on appeal that the Mississippi hearsay

and witness rules were unconstitutional as applied,

insofar as they prevented him from proving his inno-

cence. The Supreme Court of Mississippi affirmed his

(

conviction on June 28, 1971, over the dissent of Justice

Rogers (A. 150-58).

l. The Shooting

Officer Liberty, a black policeman, was killed on the

night of June 14, 1969, while making an arrest. An

unruly crowd of fifty to sixty blacks had gathered to

prevent him and fellow officers from arresting a black

youth for disturbing the peace. While standing guard with

a riotgun, Liberty was shot four times in the back and

side from somewhere in the alley behind him. He could

not have seen who shot him (A. 63; R. 208, 245), but

before he died, he turned and fired two shots into the

alley.

- The first shot passed over the heads of the crowd. The

second struck petitioner Chambers who, by that time,

was running down the alley (R. 246). Chambers fell to

the ground ‘with severe head wounds. The officers

assumed he was dead and left him in the alley. He lay

there until several acquaintances, including Gable

McDonald, gathered him up and drove him to the

hospital. When the sheriff learned that night that

Chambers was still alive and wounded, he placed him

under arrest.

2. The Pretrial Proceedings

Chambers and one James Williams? were jointly

indicted in October, 1969, for the murder of Officer

2Deputy Sheriff Anthony: “[T]his man fell, and fell so

hard, I never seen anything fell no harder and wasn’t dead” (R.

184); Deputy Sheriff Geter: “I though he was blowed all to pieces”

(R. 216).

*There was no evidence that more than one person shot.

Officer Liberty. The 'shots all apparently came from a single

, | | : j

nce meme acacia,

Liberty. The Reverend Stokes, a local preacher and civil

rights leader, learned meanwhile that Gable McDonald

had admitted within hours of the shooting that it was he

who killed Officer Liberty. Acting on his own initiative,

Stokes contacted McDonald shortly after Chambers was

indicted. McDonald talked with Stokes on November 8,

1970, and agreed to give a sworn confession.

Stokes called Chambers’ lawyer and informed him, for

the first time, that McDonald had confessed to the

murder (R. 362-64). They arranged a meeting for the

following Monday, November 10, at which McDonald

gave a sworn statement that he shot Officer Liberty (A.

~ 13-18; R. 361-74). The statement was then read back to

McDonald, and he signed it under oath. f

McDonald freely confessed to the murder, despite his

own apprehension about repeating the confession in

court. He was confessing, he said, because another

22-caliber gun. The fact that the state proceeded against both

Chambers and Williams belies any suggestion that it knew who shot

Officer Liberty.

The state could not prove that Williams shot Officer Liberty.

Williams was present at the scene of the attempted arrest. He was

wrestling with the police and shouting “kill ’em” about the time

Officer Liberty was shot. Later, he used his car to drive

Chambers to the hospital. But that was all. The court directed a

verdict in his favor after presentation of the state’s case (R. 496).

4Q. You heard [the Reverend] Mr. Stokes that he had told

you to tell the truth, and nothing but the truth. You realize that

you are not under arrest, that you are not detained in any way by

us or anyone else. A. Yes, sir.

Q. Did you come voluntarily? A. Yes.

Q. Nobody compelled you to come? A. No.

Re *. * * * *&

Q. I want to make it clear to you that you are not compelled to

tell us anything; do you understand that? A. Yes, sir.

[footnote continued ]

person (James Williams) already knew that he killed

Liberty (A. 15-17). He said that he used his own gun to

shoot Officer Liberty, and discarded it afterwards. He

_ Specifically described the unusual weapon as a nine (9)

cartridge .22-caliber revolver. McDonald was then taken

to the sheriff, who placed him under arrest.

McDonald retracted his signed confession one month |

later (A. 19-59). He claimed at his preliminary hearing in |

December that the Reverend Stokes induced him to

confess by promising that he ‘ dn’t have to go to

jail” (R. 50), and that he would the proceeds of a

lawsuit by Chambers against the City of Woodville. He

denied that he shot Officer Liberty and claimed that he

was in a local cafe at the time of the shooting.

The state did not challenge McDonald’s retraction. It

was apparently unaware that McDonald had _inde-

pendently and separately confessed to three of his

acquaintances within hours after the shooting. The justice

of the peace accepted McDonald’s rettaction and, in the

absence of other evidence, dropped the charges against

him.

eS ee oe ‘

Q. Who shot Officer Liberty? A. I did.

Q. What type of gun did you use? A. A .22 caliber.

Q. Who did it belong to? A. Me.

: .

* * * *

Q. Where was Officer Liberty? A. Right in front of me. |

~__Q. Where did the shot strike his body? A. I imagine it did, he -- .

s * » * *

Q. Are you willing to testify in court if you are called upon to

do so? A. No, not unless I had to.

Q. But if you were called upon to do so would you tell the

truth? A. I do not know, it is pretty rough in some things. (A. ‘

13-18).

3. The Trial

Fen months later, in October, 1970, Chambers was put

on trial for his life.’ He defended his innocence on two

grounds.

First, he denied that he shot Officer Liberty. Thomas

Russ, who stood near and watched Chambers during the

shooting, swore that Chambers did not shoot Officer

Liberty (A. 131-32). Three of Liberty’s fellow officers,

including a deputy sheriff who was standing three feet

from Liberty (R. 183) and six feet from Chambers (R.

242), denied seeing Chambers with a gun.® The state

never found the .22-caliber murder weapon, despite a

“diligent search” of the alley where Chambers fell (R.

228). Nor was there any evidence that Chambers owned a

.22-caliber gun.

Second, and again in his own defense, Chambers

accused Gable McDonald of killing Officer Liberty. The

external evidence pointed to McDonald. One witness,

who saw McDonald in the alley, swore that he saw

McDonald shoot Liberty (A. 70). Officer Liberty’s first

cousin, William Vaughn, saw McDonald carrying a pistol

immediately after the shooting (A. 139-41). Finally,

McDonald admitted that he owned two .22-caliber

pistols—a nine-shot .22 that he “lost” before the shoot-

ing, and another .22 magnum that he purchased just after

the shooting (A. 80-82, 138-39; R. 353). _

‘Venue was transferred to Amite County from Wilkinson

County after the defense submitted that the malice of the local

police and sheriff's office would frustrate the impaneling of an

impartial jury in Wilkinson County (A. 6-9).

A fourth deputy sheriff, Gordon Geter, remembered at trial

that he had seen Chambers shoot Officer Liberty sixteen months

earlier. Yet the record shows that Geter spent the very day after

the murder nervously questioning members of the black com-

munity to discover who shot Liberty (R. 304-06).

Chambers based his case against McDonald on

McDonald's own confessions. But a hapless combination

. Of rules frustrated his defense. On the one hand,

Mississippi hearsay rules barred his witnesses from

repeating McDonald’s oral confessions. On the other -

hand, after McDonald appeared as a defense witness -and -

retracted his written confession, Mississippi witness files

barred the defense from cross-examining him and from

impeaching him with prior oral confessions.

Chambers began his defense as follows: He first moved

to introduce McDonald’s oral confessions. He called Sam

Hardin who had grown up with McDonald and attended

church with him. Hardin drove McDonald home after the

shooting. On the way home, McDonald confessed that he

shot Officer Liberty.” However, the state objected that

the confession was hearsay, and the court instructed the —

jury to disregard it (A. 73). |

Chambers tried next to offer McDonald’s second

confession. He called Berkley Turner who knew

McDonald and helped him carry Chambers to the

hospital. The court refused, however, to permit Turner to

testify in the presence of the jury. Turner was allowed to

make his statement only after the jury had been excused.

He stated for the record that on the way to the hospital

McDonald told him that he shot Liberty. McDonald also

warned Turner several days later not to go to the police

(“mess him up’’).®

7A. When I got ready to come home, he come and asked me,

he said, can I go home with you. I told him, yes, you can go home

- with me.

* * * * e

Q. All right, now, on that ride home, did Gable McDonald tell

you that he had killed Aaron Liberty or shoot him? A. He did. (A.

_ 73). irerhs

*Q. All right, did at that time, either going to or coming back

The defense tried to offer McDonald’s confession to

Turner as a hearsay exception for declarations against

penal interest. The court refused to recognize such an

exception (A. 128). The jury was not allowed to hear

McDonald’s confession to Turner.

Denied the benefit of McDonald’s oral confessions, the

defense offered his written confession. To lay a basis for

the sworn statement, the defense had no choice but to

call McDonald as a defense witness. At the same time,

because McDonald had already retracted his written

confession once, the defense moved to examine

McDonald as an “adverse witness” through the use of

leading questions and cross-examination (A. 10-12). The

court subpoenaed McDonald as a defense witness, but

reserved ruling on the adverse-witness motion (A. 60-61).

On that basis, the defense examined McDonald

narrowly. It questioned him only for the limited purpose

of authenticating his written confession and reading it to

the jury. It refused to provoke statements from

McDonald that it could not cross-examine or impeach.

from Centerville [Hospital] , Gable McDonald tell you that he shot

Aaron Liberty? A. He said that he was the one.

om * * * *

_ Q. All right, now, Berkley, did he ever tell you that again? A.

He didn’t put in that word, but I met him I don’t know, about the

following Sunday after then or a week later, but anyway he said

just don’t mess him up.

= oo ee ee

Q. And when he told you don’t mess him up, you— A. Well, I

just figured that he was the one did it.

* * = * *

Q. And he had already told you that he did it? A. Yes, sir. (A.

129). :

®Mississippi makes no provision for the court to call its own

witnesses.

- 10

When examined in turn by the state, McDonald

retracted his sworn confession and denied any part in the

shooting. He said that he was drinking beer with Berkley

: Tumer at the time. He denied carrying a gun that day and

claimed to have lost his own nine-shot .22 revolver several

months before the shooting (A. 94-120). :

McDonald’s testimony for the state directly con-

tradicted evidence in the record. Berkley Turner denied

even seeing McDonald before the murder (A. 122).

William Vaughn testified that he saw McDonald with a

gun just after the shooting (A. 141). Sam Hardin said that

he personally saw McDonald shoot Officer Liberty (A.

70).

More important, McDonald’s testimony directly

contradicted the case for the defense. Chambers based his

defense on showing that’ it was not he, but McDonald

who killed Liberty. Yet when he moved again to

cross-examine McDonald, the court ruled that McDonald

was not “adverse” to him under Mississippi law:

“He may be hostile, but he is not adverse in the

sense of the word, so your request will be over-

ruled” (A. 121).

Finally, denied the right to cross-examine McDonald,

the defense tried to impeach him with still a third prior

confession. It called Albert Carter. McDonald had known

Carter for twenty-five years and visited him the day

following the murder. But the court again excused the

jury, and did not allow it to hear Carter’s testimony.

Carter then stated for the record that McDonald had

confessed to the shooting (A. 133-39). McDonald

explained to Carter that he shot Officer Liberty because

he was afraid that otherwise, Liberty would shoot him.

He told Carter that he used his own .22 revolver and that

he concealed it after the shooting.'° :

"°Q. Did he [Gable McDonald] ever tell you, Albert, that he

was the one who shot this man? A. He did.

TP a SEO OI Ea a ee

The defense offered Carter’s testimony—not as

hearsay—but for the purpose of impeaching McDonald

with a prior inconsistent statement. The court rejected

the offer. It had already barred the defense from

cross-examining McDonald, and on the same basis, it now

barred the defense from impeaching him with a prior

confession (A. 139).

4. The Verdict and Appeal

On October 29, 1970, the jury found Chambers guilty

of murder and imposed a sentence of life imprisonment.

The defense moved under the Fourteenth Amendment to

set aside the verdict for failure to receive McDonald’s oral

confessions ail to permit the defense to cross-examine

and impeach McDonald (A. 146-47) The motion was

denied (A. 148).

Chambers appealed his conviction to the Supreme

Court of Mississippi. He urged the court to treat

McDonald’s oral‘ declarations against interest as an

exception to the state hearsay rule and argued in

addition, that he had a federal constitutional right to call

Hardin, Turner and Carter as witnesses on his behalf. He

also argued that he had a right under both state law and

2 a7 * * .

Q. Did he tell you why he shot him? A. He said if he hadn’t shot

him, he was going to shoot him.

Q. That’s why he, Gable, shot Liberty because if he didn’t

Liberty was going to shoot him, Gable, or somebody? A. Yes, sir.

Q. Did he tell you what kind of gun that was that he did the

killing with? A. Yes, sir... . A twenty-two revolver.

- Q. Did he tell you where he put the twenty-two? A. Yes,

sir... . He said he had left it at Ed Cain’s. (A. 137-38).

federal constitutional law to cross-examine and impeach

McDonald as a witness against him.

The court did not expressly address his constitutional

‘daims, but nonetheless implicitly denied them (A.

150-55)."* It held that McDonald’s oral confessions were

inadmissible under the Mississippi hearsay rule. In doing

80, it rejected a proposal by Justice Rogers to create a

hearsay exception for declarations against penal interest.

It further held that Chambers had no right to cross-

examine and impeach McDonald as a witness against him,

because McDonald did not directly incriminate him:

“McDonald’s testimony was not adverse to

appellant; it was merely in McDonald’s defense and

in explanation of his rather unusual confession.

ae did he point the finger at Chambers” (A.

154).

Justice Rogers, in dissent, would have allowéd Chambers

to offer McDonald’s prior confessions to impeach him (A.

156-58).

SUMMARY OF THE ARGUMENT

Chambers was denied a fair trial in violation of the

Sixth and Fourteenth Amendments. The Mississippi

hearsay rule barred him from offering the exculpatory

testimony of witnesses in his favor. The party-witness

rule barred him from confronting the witnesses against

him. They effectively prevented him from putting on a

defense.

"!The constitutional questions were properly before the court

bélow and necessarily passed upon. See Street v. New York, 394

US. $76, 581-82 (1969).

I. The Mississippi hearsay rule is unconstitutional, as

applied in this case, because it deprived Chambers of

exculpatory .testimony. for no legitimate reason. The rule

bars the accused in a criminal proceeding from offering

third-person confessions to exculpate himself. It operated

here to prevent witnesses for Chambers from testifying

that another, Gable McDonald, had confessed to the

murder of Officer Liberty.

Chambers has a constitutional right to offer Seatimeny

on his behalf. The Due Process Clause of the Fourteenth

Amendment prohibits the states from denying the

accused the benefit of exculpatory evidence. Brady v.

Maryland, 373 U.S. 83 (1963). Due Process gives the

accused not only access to material evidence in his favor,

but an opportunity to offer it on his behalf. -

The Fourteenth Amendment further protects excul-

patory testimony through the Compulsory Process Clause -

of the Sixth Amendment. The Compulsory Process

Clause guarantees the accused the benefit of “witnesses in

his favor.” It entitles him to secure their presence at trial

and offer their testimony to the jury. Washington vy.

Texas, 388 U.S. 14 (1967). Like the Due Process Clause,

it operates as a constitutional rule of evidence to: render

admissible on: behalf of the accused the material testi-

mony of witnesses in his favor.

The Mississippi rule furthers no governmental interest

that would justify its constitutional burdens. It has been

called “an intellectual disgrace to our system of

evidence.” It rests on an untenable distinction between

declarations against penal interest and declarations

against pecuniary interest. It discriminates against the

accused, by forbidding him to use third-person confes-

sions in his favor while permitting the state to use them

against him. Finally, it serves no purpose here, where

external evidence corroborated the confessions and the

declarant himself was present at trial.

HI. The accused in a criminal proceeding has a Sixth

and Fourteenth Amendment right to cross-examine the

witnesses “against” him and impeach them with prior

‘statements. The court below ruled that McDonald did not

testify against Chambers, because. he did not directly

incriminate Chambers. To that extent, it denied

Chambers an opportunity to defend himself and arbi-

trarily abridged his right of confrontation.

The right of confrontation ‘entitles the accused to

cross-examine and impeach any person whose adverse

testimony has a material bearing on his defense.

Chambers based his defense on proof of McDonald’s

guilt. McDonald was the only other person under

suspicion. To that extent, he and Chambers had opposing

interests in the outcome of the trial. McDonald became a

witness against Chambers when he retracted his sworn

confession and denied any part in the murder.

Chambers was barred from confronting McDonald as a

witness against him by a local rule that prohibits a party

from impeaching his own witness. The rule is a “serious

obstruction to the ascertainment of truth” because it

permits false testimony to pass unexamined and unim-

peached. It rests on the irrational assumption that a party

has a real choice about the witnesses he calls. Finally, its

purposes are better served by allowing the court to call its

own witnesses and subject them to neutral and restrained

examination by both parties.

ARGUMENT

THE MISSISSIPPI HEARSAY RULE IS UNCON-

STITUTIONAL INSOFAR AS IT PREVENTS

WITNESSES FOR THE ACCUSED FROM

TESTIFYING THAT SOMEONE ELSE CONFESSED

TO THE CRIME

A state rule is unconstitutional whenever it burdens a

“fundamental personal right” for less than “compelling”

reasons. Dunn v. Blumstein, 405 U.S. 330, (1972).'?

The Mississippi hearsay rule prevented Chambers from

exercising his rights under the Sixth and Fourteenth

Amendments to offer the testimony of witnesses in his

favor. The rule is unconstitutional because it interfered

with his constitutional rights without furthering a legit-

imate state interest.

A. Chambers Has a Right to Offer the Exculpatory

Testimony of Witnesses in His Favor

The accused in a criminal proceeding has a consti-

tutional right to assert his innocence, and to show that it

was not he but another person who committed the crime.

He is entitled to know if the other person confessed to

the crime, Brady v. Maryland, 373 U.S. 83 (1963), and to

compel the attendance at trial of witnesses to the

confession. Washington v. Texas, 388 U.S. 14 (1967).

127he Constitution protects “basic civil rights” (Skinner v.

Oklahoma, 316 US. 535, 541 (1942) ), against all but the most

compelling state interests. See Kramer v. Union Free District 395

US. 621 (1969) (right to vote); Shapiro v. Thompson, 394 US.

618 (1969) (right to travel); Dennis v. United States, 384 US. 855,

873 (1966) (fair trial); Sherbert v. Verner, 374 US. 398, 406

(1963) (freedom to exercise religion); NAACP v. Button, 371 US.

415, 438 (1963) (freedom of speech); Bates v. Little Rock, 361

US. 516, 524 (1960) (freedom of association).

The Constitution guarantees the accused more than the

mere disclosure and attendance of exculpatory witnesses.

It entitles him to offer their testimony on his behalf. To

‘that extent, the due process clause of the Fourteenth

Amendment and the compulsory process clause of the

Sixth Amendment serve as constitutional rules of

evidence. They render admissible on behalf of the

accused the material testimony of witnesses in his favor.

1. The Due Process Clause Protects Exculpatory

Testimony

The Due Process Clause of the Fourteenth Amendment

guarantees the accused a fair trial. It gives him the right

to put on evidence in his favor and to offer third-person

confessions to ‘exculpate himself. It forbids the states

from acting, even in good faith, to deny him an

opportunity to defend himself.

Due Process entitles the accused to put on an

affirmative defense. Specht v. Patterson, 386 U.S. 605,

610 (1967); Ferguson v. State, 365 U.S. 570 (1961). It

gives him the right to “present evidence” on his behalf, '*

and to “offer testimony” by witnesses in his favor:

“A person’s right to reasonable notice of the

charge against him, and an opportunity to be

heard in his defense—a right to his day in

court—are basic in our system of jurisprudence;

and these rights include, as a minimum, a right to

examine the witnesses against him [and] to offer

testimony ....” Jn re Oliver, 333 U.S. 257, 273

(1948).

13“The right to present evidence is, of course essential to the fair

hearing required by the Due Process Clause. And, as we have noted

above, this right becomes particularly fundamental when the

proceeding allegedly results in a finding that a particular individual

was guilty of a crime.” Jenkins v. McKeithen, 395 US. 411, 429

(1969) (Opinion of Marshall, J.).

Chambers was denied the right to offer the testimony of

three witnesses in his favor. The Mississippi hearsay rule

barred them from reciting McDonald’s confessions as

exculpatory testimony. The rule prevented Chambers

from putting on a defense and, thereby, violated the

principles of Brady v. Maryland, 373 U.S. 83 (1963).

The petitioner in Brady, like Chambers, was found

guilty of a murder to which someone else had confessed.

The state denied him the benefit of the third person

confession by concealing its existence. The Court

reversed, holding that the state denied the petitioner Due

Process when it suppressed a confession that was “‘mate-

rial’’ to his defense:

“We now hold that the suppression by the prose-

cution of evidence favorable to an accused upon

request violates due process where the evidence is

material either to guilt or punishment, irrespec-

tive of the good faith or bad faith of the

prosecution.” 373 U.S. at 87.

Brady concluded that the accused has a constitutional

right to know of an exculpatory confession in his favor.

The Court assumed that the accused could offer the

confession in evidence, because state law so provided. '

Mississippi, here, has circumvented Brady by challenging

that underlying assumption. It has denied Chambers the

benefit of McDonald’s confessions—not by concealing

them from him—but by rendering them inadmissible on

his behalf. .

The effect on the accused is the same whether the state

suppresses exculpatory evidence or renders it inadmissible

14Maryland permits third-person confessions to be offered under a

hearsay exception for declarations against penal interest. Brady v.

State , 226 Md. 422, 174 A.2d 167 (1961).

on his behalf. In each case, the state denies him the right

to be judged by all available evidence.

A state cannot deny with one hand what Due Process

forces it to disclose with the other. The Constitution does

not hinge the right of disclosure on arbitrary rules of

evidence. If it has any meaning, Brady gives the accused

not only access to exculpatory testimony but an oppor-

tunity to offer it on his behalf.

It makes no difference that Mississippi allegedly applied

its hearsay rule in good faith. The Court has now held

unanimously that a state violates Due Process—whatever

its good faith—when it effectively denies the accused the

benefit of “material” evidence in his favor. See Giglio v.

United States, 405 U.S. 150 (1972). In any event a “good

faith” effort by the Prosecution to see that justice was

done ought to have led them to withhold technically

available evidentiary objections.

McDonald’s oral confessions were material evidence in

favor of Chambers. Chambers based his own innocence

on the evidence of McDonald’s guilt. McDonald’s separate

confessions to Hardin, Tumer and Carter were important

evidence of his guilt. They were old friends and neighbors

of his; he had no interest in lying to them. By any

analysis, Mississippi violated Due Process by applying its

rule to prevent Chambers from offering the confessions

in his defense.

2. The Compulsory Process Clause Protects

Exculpatory Testimony

The Fourteenth Amendment gives additional

protection to exculpatory testimony through its incor-

poration of the Compulsory Process Clause. Duncan y.

Louisiana, 391 U.S. 145, 148 (1968). The Compulsory

Process Clause of the Sixth Amendment gives the accused

the right to obtain “witnesses in his favor”:

“In all criminal prosecutions, the accuséd shall enjoy

the right...to have compulsory - process for

obtaining witnesses in his favor....” U.S. Const.

amend. VI.

The right of the accused to obtain witnesses in his

favor includes more than the presence of his witnesses at

trial. It entitles him to offer their testimony to the jury.

The Court summed it up in Washington v. Texas, 388

U.S. 14, 17 (1967).

“The right to offer the testimony of witnesses, and

to compel their attendance, if necessary, is in plain

terms, the right to present a defense, the right to

present the defendant’s version of the facts... to

the jury so it may decide where the truth lies.”

The petitioner in Washington, like Chambers, was

found guilty and sentenced to life imprisonment on a

charge of murder. He claimed that he was innocent and

accused a codefendant of committing the crime. When he

offered the codefendant’s confession, however, a Texas

witness rule prevented the codefendant from testifying

on -his behalf. The Court unanimously reversed. It

declared the Texas rule unconstitutional ‘because it

prevented the accused from: offering the confession to

exculpate himself.

The principles of Washington control the present case.

Texas used a witness rule to exclude the codefendant’s

testimony. Mississippi used a rule of evidence to bar the

exculpatory testimony of Chambers’ witnesses. Both

rules had the same effect. In each case, they denied the

accused the benefit of material testimony that someone

else committed the crime.

The decision in Washington did not rest on the

difference between witness rules and evidence rules. The

result surely would have been the same if Texas had used

_a rule of evidence to exclude the codefendant’s testi-

mony. The Compulsory Process Clause invalidates witness

rules and rules of evidence alike whenever they render the

exculpatory testimony of defense witnesses inadmis-

sible: “[The] Sixth Amendment was designed to make

the testimony of a defendant’s witnesses admissible on

his behalf in court . . . . ” 388 U.S. at 22.

This case and Washington both involve third party

confessions. The codefendant in Washington was ready to

exonerate the accused by reciting his own confession.

The witnesses here were ready to exculpate Chambers by

recounting McDonald’s confessions. In each case, the

witnesses offered confessions to exculpate the accused.

The decision in Washington did not rest on the identity

of the witness. The right of an accused to call witnesses

does not depend on whether they recite their own

confessions or the confessions of another. It depends on

the importance of their testimony to his defense. The

accused has a right to put his witnesses on the stand

whenever their testimony is “relevant and material to the

defense.” 388 U.S. at 23.

In any case, the witnesses for Chambers were at least as

credible as the codefendant in Washington. The

codefendant had already confessed once and been con-

victed of committing the murder himself. He had nothing

to lose by repeating his confession to exonerate a friend.

Texas sought to exclude his confession for that very

reason.

The witnesses for Chambers, on the other hand, had no

personal interest in accusing McDonald. The three of

them—Hardin, Turner and Carter—were old friends of

| McDonald. Nonetheless, they were ready to swear in

McDonald’s*very presence that he had confessed to the

| murder. The independent testimony of each of them

corroborated the others and was corroborated, in turn,

by the eye-witness who saw McDonald shoot Liberty.

There was little reason to doubt the truth of their

testimony. :

B. Mississippi Has No Legitimate Interest

In Applying Its Hearsay Rule

The Constitution prohibits the states from imposing

burfdens on fundamental freedoms for any but the most

compelling reasons. The Mississippi hearsay rule, which

interferes with the right of the accused to offer excul-.

patory testimony, furthers no legitimate governmental

interest. The rule is widely discredited. It applies in an

arbitrary fashion. It discriminates against the accused in

favor of the prosecution. It seeks to achieve purposes that

are better served by less restrictive means.

Mississippi follows the familiar rule for hearsay. It

defines hearsay to include all out-of-court statements

offered for the truth of the facts asserted, Handshoe v.

Daley, 211 Miss. 189, 51 So. 2d 230 (1951), and—with

numerous recognized exceptions—renders them inadmis-

sible. Pevey v. Alexander Pool Co., 244 Miss. 25, 139 So.

2d 847 (1962). It excludes hearsay on the grounds that

_ statements untested by oath and cross-examination are

inherently untrustworthy. Citizens Bank of Coldwater vy.

Callicott, 178 Miss. 747, 174 So. 78 (1937).

Mississippi has created a number of exceptions to its

hearsay rule. It permits some hearsay statements to be

offered into evidence where circumstances render them

trustworthy. Statements that are made iristinctively at

the happening of an event, and without time for

reflection, are admissible on the ground that they are

likely to be true. Houston Contracting v. Atkinson, 251

Miss. 220, 168 So. 2d 797 (1964).5

'SChambers could not take advantage of the res gestae exception,

because the court limited it to spontaneous statements made at

both the time and scene of the shooting (R. 198). McDonald

Declarations against interest, too, are admissible in

Mississippi on the assumption that people do not make

prejudicial statements about themselves unless they are

true.'© To fall within the exception, however, the

Statement must be against pecuniary interest. H. T.

McElroy, Mississippi Evidence § 46 (1955). Declarations

against penal interest do not qualify. The “hazard” to the

declarant of being punished is considered insufficient to

render his statements believable:

“It is all hearsay; and no exception can be made

because the party confessing has put himself in a

position of some hazard . . . . [E] xperience justifies

the rejection of the hearsay statements of a male-

factor who, having no longer any concern as to his

own fate, may wish to serve a pal, a kinsman, or a

friend.” Brown v. State, 99 Miss. 719, 720, 55 So.

961, 962 (1911).

Mississippi treats confessions of guilt, made out of

court, like other declarations against penal interest and

excludes them. Accordingly, while Mississippi permits the

accused to show that someone else committed the crime

charged, Roundtree v. State, 107 Miss. 166, 65 So. 125

(1914), it prohibits him from offering the other person’s

confession to do so:

“It is well settled that testimony going to show

confessions and admissions on the part of third

persons made out of court is not admissible in

confessed to Hardin, Turner and Carter some hours after the

shooting and after leaving the scene.

"€See Jefferson, Declarations Against Interest, 58 Harv. L. Rev. 1,

63 (1944):

“The basis for the exception for declarations against interest

comes from the disserving quality of the declaration...

which gives the declarations some element of trustworthiness

and compensates to some extent for the absence of the oath

and opportunity for cross-examination.”

exculpation of those on trial for crime. It is mere

hearsay, and is excluded for this reason....”

Brown vy. State, 99 Miss. 719, 55 So. 961 (1911).

The court below reaffirmed its exclusionary rule for

declarations against penal interest.'’ Justice Rogers, in

dissent, would have replaced the rule with the “modern

trend” (A. 157) to allow the accused to offer third

person confessions to exculpate himself. But the major-

ity, citing Brown v. State, infra, upheld the trial court in

excluding McDonald’s oral confessions:

“(T]he reason for excluding testimony like Carter’s

and Turnef’s is because it is hearsay testimony” (A.

155).

1. The Exclusionary Rule for Declarations Against

- Penal Interests Is Widely Discredited

The Mississippi rule that third person confessions are

inadmissible on behalf of the accused has been

condemned by the most learned students of evidence.

John Wigmore writes that “the rule is an intellectual

disgrace to our system of evidence.” 5 J. Wigmore,

Evidence § 1476 at 284 (3d ed. 1940):

“It is therefore not too late to retrace our steps and

to discard this barbarous doctrine which would

refuse to let an innocent accused vindicate himself

even by producing to the tribunal a_ perfectly

'7The admission of McDonald’s written confession did not

derogate from the rule. The Mississippi fule provides that hearsay is

excluded only if the opposing party objects. Fieldler v. State, 235

Miss. 44, 108 So.2d 590 (1959); Roberts v. Interstate Life, 232

Miss. 134, 98 So.2d 632 (1957). The state failed to object to

McDonald’s written confession, so the rule did not apply.

In any case, the respondent conceded in the court below that

the trial court had done nothing to change the long-standing

Mississippi rule on declarations against penal interest (Brief of

Appellee at 16-17). ,

authenticated written confession, made on the very

gallows by the true culprit ....” Jd. §1477 at 290.

Mr. Justice Holmes, in a famous and forceful dissent,

protested the adoption of the rule for the federal courts.

Donnelly v. United States, 228 U.S. 243, 278 (1913).

More recently, the Court itself has criticized the rule. See

United States v. Harris, 403 U.S. 473, 584 (1971)

(Opinion of Burger, C. J.); id. at 594 (Harlan, J.,

dissenting). Rule 804 of the proposed federal Rules of

Evidence, presently under the consideration of the Court,

would abolish the rule altogether in the federal courts:

“The refusal of the common law to concede the

adequacy of the penal interest was no doubt

indefensible in logic, see the dissent by Mr. Justice

Holmes in Donnelly v. United States ....” Advi-

sory Committee Notes to Rule 804 (second revised

draft).

In the meantime, at least half of the federal circuits

have already abandoned the rule’® A growing number of

state courts, too, including California, Illinois and New

York, have discarded it as “unsatisfactory and entirely

arbitrary.”"? As Justice Rogers noted in the court below,

'® United States v. Seyfried, 435 F.2d 696 (7th Cir.), cert.

denied 402 US. 912 (1971); Scolari v. United States, 406 F.2d

563, 564 (9th Cir.), cert. denied, 395 US. 981 (1969); United

States v. Dovico, 261 F. Supp. 862 (S.D.N.Y. 1966), aff'd, 380

F.2d 325, 327 n.2 (2d Cir.), cert. denied, 389 US. 944 (1967);

United States v. Annunziato , 293 F.2d 373 (2d Cir.) (per Friendly,

J.), cert. denied, 368 U.S. 919 (1961); Mason v. United States, 257

F.2d 359, 360 (10th Cir.), cert. denied, 358 US. 831 (1958);

Sucher Packing Co. v. Manufacturing Cas. Ins. Co., 245 F.2d 513,

521-22 (6th Cir. 1957), cert. denied, 355 US. 956 (1958).

'9Hines v. Virginia, 136 Va. 728, 743, 117 S.E. 843, 847

(1923). See also, Deike v. Great Atlantic & Pac. Tea Co.,3 Ariz.

App. 430, 415 P.2d 145 (1966) (dictum); People v. Spriggs , 36 Cal.

Rptr. 841, 389 P.2d 377, 60 Cal. 2d 868 (1964) (Traynor, .C.J.);

what began as a dissent by Holmes has become virtually a

“modern trend’’. It is a trend that commentators unani-

mously support”

2. The Rule Makes an Irrational Distinction Between

“Penal” and “‘Pecuniary’’ Interests

The Mississippi rule makes an arbitrary distinction

between penal and pecuniary interests. It excludes decla-

rations against penal interest, but admits declarations

against pecuniary interest. Forrest County Coop. Ass'n v.

McCaffrey, 253 Miss. 486, 176 So. 2d 287 (1965). The

distinction rests on the assumption that people may lie at

the risk of criminal prosecution, but not at the risk of

pecuniary loss. Baldridge v. Stribling, 101 Miss. 666, 57

So. 658 (1912). That assumption is untenable. As Mr.

Justice Holmes suggested in Donnelly v. United States,

infra, the rule defies “experience, logic and common

sense”’:

State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966); People v.

Lettrich, 413 Il. 172, 108 NE2d 488 (1952); Thomas v.

Maryland, 186 Md. 446, 47 A.2d 43 (1946); Sutter v. Easterly , 354

Mo. 282, 189 S.W.2d 284 (1945); State v. Sejuelas, 94 NJ. Super.

$76, 229 A.2d 659 (1967); Cameron v. State, 153 Tex. Crim. App.

29, 217 S.W.2d 23 (1949); People v. Brown, 26 N.Y.2d 88, 308

N.Y .S.2d 825, 257 N.E.2d 16 (1970).

For States that are divided on the question, see Jn re

Winineger’s Petition, 337 P.2d 445, 452 (Okla. Crim. App. 1959)

(Nix, J,, dissenting); Alexander v. State, 84 Nev..737, 449 P.2d

153, 157 (1968) (Thompson, CJ., dissenting); McClain v. Ander-

son Free Press, 232 S.C. 248, 102 SE.2d 750, 761 (1958)

(Legge, J., dissenting).

20C. McCormick, Evidence 549-53 (1954); Model Code of

Evidence Rule 509(1) (1943); Uniform Rules of Evidence Rule

63(10); Morgan, Declarations Against Interest, 5 Vand. L. Rev. 451

(1952); Wright, Uniform Rules and Hearsay , 26 U. Cinn. L. Rev.

$75 (1957); Orfield, The Hearsay Rule in Federal Criminal Cases,

32 Ford. L. Rev. 499, 769 (1964).

“The confession of Joe Dick . . . that he committed

the murder for which [Donnelly] was tried, coupled

with the circamstances pointed to its truth, would

have a very strong tendency to make anyone outside

a court of justice believe that Donnelly did not

commit the crime.... [T]he exception to the

hearsay rule in the case of declarations against

interest is well known; no other statement is so

much against interest as a confession of murder, it.is

far more calculated to convince than dying decla-

rations, which would be let in to hang a man.” 228

U.S. at 277-78 (emphasis added).

Mississippi has no legitimate interest in maintaining

such a distinction.” Having admitted declarations

against pecuniary interest, Mississippi cannot arbitrarily

exclude declarations against penal interest in a way that

interferes with the constitutional right of the accused to

offer testimony in his favor.

3. The Rule Discriminates Against the

Accused in Favor of the Prosecution

The rule on declarations against penal interest not only

rests on an irrational distinction, but discriminates against

the accused. While it prevents the accused from offering

another’s confession to exonerate himself, it does not

prevent the state from using a third person’s confession

to convict the accused.

2!Virginia was the first of a growing number of states to reject

the distinction between penal and pecuniary interests:

“Isa man more likely to speak the truth to his own hurt about

a pecuniary obligation or boundary line than about the more

serious matter of his responsibility for crime?” Hines v.

Virginia, 136 Va. 728, 743, 117 S.E. 843, 847 (1923).

See also, People v. Spriggs, 36 Cal. Rptr. 841, 389 P.2d 377, 60

Cal. 2d 868 (1964) (Traynor, CJ.).

The out-of-court confession of one conspirator, for

example, is admissible against his co-conspirator. Murphy

vy, State, 129 Miss. 634, 92 So. 694 (1922). The

confession of one defendant may be introduced against

his codefendant. Henry v. State, 209 So. 2d 614 (Miss.

1968). The confession of a defendant is admissible _

against himself. Sanders v. State, 237 Miss. 772, 115 So.

2d 145 (1959). In short, Mississippi distrusts confessions

only when offered by the accused in his own defense. It

welcomes them, and consid<is them reliable when «

offered by the prosecution to convict.

Mississippi has no legitimate interest in enforcing

against the accused a rule that it waives in favor of the

prosecution. Having admitted third-person confessions

and out-of-court confessions to convict the accused, it

cannot exclude a third-person confession to exonerate

the accused.

4. The Purposes of the Exclusionary Rule Are Better

Served. by Less Restrictive Means

The Constitution prohibits a state from enforcing rules

that interfere with protected freedoms where “‘less drastic

means” are available” The hearsay exclusionary rule

imposes an unnecessary burden on the right of the

accused to offer testimony in his favor. Mississippi has a

constitutional obligation to achieve its purposes by less

restrictive means. ,

Mississippi excludes third-person confessions for two

purposes: to prevent a third person from lying about his

22“In a series of decisions this Court has held that, even though

the governmental purpose be legitimate and substantial, that

purpose cannot be pursued by means that broadly stifle fundamen-

tal personal liberties when the end can be more narrowly achieved.

The breadth of legislative abridgement must be viewed in light of

less drastic means for achieving the same purpose.” Shelton v.

Tucker , 364 US. 479, 488 (1960).

own guilt to save his friends; and to prevent witnesses

from lying about what the third person has said. In each

case, it can achieve those purposes by less restrictive

methods.

The state can deter false confessions by requiring

corroborative evidence. Rule 804 of the proposed Rules

of Evidence for the United States Courts, for example,

allows the accused to offer third-person confessions so

long as they are supported by external evidenc& 3 The

- YFequirement of corroboration adequately prevents friends

of the accused from incriminating themselves without

basis in fact.

A requirement of supporting evidence would have

served Mississippi’s purposes in this case. Hardin testified

that he saw McDonald shoot Officer Liberty. Others saw

him at the scene of the crime. He owned a gun like the

one used to kill Liberty. William Vaughn saw him

carrying a revolver just after the shooting. In short, the

record contained abundant evidence to show that

McDonald’s confessions were more than gratuitous.

Mississippi also has alternatives to prevent witnesses

from misrepresenting out-of-court confessions. As with

all witnesses, it can test them by oath, by cross-

examination, and by penalties for perjury. In addition, it

can require that their testimony be corroborated.

In this case, Mississippi had the benefit of abundant

testimony to corroborate Hardin, Turner and Carter. For

one thing, each of the three witnesses independently

supported the testimony of the others. More important,

McDonald’s sworn confession reinforced their testimony.

Rule 804 provides as follows:

“A statement tending to expose the declarant to criminal

liability and offeted to exculpate the accused is not admis-

sible unless corroborated.”

They said no more than McDonald admitted in his own

written confession. That should have been enough to

establish their trustworthiness.

Finally, the presence of McDonald himself at trial was

an adequate safeguard against false confessions and false

witnesses. Where the declarant is available to testify, he

removes the hearsay objections to his prior statements. If

he agrees with what the other witnesses say, then he

adopts their testimony as his own. If he disagrees, he can

challenge their testimony. See 3A J. Wigmore, Evidence

§ 1018 (Chadbourn ed. 1970).

The Court in California v. Green, 399 U.S. 149 (1970),

recognized the safeguards of having the declarant at trial.

Where the declarant testifies under oath, and subjects

himself to cross-examination, he cures whatever defects

may exist in his out-of-court statements.

“(N]lotwithstanding the conventional character-

ization of an available witness’ prior out-of-court

statements as hearsay when offered affirmatively for

the truth of the matter asserted, this is hearsay only

in a technical sense since the witness may be

examined at the trial as to the circumstances of

memory, opportunity to observe, meaning, and

veracity.” California v. Green, 399 U.S. 149, 188

(Harlan, J., concurring) (citations omitted).

‘Indeed, Green held that the presence of the declarant

justified the use of his prior statements against the

accused. If his presence is enough to protect the rights of

the accused, it is enough to protect the interests of

Mississippi.

To conclude, the Mississippi hearsay rule is unduly.

harsh. The growing trend is to allow the jury to receive

and weigh relevant evidence itself.2* The Mississippi

‘%4¢T]} he conviction of our time [is] that the truth is more

likely to be arrived at by hearing the testimony of all persons of

—

hearsay rule has the contrary effect of “excluding

relevant evidence from state criminal trials.” United

States v. Wade, 388 U.S. 218, 252 (1967) (White, J.,

dissenting). To that extent, it has the disadvantages of

every exclusionary rule. See Harris v. New York 401 U.S.

222, 225 (1971); Bivens v. Six Unknown Agents, 403

U.S. 388, 411 (1971) (Opinion of Burger, C.J.);Coolidge

v. New Hampshire, 403 U.S. 443, 510 (1971) (Opinion of

Blackmun, J.).

In addition, it had special disadvantage here of

excluding material evidence in favor of the accused. Far

from protecting Chambers, the exclusionary rule pre-

vented him from offering three separate confessions in his

defense. McDonald’s spontaneous confessions were

precisely the kind of evidence that the jury should have

heard before passing upon the defense. See Mr. Justice

White dissenting in Miranda vy. Arizona, 384 U.S. 436,

538 (1966).

competent understanding who may seem to have knowledge of the

facts involved in a case, leaving the credit and weight of such

testimony to be determined by the jury or by the court, rather

than by rejecting witnesses as incompetent ...” Rosen v. United

States , 245 U.S. 467, 471 (1918).

See also, On Lee v. United States , 343 US. 747,757 (1952); Funk

v. United States , 290 US. 371, 376 (1933).

A WITNESS FOR THE ACCUSED BECOMES A

WITNESS AGAINST HIM WHEN HE GIVES

MATERIAL TESTIMONY THAT CONTRA-

DICTS THE DEFENSE

The Fourteenth Amendment guarantees the accused

the right to be confronted by the witnesses against him.

The court below held that Chambers could confront

defense witnesses only if they directly incriminated him.

It denied him the opportunity to cross-examine and

impeach a defense witness whose testimony directly

contradicted his case.

Chambers based his claim of innocence on showing

that it was not he, but McDonald who killed Officer

Liberty. He called McDonald as a witness in order to

introduce McDonald’s sworn confession. He was not

permitted to confront McDonald as an adverse witness

and, therefore, examined him only to authenticate the

sworn confession.

McDonald retracted his confession under cross-

examination by the state and denied responsibility for

the death of Officer Liberty. Chambers then renewed his

request to confront McDonald as a witness against him,

but the trial court ruled that McDonald was not

“adverse” to Chambers. It denied that Chambers had a

constitutional right to cross-examine McDonald and

impeach him with prior oral confessions.

The Mississippi Supreme Court affirmed. It held that

Chambers could cross-examine and impeach his own

witnesses only if they directly incriminated him (“point

the finger at Chambers”’):

“McDonald’s testimony was not adverse to appel-

lant; it was merely in McDonald’s defense and in

explanation for his rather unusual ‘confession.

Nowhere did he point the finger at Chambers. The

trial judge did not abuse his discretion when he

refused to allow the appellant to examine McDonald

as an adverse witness” (A. 154) (emphasis added).

The court below applied a rule that abridges the right

of confrontation by narrowly defining witnesses

“against” the accused to mean only witnesses who

incriminate him. The rule imposes an arbitrary burden on

the right of the accused to cross-examine and impeach

witnesses who give material testimony against him.

A. Chambers Has A Right To Confront Witnesses

Who Testify Against Him .

The Fourteenth Amendment guarantees the accused a

fair trial, including an opportunity to confront the

witnesses against him. Jn re Oliver, 333 U.S. 257 (1948).

It gives him the right, generally, to cross-examine the

witnesses against him, Townsend v. Burke, 334 U.S. 736

(1948), and to impeach their testimony with evidence of

his own. Specht v. Patterson, 386 U.S. 605, 610 (1967).

‘The Fourteenth Amendment further incorporates the

specific guarantee of the Sixth Amendment that the

accused be confronted with “witnesses against him”’:

“In all criminal prosecutions, the accused shall enjoy

the right... to be confronted with the witnesses

against him... .”” U.S. Const. amend. VI.

The Confrontation Clause gives the accused an explicit

right to cross-examine witnesses against him, Smith v.

Illinois, 390 U.S. 129 (1968), and to impeach them with

prior inconsistent statements. Kirby v. United States, 174

U.S. 47, 55 (1899). The Fourteenth Amendment

enforces the Confrontation Clause against the states.

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

The framers, who drafted the confrontation clause

with care, did not confine the class of witnesses to be

confronted. They did not limit the class to prosecution

witnesses against the accused, but extended it to all

witnesses against him. Accordingly, the accused has the

right to confront any person—whether a prosecution

witness, his own witness, or a third person—who testifies

against him. Parker v. Gladden, 385 U.S. 363, 365

(1966).

The framers also drafted the confrontation clause to

protect the accused against every kind of adverse testi-

mony. The protection is not limited to testimony that

incriminates the accused, but extends to all testimony

against him. It gives the accused “the right to cross-

examine . . . witnesses who testif[y] against him.” Brook-

hart v. Janis, 384 U.S. 1, 4 (1966).

The right of confrontation is measured, therefore, by

the impact on the accused of “any... witness whose

declarations [the prosecution] seeks to use in a criminal

trial.”” California v. Green 399 U.S. 149, 174 (1970)

(Harlan, J., concurring). It attaches wherever a witness

offers testimony that is “damaging” (Brookhart v. Janis,

384 U.S. at 4) or “devastating” (Dutton v. Evans, 400

U.S. 74, 87 (1970) (Opinion of Stewart, J.)), or

“prejudicial” (Parker v. Gladden, 385 U.S. at 365) to the

defendant’s case. The accused has a right, in effect, to

confront any witness whose adverse testimony has a

material bearing on his case.

McDonald gave material testimony against Chambers

that directly contradicted the defense. He denied respon-

sibility for the murder, offered an alibi for his where-

abouts that night, and retracted his sworn confession.

McDonald’s testimony on cross-examination was “dev-

astating”, Dutton v. Evans, 400 U.S. at 87 (Opinion of

Stewart, J.), and the state used it directly against

Chambers. California v. Green, 399 U.S. at 174 (1970)

(Harlan, J., concurring). The testimony effectively in-

criminated Chambers, because it frustrated his effort to

exculpate himself.

The jury had to weigh McDonald’s credibility in

deciding which of the two men killed Officer Liberty. If

the jury believed that McDonald was guilty, it would

exonerate Chambers. Chambers rested his defense, there-

fore, on being able to discredit McDonald’s testimony. To

that extent, McDonald became a “witness against”

Chambers as soon as he testified for the prosecution.

Chambers had solid grounds for impeaching McDonald

through cross-examination. Although McDonald claimed,

as an alibi, that he was drinking beer with Berkley Turner

at the time Officer Liberty was shot, neither Turner nor

the cafe employees saw him there. Moreover, while

McDonald denied having a gun on the- night of the |

murder, the deceased Officer’s own cousin saw him with |

a gun just after the shooting.

Chambers also had grounds for impeaching McDonald

with his own words. McDonald’s confessions to Hardin,

Turner and Carter directly contradicted his retraction at

trial. Within hours after the murder, he separately

confessed to each of them that he killed Officer Liberty.

His spontaneous confessions were highly inconsistent

with his retraction at trial. They would have undermined

his credibility as a witness.

The Confrontation Clause contained precisely the

mechanism that Chambers needed for “exposing false-

hood and bringing out the truth” (Pointer v. Texas, 380

U.S. at 404) about McDonald’s testimony. With the

benefit of confrontation, Chambers could have im-

peached McDonald through cross-examination:

“Our cases construing the [confrontation] clause

hold that a primary interest secured by it is the right

of cross-examination.” Douglas v. Alabama, 380

U.S. 415, 418 (1965).

In addition, he could have impeached McDonald with

his own prior confessions. What was said)in Harris v. New

York, 401 U.S. 222 (1971), about impeaching the

defendant with prior confessions applies with equal force

to impeaching his accusers. McDonald had no “right to

commit perjury” (/d. at 225). When he took the stand, he

subjected himself to the “traditional truth-testing devices

- of the adversary process”, including the “risk of con-

frontation with prior inconsistent utterances” (/d. at

225-26). The Confrontation Clause was designed to keep

witnesses like McDonald honest.

B. The Mississippi Rule That Prevents An

Accused from Impeaching His Own Wit-

nesses Is Arbitrary and Irrational

Chambers was prevented from confronting McDonald

as a witness against him because of a Mississippi rule that

precludes a party from impeaching his own witnesses.

The rule is arbitrary and irrational. It imposes an

unwarranted burden on the constitutional right of the

accused to confront witnesses against him.

- Mississippi follows the rule that a party may not

impeach his own witnesses. A party ‘may impeach any

Opposing witness through cross-examination, Mask y.

State, 32 Miss. 405 (1856), and prior inconsistent

statements. Wilkinson v. State, 143 Miss. 324, 108 So.

711 (1926). But he may not use cross-examination and

prior statements to impeach his own witnesses. The rule

rests on the assumption that when a party calls a witness,

he “‘vouches for his credibility.” Clark v. Lansford, 191

So. 2d 123 (Miss. 1966).

I. The Rule That Prevents a Party from

Impeaching His Own Witnesses Is Irrational

The rule that prevents a party from impeaching his

own witnesses has no rational basis: The most distin-

guished students of evidence have condemned it as a

“serious obstruction to the ascertainment of truth.” C

McCormick, Evidence §38 at 73 (1954). It has “no

place” in a rational system of evidence:

“The fact is that the general prohibition [against

impeaching one’s own witnesses], if it ever had any

basis in reason, has no place in any rational system

of investigation in modern society and all attempts

to modify or qualify it so as to reach sensible results

serve only to demonstrate its irrationality and to

increase the uncertainties of litigation.” E. Morgan,

Basic Problems of Evidence, 70-71 (1962).

A growing number of states have already discarded the

rule and replaced it with one that permits a party to

impeach any witness, including his own.?* At least half

of the federal courts have abandoned it2® Rule 607 of

*Salaska R. Civ. Proc. 43(gX11) (1963); Ark. Stat. § 28-706

(1962); Cal. Evid. Code $785 (1965); Canal Zone Code tit. 5, §

2824 (1963); Idaho Code Ann.§ 9-1207 (1948); Ind. Stat. Ann. §

2-1726 (Burns 1968); Kan. Stat. Ann. § 60-420 (1965); Ky. R. Civ.

P. 43.07 (1963); Mass. Gen. Laws Ann. ch. 233, § 23 (1956);

Mont. Rev. Codes §93-1901-8 (1964); N.J. Evidence rule 20; N.Y.

CPLR § 4514 (1963); Ore. Rev. Stat. § 45.590 (1963); Wyo. Stat.

Ann. § 1-143 (1957).

*°See, e.g., United States v. Lineberger, 444 F.2d 122 (4th Cir.

1971); Ottinger v. Siegfried, 349 F.2d 647 (10th Cir. 1965);

United States v. Stamps, 430 F.2d 33, 37 (Sth Cir. 1970)

(Sithpson, J., dissenting); United States v. Freeman, 302 F.2d 347

(2d Cir. 1962), cert. denied, 375 US. 958 (1963); Johnson v.

Baltimore & O. R. Co., 208 F.2d 633 (3d Cir. 1953), cert. denied,

347 US. 943 (1954).

the proposed federal Rules of Evidence rejects it al-

together as a rule for the federal courts.?”

The rule rests on the untenable premise that a party

“vouches” for the credibility of his own witnesses. It

assumes that a party has complete freedom in calling

witnesses in his favor. It is designed to impose a moral

obligation on a party to stand by his witnesses and deter

him from deliberately harassing them. Both the assump-

tion of the rule and its purposes are misplaced.

* First of all, the accused in a criminal proceeding has no

“free choice” about calling witnesses in his favor. He calls

whatever witnesses he must in order to establish his case:

“The traditional rule against impeaching one’s own

witness is. . .based on false premises. A party does

not hold out his witnesses as worthy of belief, since

he rarely has a free choice in selecting them.”

Chambers certainly had no choice about calling

McDonald as a witness. He was forced to call McDonald

in order to lay a foundation for McDonald’s sworn

confession. He called McDonald—not because he vouched

for everything McDonald might say—but to establish part

of his affirmative defense.

Second, a party has no moral obligation to defend the

credibility of his witnesses. On the contrary, he had a

moral obligation to see that they tell the truth. Where a

party, like Chambers, believes that his own witness is

committing perjury, he has a duty to expose him. The

27Rule 607 provides as follows:

“The credibility of a witness may be attacked by any party,

~ including the party calling him.”

See also, Model Code of Evidence, rule 106(1) (1942); Uniform

Rules of Evidence, rule 20 (1953).

. *Advisory Committee Notes on Rule 607 of the proposed Rules

of Evidence for the United States Courts.

J NN o€ '’STCZ7":=—

; Mississippi rule rests on a “primitive notion”? that

would force Chambers to accept false testimony and

permit the prosecution to exploit it.

Third, witnesses have no special reason to fear the

party who calls them. Witnesses routinely expect to be

cross-examined and impeached by the adverse party.

They risk even less from the party who calls them.

_ Indeed, honest witnesses have nothing to risk from the

impeachment process. Only unreliable witnesses have

reason to fear that they will be discredited.°

2. The Rule Operates in an Arbitrary Manner

The rule that prohibits a party from impeaching his

own witnesses does not operate in a consistent manner.

Its own exceptions belie any pretense that the rule may

rest on rational grounds.

The rule prohibits a party from using cross-

examination and prior statements to impeach his own

witnesses. At the same time, however, it permits a party

to impeach them with contradictory facts. Manning vy.

State, 188 Miss. 393, 195 So. 319 (1940). If the rule

seriously intended a party to “vouch” for his witnesses, it

would forbid impeachment altogether.

The rule makes further exceptions. A party may call

and impeach the opposing party. Miss. Code § 1710

(1942). He may impeach witnesses whom he has a legal

This primitive notion, resting on no reason whatever, but

upon mere tradition, and irrationally forbidding any attempt to

question utterances of one’s own witness, was obliged to yield its

ground before reason and common sense.” 3A J. Wigmore,

Evidence §898 at 661 (Chadbourn, ed. 1970).

30 The risk of impeachment] cannot appreciably affect an

honest and reputable witness. The only person whom it could

concern is the disreputable and shifty witness; and what good

reason is there why he should not be exposed.” /d. at § 899, at

664.

obligation to call. Clark v. Lansford, 191 So. 2d 123

(Miss. 1966). Moreover, he may impeach witnesses who

surprise him with “hostile” testimony by giving either

unresponsive answers, Hall v. State, 250 Miss. 253, 165

So. 2d 345 (1964), or inconsistent statements. Dunk v.

State, 84 Miss. 452, 455, 36 So. 609, 610 (1904).

Finally, he may impeach witnesses who give ‘‘adverse”’

testimony by directly incriminating him, Chambers v.

Mississippi (A. 150-58), or by .necessarily contradicting

his case. Chism v. State, 70 Miss. 742, 12 So. 852 (1893).

The exceptions to the rule show how irrational it really

is. Considered as a group, they are implicitly designed to

avoid the rule altogether by accomodating practically

every case in which a party may wish to impeach his own

witness. Nonetheless, when cases arise that are not

covered by the exceptions, the rule applies in unwonted

fashion to prevent a party from confronting the witnesses

against him. ;

Chambers could not claim to impeach McDonald as an

opposing party, or as a witness he was legally obliged to

call. He could not claim to be “surprised’’ by McDonald’s

hostile and inconsistent testimony. And _ because

McDonald did not directly incriminate him (“point the

finger at him”), he could not treat McDonald as an

adverse witness. In short, despite the myriad exceptions

that have arisen to bypass the rule, the rule nonetheless

applied to bar Chambers from confronting a material

witness against him.

‘ The exceptions to the rule are scarcely better than the

rule itself. A party should not have to show that hostile

testimony surprised him. It should be enough that the

witness may be lying. While McDonald’s testimony hardly

surprised Chambers, it directly disputed McDonald’s own

prior statements. The state has an interest in resolving

such contradictions through the impeachment process.

Nor should a party have to show that an adverse

witness has incriminated him. It should be enough that

they have contrary interests, and that the witness gives

material testimony that directly undermines the de-

fense>! In this case, McDonald was the only other

person suspected of killing Officer Liberty. To that

extent, he and Chambers had opposing interests in the

outcome of the trial. By denying that he killed Liberty,

moreover, McDonald directly repudiated the basis on

which Chambers rested his case.

3. The Purposes of the Rule Are Better

Served by Less Restrictive Methods

The Mississippi rule has two purposes: to prevent a

party from harassing his own witness; and to eliminate

the “moral” dilemma of allowing a party to call a witness

and then discredit him. For each purpose, however, the

rule is unnecessarily harsh. The state can serve its

objectives without imposing burdens on the right of the

accused to confront witnesses against him. In light of the

alternatives, Mississippi cannot justify the effect of its

rule.

The courts of Mississippi have inherent power to

prevent a party from harassing his own witnesses. They

routinely regulate the manner in which witnesses are

examined. See Smith v. Illinois, 390 U.S. 129, 133

(1968) (White, J., concurring). They are fully capable of

protecting witnesses from overzealous cross-examination

by the adverse party. Alford v. United States, 282 U.S.

than Mississippi. The party in a federal court may impeach his own

witnesses whenever they give “prejudicial” testimony that has a

“material” bearing on his defense. Hickory v. United States, 151

*'The federal rule treats adverse witnesses with greater latitude

US. 303, 309 (1894). See also Rule 43(a) of the Federal Rules of

‘ Civil Procedure, as construed in Rossano v. Blue Plate Foods, Inc.,

314 F.2d 174, 178 (Sth Cir.), cert. denied, 375 US. 866 (1963).

687, 694 (1931). Similarly, they can protect a witness

from malicious cross-examination by his own party,

without forbidding cross-examination altogether.

Mississippi also has alternatives to solve whatever moral

dilemma may arise when a party first calls a witness and

then discredits him. Where neither party wishes to call a

witness, the court can call him as a witness of the court

and subject him to neutral examination and impeachment

by both parties:

“The rule which permits the trial court to call and

examine witnesses. . .is quite a reasonable one and is

well recognized. If judiciously exercised, it is pro-.

ductive of no harm; and many times, by extending

to attorneys the right to cross-examine and impeach

on material matters, it prevents a failure of justice.”

Litsinger v. United States, 44 F.2d 45, 47(7th Cir.

1930).

A number of states have already solved Mississippi’s

dilemma by providing for witnesses of the court.** The

federal courts follow the same practice.* It satisfies the

purposes of the Mississippi rule while avoiding constitu-

tional defects.

32K issic v. State, 266 Ala. 71, 94 So. 2d 202 (1957); People v.

Donovan, 272 Cal. App.2d 413, 77 Cal. Rptr. 285 (1969);

Daugherty v. State, 154 Fla. 308, 17 So. 2d 290 (1944); People v.

Williams, 22 Ill. 2d 498, 177~N.E.2d 100 (1961), cert. denied, 369

U.S. 806 (1962); State v. Hines, 270 Minn. 30, 133 N.W.2d 371

(1964); Portales v. Bell, 72 N.M. 80, 380 P.2d 826 (1963);

Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963);

Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967); Stoots v.

Commonwealth, 192 Va. 857, 66 S.E.2d 866 (1951); State v.

Loveless, 140 W. Va. 875, 87 S.E.2d 273 (1955).

3£stella-Ortega v. United States, 423 F.2d 509 (9th Cir. 1970);

Smith v. United States, 331 F.2d 265 (8th Cir. 1964), cert. denied,

379 US. 824 (1964); United States v. Browne, 313 F.2d 197 (2d

Cir. 1963). See also Rule 614(a) of the proposed Rules of Evidence

for the United States Courts.

To conclude, Mississippi has no legitimate interest—

even as a matter of state law—in preventing parties from

impeaching their own witnesses. It may choose to use the

tule to regulate the examination of witnesses, but the

Sixth and Fourteenth Amendments preclude it from

using the rule in a criminal case to prevent the accused

from confronting the witnesses against him.

CONCLUSION

The Mississippi rules at issue here applied to deny

Chambers a fair trial. The hearsay rule barred him from

offering material confessions to exculpate himself. The

party-witness rule prevented him from impeaching mate-

rial testimony against him. Taken individually and to-

gether, the rules frustrated his constitutional right to put

on a defense.

The Constitution guarantees to every accused an

opportunity to defend himself. The Due Process Clause

of the Fourteenth Amendment stands as a procedural

guardian to ensure the accused “a right to his day in

court”. In re Oliver, 333 US. 257, 273 (1948). It.

demands, as a minimum, that he enjoy the combined

opportunity to offer evidence in his favor and to impeach

the evidence against him:

“Due Process, in other words, requires that he be

present with counsel, have an opportunity to be

heard, be confronted with witnesses against him,

have the right to cross-examine, and to offer

evidence of his own.” Specht v. Patterson, 386 US.

605, 610 (1967).

1¢ Due Process Clause further incorporates the

protections of the Sixth Amendment. The Sixth Amend-

ment was framed to embody in a single article the basic

incidents of a fair trial. Besides trial by jury, indict-

343. Goebel, History of the Supreme the United States:

Antecedents and Beginnings to 1801, at 44941971).

ment by grand jury, and assistance of counsel, it protects

the presentation of evidence. Specifically, the Compul-

sory Process Clause gives the accused the right to offer

testimony in his favor, and the Confrontation Clause

gives him the right to impeach testimony against him.

Together, they “constitutionalize the right to a defense as

we know it.” California v. Green, 399 U.S. at 176

(Harlan, J., concurring).

The “right to a defense” includes an opportunity for

the accused to offer whatever material testimony favors

his case, and to impeach whatever material testimony

prejudices his defense. In this case, Mississippi rules had

just the opposite effect. They not only barred Chambers

from putting on his own case, but forced him to accept

McDonald’s case for the State.

The Mississippi rules deprived Chambers of his day in

court. While the rules may be valid on their face, they are

unconstitutional as applied in his case. The judgment of

the Mississippi Supreme Court should be reversed.

Respectfully submitted,

RAMSEY CLARK

PETER WESTEN

Of Counsel: 1775 K Street, N.W.

Lawyers’ Committee Washington, D.C. 20006

for Civil Rights Counsel for the Petitioner

Under Law

June 1972

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.