# Petitioners Brief — Watts v. Tennessee

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0101%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1972
- **Citation:** 405 U.S. 1043

## Text

FILE COPY

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

i

— 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.

2

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

3

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

(

4

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,

5

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 ]

6

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.

An

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).

7

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).

8

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

9

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

11

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).

12

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).

13

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.

14

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.

15

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).

16

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.).

17

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).

18

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”:

19

“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-

20

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.

21

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

22

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.”

23
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). ,

24

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).

26

“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.).

27

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! 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).

41

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.

42

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).

43

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0101%3A2. Public record. Not legal advice.