Amicus Curiae Brief — Wardius v. Oregon

Subject Index

Page

Statement as to interest of amicus curiae ................ 1

Ser OE WIN i i ek oe 5

Tena, Nee oe a rE "PRE ey Cees. aaa ge eee 6

II ao nin c cokes es ck. 4 LS 17

Table of Authorities Cited

Cases Pages

ee W. em ee We ee CD icc eccs te. 8

Barker v. Wingo, 40 U.S.L. Week 4840 (1972) ........... 12

Benton v. Maryland, 395 U.S. 784 (1969) ................ 13

Commonwealth v. Gaito, 217 Pa. Super. 125, 268 A.2d 461

SE acc neck os bbe coos hea Codes Chechas csc 6

Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) ... 14

Douglas v. Alabama, 380 U.S. 415 (1965) ............0... 8

ek a 8

es | ee ne 16

Se ee 8

Founts v. State, 483 P.2d 654 (Nev. Supreme Ct. 1971) .. 12

Gilday v. Commonwealth, 274 N.E.2d 589 (Mass. Sup. Jud.

SURED wc Pinna 044 i0n4 sh 8 ce Wa oooh a ok kc ccs 6

Gori v. United States, 367 U.S. 364 (1961) .............. 13

Griffin v. California, 380 US. Oe ON ne ee hn ee. 13

Harrison v. United States, 392 U.S. 219 (1968) .......... 11,12

a ee Ss er a CE. bs viddcon b0a ckas soon. 7

ee: Se mR US eee 7

Johns v. Perini, 440 F.2d 577 (6th Cir. 1971) ........... 6

Klopfer v. North Carolina, 386 U.S. 213 (1967) .......... 11

ii TaBLE oF AuTHORITIES CITED

Pages

North Carolina v. Pearce, 395 U.S. 711 (1969) .-.....+--- 17

Oyler v. Boles, 368 U.S. 448 (1962) .....-..-eeeereeeees 7

People v. Rakiec, 260 App. Div. 452, 23 N.Y.S. 2d 607

TR anid as Cavin cc sc veda tn da whdanpbes teecbsd ese. 8

Pointer v. Texas, 380 U.S. 400 (1965) ......---++ee sees 8

Price v. Georgia, 398 U.S. 323 (1970) ......+-.eeeeeeees 13

Rodriguez v. Superior Court, 9 Cal.App.3d 493, 88 Cal.

Rptr. 154 (1970) 2.0... .. cece eee cece eee e cece ee re eens 6

Smith v. Hooey, 393 U.S. 374 (1969) ....-.-.- essere eee: 11!

Specht v. Patterson, 386 U.S. 605 (1967). ........e eens 7

State v. Benner, 284 A.2d 91 (Maine Sup. Jud. Ct. 1971) 6

State v. Blake, 490 P.2d 1026 (Ore.App. 1971) ..... was 6

State v. Harris, 117 N.J. Super. 83, 283 A.2d 744 (1971).. 12

State v. Jenkins, 203 Kan. 354, 454 P.2d 496 (1969) ...... 4

State v. Kelly, 203 Kan. 360, 454 P.2d 501 | re 4

State v. Nunn, 113 N.J. Super, 161, 273 A.2d 366 (1971).. 6

State v. Rourick, 245 Iowa 319, 60 N.W.2d 529 (1953) .... 12

State v. Stump, 119 N.W.2d 210 (Iowa Supreme Ct., 1963) 8

State v. Thayer, 124 Ohio St. 1, 176 N.E. 656 (1931) ..... 8,9

Ungar v. Sarafite, 376 U.S. 575 oer ee 8

United States v. Augenblick, 393 U.S. 348 (1969) .......- 16

United States v. Ewell, 383 U.S. 116 (1966) ......-.-.--- 11

United States v. Jackson, 390 U.S. 570 (1968) .......----. 14

United States v. Jorn, 400 U.S. 470 ......--- ee eeee sree 13

United States v. Robel, 389 U.S. 258 (1967) .....-.--+++-- 14

Washington v. Texas, 388 U.S. 14 {| SSOPeTe ERECT EEE 8, 16

Williams v. Florida, 399 U.S. 78 .....---.6ee+eeeeees 4, 5, 6, 10

Constitutions .

United States Constitution:

Fifth Amendment ..........:seeeeeeeeeeeeeeeeeeees 2,13

Sixth Amendment ...........:seeeeeeeeeteeeeeees 8, 11, 16

Fourteenth Amendment ........--++sseeeeseeereres 2, 8, 13

Rules

Florida Rules of Criminal Procedure, Wen BO cc ns sess 8

TaBLe OF AUrgorities Crrep iii

Statutes

Kansas General Statutes Annotated (1964) : Pages

I UE show, ak daveddadansen’s 1

couviammall hoxapyylt oP ee Pe en \os

22 Oklahoma Statutes (1961) Section 585 ................ 12

ree I I a nak cs hh sas cooks ences oe

Texts

ABA Standards of Discovery and Procedure Before Trial,

Supplement (Approved Draft, Oct., 1970) pp. 5-6 ..... 14

California Law Review, Comm., Recommendation and Study

Relating to Notice of Alibi in Criminal Actions (1960) 10

Epstein, Advance Notice of Alibi, 55 J. Crim. L.C: & PS.

SRE GEOR SE ae ee AN Oe ene 9, 10, 12

Federal Rules of Criminal Procedure 12 (2d Preliminary

BN oo ince Pr Oh cs bbc rk chiens humasecncse 10°

Proposed Rule 12A, Federal Rules of Criminal Procedure,

S008 Deeft, Si FID. GTS A068) i. ono. ec encccenss 10

Millar, The Modernization of Criminal Procedure, J. Crim.

L. (1920) pp. 344, 350 .......... sees Pie, ee 9

Oaks and Lehman, The Challenge of Crime in a Free So-

ciety (1967) pp. 128-29 ... 1... errr reece eee cece eee e eee 15

Oaks and Lehman, The Crimiral Process of Cook County

and The Indigent Defendant, 1966, Univ. of Ill. L, Forum

NS i OE cas cbaswisesiassnevnakssys 15

15 Stanford L. Rev. (1963) pp. 700, 701, n. 7 ............ 12

Task Force Report: The Cou'ts 32 (1967) Presidential

Crime Commission’s Task Force 0n the Administration of

nee re ee rR oO aoeua 15

18 Tex.L.Rev., Is Specific Notice Of the Defense of Alibi

Desirable? (1946) p. 151 ...:cc ccs ccc tt eect eee eee 9, 12

Wormuth and Mirkin, The Poctrine of the Reasonable

Alternative, 9 UtahL.Rev. (1964) Se Pree 14

In the Supreme Court

OF THE

Rnited States

OctToBER TERM, 1972

No. 71-6042

RonALD DALE Warnpivs, Petitioner

vs.

STATE OF OREGON, Respondent

On Writ of Certiorari to the

Supreme Court of Oregon

BRIEF AMICUS CURIAE

ON BEHALF OF VIRGIL JENKINS

STATEMENT AS TO INTEREST OF AMICUS CURIAE

Virgil Jenkins, on whose behalf this brief amicus

curiae is filed, is currently serving a 50 year sentence

in the state penitentiary at Lansing, Kansas, having

been convicted of the crime of robbery. He filed in

the District Court of Sedgewick County, Kansas a

Motion to Vacate Sentence’ on behalf of Mr. Jenkins

1Under Kansas procedure, a Motion to Vacate Sentence, which

is filed pursuant to Kansas Gen. Stats: ANN. § 60-1507, serves in

lieu of a petition for habeas corpus as the manner by which a

criminal conviction is collaterally attacked much as motions to

vacate under 28 U.S.C. § 2255 serve in the federal courts.

Prete PARR

Se ee eee

2

‘asserting, inter alia, that his conviction was obtained

in violation.of the Fifth and Fourteenth Amendments

to the United States Constitution because of the in-

vocation at his trial of the Kansas “alibi” statute,

Section 62-1341 of the Annotated Statutes of Kansas.

From the denial of that motion he has appealed to

the Supreme Court of Kansas. That appeal is now

pending.

Amicus was charged with participation in the rob-

bery of a Wichita motel in the early hours of the

morning on July 26, 1967. He was arrested later in

the morning along with two other men; items found

on their persons and in the car in which they were

riding strongly suggested that all or some of them

were participants in the robbery.

After the conclusion of the prosecution’s case-in-

chief, the defense at first indicated that it was not its

intention to call any witnesses. Thereafter, counsel for

the defense moved tu reopen the case and called de-

fendant Virgil Jenkins to the stand. He proceeded to

testify that he was in a poolhall between the hours

of midnight and approximately 3:00 A.M. on the

night of the robbery, and thereafter was picked up by

one of the two other men found in the car at the time

of his arrest. The import of this testimony, of course,

was that he could not have participated in the rob-

bery because, at the time of its commission, he was

somewhere else.

At this point, the prosecutor objected and moved

that the defendant’s entire testimony be stricken on

— ue

3

the ground that it constituted an alibi, and that no

notice thereof had been given as required.? This ob-

Kansas GEN. Stats. ANN. § 62-1341 (1964) provides as follows:

In the trial of any criminal action in the District Court,

where the complaint, indictment or information charges spe-

cifically the time and place of the offense alleged to have been

committed, and the nature of the offense is such as necessitated

the personal presence of the one who committed the offense, and

the defendant proposes to offer evidence to the effect that he

was at some other place at the time of the offense charged, he

shall give notice in writing of that fact to the county attorney.

The notice shall state where defendant contends he was at the

| time of the offense, and shall have endorsed thereon the names

of witnesses which he proposes to use in support of such con-

tention.

On due application, and for good cause shown, the court may

permit defendant to endorse additional names of witnesses on

such notice, using the discretion with respect thereto now ap-

plicable to allowing the county attorney to endorse names of

additional witnesses on an information. The notice shall be

served on the county attorney as much as seven days before the

action is called for trial, and a copy thereof, with proof of such

service, filed with the clerk of the court: Provided, On due ap-

plication and for good cause shown the court may permit the

notice to be served at any time before the jury is sworn to try

the action.

In the event the time and place of the offense are not specifi-

cally stated in the complaint, indictment or information, on

application of defendant that the time and place be definitely

stated in order to enable him to offer evidence in support of a

contention that he was not present, and upon due notice there-

of, the Court shall direct the county attorney either to amend

the complaint or information by stating the time and place of

the offense as accurately as possible, or to file a bill of particu-

lars to the indictment or information so stating the time and

place of the offense, and thereafter defendant shall give the

notice above provided if he proposes to offer evidence to the

effect that he was at some other place at the time of the offense

charged.

Unless the defendant gives the notice as above provided he

shall not be permitted to offer evidence to the effect that he was

at some other place at the time of the offense charged. In the

event the time or place of the offense has not been specifically

stated in the complaint, indictment or information, and the

Court directs it be amended, or a bill of particulars filed, as

above provided, and the county attorney advises the Court that

he cannot safely do so on the facts as he has been informed

4

jection was sustained, and Mr. Jenkins’ entire testi-

mony was struck. On appeal, the Kansas Supreme

Court upheld this ruling (State v. Jenkins, 203 Kan.

354, 454 P.2d 496 (1969), incorporating by reference

the ruling in-a companion ease, State v. Kelly, 203

Kan. 360, 454 P.2d 501 (1969) ).°

When this Court granted certiorari in Williams v.

Florida, amicus filed a brief amicus curiae on the

issue of whether an alibi-notice requirement is con-

stitutional. The Court, expressly referring to that

amicus curiae brief, reserved the very question now

presented in this case:

We emphasize that this case does not involve the

question of the validity of the threatened sanc-

tion, had petitioner chosen not to comply with

the notice-of-alibi rule. Whether and to what ex-

tent a State can enforce discovery rules against

a defendant who fails to comply, by excluding

relevant, probative evidence is a question raising

Sixth Amendment issues which we have no occa-

concerning them; or if in the progress of the trial the evidence

discloses a time or place of the offense other than alleged, but

within the period of the statute of limitatio »plicable to the

offense and within the territorial jurisdiction e Court, the

action shall not abate or be discontinued for either of those

reasons, but defendant may, without having given the notice

above mentioned, offer evidence tending to show he was at some

other place at the time of the offense.

8No petition for certiorari was filed from that ruling, Mr. Jen-

kins’ counsel being of the opinion that there might be some possible

question as to whether the federal question was fully raised with

to the alibi issue in the Kansas courts. For that reason, it

was decided that a Motion to Vacate Sentence should first be

brought in the trial court and, if relief should be denied by the

state courts, to then seek certiorari in this Court. As earlier noted,

Mr. Jenkins’ appeal from the denial of his Motion to Vacate is now

pending in the Supreme Court of Kansas.

5

sion to explore. Cf. hrief for amicus curiae, 17-

26. It is enough that no such penalty was exacted

here.

(399 U.S., at 83 n. 14.)

~~ Amicus fully agrees with Petitioner Wardius as to

the unconstitutionality of the severe penalty imposed

by Oregon (and by Kansas) upon a defendant who,

perhaps through the inadvertence of his counsel, fails

to give the requisite notice. The analysis presented

here differs slightly from that of Petitioner. Amicus’

submission stresses the availability of several alterna-

tive means for enforcing a requirement of advance

notice of an alibi defense which are fully sufficient to

protect the interests of the prosecution and the public

which do not infringe, as does the sanction imposed by

Oregon, the defendant’s constitutional right to be heard.

SUMMARY OF ARGUMENT

Even if the prosecution may compel the defense

to give advance notice of an alibi defense, it may not

foreclose him from offering evidence of his inno-

cence—from calling witnesses and from testifying on

his own napalt—se the penalty for mere non-compli-

ance with that requirement, The prosecution’s legiti-

mate interests may. be adequately protected by other,

less onerous, means (such as a continuance of the

trial); to deny wholly the defendant the right to

prove his innocence is a blatant denial of Due Process

of Law.

ant

6

. ARGUMENT

This case presents for decision the constitutionality

of a practice by which a defendant in a criminal case

forfeits his right to offer evidence of his innocence

(and, in some states including Oregon and Kansas,

even to testify on his own behalf) if he has for any

reason failed to give notice of his intention to pre-

sent an “alibi” defense at his. trial.

Since this Court’s decision in Willams, several

lower courts have expressed doubts as to the consti-

tutionality of the sanction—preclusion of the defend-

ant’s evidence—commonly imposed. Rodriguez v.

Superior Court, 9 Cal.App.3d 493, 88 Cal.Rptr. 154

(1970) ; State v. Benner, 284 A.2d 91, 98 (Maine Sup.

Jud. Ct. 1971) ; Gilday v. Commonwealth, 274 N.E.2d

589, 592 (Mass. Sup. Jud. Ct. 1971) (given the con-

stitutional problems presented by an alibi-notice rule,

until those questions definitively resolved “defend-

ants should not be ordered to identify alibi witnesses

in advance of trial”); cf. Johns v. Perini, 440 F.2d

577 6th Cir. 1971).* For the reasons which follow,

4Other courts, to be sure, have been less troubled. In addition to

the present case, see State v. Nunn, 113 N.J. Super. 161, 273 A.2d

366 (1971); State v. Blake, 490 P.2d 1026 (Ore.App. 1971) ; Com-

monwealth v. Gaito, 217 Pa. Super. 125, 268 A.2d 461 (1970).

With all respect, the opinions in these cases, for the most part,

! wholly fail to recognize (as Williams clearly does, see 399 U.S., at

83 n. 14) that the issue of sanctions is wholly separate and distinct

from the question which was resolved in Willams as to the per-

missibility of the alibi-notice requirement itself. Nor have any of

these courts judged the constitutional permissibility of the sanction

in the terms urged here—namely, whether there are not other

equally effective remedies which do not deny the defendant the

right to be heard and to offer evidence in his defense,

7

we think these constitutional concerns are well

founded.®

The right to be heard in defense against criminal

charges is anything but an exotic constitutional crea-

tion at the penumbra of contemporary jurisprudence.

To the contrary, it is so fundamental that few would

dispute its constitutional stature; a literally unbroken

stream of decisions of this Court (paralleled, of

course, by decisions of courts throughout this coun-

try) establish the root principle of Due Process that

a defendant in a criminal case “be present with

counsel, have an opportunity to be heard, be con-

fronted with witnesses against him, have the right

to cross-examine, and to offer evidence of his own.”

Specht v. Patterson, 386 U.S. 605, 610 (1967); see

also In re Oliver, 333 U.S. 257, 273-77 (1948) (“due

process of law .. . requires that [the defendant] .. .

have a reasonable opportunity to meet [the charges]

by way of defense or explanation . . . and call wit-

nesses in his behalf, either by way of defense or ex-

planation”) ; Oyler v. Boles, 368 U.S. 448 (1962); In

re Gault, 387 U.S. 1 (1967). The recent decisions

of this Court specifically applying the various Sixth

Amendment protections to State criminal proceedings

establish that the accused cannot be deprived of the

opportunity to cross-examine the witnesses against

5Although Amicus agrees with Petitioner that the lack of re-

ciprocal discovery for the benefit of the defendant also invalidates

the Oregon practice, our submission here is confined to the issue of

sanctions.

8

him® and, more importantly for present purposes,

neither may he be denied the right to compulsory

process for obtaining witnesses whose testimony might

be favorable. Washington v. Texas, 388 U.S. 14

(1967). Similarly, the defendant’s right to effectively

defend against the charges against him, and to offer

evidence of his innocence, may not be indirectly in-

fringed by an unreasonable denial of a continuance.

Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

In. sum, the Sixth and Fourteenth Amendments

plainly assure the defendant in a criminal case (1)

the right to call witnesses and present their testi-

mony; and (2) the right to take the stand and to

testify in his own behalf. See Ferguson v. Georgia,

365 U.S. 570, 598, 601 (concurring opinions).

These rights the State of Oregon denied to Peti-

tioner Wardius, just as the State of Kansas denied

amicus the opportunity of testifying at his own trial.’

We agree with Petitioner that no justification ex-

ists for the outright denial of the right to offer evi-

dence and to testify personally on an issue which is

not only relevant under the applicable law but is in

fact potentially dispositive of the outcome of the case.

6E.g., Pointer v. Texas, 380 U.S. 400 (1965) ; Douglas v. Ala-

bama, 380 U.S. 415 (1965); Barber v. Page, 390 U.S. 719 (1968) ;

Dutton v.. Evans, 400 U.S. 74 (1970).

7Some states, including Florida, would not bar the defendant ~

from testifying even though no notice was given, but would bar

other witnesses. E.g., Fua.R. Crum. Pro. 1.200; State v. Stump,

119 N.W. 2d 210 (Iowa Supreme Ct., 1963); State v. Thayer, 124°.’

Ohio St. 1, 176 N.E. 656 (1931); People v. Rakiec, 260 App. Div.

)

452, 23 N.Y.S. 2d 607 (1940). Neither Oregon nor Kansas is so —

generous.

ee

9

But even if one were to accept that these most funda-

mental rights might be weighed against some over-

riding, compelling state interest, no such counter-

vailing considerations are present to justify the appli-

cation of so sweeping a denial of constitutional rights

for mere non-compliance with a technical requirement

of notice.

The purpose which alibi statutes or rules such as

the one before the Court is intended to serve—

avoidance of surprise and perjurious testimony—is

itself unobjectionable.* Most of these provisions stem

from proposals made a number of years ago (see

Epstein, Advance Notice of Alibi, 55 J. Crim. L.C. &

P.S. 29-31 (1964), at a time when the federal Consti-

tution had not been thought to impose much restraint

upon state criminal proceedings. The proponents of

the alibi-notice procedure contended that the cause of

justice would be well served by requiring the accused

to give advance notice to the prosecution of its inten-

tion to raise an alibi defense; the prosecution might

then have an adequate opportunity to investigate the

facts of the defense and develop evidence of its own

which might disprove it. E.g., State v. Thayer, supra;

Millar, The Modernization of Criminal Procedure, J.

Camm. L. 344, 350 (1920). Some doubt has been ex-

pressed as to the necessity and efficacy of the notice

requirement,’ and barely more than a quarter of the

8Amicus does not concede, of course, the constitutionality of the

means by which the State seeks to achieve those'goals by. compelling

the accused to give notice of alibi prior to trial.

See, ¢.9., Note, Is Specific Notice of the Defense of Alibi De-

sirable? 18 Tex.L.Rev. 151 (1946),

>

ie,

10

States have adopted it;'® further, as will be seen, not

all of them routinely deny the accused his right to

offer evidence of a critical defense e penalty for.

noncompliance, but rather attempt,fé enforce that

policy of disclosure by other means. See note 12,

infra, and accompanying text. Finally, although the

alibi-notice requiréfwent was sustained against con-

stitutional attack in Williams, two Justices thought

the requirement unconstitutional. See 399 U.S., at

106-116. | |

We advert to these matters not so much to suggest

that this Court should reconsider Weliams, but

rather because they serve to remind us that the alibi-

notice procedure is not grounded on considerations

of grave necessity; and that it is not a practice uni-

versally supported by persons seriously concerned

with the administration of justice. These considera-

tions are relevant, we submit, to any determination

as to whether a failure to give the requisite notice

could ever justify the draconian penalty of preclud-

ing the defendant’s evidence. To put the matter

somewhat differently, it is proper to ask whether the

limited (and much debated) benefits assertedly flow-

10Proposals for an alibi-notice requirement have recently been

made but not accepted in California (see Calif. Law Rev. Comm.,

RECOMMENDATION AND Stupy RELATING TO Notice oF ALIBI IN

Cronat Actions (1960) ) and in the federal criminal system (see

Proposed Rule 124, Fep.R.Crm.Pro., 1962 Draft, 31 F.R.D. 673

(1963) ); that was the second occasion on which an alibi-notice

requirement was rejected for the federal criminal system, as this

Court in 1944 struck two alternate alibi provisions from the then

proposed: Federal Rules of Criminal Procedure. Epstein, -idvance

Notice of Alibi, 55 J. Crim. L.C. & P.S. 29, 30 (1964). See Fep.R.

Crim.Pro. 12 (2d Pretiminary Draft 1944).

1l

ing frem the alibi-notice requirement might adequately

be secured without depriving the defendant of his

constitutional right to be heard and to offer evidence

tending to establish his innocence. Such an examina-

tion, we submit, convincingly demonstrates that the

goal of preventing unjustifiable acquittals because of

the prosecution’s ability to disprove perjurious alibi

defenses can adequately be protected by means far

less destructive ofscherished constitutional guarantees.

We consider some of them briefly:

(1) The trial court might punish .the wilful dis-

regard of an applicable rule of procedure by con-

tempt—of either the accused, his counsel, or both.

Assuming that the requirement of notice is itself

constitutional, neither the defendant nor his counsel

should be immune from the imposition of sanctions

in the Manner by which courts have traditionally pro-

tected their substantial interest in orderly procedure.

(2) The trial court might, where the prosecution

has been surprised by the unannounced raising of an

alibi defense, continue the trial for a reasonable

period to allow the prosecution to make whatever in-

vestigation might be necessary to enable it to meet

the defense.'' In at least one state,’* the trial court is

The right of speedy trial, now a constitutional protection ap-

plicable to state criminal proceedings (Klopfer v. North Carolina,

386 U.S. 213 (1967); Smith v. Hooey, 393 U.S. 374 (1969) ), would

in no way be offended by a brief continuance for this purpose. The

Sixth Amendment protects only against “undue and oppressive”

delavs (United States v. Ewell, 383 U.S. 116, 120 (1966)), and not

against those which are justifiable and reasonable. See, e.g., Har-

te bein a

12

empowered to continue the trial where an alibi de

fense is raised without prior notice, but does not have

the power to exclude evidence of alibi. It is difficult

to conceive of a situation in which the legitimate

interests of the prosecution would not fully be pro-

tected by a continuance, the granting of which might

even be made mandatory lest there be any doubt as

to the willingness of trial judges to grant continu-

ances in the circumstances. ait

(3) Should the defendant fail to give the required

notice (and, again, assuming that the requirement is

constitutional), that violation might be a proper basis

for declaring a mistrial in circumstances (which, pre-

sumably, would be exceedingly rare) in which simply

rison v. United States, 392 U.S. 219 (1968). Thus this Court last

Term adopted for speedy trial cases “a balancing approach in

which the conduct of both the prosecution and the defendant are

weighed.” Barker v. Wingo, 40 U.S.L. Week 4840, 4845 (1972).

There could be no reasonable basis for complaint where the de-

fendant’s own failure to comply with the statute or rule requiring

notice was the occasion for granting a continuance.

12See Oxua. StaT., Tit. 22, § 585 (1961). Iowa has a similar stat-

ute, but there is judicial authority allowing exclusion of the alibi

evidence. See State v. Rourick, 245 Iowa 319, 60 N.W.2d 529 (1953).

Most states, but apparently not Kansas, at the least allow the trial

judge discretion to allow the evidence and protect the interests of

the prosecution by other means such as continuance. See Note, 15

Stan. L. Rev. 700, 701 & n. 7 (1963); Founts-v. State, 483 P.2d

654 (Nev. Supreme Ct. 1971) (trial court’s refusal to exercise dlis-

cretion to allow alibi evidence despite lack of notice held reversible

error); State v. Harris, 117 N.J. Super. 83, 283 A.2d 744 (1971).

Moreover, there is some evidence that even in those states which

by statute absolutely bar alibi evidence where notice should have

been but was not given, trial judges ameliorate the harshness of

that provision by ignoring it. See Note, Is Specific Notice of the

Defense of Alibi Desirable? 18 Tex. L. Rev. 151, 156 (1940); see

Epstein, Advance Notice of Alibi, supra, at 36.

13

ordering a continuance would not be adequate to

protect the legitimate ,nterests of the prosecution.'*

(4) The prosecutor muight be allowed to argue to

| the jury, where’ the ae warrant, that the surprise

?

assertion of an alibi er — a we

quirement that he give a

‘ deal with tha

the State’s ability to «. —— — _

: ., 1 defense must be viewed crit-

accordingly, that the alib ep: .

Bite . ‘umstances.'* Similarly, an in-

ically in view of the circ

fess the triad Suiles id

struction to that effect fr trial judge might be in

— ti fully ad

: sanctions are fully adequate

These remedies and of the prosecution and public.

to protect the interests 0 ae

Associat 7 bl ‘

Thus the American Bar ee We: ae OS one

—_—_—_—_——- iistrial could in theory give rise to a

13While the ordering of a mstitute jeopardy in violation of the

claim that a retrial would con. Maryland, 395 U.S. 784 (1969)) ;

Fifth Amendment (Benton v23 (1970)), such a contention would

(Price v. Georgia, 398 U.S. 32United States, 367 U.S. 364 (1961).

seem ill founded. See Gori v. ve any of the factors which might

Such a case would not involmistrial as a violation of the double

render a retrial following a nistrial ordered because of wrongful

jeopardy clause, such as a mecution or where the purpose of the

conduct on behalf of the proscosecution, at a trial in which its case

trial judge was to “help the pranother, more favorable opportunity

is going badly, by affording it % v. United States, supra, at 369).

to convict the accused.” (Gortical mistrial would be the response

To the contrary, our hypothetomply with the requirement that. he

to the defendant’s failure to ci defense, in the rare case where no

give advance noice of an alibi’. United States v. Jorn, 400 U.S.

other remedy would suffice. @ctor to be considered is the need to

470, 486 (“[A]n important fato standards of responsible profes-

hold ditigants on both sides of an adversary criminal process’’).

sional conduct in the clash ¢ 2M alternative to the far harsher

Particularly when’ viewed as'—exclusion of the defendant's alibi

procedure presently practiced@rder could not be considered a denial

evidence altogether—such an o

of due process. ot violate the rule of Griffin v. Cali-

14Such a comment would nesuming that the alibi-notice require-

fornia, 380 U.S. 609 (1965) asnd Fourteenth Amendments,

ment itself violate the Fifth a

14

elude that the sanctions for non-compliance with an

alibi-notice requirement should not include the denial

of the right to offer evidence. ABA STANDARDS OF

Discovery AND ProcepuRE Berore TRIAL, Supple-

ment (Approved Draft, October, 1970), at pp. 5-6.

Given the settled principle that. constitutional

rights may not be-infringed—even where the ends be

legitimate—when there are available alternative

means less destructive of constitutional rights (¢.9.,

United States v. Jackson, 390 U.S. 570, 582-83 (1968) ;

United States v. Robel, 389 U.S. 258 (1967) ; Dean

Milk Co. v. City of Madison, 340 US. 349, 354-56

(1951); see generally Wormuth and Mirkin, The

Doctrine of the Reasonable Alternative, 9 UTaHL.REv.

254 (1964)), there is no possible basis for sustaining

the sanction imposed upon Petitioner. The various

alternatives discussed above—which may well be con-

siderably short of exhaustive—would, singly or in

combination, provide full protection for the legiti-

mate interests of the prosecution which are said to

be the basis for the alibi-notice requirement. There

is, plainly and simply, no possible justification for a

sanction which wholly denies the defendant all oppor-

tunity to be heard on a vital aspect of his defense.

The rule which denies a defendant the right to be

heard is fundamentally arbitrary, viciously . choking.

off the defense as a penalty for what is at most a pro-

cedural omission.

The unfairness of that approach is particularly ap-

parent when viewed against the background of the

realities of criminal law administration in this coun-

15

try. A substantial number of defendants in criminal

cases are indigent or nearly so. They may be repre-

sented by court appointed counsel, a Public Defender,

or one of the attorneys whose office is the local crimi-

nal court and whose practice is operated, as the re-

cent Presidential Crime Commission’s Task Force

on the Administration of Justice phrased it, on “a

mass production basis.” Task Force Report: THE

Courts 32 (1967). Frequently, counsel will have had

little or no opportunity to study the case much in ad-

vance of trial; it is not uncommon for client and

counsel to meet just before the trial.° Inadvertence

or the errors of counsel may account for a substan-

tial proportion of the instances in which the required

notice is not given and the alibi defense thereby lost

forever; but it is the defendant, not his lawyer, who

must pay the price. Thus a penalty—the loss of the

right to present an alibi defense—which would be

unfair even as to a defendant who deliberately con-

cealed his intention to present an alibi defense is also

indiscriminately applied to the non-wilful defendant

See, e.g., Oaks and Lehman, The Criminal Process of Cook

County and The Indigent Defendant, 1966, Untv. or ILL. L. Forum,

584, 693 (1966) ; THe CHALLENGE oF CRIME IN A FREE Society, 128-

29 (1967):

In many lower courts defense counsel do not regularly ap-

pear, and counsel is either not provided to a defendant who

has no funds; or, if counsel is appointed, he is not compen-

sated. The Commission has seen, in the “bullpens” where

lower court defendants often await trial, defense attorneys

demanding from a potential client the loose change in his

pockets or the watch on his wrist as a condition of represent-

ing him. Attorneys of this kind operate on a mass production

basis, relying on pleas of guilty to dispose of their caseload.

They tend to be unprepared and to make little effort to pro-

tect their clients’ interests,

16

who, perhaps through the blunders of counsel or due

to his late entry into the case, fails to give the re-

quired notive.*®

For these reasons, we think it manifest that the

total preclusion of a defendant’s evidence of alibi—

including his own testimony—may never be permitted,

and that as a matter of law.the general availability

of effective means for enforcing an alibi-notice re-

quirement confirm the unconstitutionality of such a

sanction.

At the very minimum, however, no such sanction

can be permitted unless (1) it appears, on the record,

that the -defendant’s failure to give notice was wil-

ful; and (2) that in the particular circumstances of

the case no other means of protecting the prosecution’s

legitimate interests—such as a continuance or the

other techniques discussed above—will suffice. The

first of these requirements follows from the settled

principle that constitutional rights may not be lost

through inadvertence, but only through kaowing, in-

telligent and deliberate waiver. E.g., Fay v. Nova, 372

U.S. 391, 439 (1963). The second requirement, of

16This case involves the baldest of infringements of the right of

an accused to be heard and to present evidence. Recognition of the

unconstitutionality of that infringement surely does not imply that

a federal question would be presented by the even-handed applica-

tion of traditional rules of evidence as to admissibility, any more

than the application of the Sixth Amendment right of confronta-

tion to state criminal proceedings (see authorities cited note 15,

supra) has superseded state hearsay rules with a federal evidence

code (cf. United States v. Augenblick, 393 U.S. 348, 355-56 (1969) ),

or the right to compulsory service of process supersedes “non-

arbitrary state rules” regarding the capacity of a witness to testify.

Washington v. Texas, 388 U.S. 14, 23 n. 21; see also id., at 24-25

(Harlan, J., concurring).

—

17

course, is the narrowest conceivable application of the

less-burdensome alternative principle discussed above.

This is not unlike the approach taken in North

Carolina v. Pearce, 395 U.S. 711 (1969), where the

Court held that a greater sentence may not be im-

posed upon a defendant who had successfully ap-

pealed his original conviction and had been convicted

on retrial unless ‘‘the reasons [therefor] affirmatively

appear ... [on] the record, so that the constitutional

legitimacy of the increased sentence may be fully re-

viewed on appeal.” (Id., at 726). Patently, the State

of Oregon has not made this showing here.

CONCLUSION

A defendant in a criminal case may not be deprived

of his constitutional right to be heard and to present

relevant evidence tending to establish his innocence

for mere non-compliance with the notice require-

ment; the prosecution’s legitimate interests may ade-

quately be protected by means far less subversive of

the defendant’s right to offer relevant defensive evi-

dence and to testify at his own trial. For this reason,

the judgment of the court below should be reversed.

Dated: July 27, 1972.

Respectfully submitted,

JEROME B. Fak, JR.,

Attorney for Amicus Curiac,

Virgil Jenkins.

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