Amicus Curiae Brief — Michigan v. Tucker

IN THE

SUPREME COURT OF THE UNIT

OcTOBER TERM 1973

No. 73-482

STATE OF MICHIGAN,

; Petitioner,

V.

THOMAS W. TUCKER,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE STATE OF CALIFORNIA

AMICUS CURIAE IN SUPPORT OF PETITIONER

EVELLE J. YOUNGER

Attorney General of the

State of California

JACK R. WINKLER

Chief Assistant Attorney General

Criminal Division

DORIS H. MAIER

Assistant Attorney Gencral

555 Capitol Mall, Rm. 461

Sacramento, California 95814

Telephone: (916) 445-5340

Attorneys for Amicus Curiac

State of California

printed im CALIFORNIA OPFICE OF STATE PRINTING

TOPICAL INDEX

; Page

INTEREST OF AMICUS CURIAE _____-----------__------ 1

ARGUMENT _____--_____----____________-_-_-_ ee 3

L

II.

THE MIRANDA DOCTRINES SHOULD NOT BE EX-

TENDED TO ENCOMPASS VOLUNTARY STATE-

MENTS MEETING LEGAL REQUIREMENTS AT

THE TIME OF THE OCCURRENCE. _------------- 3

A. The Dicta of Johnson v. New Jersey, 384 U.S. 719

(1966), Should Not Require the Application of

Miranda v. Arizona, 384, U.S. 436, (1966), to this case. 3

B. The Application by the Federal Courts of a Stricter

Standard for Admissibility of Statements of a Re-

spondent than Congress has Required for the Admissi-

bility of Confessions in Federal Courts is not

Mandated by the Federal Constitution. ____________ 6

FEDERAL HABEAS CORPUS SHOULD NOT BE

PERMITTED TO REVIEW FINAL STATE COURT

CRIMINAL CONVICTIONS BASED ON ALLEGED

VIOLATIONS OF MIRANDA v. ARIZONA, 384, U:S.

436, SUPRA, OR WONG SUN v. UNITED STATES, 371

US. 471, 83 S.CT. 407, 9 L.ED.2d 441 (1963), ________ 10

CONCLUSION -+_-_---_--_____-___-_---_---_- ee 15

APPENDIX _______---___-__-__________ 17

ee a

ities:

TABLE OF AUTHORITIES CITED

CASES

Page

Brown v. United States, 375 F.2d 310 (D.C. Cir. 1967) ______ 72

Chimel v. California, 395 U.S. 752 (1969) _-___--_-__________ 4

Commonwealth v. Bujnowski, 267 N.E.2d 924 (Mass. App. 1971) 4

Commonwealth v. Cephas, 447 Pa. 500, 291 A.2d 106 (1972) __ 12

Commonwealth v. Yount, 435 Pa. 276 (1969) _-_-_-_-_______ 4

Desist v. United States, 394 U.S. 244 (1969) _______-________ 4

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977

CL?) | eh aaa 2, 5

Evans v. United States, 375 F.2d 355 (9th Cir. 1967) ________ 3

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d

BOO GIO cient ae nee eee eee ice 4

Gilbert v. California, 388 U.S. 263 (1967) __------_- eee woes 4

Goodman v. United States, 285 F.Supp. (C.D. Cal. 1968) ____- 12

Griffith v. Jones, 283 F.Supp. 794 (N.D. Ga. 1967) _----_____- 3

Groshart v. United States, 392 F.2d 172 (9th Cir. 1968) ____- 3

Jenkins v. Delaware, 395 U.S. 213, n. 7, 89 S.Ct. 1677, 23

L.Ed.2d 253 (1969) .--..-.-.-.-----.-------..---------- 6

Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L.Ed.2d

882 (1966) ____ 3, ll

Johnson v. State, 496, S.W.2d 72 (1973) 12

Katz v. United States, 389 U.S. 347 (1967) 4

Lockridge v. Superior Court, 3 Cal.3d 166, 89 Cal.Rptr. 731,

474 P.2d 683 (1970) 12

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

10 A.L.R.2d 974 (1966) _----- 2, 3, 5, 6, 8, 9, 10, 11, 12, 13, 14

Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d

484 (1972) 24

People v. Carter, 204, N.W.2d 703, 43 Mich. App. 735 (1972) - 12

People v. Fitzpatrick, 32 N.Y.2d 499, 300 N.E.2d 189 (1973) -- 22

People v. Gill, 187 N.W.2d 707 (Mich. 1971) -- 12

People v. Kilduff, 276 N.Y.S.2d 814 (1966) 4

People v. Pettis, 298 N.E.2d 372, 12 Ill.App.3d 123 (1978) --- 22

12

People v. McInnis, 6 Cal.3d 821, 100 Cal.Rptr. 618, 494 P.2d

690 (1972) -

ON ee A GN GLE i I CER cla S eal

TABLE OF AUTHORITIES CITED—Continued

CASES—Continued

‘ Page

People v. Rollins, 65 Cal.2d 681, 56 Cal.Rptr. 295, 423 P.2d

BL (AIO) acti cer we orescence 4

People v. Schader, 71 Cal.2d 761, 80 Cal.Rptr. 1, 457 P.2d 841

(10GD) mr ici eines merle nn 4

People v. Welborn, 2 Cal.App.3d 715, 82 Cal.Rptr. 845 (1969) 4, 12

Pfeifer v. State, 460 P.2d 125 (Okla. Cr. 1969) __-_______ 12

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36

L.Ed.2d 854, (1973) _----- 10, 14-15

Smith v. United States, 324 F.2d 879, cert. den. 377, U.S. 954

D.C. Cir. (1963) --------- 12

State v. Anderson, 229 So.2d 329 (La. 1969) ___-__--___ 4

State v. Johnson, 192 N.W.2d 87 (Minn. 1971) _-__---_ 12

State v. Miranda, 104 Ariz. 174, 450 P.2d 364 (1969) ________ 12

Stovall v. Denno, 388 U.S. 293 (1967) ----_-________ 4

United States v. Brandon, 467 F.2d 1008 (9th Cir. 1972) _____ 12

United States v. Calandra, 42 U.S. L.W. 4104 (1974) ________ 5

United States v. Chaplin, 435 F.2d 320 (2d Cir. 1970) _______ 3

United States v. Evans, 454 F.2d 813 (8th Cir. 1972) ______ 12

United States v. Fox, 403 F.2d 97 (2d Cir. 1968)________ 3

United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967) ______ iz

United States v. Holsey, 437 F.2d 250 (10th Cir. 1970) ______ 12

United States v. Marder, 474 F.2d 1192 (Sth Cir. 1973) ______ 12 -

United States v. Tane, 329 F.2d 848 (2d Cir. 1964) _- 12

United States v. Tyler, 459 F.2d 647 (10th Cir. 1972) __.. 12

United States v. Vanterpool, 394 F.2d 697 (2d Cir. 1968) ___. 3

United States v. Wade, 388 U.S, 218 (1967) _-____-- 4

United States v. Workman, 470 F.2d 151 (4th Cir. 1972) _____ 12

Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28

L.Ed.2d 388 (1971) 4

Williams v. United States, 382 F.2d 48 (5th Cir. 1967) ______ 12

Wong Sun y. United States, 371 U.S. 471, 83 S.Ct. 407, 9

L.Ed.2d 44] (1963) Km wenn enna ~~ 10, 11, 13

Young y. State, 234 So.2d 341 (Fla. 1970) _-- 4

co

Brice en

TABLE OF AUTHORITIES CITED—Continued

CODES

Omnibus Crime Control and Safe Streets Act, 18 0.S.C., § 3501,

P.L. 90-351, Title II, 82 Stats. 210 ------------------ 2,6, 7

United States Code, 28 U.S.C. § 2241 _------------------__- 1

OTHER AUTHORITIES

Judge Friendly, Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970) --_---- 13

1968 U.S. Code Cong. and Ad. News, pp. 2112, 2123-2138 _____ .

Oaks, Studying the Exclusionary Rule in Search and Seizure,

37 U. Chi. L. Rev. 665.(1970). _---------_-_-__---------._. 4

Professor Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harvard Law Rev. 441 __---- l4

Professor Doub, The Case Against Modern: Federal Habeas

Corots, OF A.DAd. Bae, neni scctigcn cist vwewasnm anne 14

R. Maguire, How to Unpoison The Fruit, The Fourth Amend-

ment and the Exclusionary Rule (1964) 55 J. Crim. L. C. &

PB). BO. cscaciunsadiccectpeuverenewadaaostageesneusegpe 12

Schaefer, The Control of ‘‘Sunbursts’’: Techniques of Pro-

spective Overruling; 42 N.Y.U.L. Rev. 631 (1967) ~-------- 6

Schwartz, Retroactivity, Reliability and Due Process, 33 Chi. L.

Be 120 CGO) a caicn tec eaddennewetonienscecactnwdenns 6

Shapiro, Federal Habeas Corpus: A Study in Massachusetts,

87 Harvard Law Review 321 (1973) 14

be Yaatiipreny laine e 0% Es - LD a BO I > ee eee

id

IN THE |

SUPREME COURT OF THE UNITED STATES

——EE

OcTOBER TERM 1973

No. 73-482

STATE OF MICHIGAN,

Petitioner,

Vv.

THOMAS W. TUCKER,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

_ BRIEF OF THE STATE OF CALIFORNIA

AMICUS CURIAE IN SUPPORT OF PETITIONER

os

INTEREST OF AMICUS CURIAE

—E

The State of California has a special interest in the

present case. Any extension of categories of issues

cognizable by way of federal habeas corpus (28 U.S.C.

§ 2241) presents problems of vital concern to each state.

The primary responsibility for the enforcement of

the criminal justice process in this country resides in

the states. The erosion of finality of state court crim-

inal convictions through the use of federal collateral

on

Patel mews are Pee ers ee ne “

32a a RR A LE IER IME OE carte

—2—

remedies has both subverted the original purpose of

the federal writ of habeas corpus as well as minimized

society’s interest in the finality of criminal judgments.

If, as contended by petitioner and fully supported

by the State of California, the standards of Miranda

v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d

694, 10 A.L.R.2d 974 (1966), are too restrictive in ex-

cluding admissions and are not mandated by the

United States Constitution then federal collateral at-

tacks on such final state court judgments should not

be permitted.

Where, as in this case, the substantive merits of the

issues raised have been fully and fairly litigated in

the state courts, the undue extension of Miranda re-

quirements by the federal courts is an unwarranted

use of the writ of habeas corpus. The Miranda issue

does not bear upon the integrity of the fact-finding

process. To require police officers to comply with the

_ specifies of an opinion (Miranda) at a time prior to

the opinion’s issuance and when compliance with the

then existing law was had (Escobedo v. Illinois, 378

U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)),

merely exacerbates the problem of federal-state rela-

tionships. It seeks to impose upon the states through

the use of a collateral remedy a stricter standard for

the admission of statements than Congress has now

established for confessions under the federal justice

sestem (Omnibus Crime Control and Safe Stre ‘s Act

* 1968, 18 U.S.C. § 3501(b)).

— 3—

The State of California joins the State of Michigan

in urging that this Court reconsider the effective date

of Miranda, limit any expansion of its doctrines and

further hold that the doctrine is not constitutionally

compelled so as to permit recourse to federal habeas

corpus’ for collateral attacks on final state court judg-

ments on such grounds.

ARGUMENT

|. The Miranda Doctrines Should Not Be Extended to En-

compass Voluntary Statements Meeting Legal Require-

ments at the Time of the Occurrence.

A. The Dicta of Johnson v. New Jersey, 384 U.S. 719 (1966), Should

Not Require the Application of Miranda y. Arizona, 384 U.S. 436

(1966), to this case.

In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct.

1772, 16 L.Ed.2d 882 (1966), decided one week after the

Miranda decision, supra, this Court held that Miranda

should not be applied retroactively. In the Johnson

case, however, the questioning and the trial occurred

several years prior to Miranda. Most of the states and

lower federal courts have purported to follow the

dicta of Johnson and applied Miranda to situations

occurring prior to Miranda but where the trial date

was subsequent to Miranda.’ Such a result ignores the

criteria previously used by this Court in determining

the retroactivity issue: (a) the purpose to be served

'Pre-Miranda confession—post-Miranda trial—Miranda require-

ments applied: United States v. Vanterpool, 394 F.2d 697,

699-700 (2d Cir. 1968); United States v. Fox, 403 F.2d 97,

100 (2d Cir, 1968); United States v. Chaplin, 435 F.2d 320,

322 (2d Cir. 1970) ; Griffith v. Jones, 283 F.Supp. 794 (N.D.

Ga. 1967); Evans v. United States, 375 F.2d 355 (9th Cir.

1967) ; Groshart v. United States, 392 F.2d 172, 175 (9th Cir.

NUPPNIRY TAD Fe at ROR Ler pCR Pome NW RA pot CANE Pray

Ki ' ———e

wen ek

by the new standards; (b) the extent of the reliance

by law enforcement authorities on the old standards;

and (c) the effect on the administration of justice

of a retroactive application of the new standards,

First among these factors is the purpose to be served

by the new constitutional rule (See Williams y. United

States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388

(1971), holding Chimel v. California, 395 U.S. 752

(1969), applicable to searches conducted after the date

of Chimel; Desist v. United States, 394 U.S. 244, 253

-(1969), holding Katz v. United States, 389 U.S. 347

~€1967), applicable to wiretaps occurring after Katz;

Stovall v. Denno, 388 U.S. 293, 300-301 (1967) hold-

ing United States v. Wade, 388 U.S. 218 (1967) and

Gilbert v. California, 388 U.S. 263 (1967), applicable

to cases where the confrontations occurred after the

decisions in these cases). To the same effect was Mor-

rissey v. Brewer, 408 U.S. 471, 490, 92 S.Ct. 2593, 33

L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 US.

778, 93 S.Ct. 1756, 36 L.Ed.2d 656, 666 (1973), where

the court limited the new requirements as to due proc-

ess in parole procedures to situations arising after

the dates of those decisions.

The application of an occurrence-date of prospec-

tivity in the case at bar would eliminate the necessity

1968) ; People v. Welborn, 2 Cal.App.3d 715, 82 Cal.Rptr. 845

(1969) ; Young v. State, 234 So.2d 341 (Fla. 1970) ; State v.

Anderson, 229 So.2d 329 (La. 1969); Commonwealth v.

Bujnowski, 267 N.E.2d 924 (Mass. App. 1971); Peaple v.

Kilduff, 276 N.Y.S.2d 814, 816 (1966); Commonwealth \¥.

Yount, 435 Pa. 276, 279 (1969) ; People v. Schader, 71 Cal.2d

761, 80 Cal.Rptr. 1, 457 P.2d 841 (1969); People v. Rollins,

65 Cal.2d 681, 56 Cal.Rptr. 295, 423 P.2d 221 (1967).

—5 —

of police officers having the necessary prescience to

anticipate opinions of this Court. It would minimize

the strain on federal-state relations now occasioned by

the overruling of state court decisions by federal

courts for failure of the police to apply later devel-

oped standards when at the time of the occurrence

they had acted in good faith on the law then in effect.

The adoption of such a rule of prospectivity would

not undermine the purposes of Escobedo and Miranda.

Those decisions were directed at future police prac-

tices and any past misconduct could not be cured by

setting free prisoners who have committed heinous

crimes but who fortuitously would become entitled to

their release not on the ground of innocence but be-

cause the police could not foresee later developed tech-

nical requirements." eS

Here at the time of the taking of the statements,

the law enforcement officials relied upon the Escobedo

requirements and advised respondent of his right to

counsel and to the privilege against self-incrimination.

His basic constitutional rights were protected. It does

not appear that the fact that he was not advised of

his rights as to court appointed counsel if he were in-

digent would make his statements in any manner in-

voluntary. It is apparent that if the occurrence had

taken place subsequent to Miranda the officers would

have known and therefore complied with its require-

ments. To apply Miranda requirements to a case

™ United States v. Calandra, 42 U.S.L.W. 4104 (1974),

Se BOT MRE grey SL Sonar thts ten

where the officers could not have known of its require-

ments when they sought to ascertain the respondent’s

connection with the offense and where they merely |

learned the name of the person he considered his

‘‘alibi’’ witness can hardly be considered as compel-

ling him contrary to his volition to convict himself.

The retroactive application of Miranda require-

ments to the factual situation here presented would in

fact glorify form over substance and obviously disrupt

the administration of criminal justice. Such an ex-

tended application of the Miranda rule which does not

deal with the integrity of the truth determining proc-

cess tends to create disrespect for the law by the po-

lice, lawyers,” lawmakers,* and all involved in the

criminal justice process.

Amicus curiae therefore urges that this Court limit

the applicability of Miranda requirements to occur-

rences subsequent to the date of that decision in ac-

cordance with the rationale of the decision itself and

the reasons for. not applying it to retrials found in

Jenkins v. Delaware, 395 U.S. 213, n. 7, 89 S.Ct. 1677,

23 L.Ed.2d 253 (1969).

B. The Application by the Federal Courts of a Stricter Standard for Ad-

missibility of Statements of a Respondent Than Congress Has Required

for the Admissibility of Confessions in Federal Courts Is Not Mandated

by the Federal Constitution.

In Miranda v. Arizona, 384 U.S. 4386 (1966), this

Court held that no confession, admission or exculpa-

2 Schaefer, The Control of ‘‘Sunbursts’’: Techniques of Prospec-

tive Overruling, 42 N.Y.U.L. Rev. 631, 645 (1967).

Schwartz, Retroactivity, Reliability and Due Process, 33 U. Chi.L.

Rev. 719, 764 (1966).

3 Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 3501;

P.L. 90-351, Title II, 82 Stats. 210.

—T—

tory statement could be introduced into evidence at

any trial unless certain detailed warnings were given

and waivers obtained in accordance with the opinion’s

requirements.

Subsequently thereto Congress enacted the Omnibus

Crime Control and Safe Streets Act, effective June 19,

1968. In section 3501 of Title 18: (P.L. 90-351, Title

II, 82 Stats. 210), it is provided:

“ADMISSIBILITY OF CONFESSIONS

‘‘(a) In any criminal prosecution brought by

the United States or by the District of Columbia,

a confession, as defined in subsection (e) hereof,

shall be admissible in evidence if it is voluntarily

given. Before such confession is received in evi-

dence, the trial judge shall, out of the presence of

the jury, determine any issue as to voluntariness.

If the trial judge determines that the confession

was voluntarily made it shall be admitted in evi-

dence and the trial judge shall permit the jury

to hear relevant evidence on the issue of voluntari-

ness and shall instruct the jury to give such

weight to the confession as the jury feels it de-

serves under all the circumstances.

‘“‘(b) The trial judge in determining the issue of

voluntariness shall take into consideration all the

circumstances surrounding the giving of the con-

fession, including (1) the time elapsing between

arrest and arraignment of the defendant making

the confession, if it was made after arrest and be-

fore arraignment, (2) whether such defendant

knew the nature of the offense with which he was

charged or of which he was suspected at the time

of making the confession, (3) whether or not such

pnameahenreemecnenene:

EEE ELLIE LES SLI LT Se te en

— gg —

defendant was advised or knew that he was not re-

quired to make any statement and that any such

statement could be used against him, (4) whether

or not such defendant had been advised prior to

questioning of his right to the assistance of coun-

sel; and (5) whether or not such defendant was

without the assistance of counsel: when questioned

and when giving such confession.

‘‘The presence or absence of any of the above-

mentioned factors to be taken into consideration

by the judge need not be conclusive on the issue of

voluntariness of the confession.’’

‘‘(e) As used in this section, the term ‘confes-

sion’ means any confession of guilt of any criminal

offense or any self-incriminating statement made

or given orally or in writing.”’

Admittedly, this legislation by its very terms applies

only to federal prosecutions. Nevertheless, it recog-

nizes that Miranda in terms of the specific require-

ments therein set forth is not constitutionally com-

pelled. (See 1968 U.S. Code Cong. and Ad. News, pp.

2112, 2123-2138). ,

In Miranda, itself, this Court stated (384 U.S. at

467) : ~

“¢). . [W]e cannot say that the Constitution nec-

essarily requires adherence to any particular solu-

tion for the inherent compulsions of the interroga-

tion process as it is presently conducted.”’

In the instant case it is apparent that the statement -

in which the lead was given to the witness whose tes-

. BA TL REM RE ree Su dtl ot

¥

3 9 =

timony was sought to be suppressed met the require-

ments of what Congress felt to be the governing fac-

tors of a voluntary statement. Here, the respondent

was advised of his rights to counsel as well as his

privilege against self-incrimination. Save and apart

from failure to advise him as to the appointment of

counsel if he were indigent his statements would

clearly have been voluntary in the traditional sense.

The Miranda ruling has led to a multitude of cases

presenting questions of law not related to true volun-

tariness of a confession or admission by reason of

hypertechnical questions of interpretation. As is read-

ily apparent courts have been loath to turn loose upon

society those individuals who were accorded full due

process rights save for the fortuitous circumstances

that their cases were tried subsequent to Miranda and

all specifies were not found in the records.

Where Congress has recognized society’s interest in

the ascertainment of the truth and has balanced so-

ciety’s interests against that of the individual it is

apparent that any expansion of Jf iranda is not alone

unwarranted but contrary to Congressional intent,

particularly where it is applied to a final state court

judgment subjected to a collateral attack in federal

courts.

ape SRE HC ae RA Te laGe

rates csiiscasesindiicssiniivoneirrns

:

+ DLO WEAR inne eo Te a a ee

— 10 —

ll. Federal Habeas Corpus Should Not Be Permitted to

Review Final State Court Criminal Convictions Based

on Alleged Violations of Miranda v. Arizona, 384 U.S.

436, Supra, or Wong Sun v. United States, 371 U.S.

471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

In the recent case of Schneckloth v. Bustamonte, 412

U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), this

Court upheld a consent search against a collateral at-

tack in the federal courts and found that the consent

was voluntary and the standard used by the state court

in reaching this determination, the totality of circum-

stances, was proper. One of the questions also raised

in the case was the use of federal habeas corpus to

review final state court judgments on questions in-

volving search and seizure. Mr. Justice Powell in a

concurring opinion joined in by the Chief Justice and

Mr. Justice Rehnquist discussed and rejected the use

of federal habeas corpus to review Fourth Amendment

claims. Mr. Justice Powell concluded with language

which is directly apposite to the present case (412

U.S. 218 at 275):

‘¢ ... Indeed, it is difficult to explain why a sys-

tem of criminal justice deserves respect which al-

lows repetitive reviews of convictions long since

held to have been final at the end of the normal

process of trial and appeal where the basis for re-

examination is not even that the convicted defend-

ant was innocent. There has been a halo about the

‘Great Writ’ that no one would wish to dim. Yet

one must wonder whether the stretching of its use

far beyond any justifiable purpose will not in the

es:

—_

|

end weaken rather than strengthen the writ’s vi-

tality.’’ ;

The same reasoning is applicable to review of Mi-

randa contentions which do not have as their primary

purpose the protection of either the reliability of the

fact-finding process at the trial or on appeal from the

judgment of conviction.

Although Miranda guards against the possibility of

unreliable statements in every instance of in-custody

interrogation it encompasses situations in which the

danger is not necessarily as great as when the accused

is subjected to overt and obvious coercion. (Johnson

vy. New Jersey, 384 U.S. 719, 729-730, 86 S.Ct. 1772,

16 L.Ed.2d 882 (1966).) Patently the situation pre-

sented in the case at bar where merely the name of a

witness was obtained from the statement of the re-

spondent at.a time when the police conduct would not

have been illegal, the application of the Miranda and

Wong Sun doctrines to such procedure is an undue

expansion of the two doctrines.

To avoid the result reached by the, district and cir-

cuit courts in this ease other state and federal courts

have used several methods. Some courts have distin-

guished between the discovery of evidentiary material

and the discovery of the identity of witnesses; * other

7 Witnesses Testimony Not Suppressed: State v. Johnson, 192 N.W.

9d 87 (Minn. 1971); Smith v. United States, 324 F.2d 879,

882 (D.C. Cir. 1963), cert. den. 377 U.S. 954; Brown v. United

States, 375 F.2d 310 (D.C. Cir. 1967) ; Pfeifer v. State, 460

P2d 125 (Okla. Cr. 1969). Contrary: Williams v. United

States, 382 F.2d 48 (5th Cir. 1967); United States v. Tane,

329 F.2d 848, 853 (2d Cir. 1964) ; Goodman v. United States,

285 F.Supp. 245 (C.D. Cal. 1968) ; Commonwealth v. Cephas,

''7 Pa. 500, 291 A.2d 106 (1972).

3

z

3

¥

j

- |

5

3

3

eae ,

— 12 —

courts by somewhat strained construction have found

that the results would have been reached otherwise,

i.e., by the voluntary action of the witness whose

identity was disclosed;° still other courts have held

that in the normal course of police investigation the

identity of the witness would have been discovered;'

and still other courts have found an attenuation of the

taint by time, warnings, change of position of the wit-

ness or some other reason such as the defendant not

being in custody at the time of the interrogation so as

to require Miranda warnings.’ Obviously the courts

have balanced the need for the protection of society

with the need to deter illegal police activity and where

the balance is on the side of society have found rea-

sons for refusing to apply the Miranda and Wong Sun

doctrines.

5 United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967);

United States v. Evans, 454 F.2d 813, 818 (8th Cir. 1972).

® United States v. Holsey, 4387 F.2d 250, 253 (10th Cir. 1970);

United States v. Marder, 474 F.2d 1192 (5th Cir. 1973);

People v. Fitzpatrick, 32 N.Y.2d 499, 300 N.E.2d 139 (1973);

Lockridge v. Superior Court, 3 Cal.3d 166, 89 Cal.Rptr. 731,

474 P.2d 683 (1970); R. Maguire, How to Unpoison The

Fruit, The Fourth Amendment And The Exclusionary Rule

(1964) 55 J. Crim. L. C & PS. 307, 314-317.

7 Johnson v. State, 496 S.W.2d 72 (1973); People v. Pettis, 298

N.E.2d 372, 12 Ill.App.3d 123 (1973) ; United States v. Work-

man, 470 F.2d 151 (4th Cir. 1972); People v. Carter, 204

N.W.2d 703, 43 Mich. App. 735 (1972); United States v.

Brandon, 467 F.2d 1008 (9th Cir. 1972); United States v.

Tyler, 459 F.2d 647 (10th Cir. 1972) ; United States v. Evans,

454 F.2d 813 (8th Cir. 1972) ; People v. Gill, 187 N.W.2d 707

(Mich. 1971); State v. Miranda, 104 Ariz. 174, 450 P.2d 364

(1969) ; People v. McInnis, 6 @al.3d 821, 100 Cal.Rptr. 618,

494 P.2d 690 (1972); People ». Welborn, 2 Cal.App.3d 713,

82 Cal.Reptr. 845 (1969). .

Te SE ae Oe OF re ey me bee WEL OE PE, PR Bee were

— 13 —

Where, as in this case, the federal eourts have ex-

panded these doctrines to encompass situations occur-

ring prior to the decision in Miranda certainly the

rationale for the rule—the deterrence of improper po-

lice practices—is not served. There is a scarcity of

judicial resources. A repetition of hearings in federal

courts in instances where a respondent has had a full

and fair state hearing is a useless expenditure of ju-

dicial time, personnel, prosecutors and defense coun-

sel. The encouraging of collateral attack frustrates the

deterrent effect of the law and the effectiveness of re-

habilitation. There is an undue subordination of state

courts to lower federal courts with the resulting ex-

acerbation of federal-state relationships and the doc-

trine of federalism is itself eroded. The guilt or in-

nocence of the defendant or respondent is not in

doubt. The situation presented is a question of com-

pliance with technicalities upon which various courts

have disagreed and the requiring of prescience on the

part of law enforcement of requirements which will

later be imposed under a future opinion.

These objections to the use of federal habeas corpus

have been recognized by Judge Friendly in his article,

Is Innocence Irrelevant? Collateral Attack on Crimi-

nal Judgments, 38 U. Chi. L. Rev. 142 (1970); Pro-

fessor Bator in his article on Finality in Criminal

Law and Federal Habeas Corpus for State Prisoners,

76 Harvard Law Review 441; Professor Doub in his

article, The Case Against Modern Federal Habeas

—

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aaa RL CLE EEF, LOORL AL BLE SESE INE APTI SI ORD a Mien eat

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Corpus, 57 A.B.A.J. 323, and in a recent article, Sha-

piro, Federal Habeas Corpus: A Study in Massachu-

setts, 87 Harvard Law Review 321 (1973). The con-

clusions of these commentators and judges supports

the contentions of the amicus curiae herein. Since the

exclusionary rules are not designed to insure the fair-

ness of the trial but to discipline police officers, the

impact of the rule on such dis¢i line when utilized as

the basis for collateral attack @h a final judgment is

certainly minimal. (Oaks, Studying the Exclusionary

Rule in Search and Seizure, 37 U. Chi.L.Rev. 665

(1970).)

As Mr. Justice Powell further stated in his con-

curring opinion in Schneckloth v. Bustamonte, 412

US. 218, 251:

. Neither the history or purpose of habeas

corpus, the desired prophylactic utility of the ex-

clusionary rule as applied to Fourth Amendment

claims, nor any sound reason relevant to the ad-

ministration of criminal justice in our federal sys-

tem justifies such a power.”’

Amicus curiae submits that the action of the lower

federal courts in the instant case erroneously expanded

the application of the Miranda doctrine and arrived

at a conclusion not compelled by the United States

Constitution.* The further expansion of the use of fed-

eral habeas corpus with its concomitant burdens on

8 Amicus curiae also joins with petitioner in Argument II of Brief

of Petitioner.

io

— 15 —

the system of criminal justice should not be permitted

particularly in a case such as the present one in which

the respective respondent has received that ‘‘due proc-

ess’’ to which he was entitled under the federal Con-

stitution.

CONCLUSION

For the foregoing reasons, the State of California

as amicus curiae on behalf of the petitioner herein,

respectfully requests this Court to reverse the decision

of the Court of Appeals for the Sixth Circuit.

Respectfully submitted,

EVELLE J. YOUNGER

Attorney General of the

State of California

JACK R. WINKLER

Chief Assistant Attorney General

Criminal Division

DORIS H. MAIER

Assistant Attorney General

Attorneys for Amicus Curiae

State of California

DHM :bls

19-74

SA 74 US. 01

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UNITED STATES CODE

28 U.S.C. § 2241

§ 2241. Power to grant writ

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

s and any circuit judge within their respective jurisdic-

tions. The order of a circuit judge shall be entered in

4 the records of the district court of the district wherein

_ the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and

: any circuit judge may decline to entertain an applica-

| tion for a writ of habeas corpus and may transfer the

_ application for hearing and determination to the dis-

trict court having jurisdiction to entertain it.

(c) The writ of habeas corpus shall not extend to

a prisoner unless—

(1) He is in custody under or by color of the

authority of the United States or is committed for

trial before some court thereof; or

(2) He is in custody for an act done or omitted

in pursuance of an Act of Congress, or an order,

process, judgment or decree of a court or judge of

the United States; or

(3) He is in custody in violation of the Consti-

tution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and

domiciled therein is in custody for an act done or

omitted under any alleged right, title, authority,

privilege, protection, or exemption claimed under

the commission, order or sanction of any foreign

state, or under color thereof, the validity and ef-

fect of which depend upon the law of nations; or

(5) It is necessary to bring him into court to

testify or for trial.

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(d) Where an application for a writ of habeas

corpus is made by a person in custody under the

judgment and sentence of a State court of a State

which contains two or more Federal judicial districts,

the application may be filed in the district court for

the district wherein such person is in custody or in

the district court for the district within which the

State court was held which convicted and sentenced

him and each of such district cOurts shall have con-

current jurisdiction to entertain the application. The

district court for the district wherein such an applica-

tion is filed in the exercise of its discretion and in fur-

therance of justice may transfer the application to

the other district court for hearing and determination.

As amended May 24, 1949, ce. 139, § 112, 63 Stat. 105;

Sept. 19, 1966, Pub.L. 89-590, 80 Stat. 811.

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