# Petition for a Writ of Certiorari — United States v. Hale > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0464%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 422 U.S. 171 ## Text IN.DEX ia ‘Page inion below Ste SASS Pb enn nedadisbwenadusaoeae 1 anon ih cnc nines den tid i ts a is 1 on presented___...-..------------------- 2 astitutional provision involved__---2--------- 2 os escent tne ms de ink 0h a i china ean we tn me 2 sons for granting the writ__---------------- 5 ' sion ie lieits x via ra nes ais 3 aie a ae Se a ee a es es tO es 13 sss sgn ts tt side anette vase on 1A pendix B______________-_ aes 344A pendix Ia caine dn iets leh aentsndied ab pest scion ani Sos 36A Te nce amaandéemaweecnasenacee 37A CITATIONS 4 Agnellino v. New Jersey, 493 F. 2d 714___--. 5,6 ' Deats v. Rodriguez, 477 F. 2d 1023_______-__- 5 - Fowle v. United States, 410 F’. 2d 48________- 5 | Griffin v. California, 380 U.S. 609_-._------ 4, 9,13 | Grunewald v. United States, 353 U.S. 391____- 4, . 9, 10, 11, 12, 13 © Harris v. New York, 401 U.S. 222_____- 4, 6, 7,9, 10 _ Johnson v. Patterson, 475 ¥. 2d 1066, certiorari denied, 414 U.S. 878_________----------- 5 ~ McGautha v. California, 402 U.S. 183______- 8 _ Miranda v. Arizona, 384 U.S. 436__-_- 2, 4, 9, 12, 13 | Raffel v. United States, 271 U.S. 494_____- 7,8, 9, 10 | Robideau v. Rhay, 431 F. 2d 880_----------- 5 © Spencer v. Texas, 385 U.S. 554____-_------- 7 Stewart v. United States, 366 U.S. 1_____-_-- 9 (1) | 858-042—74——1 ET EE EER rt Cases—Continued United States v. Brinson, 411 F. 2d 1057_--_- United States ex. rel Burt v. State of New Jersey, 475 F. 2d 234 _ United States v. Quintana-Gomez, : 488 F. 2d 1246 United States v. Ramirez, 44 F. 2d 950, certio- rari denied, 404 U.S. 869 ~ United States v. Semensohn, 421. F. Od 1206. _ Wilson v. United States, 149 U.S. 60 ~ Constitution and statutes United States Constitution, Fifth Amend- ment 2, 4, 8, 10, 11, 12 _3481____..--------------------- 9 22 D.C. Code 2901_.....--------------+--- 2 §n the Supreme Gourt of the Gnited States OctoBeR TERM, 1974 No. — Unitrep StaTES OF AMERICA, PETITIONER Vv. Wiuiam G. HALE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUM- BIA CIRCUIT The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the Court of Appeals for the District of Columbia Circuit in the above-captioned case- OPINION BELOW The opinion of the court of appeals (App. A, infra, pp. 1A-33A) is reported at 498 F. 2d 1038. JURISDICTION The judgment of the court of appeals (App. B, infra, pp. 34A-35A) was entered on May 21, 1974. On August 1, 1974, the court of appeals denied a petition for rehearing with a suggestion for rehearing en banc (four judges dissenting) (Apps. C and D, infra, pp- (1) 2 36A-38A). On August 26, 1974, Mr. Justice Marshall j extended the time for filing a petition for a writ of certiorari to and including September 30, 1974. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Fifth Amendment bars cross-examina- tion of a defendant who has given exculpatory testi- mony at trial as to why he failed to offer such information at the time of his arrest. CONSTITUTIONAL PROVISION INVOLVED The Fifth Amendment provides in pertinent part: No person shall *.* * be compelled in any criminal ease to be a witness against him- self * * *, STATEMENT After a jury trial in the United States District Court for the District of Columbia, respondent was eonvicted of robbery, in violation of 22 D.C. Code 2901. Imposition of sentence was suspended, and he was placed on probation for three years. On appeal, the court of appeals reversed respondent’s conviction. 1. The government’s case rested largely on the testi- mony of Lonnie Arrington, the ‘complaining witness, who testified that respondent was among five men who robbed him of $96 (Tr. 25-30). The record indicates that soon after the robbery, respondent was arrested, taken to the police station and informed of his rights under Miranda v. Arizona, 384 U.S. 436, including his right to remain silent. He was then searched 3 and found to be in possession of $158. At trial, respondent testified on his own behalf and explained his possession of the money by stating that his estranged wife had received her welfare check that day and had given him about $150 so that he could purchase some money orders for her (Tr. 217-219). In an effort to impeach this testimony, the prosecutor on cross-examination led respondent to admit that he had not offered that explanation to the police at the time of his arrest (Tr. 259): Q. Did you in any way indicate [to the po- lice] where that money came from? A. No, I didn’t. Q. Why not? A. I didn’t feel that it was necessary at the time. - Q. You were advised of your rights, were you not? A. Yes. Immediately following this exchange, the district court cautioned the jury that the questioning was im- proper and that they could disregard it.’ *The court stated (App. A, infra, p. 17A): “He is not required to indicate where the money came from. There is no responsibility on his part in regard to that. * * * lindicated to the jury that it is clearly an inappropriate ques- tion. You may disregard it, ladies and gentlemen. The defend- at is not required to give any explanation whatsoever at the time of his arrest.” The majority in the court of appeals rejected the notion that this caution to the jury overcame the effect of the impropriety it found in the prosecutor’s questions (App. A, infra, p. 13A). We, of course, disagree with the statement of the district court td the conclusion of the court of appeals that the questioning 4 2. In a 2-1 decision, the court of appeals. ruled that this, cross-examination was improper and required a new trial. The majority reasoned that Griffin v. Cali- fornia, 380 U.S. 609, barring comment to the jury upon a defendant’s failure to testify at trial, similarly | barred disclosure of a defendant’s assertion of his Fifth Amendment privilege during police interroga- tion. Moreover, since respondent was told that he had a right to remain silent during interrogation, his fail- ure to explain to the police the source of the money found on his person was considered to be not incon- sistent with his. subsequent trial testimony. The ma- jority relied in this regard upon Grunewald v. United States, 353 U.S. 391, in which this Court barred cross- examination of a defendant as to the prior assertion of his Fifth Amendment privilege before a grand jury. | ! . Judge Wilkey dissented on the ground, tnter alia, that a defendant who testifies at trial waives the priv- ilege against self-incrimination and is subject, as any other witness, to extensive cross-examination calcu- lated to test his credibility (App. A, infra, pp. 17A- 31A). Relying upon Harris v. New York, 401 US. 222, in which the Court held that a defendant could be impeached by statements given the police in the absence of sufficient Miranda warning, Judge Wilkey reasoned that a defendant’s failure to offer the police an explanation of incriminating circumstances should be disclosed to the jury in order to enable it reason- was improper. In any event, we do not rely here on any argu ment that the district court’s caution to the jury was sufficient to obviate the error, if error there was. See note 2, infra. 5 ably to evaluate the credibility of the defendant’s trial testimony.’ REASONS FOR GRANTING THE WRIT This case presents the important question whether the prosecution can’ test the credibility of a defend- ant’s trial testimony by bringing to the attention of the jury his failure to offer the same information at the time of- arrest. The circuits are in sharp con- flict on this question. In addition to the court below, the Second, Sixth, Ninth, and’ Tenth Circuits have barred cross-examination of a defendant that dis- closes his silence during police interrogation.’ The Third and Fifth Circuits, however, have permitted such cross-examination.* * Judge Wilkey also relied for his dissent on the alternative ground, rejected by the majority (App. A, infra, pp. 12A- 154), that, even if the questioning were deemed improper, the defect was harmless beyond a reasonable doubt and therefore did-not) warrant reversal of réspondent’s conviction (App. A, infra, pp. 31A-33A). While we agree with Judge Wilkey’s analysis of this, issue, the controversy on the point involves the ' application of an essentially undisputed standard to the facts of a particular case. Accordingly, we do not believe that the issue is appropriate for presentation to the Court in this case, and we do not seek review of that aspect of the court of appeals’ holding. . *See United States v. Semensohn, 421 F. 2d 1206 (C.A. 2); United States v. Brinson, 411 F. 2d 1057 (C.A. 6); Robideau y. Rhay, 431 F. 2d 880 (C.A. 9); Fotole v. United States, 410 F. 2d 48 (C.A. 9); Johnson v. Patterson, 475 F. 2d 1066 (C.A. 10), certiorari, denied, 414 U.S. 878; Deats' v. Rodriguez, 477 F, 2d 1023 (C.A. 10). *See United States ex rel. Burt v. State of New Jersey, 475 F. 2d 234 (C.A. 3); Agnellino v. New Jersey, 493 F. 2d 714 — 4C.A, 3); United States v. Quintana-Gomez, 488 F. 2d 1246 a 6 The existence of an adequate opportunity to test the credibility of a defendant who takes the stand in his own behalf is crucial to the mission of a trial— accurate ascertainment of the truth. In disallowing a ‘form of cross examination that exposes a testifying defendant’s prior failure to explain seemingly incrim- _ inating circumstances, the court below effectively ren- dered a defendant immune from one of the “tradi- tional truth-testing devices of the adversary process.” Harris v. New York, 401 U.S. 222, 225. (C.A. 5); United States v. Ramirez, 441 F. 2d 950 (C.A. 5), certiorari denied, 404 U.S. 869. . , The position of the Third Circuit is not altogether clear. In Burt, supra,,the defendant testified that the shooting death for which he had been charged with murder had been accidental. The prosecution elicited on cross-examination the fact that, when he had been arrested soon after the shooting for an ‘unrelated crime, the defendant had not sought to secure assist- ance for the victim. The lead opinion in Burt held that the cross-examination was permissible because the defendant's silence during police interrogation had occurred before he stood of the murder. The other two members of the panel, however, issued a concurring opinion on the ground that Harris allows impeachment by prior silence at a police station. In Agnellino, supra, the defendant made statements to the police but failed to indicate the source of stolen goods that were found on his property. He testified at trial that he had purchased them. During closing argument the prosecutor com- mented upon’ the defendant’s prior failure to provide this in- ‘formation to the police. The lead opinion, relying upon the concurring opinions in Burt, held that the prosecutor’s com- ment was permissible. The other'two members of the panel, however, concutred on the basis that what the defendant had told the police was inconsistent with his trial testimony. They viewed Burt as a situation iri which the defendant’s conduct in not seeking assistance for the shooting victim was incon- sistent with his testimony at trial that the shooting had been accidental. 7 Certiorari should be granted to resolve this conflict among the circuits in an important area of criminal procedure. 1. A defendant who takes the stand puts himself in a fundamentally different position from one who does not. Once on the stand he is subject like any other witness to cross-examination designed to assure the reliability of his testimony: ‘“There is a sound policy in requiring the accused who offers himself as a wit- ness to do so without reservation, as does any other witness.” Raffel v. United States, 271 U.S. 494, 499. A defendant’s alibi or exculpatory testimony—often cen- tral to his case—should not be given special immunity from impeachment. Once he testifies, he may be cross- examined as to any matters reasonably related to the subject of his direct examination—including matters which otherwise could not be commented upon, such as prior convictions, Spencer v. Texas, 385 U.S. 554, 561; refusals to testify on his own behalf at prior trials, Raffel v. United States, supra; or inconsistent state- ments made during police interrogation without prior Miranda warning, Harris v. New York, supra. A defendant’s silence during police interrogation should be no exception to this principle. Although it may be impermissible for the prosecution to introduce as evidence of guilt the fact that an accused failed to testify or remained silent, where he testifies a jury should be permitted to assess the credibility of his story by learning that he is telling it to the authorities for the first time in court. 558-042—74—__2 y eens Contrary to the assertion of the court below, it seems to us speculative and even unlikely as an em- pirical matter that a defendant will be deterred from invoking his Fifth Amendment privilege during police interrogation by the mere possibility that he might wish to, waive it at trial and that, if he did so, he might be called upon to explain why he had not of- fered his story to the authorities during interrogation. But even if it had some such effect, it does not follow that this represents an impermissible ‘“‘penalty” on the exercise of the constitutional right; rather, we submit that it represents a proper consequence of the defend- ant’s election to withhold any explanation of suspi- cious circumstances from the police, while choosing to provide one at trial. “The safeguards against self- incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and_not for those who do.” Raffel, supra, 271 U.S. at 499. Nor is the defendant’s decision whether to testify at trial any more “‘fettered” by the possibility that he may be asked to explain why he had not before offered his story than it is by the possibility that he may be asked about prior convictions or refusals to testify on his own behalf at prior trials. “It does no violence to the privilege that a person’s choice to testify in his own. behalf may open the door to otherwise inadmis- sible evidence which is damaging to his case.” Me- * Gautha vy. California, 402 U.S. 183, 213. On the other hand, having chosen to waive the priv- ilegé at trial, a defendant should not then be per Smifted to take advantage of his prior invocation of it by: having his present testimony immunized from ac- - 9 curate evaluation by a particular line of probative inquiry. “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense * * *.” Harris v. New York, supra, 401 U.S. at 226. 2. Griffin v. California, 380 U.S. 609, and Miranda v. Arizona, 384 U.S. 436, both relied upon by the majority below. are not inconsistent with this princi- ple. Griffin, barring comment to the jury upon a. defendant’s failure to testify, did not overrule Raffel, supra, which permitted cross-examination of a defend- ant as to why he refused to take the stand at a prior trial when his purpose in testifying was to rebut a witness who offered the same testimony at both trials.’ Similarly, Miranda’s dictum that “[t]he prosecution may not * * * use at trial the fact that [a defendant] stood mute or claimed his privilege in the face of accusation * * *’’ (384 U.S. at 468, n. 37) is, in light ’Since at the time Raffel was decided it was already the rule in federal courts that no comment could be made upon a defendant’s failure to take the stand, see Wilson v. United States, 149 U.S. 60; 18 U.S.C. 3481, it seems clear that the Court did not intend to overrule Raffel or even call its holding into question by its ruling in @riffin. Nor is Stewart v. United States, 366 U.S. 1, cited by the majority below, inconsistent with Raffel. In Stewart, a defend- ant who pleaded not guilty by reason of insanity took the stand and made various unintelligible statements. During cross- examination the prosecutor elicited the fact that the defendant had not testified during two previous trials, which had resulted in convictions that were reversed on appeal. In ruling this cross-examination improper, the Court noted that neither Raffel nor Grunewald was applicable, since the cross-examination in Stewart sought to discredit the claim of insanity rather than impeach the defendant's testimony. ee sae — of Harris’ holding that statements improperly ob- tained may nevertheless be used for impeachment, correctly understood as a bar to the use of a defend- ant’s silence during interrogation in the government’s case in chief. But—following the logic of Raffel and Harris—it would not prohibit asking a defendant on cross-examination, for the purpose of impeaching his trial testimony, why he remained silent at the time of arrest. ‘ 3. Accordingly, once a defendant takes the stand in his own behalf, the Fifth Amendment does not bar reference to his prior silence for the purpose of im- peaching his testimony. The Fifth Amendment limits such cross-examination only when its prejudicial im- pact will outweigh its probative value. Thus, in Grunewald v. United States, 353 U.S. 391, also relied upon by the majority below, this Court barred cross-examination of a defendant as. to his silence before a grand jury, not because the defend- ant had there asserted his Fifth Amendment privilege, but because, in the circumstances of the case, the pro- bative value of the silence was thought to ‘be out: weighed by its potential prejudicial impact upon the jury (id. at 420): [W]e may assume that under Raffel [the defendant] in this case was subject to cross- examination impeaching his credibility just like any other witness, and that his Fifth Amend- ment plea before the grand jury could not carry over any form of immunity when he volun- tarily took the stand at the trial. This does not, however, solve. the question whether in the 10 11 particular circumstances of this case the cross- examination should have been excluded because its probative value on the issue of [the de- fendant’s] credibility was so negligible as to be far outweighed by its possible impermissible impact on the jury. The Court determined that the defendant’s silence be- fore the grand jury was not probative, in that it was not inconsistent with his testimony at trial. Had the defendant answered questions put to him before the grand jury in the same way he subsequently answered them at trial, he would have incriminated himself, since an unexplained admission before the grand jury that he knew one of the co-defendants would have linked him with a criminal conspiracy. Id. at 422. Moreover, by the time he refused to answer the grand jury’s questions, the defendant had already secured the advice of counsel, and the grand jury had already heard testimony from his co-defendants. In these cir- cumstances, the Court reasoned, ‘‘many innocent men who know that they are about to be indicted will re- fuse to help create a case against themselves * * *.” Id. at 423. Looking to the other side of the balance, the Court in Grunewald feared that knowledge of a defendant's refusal to testify on the specific Fifth Amendment ground that his answers might tend to incriminate him would prejudice the jury against him. Jd. at 424. “Weighing the factors,” the Court concluded that it was prejudicial error for the trial court to permit ross-examination of the defendant on his invocation of the Fifth Amendment privilege before the grand jury. 12 Here, however, the balance between probative value and prejudicial impact tips in the other direction. Had the respondent explained to the police that his wife gave him the money, as he subsequently ex- plained at trial, he would not have incriminated him- | self. Thus there is reason to suppose that, even after receiving the Miranda warnings, he might well have offered such an explanation. His failure under these circumstances to explain to the police the source of the money found on his person soon after the robbery therefore cast some real doubt upon his explanation at trial. Moreover, his interrogation occurred soon after he was apprehended—hefore he had any firm idea that evidence was being gathered against him. Thus, unlike the defendant in Grunewald, respondent was not so far along in the criminal process that his re- fusal to provide an explanation was likely to reflect a tactical decision. Moreover, cross-examination in the instant case pre- sented little chance of prejudice. The jury was not told that respondent had remained silent before the police, or that he had invoked his Fifth Amendment privilege.’ Rather, the government’s cross-examination merely disclosed that respondent had not explained to the police the circumstances surrounding his posses- sion of the money. Respondent replied at trial that he had not offered the explanation to the police because * Indeed, it may well be questioned whether, strictly speaking. the right to stand silent before the police is directly derived from the privilege against self-incrimination or has other sources, since the right of silence is not, unlike the ordinary invocation of the privilege, contingent upon any claim that a response might be incriminating. — 13 “he didn’t feel it was necessary at the time.” The jury might infer from this colloquy that the defendant was not telling the truth about the source of the money. It is unlikely, however, that the jury would infer from this that he had remained silent before the police be- cause he feared he would otherwise incriminate him- self. As this Court said in Griffin, supra, ‘‘[w]hat the jury may infer, given no-help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” 380 U.S. at 614. In sum, the decision below not only misapplied Griffin, Miranda, and Grunewald to the circumstances of this case, but in so doing it created an unwarranted immunity from cross-examination for a defendant who chooses to take the stand. CONCLUSION For the reasons stated, the petition for a writ of certiorari should be granted. Respectfully submitted. Rosert H. Bork, Solicitor General. Henry E. PErersEN, Assistant Attorney General. Rosert B. REIcu, Assistant to the Solicitor General. JEROME M. Fert, Rosert H. PLaxico, Attorneys. SEPTEMBER 1974, ESM IAT SEMEL IRE I ERIE EINECS LNT SLY SESS TIRE APPENDIX A United States Court of Appeals for the District of Columbia Circuit No. 72-1848 UNITED STATES OF AMERICA v. FLEMMING ANDERSON, APPELLANT No. 72-2066 UNITED STATES OF AMERICA Vv. WirwtamM G. Hak, APPELLANT Appeals from the United States District Court for the District of Columbia Decided May 21, 1974 Louis Briskman* with whom*Sherman L. Cohan, : Larry Ritchie, and Alan Gover* (all appointed by this court) were on the brief, for appellants. David G. Larimer, Assistant United States Attor- ney, with whom Harold H. Titus, Jr., United States Attorney, John A. Terry and John R. Dugan, Assist- ant United States Attorneys, were on the brief, for appellee. : Before: BazELon, Chief Judge, Wispom**, United States Circuit Judge for the Fifth Cireuit, and Wi- KEY, Circuit Judge. *Entered appearance as student counsel pursuant to Rule 20 of the General Rules of this court. **Sitting by designation pursuant to Title 28 U.S.C. § 291(a). (1A) 558-042—_74—_-3 — 2a Opinion for the Court filed by Chief Judge Bazetoy. Dissenting Opinion filed by Circuit Judge W1ILKEY. Bazeton, ChiefJudge: In a joint trial appellants were convicted by a jury of robbery. Anderson re- ceived a two to eight year sentence; imposition of Hale’s sentence was suspended, and he was placed on probation for three years. Hale seeks reversal on the ground that the prosecutor impermissibly sought to elicit his reason for not asserting his alibi to the police when arrested. Anderson seeks reversal on the ground that he was prejudiced by several comments in Hale’s closing argument. We reverse Hale’s conviction, and affirm Anderson’s.* . The government’s case rested largely on the testi- mony of Lonnie Arrington, the complaining witness. Arrington testified that on June 1, 1971, he was on his way to purchase a pair of shoes when he stopped to. chat with Hale, whom he had seen in the neighhbor- hood, but did not know by name. Hale then followed him into the shoe store. Upon leaving, Arrington was aceosted and robbed by a group of men. He immedi- ately reported the robbery to the police. At first he claimed that $65 had been stolen, but later, after checking with his wife, he changed the figure to $96. While waiting for the police to escort him through the neighborhood in search of his attackers, Arrington noticed two men, and shouted “‘there go [sic] a guy © that was in the robbery.’’ When the police ran toward the two men, they fled. Upon their capture, Arrington 1Both appellants argue that the trial court’s refusal to grant a motion for judgment of acquittal was erroneous since the testimony of the complaining witness was “inherently in- credible.” We find sufficient evidence to sustain the verdicts. The question of credibility was for the jury. See, e.g., Bush v. United States, 375 F. 2d 602 (D.C. Cir. 1967). 3A identified Hale as one of the robbers. Several months later, Arrington picked out Anderson from a group of photos shown to him by the police, and then identi- fied him at a lineup. The arresting officer testified that Hale had $123 in his pocket and $35 in his wallet when arrested. He also claimed that Arrington had stated, before Hale had been arrested, ‘‘that he believed one of [the rob- bers] was a man by the name of Billy Hale.” This testimony directly contradicted Arrington’s earlier testimony to the effect that he did not “tell the police {Hale’s name], because I didn’t know if it was [him] or not.’’ ? Hale took the stand in his own defense and testified that he had encountered Arrington on the day in ques- tion. He asserted, however, that after separating from Arrington he was approached by three men who asked if Arrington had any money, and that he replied he “didn’t know.” Hale claimed that he then went to the Narcotics Treatment Center where he remained dur- ing the time of the alleged robbery.’ He left the Center with a friend who subsequently purchased narcotics. Shortly after the purchase, the two men * Arrington also stated that there was a witness to the rob- bery, who was never identified, who had told him that one of the robbers was named “Billy Hale or Bobby Hale.” Although he initially testified that he did not identify Hale by name to the police, his subsequent testimony is confused. Counsel for Hale asked: “So you neglected to mention to the police that one of the individuals had given you the name of one of the | Tobbers, is that right?” And Arrington answered, “I told them.” The record dges not reveal what it is that Arrington told the police. - An administrator from the Center testified that his records indicated that Hale had visited the Center on the day in ques- tion, but that they did not reveal the time of the visit. — i ata PELMIREELET A FILES TOIT RR —— | 4A were approached by the police, and Hale fled because he feared another drug conviction.‘ Hale also testified that his estranged wife had re- ceived her welfare check on the day in question, and that she had given him about $150 so that he could purchase some money orders for her as he had done in the past.’ His wife corroborated this testimony. Anderson presented no evidence, II—Hate’s Ciaim Appellant Hale argues that the trial court com- mitted reversible error in failing to grant his motion for a mistrial after the prosecutor, on cross-examina- tion, elicited from Hale an admission that he had not explained to the police the presence of $158 found on his person at the time of arrest. We find that: (A) the prosecutor’s question was constitutionally imper- missible; and (B) the court’s failure to declare a mis- trial was prejudicial error. ; ‘ . A, The record indicates that after arrest appellant was taken to the police station and informed of his rights under Miranda v. Arizona, 384 U.S.-436 (1966), in- cluding his “right to remain silent.’’* He was then searched and found in possession of $158. A police ‘Hale claimed that his previous conviction resulted from be- ing arrested in the presence of a friend who was in possession of narcotics, . ; ‘The owner of a local liquor store testified that he knew Hale, and that Hale had purchased money orders from him on sev- eral occasions. *Tr. at 259. 5A f interrogator thereupon asked ‘‘[w]here did you get the money ?” Hale made no response.’ __ At trial, in an effort to,impeach Hale’s testimony that he was carrying a large sum of money because his wife had received her welfare check and had.asked him to purchase some money orders for her, the prose- cutor led Hale to admit that he had not alleres that explanation to the police at the time of his arrest: Prosecutor. Did you in any way indicate [to. ‘the police] where the money came from? Hate. No, I didn’t. ' Prosecutor. Why not? } Hate. I didn’t feel it was necessary at the time.* In Miranda, after holding that a defendant had a right to be advised that he could remain silent in the face of police interrogation, the Supreme Court went on to note: = | In accord with our decision today, it is imper- ' missible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prose- custion may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the ‘face of accusation. 384 U.S. at 468 n. 37 (emphasis supplied).° Relying on this dictum, several Circuits,” including "Tr. at 262. *Tr. at 259, ° *See also Schmerber y. California 384 U.S. 757, 765-66 n. 9 (1966). / cae ” See, e.g., Fowle y. United States, 410 F. 2d 48 (9th Cir. 1969); United States v. Brinson, 411 F. 2d 1057 (6th Cir. 1969) ; United States v. Semensohn,'421 F, 2d 1206 (2nd Cir. 1970). See also Fagundes vy. United States, 340 F, 2d 673 (Ist Cir. 1965). But see Sharp y. United States, 410 F. 2d 969 (5th Cir. 1969). The Sharp, majority inexplicably omits ref- erence to the portion of Miranda at issue despite forceful reliance on it by Chief Judge Brown in dissent. 410 F. 2d at 972. 3 — ’ 6A our own,” have held that cross-examination of the sort in question in this case was improper.” Recently, however, one Circuit has held,” and an- other has implied," that Harris v. New York, 401 U.S. " Gillison vy. United States, 399 F. 2d 586 (D.C. Cir. 1968). “Our dissenting colleague argues that the Miranda dictum _is inapplicable to the facts of this case. The record, how- ever, clearly indicates otherwise. Appellant was under police interrogation, the sort of “accusation” to which Miranda referred. See 384 U.S. at 444 & 468 n. 37. And, when he was asked “[w]here did you get the money?” he stood “mute.” This fact was then “uwse[d]” against him “at trial.” As the cases cited in ‘note 10, supra, demonstrate, the A/‘randa dictum applies precisely to these facts. Nor would it matter, despite the suggestion by the dissent, that Hale answered some questions before: remaining silent: “[T]Jhere is no room for the conten- tion that the privilege i is waived if the individual answers some questions or gives some information on his own prior to in- voking his right to remain silent * * *” Miranda, supra, 384 U.S. at 475-76. In fact,'the record does not reveal whether ap- pellant answered any questions or made any statements. 13 United States v. Ramirez, 441 F. 2d 950 (5th Cir. 1971). “In United States ex rel. Burt v. New Jersey. 475 F. 2d 234 (3rd Cir. 1973), a defendant was arrested for a crime other than the homicide at issue in the appeal before the Third Cir- cuit. At trial he explained that the homicide was accidental. The court held that defendant was properly impeached by his silence at the police station because he had not been accused of committing any homicide, and therefore should have notified the police if he knew about an accidental homicide. Two judges issued a concurring opinion seemingly:on the ground that Harris allows impeachment by prior silence at the police station. In a subsequent case a different panel of the same Circuit held that it was improper to impeach a defendant by pointing out that he invoked another of his Miranda rights, namely, the right to an attorney., United States ex rel. Macon v. Yeager, 416 'F. 2d 613 (3rd Cir. 1973). In the face of these two decisions 4 district court in the Third Circuit has recently held that a de- fendant can be impeached by his prior silence on/y when police interrogation does not ¢oncern the crime for which the de- tie 7A 222 (1971), undercuts the portion of Miranda quoted above, and permits cross-examination regarding a de- fendant’s refusal to offer an alibi or explanation to his police interrogators. In Harris the Court held that a defendant could be impeached by ‘‘prior inconsistent utterances” made at the time of his arrest even when they were made be- fore the defendant was adequately apprised of his rights. The Fifth Circuit extended the Harris ration- ale to approve “the right of the prosecution to show {a defendant’s] prior inconsistent act of remaining silent * * *.’”’** The Tenth Circuit, on the other hand, has disagreed with the Fifth Circuit observing that: “silence at the time of arrest is not an incon- sistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons enjoy with- out qualification.” We agree with the Tenth Circuit. The premise underlying Harris is that if a defend- ant voluntarily gives statements to the police that contradict his trial testimony those statements are ad- missible because they are obviously relevant for assess- ing credibility. When, however, a defendant is in- formed that he has a right to remain silent, and then fendant is subsequently indicted. The district court then con- cluded that cross-examination of the sort at issue in this case Was improper notwithstanding Harris. United States vy. Hol- land, 360 F. Supp: 908 (E.D. Pa. 1973). “United States vy. Ramirez, 441 F. 24 950, 954 (Sth Cir. 1971) (emphasis supplied). . Johnson v. Patterson, 475 F. 2d 1066, 1068 (10th Cir. 197%). With respect to Ramirez, supra, the ‘Tenth Circuit said, “[t]}he premise of /?amirez is that silence at the time of arrest is an act inconsistent with the testimony given at trial. * * * We sim- Ply deny the validiiy of the premise.” 476 F. 2d at 1068 n. 3. — Bee also Deats v. Rodriguez, 477 F. 2d 1023 (10th Cir, 1973). 8a = exercises that right, there is nothing inconsistent if he subsequently offers exculpatory testimony at trial. Virtually the same issue was considered in Grunewald v. United States, 353 U.S. 391. (1957). There, peti- tioner refused to answer several questions put to him before the grand jury “on the ground that the answers would tend to incriminate him and that the Fifth Amendment therefore entitled him not to answer.” ™ At trial these same questions were answered “‘in a way consistent with innocence,” and “the Government was allowed [for impeachment purposes] * * * to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions.” * The Court found that the exercise of the privilege was ‘‘wholly consistent with innocence,” and therefore concluded, without dissent, that there was “no inconsistency’’ to support the cross-examination.” The Court relied on three factors: (a) petitioner re- peatedly maintained his innocence before the grand jury; (b) a grand jury inquiry, unlike a trial, is in the nature of a secret proceeding, and “[i}mnocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examina-— tion, than in open court proceedings * * *”;* (¢) “most important,’ at the time petitioner appeared ** 353 U.S. at 416. In the instant case Hale did not decline to answer on the ground that his answers might tend to incriminate him, but simply remained silent in the face of the police interrogator’s instruction that he had “a right to remain silent.” 8 353 U.S. at 417. © 353 U.S. at 421, 4299. See also Stewart v. United States, 366 U.S. 1, 7 n. 14 (1961). 7° 353 U.S. at 422-493. — 9a before the grand jury he was “‘already considered a potential defendant” and therefore “it was quite nat- ural for him to fear that he was being asked ques- tions for the very purpose of providing evidence against himself,’’ * _ These reasons have even greater validity in the present case: (a@) while the record does not disclose whether Hale insisted upon his innocence at the time of arrest, it clearly reveals that he steadfastly main- tained his innocence throughout the proceedings; (b) police interrogation may be viewed as more “*secret’’ than a grand jury proceeding which is conducted on the record and in the presence of the prosecutor and grand jurors. Miranda’s rules were aimed precisely at dangers presented by the secret nature of police in- terrogation ; * (c) Hale. was more clearly a ‘*potential defendant”’ than Grunewald since he had been identi- fied by the victim as one of the robbers, and had been arrested by the police on Suspicion of the instant offense. In sum, application of the principles enunciated in Grunewald compels a finding that, as a matter of law,” there was nothing inconsistent between Hale’s silence in interrogation and his alibi at trial. Thus, the basic ** 353 U.S. at 423. = See Miranda, supra, 384 U.S. at 445 (“The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place in- communicado.”). *The Grunewald Court acknowledged that “the question whether a prior statement is sufficiently inconsistent to be al- lowed to go to the jury on the question of credibility is usually within the discretion of the trial court. But where such eviden- tiary matter has grave constitutional overtones, as it does here, We feel justified in exercising this Court's Supervisory control ** *” 353 U.S. at 423-404. 558-042—74-_ 4 10a premise required for triggering the H arris rationale i is absent.” Even if it could be nell that appellant’s silence at the police station was inconsistent with his testimony at trial, Harris would nevertheless be inapplicable in the present circumstances. In Harris the accused did not exercise his constitutional right to remain silent, but rather spoke, albeit without first being advised of his rights. In the instant case, on the other hand, the accused explicitly availed himself of his right to re- main silent. The Supreme Court has proscribed com- ment by a court or prosecutor on the fact that a defendant did not testify at trial on the ground that such comment ‘‘cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614 (1965). The Court, relying upon this analysis, then ruled in Miranda that it is ‘‘impermissible to penalize an individual for exercising his Fifth Amend- ment privilege when he is under police custodial interrogation.” * The rationale for this rule was artic- ulated by Justice Black in his Grunewald coneurrence: *% See Fowle v. United States, 410 F. 2d 48, 51 (9th Cir. 1969) (“Surely * * * [petitioner’s] silence was no more contradictory of his later testimony than was the silence of [the petitioner in Grunewald].”) ; Johnson v. Patterson, 475 F. 2d 1066 (10th Cir. 1973). 25 384 T).S. at 468 n. 37. See Gillison v. United States, 399 F. 9d 586, 587 (D.C. Cir. 1968) (“The distance between [@rifin] and the prosecutor’s comments here * * * is infinitesimal.”) ; Fowle v. United States, 410 F. 2d 48, 51-55 (9th Cir. 1969); Johnson v. Patterson, 475 F. 2d 1066, 1067-68 (10th Cir. 1973). See generally Spevak v. Klein, 385 U.S. 511 (1967); United States exw rel. Macon v. Yeager, 476 F. 2d 613, 616 (ard Cir. 1973) (“Griffin holds broadly that at least in the criminal con- text, the relevant question is whether the particular defendant has been harmed by the state’s use of the fact that he engaged in constitutionally protected conduct * * *”) (emphasis im original). — ila [There are] no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for rely- ing on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invoeation of a privi- lege deemed worthy of enshrinement in the Constitution. 353 U.S. at 425-26. Nothing in Harris undercuts this fundamental consti- tutional principle since Harris did not involve asser- tion of the constitutional right.” | Our conclusion that the prosecutor’s question was improper is buttressed by the fact it would be grossly ** The dissent relies heavily on Raffel v. United States, 271 U.S. 494 (1926), where the Court held that a defendant who testifies at his second trial, but who did not testify at the first trial, may be impeached by his prior silence when his sg ea in testifying is to deny some statements attributed to him by a witness who has offered the same testimony at - both trials. In Grunewald, supra, the Court explicitly declined to reaffirm Raffel. 353 U.S. at 421. Four Justices concurring in Grunewald indicated that Raffel should be overruled. The ra- tionale of that concurrence provided the framework for the Court’s subsequent decision in Griffin. Accordingly, there is a serious question whether Raffel has any remaining vitality. Sec Note, Use of Silence, 33 Md. L. Rev. 363, 367 n. 21 (1973). See also Stewart v. United States, 366 U.S. 1 (1961) (cannot attack witness’ demeanor by introducing fact that he failed to testify at former trials). In any event, Raffel is clearly distinguishable from the pres- ent circumstances because there the petitioner was impeached by his refusal to testify at a former trial, whereas in the in- stant case appellant declined to speak with police interro- .gators. There are good reasons why a defendant would refuse to speak to the police in a proceeding that is off the record, and at a time when he is without the advice of counsel, and then decide to testify at trial. See Grunewald, supra. — 12a unfair to advise an accused simply that he had “a right to remain silent,’’ and then use his silence against him at trial without at the very least having also informed him that if he chooses to exercise his right he may subsequently be impeached by that fact. The Sixth Circuit noted almost fifty years ago that if an accused’s silence is to be used against him he “should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’”*” The Supreme Court embraced these principles in Johnson v. United States, 318 U.S. 189 (1943), where a defendant who testified was allowed to assert his privilege against self-incrimina- - tion as to some questions without having been told that the prosecutor would be permitted to comment upon this assertion. The Court ruled that even if it was error to allow petitioner to invoke his privilege, it was nonetheless improper to permit prosecutorial comment because the defendant was thereby “deprive[d] * * * of an intelligent choice between claiming or waiving his privilege.” B. ‘The government argues that the error was harmless since the trial court interrupted the prosecutor and in- * McCarthy v. United States, 25 F. 2d 298, 299 (6th Cir. 1928). See also Johnson v. Patterson, 475 F. 2d 1066 (10th Cir. 1973); United States v. Brinson, 411 F. 2d 1057 (6th Cir. 1969); Fowle v. United States, 410 F. 2d 48 (9th Cir. 1969). *8 318 U.S. at 198. The Court noted: “Elementary fairness requires that an accused not be misled — on [th]is score. If advised by the court that his claim of privi- | lege though granted would be used against him, he well might never claim it.” /d. at 197. This rationale is equally compelling in the face of police in- terrogation and advice. 7 _ On consideration of appellee’s petition for rehear- ing, it is ORDERED by the Court that appellee’s, aforesaid petition is denied. Per Curiam. For the Court: Hvueu E. Kine, Clerk. *Sitting by designation pursuant to Title 28 U.S. Code Sec tion 291(a). (36A) APPENDIX D United States Court of Appeals for the District of Columbia Circuit September Term, 1973 Criminal 1319-71 [United States Court of Appeals for the District of Columbia Circuit, Filed Aug. 1, 1974; Hugh ‘E. Kline, Clerk] No. 72-2066 Unrrep States or AMERICA v. WitiiaM G. Hae, APPELLANT Before: BazE.on, Chief Judge; Wricut, McGowan, TamM, LEVENTHAL, ROBINSON, MacKinnon, Ross and WILKEY, Circuit Judges. ORDER On consideration of appellee’s suggestion for re- earing en banc, ORDERED by the Court en banc that the afore- aid suggestion is denied. Per Curiam. For the Court: Hvueu E. Kurz, Clerk. Statement of Circuit Judges Tamm, MacKinnon, tobb and Wilkey as to Why They Would Grant Re- earing En Bane: : (387A) LF As to the existence of any error in the trial, the court’s majority opinion is contrary to the Supreme Court’s decision in Raffell v. United States, 271 US. 494 (1926), a decision which the Supreme Court has specifically declined to overrule. The majority opinion is also contrary to recent decisions of the Third and Fifth Circuits, although in agreement with a two-to- one decision of the Tenth Circuit, as cited in Judge Wilkey’s dissent. As to any prejudice to the defendant Hale, even if any error occurred, it was certainly cured by the trial court’s prompt instruction and was harmless beyond a reasonable doubt. The majority opinion here at- tempts to abolish in this Cireuit the Supreme Court standard of harmless error laid down in Chapman v. California, 386 U.S. 18 (1967). On both grounds the panel majority decision merits review by our full court. U.S, GOVERNMENT PRINTING OFFICE: 1974. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0464%3A2. Public record. Not legal advice.