Journal of Criminal Law and Criminology

Volume 58 | Issue 4 Article 10

1968 Comments and Case Notes

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Recommended Citation Comments and Case Notes, 58 J. Crim. L. Criminology & Police Sci. 550 (1967)

This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. COMMENTS AND CASE NOTES [Vol. 58

A constitutional argument, that preventive de- his sentence or pay him a per diem rate if he is tention punishes an accused without a trial, is not not convicted. Valid objections to such a sug- overpowering. One answer is that the bail system gestion may be raised. In the first place, if de- in some jurisdictions detains those who apparently tention pending trial is not viewed as punishment, pose a threat to the community. 9 The prime ex- then it should not act to mitigate punishment. amples are persons accused of first degree murder, Secondly, the mere payment of money will be who are often denied bail. Another answer is that small solace to a detainee who is found not guilty. preventive detention, by way of civil commitment However, the greatest objection is that the time proceedings, has generally met no constitutional deduction and liquidated damages aspects of the barrier partly because it is not a means of punish- plan could influence the enforcement officials and 6 ing the defendant but of safe-guarding the public. O the courts in an undesirable manner. They might If preventive detention in the proposed system is too freely detain on the theory that the detainee, used for the same purposes, then it also should be whether guilty or innocent, is not grievously held constitutional, especially if the detainees are harmed by detention. Such an outlook destroys not placed in a facility housing convicted criminals. the entire pretrial release system, which should Those who are ultimately detained should be operate to free all who can be freed. tried quickly. To insure a speedy trial, a time The suggested system does away with monetary limit should be imposed, and upon its expiration bail. Bail arose and flowered during a period when the accused should be freed pending trial, unless the law had little regard for the rights of the poor.6' he caused the delay. A speedy trial requirement Debtors prisons flourished. Workhouses were used will forestall any use of the preventive detention to contain paupers, who were considered a moral system as a means to keep undesirables out of pestilence. The adherence to the archaic system circulation. It will also help to make the system of monetary bail is inconsistent with our present unavailable for use as a means of punishment. legal thinking. The monetary bail system can not Another requirement, which some feel will con- long survive the recent recognition of the precept strain the state to bring the preventive detainee the same justice as to trial quickly, is to deduct detention time from that a poor man is entitled to the wealthy man.6' 9 E.g., Carbo v. United States, 82 S. Ct. 662 (Doug- 61 Cir. J., 1962). Foote, supra n. 7 at 989-92. las,6 6 0 FREED & WA, supran. I at 85 n. 30. See genera11 WAmr., LAw AND Pov-R y (1965).

CASE NOTE

An editorial comment accompanying a Note represents the opinion of the student who pre- pared the Note and does not necessarily represent the viewpoint of any other member of the Editorial Board

Edited by Allen J. Ginsburg

Confessions Coerced Where Made Under Threat of testifying against themselves or losing their jobs, Of Dismissal-Garrityv. New Jersey, 87 S.CT. 616 under a New Jersey statute dealing with forfeiture (1967). Defendants who were police officers, were of jobs of public employees who refuse to testify on convicted of conspiracy to obstruct justice in the ground of self incrimination. state court. On certiorari to the Supreme Court The Supreme Court, Mr. Justice Douglas writing they contended that their confessions were ob- for the majority, held that the Fourteenth Amend- tained by coercion when they were given a choice ment forbade the states from using the threat of COMMENTS AND CASE NOTES discharge to secure incriminatory evidence against court and request permission to withdraw. That an employee. In the words of the Court: request should be accompanied by a brief referring The choice given appellants was either to for- to anything in the record that might arguably sup- feit their jobs or to incriminate themselves. port that appeal. The court, not counsel, then The option to lose their means of livelihood or proceeds to decide, after a full examination of all to pay the penalty of self-incrimination is the the proceedings, whether the appeal is frivolous. antithesis of free choice to speak out or to If it so finds then it can grant counsel's request to remain silent. That practice, like interrogation withdraw and dismiss the appeal but if it does not practices we reviewed in Miranda v. State of find it to be frivolous, it must afford the indigent Arizona,... is "likely to exert such pressure assistance of counsel by appointing another attor- upon an individual as to disable him from ney. making a free and rational choice." We think This requirement would afford the indigent "that the confessions were infected by the coercion advocacy which the nonindigent is able to obtain. inherent in this scheme of questioning and ... The no-merit letter affords neither the court cannot be sustained as voluntary under our nor the client any aid.... The latter must shift prior decisions. (87 S.Ct. 618-619). entirely for himself while the court has only the cold record which it must review without the help Submission Of A No-merit Letter By Court Ap- of an advocate." Finally, the Court states that this pointed Counsel On Appeal Does Not Satisfy procedure would "assure penniless defendants the Constitutional Requirements-Antders v. Cali- same rights and opportunities as are enjoyed by fornia, 87 S.Ct. 1396 (1967). Defendant was con- those persons who are in a similar situation but who victed of the possession of marijuana and appealed. are able to afford the retention of private counsel." His court appointed counsel, after reviewing the case, advised the court that the appeal had no Roth Test No Longer Determinative-Redrup v. merit. The defendant wished to proceed with the New York, 87 S.Ct. 1414. In a per curiam opinion appeal and asked for another lawyer but was reversing three convictions for the distribution refused. After losing his self-defended appeal he of obscene literature, the Supreme Court indi- applied for a writ of habeas corpus on the ground cated that for other than "hard core" pornog- that he should have been granted another lawyer raphy the Roth test no longer controls as to the for his appeal. The Supreme Court held that the question of the state's power to suppress distribu- no-merit letter which was submitted to the court tion of books and magazines. The Court stated was not sufficient to satisfy the defendant's right that whichever of the various standards which the to assistance of counsel and equal protection as Justices have adhered to for the determination of guaranteed by the Sixth and Fourteenth Amend- obscenity is applied, the convictions could not ments. stand. The Court felt that it was significant that "in The Court stated that in order for the indigent none of the cases was there a claim that the stat- to receive equal protection under the law his ap- ute in question reflected a specific and limited state pointed counsel must act as an advocate rather concern for juveniles", nor was there "any sugges- than as anzicus curiae. A letter stating that there is tion of an assault upon individual privacy by pub- no merit in the case without any proof that the lication in a manner so obtrusive as to make it appeal is frivolous does not satisfy this require- impossible for an unwilling individual to avoid ment. A rich man enjoys the benefit of counsel's exposure to it", and finally "in none was there examination into the record, research of law, and evidence of any sort of pandering". In the absence marshalling of arguments on his behalf. Thus when of any of the above factors the Court did not deem the indigent's counsel merely determines that there it necessary to go into the question of whether the is no merit in the case the defendant has not been material itself measured up to the standards which granted equal protection. it had used in the past. Instead of such an individ- The Court outlined a procedure which it con- ual examination the Court stated that the cases "can and sidered to be commensurate with constitutional should be decided upon a common and guarantees. The lawyer must support his client's controlling fundamental constitutional basis". appeal to the best of his ability. If he finds the case This case indicates that such a basis is one which to be "wholly frivolous", he should so advise the considers the circumstances surrounding publica- COMMENTS AND CASE NOTES [Vol. 58 tion and distribution and the intent of a state to blish by clear and convincing evidence that the protect its citizens rather than one which looks at in-court identifications were based upon observa- the material in a societal void. tions... other than the lineup identification". Thus the conviction would be upheld if upon Post-indictment Lineup And Right To Counsel- remand the Government could show that the United States v. Wade, 87 S.Ct. 1926 (1967). The in-court identification was not tainted by the petitioner was convicted of bank robbery. During "illegal" lineup, or that if it was, the introduction the trial eye witnesses identified the defendant as of the evidence was harmless error. the robber. The petitioner claims that such evi- dence should have been excluded because he was Illegal Lineup-Gilbert v. California, 87 S.Ct. exhibited to the witnesses before trial at a post- 1951 (1967). The defendant was convicted of indictment lineup without notice to, and in the armed robbery and murder. Subsequent to his absence of counsel. The Court vacated the reversal arrest handwriting samples were taken, and he was by the Court of Appeals and remanded the case to placed in a lineup conducted without notice to his the District Court. counsel. Petitioner's Fifth Amendment contention was The Court ruled that the taking of handwriting rejected by the Court, citing Schmerber v. Cali- samples did not violate petitioner's Fifth or Sixth fornia, 384 U.S. 757 (1966). Schmerber's holding Amendment rights. Citing Schmerber v. Calfornia, that compelling one to exhibit his person or to 384 U.S. 757 (1966), the Court held that such provide a blood, handwriting, or other such sample, samples, in contrast to the content of what is does not violate the Fifth Amendment was reiter- written, are identifying physical characteristics ated. The Court held again that the Fifth Amend- outside the protection of the Fifth Amendment. ment protects one only against testimonial compul- The Court also held that the taking of the samples sion. was not a "critical stage of the criminal proceedings The Court concluded that a police lineup was a entitling petitioner to the assistance of counsel" critical stage of prosecution at which defendants since there was minimal risk that absence of coun- are entitled to the aid of counsel, as much as at the sel might derogate his right to a fair trial. trial itself. Thus, both the defendant and his at- The California Supreme Court's ruling that torney should have been notified of the impending admission during trial of the accomplice's state- lineup; and his counsel's presence should have been ment to the police referring to the petitioner and requisite to conduct of the lineup, in the absence his part in the crime was harmless error was of intelligent waiver. affirmed by this Court. Certiorari on the issue of an In so ruling the Court distinguished a lineup illegal search and seizure was vacated as improvi- from systematized or scientific analyses of finger- dently granted because of the lack of sufficient prints, blood samples, clothing and the like. The facts on the record to decide that question. Court said that the latter categories are not critical The Court, relying on United States v. Wade, stages of prosecution because the attorney can do 87 S.Ct. 1926 (1967), which held that admission of nothing to help avoid substantial prejudice to in-court identification of the petitioner was error defendant's rights by being present. Lineups, on because it was not first determined whether they the other hand, provide opportunities for such were tainted by the illegal lineup. As in Wade, this prejudice which an attorney could possibly pre- case was remanded for such a determination. The vent. There are many overt or covert means of conviction would be vacated if, on remand, it is suggestion whereby police can influence a witness's found that the identifications were so tainted. identification (one of those means cited by the As to the admission of testimony of witnesses Court was the practice of requiring only the de- that they had identified petitioner at the illegal fendant to wear distinctive clothing allegedly worn lineup, however, the Court applied a per se exclu- by the culprit). sionary rule. Such testimony is the direct result of Since the defendant is unable to effectively the illegal lineup, and therefore necessarily tainted "reconstruct at trial any unfairness that occurred by it. While the in-court identification may be of at the lineup", the presence of counsel is essential independent origin from that lineup, the testimony to protect his rights. However, in remanding the that an identification was made at that lineup case the Court stated that absence of counsel may cannot be. As such it must be held always inad- not require reversal if the Government can "estab- missible. Since there was a possibility that the COHMMENTS AND CASE NOTES

admission of this testimony might be harmless counsel would not be applied retroactively so as to error, the case was remanded on this point to give vacate this conviction or others entered prior to the California Supreme Court an opportunity to the new rulings. lecide if it was harmless "beyond a reasonable The Court also held that the petitioner was not doubt". deprived of due process by virtue of the fact that Mr. Justice Douglas wrote a concurring opinion he was brought to the hospital room for identifica- in which he stated that he disagreed with the tion. The Court recognized that under some cir- Court with respect to the ruling on the handwriting cumstances, such a confrontation might be so samples, and would remand for a new trial on the "unnecessarily suggestive and conducive to ir- search and seizure point. He felt there were suffi- reparable mistaken identification" as to violate cient facts to show the illegality of the search. He due process. However, the totality of circumstances said that the docrine of "hot pursuit" relied on by in this instance did not present such a case. the California Supreme Court to justify the search, Mr. Justice Black dissented, stating that if the was not applicable here because the officers con- identification was not harmless error, the peti- tinued the search after discovering that the tioner was denied his right to counsel, and the petitioner was not at home. In his view, this was conviction should thereby be reversed. merely a search for evidence to link the petitioner with the robbery and was not conducted to ex- Electronic Eavesdropping And The Fourth pedite the pursuit. Amendment-Berger v. New York, 87 S.Ct. 1873 Mr. Justice Black, dissenting in part, stated (1967). Petitioner was convicted on two counts of that he would reverse because the taking of the conspiracy to bribe a public official attached to the handwriting samples violated petitioner's Fifth .New York State Liquor Authority. Much of the and Sixth Amendment rights. He also disagreed evidence adduced at his trial consisted of state- with the Court's exclusion of the in-court identifi- ments made by the petitioner or others and inter- cation and with the rationale of this case and of cepted by the police through use of an electronic Wade. Mr. Justice Fortas and Chief Justice Warren eavesdropping device and a recording device. also dissented in part on the ground that the taking These were installed pursuant to a New York of handwriting samples violates Fifth and Sixth statute providing for the issuance of an ex parte Amendment privileges. order by a judge, permitting the use of such de- vices. Wade and Gilbert Rules Requiring Exclusion Petitioner challenged the constitutionality of Of Identification Evidence Not Retroactive- this statute and the Court held that the statute Storall '. Denno, 87 S.Ct. 1967 (1967). Petitioner was too broad in its sweep, "resulting in a tres- was convicted of murder and sentenced to death. passory intrusion into a constitutionally protected He then sought federal habeas corpus, claiming area and is, therefore, violative of the Fourth and that the admission of a witness's identification Fourteenth Amendments. The New York statule testimony violated his Fifth, Sixth and Fourteenth provided, inter alia, that upon oath or affirmation Amendment rights. The District Court dismissed, by certain named categories of people a judge may and the Court of Appeals en bane affirmed. The issue an ex parte order for eavesdropping. T':e Supreme Court affirmed the dismissal, holding that affidavit must state that there is reasonable the rulings in Uinited States v. Wade, 87 S.Ct. 1926 ground to believe that evidence of a crime may (1967); and Gilbert v. California, 87 S.Ct. 1951 thus be obtained, and it must particularly describe (1967) are not to be applied retroactively. the person(s) whose communications or conversa- Petitioner was handcuffed to one of five police tions are to be overheard, including an identifying officers and brought to the hospital room where telephone or telegraph line number. The order must the identifying witness was recovering from stab specify the duration of the use of the device, to wounds inflicted by the assailant who killed her last not more than 60 days unless extended. husband. He was the only Negro in the room, and In pointing out that this statute permits general was identified as the man who committed the searches by electronic devices, and was thus too offences. broad to fulfill the requirements of particularity of The Court held that the rules requiring the the Fourth Amendment, the Court pointed out exclusion of identification evidence tainted by the seven basic defects to be found in the statute. exhibiting of the accused before trial in absence of They are: (1) there is no requirement that the COMMENTS AND CASE NOTES [Vol. 58 affidavit state any particular offense which it is in the prospective criminal trial of James Hoffa. believed has been or will be committed; (2) no Osborn, one of the attorneys for Hoffa, had con- requirement that the conversations to be used be tacted Robert Vick of the Nashville Police De- particularly described other than whose phone is partment to make background investigations of to be tapped; (3) the authorization of use for two those listed on the jury panel. Vick, however, had months at a time is equivalent to a series of intru- previously agreed to report any "'illegal activi- sions, searches and seizures pursuant to a single ties'" to federal agents. showing of probable cause; (4) the statute permits Osborn subsequently asked Vick to offer a bribe extensions of the original two-month period on a to one Ralph Elliott to induce him to vote for an mere showing that the extension is " 'in the public acquittal. A tape recording of one of the conversa- interest'" without a showing of present probable tions between Osborn and Vick, made by means of cause; (5) the statute places no termination date a device hidden on the latter's person, was intro- on the eavesdrop once the conversation sought is duced at trial over Osborn's objection. obtained; (6) there is no requirement of notice, as The Court rested its rejection of Osborn's is found in conventional warrants, and no require- contention that the tape recording should have ment of showing exigent circumstances to overcome been excluded on two grounds. The first, or broad the need for notice; and (7) the statute does not ground, is that this case falls under the holding in provide for the return of the warrant, thereby Lopez v. United States, 373 U.S. 427 (1963), that "leaving full discretion in the officer as to the use "use by one party of a device to make an accurate of seized conversations of innocent as well as guilty record of a conversation about which that party parties." In summary, the Court stated that "the later testified," and subsequent use of that record- statute's blanket grant of permission to eavesdrop ing as evidence, violates no constitutional right of is without adequate judicial supervision or protec- the defendant. Such use of recording devices is to tive procedures". be distinguished from "surreptitious surveillance Mr. Justice Black dissented on two grounds. of a private conversation by an outsider" as was First, he believes that the Fourth Amendment found in Silverman v. United States, 365 U.S. 505 should not be interpreted to include in its prohibi- (1960). tion the use of eavesdropping or recording devices. The second, or narrower ground, is that the use In his view, the Amendment is only so extended by of the recording device in the instant case met the reading into it a right of privacy which he feels is "'requirements of particularity' which the dissent- not there to be found. Second, even if the "search" ing opinion in Lopez found necessary". Im- here conducted is governed by the Fourth Amend- mediately after the possibility of approaching ment, the circumstances surrounding this particu- Elliott was first discussed, Vick reported the lar warrant were clearly sufficient to meet the conversation to a federal agent. This report was particularity requirement. He agreed with Justice then put in the form of an affidavit and shown to White that the Court erred in determining the two judges of the Federal District Court. The validity of the statute on its face without reference judges then authorized the use of the recording to the specific case at bar. device to determine the truthfulness of the accusa- Mr. Justice Harlan dissented, also on two tions contained in the affidavit. Because of this grounds. First, the constitutionality of the statute "judicial authorization" the Court concluded that should be determined in light of the construction the device was used "under the most precise, given it and limitations placed upon it by the New discriminate circumstances" such as to satisfy the York State Courts. This, says Harlan was not done strictest requirements in the protection of con- by the majority in this case. Second, like Mr. stitutional rights. Justice Black, Harlan believes the circumstances Petitioner also raised the issue of entrapment, presented by this case under this particular claiming that according to his version of the facts, statute do not show a violation of the Fourth it was Vick who first suggested the bribe, and that Amendment. he, Osborn, acquiesced in the scheme only "out of weakness." However, the Court held that it was Use Of Secret Tape Recording Of Incriminating for the jury to resolve this factual dispute, and Statements As Evidence-Osborn v. United States, affirmed the conviction. 385 U.S. 323 (1966). Osborn was convicted of Mr. Justice Douglas dissented on the ground endeavoring to bribe a member of the jury panel that use of this hidden recording device violated 1967] COMMENTS AND CASE NOTES petitioner's right of privacy under the Fourth defense to be raised at the first trial. It could in no Amendment. way work to invalidate other, wholly unrelated evidence. Use Of Government Informer To Obtain In- The second contention was that since the criminating Statements From Defendant-lloffa Government had sufficient grounds to arrest v. Unilcd States, 385 U.S. 293 (1966). Hoffa and Hoffa on October 25, 1962, which arrest would others were convicted of attempting to bribe mem- have given him a right to the presence of counsel, bers of a jury in a trial of Hoffa for violation of the any statements made after that date are inadmissi- Taft-Hartley Act. A significant portion of the ble as acquired only by flouting that privilege. In Government's proof consisted of testimony of one rejecting this contention, the Court said: "There Edward Partin, a Teamster's Union official from is no constitutional right to be arrested. The Baton Rouge, Louisiana, who overheard in- police are not required to guess at their peril the criminating statements made by Hoffa and precise moment at which they have probable reported them to federal agents. The Court cause to arrest a suspect, risking violation of the resolved a preliminary conflict of whether or not Fourth Amendment if they act too soon, and a Partin was "planted" by the Government by ruling violation of the Sixth Amendment if they wait too it was immaterial, inasmuch as he was a paid long." informer at least from the time he entered Hoffa's Mr. Chief Justice Warren dissented on the Nashville hotel suite. ground that a conviction should not be allowed to Petitioner contended that Partin's failure to stand where, as here, the Government "reaches disclose his role as a government informer "vitiated into the jailhouse to employ a man who was him- the consent that the petitioner gave to Partin's self facing indictments far more serious ... for the repeated entries into the suite, and that by listening purpose of infiltration to see if crimes would in the to the petitioner's statements Partin conducted an future be committed". This, according to the illegal 'search' for verbal evidence". Hoffa further Chief Justice is especially so when the reducing of contended that use of this evidence at trial violated bail and dismissal of indictments against him his Fifth and Sixth Amendment rights. provide the witness with a strong motive for lying. The Court ruled, however, that the Fourth Mr. Justice Clark and Mr. Justice Douglas Amendment protects only the "security a man would dismiss because the writs of certiorari were relies upon when he places himself or his property improvidently granted. within a constitutionally protected area;" and that the petitioner herein was not relying upon Disbarment For Refusal To Testify Or To the security of his hotel suite, but "upon his Produce Records At Disciplinary Proceeding misplaced confidence that Partin would not reveal Illegal-Sp-ack v. Klein, 87 S.Ct. 625 (1967). The his wrongdoing." As such his Fourth Amendment Appellate Division of the New York Supreme claim was spurious. Court ordered petitioner disbarred when he refused As for Hoffa's Fifth Amendment claim, the to honor a subpoena duces lecum ordering him to Court said simply that Hoffa was not compelled to produce demanded records and testify in a proceed- say anything. Lacking compulsion, the Fifth ing investigating charges of professional mis- Amendment cannot apply, regardless of how conduct brought against him. Petitioner's sole incriminating the statement may be. defense was that such records and testimony would Petitioner's Sixth Amendment contention tend to incriminate him. The Court of Appeals divided itself into two separate claims. The first affirmed the order of disbarment, and the Supreme was that Partin's intrusion upon the confidential Court reversed. relationship of attorney and client violated the Mr. Justice Douglas announced the judgment privilege. The Court answered this by saying even of the Court and delivered an opinion in which if there was an intrusion, it could only result in the The Chief Justice, Mr. Justice Black and Mr. reversal of conviction in the first trial. Such an Justice Brennan concurred. Mr. Justice Douglas intrusion in no way related to or tainted evidence pointed out that Cohen v. Hurley, 366 U.S. 116 brought out in the second trial based on a totally (1961), a case practically on all fours with the different charge. The intrusion into this con- present case, would have to be overruled since fidential relationship affected only the matters _Malloy v. Hogan, 378 U.S. 1 (1964), had held discussed between petitioner and his attorney-the that the Self-Incrimination Clause of the Fifth COMMENTS AND CASE NOTES [Vol. 58

Amendment was applicable to the states by reason that it is permissible to deny a status or authority of the Fourteenth Amendment. Thus the states to a claimant of the privilege if his claim has pre- could exact no penalty which made the exertion of vented full assessment of his qualifications for that the right to remain silent "costly". In his own status or authority. words: Finally, Mr. Justice White, in a separate dis- And so the question emerges whether the sent, argued that the rule in Garrity so protects principle of Mallory v. Hogan is inapplicable the Fifth Amendment rights that the rule of the because petitioner is a member of the Bar. present case has no legal or practical basis. In his We conclude that Cohen v. Hurley should be own words: overruled, that the Self-Incrimination Clause However that may be, with Garrity on the of the Fifth Amendment has been absorbed books, the Court compounds its error in Spe- in the Fourteenth, that it extends its protec- rack -e. Klein.... The petitioner in that case tion to lawyers as well as to other individuals, refused to testify and to produce any of his and that it should not be watered down by records. He incriminated himself in no way imposing the dishonor of disbarment and the whatsoever. The Court nevertheless holds that deprivation of a livelihood as a price for assert- he may not be disbarred for his refusal to do so. ing it. (87 S.Ct. at 627). Such a rule would seem justifiable only on the Even though Mr. Justice Douglas explicitly grounds that it is an essential measure to pro- stated that the question of whether a policeman tect against self-incrimination-to prevent who invokes the privilege when his official conduct what may well he a successful attempt to is questioned can properly be discharged was not elicit incriminating admissions. But Garrity before the court, Mr. Justice Fortas evidently felt excludes such statements, and their" fruits, that the language of that opinion was so broad as from a criminal proceeding and therefore frus- to have answered that question in the negative. trates in advance any effort to compel admis- He therefore, wrote a concurring opinion in which sions which could be used to obtain a criminal he stated: conviction. I therefore see little legal or practi- But I would distinguish between a lawyer's cal basis in terms of the privilege against self- right to remain silent and that of a public incrimination protected by the Fifth Amend- employee who is asked questions specifically, ment, for preventing the discharge of a public directly and narrowly relating to the per- employee or the disbarment of a lawyer who formance of his official duties.... This court refuses to talk about the performance of his has never held, for example, that a policeman public duty. (87 S.Ct. at 636--o37). may not be discharged for refusal in discipli- nary proceedings to testify as to his own con- The Use Of Perjured Testimony And The Sup- duct as a police officer. pression Of Evidence By The Prosecution-Giles v. M1aryland, 87 S.Ct. 793 (1967). The defendants But a lawyer is not an employee of the State. were convicted of rape by a Maryland court. They He does not have to account to the State for then brought an appeal under the Maryland Post- his actions because he does not perform them Conviction Procedure Act, contending that they as an agent for the State.... The special had been denied Due Process, since the prosecu- responsibilities that he assumes as licensee of tion suppressed evidence favorable to them and the State and officer of the court do not carry knowingly used perjured testimony against them. with them a diminution, however limited, of The trial court agreed with the petitioners as to his Fifth Amendment rights. Accordingly, I the first ground, but ruled against them on the agree that Spevack could not be disbarred for second claim-a new trial was ordered. The Mary- asserting his privilege against self-incrimina- land Court of Appeals reversed the lower court, tion. (87 S.Ct. at 630-631). and the United States Supreme Court granted Mr. Justice Harlan entered a dissenting opinion certiorari. in which Mr. Justice Stewart and Mr. Justice The United States Supreme Court vacated the Clark concurred. The most persuasive point Maryland Court of Appeals' judgement and re- therein was the argument, unrebutted by the manded the case to allow the state court of last plurality, that the present holding was inconsistent resort an opportunity to decide if further hearings with the rule, previously announced by the Court, should be directed. The suppressed evidence con- COIMENTS AND CASE NOTES

sisted of, firstly, an attempted suicide by the prose- witness and the prosecutrix. The report also in- cutrix after she had had sexual relations with two dicated the prosecutrix stated that she had not men at a party five weeks after the alleged rape. had intercourse with Giles; her testimony was to At the hospital the girl claimed she had been the opposite. raped, but recanted her story and admitted to The opinion stated that since this "superven- numerous sexual indiscretions within the last ing matter" had come into the case, it would follow two years. Secondly, the prosecutrix had, one its usual practice of remanding to allow the state month prior to the alleged rape, been recommended court to decide if this new evidence was sufficient for probation in a juvenile court proceeding, be- to support a finding of prejudice. cause she was beyond parental control. Lastly, Justice White concurred, but felt the report's while the present case was pending, the girl was content as to the activities of the girl and the wit- sent to the Montrose School for Girls to protect ness on the night in question could be suppressed. her from the boys in her locale, who were "har- The ground upon which he concurred was that he rassing" her. The juvenile court, however, also felt the mental condition of the prosecutrix had found she should be confined because she was "out not been sufficiently probed by the trial court. of parental control and living in circumstances And the lack of testimony in this area was not the endangering her wellbeing." fault of the accused. The learned Justice then The United States Supreme Court was very launched into various sections of the record to impressed with the fact that the credibility of the demonstrate this point. witnesses is vastly important in cases of this ilk. Justice Fortas concurred due to the failure of The Maryland Court of Appeals felt the suppres- the state to disclose to defense counsel the at- sion of the evidence did not constitute a denial of tempted suicide and the dropped rape claim. In Due Process since, if admitted, it would not tend effect, he concurred with the holding of the trial to clear the accused. Justice Brennan, writing the judge at the post-conviction hearing. He disagreed majority opinion, framed the issues involved in with the Maryland Court of Appeals contention this appeal as follows: "whether the prosecution's that the state need not disclose that which would constitutional duty to disclose extends to all evi- not be admissible at trial, since the state's duty is dence admissible and useful to the defense, and to see that the truth emerges. the degree of prejudice which must be shown to The state's duty is limited, to data that is "spe- make necessary a new trial". But, the Court re- cific, factual, and concrete, although its implica- fused to reach these questions because, on evidence tions may be debatable." The information in this which was not part of the record, the Court found case bore upon the issue of consent, and Due that the prosecution had allowed false evidence to Process required its disclosure. Deliberate con- go uncorrected in the record. The evidence only cealment and nondisclosure are indistinguishable went to the credibility of the prosecutrix. This from misrepresentation on principle, says this failure on the part of the state is grounds for re- opinion. Then the opinion launches into a discus- versal under the Fourteenth Amendment, said the sion on how this point differs from the dissent's Court. position; which is that the state must not know- The evidence involved consisted of a police re- ingly use perjured testimony or leave it uncor- port which reflected the results of interviews with rected. The latter proposition the opinion dis- the girl and a witness the morning following the cards on the theory that the purpose of a trial is to alleged rape. In the post-conviction hearing the ascertain the truth and arrive at a just result. trial judge refused the defense's motion that the Such a policy requires the state disclose material report be produced, on the ground that it was a evidence that can help the defense. "A murder police work product and not producible under trial... is not a sporting event." state practice rules. The report showed that the Justice Harlan, with whom Justices Black, prosecutrix was engaged in intercourse with the Clark and Stewart joined, dissented. In the main witness shortly before the defendants appeared on the dissent says the majority and Justice White's the scene and allegedly raped the girl. At the trial concurring opinion can find no federal basis for the testimony of the girl and the witness was in returning the case to the state court. direct contravention to the report. The majority opinion, notes Justice Harlan, is Justice Brennan noted that this report could specious, since the police report was available to have been used to impeach the credibility of the the defense during trial, and inspected by the trial COMMENTS AND CASE NOTES [Vol. 58

judge at the time of sentencing. The dissent then In rejecting this contention and affirming the goes on to explain why the prosecutrix had, mis- conviction, the Court stated that there was no takenly stated in the interview that the defendant violation of petitioner's Fourth Amendment rights had not raped her. Another point the dissent makes inasmuch as the agent was invited onto the prem- is the other police reports contravene the report ises for the purpose of consummating an illegal that is the center of this controversy. Lastly, the sale of marijuana. The Court distinguished this state of Maryland does not allow evidence of prior case from those such as Gouled v. United States, acts of intercourse to impeach the prosecutrix, 255 U.S. 298 (1921)-relied upon by petitioner- hence this part of the report would be inadmissible where, after gaining entry by means of a fraudu- in any event. lently obtained invitation, agents proceeded to The dissent states that Justice W,hite does not conduct a warrantless search. In the instant case have any federal ground for his decision, but the agent did not "see, hear, or take anything merely feels that the trial judge failed to get that was not contemplated, and in fact intended, enough data concerning the mental state of the by petitioner as a necessary part of his illegal prosecutrix. This feeling, claims the dissent, is not business." sustained by the record. The Court made clear that as long as the agents Justice Fortas's position, says Justice Harlan, do not use deception in order to gain entry for the is as objectionable as are the others, for reasons purpose of conducting a search or overhearing noted in the discussion of Justice Fortas's concur- conversations, such deceptions would not be "constitutionally rance. At base, Justice Harlan is a proponent of prohibited". To hold otherwise, narrow discovery rules, at least until there is more said the Court, would result in a rule "that the study in the area. use of undercover agents in any manner is virtually The post-trial indications of promiscuity of the unconstitutional per se;" and such a rule would prosecutrix has influenced the majority even undully hamper the Government in its combat of though it could find no constitittional breach, to re- organized crime. turn the case to the state court in the hope that Mr. Justice Brennan and Mr. Justice Fortas they will also be discomfited and will "discover a concurred on the sole ground that petitioner's formula under which these convictions can be re- apartment was not a constitutionally protected versed." area since he opened it up to the public for the transaction of business. Search Of Home By Fraud and Deception Mr. Justice Douglas dissented on the ground Permissible-Lewis v. United States, 385 U.S. 206 that agent Cass's use of deception to gain entrance (1966). Lewis was convicted on two counts of vi- to petitioner's home violated petitioner's right of olating the narcotics laws 26 U.S.C. § 4742(a). At privacy under the Fourth Amendment. his trial, marijuana purchased from him by an undercover narcotics agent was introduced, along Warrantless Searches By Municipal Health with testimony of statements made by the de- And Safety Inspectors Unconstitutional-Camara fendant to the agent. The defendant claims that v. Municipal Court, 87 S.Ct. 1727(1967); See v. such evidence is inadmissible because procurred Seattle, 87 S.Ct. 1737 (1967). In Camara, defendant through a violation of his Fourth Amendment was arrested on a charge of violating the San rights. Francisco Housing Code by refusing to permit a On two separate occasions, undercover agent warrantless search of his residence by city health Cass telephoned Lewis, identified himself as officers. The facts showed that a San Francisco "Jimmy the Polack," and stated that he wished housing inspector was making a routine inspec- to purchase some marijuana. On both occasions tion of an apartment building for possible code Lewis told the agent to come to his apartment violations. He was informed by the manager where the purchase was to be made. that the defendant, the lessee of the first floor, was Petitioner contends that in the absence of a using part of the premises as a personal residence warrant "any official intrusion upon the privacy of in violation of the Housing Code. When the in- a home constitutes a Fourth Amendment violation spector sought to enter the premises, however, and that the fact the suspect invited the intrusion defendant refused to let him in since he could not cannot be held a waiver when the invitation was produce a warrant. This again occurred on two induced by fraud and deception". other occasions even though defendant was in- COMMENTS AND CASE NOTES formed that the inspection was required by law. In See the defendant, a commercial warehouse Defendant was arrested and, while awaiting trial, owner, was convicted for refusing to allow a repre- he sought a writ of prohibition from the Cali- sentative of the Seattle Fire Department to in- fornia Superior Court, contending that the section spect his warehouse without a warrant. The only of the Muncipal Code allowing for warrantless question presented on appeal was whether the de- searches is contrary to the Fourth and Fourteenth cision in Camara was applicable here. The court, Amendments. The writ was denied by the state in holding the search unconstitutional, felt that courts, but this was reversed by the Supreme Court, there was no distinction between a warrantless. which overruled its prior decision in Frank v. search of commercial property or a residence.. Maryland, 359 U.S. 360(1959). "The businessman, like the occupant of a resi- The Court found that the basic purpose of the dence, has a constitutional right to go about hi- Fourth Amendment "is to safeguard the privacy business free from unreasonable official entries and security of individuals against arbitrary in- upon his private commercial property." vasion by governmental officials". This interest is justice Clark was joined by Justices Harlan and not met (except in certain "emergency situations" Stewart in a dissenting opinion applicable to where there is no time to obtain a warrant) unless both Camaraand See. They contended that, since, a warrant is issued upon a showing of probable the Fourth Amendment prohibits only unreason- cause. This is true whether the search is of a able searches, there is an area where warrantless criminal nature, as where the police are looking entries of this type should be allowed. Here, dearly, for contraband, or of a civil nature, where health the searches were reasonable since there was no officials are seeking Code violators. "... . even the indication that they were unauthorized, arbi- most law-abiding citizen has a very tangible in- trary or capricious. Further, the person who is the terest in limiting the circumstances under which subject of the search can find out the limits of the the sanctity of his home may be broken by official search, if the person is authorized, or other ques- authority, for the possibility of criminal entry tions he might have, by either asking the inspector under the guise of official sanction is a serious to display an identification card or calling his threat to personal and family security." The rea- supervisor. The dissenters also felt that this extra soning in Frank, which found a distinction be- burden imposed by the majority would greatly tween this type of situation and a "criminal" hinder health and safety inspections whose im- search, was fallacious in that any code violation portance in our society can be easily documented. could result in criminal prosecution. Furthermore, Finally, it was argued that since the majority a search warrant would give the home owner the still allowed for the authorization of area searches added security of knowing whether the inspection by magistrates whose expertise in this field is is authorized by law, what the limits of the search highly doubtful, the provision for warrants would are, and whether the inspector himself has the be no more than a rubber stamp. power to search. This, the Court felt, would in- sert a disinterested judicial officer into the picture Search Of Impounded Automobile One Week to determine whether the search is really needed. After Arrest Is Permissible-Cooper v. California. The majority held, secondly, that, although a 87 S.Ct. 788 (1967). Defendant was convicted of warrant was required in these circumstances, it selling heroin, the conviction resting in part upon need not be issued only upon a showing of probable a piece of brown paper sack seized without a It is sufficient cause as to each particular dwelling. warrant from a car impounded by the police when certain if after an appraisal of the area as a whole, they arrested the accused. On appeal, the de- minimum conditions are found to exist. The rea- fendant contended that this search and seizure, sons for this are: first, this would be the only ac- which occurred a week after the arrest, was not ceptable means of achieving the desired results; reasonable within the meaning of the Fourth and, second, this results in a minimum invasion Amendment of the United States Constitution. into the privacy of the individual. "Probable Court granted cause" for an area search, the court concluded The United States Supreme exists where certain administrative or legislative certiorari and affirmed the conviction, finding no standards for the inspection are satisfied. These federal constitutional error. "The meaning of the standards include, the nature of the buildings; Fourth Amendment depends upon the facts and condition of the area, etc. circumstances of each case... searches of cars COMMENTS AND CASE NOTES [Vol. 58 that are constantly movable may make the search majority and dissent is Preston v. United States, 376 of a car without a warrant a reasonable one. ...." U.S. 364 (1964). Although the majority distin- The accused argued that the search was not guished the Prestan case, the dissent disagreed incident to an arrest, and hence was unreasonable. and felt that the cases stood on all fours. The California Attorney General contended that In the field of search and seizure, each case must the California Code allowed the state to impound be decided on its own facts and circumstances, an auto used to transport, sell or "facilitate the and since the Supreme Court may determine which possession of narcotics". Such an auto is impounded facts are germane and which are insignificant, it so that it may be "held as evidence". may always distinguish one case from another. Justice Black, writing the majority opinion, True, the general principles may be static, but the noted that the state statutes do not enter into Court has flexibility to do justice in each case. the Court's deliberation, since the Court deter- Unfortunately, such an attitude makes it im- mined that, within the facts and circumstances of possible, in many borderline cases, for a policeman the case at bar, the search and seizure was reason- to determine whether or not he may make a valid able. Cars, which are constantly movable, may search. One might be tempted to say that such an make the search of a car without a warrant rea- approach unduly hinders law enforcement, and sonable albeit "the result might be the opposite in breeds a contemptuous attitude in the police for a a search of a fixed piece of property". system wherein they can find no rules of a solid It is true that the search was not incident to an nature. arrest, but since the car was held as evidence of the narcotics violation, under the dictates of Cali- Prior Conviction Admissible For Recidivist Act fornia law, the search was reasonable. To elaborate, Where Jury Properly Instructed-Spencer v. Justice Black said, the car was seized "because of Texas, 87 S.Ct. 648 (1967). Three cases argued the crime for which they arrested petitioner."... before the Supreme Court of the United States The Court stated, brought into question the constitutionality of the their subsequent search of the car... was Texas recidivist procedure under which evidence closely related to the reason petitioner was of prior convictions is admitted to the jury. arrested, the reason his car had been im- In No. 68 petitioner was indicted for murder pounded, and the reason it was being re- with malice of his common-law wife. The indict- tained.... It is no answer to say that the ment alleged that he had been previously con- police could have obtained a search warrant, victed of murder. In No. 69 petitioner was in- for the relevant test is not whether it is rea- dicted for robbery, and the indictment alleged that sonable to procure a search warrant, but he had previously been convicted of bank rob- whether the search was unreasonable. bery. No. 70 involved a third-offender prosecution Justice Douglas, with whom Chief Justice for burglary which had been finally disposed of but Warren, Justice Brennan, and Justice Fortas was attacked collaterally in a habeas corpus pro- joined, wrote the dissenting opinion. The first ceeding. The recidivist statute in question, an en- point mentioned is that the state did not have hancement statute, provided that prior convictions title to the car at the time of the search. Secondly, should be alleged in the indictment and proved as the state statute did not authorize the search. a matter of fact. The jury was instructed that proof Thirdly, the search was not pursuant to a war- of prior conviction was to be considered only for rant. Justice Douglas then said, "and since it (the purposes of assessing the sentence to be imposed search) was not incidental to petitioner's arrest, and not to establish the defendant's guilt under it was illegal." the current indictment. The dissent makes much of the fact that the In a 5-4 decision the Supreme Court, per Mr. state statute did not give the state dominion over Justice Harlan, ruled that any prejudice arising the auto. Even more important to the dissent's from this procedure, when compared with the position is the fact that the search was not in- state's interest in controlling recidivism, was not cidental to the arrest. The dissent concludes that sufficient to require reversal. The majority did not the Bill of Rights applied through the Fourteenth applaud these proceedings-in fact they noted Amendment is applied differently by the majority with approval that Texas had since these convic- than if it were applied directly. tions amended its act to provide for a two step Comment: The bone of contention between the process. However, they felt constrained to allow COMMENTS AND CASE NOTES

the state to devise its own rule of evidence as long in questions of violations of constitutional rights, as such did not fall below the minimal level the or at least in the Griffin [Griffin v. California,380 Fourteenth Amendment will tolerate. U.S. 609, (1965)] situation. Justice Harlan dissented, feeling the Court's State Harmless Error Rules And The Violation formulation of the harmless error standard is not Of A Federal Right-Chapman v. California, 87 the only constitutional one, and that the Court S.Ct. 824 (1967). Defendants were convicted of should not assume "what amounts to a general robbery, kidnapping and first degree murder. The supervisory power over the trial of federal consti- defendants refused to testify on their own behalf. tutional issues in state courts." The opinion then At the time of trial the state constitution allowed goes into a discussion designed to prove that the the court, and counsel, to comment upon a failure Court was given no such power by the constitu- to explain evidence in the case against a defendant. tion. The constitution also allowed the jury to consider The opinion reviews the history of the Cali- the failure to testify and the ensuing comments. In fornia rule, and the United States Supreme Court's the case at bar the state and the court commented various formulations of the rule. upon the defendants' failure to testify, and the Justice Harlan then reviewed the evidence and jury was allowed to draw adverse inferences from found the California formulation to be a reason- this failure to testify. Prior to this case's arrival able one, in the present case's circumstances. in the State Supreme Court, the United States Supreme Court, in Griffin v. State, 380 U.S. 609 Nolle Prosequi With Leave Violated Defend- (1965), held the relevant clause of the State con- ant's Rights To Speedy Trial-Klo.fer v. North stitution was unconstitutional, because the prac- Carolina, 87 S.Ct. 988 (1967). The defendant had tice was a penalty on one's right not to be a witness been charged with criminal trespass. At the trial, against himself. the jury could not reach agreement and a mistrial In the case at bar, the California Supreme Court was granted. The trial judge continued the case held that the petitioners were denied their federal for the rest of the term. Some eight months later constitutional rights, but the state constitution the prosecutor asked for and got a further con- forbade reversal for harmless errors, and the error tinuance. In August, 1965 about 18 months after in this case was a harmless error. the initial trial, the defendant asked that the The United States Supreme Court, on certiorari, status of his case be reviewed. The prosecutor considered the questions; whether the violation of then asked for and was granted a nolle prosequi the rule could be harmless, and whether the error with leave. was in fact harmless. The Court reversed the con- The Court characterizes the nolle prosequi with viction. leave as denying the defendant the opportunity to Justice Black, writing the majority opinion, exonerate himself for as long as the prosecutor sees noted that when the violation of a federal right is fit. North Carolina argued that while the case involved, the state will not be allowed to devise could be reinstated the defendant was entirely rules to protect its people from violations of free to go "whithersoever he will." The Court re- federally created rights; the Federal Courts will jected the contention that the pendancy of the fashion the necessary norm. The opinion stated case had no affect by referring to possible adverse that the harmless rule doctrine is constitutional, public scorn, job insecurity (defendant was a albeit there are some constitutional rules whose zoology professor), and general anxiety and con- violation always is a "harnful" error. To be harm- cern. less in federal eyes, the court must be sure beyond The Court did not apparently strike down the a reasonable doubt that the error was harmless. entire procedure as unconstitutional in all cases Upon a review of the record, the Court held that but only in the particular facts of the case did the the error was not harmless because the state did Court feel that the defendant was denied the right not demonstrate, beyond a reasonable doubt, that to a speedy trial guaranteed under the Sixth the court's instruction and the prosecutor's com- Amendment. ments did not contribute to the conviction of the defendants. Commitment Proceedings Under Colorado Sex Justice Stewart concurred, due to the fact that Offenders Act Denies Due Process-Specht v. he felt the harmless error doctrine is inapplicable Patterson, 87 S.Ct. 1209 (1967). The defendant was COMMENTS AND CASE NOTES [Vol. 58 convicted for indecent liberties under a Colorado of his right to court appointed counsel. The Oregon Statute which carried a maximum sentence of ten Supreme Court held that the trial court did not years, but he was not sentenced under it. Instead, have any duty to advise defendant of this right defendant was ordered confined under the Sex and it denied the petition for post-conviction re- Offenders Act (Colo. Rev. Stat. Ann. §39-19-1 to lief. 10 (1963)) for an indeterminate term of from one The court admitted that under the Fourteenth day to life. The Act declares that the procedure Amendment the defendant did have a right to which must be followed is: court appointed counsel [See Douglas v. California, (1) A complete psychiatric examination shall 372 U.S. 353 (1963)] but it put the burden upon have been made of him (defendant) by the the defendant to make a request for one. It rea- psychiatrists of the Colorado psychopathic soned that, "since the right to appeal is merely a hospital or by psychiatrists designated by statutory right the assistance of counsel necessary the district court and to implement that right can be of no greater (2) A complete written report thereof sub- magnitude and does not rise to the level of a con- mitted to the district court. Such report stitutional right under the due process clause of shall contain all facts and findings, to- the Fourteenth Amendment." It concluded that gether with recommendations as to "neither the court nor any agency of government whether or not the person is treatable un- is required to inquire of a convicted defendant for der the provisions of this article; whether the purpose of determining whether he intends to or not the person should be committed to appeal and if so whether he has the means to em- the Colorado state hospital or to the ploy counsel." state home and training schools as men- Comment: Since Gideon v. Wainright 372 U.S. tally ill or mentally deficient. Such report 335 (1962), it has been a generally accepted rule shall also contain the psychiatrist's opin- that an indigent must be advised of his right to a ion as to whether or not the person could court appointed counsel at trial. In Illinois this is be adequately supervised on probation. required by Rule 27 (6) of the Supreme Court This procedure was followed by the trial court. Rules. This is also required in Federal courts by Defendant appealed his confinement claiming 18 U.S.CA § 3006. Gideon, however, only required that this procedure did not satisfy due process that an indigent who asks for court appointed because it permitted the critical findings under (1) counsel must be grated one. Since this right can of the Sex Offenders Act to be made without a only be waived if there is an "intentional re- hearing at which the defendant could confront linquishment or abandonment of a known right and cross examine adverse witnesses and present or privilege" an individual must be advised of this evidence of his own and because hearsay evidence right so that he can intelligently choose whether or to which the defendant is not allowed access is not to make such a waiver. See Johnson v. Zerbst admitted. 304 U.S. 458 (1938). This logic can also be applied The Supreme Court reversed the confinement to the situation in the present case. In Douglas, the order holding that this procedure did not satisfy Supreme Court extended the right of court ap- due process because there was no right of con- pointed counsel to an indigent for an appeal when frontation, no right to cross examine and no right that appeal is granted to any citizen as a right. for the defendant to present his own evidence. The Court there based its opinion on the Four- teenth Amendment, instead of the Sixth as it did No Deprivation Of Rights When Indigent Not in Gideon, reasoning that it would be denying the Advised Of Right To Court-appointed Counsel indigent equal protection if he was not provided On Appeal-Gairson v. Gladden, 425 P.2d 761 with counsel. The right of the indigent to appeal (Ore. 1967). On a petition for post-conviction re- would be meaningless if the poor as well as the lief, defendant contended that he was denied his rich could not take advantage of it. The Oregon constitutional rights since he was not advised of court, however, uses this constitutional distinction his right to court appointed counsel on appeal. to deny an indigent this right. It is true that the The defendant, after being convicted of second right to an appeal is granted by statute whereas the degree murder, advised his attorney that he had right to an attorney at trial is granted by the no more funds for purposes of the appeal. Neither Sixth Amendment, but once the right to appeal is the attorney, nor the court, advised the defendant given, the Fourteenth Amendment guarantees 1967] COMMENTS AND CASE NOTES

that each individual may avail himself of this asked him to sell it. The defendant submitted to right. Furthermore, the right guaranteed in Gideon questioning by the police and denied that he had is not waived merely because the defendant did taken the tools. The police then brought the fore- not ask for court appointed counsel. He could not man before defendant and read the foreman's waive a right he did not know he had and thus he statement. Defendant made no comment at the should have been advised of this right. This be- end of the reading. At trial this written statement comes especially crucial today when an appeal has was admitted under the tacit admission exception become an integral part of the total process of de- to the hearsay rule. The defendant was convicted termining one's guilt. The individual with adequate of burglary and larceny and appealed, contending funds can hire a lawyer for his appeal but the in- that his Fifth Amendment right against self-in- digent may not know that he has a right to court crimination had been violated. appointed counsel for an appeal. All the guaran- The Supreme Court of Pennsylvania reversed tees for a fair trial which the Supreme Court has the conviction holding that the tacit admission rule demanded in recent years would become meaning- was completely untenable. "A defendant is not less if an individual is not granted those same required to deny any accusation levelled at him at rights on appeal. Therefore, the Oregon Supreme trial no matter how inculpatory... No inference Court's decision seems inappropriate in an era of guilt may be drawn from his failure to reply" when the right of each defendant, rich or poor, to to these charges. Yet under the tacit admission a fair hearing has been so emphasized. rule, a third person may make an accusatory state- ment at any place whatsoever and if the defendant Required Language To Be Adequate Escobedo fails to answer then the third person's "unmoni- Warning-Commonwealthv. Medina, 227 A.2d 842 tored, unauthenticated declaration may doom (Penn. 1967). Defendant was convicted of second him." degree murder. At trial, testimony of statements made by defendant to the police in the absence of Corpus Delicti Must Be Proven Independent counsel was admitted. Twice during the question- Of A Confession-Conmmnweallh v. Leslie, 227 ing the defendant was warned that he did not have A.2d 900 (Pa. 1967). The defendant was con- to say anything unless he wanted to. victed of arson. The evidence was that a fire had The Pennsylvania Supreme Court reversed the destroyed a summer cottage. The state policeman defendant's conviction holding that the warnings who investigated the fire found nothing to indicate given by the police were insufficient in that the that the fire was caused intentionally, but he had a police were under a duty to warn the defendant not "hunch" that it was not an accidental fire. The only that he did not have to say anything unless defendant was subsequently arrested for other he wanted to, but also that anything he said could crimes to which he confessed, these confessions and would be used against him in court. This com- later being proved false. The defendant's descrip- plete warning is necessary no matter what the tion fit that of a person seen in the area of the fire background of the accused is in order to overcome by two neighbors. Defendant confessed that he the pressures of in-custody interrogation and to started the fire, the police again investigated the make the accused aware of his privilege and of the burned cottage and again could not uncover any consequences of foregoing it. evidence to indicate that the fire was started de- liberately. Tacit Admission Rule Violates Fifth Amend- In reversing the conviction, the Pennsylvania ment-Conzmonwealth v. Dravecz, 227 A.2d 904 Supreme Court held that the only direct evidence (Penn. 1967). Defendant was employed as a laborer of defendant's guilt was his confession. The court by Ciasson Corporation which owned a trailer in agreed that the corpus delicti could always be which were stored many items of construction proven by circumstantial evidence, but held that equipment. Much of this equipment disappeared in the present case the State had failed to show and part or all of it was found by the state police that the fire was a deliberate one. The court held on a farm owned by the defendant's parents. Sub- that the State's reliance on the confession alone sequently, the police questioned a foreman for to prove the corpus delicti was insufficient, and Caisson Corporation who gave the police a signed, that the state must prove the commission of a notarized statement that the defendant had come crime by evidence other than the confession. The to him with some of the missing equipment and court noted that without this requirement an in- COMMENTS AND CASE NOTES [Vol. 58 dividual could confess and be convicted when in the officers drove the car to the station and opened fact no crime had been committed. the trunk, ostensibly to search for more weapons, and found the burglary tools. Search Incident To Informal Detention Per- The court, in a well-supported opinion, distin- miffed-State v. Huffman, 148 N.W.2d 321 (Neb. guished the search in this case from Preston v. 1967). Defendant was convicted of breaking and United States, 376 U.S. 364 (1959), which had over- entering and sentenced to 15 years as a recidivist. turned a search of a car while in police custody, on At the trial his motion to suppress certain bricks, the grounds that in the instant case the search at a rifle, and ammunition was denied and defendant the station was only a continuation of the search appealed contending that the search and seizure of on the road. The court noted that if the search had the items was unlawful. been completed on the road it certainly would have The search had occurred when defendant's car been permissible, and felt there was no reason why was stopped on the highway after it had been seen the officers should not be able to complete the at the scene of a breakin, and its description broad- search in the warmth and safety of the police cast to other units. One of the officers shined a garage. flashlight into the window of the car and observed the rifle and brick which the defendant reached into Disclosure Of Identity Of Informant On Issue the car and handed to the officer. The defendant Of Probable Cause-State v. Jackson, 226 A.2d 804 also took the ammunition out of the glove com- (Conn. Cir. 1966); McCray v. State of Illinois, 87 partment and handed that to the officer. S.Ct. 1056 (1967). In the Jackson case the defend- The Nebraska Supreme Court affirmed the con- ant was charged with the sale of alcoholic liquor viction by holding that ". . . informal detention is without a permit and keeping liquor with intent permissible in spite of a lack of probable cause for to sell, a misdemeanor in violation of the Liquor custody in the spirit of arrest". The court concluded Control Act. The arresting officer received informa- that since the detention was reasonable the search tion about the sale of alcoholic beverages by the that accompanied it was also reasonable. defendant from an informant. The officer gave the Comment: While the conclusion of the court is informant money to purchase liquor from the de- correct, their characterization of the detention as fendant and observed the informant go into the having been made without probable cause is defendant's apartment and come out with a bottle strange. The defendant's car, a 1955 Buick, was of gin. The officer then went to the defendant's seen parked in front of the factory which was sub- apartment and placed the defendant under arrest. sequently found to have been robbed. The descrip- After the arrest, when the officer asked the defend- tion of the car was broadcast on the radio and the ant if he could search her apartment, she replied: car was stopped by an officer who recognized it as "Go ahead". A search was made which uncovered matching the description. a large quantity of alcoholic beverages. The defend- ant moved to suppress the evidence obtained in the Search Of Car At Station Permissible-State v. search on the ground that the property was seized Anderson, 148 N.W.2d 414 (Iowa 1967). Defend- without a warrant and that there was not probable ants were convicted of possession of burglary tools cause on which a warrant could be issued. and appealed on the grounds that the search of the In denying the motion, the Circuit Court of Con- car and the seizure of the tools at the police station necticut held that no warrant was required since was unlawful. The defendants, who were brothers, the search was incident to an arrest and the search were stopped by the police while driving around at was reasonable since only specific items were being 5 A.M. The police had been following them for sought and since the search was not "remote in two hours after learning of a robbery which the time and place from the arrest". The search, then, brothers were suspected of committing. would be valid if the arrest were a legal arrest, The police stopped the car and told the brothers made on probable cause. The defendant contended to get out. As they did so one of the brothers was that the prosecution must disclose the identity of observed stuffing what appeared to be a gun under the informant to give the defendant a fair oppor- the seat. The police looked under the seat and tunity to rebut the officer's testimony on the issue found a pistol and also observed a rifle in the back. of probable cause for the arrest. The court held The defendants were arrested for possession of con- that disclosure of the identity of the informant was cealed weapons and taken to the station. One of not required since reliability of the informant had COMMENTS AND CASE NOTES been sufficiently established without disclosure by ".... exclusively in the custody of the police" and the testimony of the arresting officer that the in- that without disclosure of the informant formant had given him in the past "... informa- ".... neither we nor the lower courts can ever know tion which has resulted in arrests and convictions whether there was 'probable cause' for the arrest". [in]several liquor cases". The court treated the issue of reliability "under the particular circum- Informant's Information Sufficient For Probable stances" as "... . left for the court to decide on a Cause-State t.. Lampson, 149 -N.W.2d 116 (Iowa weighing and balancing of conflicting interests". 1967); Common.wealth v. Palladino, 226 A.2d 201 In the McCray case the defendant was convicted (Pa. Super. Ct. 1967). In the Lampson case the de- of unlawful possession of narcotics. The arrest was fendant was convicted of breaking and entering. made without a warrant on the basis of informa- Evidence used by the prosecution had been ob- tion supplied the arresting officers by an informant, tained pursuant to the use of a search warrant. The who told the officers that the defendant had heroin defendant, after entering a plea of not guilty, filed a on his possession and pointed him out to the motion to suppress the evidence obtained in the officers. The officers stopped the defendant on the search on the ground that the search warrant was street and searched him, discovering the heroin. issued without probable cause since it was obtained At a hearing on a motion to suppress the heroin as on the strength of the police officer's affidavit based evidence on the ground that the search was illegal solely upon information furnished by an informant for want of probable cause, the two arresting and not based on any personal knowledge of the officers testified that they had known the inform- officer. The motion was overruled. On appeal, the ant for roughly one and two years respectively and Supreme Court of Iowa affirmed, holding that that during such periods the informant had sup- "... probable cause mentioned in the Constitution plied accurate information which resulted in sev- and statute does not have to be shown in the infor- eral convictions. Both officers, when questioned as mation itself, but may be shown in an affidavit to the informant's identity, refused to respond. attached thereto, or by sworn testimony taken Objections to the questions were sustained and the before the magistrate prior to the issuance of the motion to suppress was denied. warrant". In Lampson the police officer upon the The Supreme Court of Illinois affirmed the con- application for the warrant told the court of the viction and certiorari was granted by the United informant's reliability on several past occasions States Supreme Court. The petitioner claimed that and that he had personally dealt with the inform- even though a finding of probable cause was fully ant many times. The officer also told the judge in supported by the officers' sworn testimony, the much detail what was observed by the informant trial court violated the Due Process Clause and the which provided the basis for the officer's suspi- right to confrontation when it sustained the objec- cions. tions to questions concerning the informant's In the Palladino case the defendant was con- identity. The Supreme Court affirmed, in a five to victed of bookmaking and maintaining a gambling four decision, holding in an opinion by Mr. Justice establishment. This conviction also resulted from Stewart that the identity of an informant need not the introduction of evidence obtained in a search be disclosed when the issue is not guilt or innocence pursuant to a search warrant issued on the applica- but rather the question of probable cause for an tion of a police officer who attached an affidavit arrest or search, saying that ... nothing in the which recited that the information presented for Due Process Clause of the Fourteenth Amendment the most part was supplied by an informant known requires a state court judge in every such hearing to be reliable and in part by the police officer's to assume the arresting officers are committing own surveillance. A motion to suppress the evi- perjury". As for the petitioner's claim that his dence resulting from the search was filed and after right to confrontation was violated, the Court held hearing was denied. On appeal the Superior Court that any contention that the prosecution must of Pennsylvania affirmed. Judge Hoffman dissented produce the informant as a witness was "abso- on the ground that the affidavit was insufficient lutely devoid of merit". because it, unlike the situation in the Lampson Mr. Justice Douglas, in a dissenting opinion, in case, rested upon a "... bare assertion of the which Chief Justice Warren, _Mr. Justice Brennan informant's reliability" and failed to provide any and Mr. Justice Fortas concurred, stated that the "underiying circumstances" [Aguilar v. Texas, 378 Court's decision left the Fourth Amendment U.S. 108. 114 (1964)] upon which was based the COMMENTS AND CASE NOTES [Vol. 58

informant's information and conclusions or upon tion of local morality at the time and place of which was based the police officer's conclusion exhibition, is the more realistic standard." The of the informant's reliability. The affidavit did court concluded that the performances of the not state whether, or upon what circumstances, defendants were no more offensive than conduct the informant in the past furnished information, currently accepted in topless clubs and dance and it did not state that the informant's informa- cabarets in the modern metropolis and thus they tion was based upon personal knowledge. The could not be considered contrary to contemporary affiant, in fact, at the hearing on the motion to community standards. suppress, admitted that his information was ob- tained from another police officer who supposedly Manner Of Presentation Relevant To A Deter- dealt with the unnamed informant directly. Judge mination Of Obscenity-Ferris v. Maryland State Hoffman stated that ". . . the probability that this Board of Censors, 226 A.2d 317 (Md. 1967). The affidavit rests on multiple hearsay, rooted in con- appellant had submitted to the Maryland Board jecture, is too great to be ignored". Judge Hoffman of Censors for approval a number of silent films found the officer's personal observations to be which were designed for showing in coin-operated without any value. viewing devices in an amusement arcade in an area of Baltimore City known as "the Block". Local Standards Are To Be Used For Determin- "The Block" contained several night-clubs, book ing Whether A Live Production Is Obscene shops, a burlesque house, tatoo parlors and various -Newark v. Humphres, 228 A.2d 550 (N.J. Super. arcades. The films were viewed in a booth by a 1967). Defendants were convicted of violating a single spectator who deposited a coin in a slot city ordinance prohibiting a female performer from which would release a portion of a film for viewing. removing her clothing so as to give an illusion of Each film submitted to the Board showed one or nudeness or performing any dance, the purpose or more scantily-clad women, each writhing in various effect of which is to direct attention to the breast, poses, ".... clearly inviting and then simulating buttocks or genital organs of the performer. The sexual intercourse". The Board disapproved the conviction was based upon testimony by police licensing of the films on the ground that they were investigators who had witnessed the performers, obscene. that the defendants had performed the acts pro- In affirming the Board's action, the Circuit scribed by the ordinance. The court reversed the Court of Baltimore City admitted evidence as to convictions since it was not established beyond a the character of the neighborhood of "the Block". reasonable doubt that the dominant purpose of the The Board contended that the manner in which presentations was erotic allurement or that they the material is presented is relevant to a determina- were so offensive as to warrant conviction. tion of obscenity under the test of Ginzburg v. The basic problem facing the court was how to United States, 383 U.S. 463 (1966). interpret the Roth [Roth v. United States, 354 U.S. On appeal the Court of Appeals of Maryland 476 (1957)] test of "contemporary community affirmed, holding that the manner of presentation, standards" for purposes of live performances. The in this case ". . . the viewing in a booth by a single court pointed out that there are important differ- spectator, in the position of a peeping Tom, who ences between material which can be re-examined feeds his coins into the machine presumably in the in court and a live performance, "of which a hope that he will be even more titillated by what fleeting moment might have revealed an action or will come than by what has gone before", is illusion that went beyond propriety." First of all relevant in determining whether the films are an a live performance is "of a vanishing quality, of no appeal to prurient interest not only under Ginzburg permanency, incapable of continuous and succes- but also under the Roth [Roth v. United States, 354 sive transmission to other areas of the country in U.S. 476 (1957)] test before Ginmburg. The Court exactly the same form and image from whence it of Appeals did not ". . deem it necessary to originated." Secondly, "a local theatre performance decide whether... the location of the booths cannot be foisted upon an unwilling public," as within the area of 'the Block' constitut[ed] 'pan- may occur when publications are received in- dering' under the Ginzburg doctrine". voluntarily through the mail. Therefore, the court concluded that "in determining whether a live Confession Obtained While Intoxicated In- production is obscene, lewd or indecent, the adop- admissable-Logner v. State, 260 F.Supp. 970 COMMENTS AND CASE NOTES

(M.D.N.C. 1966). Defendant was arrested on a Miranda Not Applicable To Prosecutions Of charge of driving while intoxicated when he became Minor Offenses-State v. Zitcconi, 226 A.2d 16 involved in a traffic accident obviously due to (N.J. Super. 1967). The defendant was convicted over-indulgence which had been witnessed by of careless driving and fined one hundred dollars. two police officers. While he was in the police car Whfile in a hospital recovering from injuries re- be made the statement that he could pay for the ceived in the accident which led to the charge, damage and that they knew where he got the the defendant was questioned twice by a police money, evidently referring to a number of recently officer and signed a written statement in the pres- committed robberies with which he was linked. ence of members of his family in which he admitted When they arrived at the police station defendant that he had driven the car at the time of the acci- was interrogated on three different occasions, dent. The statement was the state's only evidence during which he was informed of his constitutional that the defendant had driven the car. rights which he waived. During each session the On appeal the defendant contended that the defendant was in a state of intoxication which was statement should have been excluded under the recognized by the officers, but they continued to rules laid down in Mirandav. Arizona, 384 U.S. 436 question him. Each time certain incriminating (1966). When he made the admission to the police remarks were elicited which were the basis of a officer, the defendant had no counsel present and later conviction for the robberies. Defendant had not been informed of his right to counsel or objected to the admission of the incriminating his right to remain silent. The court held that statements since they were given when defendant Mirandadid not apply because the trial took place was without the aid of counsel and under the before Miranda. The court, however, went on to influence of alcohol. Defendant was convicted of say that even if the trial had been after the the offenses and the Supreme Court of North Miranda decision, the decision still would not Carolina affirmed. On a petition for a writ of apply since the defendant "... was not under habeas corpus the District Court reversed and arrest, in custody, or otherwise deprived of his remanded. freedom by the authorities" at the time he made The court decided, first, that defendant's con- his admission. Further, the court stated that viction was based on an involuntary confession Miranda did not apply to motor vehicle violations, and this deprived him of due process of law, re- which are not criminal. In discussing the inappli- gardless of the truth or falsity of the confession cability of M[iranda to "quasi-ciminal" offenses, and even though defendant may have been guilty the court said that there are offenses "... of so of the crime. The coercive nature of the confession common and minor a nature that it would be was found in the fact that defendant was arrested impractical and unnecessary to bring in the full for drunken driving; that the investigating officer panoply of constitutional protections in dealing found defendant too drunk to make a statement; with them". that others noted defendant was intoxicated and The court considered the fines and terms of had the appearance of being under the influence. imprisonment under the motor vehicle laws to be The decision went on to state that any confession "minor" in comparison to those fixed under the obtained from a person under the influence of criminal laws and that in most cases the defendant alcohol or drugs causes it to be inadmissable. can expect only "moderate" fines and not im- "The petitioner's will had been overborne by the prisonment. Noting that in the present case the alcohol and drugs. Whether he had a false sense of defendant was only fined and not imprisoned, the confidence,... or an acute sense of remorse, his court described a rule adopted by the Supreme capacity for self-determination was critically Court of Massachusetts, which requires that a impaired, rendering any confession gained ob- defendant be informed of his right to counsel and jectionable." assigned counsel only where a sentence of imprison- Finally, it was urged by the state that the state- ment may be imposed, as creating a distinction ments made by the defendant were voluntary which "may be practical and have merit". The since he was warned of his constitutional right to court referred to the problems that would be remain silent. This was rejected by the court, encountered if Miranda were to be applied "willy- since, clearly, defendant was incapable of intel- nilly" to all minor offenses, and it seemed to the ligently or knowingly waiving his constitutional court that ". . the police practices described in rights. Miranda as reasons for the adoption of the rules COMMENTS AND CASE NOTES [Vol. 58 therein laid down have no pertinence to motor viction. One of the grounds for reversal was that vehicle and similar minor cases". even though the prosecutor only advised the witnesses not to speak to anyone about the case Permissibility Of Jury View Up To The Discre- without him being present, this advice interfered tion Of The Trial Judge.-Battese v. State, 425 with the defense's effective preparation of the P.2d 606. (Alaska 1967). Defendant was convicted case. Citing Canon 39 of the Canons of Professional of burglary and attempted larcency. The state Ethics and Canon 10 of the Code of Trial Conduct was permitted to show the jury the place where the of the American College of Trial Lawyers, the crime was committed before any evidence was court held that since presumably the prosecutor taken and before the state had established the was unencumbered by defense counsel's presence corpus delecti. In objecting, the defense contended during his interview of the witnesses. "there seems that a jury view was not proper at this stage of to be no reason why defense coundel should not the trial and also that there had been material have an equal opportunity to determine, through changes on the premises since the burglary had interviews with the witnesses, what they know taken place. The court, on appeal, affirmed the about the case and what they will testify to". trial court's decision to grant the jury view. It stated that the stage at which a jury should be Evidence Obtained In Search Of Defendants' permitted to view the premises is a matter within Trucks Hours After Their Arrest Held Inadmis- the discretion of the trial court, and will be re- sible-Petty v. State, 411 S.W.2d 6 (Ark. 1967). viewed only for an abuse of discretion. It found no Defendants were convicted of burglary and grand such abuse here, since it made sense to the court to larceny for breaking and entering a bowling estab- allow the view before the evidence was taken so lishment and taking money in excess of $35.00. that the jury could more readily understand the Defendants' trucks had been seen leaving the scene evidence. As to the second contention, the court of the crime by the night watchman who gave a stated that "a jury view of premises may be al- description of the vehicles to the police. On the lowed even if conditions have changed, if the basis of this information, defendants were appre- character of the change is properly brought out in hended and placed under arrest. The arresting the evidence." Since photographs taken before officers took possession of the keys to the trucks the material change in the premises were intro- and turned them over to state police who arrived duced at the trial the court determined that this about six hours later. The trucks were searched at condition had been met. this time and about twelve hours later. Both searches turned up incriminating evidence which Right Of Defense Counsel To Interview Pros- was admitted at trial. ecution's Witnesses-Gregory v. United 5tates On appeal it was contended that the searches 300 F.2d 185 (D.C.Cir. 1966). Defendant was violated defendants' constitutional rights since convicted of first and second degree murder, they were conducted without a search warrant. robbery and assault with a deadly weapon. Defense The court sustained this contention and reversed counsel and the prosecutor appeared before a citing with approval the following from Preston v. motions judge before the trial began at which the United States, 376 U.S. 364 (1964): defense counsel stated that two eye witnesses to The search of the car was not undertaken un- one of the crimes refused to talk with him unless til the petitioner and his companions had been the prosecutor was present or authorized the arrested and taken in custody to the police witnesses to talk with him. The motions judge station and the car had been towed to the ga- declined to take any action. At trial defense counsel rage. At thispoint there was no danger that any again asked for the judge's assistance to aid him of the men arrested could have used any weap- in interviewing these witnesses. The prosecutor ons in the car or could have destroyed any stated that he had told the witnesses they could evidence of a crime. speak to anyone, but it was his advice that they Relating this to the case at hand the court said: not speak to anyone about the case unless he was Obviously there is a striking similarity be- present. The trial judge also refused to assist de- tween the vital facts in this case and the fense counsel in talking with the witnesses. Preston case. There was no search warrant, The United States Court of Appeals for the the men had been arrested, they had no chance District of Columbia reversed defendant's con- to escape, there was a lapse of time (much 19671 COMMENTS AND CASE NOTES

more in this case) between the arrest and the judge refused to pass upon the motion, saying that search, and there was no chance that the it was premature and that he would rule on the articles recovered would be moved or lost. admissibility when the evidence was offered. When (411 S.W.2d at 9). it appeared that the State was about to introduce this evidence, defendant again objected and re- Failure To Admonish The Jury-Sunph v. quested that testimony as to the admissibility of Commonwealth, 408 S.W.2d 618 (Ky. Ct. App. the evidence be heard in camera. This request was 1966). During the trial of the defendant on charges denied and the witness was permitted to describe of voluntary manslaughter, a spectator shouted the revolver and the other articles that had been out that the witness was lying. Defendant's found in defendant's apartment. After the matter attorney did not object nor ask that the jury be had thus been brought to the attention of the jury, admonished not to consider the outburst. Never- the trial judge finally sustained the defense ob- theless, the appellate court reversed the sentence jection. and remanded the case for a new trial stating that Despite this ruling the prosecutor later asked the trial judge should have admonished the jury another witness if the revolver was loaded. The even without having been requested to do so, and defendant's objection was sustained but his motion its failure to do so constituted reversible error. for a mistrial was denied. Instead the trial judge polled the jury and was assured by each one that Prior Grand-Jury Service Does Not Disqualify he could ignore the references to the revolver. Petit Juror-Statev. Riley, 151 S.E.2d 308 (W.Va. In reversing the lower court's judgment of con- 1966). Defendant, a school superintendant was viction the court said in part: convicted of embezzling funds of the Board of We are inclined to think that, on balance, the Education. During the voir dire examination a court's polling of the jury tended to emphasize number of jurors were challenged for cause; two the error rather than to correct it. Only a very of them because they had served on the grand jury unusual and very conscientious juror would which indicted the defendant of a related crime, publicly confess himself to be so weak-minded involving the embezzlement of funds from the as to be unable to obey the court's admonition same source. The trial court accepted these jurors to disregard certain testimony. The sure way after they said they would give the defendant a to avoid the possibility of prejudice is to ex- fair trial and would not convict him unless he was clude the incompetent evidence in the first proved guilty beyond a reasonable doubt. place. The Supreme Court of Appeals affirmed the conviction holding that prior service on a grand Aranda Decision Concerning Co-Defendant's jury which indicted a defendant of a similar Confession To Be Applied Retroactively-People v. crime does not disqualify a person from sitting on a Charles,425 P.2d 545 (Cal. 1967). Prior to this case petit jury. The Court found that even though the Supreme Court of California, in People v. such a juror may be excused without causing error, Aranda, 407 P.2d 265 (1965), outlined certain rules failure to excuse is not grounds for reversal. In the to alter the practice of introducing confessions absence of a showing that a juror has formed an which implicated co-defendants. It was held that opinion as to the guilt or innocence of this defend- the trial judge should determine whether all parts ant or that the juror would be in some way partial, of each confession implicating the nondeclarant the court should not disturb the discretion exer- could be effectively deleted without prejudice to cised by the trial court in determining the question the declarant. If this could not be done, he must of eligibility of the member of the jury. either exclude the confessions or severe the trials. The co-defendants in this case were tried and con- Polling And Instructing The Jury Did Not Cure victed of armed robbery before the Aranda de- Prejudice-Cabbiness v. State, 410 S.W.2d 867 cisions. Both defendants had confessed and the (Ark. 1967). After defendant had been arrested confessions were admitted into evidence. The for the burglary of a produce store, the police trial judge, however did not follow the Aranda returned to his apartment, searched it without a safeguards. The California Supreme Court held warrant, and found a revolver and some clothing. that Aranda applies to cases on appeal even for Before trial the defense attorney moved to supress pre-Aranda trials. The conviction of Charles, this evidence as fruit of an illegal search. The trial however, was affirmed since he had made an in- COMMENTS AND CASE NOTES [Vol. 58 dependent confession under the constitutional that the jury apparently did not trust him. The safeguards applicable at that time. jury then returned to the deliberation room and The Court stated that this Court and the Su- later returned its verdict of guilty with a recom- preme Court of the United States have both fol- mendation of leniency. lowed, "the historic practice of applying this cur- The court noted its "zealous" stand against any rent expression of the basic principle to cases trial judge's remarks that "might influence" a pending on appeal." (The court added that Mi- jury's verdict. It stated that "facetious or not, the randaand Escobedo were exceptions to this principle words of the trial judge in the background of the because of the unique circumstances in which those previous statements on the subject were pre- decisions arose.) The Court stated that its charac- judicial", since facetious remarks are not always terization of Aranda as not being constitutionally taken as such by the hearers. compelled did "not bear upon the applicability of Although the prior point was dispositive, the this case on appeal but only upon its automatic court went on to discuss the appellant's objection availability for collateral attack." As to the distinc- to the trial judge allowing the sheriff to select two tion between substantive and procedural rules the jurors of his choice from the special panel of court stated that they are so "interwoven that their twenty-five provided by the jury commissioners to attempted segregation into clean cut categories be used when the regular panel was depleted. The becomes meaningless; ... the hoary dichotomy basis of the defendant's objection was that "the between the substantive and procedural cannot sheriff was prejudiced because he was a prosecuting serve as a talismatic solution to the retroactivity witness". The Court stated that possible prejudice problem." is not enough, actual prejudice must be shown. In addition, the record failed to reflect that the appel- Facetious Remarks By The Trial Court Judge To lant had no preemptory challanges available to The Jury-Smith v. State, 410 S.W.2d 126 (Ark. object to the proffered jurors. 1967). Defendant was convicted in the Circuit Court of Marion County, Arkansas, for grand Emergency Situation Validates Search Without larceny of three hogs, and sentenced to one year in Warrant-Patrick v. State, 227 A.2d 486 (Del. jail with a recommendation that upon restitution 1967). Defendant was convicted of second-degree the sentence be suspended. On appeal, the defend- murder for beating his victim to death with a ant alleged inter alia that various remarks by the brick. The evidence showed that on the night of trial judge influenced the jury's verdict. the murder, defendant and the victim had had an After reviewing the colloquy between the judge argument after which defendant entered the room and the jury, during the period when the jury had in which the victim was sleeping and beat him returned from deliberation to request further about the head with a brick. The victim was found instructions from the court, the Supreme Court of the next morning by his employer who was not Arkansas determined that the trial court's remarks sure he was dead. The police were summoned had influenced the jury's verdict. Since the jury and informed that a man had been beaten and was influenced, the court ordered the conviction might be dead. They thereupon entered the room reversed and a new trial. where the body had been found and determined The dialogue which the court found prejudicial is that the victim was indeed dead. While in the too long to be set out here verbatim. However, room the police found fragments of the brick and the exchange occurred because the jury wished to took pictures of the scene. No other search was find the accused guilty but not sentence him to made. prison. When asked about the effect of a recom- On appeal defendant contended that all evidence mendation of leniency, the court answered that it obtained by the officers who entered the room was not bound by, but would give consideration to where the body was found was inadmissible since such a recommendation. The jury retired, and no arrest was made and no search warrant for the later returned to ask if a finding of guilty, fixing particular premises was outstanding. In rejecting zero years punishment and restitution to the this contention the court stated that the general aggrieved, was acceptable. The judge replied that rules governing search and seizure are subject to it was not, and that the zero years punishment was the exception of emergency situations, sometimes a recommendation which did not bind him. When called the "exigency rule." The circumstances told this was the holding of the jury the judge noted described amounted to just such an emergency COMMENTS AND CASE NOTES situation, and hence evidence found in plain sight jury to decide the issue of whether the memoranda was admissible when gathered pursuant to such were in violation of the statute or whether they lawful entry. In the words of the court: were only personal notations. Clearly, the police had a good reason to believe that a life was in the balance and that emer- Argument Of Prosecutor That Defense At- gency aid might be needed. Under the circum- torney Had Lied Required Reversal-Dupree v. stances, it was the duty of the police to act State, 410 S.W.2d 890 (Tenn. 1967). Defendant was forthwith upon the report of the emergency- convicted of assault and battery with intent to not to speculate upon the accuracy of the re- commit rape in the Criminal Court of Shelby port or upon the legal technicalities regarding County. On appeal defendant contended that the search warrants. It follows that the entry by statement by the prosecutor that counsel for the police was reasonable and lawful. defendant had lied when he stated that he would And further: not have represented defendant if he believed him The preservation of human life is paramount guilty, was prejudicial error. to the right of privacy protected by search and In upholding defendant's contention and revers- seizure laws and constitutional guaranties; ing, the court stated that even though the expres- it is an overriding justification for what other- sions of personal belief by defendant's attorney wise may be an illegal entry. It follows that a were violative of the Canons of Professional search warrant is not required to legalize an Ethics, the prosecutor was not thereby privileged entry by police for the purpose of bringing to commit a further wrong by alluding to those emergency aid to an injured person.... And statements as a lie. the criterion is the reasonableness of the belief of the police as to the existence of an emer- Blood Samples Taken Thirty-Eight Days Prior gency, not the existence of an emergency in To Arrest And Without Consent Inadmissible- fact. 227 A.2d at 489. State v. Dasqs, 226 A.2d 873 (N.Y. 1967). Defendant was involved in an automobile collision on a public Possession By A Bettor Of A Slip As A Memo- highway and immediately taken to the hospital. randum Of Own Bets Does Not Violate Lottery While there a number of blood samples were taken Statute-State v. Melamed, 226 A.2d 636. (N.J. without his consent, and two were sent to the Super. 1967). Defendant was convicted of violating police laboratory. They were found to contain a a statute making it a misdemeanor to possess any substantial alcoholic content and as a result an paper slip or memorandum that "pertains in any arrest warrant was issued 38 days after the accident way to the business of lottery." The defense was occurred. At his trial defendant objected to the that the defendant was merely a bettor not en- admission of the testimony of the doctor who gaged in the bookmaking business and that the authorized the blood sample on the grounds that seized papers were his personal memoranda of bets no consent was given. The evidence was admitted which he had placed. Defense counsel requested an and defendant was convicted of operating a motor instruction that if the papers in question were vehicle while intoxicated. merely notations made by the defendant of bets The New Hampshire Supreme Court reversed he had made, they would not constitute memo- and remanded, holding that any testimony regard- randa pertaining to the business of a lottery. The ing the blood samples was inadmissible. Where no trial court refused to give this instruction. The consent is given to the taking of blood, this can appellate court held that the instruction was a only be done subsequent to or contemporaneous proper statement of the law and reversed and with a lawful arrest. In this case no consent was remanded the case with directions that the instruc- given, nor was there proximity between the arrest tion be given. and search, either in time or place. As the court The court stated that "the statute was not pointed out, "'It 'will not do' to justify an arrest by intended to be expanded to include possession by a a search and the search by the arrest". bettor of a notation made by him as a private record of a bet he made on a number. The bettor Admission In Evidence Of A Similar Subsequent as such is not in the policy business." The court Offense And Defendant's Acquittal-People t. further stated that the defendant was entitled to Griffin, 426 P.2d 507 (Cal. 1967). Defendant was an instruction which would have called upon the convicted of first degree murder and sentenced to COMMENTS AND CASE NOTES [Vol. 58 death. On appeal, the accused claimed, inter alia, proved, and (3) the policeman was not shown to be that the trial judge erred when he allowed evidence qualified to interpret the device. of a similar subsequent offense to be admitted but In affirming the conviction, the Kentucky Court excluded evidence of the defendant's acquittal of Appeals held that a radar operator is qualified of that offense. if he has the knowledge to set up, test, and read Chief Justice Traynor, speaking for the Supreme the device. It is not necessary that he understand Court of California agreed with the appellant. The scientific principles of radar or explain its internal evidence of the subsequent crime, due to its similar- workings. The court further held that evidence of ity with the crime charged, was admissible. the device's accuracy is sufficient if there is un- The trial court erred, however, in excluding contradicted testimony that the device was tested evidence on the issue of guilt that defendant within a few hours of its specific use and found to was acquitted of the subsequent crime by a be accurate by use of a calibrated tuning fork and Mexican court. Although there is authority by a comparison with the speedometer of another to the contrary ... the better rule allows auto driven through the radar field. The court proof of an acquittal to weaken and rebut the gave strong support to cases holding that the prosecution's evidence of the other crime. accuracy of the radar may be tested by a tuning The State contended that the acquittal was the fork alone because its accuracy is assumed in the hearsay opinion of another fact finder drawn from absence of an attack by defendant. [Citing State the evidence adduced at the trial. This objection v. Tomanelli, 153 Conn. 365, 216 A.2d 625 (1966).] was easily met by the Court, which relied upon the official document exception to the hearsay rule. Failure To Prove Continuous Custody Of Breath It should be noted that in the case at bar a Test Specimen Does Not Render It Inadmissible- pivotal point was the proof of intent and the proof State v. Nagel, 226 A.2d 524 (Conn. Cir. Ct. App. of the Mexican crime was critical, in the eyes of 1966). Defendant was convicted of operating a the Court. "Had the jury been allowed to consider motor vehicle while under the influence of intoxi- the determination of the Mexican tribunal, its cating liquor. On appeal he contended that the consideration of the evidence of that crime would failure of the State to prove continuous custody of have been materially affected." Under California the breath sample, after it was taken, rendered the law the error must result in a miscarriage of justice results of subsequent tests inadmissible. The evi- before the verdict is reversed. The majority felt dence showed that on the day of the arrest the there had been such a miscarriage since, if the officer who administered the test sealed the kit, evidence in dispute had been admitted, there is a affixed the identification number "NM9" and reasonable possibility that the jury would have prepared it for mailing. The officer remembered reached a result more favorable to the accused. putting the kit in the office safe but did not rccall who mailed it to the state toxicologist. The kit Speed Detection By Radar Devices Upheld- bearing number "NM9" was received three days Honeycutt v. Commonwealth, 408 S.W.2d 421 (Ky. later by the toxicologist with the seal unbroken. App. 1966). Defendant was found guilty of speed- On appeal the court held that this statement of ing. At trial the arresting officer testified that a the facts did not reveal any proof that the kit had radar device had registered the fact that an auto actually been tampered with. Thus it assumed that was approaching the officer's position at 50 m.p.h., the test was accurate and rejected defendant's 15 miles over the speed limit. The officer's visual contention. In the words of the court: observation identified the vehicle as that operated It is not necessary to show that there was an by the defendant. The officer further testified entire absence of opportunity for anybody to that the accuracy of the radar device had been tamper with it; it is only necessary to show tested earlier that day by use of a calibrated tuning that the circumstances were such as to estab- fork and by a speedometer check with another lish a reasonable assurance that it was the police car. The defendant objected to this testi- same and in the same condition. (226 A.2d at mony because (1) there was no expert testimony of 526). the scientific validity of the principles of radar speed detection or that radar is capable of accu- Improper Acceptance of Guilty Plea-People v. rately measuring the speed of an auto, (2) the Goldfarb, 148 N.W.2d 241 (Mich. Ct. App. 1967). accuracy of this particular device had not been Defendant was charged with breaking and entering COMMENTS AND CASE NOTES

and possession of burglary tools. He pleaded guilty pointed to represent the appellant only the day to the charge after having discussed it with his before the trial and over two and a half months attorney and in the presence of the attorney. The after his arrest. At the trial, counsel asked for and District Court judge inquired of the defendant as was denied a continuance so that he could seek out to the voluntariness of the plea and then accepted a witness whose name had just prior been given it. him by the petitioner and whose testimony may The Michigan Court of Appeals reversed the have provided an alibi and established bias on the conviction on the grounds that the judge's question part of a prosecution witness. In 1964 the appellant to the defendant "Your counsel advises the court unsuccessfully sought a writ of habeas corpus in that you wish to plead guilty to possession of the state courts, claiming a denial of the right to burglary tools, is that correct?", was inadequate effective assistance of counsel. The petitioner then to advise the defendant of the nature and elements petitioned a federal district court which denied the of the crime he was charged with and therefore writ. On appeal, the Court of Appeals reversed, vitiated the guilty plea. The court acknowledged holding that the delay between incarceration and that able counsel was present and that the de- the appointment of counsel, and the resulting fendant had been in jail before, but stated that the denial to counsel of a reasonable opportunity to requirement of giving adequate warning of the prepare a case created a prima facie case of denial nature of the crime was mandatory regardless of of effective assistance of counsel and placed upon any other factors and regardless of who the de- the state the burden of proving lack of prejudice. fendant was. The state in the present case failed to meet the Comment: The dissent felt that this statement burden by not producing the claimed witness at of the charge while not adequate for an unrepre- the state habeas corpus hearing. The denial of the sented youth, was certainly adequate for a man continuance in the face of uncontradicted testi- with a 20 year criminal record and able counsel. mony by the appellant at the 1954 trial as to the The dissent felt that the intent of the statute was existence of the witness and the nature of her fulfilled even if the formalities were not. testimony created the necessary inference of prejudice. Indigence Is Relative-Slate v. Tahash, 148 N.W.2d 557 (Minn., 1967). Defendant was con- No Advice Of Right To Appointed Counsel For victed of grand larceny and appealed on the Appeal-State v. Gruver, 148 N.W.2d 405 (Iowa grounds that he was denied fundamental fairness. 1967). Defendant pleaded guilty to a charge of One of his specific contentions was that he was not forgery and was sentenced to a term of not more given appointed counsel after requesting it. At the than 10 years. Defendant appealed pro se and time of the request the probate court, which ap- among his contentions was that he had been denied parently had conducted certain pretrial procedures, appointed counsel. found that since the defendant had $25.00 in The Iowa Supreme Court noted that the defend- cash, a seven year old car, and some equity in 120 ant had court appointed counsel when he pleaded acres of land he was not indigent and therefore not guilty. The court stated that a defendant is only entitled to appointed counsel. entitled to counsel on appeal when he specifically The Minnesota Supreme Court reversed and requests it and held that the lower court was under remanded the case, mainly on other grounds. In no obligation to advise the defendant that he had discussing the indigency issue the court held that the right to make the request and that counsel the probate court had been in error and quoted the would be appointed if he did so. United States Supreme Court in Hardy v. United Comment: The Iowa Supreme Court cites several States, 375 U.S. 277 (1964), that "An accused must of the United States Supreme Court decisions in be deemed indigent when at any stage of the pro- this area of the right of counsel and points to the ceedings (his) lack of means... substantially fact that nowhere in the language of the cases is inhibits him". there a requirement that the defendant be advised of his right to appointed counsel on appeal. While Unconstitutional To Deny Counsel A Reasonable it may be true that none of the cases require, as a Time To Prepare A Case-Twiford v. Peyton, 372 constitutional standard, the advising of the de- F.2d 670 (4th Cir. 1967). The appellant was con- fendant of this right, the decision of the Iowa victed of storebreaking in 1954. Counsel was ap- court is certainly a step backwards from the ob- COMMENTS AND CASE NOTES [Vol. 58 vious intent of these cases to provide all persons sentenced to twenty years in prison to be served an equal opportunity to obtain justice. consecutively to the first two convictions. After serving approximately one year of the forty-year Mere Appearance At Trial Without Counsel Not term, the Governor of Texas granted the prisoner a Deemed An Effective Waiver Of Right To Counsel short "furlough", and notified Louisiana law- -Cuevas v. Wilson, 264 F.Supp. 65 (N.D. Cal. enforcement authorities because the petitioner had 1966). Petitioner in 1963 was convicted in Cali- escaped from a Louisiana penal institution prior to fornia of two counts of unlawful sale of narcotics. his Texas convictions. Rather than accepting the California law required the state to impose a "furlough", the prisoner signed a waiver of extradi- heavier sentence where the defendant had pre- tion and served his sentence in Louisiana. He was viously been convicted of a similar offense. The released from the Louisiana penitentiary on parole, petitioner had a similar prior conviction in 1958. which was concluded in 1948. Petitioner was sub- In a habeas corpus proceeding the petitioner sequently convicted of passing a forged instrument. alleged that he was in custody in violation of his Petitioner was sentenced to two years plus the constitutional rights because in the 1958 prosecu- time not served for the 1933 convictions. tion he was denied counsel at a critical stage of the The prisoner applied for a writ of habeas corpus criminal proceedings, and if the 1958 conviction to the Texas Court of Appeals because of his in- were to be set aside he would have been illegally carceration for the 1933 convictions. The writ was sentenced as a second offender in 1963 and entitled denied. The prisoner then applied for a writ of to apply for immediate release on parole. habeas corpus on the grounds that his incarcera- In the 1958 prosecution the petitioner was pro- tion under the 1933 Texas convictions was a vided with counsel from the public defender's violation of his Fourteenth Amendment right of office. Petitioner appeared in court and pleaded not Due Process. The United States District Court guilty and was subsequently released on bail. for the Southern District of Texas denied the Later the petitioner again appeared in court and petition. On appeal the United States Court of was told by the judge that as he had been bailed Appeals for the Fifth Circuit reversed the lower out it was "no longer a case for the Public De- court, holding that "the extradition of Shields to fender", whereupon the public defender's office Louisiana authorities and the release by Texas of was relieved from further represention of the the prisoner before expiration of his sentence con- petitioner. The court, however, did ask the peti- stituted a waiver of jurisdiction over Shields". tioner if he desired to secure his own attorney. The The court, after some introductory remarks petitioner responded affirmatively and a date for about Due Process and fundamental justice, re- the trial was set. The petitioner appeared on the viewed the case law and came to the conclusion trial date unaccompanied by an attorney and that Texas had, in effect, impliedly pardoned the changed his plea to guilty, which was accepted and petitioner when it allowed him to be extradited entered by the court. The court did not ask the while serving a prison sentence. The Court placed petitioner whether he had an attorney, whether heavy reliance upon the fact that the surrendering he could afford an attorney or whether he wished state at the time of extradition; to proceed without an attorney. The United showed no interest in the return of the pris- States District Court held that the petitioner was oner, either by agreement between the sover- denied his constitutional right to counsel since the eigns, by detainer, or any other affirmative ".... petitioner's mere appearance in court without action taken by it following his release in counsel cannot be deemed to constitute an effective Louisiana. waiver of his right to the assistance of either ap- The other factor which the court stressed was pointed or retained counsel". that the lack of interest demonstrated by the State of Texas lasted twenty-eight years. "A Reaquisition Of Jurisdiction Over An Extradited prisoner cannot be required to serve his sentence in Prisoner-Shields v. Beto, 370 F.2d 1003 (5th installments" are the words the opinion used to Cir. 1967). Petitioner was convicted in Gray sum up its feelings on this point. County, Texas, for two felonies, in May, 1933, and Since the lack of interest for a long period of sentenced to a total of twenty years in prison. In time was held to be equivalent to a pardon or November of the same year petitioner was con- commutation, and a waiver of jurisdiction, the victed in Wheeler County, Texas, for a felony and Texas court which heard the forgery case in 1960 COJMEXTS ANYD CASE XOTES was without power to force the petitioner to serve Another point is that even if the incarcerated the balance of his 1933 sentences. can be discriminated against under the Constitu- tion, surely he can not be prejudiced to such a Equal Protection And The Unequal Treatment degree that he will be convicted where a man freed Of Those Who Can Not Procure Bail-Priest v. on bail would not be convicted. Such a disad- State, 227 A.2d 576 (Del. 1967). Defendant was vantage to the poor is unthinkable in our present arrested and charged with auto theft. Bail was set system. at five-hundred dollars. The accused was unable to post bail. During the ensuing detention, Priest Felony-Murder Rule Encompasses Accidental was interrogated heavily, and in violation of var- Killing During Robbery Escape-Whitman v. ious statutory and court propounded rules. After People, 420 P.2d 416 (Colo. 1966). The evidence five months of imprisonment, the defendant was advanced at defendant's trial tended to show that tried and convicted. He was given a suspended he and another party undertook to rob a creamery. sentence and probation. On appeal, the defendant Although the other person actually perpetrated contended, inter alia, that he was denied Equal the holdup, he used defendant's gun and defendant Protection of the law "in that, because he was drove the car which enabled them to escape. The unable to furnish bail, he was subjected to police police were signaled by the victim and began chas- interrogation to which another defendant, able to ing the robbers. During the chase defendant's post bail, would not have been exposed." car struck another car killing the driver. Defendant Justice Hermann, writing a unanimous opinion was arrested and convicted of felony-murder under for the Supreme Court of Delaware, stated that a Colorado statute which provides, that a "Murder "the defendant cites no authority in support of this ... which is committed in perpetration or attempt argument. The contention is without merit." to perpetuate any.., shall be deemed murder in The opinion continued that the Equal Protection the first degree." Defendant contended on appeal: Clause does not necessitate that all have the same (1) that there was insufficient evidence to show rights and protections, but that all be treated that a murder was committed in perpetration of identically as to the "privileges conferred and the robbery; and (2) that the "perpetration of a liabilities conferred." This Court felt that "it robbery" does not encompass the subsequent forbids invidious discrimination, but doth not escape. require identical treatment for all persons without The Colorado Supreme Court affirmed de- recognition of differences in relevant circum- fendant's conviction, holding that the felony- stances." The Clause, the Court said, prevents murder doctrine eliminates the necessity of proving invidious discrimination. The Eighth Amendment the elements of deliberation and design to effect of the Constitution permits the discriminatory death under the statute. It quoted Andrews v. classification between those who can obtain their People, 33 Colo. 193, 79 P. 1031 (1905) for this release on bail and those who can not. Hence, this theory. The Andrews court held that "the purpose classification is not prohibited by the Constitu- of the statute was to make every homicide comitted tional Clause of Equal Protection. in the perpetration or attempt to perpetrate certain Quoting the case of Rigney v. Hendrick, 355 F.2d felonies, murder, which may be punished by death, 710 (3d Cir. 1965), the Court said, "the Constitu- if the jury so determine, without regard to malice, tion, however, permits such a classification, and deliberation, or premeditation". any differences here, arise solely because of the The majority of the Colorado Supreme Court inherent characteristics of confinement and cannot went on to hold that the escape is as much a part of constitute invidious discrimination." the perpetration of the crime as the actual holdup Comment: The accused was placed in jail itself. This is true even under the more lenient pending trial. Jail is a place where convicted "furtherance of the felony" test adopted by prior criminals are placed to be rehabilitated and Pennsylvania cases. See, Commonwealth v. Redline, punished. The accused was incarcerated because 391 Pa. 486, 137 A.2d 472 (1958). he could not adequately assure the court that he would appear at his trial. Should he then be placed Court's Right To Limit Press Coverage Within in a jail? Does not jail restrict the accused to a Courthouse Upheld-Seyimour v. United States, 373 greater extent than necessary to insure his ap- F.2d 629 (5th Cir. 1967). Defendant was convicted pearance in court? of criminal contempt when he disobeyed a standing