Journal of Criminal Law and Criminology

Volume 64 | Issue 4 Article 8

1974

Procedure: Habeas Corpus: Davis v. United States,411 U.S. 233 (1973)

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Recommended CitationProcedure: Habeas Corpus: Davis v. United States, 411 U.S. 233 (1973), 64 J. Crim. L. & Criminology 434 (1973)

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prosecution to produce such photographs. 4 If

"People v. Jackson 299 N.E.2d 142 (Il1. App. 1973).The victim of a robbery was shown a group of photo-gaphs seven months after the crime took place. Thevtim picked defendant's picture. Police retained nei-ther the photographs nor a list of the people picturedin the photo display. Defendant claimed the lack ofphotographs violated his right to due process. While thecourt did say that good police procedure and properprosecutorial care would require retention of the photo-graphs, it relied on "the totality of the circumstances"clause in Simmons, and stated that there was sufficientbases to believe the victim's in-court identification. Thepoint remains, however-how can the defendant attackan in-court identification possibly tainted by a poorlyhandied photo display when counsel is not required atthe photographic identification and the absence of thephotographs is not an absolute bar to prosecution? Theresult is that the defendant claims his rights have beenviolated, and instead of examining the facts of the situa-tion, the judge makes what is tantamount to a ruling onthe credibility of the claim.

See People v. Camel, 295 N.E.2d 270 (Ill. App.1973) (failure to furnish defendants with the photo-graphs shown to the victim of a rape for attempted,but unsuccessful, photographic identification was noterror when sufficient basis is apparent for the relia-bility of the in-court identification); cf. People v. New-bury, 53 Ill. 2d 228, 290 N.E.2d 592 (1972) (defendanL

counsel is not required at the photographic identifi-cation, and if the State is under no absolute dutyto produce the pictures used, the defendant is leftwith no basis from which to launch a due processattack.

The Supreme Court on June 21, 1973, handeddown a decision in United States v. Ask which pur-ports to follow the historical line of cases in definingwhat is and what is not a critical stage. In actuality,the opinion is likely to lead to more confusion inthe already muddled area of the right to counsel atcritical stages of a prosecution. In all possibility,the Court, for the sake of consistency, may finditself with a Hobson's choice between its own con-struction and the pre-existing law of both its ownjurisdiction and that of at least one state. In effect,the decision leaves both the legal scholar and thelegal practitioner wondering where we will go fromhere.

need not be granted leave to inspect photographs ofscene of the crime when the prosecution does not usethem at trial).

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Habeas Corpus:Davis v. United States, 411 U.S. 233 (1973)

In Davis v. United States,' the United StatesSupreme Court held-that a federal prisoner's failureto object before trial to an alledgedly unconstitu-tional grand jury array constituted a waiver of hisright to raise that objection through a post-con-viction writ of habeas corpus. Furthermore, underthe circumstances of this case, petitioner had failedto show sufficient "cause" to warrant relief fromapplication of the waiver.

A federal grand jury indicted Davis, a Negro,and two white men for entry into a federally in-sured bank with intent to commit larceny.2 Peti-tioner, represented throughout by appointed

counsel was convicted and sentenced to fourteenyears in prison. Almost three years after his con-viction he flied a motion in the federal district

court to vacate sentence under 28 U.S.C. § 2255.3

1411 U.S. 233 (1973).'A violation of 18 U.S.C. § 2 (1948) and § 2113(a)

(1940).'28 U.S.C. § 2255 (1948) provides:A prisoner in custody under sentence of a courtestablished by Act of Congress claiming the right to

He alleged in his petition that the indictmentagainst him was invalid because the grand juryhad been selected by the "key man" system.4

Petitioner claimed that this system resulted insystematic exclusion of Negroes from the grandjury in violation of his rights under federal statutes5

and the Federal Constitution.6 Davis had not

be released upon the ground that the sentence wasimposed in violation of the Constitution .... maymove the court which imposed sentence to vacate,set aside or correct the sentence.

The purpose of § 2255 is to provide federal prisonerswith the equivalent relief which habeas corpus providesstate prisoners. Hill v. United States, 368 U.S. 424(1962); United States v. Hayman, 342 U.S. 205 (1952).

Under a "key man" system, jury commissionersask persons who are thought to have wide contactsin the community to supply the names of prospec-tive jurors.

411 U.S. at 246, n.2, (Marshall, J., dissenting).5 28 U.S.C. §§ 1861, 1863 (1968). The former section

declares it to be the policy of the United States to as-sure all litigants the right to a fair grand and petit jury;the latter section establishes procedures for preventingdiscrimination in the selection of the grand and petitjuries.

6 U.S. CONST. amend. V:

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previously raised this objection in pretrial, trialor appellate motion.

The district court denied Davis' motion. It heldthat Davis had waived his right to object to thegrand jury's composition under Rule 12(b)(2) ofthe Federal Rules of Criminal Procedure7 and thatthe facts did not show the requisite "cause" towarrant relief from the waiver provision of theRule. The Court of Appeals affirmed,' and theSupreme Court granted certiorari. 9

Mr. Justice Rehnquist, speaking for a majorityof six justices, affirmed. He began with the premisethat Rule 12(b)(2) applies to § 2255 motions.'0

Rule 12(b)(2) provides that objections to "defectsin the institution of the prosecution or in the in-dictment" must be raised, (and presumably adju-dicated), before trial. Clearly the grand jury formsan integral part of the institution of the prosecu-tion and the indictment. Objections to the grandjury array are therefore within the purview of Rule12(b)(2). Since failure to follow the Rule's proce-dure constitutes a waiver, one who pleads to an in-dictment and goes to trial without objection,waives-any right to object to the grand jury there-after. Relief from this waiver standard, however,may be granted for "cause shown." By its termsthe Rule applies to constitutional as well as pro-cedural defects."

The Court's opinion asserted that Shotwell Mfg.Co. v. Uniked States12 controlled the instant case.In Shotwell, the petitioners had been convicted of

No person shall be held to answer for a capital, orotherwise infamous crime, unless on a presentmentor indictment of a Grand Jury...,' FED. R. CRr-. P. 12(b)(2). This Rule provides that:defenses and objections based on defects in theinstitution of the prosecution or in the indict-ment... may by raised only by motion beforetrial

and tht failure to present such defenses or objectionsconstitutes a waiver thereof, but the court for causeshown may grant relief from the waiver.8 455 F.2d 919 (5th Cir. 1969).' The Supreme Court granted certiorari because the

decision was contrary to two Ninth Circuit decisions,Chee v. United States, 449 F.2d 747 (9th Cir. 1971);and Fernandez v. Meier, 408 F.2d 974 (9th Cir. 1969).Both decisions held that when a petitioner in a § 2255motion alleged facts sufficient to constitute a violationof his constitutional rights, a hearing must be grantedunless it affirmatively appeared from the record thathe had knowingly waived his right to object.

"0411 U.S. at 237. This assertion really was notchallenged in the dissent. Rather, Justice Marshallagreed that rule 12(b)(2) applied, but disagreed onwhether "cause" existed to relieve Davis of applicationof the waiver provision.

11411 U.S. at 236.12371 U.S. 341 (1963).

federal income tax evasion. Four years later, theyraised a § 2255 motion, contending that the grandand petit jury arrays had been illegal because thejury commissioner had failed to utilize a selectionprocedure likely to produce a representative crosssection of the community. During a hearing on themotion, while petitioners conceded that Rule12(b)(2) applied to their petition they believedthat "cause" for relief from the waiver provisionexisted because they had only recently been ap-prised of the facts supporting the motion. TheCourt, however, found that "the facts concerningthe selection of the grand and petit juries werenotorious and available to petitioners in the exer-cise of due diligence." 11 For this reason and be-cause the petitioners were not prejudiced by thealleged illegalities, the Court concluded that therewas insufficient "cause" to warrant relief from thewaiver. Rehnquist concluded that "Shotwell thusconfirms that Rule 12(b)(2) precludes untimelychallenges to grand jury arrays even when thechallenges are on constitutional grounds." 1

4

Another case involving waiver of a claim raisedin a § 2255 motion arose in Kaufman v. UnitedStates. 5 Kaufman had been convicted of armedrobbery. At trial and on appeal his sole defensewas insanity. Later, he brought a § 2255 motionalleging an unlawful search and seizure. The Su-preme Court held that although a § 2255 habeascorpus petition is not a substitute for appeal, reliefcannot be denied to one alleging a violation ofconstitutional rights solely on the ground that heshould have appealed."' The Court did, however,indicate that relief would be denied to one whodeliberately bypassed orderly procedures in raisinghis objection."

Rehnquist distinguished Kaufman because it didnot involve a statutory waiver provision com-parable to Rule 12(b)(2). Kaufman apparentlyhad not complied with another procedural rule,41(e),18 but 41(e) unlike 12(b)(2) does not makenoncompliance a per se waiver. Therefore, be-cause Rule 41(e) is silent, the Court could properlyapply its own "different standard" 11 of waiver in

13 Id. at 363.14 411 U.S. at 238.15 394 U.S. 217 (1969).16 Id. Accord, Townsend v. Sain, 372 U.S. 293, 311

(1963); Hill v. United States, 368 U.S. 424, 428 (1962).17 394 U.S. at 227, n.8.18 FED. R. CRm. P. 41(e) provides that a motion to

suppress the use of the evidence obtained in an unlawfulsearch "shall be made before trial..., but the court in itsdiscretion xnay entertain the motion at the trial .... ""9 Although the majority opinion at no point acknowl-

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Kaufman. However, when one like Davis, fails toobject before trial to an allegedly unconstitutionalgrand jury array, he runs afoul of Rule 12(b)(2).This latter rule is not silent on the issue of waiver,but rather mandates that noncompliance is a perse waiver of the right to later raise the claim. Anyjudicial tampering with this legislatively pro-nounced waiver standard would be improper.20

The majority examined two factors in determin-ing whether "cause" had been shown to relieveDavis of the waiver. First, the Court could notdiscover any justification for petitioner's failureto make a timely objection. Davis had not offeredany such justification. The method objected to waslong-practiced and well-known, 2

1 and there was noevidence that petitioner was unaware of the useof the key man system before his trial. Secondly,Rehnquist could not see how the alleged consti-tutional violation could have prejudiced the pe-titioner.2 The same grand jury indicted Davis'two white accomplices,"3 the case had no racialovertones, and the government's case againstpetitioner was a strong one. The Court thus con-

edges the source of this "different standard" of waiver,it is clearly that which was enunciated in Johnson v.Zerbst, 304 U.S. 458, 464 (1938):

An intentional relinquishment or abandonment of aknown right or privilege.

The Supreme Court has stated that "the classicaldefinition of waiver enunciated in Johnson furnishes thecontrolling standard" for judicial discretion in denyinghabeas corpus relief. Fay v. Noia, 372 U.S. 391 (1963).

20 411 U.S. at 240.2 This reason was based upon the apparent analogy

with Shotwel. But the similarity between the cases issuperficial. The alleged illegalities in the jury system inShotwell were not as basic as the racial exclusion allegedby Davis. In Shotwel petitioners did not allege thatthey had been ignorant of their rights at the propertime for objection, but that they had been unaware ofcertain facts supporting their claim. In Shotwell peti-tioners were granted a hearing on their motion; inDavis the district court denied the motion without ahearing, ruling only on the petition, the records and theadditional briefs on waiver. In ShotweUdl the defendantswere corporate executives represented by retainedcounsel; Davis was indigent and represented by ap-pointed counsel.

2 Rehnquist asserted that ShotweUl approved con-sideration of prejudice to a petitioner in determiningwhether relief from the waiver provision was warranted.411 U.S. at 244. He concluded:

The presumption of prejudice which supports theexistence of the right is not inconsistent with aholding that actual prejudice must be shown inorder to obtain relief from a statutorily providedwaiver for failure to assert it in a timely manner.

411 U.S. at 245, (Rehnquist, J., citing Peters v. Kiff, 407US. 493 (1972)).

1 This allegedly shows that even if there were a viola-tion of Davis' constitutional rights, this violation wasnot prejudicial.

cluded that "cause" had not been shown to warrantrelief from the waiver provision.24

The Court also discussed a policy reason forstrict enforcement of Rule 12(b)(2). It argued thatif the courts allowed defendants to disregardlegislatively pronounced procedures, defendantswould be encouraged to bypass those procedure,for tactical advantages. A defendant, aware ofboth a valid constitutional objection and theproper procedure for raising it, might, nevertheless,withhold the objection, hoping that it might pro-vide grounds in a habeas corpus proceeding toupset a possible conviction. The Court claimedthat the costs to society in allowing such a de-fendant that choice were too great. It maintainedthat procedural rules like 12(b)(2) do not deprivedefendants of their right to raise constitutionalobjections, but merely require that they be raisedand adjudicated before the government incurs theexpense of a possible illegal trial.25

Mr. justice Marshall wrote the dissenting opin-ion in which Mr. Justice Douglas and Mr. JusticeBrennan concurred. The dissenters immediatelyasserted that in light of the purposes served byRule 12(b)(2) and the modern scop6 and purposesserved by habeas corpus relief,28 a prisoner claim-ing that his constitutional rights have been vio-lated, should be granted a hearing if he shows thathis failure to make a timely objection was not aneffective waiver.

Marshall rejected the majority's distinction ofKaufman. 7 That case involved Rule 41(e) of the

24411 U.S. at 244.26 Id. at 241.21 In Fay v. Noia, 372 U.S. 391 (1963), the Supreme

Court held that a state prisoner's failure to meet stateprocedural requirements for appealing his constitutionalobjection did not bar a federal habeas corpus hearing.Under the circumstances, Noia had not made an intel-ligent and understanding waiver to justify withholdingfederal habeas corpus relief. The Court, however,cautioned that an applicant who deliberately bypassedstate judicial remedies could be denied relief on thegrounds of an implied waiver. In Sanders v. UnitedStates, 373 U.S. 1 (1963), the Court considered theproblem of waiver in a federal prisoner's petition forhabeas corpus under § 2255. Under the circumstancesthe Court could not find a waiver. It held that a peti-tioner who alleges facts sufficient to support his claimfor relief must be granted a hearing on his motion, un-less the motions and the records of the case "con-clusively show that the claim is without merit." Re-garding strict adherence to procedural rules, the Courtsaid:

Conventional notions of finality of litigation haveno place where life or liberty is at stake and in-fringement of constitutional rights is alleged.

Id. at 8.27 See text accompanying note 15 supra.

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Federal Rules of Criminal Procedure, governingthe timeliness of constitutional objections to theuse of certain evidence.28 He believed that Rule41(e) like Rule 12(b)(2) required that certainmotions be made at specified times, and failure todo so may be excused for cause. The purpose ofRule 41(e) is similar to the purposes of Rule12(b)(2), and the absence of an explicit waiverprovion should not control the validity of a § 2255motion."

The dissenters did, on the other hand, distin-guish Shotwell. There, petitioners contended notthat they had been unaware of their right to beindicted by a representative grand jury, but thatthe facts supporting their objection had not cometo their attention until four years after their trial.The Court found, however, that these facts werewell-known, even "notorious," before petitioners'trial. Hence, due diligence on theirpartwould havemade petitioners aware of the facts at the propertime for raising the objection. Marshall agreedwith the Shoiwell Court that one who fails toexercise due diligence to discover evidence sup-porting a known claim, has waived his right tolater raise that claim.10 Here, however, Davis hadbeen represented by appointed counsel and healleged solely that he had not waived his right toobject. Davis, compared to Shotwell, presented amuch more serious situation, and Marshall be-lieved Davis should be granted a hearing for theopportunity to prove his claim.

The dissent pointed out that the majority didnot urge strong policy reasons for their holding.Mr. Justice Rehnquist gave only cursory attentionto one policy ground, preventing tactical evasionof procedures by defendants. Marshall did notfind this reason compelling. First, such tacticsneed not impose tremendous judicial costs uponsociety, as the majority opinion suggested. If, aftera trial was completed, a habeas corpus hearingdetermined that the array of the indicting grandjury was unconstitutional, it would only be neces-

28 See note 18 supra.20 Marshall said:

I had not thought that words were quite so magicalas that distinction makes them.

411 U.S. at 248 (Marshall, J., dissenting).30 Id. at 256.31 The dissent did not claim that Davis was unaware

of his right to be indicted by a kepresentative grandjury, but this is clearly the problem which they sus-pected. Although it may be proper to expect a defendantto be aware of common facts which might support aknown constitutional right, it probably is less accept-able to expect a defendant to be aware of all of his con-stitutional rights.

sary to convene a proper grand jury. This costwould be incurred even if the question were re-solved at a pre-trial hearing according to Rule12(b)(2). Then, if a proper grand jury neverthelessindicted the petitioner, a re-trial could be con-ducted largely upon the testimony of the firsttrial, and thus the costs minimized.n Secondly, aflexible application of Rule 12(b)(2) need notresult in the tactical abuse which the majorityfeared. If a hearing reveals that tactical advantageis the purpose of a petitioner's failure to timelyobject, then relief should be denied.3

The dissenting Justices believed that more im-portant policy considerations militate for a flexibleapplication of Rule 12(b)(2). An open system ofcollateral relief, especially habeas corpus, insuresa fairer criminal justice system, by providingperiodic checks against unconstitutional abuses.It assures that constitutional rights have a greaterchance of being protected. It probably makesprisoners more amenable to rehabilitation sincethey know that they have a fair opportunity toraise valid claims 4 Finally, and most importantly,broad collateral opportunities for remedying con-stitutional violations may not only be desirablebut in fact constitutionally mandated."5

The dissent concluded that although Rule12(b)(2) applied to Davis' motion, the petitionerwas entitled to a hearing to show te requisite"cause" to warrant relief from the waiver. Mar-shall's interpretation of "cause" included failureto make a timely objection because of ignoranceor misunderstanding of the procedural rule. John-son v. Zerbs$ 6 had declared that knowledge andunderstanding were necessary elements of a validwaiver. This "different standard" as the majoritycalled it, need not subvert the purposes of a pro-cedural rule like 12(b)(2). Marshall believed thatabsolutely no social interests are promoted byforeclosing judicial avenues of recourse to one whois ignorant of his rights.1

Davis may be less significant for its holding,than for the atmosphere of the Court revealed inthe dicta of the opinions. The holding was quitenarrow: under the circumstances of this case, pe-titioner failed to show "cause" to be relieved of the

2411 U. S. at 250 (Marshall, J., dissenting)."Id.34 Id. at 253.3'1d. at 254, n.10. (Marshall, J., citing Fay v. Noia,

372 U.S. 391, 406; and Sanders v. United States, 373U.S . 13 11-12.).36 304 U.S. 458 (1938).

411 U.S. at 254 (Marshall, J., dissenting).

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waiver provision as required by Rule 12(b)(2). Themajority held that the facts known to the districtcourt were sufficient to conclude that "cause" wasnot present. The dissent believed that despite theapparent facts, Davis, having alleged deprivationof a constitutional right and having claimed thathe had not waived his right to object to the grandjury array, should have been granted a hearing atwhich he might have shown "cause." 38

The opinions may, however, indicate a newmajority attitude toward waiver of constitutionalrights. Justice Rehnquist suggested that waiversmay have two bases, legislative or judicial. Whenthe legislature establishes a waiver standard suchas Rule 12(b)(2), the Courts may not apply an-other standard.39 Justice Marshall, on the otherhand, discussed the judicial standard of waiver as

8 Id. at 255." See text accompanying note 20 supra.

Murch v. Mottram, 409 U.S. 41 (1972)

In Murch v. Moltram,' the Supreme Court ruledthat a subjective test could not be used to deter-mine if a petitioner for a writ of habeas corpusbad knowingly by-passed state appellate remedies.

After being convicted of larceny and as a habit-ual offender,2 Mottram was paroled in 1963. Pa-role, however, was revoked two years later. Atthe hearing on parole revocation, the state judgewarned Mottram and his retained counsel thatunder Maine law,3 Mottram would irrevocablywaive his right to appeal any issues not raised atthat hearing. After consulting with his client,Mottram's counsel chose to argue only that therevocation of parole was invalid. No issues con-cerning the original conviction were raised.

When the attack on the parole revocation failed, 4

Mottram petitioned the federal district court for awrit of habeas corpus on an issue never beforeraised-that the jury in his original trial was se-

1409 U.S. 41 (1972).2 Mottram failed in an appeal based on issues other

than the one raised eventually in his petition for a writof habeas corpus. State v. Mottram, 158 Me. 325,184 A.2d 225 (1962).

aME. REv. STAT. Aim. ch. 14, § 5507 (1963):All grounds for relief claimed by a petitioner underthis remedy must be raised by a petitioner in hisoriginal or amended petition, and any grounds notso raised are waived ....' Mottram v. State, 232 A.2d 809 (Me. 1967).

a minimum test which any legislative waiver pro-vision must meet at least when it is a constitu-tional right that has allegedly been waived. 40

However, Davis was not determined on this issue,and it is unwise to attempt to predict what thesesame justices might decide if the issue of a consti-tutional minimum standard of waiver were moredirectly and deliberately presented to the Court.

The most certain effect of Davis is that in thefuture, prisoners who wish to raise collateral ob-jections should be well prepared to show the courtsthat dubious past conduct did not constitute awaiver of the right to raise the objection. Davisdoes not imply that the courthouse doors arebeing closed to meritorious petitions for habeascorpus, but rather, that petitioners (and. counsel)will have to carry better prepared credentials toget through those doors.

40 See text accompanying note 35 supra.

lected by unconstitutional means. The districtcourt determined that Mottram had been specifi-cally warned by the state judge that he was waivingfuture appeals and that Mottram, a man of atleast average intelligence, conferred with a com-petent lawyer before making his decision. BecauseMottram was "fully aware of these consequences,"the district court denied his petition for a writ ofhabeas corpus.5

In a per curian decision, the Supreme Courtheld that the petition for habeas corpus had beenproperly denied. The Court based its decision onFay v. Noia,6 which held that

If a habeas applicant, after consultation with com-petent counsel or otherwise, understandingly andknowingly forewent the privilege of seeking tovindicate his federal claims in the state courts,whether for strategic, tactical, or any other reasonsthat can fairly be described as the deliberate by-passing of state procedures, then it is open to thefederal court on habeas to deny him all relief if thestate courts refused to entertain his federal claimson the meritsY5 Mottram v. Murch, 330 F. Supp. 51, 57 (S.D. Me.

1971).6372 U.S. 391 (1963). Noia is one of three cases which

greatly broadened the availability of habeas corpus.See also Townsend v. Sain, 372 U.S. 293 (1963); Sandersv. United States, 373 U.S. 1 (1963).

7372 U.S. at 439. Noia incorporated the previous

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The Supreme Court accepted the district court'sfindings that, based on objective evidence, Mot-tram had knowingly by-passed the .appeal proce-dures of the State of Maine. According to Noia,therefore, Mottram was not entitled to federal.relief through a writ of habeas corpus.

The Court refused to consider the subjectiveevidence provided by Mottram's self-serving testi-mony before the district court in which he claimedto have been unaware that he was by-passingstate procedures. Because Mottram's counsel haddied before the hearing, it was impossible to cor-roborate Mottram's testimony or to discover whyhis counsel had not raised all possible issues ofappeal when challenged by the state judge.8 TheCourt reasoned that to allow the consideration ofsuch subjective evidence would make state en-forcement of post-conviction procedures impos-sible.' A state prisoner could purposefully ignorestate appeals procedure and petition immediatelyfor a writ of habeas corpus in federal court, claim-ing that he had not understood he had waived hisright to further appeals. To safeguard the integ-rity of state post-conviction procedures, the Su-preme Court endorsed the objective findings of thedistrict court.

The Court also noted that the Maine statuteserved a legitimate state interest by avoiding afragmented appeals procedure whereby prisonerscontinuously could write new appeals after theprevious appeals failed. In a past case, the SupremeCourt had decided that a prisoner's right to federalrelief cannot be waived by by-passing state proce-dures which are frivolous or harassing. °

standard on waiver that denial of habeas corpus waspossible only by "an intentional relinquishment orabandonment of a known right or privilege." Johnsonv. Zerbst, 304 U.S. 458, 464 (1937).

8 In some waiver cases, an issue absent here arisesover the relationship between a client and his lawyer.See White, Federal Habeas Corpus: The Impact of theFailure to Assert a Constitutional Claim at Trial, 58VA. L. REv. 67 (1972).

9 409 U.S. at 46:If a subjective determination not to waive or toabandon a claim were sufficient to preclude afinding of a deliberate by-pass of orderly state pro-cedures, constitutionally valid procedural require-ments, such as those contained in the Maine statuterequiring the joining of all bases for attack in oneproceeding, would be utterly meaningless.10 Henry v. Mississippi, 379 U.S. 443, 447 (1965).

Rather than writing a separate opinion, the dis-sent in Mottram relied entirely on the holding ofthe court of appealsu which had reversed the dis-trict court. The Court of Appeals for the FirstCircuit gave credence to Mottram's subjectivetestimony that he did not realize he was waivingfuture appeals. The court also gave weight to thedisagreement between Mottram's lawyer and thestate judge over the effect of the Maine post-conviction statute. If Mottram's lawyer was un-sure of Maine's law on waiver, then Mottramcould not have knowingly by-passed state appealsprocedure.

The effect of Mottram is to quash the attemptof the First Circuit to introduce a subjective testinto the well-established rule that relief by habeascorpus can be denied to a prisoner who consciouslycircumvents state appeal proceduresj2 Mottran;can also be viewed as part of a recent policy onthe part of the Supreme Court to stop the trendtoward the broadening of habeas corpus as aremedy for defects in state criminal procedure.13

In the recent case of Davis v. United States,34 themajority limited the rights of federal prisoners towrits of habeas corpus. The Court strictly inter-preted Rule 12(b)(2) of the Federal Rules ofCriminal Procedure to the effect that a failure toraise before trial any errors in the indictmentprocess permanently waives the right to seek reliefon the basis of those errors. Both Mottram andDavis serve to insure that "jailhouse lawyers" donot barrage the federal courts with one appealafter another. The fact that the dissent in Mott-ram was composed of the same justices as inDavis5 is further evidence that the progressivegrowth of habeas corpus as the ultimate protectionof the constitutional rights of state prisoners hasended.

1 Mottranm v. Murch, 458 F.2d 626 (Ist Cir. 1972).12 Mottram is more lenient than the Third Circuit

which held that a state prisoner lost his right to petitionfor habeas corpus even when he had not been specificallywarned by the state judge. United States ex rel. Bolog-nese v. Brierly, 412 F.2d 193 (3d Cir. 1969).

"See LaVallee v. Delle Rose, 410 U.S. 690 (1973).14 411 U.S. 233 (1973).15 Justices Marshall, Brennan, and Douglas.

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LaVallee v. Delle Rose, 410 U.S. 690 (1973)

In LaVallee v. Dele Rose,' the Supreme Courtdealt with the question of when a district court mayhold an evidentiary hearing upon a petition for awrit of habeas corpus to determine if a state courtproperly applied constitutional standards in mak-ing a factual determination.

The respondent was convicted in 1963 of themurder of his wife. Two confessions made byDelle Rose were admitted in evidence and con-sidered by the jury. On appeal, the trial court wasdirected to hold a hearing on the question ofwhether the confessions were voluntarily made.2

Testifying at the special hearing, Delle Rosealleged that he was interrogated without rest allnight, that he was not warned of his constitutionalrights, that he was threatened with physical abuseand that he was subjected to macabre indignities.'Delle Rose spoke little English and claimed tohave been suffering from a back injury during theinterrogation. The state's evidence contradictedmost of this testimony. The trial court ruled thatDelle Rose's confession was voluntary and theNew York Court of Appeals confirmed his con-viction.

4

Respondent Delle Rose then petitioned theUnited States district court for a writ of habeascorpus,5 alleging in his petition that his federalconstitutional rights had been violated by the ad-mission in evidence of an involuntary confession.The district court ruled that an evidentiary hear-ing was necessary because it was unclear from therecord whether the trial court had erred in apply-ing constitutional law to the issue of voluntari-ness.

6

1410 U.S. 690 (1973).2 Subsequent to the trial, the Supreme Court ruled in

Jackson v. Denno, 378 U.S. 368 (1964), that the judicialbody considering the question of guilt or innocencemay not also decide whether a confession was volun-tary. The New York procedural response to this rulingwas People v. Huntley, 15 N.Y.2d 72,225 N.Y.S.2d 838,204 N.E.2d 179 (1965). In accordance with this newdevelopment, Delle Rose was given a special hearing todetermine voluntariness.

3The respondent made his first confession afterviewing his wife's dead body at the morgue. Respondentwas also forced to stick his hand through a hole in a carseat which was still wet with his wife's blood.

People v. Delle Rose, 27 N.Y.2d 882, 317 N.Y.S.2d358 265 N.E.2d 770 (1970), cert. denied, 402 U.S. 913(191).

6 United States ex rel. Delle Rose v. LaVallee, 342 F.Supp. 567 (S.D.N.Y. 1972).

6 At the conclusion of the evidentiary hearing, thedistrict court found that both confessions were in-voluntary. Id. at 574. The court of appeals affirmed

In a per curian decision, the Supreme Courtreversed, holding that where the allegations ofcoercion are blatant constitutional violations, thefact that the state court declared the confessionsvoluntary means that the court disbelieved thedefendant's claims and properly applied constitu-tional standards, even though these standards werenot explicitly discussed. Since the constitutionalrights of the respondent were implicitly consideredby the state court, the district court need nothold an evidentiary hearing.

In deciding whether a confession is voluntary, astate court must combine questions of fact andlaw. The court must first sort out the allegationsmade to determine exactly what pressures, if any,were applied to the suspect in order to make himconfess. After deciding upon the facts, the courtmust then consider the facts in light of prevailingconstitutional law to determine if the confessionwas voluntary in a constitutional sense.7 In theinstant case the state court concluded that theconfessions were voluntary,' but the court failedto explain what constitutional standards it appliedin reaching this conclusion. Thus the court's deter-mination of the voluntary nature of the confessioncould have concealed a mistaken application ofconstitutional law.

The Supreme Court's decision in Dele Roseinterpreted Townsend v. Sain,9 a Warren Courtdecision which established guidelines for districtcourts to follow in determining when evidentiaryhearings need be held.'0 The Court reasoned that

both the need for an evidentiary hearing and the findingof fact. United States ex rel. Delle Rose v. LaVallee,468 F.2d 1288 (2d Cir. 1972).7 Because Miranda v.- Arizona, 384 U.S. 436 (1966),was not applied retroactively, previous federal case lawgoverns the question of voluntariness in Ddle Rose.There is no single guideline on the subject, but rather ahost of cases setting forth criteria in specific types ofcoercion. See, e.g., Blackburn v. Alabama, 361 U.S. 199(1960) (irrational mental state of the suspect); Spanov. New York, 360 U.S. 315 (1959) (deception); Ashcroftv. Tennessee, 322 U.S. 143 (1944) (long interrogations);Brown v. Mississippi, 297 U.S. 278 (1936) (physicalabuse).

8 410 U.S. at 691:On all the evidence, both at the trial and at thehearing, and after considering the totality of thecircumstances, including the omissionto..war.de-fendant of his right to counsel and his right againstself-incrimination, I find and decide that the respec-tive confessions to the police and district attorneywere, in all respects, voluntary and legally admissi-ble in evidence at the trial ....9 372 U.S. 293 (1963).10 Id. at 313:

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according to Townsend, the state court should bepresumed to have correctly applied constitutionalstandards in the absence of any evidence to thecontrary." More specifically, the Court explainedin Townsend that:

[1]f third-degree methods of obtaining a confessionare alleged and the state court refused to excludethe confession from evidence, the district judgemay assume that the state trier found the factsagainst the petitioner, the law being, of course,that third-degree methods necessarily produce acoerced confession."

The Supreme Court felt that the instant casewas one in which it should be presumed that thestate court had properly applied federal consti-tutional standards, even though they were notarticulated. The Court reasoned that because thecoercion alleged by Delle Rose was so obviouslyunconstitutional, in order to conclude that theconfessions were voluntary the state court musthave thought that his allegations were false. Hadthe state court thought the allegations true, itcertainly would have declared the confessions in-voluntary. Therefore, the fact that constitutionalstandards can be easily applied to the facts in theinstant case allows the presumption that the statecourt properly applied these standards, thus ob-viating the need for an evidentiary hearing by thedistrict court.

The point of disagreement made by Mr. JusticeMarshall, writing for the dissent,13 is that the factsin this case are not comparable to the blatant case

We hold that a federal court must grant an evi-dentiary hearing to a habeas applicant under thefollowing circumstances: If (1) the merits of thefactual dispute were not resolved in the statehearing; (2) the state factual determination is notfairly supported by the record as a whole; (3) thefact-finding procedure employed by the state courtwas not adequate to afford a full and fair hearing;(4) there is a substantial allegation of newly dis-covered evidence; (5) the material facts were notadequately developed at the state-courthearing; or (6) for any reason it appears that thestate trier of fact did not afford the habeas appli-cant a full and fair fact hearing.

For a comparison between the Townsend guidelines andtheir codification in 28 U.S.C. § 2254(d) (1966), seeNote, Developments in the Law-Federal Habeas Corpus,83 LAav. L. Rzv. 1038, 1141 (1970).

11372 U.S. at 314-315:[W]e think the district judge may, in the ordinarycase in which there has been no articulation, prop-erly assume that the state trier of fact applied cor-rect standards of federal law to the facts, in theabsence of evidence... that there is reason to sus-pect that an incorrect standard was in fact applied.n Id. at 315.' Three of the dissenters in Ddle Rose served on the

Court that decided Townsend (justices Douglas, Bren-

of coercive third-degree tactics referred to inTownsend. Rather than being a case in which ob-viously unconstitutional pressures are alleged,Delle Rose involves a complex factual situationwhich raises both subtle and difficult constitutionalquestions. Instead of claiming common third-degree interrogation tactics, the allegations ofDelle Rose show a weakened physical and mentalcondition, threats of physical abuse, and gruesomepsychological pressures. The dissent argued vigor-ously that the decision in Townsend would beperverted if the district court accepted the statecourt's factual determination in such a complexcase when the state court had failed to explain itsreasoning as to the difficult constitutional ques-tions involved. 14 The state court might have be-lieved some part of the respondent's- story, yethave incorrectly thought that the type of coercioninvolved was not unconstitutional. 5 To insurethat the state prisoner is not being held in viola-tion of his constitutional rights, the dissent con-cluded that the district court acted properly inholding an evidentiary hearing to determinevoluntariness.

The effect of Delle Rose is to check the trendtoward broadening the rights of state prisoners infederal habeas corpus suits. Since a series of de-cisions on habeas corpus were handed down by theWarren Court in 1963,1 the number of habeascorpus petitions has soared. 7 One purpose of 28U.S.C. § 2254 was to decrease the number of hear-ings held under habeas petitions by encouragingstate courts to elaborate their legal reasoning be-hind factual determinations involving constitu-tional rights. 8 Whether Delle Rose will serve toreduce the number of hearings granted is unclear.

nan, and Stewart). Of the majority in Delle Rose, onlyMr. Justice White was involved in Townsend.

"4 Townsend also contains language supporting thedissent's view that the state court's presumption ofcorrectness is limited:

The federal court cannot exclude the possibilitythat the trial judge believed facts which showed adeprivation of constitutional rights and yet (er-roneously) concluded that relief should be denied.Under these circumstances it is impossible for thefederal court to reconstruct the facts, and a hearingmust be held.

372 U.S. at 315-16." See note 7 supra.'6 Townsend v. Sain, supra note 9; Sanders v. United

States, 373 U.S. 1 (1963); Fay v. Noia, 372 U.S. 391(1963).

17 The number of habeas corpus petitions from stateprisoners has increased from 2,106 in 1963 to 9,063 in1970. 1970 AzUAI. REPORTO THE DRxcRYoia or TnEADamTSRAnVE OFFICE oF TIM UNITED STATESCouRTs 121.

18 S. REP. 1797, 89th Cong., 2d Sess. (1966).

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However, in cases where complex fact situationsraise subtle constitutional questions which arenot articulated by the state courts, district courtswill probably be more likely to accept state courtdeterminations without holding an evidentiary

Speedy Trial:Strunk v. United States, 93 S. Ct. 2260 (1973)

In Strunk v. United States,' the Supreme Courtfirmly established that the only constitutionallypermissible remedy for a violation of the sixthamendment right to a speedy trial is to set asidethe conviction and to dismiss the charges.

The petitioner was convicted on federal chargesand sentenced to five years in prison after his pre-trial motion to dismiss the charges for a violationof his right to a speedy trial was denied. In revers-ing the district court's holding on this issue, thecourt of appeals held that the ten month delay intrying Strunk was not justified by the claim thatthe government lacked sufficient personnel to pro-ceed more expeditiously, or the fact that the peti-tioner was already in jail on other charges andhad confessed his guilt to the current charges. Thecourt also concluded that the delay could not besolely attributed to the petitioner because henotified the government that he intended to pro-ceed under Rule 20.2 In determining what remedyshould be applied in this case, the court of appealsnoted that the traditional remedy for a sixthamendment violation of the right to a speedytrial was dismissal of the charges, but concludedthat this result was too severe since the petitioner'sguilt was not questioned. Instead the court electedto reduce the petitioner's sentence by the amountof time occasioned by the illegal delay.3 In so hold-

' 93 S. Ct. 2260 (1973).2 FED. R. Cxrs. P. 20:(a) Indictment or Information Pending. A defend-ant arrested or held in a district other than that inwhich the indictment or information is pendingagainst him may state in writing that he wishes toplead guilty or nolo contendere, to waive trial in thedistrict in which the indictment or information ispending and to consent to disposition of the case inthe district in which he was arrested or is held ....3 United States v. Strunk, 467 F.2d 969, 973 (7th

Cir. 1972). The court reasoned as follows:The remedy for a violation of this constitutional

right has traditionally been the dismissal of theindictment or the vacation of the sentence. Perhapsthe severity of that remedy has caused courts to beextremely hesitant in finding a failure to afford a

hearing. Consequently, another result of DelleRose may be increased laxness by state courts inexplicating their legal analysis since the likelihoodof de .novo hearings on the federal level has beendecreased.

ing, the appellate court apparently relied onBarker v. Wingo,4 which it characterized as estab-lishing flexible standards based on practical con-siderations in analyzing violations of the right toa speedy trial.

On certiorari to the Supreme Court, the govern-ment did not appeal the finding that petitioner wasdeprived of a speedy trial under the sixth amend-ment. Thus the only issue confronting the Courtwas whether or not the remedy fashioned by thecourt of appeals was adequate. In discussing theappellate court's reliance on Barker, Chief justiceBurger, writing for a unanimous court in Strunk,noted that the application of flexible standardsdiscussed in Barker related to the question ofwhether the right had in fact been infringfd, notto the issue of what remedy should be appliedonce a violation was found. 5 Furthermore, Mr.Justice Powell in Barker expressly concluded thata violation of the right to a speedy trial could onlyhave one result, the dismissal of the indictment.6

speedy trial. Be that as it may, we know of no rea-son why less drastic relief may not be granted inappropriate cases. Here no question is raised aboutthe sufficiency of the evidence showing defendant'sguilt, and, as we have said, he makes no claim ofhaving been prejudiced in presenting his defense.In these circumstances, the vacation of the sentenceand a dismissal of the indictment would seem inap-propriate. Rather, we think the proper remedy is toremand the case to the district court with directionto enter an order instructing the Attorney Generalto credit the defendant with the period of timeelapsing between the return of the indictment andthe date of the arraignment.4 407 U.S. 514 (1972).593 S. Ct. at 2263.6 407 U.S. at 522 (footnote omitted):The amorphous quality of the right also leads to theunsatisfactorily severe remedy of dismissal of theindictment when the right has been deprived. Thisis indeed a serious consequence because it meansthat a defendant who may be guilty of a seriouscrime will go free, without having been tried. Sucha remedy is more serious than an exclusionary ruleor a reversal for a new trial, but it is the only pos-sible remedy.

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The rationale for the imposition of such a severeremedy is rooted in the nature of the right. Thepurpose of the sixth amendment guarantee to aspeedy trial is to avoid subjecting an accused tothe emotional stress of facing trial for a long periodof time, the loss of family and work ties duringthis period if he is incarcerated, or in the case ofan accused already serving a sentence, to preservethe opportunity of serving a concurrent sentenceand his prospects for rehabilitation Thus, asChief Justice Burger noted, the denial of the rightto a speedy trial, unlike other sixth amendmentguarantees such as the right to a public trial, toan impartial jury or to notice of charges, cannotbe cured by a subsequent trial.8

In virtually all prior cases where a deprivationof the right to a speedy trial was found, the remedyapplied was dismissal of the charges or vacationof the sentence. 9 Thus, Strunk appears to addlittle to the law in this area. However, its sig-nificance may lie in clarifying what was largelyassumed, since no previous case has held that dis-missal is the only possible remedy. This clarifica-tion takes on added significance in light of thecongested state of the courts today and the seriousbacklog of criminal cases,10, and the consequentincrease in the number of defendants pressing theissue of deprivation of the right to a speedy trial.It has been suggested by commentators,"2 and thetemptation to the courts has no doubt been great,that alternative remedies to dismissal could beapplied to cope with the problem of increasinglydelayed criminal trials without sacrificing society'sinterest in seeing that those accused of crime aretried. However, Strunk now makes it clear that

7 93 S. Ct. at 2263.8Id.' See, e.g., Dickey v. Florida, 398 U.S. 30 (1970);

Smith v. Hooey, 393 U.S. 374 (1969); Arrant v. Wain-wright, 468 F.2d 677 (5th Cir. 1972); United States v.Rucker, 464 F.2d 823 (D.C. Cir. 1972); United States v.Dunn, 459 F.2d 1115 (D.C. Cir. 1972); Ward v. UnitedStates, 346 F.2d 423 (D.C. Cir. 1965); Williams v.United States, 250 F.2d 19 (D.C. Cir. 1957).

10 As of June 30, 1970, more than 6,000 federal dis-trict court criminal cases (30o of all pending cases) hadbeen awaiting trial for one year or more. JUDIcILCONFERENCE OF THE UNITED STATES, DnECToR oF THEAinm=RAVE Orricx or THE CouRTs, ANNUALREPORT 1970, at 155-57 (1971).

n A review of the reporters shows that the numberoffederal cases alone where a defendant has raised theissue of a deprivation of the right to a speedy trial hassubstantially more than doubled in the past ten yearsover the volume in the previous twenty.

1 Comment, The Right to a Speedy Criminal Trial, 57CoLum. L. REV. 846, 866-67 (1957); Note, 64 YALE L.J. 1208, 1211 n.20 (1955).

no such practical considerations can bear on thepreservation of this constitutional right. throughthe remedy of dismissal.

Another factor which has in the past left thequestion of a remedy in some doubt is the factthat many states have statutory requirements fora speedy trial,"3 which do not necessarily incor-porate constitutional standards and therefore mayapply alternate remedies without running afoul ofthe sixth amendment. In addition, many of thefederal speedy trial cases have been decided on amotion to dismiss under Rule 48(b)" for want ofprosecution, a standard which, again, does notnecessarily equate with the deprivation, of theright to a speedy trial under the sixth amendment.L'Even where statutory dismissal was founded on asixth amendment violation, the fact that theremedy was statutorily defined meant that thesecases gave no real guidance as to what remedywas constitutionally required. 6 Thus, until Strunk,it has never been entirely clear that the constitu-tional right itself requires dismissal.

The dear implication of the Supreme Court'sreasoning in Strunk is that the defendant cannotbe retried on remand since the charges must bedismissed. However, the possibility that, the gov-ernment could re-indict the defendant if the stat-ute of limitations has not expired still may exist.The general rule is that jeopardy does not attachafter a reversal for legal error,'7 including error of

"See, e.g., CAL. PENAL CODE- § 1382 (West 1970);ILL. REv. STAT. ch. 38, § 103-05 (1970); IowA ConEANN. § 795.2 (Supp. 1972); NEv. REv. STAT. § 178.556(1969); UTAH CODE ANN. § 77-51-6 (1953); WAsH. REv.CODE ANN. § 10.46.010 (1961); Wis. STAT. ANN. §971.10 (1971).

1" FED. R. Cam. P. 48(b):Rule 48. Dismissal

(b) By Court. If there is unnecessary delay inpresenting the charge to a grand jury or in filing aninformation against a defendant who has beenheld to answer to the district court, or if there is un-necessary delay in bringing a defendant to trial, thecourt may dismiss the indictment, information orcomplaint."5Mann v. United States, 304 F.2d 394 (D.C. Cir.

1962) (case dismissed for want of prosecutionpendinggovernment search for missing evidence, could be re-initiated without violating defendant's constitutionalright to a speedy trial).

"6E.g., United States v. Perry, 353 F. Supp. 1235(D.D.C. 1973); United States v. Chase, 135 F. Supp.230 (N.D. Ill. 1955); United States v. Provoo, 17 F.R.D.183 (D. Md. 1955).

1' United States v. Tateo, 377 U.S. 463, 473-74(1964); United States v. Ball, 163 U.S. 662, 671-72(1896).

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constitutional dimension. However, the real issuehere is not whether jeopardy has attached, butwhether re-indictment and re-trial would be con-sistent with securing the right of the accused to aspeedy trial.

It has been held that no denial of the right occursdue to delay involved in 're-trying a defendantafter a reversal of his conviction for error.18 And,in United States v. Ewell,19 the Supreme Court heldthat no deprivation of the right to a speedy trialoccurred where a defendant's conviction was setaside because of a defective indictment, and thedefendant was subsequently re-indicted within theapplicable period of the statute. However, thiscase is distinguishable from the situation in Strunkwhere the original error requiring dismissal was thedenial of a speedy trial. Even though the totaldelay could be the same in both cases, in one itwould be the result of an orderly judicial processand in the other the result of the accused havingbeen denied a constitutional right to a prompttrial.

The American Bar Association has taken theposition that dismissal following a violation of theright to a speedy trial should operate as an abso-lute discharge, 20 and the rationale for this resulthas been aptly stated by the Court of Appealsfor the District of Columbia in Mann v. UnitedStates:

We accept appellant's premise that the constitu-tional right to a speedy trial is properly enforcedby dismissal of the charge when there has beenprejudicial delay in bring (sic) the case to trial.... We also agree that a dismissal based on a find-ing that the constitutional right to a speedy trialhas been denied bars all further prosecution of theaccused for the same offense. While there appearsto be no express articulation of this rule in thereported decisions, it is the unspoken premise ofall the cases involving the Speedy Trial Clause.It is, moreover, a necessary rule if the Constitu-tional Guarantee is not to be washed away in the18 United States v. Ewell, 383 U.S. 116, 124 (1966);

United States v. Mills, 434 F.2d 266 (8th Cir. 1970),cert. denied, 401 U.S. 925 (1971).

"1383 U.S. at 122."ABA PRojEcT oN Mnmmm STANDARDS FOR

CRUIuu. JUsTIcE, STANaRDs RELATING TO SPEDYTRI, AIPROVED DRAFT, 1968, at 1:

4.1 Absolute discharge. If a defendant is notbrought to trial before the running of the time fortrial, as extended by excluded periods, the conse-quence should be absolute discharge. Such dis-charge should forever bar prosecution for the of-fense charged and for any other offenses requiredto be joined with that offense.

dirty water of the first prosecution, leaving thegovernment free to begin anew with clean hands.2'

Again, while the Court in Strunk does not ex-pressly bar any future prosecution, the Court'sconcern over the seriousness of the remedy of dis-missal and its observation that dismissal means inpractice that a guilty defendant may go untried, 22

suggests that this result was assumed.The consequence of Strunk will be to focus

attention on the criteria for assessing whether ornot a defendant has been deprived of the right toa speedy trial. The Supreme Court, in Barker v.Wingo,2" made an attempt to set out standardsfor making this judgment through the use of abalancing test, setting off society's interestsagainst harm to the accused .2 But much criticalcomment has been lodged against this test whichis largely subjective and difficult to apply.2 Boththe limitations of the Barker test and Mr. Chiefjustice Burger's apparent dissatisfaction with thegovernment's failure to appeal the issue of whetherthe petitioner was denied a speedy trial in Strunk,2

may well suggest that the nature of the right willreceive further definition in the foreseeable future.

21304 F.2d 394, 396-97 (D.C. Cir. 1962) (footnotesomitted).

22 93 S. Ct. at 2263.407 U.S. 514 (1972).

24 Id. at 529-30 (footnotes omitted):We, therefore, reject both of the inflexible ap-proaches-the fixed-time period because it goesfurther than the Constitution requires; the de-mand-waiver rule because it is insensitive to a rightwhich we have deemed fundamental. The approachwe accept is a balancing test, in which the conductof both the prosecution and the defendant areweighed.

A balancing test necessarily compels courts toapproach speedy trial cases on an ad hoc basis. Wecan do little more than identify some of the factorswhich courts should assess in determining whethera particular defendant has been deprived of his right.Though some might express them in different ways,we identify four such factors: Length of delay, thereason for the delay, the defendant's assertion ofhis right, and prejudice to the defendant.2" See, e.g., Uviller, Barker v. Wingo: Speedy Trial

gets a Fast Shuffle, 72 Cowum. L. Rxv. 1376 (1972); TheSupreme Court, 1971 Term, 86 HAv. L. REv. 164 (1972);Comment, Constitutional Law-Standards for the Rightto Speedy Trial, 51 N.C.L. REv. 310 (1972); Comment,Criminal Procedure-The Right to Speedy Trial, 40TENN. L. Rv. 104 (1972); Comment, ConstitutionalLaw-Right to Speedy Trial, 26 VA~N. L. Rv. 171(1973).

2" Mr. Chief Justice Burger was not entirely contentto limit his consideration to the question of the appro-priate remedy, and devoted part I of his opinion toreview the facts involved in the delay. He notes that:

[It seems clear that petitioner was responsible fora large part of the 10-month delay which occurredand that petitioner neither showed nor claimed thatthe preparation of his defense was prejudiced byreason of the delay. 93 S. Ct. at 2262.

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Double Jeopardy:Illinois v. Somerville, 410 U.S. 458 (1973)

In Illinois v. Somerville' the United States Su-preme Court further explained the permissible cir-cumstances under which a trial judge may declarea mistrial after impaneling a jury, without barringthe retrial of the defendant on grounds of doublejeopardy. The defendant was brought to trial un-der an indictment charging him with theft. Afterthe jury was impaneled, but before any evidencewas presented, the prosecutor advised the courtthat the indictment was fatally deficient becauseit failed to allege that the defendant intended todeprive the owner of his property as required byIllinois law.2 Since the defect could not be cured byamendment and could be asserted on appeal tooverturn a final judgment of conviction, the trialjudge declared a mistrial over the defendant'sobjection.' After the grand jury returned a secondindictment alleging the requisite intent, the de-fendant was retried and convicted, and his convic-tion was upheld in the Illinois court of appeals.4

The defendant then sought federal writ of habeascorpus, alleging that his second trial violated thedouble jeopardy clause of the fifth and fourteenthamendments. 5 The Seventh Circuit affirmed thedistrict court's denial of habeas corpus,' but theUnited States Supreme Court remanded the casefor further consideration in light of two of its recentdecisions interpreting the double jeopardy clauseY

1410 U.S. 458 (1973).2ILL. REv. STAT. ch. 38, § 16-1(d) (1) (1971).3 See IL. CoNsT. art. II, § 8 (1870), which is now art.

1, § 7. ILL. CoNsT. art. I, § 7 (1970). This section pro-vides in part that no person shall be held to answer fora criminal offense unless indicted by a grand jury, ex-cept in cases in which the punishment is by fine or im-prisonment other than in the penitentiary. The Illinoisstatutes further provide that only formal defects inindictments may be cured by amendment. See ILL. R v.STAT. ch. 38, § 111-5 (1971). Since the defect here af-fected a substantive part of the charge against thedefendant, the only way to cure it was to have thegrand jury reindict the defendant.

4 People v. Somerville, 88 Ill. App. 2d 212,232 N.E.2d115 (1967).

IU.S. CoNsT. amend. V, which provides in part:"... nor shall any person be twice put in jeopardy oflife or limb .... " The Supreme Court made the fifthamendment applicable to the states through the four-teenth amendment in Benton v. Maryland, 395 U.S.784 (1969). Most states have similar clauses withintheir constitutions. See SIGLER, DoUBLE JEoPAdny33-34 (1969). The origin of the constitutional protec-tion against double jeopardy is found in the commonlaw pleas of autrefois acquit and autrefois convict. SeeComment, Double Jeopardy and the Necessity Rule, 14U. PIr. L. REv. 583 (1953).

6 429 F.2d 1335 (7th Cir. 1970).See United States v. Jorn, 400 U.S. 470 (1970);

On remand, the Seventh Circuit decided thathabeas corpus should have been granted on thegrounds that the trial judge had improperly termi-nated the first trial8 In a five-to-four decision, theSupreme Court reversed the court of appeals, andheld that under the circumstances of this case thestate could retry the defendant without violatingthe prohibition against double jeopardy.9

Writing for the majority, Mr. Justice Rehnquistargued that the trial judge had not abused his dis-cretion in terminating the first trial. He concludedthat the judge had properly applied the test of"manifest necessity," 10 which the Court had previ-ously established as the standard for determiningthe circumstances under which a trial judge candeclare a mistrial once jeopardy has attached,"

Downum v. United States, 372 U.S. 734 (1963). BothDownum and Jorn upheld a claim of double jeopardyafter the state attempted to retry the defendant fol-lowing the declaration of a mistrial. See notes 16-17infra.

8 447 F.2d 733 (7th Cir. 1971).9 410 U.S. 458, 471 (1973).10 That test was first enunciated by Justice Story in

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580(1824), in which the Supreme Court held that thefailure of the jury to agree on a verdict of either ac-quittal or conviction did not bar the retrial of the de-fendant:

We think, that in all cases of this nature, the lawhas invested Courts of justice with the authority todischarge a jury from giving any verdict, wheneverin their opinion, taking all the circumstances intoconsideration, there is a manifest necessity for theact, or the ends of public justice would otherwise bedefeated. They are to exercise a sound discretionon the subject; and it is impossible to define all thecircumstances which would render it proper to in-terfere. To be sure, the power ought to be used withthe greatest caution under urgent circumstances,and for very plain and obvious cases; and, in capitalcases especially, Courts should be extremely carefulhow they interfere with any of the chances of life infavor of the prisoner. But, after all, they have theright to order discharge; and the security which thepublic have for the faithful, sound and con-scientious exercise of this discretion rests in thiscase as in other cases, upon the responsibility ofthe Judges, under their oaths of office.

Id. at 580.1 The Supreme Court has held that for the purposes

of the double jeopardy clause, jeopardy attaches whena criminal trial commences before a judge or jury.Green v. United States, 355 U.S. 184, 188 (1957);Wade v. Hunter, 336 U.S. 684, 688 (1949). The Courthas subsequently assumed that this takes place whenthe jury has been selected and sworn. See Downum v.United States, 372 U.S. 734 (1963).

The Illinois courts argued that jeopardy had not at-tached in this case because the defendant was broughtto trial under an invalid indictment. People v. Somer-ville, 88 I1. App. 2d 212, 216-17, 232 N.E.2d 115, 117

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without barring the retrial of the defendant ongrounds of double jeopardy.2 According to Mr.Justice Rehnquist, under the "manifest necessity"test, the trial judge must balance the interests ofthe state in seeking public justice against the policyconsiderations underlying the double jeopardyclause in determining whether it is permissible todeclare a mistrial:"3

The determination by the trial court to abort acriminal proceeding where jeopardy has attached isnot one to be lightly undertaken, since the inter-est of the defendant in having his fate determinedby the jury first impanelled is itself a weighty one... Nor will the lack of demonstrable additionalprejudice preclude the defendant's invocation of

(1967). This argument was rejected by the SeventhCircuit which held that the time when jeopardy at-taches must be determined by the federal standard.Somerville v. Illinois, 447 F.2d 733, 735 (7th Cir. 1971).See also Benton v. Maryland, 395 U.S. 784 (1969);United States v. Ball, 163 U.S. 662 (1896).

1" Since Perez v. United States, 22 U.S. (9 Wheat.)529 (1824), the Supreme Court has applied the "mani-fest necessity" test in a number of situations to upholdthe propriety of the declaration of a mistrial. See, e.g.,Gori v. United States, 367 U.S. 364 (1961) (jury dis-charged because of potentially prejudicial testimonyabout defendant's previous criminal record); Wade v.Hunter, 336 U.S. 684 (1949) (military court-martialdischarged due to tactical necessity in the field); Lovatov. New Mexico, 242 U.S. 199 (1916) (jury dischargedbecause of possible irregularities in pleadings); Keerlv. Montana, 213 U.S. 135 (1909) (jury discharged afterthree days of deliberation for failure to reach a verdict);Dreyer v. Illinois, 187 U.S. 71 (1902) (jury dischargedafter one day deliberations for failure to reach a verdict);Thompson v. United States, 155 U.S. 271 (1894) (jurydischarged because one juror had served on grand juryindicting defendant); Logan v. United States, 144 U.S.263 (1892) (jury discharged after forty hours for failureto reach a verdict); Simmons v. United States, 142 U.S.148 (1891) (jury discharged because letter published innewspaper made jurors' impartiality doubtful).

In Gori v. United States, 367 U.S. 364, 368 (1961),the Court intimated that in situations where the mis-trial is declared for the benefit of the defendant, thestate can retry the defendant under the "manifestnecessity" test. This rule was specifically rejected inUnited States v. Jorn, 400 U.S. 470, 483 (1971).

"1 See Green v. United States, 355 U.S. 184, 187-88(1957), where the Court explained the policy considera-tions underlying this provision:

[T~he State with all its resources and power shouldnot be allowed to make repeated attempts to con-vict an individual for an alleged offense, therebysubjecting him to embarrassment, expense andordeal and compeWng him to live in a continuingstate of anxiety and insecurity, as well as enhancingthe possibility that even though innocent he may befound guilty.

See generally SIGLER, Dou-BrE JEoPARDY 155-69 (1969);Comment, Double Jeopardy: Its History, Rationale andFuture, 70 DicK. L. REv. 377 (1966); Note, DoubleJeopardy: The Reprosecution Problem, 77 HAav. L. Rv.1272, 1274 (1964).

the double jeopardy bar in the absence of someimportant countervailing interest of proper judi-cial administration'... But where the declarationof a mistrial implements a reasonable state policyand aborts a proceeding that would have produceda verdict that could have been upset at will by oneof the parties, the defendant's interest in pro-ceeding to verdict is outweighed by the competingand equally legitimate demand for public justice.1'

Mr. Justice Rehnquist concluded by stating thata declaration of a mistrial under the circumstancesof this case would be improper only when the

prosecutor had used the state procedure to harassthe defendant. 5

In arguing that the double jeopardy clause pre-cluded his second trial, the defendant relied heavilyon Downurn v. United States16 and United States v.

Jorn, 7 which were cited by the Seventh Circuit asrequiring the reversal of his conviction. 8 InDownum, after the defendant's case was called totrial and a jury was impaneled, the prosecutor ad-vised the court that two of his key witnesses wereunavailable. 19 The trial judge then dismissed thefirst jury to allow the prosecutor time to secure thepresence of his witnesses. At the second tril, thedefendant was convicted over his claim of former

jeopardy. The Supreme Court reversed his convic-tion, and held that the trial judge had abused hisdiscretion in terminating the first trial.20

In Jorn the trial judge declared a mistrialafterhe determined that the government's witnesseswere not properly advised of their privilege againstself-incrimination before testifying. 2 The case was

4 410 U.S. at 471.15 Id. at 469.16 372 U.S. 734 (1963). For discussions of this case,

see Note, 28 ALBANY L. REV. 162 (1964); Note, 16ALA. L. REv. 133 (1963).

'7400 U.S. 470 (1971). For discussions of this case,see Note, 26 RuTGERS L. REv. 682 (1973); Note, 32LA. L. REv. 145 (1971).

18 See Somerville v. Illinois, 447 F.2d 733, 734-35(7th Cir. 1971).

19 Subpoenas for all of the prosecutor's witnesses hadbeen delivered to the United States marshall, but hewaited until the day before trial to discover that thesubpoenas had not been served. The prosecutor allowedthe jury to be selected and sworn even though he knewhis witnesses had not been found. Downum v. UnitedStates, 372 U.S. 734, 735 (1963).

20 Id. at 736-37.21 In Jorn the defendant was charged with violations

of the Internal Revenue Code. Five of the government'switnesses were taxpayers whom the defendant hadaided in the preparation of their income tax returns.After the first of these witnesses was called to testify,defense counsel suggested that they be warned of theirconstitutional rights. After further inquiry, the trialjudge decided that all of the witnesses should be given a

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set for retrial before another jury, but on the de-fendant's pretrial motion, the judge dismissed thecase on the grounds of former jeopardy. In a plural-ity opinion, the Supreme Court agreed with thetrial judge and held that the grounds for declaringa mistrial were insufficient to override the de-fendant's interests under the double jeopardyclause.22

In response to the defendant's claim that thesecases were controlling, Mr. justice Rehnquist dis-tinguished Jorn by describing the actions of thetrial judge there as erratic and, under the circum-stances of that case, wholly unnecessary.23 InSomerville, on the other hand, the mistrial served alegitimate state interest and was the only effectiveway to cure the defect in the indictment. Mr.Justice Rehnquist also felt that Somerville was dis-tinguishable from Downum since the mistrial inDownum was declared to allow the prosecutor timeto strengthen his case and might result in greatdelay to the defendant.24 Here the delay was mini-mal and did not give the prosecutor an unfair ad-vantage.

Justice White, joined by Justices Brennan andDouglas, dissented on the grounds that Downumand Jorn were controlling, and that, in any case,the prosecutor's failure to inspect the indictmentbefore trial should not serve to deprive the de-fendant of his rights under the prohibition againstdouble jeopardy. 25 Mr. justice Marshall also filed

chance to consult with an attorney. He then declaredthe mistrial. United States v. Jorn, 400 U.S. 470, 472-73 (1971).

2 2 Justice Harlan, joined by Chief Justice Burger andJustices Douglas and Marshall, upheld the trial judge'sruling on the grounds that the double jeopardy clausehad been violated. Justices Black and Brennan agreedthat the trial judge's decision should not be reversedbut felt that the Court had no jurisdiction. JusticesStewart, White and Blackmun dissented on thegroundsthat the retrial of the defendant would not haveviolated the double jeopardy clause.

23410 U.S. at 469.24 Id.25 According to Mr. Justice White:Apparently the majority finds "manifest necessity"for a mistrial and the retrial of the defendant inthe 'state's policy of preserving the right of eachdefendant to insist that a criminal prosecutionagainst him be commenced by the action of a grandjury' and the implementation of that policy in theabsence from Illinois procedural rules of any pro-cedure for the amendment of indictments. Con-ceding the reasonableness of such a policy, it mustbe remembered that the inability to amend theindictment does not come into play, and a mistrialis not necessitated, unless aw error on the part ofthe State in the framing of the indictment is com-mitted. Only when the indictment is defective-only when the State has failed to properly execute

a dissenting opinion in which he concluded that themajority opinion had abandoned the tradition ofprevious cases by adopting a new balancing test,

whose elements are stated on such a high level ofabstraction as to give judges virtually no guidancein deciding subsequent cases.26

While the Court's application of the "manifestnecessity" test under the circumstances of this casehas some support in previous cases,'2 its decisiondoes lend considerable uncertainty as to the con-tinued application of certain principles enunciatedin Downum v. United States5' and United Staes v.Jorn.2' First, in both cases the Court stressed theparamount importance of protecting the de-fendant's interest in settling his case because of hisexposure to the embarrassment, anxiety and ex-pense of trial.30 In Dowmum, for example, the ab-sence of the prosecutor's key witnesses would haveresulted in the acquittal of the defendant on cer-tain counts in the indictment, but the SupremeCourt felt that this was insufficient justification fordeclaring the mistrial without barring the retrialof the defendant on grounds of double jeopardy."The Somerville Court, on the other hand, enun-ciates a balancing test in which it places the in-terests of the state in securing an error-free con-viction above the interests of the defendant in

its responsibilities to frame a proper indictment-does the State's procedural framework necessitatethe mistrial.

Id. at 475.26 410 U.S. at 483.21 See Lovato v. New Mexico, 242 U.S. 199 (1916),

where the jury was discharged after the prosecutorrealized that the defendant had not pleaded to theindictment. See also Wade v. Hunter, 336 U.S. 684(1949), in which the absence of witnesses due to com-bat conditions was held sufficient to justify the declara-tion of a mistrial without barring the retrial of thedefendant.

It has been suggested that there are two rules dis-cernible from the cases. See Note, 26 RuxGEaRs L. REv.682, 685, n.34 (1973). The first is that absent a showingof abuse of discretion, there is an assumption that amistrial does not bar retrial. See Gori v. United States,367 U.S. 364 (1961); Brock v. North Carolina, 344U.S. 424 (1953); Keerl v. Montana, 213 U.S. 135(1909). The second rule is that absent a showing ofsubstantial justifying circumstances, a mistrial pre-cludes retrial. See United States v. Jorn, 400 U.S. 470(1971); Downum v. United States, 372 U.S. 734 (1963);Simmons v. United States, 142 U.S. 148 (1891); Cor-nero v. United States, 48 F.2d 69 (9th Cir. 1931). Thedecision in Somerville can be interpreted as followingthe first line of cases.

"372 U.S. 734 (1963)."400 U.S. 470 (1971).0 See note 13 supra.1 See note 19 supra.

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having his fate determined by the first jury. It alsoindicates its willingness to allow various state pro-cedural rules to override the constitutional protec-tion against double jeopardy:

Since this Court's decision in Benton v. Maryland... federal courts i1l be confronted with suchclaims that arise in large measure from the oftendiverse procedural rules existing in the 50 states.Federal courts should not be quick to conclude thatsimply because a state procedure does not conformto the corresponding federal statute or rule, it doesnot serve a legitimate state policy."

Secondly, while the cases applying the "mani-fest necessity" test have not established rigid rulesfor trial judges to follow,n both Downum and Jornindicated that trial judges should exercise theirdiscretion in declaring mistrials only in the mostextraordinary and striking circumstances.4 Whilethe Somerville Court does emphasize that trialjudges must weigh the interests of the competingparties, 5 the majority, as Mr. Justice Marshallpoints out, elevates the "manifest necessity" testto a new level of abstraction.36 While this approachmay give trial judges more flexibility in administer-ing criminal trials, it provides virtually no guidancefor the protection of the defendant's rights underthe double jeopardy clause."'

Finally, in both Dovnum and Jon the SupremeCourt expressed its dissatisfaction with the trialjudge's determination that prosecutorial errorcould justify the declaration of a mistrial under thecircumstances of those cases. In Jorn, for example,the plurality opinion stated:

Unquestionably an important factor to be con-sidered is the need to hold litigants on both sidesto standards of professional conduct in the clash ofan adversary criminal process... The trial judgemust recognize the lack of preparedness by the

2410 U.S. at 468. See also Duncan v. United States,405 U.S. 127 (1972), in which the Court dismissed awrit of certiorari as improvidently granted in a caseinvolving the dismissal of an indictment under therules of criminal pleading peculiar to a particular statefollowed by a retrial under a proper indictment.

3See notes 10, 12 supra.11 In Downum the Court stated:The discretion to discharge the jury before it hasreached a verdict is to be exercised 'only in veryextraordinary and striking circumstances'.

372 U.S. at 736. See also United States v. Watson, 28Fed. Cas. 499, 500-01 (1856); United States v. Shoe-maker, 27 Fed. Cas. 1067 (1840).

'5 410 U.S. at 471.

-6 Id. at 483.17 See note 27 supra.

government... directly implicates policies under-pinning both the double jeopardy provision andthe speedy trial guarantee."

The Somerville Court, though not clearly coun-tenancing prosecutorial negligence, indicates thatonly prosecutorial manipulation can justify theapplication of the double jeopardy clause when aprocedural error would provide the defendant withgrounds for reversal on appeal. 9 Even limited tothose situations where reversal would be certain,the decision still overrides a policy often stated inthe cases that the prosecutor must come preparedfor trial and take his chances once the jury is im-paneled. 40 To the extent that Somerville can beused to justify the retrial of a defendant in situa-tions where the prosecutor has made an error injudgment at some point before verdict, which maynot automatically result in reversal on appeal, thedecision clearly reverses a policy enunciated inprior cases. 4'

In conclusion, the decision in Somerville is ob-jectionable because it prescribes a vague balancingtest and accepts prosecutorial oversight. While thedecision has potentially far-reaching implicationsfor the judicial administration of criminal trials, itlends considerable uncertainty as to the vitality ofboth Downum and Jorn, and may further serve todilute the constitutional guarantee against doublejeopardy.

I410 U.S. at 475."1 See note 15 supra.40See, e.g., United States v. Ball, 163 U.S. 662

(1896), where the Court stated:This case, in short, presents the novel and un-heard of spectacle, of a public officer, whose busi-ness it was to frame a correct bill, openly alleginghis own inaccuracy or neglect, as a reason for asecond trial, when it is not pretended that themerits were not fairly put in issue on the first...If this be tolerated, when are trials of the ac-cused to end?

Id. at 667-68. See also United States v. Jorn, 400 U.S.470, 485 (1971); Cornero v. United States, 48 F.2d69, 71 (9th Cir. 1931).

a In Jorn the plurality opinion stated:The determination to allow reprosecution inthese circumstances reflects the judgment that thedefendant's double jeopardy interests, however de-fined, do not go so far as compel society to somobilize its decisionmaking resources that it willbe prepared to assure the defendant a single pro-ceeding free from harmful governmental or judicialerror. But it is also clear that recognition that thedefendant can be reprosecuted for the same offenseafter successful appeal does not compel the con-clusion that double jeopardy policies are confinedto prevention of prosecutorial or judicial over-reaching.

400 U.S. at 484.

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Voir Dire Examination:Ham v. South Carolina, 409 U.S. 524 (1973)

In Ham v. South Carolina,1 the United StatesSupreme Court faced an issue involving the scopeof the vair dire examination. 2 The Court unani-mously held that a defendant must be permittedto quiz the veniremen as to possible racial preju-dice. The majority also held, with Justices Douglasand Marshall dissenting, that a refusal to inquireabout specific bias against beards, subsequent tothe trial judge's general inquiry as to any formsof impartiality, did not constitute a violation of aconstitutional right.

The petitioner in Ham was convicted of posses-sion of marijuana and sentenced to 18 months im-prisonment. Petitioner, a young bearded Negro,who had no previous criminal record, contendedduring trial that he was framed on the drug chargebecause of his well publicized civil rights activities.

On voir dire petitioner's counsel requested thecourt to ask the veniremen four questions relatingto possible prejudice against the defendant. Thefirst two dealt with potential racial prejudice; thethird probed for a bias against beards; and thefourth aimed at possible pre-trial publicity. Thetrial judge refused to ask any of the proposed ques-tions, but instead submitted three general ques-tions required by state law.3 They inquired aboutthe existence of prejudice of any sort against thedefendant or the existence of preconceived notionsof guilt or innocence. On appeal to the South Caro-lina supreme court the resulting conviction wasupheld.4 In discussing the issue of the scope of thevoir dire examination the majority of the courtconcluded that the trial judge did not abuse hisdiscretion. The majority reasoned that the pre-

1 409 U.S. 524 (1973).2 The voir dire examination in this case was con-

ducted by the trial judge as authorized by statute.However, the statute also provided that the court maysubmit additional questions proposed by a defendantor a prosecutor at its discretion. S. C. CODE § 38-202(1962).

This procedure is suggested also by the ABA PRoj-ECT ON MINUIUM STANDARDS FOR CRInUNAL JUsTICE,STANDARDS RELATING To TaAL By JURY, § 2, 4, at66-67 (Approved Draft 1968). In federal courts, Rule24(a) of the Federal Rules of Criminal Procedure pro-vides that the trial judge may conduct the voir dire orpermit counsel to quiz the prospective jurors directly,although the former has been preferred. However, therule is silent as to the scope of the voir dire examina-tion. FED. R. Cnmt. P. 24(a).

3 S. C. CODE § 38-202 (1962).'256 S.C. 1, 180 S.E.2d 628 (1972).

scribed questions had sufficiently covered the re-quested area. The dissent, however, argued thatAldridge v. United States5 was controlling and re-quired that petitioner's question be submitted tothe panel of prospective jurors.' That case involveda Negro defendant who was denied on voir dire theopportunity to question the prospective jurors forracial prejudice. Chief Justice Hughes, speaking forthe Court, said that the "essential demands offairness," as expressed by the due process clauseof the fourteenth amendment, required that suchan examination be permitted The Supreme Courtgranted certiorari on the issue of whether the trialjudge's refusal to ask the suggested questions vio-lated petitioner's constitutional rights.8

In reversing petitioner's conviction Justice Rehn-quist's majority opinion relied heavily on Aldridgeand the constitutional prohibitions against racialdiscrimination. He pointed out that the purposebehind the adoption of the fourteenth amendmentwas to insure that the states treat all of their resi-dents equally, irrespective of their race or color.9

The "constitutional stature" 10 of racial prejudicerequired, in the majority's view, that questionsprobing for bias of this nature must be allowed.

On the other hand, the question aimed at de-tecting a prejudice against beards was found byJustice Rehnquist not to be entitled to a similartreatment. Although he acknowledged the possi-bility of such a bias, it was "constitutionally [im-possible to) distinguish possible prejudice againstbeards from a host of other similar prejudices." 11Implicit in this candid admission was an apprehen-

5 283 U.S. 308 (1931).6 It is interesting to note that the dissenting justices

did not distinguish between questions relating toracial prejudice and questions relating to a bias againstbeards. In their view Aldridge required both.

7 283 U.S. at 310.8 The Court was unanimous in agreeing that the

record before it did not substantiate charges of pre-trial publicity. Therefore the Court did not discuss themerits of the issue whether the last question posed bythe defendant should have been included on the voirdire examination. 409 U.S. at 528 (majority opinion);Id. at 531 (Marshall, J., dissenting); Id. at 529-530(Douglas, J., dissenting) (sub silentio).

9 He cited the Slaughter House Cases, 83 U.S. (16Wall.) 36 (1873), where it was argued unsuccessfullythat the fourteenth amendment is not limited toproblems of ex-slaves and racial discrimination.

10 409 U.S. at 528.11Id.

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sion that by giving the posed question a constitu-tional imprimatur, a legal precedent would be setrequiring that all questions submitted by de-fendants be asked, irrespective of their relevancyand significance. It would be extremely difficult, inJustice Rehnquist's judgment, for a trial judge orthe appellate courts to justify on some rationalbasis the distinction between questions relatingto a possible prejudice against beards and questionsprobing for biases against other physical traits.Nevertheless, he qualified his disallowance:

The trial judge's refusal to inquire as to a particularbias against beards, after his inquiries as to bias ingeneral, does not reach the level of constitutionalviolation."

Moreover, the narrow reading of Aldridge, re-stricting the required questions to racial prejudiceonly, served to establish a dual-level classificationof prejudices. Although Aldridge raised the issue ofpossible racial prejudice, the holding was not ex-plicitly limited to its factual circumstances and ithas not been interpreted so by other courts."Where the credibility of a defendant or some otherwitnesses was at stake, various questioning hasbeen allowed. Thus, in United States v. Napoleone,'14

the defendant was entitled to question the venire-men whether their objectivity in rendering the ver-dict would be affected by their ethical and moralviews toward lying or liars. The court cited Aldridgefor the proposition that the essential demands offairness control the trial judge's discretion as to thescope of the voir dire examination. The concept offairness, as propounded in Aldridge, was not, in the

12 Id. (emphasis added).13 See, e.g., United States v. Gassaway, 456 F.2d 624

(5th Cir. 1972), involving a failure to ask whether anyof the jurors were inclined to give more weight totestimony of a police officer, because of his positionthan to any other witness in the case was not an error;United States v. Poole, 450 F.2d 1082 (3d Cir. 1965),where the trial judge refused to allow a question per-taining to a juror's prior experience as a victim ofcrime was error; Brown v. United States, 338 F.2d543 (D.C. Cir. 1964) (Burger, J.), where the failureto ask whether any of the jurors were inclined to givemore weight to testimony of a police officer than to anyother witness in the case was reversible error; Gorin v.United States, 313 F.2d 641 (1st Cir. 1963), involvinga failure to ask the same question as in Brown was notnecessarily an error; Sellers v. United States, 271 F.2d475 (D.C. Cir. 1959), where failure to ask the samequestion was an error; Phenious v. State, 11 Md. App.385, 274 A.2d 658 (1971). But see United States v.Carter, 440 F.2d 1132 (6th Cir. 1971); United States v.Gore, 435 F.2d 1110 (4th Cir. 1970); Commonwealthv. Foster, 293 A.2d 94 (Pa. Super. 1972).

14 349 F.2d 350 (3d Cir. 1965).

court's view, restricted to elimination of jurorsharboring racial prejudice only.

The Ham holding is inconsistent with the otherdecisions of the Court. Since Irwin v. Dowd"5 heldthat an impartial jury was constitutionally man-dated in state courts, a defendant's request toexamine for possible bias must clearly be withoutmerit in order for the trial judge to refuse inquiryof veniremen. Petitioner here was charged withpossession of marijuana, a crime associated cus-tomarily with young and non-conforming elementsof society. In light of his defense at the trial, biasagainst beards becomes a factor of greater signifi-cance for the jury in arriving at their verdict.There was a great likelihood that petitioner's testi-mony was given less credibility because of his non-conventional appearance and the possible assump-tion of guilt arising from the association of druguse with non-conformity.

Furthermore, the dual level approach of themajority is subject to logical infirmities. If theconcern and the goal is to secure an impartial jury,then, in reality, the differences in the source andthe nature of the prejudices are irrelevant. Bybeing denied an opportunity to have his questionssubmitted to the prospective jurors, a defendantis in either case deprived of his constitutional privi-lege to be judged by an unbiased jury. 6 The issueat stake is his ability to secure a fair trial, not thenature of the prejudice against him, constitutionalor otherwise. The faulty reasoning is evident fur-ther in the majority's distinction between generaland specific examinations. If the general inquirywas deemed to he sufficient to elicit all types ofbiases, including one against beards, then no spe-cific inquiry for racial prejudice should be requiredsince such a prejudice is only one of many formsof partiality. By allowing one type of questioningand denying the other, the Court implicitly recog-

"5366 U.S. 717 (1961). In Irwin a state convictionwas set aside because newspaper publicity prevented afair trial. Although each juror expressed his belief thathe could remain fair and impartial, the Court thoughtthat the likelihood of the verdict being affected by theprejudice was substantial enough to require a reversal.

16 It has been argued that a true neutrality is not arealistic goal since every individual has some viewswhich do affect his thinking. The purpose of the voirdire examination, then, becomes to insure a certaindegree of impartiality, not absolute impartiality. Thejurors who hold a specific and identifiable bias, whichmay prevent them from being objective, are to beeliminated from the panel. Yet, it is quite likely thatsome of the unconscious personal beliefs, capable ofprejudicing one's thinking will not be discovered. SeeLevit, et al., Expediting Voir Dire: An EmpiricalStudy, 44 S. CAL. L. Rav. 916, 925 (1971).

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nized that general inquiry fails to elicit impar-tiality'

7

Moreover, the Court has frequently intervenedto insure the impartiality of the jury, not limitingits action, however, only to racial prejudice. Wherethe jury selection process resulted in a jury inclinedto impose capital punishment more readily, theCourt reversed the conviction. In Groppi v. Wis-consln,'9 state law imposing restriction on change

of venue, thought necessary by the defendant, awhite civil rights activist, to avoid jury prejudicewas invalidated. Similarly, in Morford v. United

States," defendant's alleged ties with the Communist

Party were held to be a proper subject of inquiryduring the voir dire examination.

The Ham holding represents a departure fromthe Court's previous willingness to safeguard theright to an impartial jury. That stance in situations

of alleged jury misbehavior 2' has been replaced by

17 The proponents of an extensive voir dire examina-tion contend that only specific questions posed by theaccused's counsel, who customarily is most aware ofthe issues and the evidence to be presented to thejury, are capable of bringing out hidden prejudicessince they are aimed at a specific end. Moreover, it issaid that the examination by the Court is mechanicaland formal, failing to elicit any truthful responses fromthe prospective jurors. The veniremen, when ques-tioned by the court, may feel capable of disregardingtheir biases and will keep silent when requested todivulge them. This is especially true where the preju-dices are held almost on an unconscious level. Since itis impossible to reenact the atmosphere of the trial andthe impact of the questioning upon the jurors cannotbe truthfully assessed, the appellate courts are notcapable of fully protecting the right of the accused.Therefore, the argument concludes, counsel withpersonal knowledge and interest must be permitted toquestion the jurors if the voir dire examination is to beeffective in securing an impartial jury. See Comment,Voir Dire In Southern California: Where Is It Going?Where Should It Go?, 10 SAN Di mo L. Rzv. 395, 401-403, 406 (1973).

18 Witherspoon v. Illinois, 391 U.S. 510 (1968).29400 U.S. 505 (1971). In Groppi, Justice Stewyart

said for the Court:There we are concerned with the methods availableto assure an impartial jury in a situation wherebecause of prejudicial publicity or for some otherreason the community from which the jury is tobe drawn may be already permeated with thehostility toward the defendant.

Id. at 509 (emphasis added).The Court's concern is also evident later in the opinion:

Another way is to provide a method of jury quali-fication that will promote through the exercise ofchallenges to the venire-peremptory and for cause-the exclusion of prospective jurors infected withprejudices fronf which they come.

Id. at 509-10.20 339 U.S. 259 (1950).It See e.g., Groppi v. Wisconsin, 400 U.S. 505 (1971);

Sheppard v. Maxwell, 384 U.S. 333 (1966) (where thedecision provided protection from inflammatory press

the attitude of "presumptive reasonableness" ofjuries. In adopting this new posture the. Courtshows more concern with needs of expediency thanwith the rights of an accused.23

The opinion of Justice Douglas, concurring inpart and dissenting in part, agreed with the ma-jority about the need to question for racial preju-dice24 but departed from the interpretation given toAldridge and the import of bias against beards.First, Justice Douglas pointed out that Aldridgewas not restricted only to inquiry as to racialprejudice but included all prejudices of. a "seri-ous" 25 character. He argued that in light of thecurrent importance attached to the length.of one'shair,26 a possible bias against beards was sufficiently"serious" to be added to the special categorycreated by the majority. Where defendant's ap-pearance is especially reflective upon his credibilityand presumption of innocence the danger ef abiased jury is too great to preclude a defendantfrom his inquiry.

Justice Marshall adopted a more flexible ap-proach. While challenging the dubious distinctioncreated by -the majority of the Court, he pointedout that the right to an impartial juiry was neverrestricted to one group in the population. He noted:

coverage and disruptive influences in the courtroom);Irwin v. Dowd, 336 U.S. 717 (1960).

1 Johnson v. Louisiana, 406 U.S. 356, 398 (1972)(Stewart, J., dissenting). In Johnson, Justice Stewartcriticized the majority's premise that "each juror willfaithfully perform his assigned duty." Id. at 379. Themajority insisted that the jurors will disregard theirbiases and prejudices in rendering their verdict, JusticeStewart challenged this presumption of regularity bypointing to a number of cases where the Court held adifferent attitude.

2 3Chief Justice Burger commented on this criticalproblem at the National Conference on the'Judiciaryat Williamsburg, Virginia, on March 12, 1971, statingthat selection of a jury has "become in itself a majorpiece of litigation consuming days or weeks." L.A.Times, March 13, 1971, § 7, at 17, col. 1. It is not thepurpose of this note to deal in depth with the abuses ofthe voir dire examination. See generally Levit, et at.,supra note 16; Comment, supra note 17. See also Statev. Manley, 54 N.J. 259, 255 A.2d 193 (1969), dicussingthe failure of trial judges to exercise proper contiol overvoir dire.

24 409 U.S. at 529 (separate opinion of Douglas, T.2rThe right to examine jurors on voir dire .as tothe existence of a disqualifying state of mind hasbeen upheld with respect to other races than theblack race and in relation to religious and otherprejudices of a serious character.

283 U.S. at 313 (emphasis added).-2 He cited cases where the controversy between the

litigants stemmed from the disagreement as ta properand socially accepted appearance. See, e.g., Olff v.East Side Union High School, 404 U.S. 1042 (1973)(Douglas, J., dissenting).

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"It makes little difference to a criminal defendantwhether the jury has prejudged him because of thecolor of his skin or because of the length of hishair." 2 In elaborating upon the various techniquesof securing an impartial jury that the Court hasallowed for, he stressed the importance of the voirdire examinations in achieving this goal.2 To him,the right to challenge, which a defendant is ad-mitted to have,29 is meaningless unless a relevantinquiry as to possible prejudices of the veniremenis permitted. 0 Yet he would not allow all questions,irrespective of their significance and relevancy.Unlike the majority of the court, he would requirea defendant to make a preliminary showing of thesignificance and pertinence of his proposed ques-tions, "where the claimed prejudice is of a novelcharacter," " before propounding them to theprospective jurors.3

However, he emphasized throughout the opinionthat at minimum an opportunity to show actualbias must be preserved.n3 The apparent absoluteban, reached by the majority, upon questionsdeemed to be non-serious, represented, in his view,an improper "balance between competing demandsof fairness and expedition." 3'

Although justices Douglas and Marshall diff-ered as to the proper approach to be taken, theyagreed on two points. First, both interpreted Al-dridge as not being restricted to questions relatingto racial prejudice. Second, they reached the sameconclusion that in the factual circumstances ofHam the inquiry as to bias against beards had asubstantial bearing upon the jury's verdict andshould have been allowed.

The result in Ham represents a further erosionof the right to a jury trial.35 By developing a bi-

' 409 U.S. at 531-32 (separate opinion of Marshall,J.).21 See Swain v. Alabama, 380 U.S. 202 (1965), where

it was acknowledged that extensive and probing voirdire has been accepted in American trials as a matterof practice, and that it is a proper tool, almost a neces-sary pre-requisite, for the intelligent exercise of theperemptory charges.

29 See, e.g., Pointer v. United States, 151 U.S. 396,408, 412 (1894); Lewis v. United States, 146 U.S. 370(1892).

30 409 U.S. at 532 (separate opinion of Marshall, J.).11 Id. at 533. Justice Marshall thus replied to Justice

Rehnquist's fear that irrelevant questions would haveto be tolerated.

32 Id.1 Id. at 534.

34 Id."The Ham ruling is compounded by the recent

decisions of the Court in Williams v. Florida, 399 U.S.78 (1970), sustaining juries with fewer than twelvemembers and Johnson v. Louisiana, 406 U.S. 356

level categorization of prejudices the Court isdiluting the constitutional requirement of an im-partial jury. The position taken by the majorityemphasizes the nature of the prejudice rather thanits functional effect upon the jury's verdict. Theissue, according to them, is whether the partialityis of a "constitutional stature" 36 and, therefore, ofa serious character-not whether there is a greaterlikelihood of convicting an innocent person. Al-though the Court addressed itself in Ham only toracial prejudice, the dual standard establishedthere will undoubtedly be put to use to classifyother types of partialities. The categorization"serious" and "non-serious" will most likely bealigned with protections traditionally afforded bythe fourteenth amendment. This formalistic ap-proach will prevail even though in Ham the major-ity's opinion was careful to recite the historicalstanding of racial prejudice as a motivatink forcebehind the fourteenth amendment, since the Courthas not, at least until now, limited the protectionof this amendment to racial groups.Y

Thus where the possible prejudice might bebased on national origin, sex, religion or otherclassification found previously to be inherently"suspect," 1 the Court will most likely intervene to

(1972), and Apodaca v. Oregon, 406 U.S. 404 (1972),sustaining the constitutionality of nonunamious juryverdicts in state criminal trials. In light of Ham's limi-tation of the scope of the voir dire examination, thereduction of number of jurors per case becomes verysignificant. With the introduction of smaller juries, thelikelihood of a biased jury is very real. This criticalproblem is even further aggravated by the dilution ofthe requirement that guilt be determined beyondreasonable doubt. Undoubtedly, these factors willenter a defendant's mind when demanding a jury trialand may cause him to waive a jury trial altogether.

36 409 U.S. at 528.3 The fourteenth amendment has been used to in-

validate many state laws, not only discriminatingagainst the Negro populace but encompassing everyaspect of our society. See, e.g., Roe v. Wade, 409 U.S.81 (1973), where the Court held that a state abortionlaw violated the due process clause of the fourteenthamendment; Fuentes v. Shevin, 407 U.S. 67 (1972),where a state replevin statute was found to be in con-flict with due process clause; Morrissey v. Brewer, 408U.S. 471 (1972), where procedural safeguards wererequired by the fourteenth amendment when a stateseeks to revoke parole.

The term inherently "suspect" classification whichapparently bad its genesis in cases involving racialdiscrimination symbolizes a classification which isbased on a forbidden criteria and, therefore, demandinga compelling state interest to be upheld. Wealth, race,creed or color were held to be included in the abovecategory. See generally Harer v. Virginia Board ofElections, 383 U.S. 663 (1966). Also in Reed v.Reed, 404 U.S. 71 (1971), the unanimous Court in-validated an Idaho probate provision giving menmandatory preference over women when persons of the

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allow such a voir dire examination. Such prejudicesare of a "serious" character 9

However, the suggested distinctions will be per-missible only if a general inquiry, similar to theone in Ham, is allowed. Where such an inquiry isdenied, the Court would require that a certain

same priority class applied for appointment to ad-minister deceased's estate although the sex-as-a-suspectclassification issue was not expressly reached. However,that classification may become prohibited by an ex-plicit constitutional requirement if the pending equalrights amendment is adopted.

39 They are serious enough to be given constitutional,dimensions. See note 38 supra.

Rules of Evidence:Chambers v. Mississippi, 410 U.S. 284 (1973)

In Chlambers v. Mississippi,' the Supreme Courtexamined two Mississippi common law rules ofevidence to determine whether their joint applica-tion denied the accused a trial in accord with dueprocess. The two rules in question were Mississippi'svoucher rule which states that one may not im-peach his own witness and the hearsay rule exclud-ing declarations against penal interest. The Courtheld that under the facts of this case, the joint-application of these evidentiary rules deprivedChambers of a fair trial.2 The Court thus cast ashadow over the continued vitality of these evi-dentiary rules, taken individually and in circum-stances other than those facing Chambers.

Leon Chambers was convicted of murdering apoliceman. At his trial, Chambers advanced twodefenses. He first claimed that he never shot thepoliceman. His other defense was that GableMcDonald shot the officer. Before Chambers' trial,McDonald had confessed to the murder, but laterrepudiated that confession. 3 Chambers' claim thatMcDonald did the killing was supported at trial bytwo witnesses: one, a man who saw McDonaldshoot the officer, the other, a man who saw Mc-Donald, gun in hand, just after the shooting.

1410 U.S. 284 (1973).2 Id. at 302. The Court took care to point out that

its holding established no new principles of constitu-tional law or implied any incursion by the Court intostate control over state trial rules and procedure.

3 Id. at 288. McDonald's reason for repudiation layin his claimed disillusionment with a Reverend Stokeswho had convinced the impressionable McDonald thathe would share in a large tort recovery from the cityand not go to jail if he confessed.

minimum opportunity be provided to secure a fairtrial. This result can be anticipated from justiceRehnquist's qualifying remark when he said thatthe refusal to permit questioning relating to preju-dice against beards was not a constitutional viola-tion.40 The breakdown of the voir dire examinationinto general and specific questioning and the rea-soning that the former may elicit some types ofprejudice but not all, is illustrative of the logicaldefault propounded by the Court in Ham.

40 In order to deny even the most general inquiry,the Court would have to overrule rwin which madean impartial jury a constitutional requirement.

Chambers' defense that McDonald was themurderer was thwarted by the trial court in twoways. First, the court denied Chambers' request tocross-examine McDonald as an adverse witness.4

This denial evoked the voucher rule issue. Second,the trial court held inadmissible the -testimony ofthree friends of McDonald, to whom McDonaldseparately admitted the crime.5 This ruling of in-admissibility of McDonald's friends' testimonyinitiated Chambers' attack upon the rule excludingdeclarations against penal interest.

Chambers objected to these two rulings immedi-ately on non-constitutional grounds. In his motion

4 Id. at 291-92. Chambers' pretrial motion requestedthe trial court to order McDonald to appear and allowChambers to call McDonald as an adverse witness ifthe state refused to call McDonald. The trial courtgranted the former, but reserved ruling on the latter.During the trial, the state never called McDonald astheir witness. Chambers was behooved to call Mc-Donald, whose confession and repudiation of themurder for which Chambers was on trial was, indeed,harmful to Chambers. After Chambers introducedMcDonald's confession, the state cross-examined andMcDonald told the reasons for his repudiation. Thistestimony was in McDonald's interests and harmfulto Chambers. Chambers then renewed his motion toexamine McDonald as an adverse witness. The trialcourt denied, reasoning, "He [McDonald] may behostile, but he's not adverse in the sense of theword .... " This trial court ruling was upheld by theMississippi supreme court which felt McDonald'stestimony not adverse to the appellant as "[Nlowheredid he point the finger at Chambers." 252 So. 2d217,220 (Miss. 1971). Hence, Chambers was not al-lowed to impeach his own witness.

6 Mississippi adheres to the common law rule that theextrajudicial declarations against penal interest arehearsay. See e.g., Brown v. State, 99 Miss. 719, 55 So.961 (1911).

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for a new trial after the guilty verdict was returnedand-in his appeal to the Mississippi supreme court,Chambers claimed these evidentiary rules renderedhis trial fundamentally unfair and deprived him ofdue process of law under the fourteenth amend-ment.

Befote deciding the merits of the case, theUnited States Supreme Court had to face a juris-dictional question. The question lay in two parts.The first part was steeped in the Mississippi stateprqc.dural requirement of contemporaneous objec-tion. to the admission of evidence. The Court inHenry v. Mississippil said that if a state proceduralrule served a valid state interest at trial as decidedby the Supreme Court, a federal question, arisingfrom the use of this state procedural rule, could notbe reviewed in a federal court This same con-temporaneous objection rule was indicated to be avalid state interest by Henrys thus clouding Cham-bers' constitutional challenge because he waiteduntil his motion for retrial to make his constitu-tional challenge to the evidentiary rulings. Thesecond part of the jurisdictional question arosefrom the Mississippi supreme court's silence on theconstitutional questions related to the trial court'sevidentiary rulings. Street v. New York 9 stated thatif the highest state court did not answer a federalquestion, it would be assumed that this silence wasdue to improper presentation of the issue in thestate courts. 0 This being the case, it would be un-necessary .for the. Supreme Court to decide themerits.

Justice Powell, writing for the majority, quicklydisposed of the jurisdictional question. JusticePowell claimed jurisdiction for two reasons. First,the state never made any challenges before theMississippi supreme court that Chambers' consti-tutional challenges were improperly presented inthe lower state courts. Also, the Mississippi su-preme court raised no question as to the proprietyof Chambers' constitutional claims. Therefore,Justice Powell concluded that the issue was prop-erly before the Mississippi supreme court althoughsilently rejected by it.

Second, Justice Powell felt that unlike Henry,this case did not involve the state procedural ruleof contemporaneous objection to evidence. Cham-bers' constitutional claim, made after the verdicton a motion for retrial, was not of the same sort as

6379 U.S. 443 (1965).7 Id. at 447.'Id. at 449.'394 U.S. 576 (1969).,0 Id. at 582.

his non-constitutional objections made to the sameevidentiary rulings at trial. Only at trial did thecontemporaneous objection rule loom significant.The post-trial constitutional objections related tothe detrimental cumulative effect of the trial court'srulings upon Chambers' defense. Indeed, it was onlyafter Chambers' defense that he could sensiblymake constitutional objections caused by the cum-ulative impact of the trial court's evidentiary rul-ings." Chambers' situation was distinguishablefrom that in Henry as the Henry Court dealt with alate objection during the trial when the state con-temporaneous objection rule applied. Since thestate suggested no other procedural ground block-ing consideration of the merits of Chambers' case,the Court could consider theses merits unimpeded.

The majority first examined the Mississippicommon law voucher rule which forbade the im-peachment of one's own witness. The Court heldthat the voucher rule, in conjunction with theinadmissibility of declarations against penal inter-ests, rendered Chambers' trial unfair. The majorityrecognized the right of cross-examination to be im-plicit in the sixth amendment right of the accusedto confront witnesses against him'2 and a "funda-mental requirement for the kind of fair trial whichis this country's constitutional goal." 11 Chamberswas not allowed to cross-examine his own witnessMcDonald, whose testimony was quite harmful tohim. The Court noted, however, that the right toconfront is not absolute and may be overridden bycompeting interests of the criminal law process."The competing interest here was Mississippi'svoucher rule.

Mississippi's present day voucher rule had itsroots in primitive English trials where people whoappeared on behalf of the parties were not wit-nesses, but oath-helpers. The function of an oath-helper was partisan because they were only to sup-port the cause of those calling them. This differsfrom the present day witness' function of neutrallytestifying to questions of both sides to ascertainfacts. The oath-helper's partisanship made it in-conceivable that one would impeach his own wit-ness.'- Today, the main argument against the

11410 U.S. at 290 n.3.'2Id. at 294-95.13 Id. at 295, citing Pointer v. Texas, 380 U.S. 400,

405 (1965).14The right of confrontation was overridden when

trustworthy evidence was given by one outside thestate's jurisdiction. See, Mancusi v. Stubbs, 408 U.S.204 (1972).

15 3A J. WioGoRE, EvmmFCNc § 896, at 658-60 (Chad-bourn ed. 1970).

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voucher rule lies in the rule's archaic foundationwhich serves no present purpose. Instead, thevoucher rule may hinder the evidentiary process bynot allowing full examination of witnesses."

The main argument of proponents of the voucherrule is that a party ought not to have the power tocoerce his own witness 7 The fear is that if it werepossible to impeach one's own disappointing wit-ness, that witness may be induced, against his be-lids, to testify favorably for the party callinghim. The major authorities" contend that this fearis speculative at best because a witness can undergothe same impeachment from the opponent, equaliz-ing his fear of not testifying favorably for the partycalling him. More important, to forbid the callingparty this attack leaves him at the mercy of hiswitness and opponent. If the truth rests with thecalling party and the witness lies, the adversarywill not attack that witness and the calling partywould be precluded from doing so.i9 The Courtpointed out that under the circumstances, the rulewas doubly harmful to Chambers because he wasprecluded from cross-examining McDonald. Also,Chambers was restricted in the range of his directexamination due to the voucher rule's corollary"that the witness is bound by anything he mightsay." 2

Mississippi's sole defense of the voucher rule wasthat there was no conflict between the rule andChambers' rights. This was because the right ofconfrontation only existed in relation to those wit-nesses adverse to the accused. The trial court andthe Mississippi supreme court refused to ruleMcDonald an adverse witness in relation to Cham-bers because McDonald was not openly hostiletoward Chambers.2' McDonald's testimony was,

16The general view by the authorities is summed upin E. MORGAN, BAsic PRnOnanEs Or EVIDENCE 70-71(1961):

The fact is that the general prohibition if it everhad any basis in reason, has no place in any ra-tional system of investigation in modern society.And all attempts to modify or qualify it so as toreach sensible results serve only to demonstrateits irrationality and to increase the uncertaintiesof litigation.'73AJ. WiGmoRE, supra note 15, at 663-64. Other

defenses of the voucher rule-that a party is morallybound by his witnesses and a party guarantees hiswitness' credibility-are no longer seriously espoused.

11 3A J. WIGUORE, vzupra note 15, at 658-60; C.McCoQscK, EvIDENcE § 38, at 75-78 (2d ed. 1972);E. MORGA , BAsic PRO s OF EvmENCE 70-71(1961).

19 C. McCoRmcK, supra note 18, at 75.20 410 U.S. at 297.21 Chambers v. State, 252 So. 2d 217, 220 (1971).

This was affirmed by the Mississippi supreme court

however, undoubtedly detrimental to Chambers'case becauie it contradicted Chambers' defensethat McDonald did the killing.

The Court, discounting technical definitions ofwhat is adverse in determining if a witness couldbe impeached," pointed out the importance ofMcDonald to Chambers' case due to the state'stheory that one man committed the murder. Dueto the state's theory, McDonald's repudiation ofhis confession had a direct negative effect on Cham-bers. The Court favored a rejection of the narrow,unrealistic interpretation of adverse witness givenby the trial court when such an interpretation af-fected the right of confrontation. In holding that"the 'voucher' rule, as applied in this case, plainlyinterfered with Chambers' right to defend againstthe States' charges,"'2 the Court showed its sym-pathy, as have statutes24 and commentators,' forthe repudiation of such voucher rules.

In the second half of its holding, the Court dealtwith an application of the hearsay rule. The reasonsbehind the inadmissibility of hearsay are that theseout of court statements are not made under solemnoath and the declarant is not available for cross-examination or observation by the-trier of fact.Thus, the hearsay rule is premised on the idea thatuntrustworthy evidence should not be presentedto the triers of fact.

One exception to the hearsay rule is a declarationagainst one's own interests. Admission of thosedeclarations rests on two grounds. Firsl, thedeclaration must have "circumstantial probabilityof trustworthiness.' 2 Indeed, one would not

as McDonald "did ... [not] point the finger at Cham-bers."

22410 U.S. at 297-98. The Court stated that theright to confront and cross-examine those whose testi-mony is harmful to the accused has never dependedon whether the witness was initially put on the standby the accused or by the state.

2Id. at 298.24For statutes requiring an adversity ruling in

order to abandon the voucher rule, see F. STAT. ANN.§ 90.09 (1960); N.M. STAT. ANN. § 20-2-4 (1953);VA. CODE § 8-292 (1950); 12 VT. STAT. ANN, § 1642(1973).

For those holding an adversity ruling unnecessary inorder to abandon the voucher rule, see ALAsKAR. Civ.P. 43 (g) (11) (a) (1962); AKm. STATS. § 28-706 (1962);IDAno CODE § 9-1207 (1948); IN. Buais ANN . ST.2-1726 (1933); Ky. R. Crv. P. 43.07 (1970); ORE. REv.STAT. § 45-590 (1953); TXAS, VER'oN's ANN. C.C.P.art. 38.28 (1935); WYo. STAT. § 1-143 (1957); N.Y.C.P.L.R. 6.035 (1964); WXs. STAT. Am. 885-35 (1957)(limited to criminal cases).

Total abandonment of the voucher rule is proposedin UmnoRu RuLrs 63(1); PfopoSED FED. R. or Ev.607(d) (2).

:5 See, supra n. 17.185 J. WIGmORE, EVIDENCE § 1422, at 204 (1940).

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readily lie if to do so would be in the individual'sown worst interest. The second ground lies in thenecessity principle, which makes admissible, dueto the justified unavailability of the declarant,trustworthy evidence which would otherwise belost.y

Not all declarations against interest are admissi-ble exceptions to the hearsay rule. The leading caseof Donnelly v. United Statesa held that whiledeclarations against pecuniary and proprietary in-terests were admissible exceptions to the hearsayprinciple, declarations against penal interests wereinadmissible a- hearsay. The Donnelly Court fol-lowed the British Sussex Peerage Case 9 which simi-larly held declarations against penal interest inad-missible "for general caution and care not to extendthe hearsay rule." 30 The Donnelly Court, like theSussex court feared a loss in trustworthiness of suchtestimony due to their belief that one would bemore likely to lie against penal interests thanagainst pecuniary or proprietary interests.31

In Chambers, the Court's main concern with theexception was its trustworthiness. In the circum-stances of Chambers, the Court, breaking from thestrict Donnelly rule, placed the trustworthiness ofthe declarations against penal interest on par withthat of declarations against pecuniary or propri-etary interests. The Court justified this parity oftrustworthiness because of several facts of the case.All McDonald's admissions were made to closefriends within a day of the murder. Each admissionwas corroborated by other evidence.32 These ad-

2'S J. WIGM oE, Evm~xcE § 1421, at 204 (1940).228 U.S. 243, 272-73 (1913).

29 8 Eng. Rep. 1034 (1844). In this case, George Itried to show the lawfulness of his parents' marriageby the admission of a deceased minister's declarationthat he married the couple in a Roman Catholic church.Such a marriage was a felony at the time, making thedeclaration against the minister's penal interests.

30 Id. at 1045.31Justice Holmes, joined by Justices Hughes and

Lurton, dissented in Donnelly, arguing that no earlierSupreme Court case compelled such a decision. Thedissenters considered the general declaration againstinterest exception well-taken. However, they con-sidered it contrary to common sense to give declara-tions against penal interests less weight than that ofpecuniary or proprietary interests. 228 U.S. at 277-78.

5 J. WXmuoRE, EvmExcE § 1476-1477, at 281-90(1940), described the Sussex case as poorly argued andagainst all past precedent. Wigmore further discreditedSussex because it absurdly and indiscriminately re-jected all declarations against penal interest.

12 The corroborating evidence included McDonald'ssworn confession; testimony of an eyewitness to theshooting; testimony of another eyewitness that Mc-Donald held a gun after the shooting and proof thatMcDonald previously owned the type of gun used inthe murder. 410 U.S. at 300.

missions were obviously against McDonald's in-terests, as McDonald had nothing to gain bythem." Finally, if there were questions as to thevalidity of such declarations, McDonald was in thecourtroom and was under oath.4

In its disapproval of the inadmissibility of dec-larations against penal interests under the circum-stances of this case, the Court followed the lead ofnumerous statutes,35 court decisions, 8 and com-mentatorsn which also disapproved or modified thecommon law rule. The Court, giving great weightto the trustworthiness of the declarations againstpenal interest in Chambers, dispensed with the re-quirement that the declarant be unavailable. This

requirement was previously necessary to the admis-sibility of any declaration against interest. The una-vailability of the dedarant as a prerequisite for use

"In establishing the Mississippi rule of inadmissi-bility of declarations against penal interest, Brown v.State, 99 Miss. 719, 55 So. 2d 961 (1911), is distin-guishable from Chambers' case. In Brown, the de-clarant was motivated in his admission to save his ownbrother. In Chambers, McDonald had no such impetus.410 U.S. at 300-01 n.20.

34 This point is also distinguishable from Donnellyand Brown in which the declarant was unavailable atthe trial. 410 U.S. at 300-01 n.20.

11 For statutes holding the unavailability of thedeclarant unnecessary, see N.J. STAT. ANN. § 2A:84 A, Rule 63 (10) (Supp. 1969); KAN. STAT. ANN.60-4600) (1964); V.I. CODE ANN. § 932 (10) (1967);C. Z. CoDE 5, 2962 (10) (1962); UNiomM Rutrxs orEvDmENc 63(10) (1953); A.L.I. MODEL CODE OFEvmEcE, Rule 509 (1942); PROPosED FED. R. or Ev.8-04(b) (4) (1969). For one holding the unavailabilityof the declarant necessary, see CAL. EviD. CODE § 1230r(West 1965).

31See, e.g., People v. Spriggs, 60 Cal. 2d 868, 389P.2d 377 (1964) (Traynor, J.). The testimony of a non-party to have possessed heroin for which Spriggs wastried was admissible because 1) declarations againstpenal interest are no less trustworthy than proprietaryand pecuniary declarations; 2) penal consequences arean adequate deterrent to assure trustworthiness; 3)convictions mean economic loss, so such declarationsagainst penal interset mean pecuniary loss. Althoughunavailability is unnecessary here, the codificationmade it necessary. See CAL Evw. CODE § 1230 (West1965).

See also Brennan v. State, 151 Md. 265, 134 A. 148(1926) (The testimony of an oral declaration of guiltby one not party to bastardy prosecution, later com-mitting suicide, was admissible); State v. Sejuelas, 94N.J. Super. 576, 229 A. 2d 659 (1967) (The New Jerseystatute admitting declarations against penal interestwas upheld); People v. Brown, 26 N.Y.2d 88, 257N.E.2d 16 (1970) (Declarations against penal interestare admissible if material and the person making thestatement is unavailable); Newberry v. Common-wealth, 191 Va. 445, 61 S.E.2d 318 (Ct. of App. 1950(The testimony concerning the declaration by one ad-mitting a murder for which his brother was tried wasadmissible).

375 J. WIGMORE, EvmENcE §§ 1476-77, at 281-90(1940).

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of the exception was recommended by Wigmoreand is required by a significant minority of casesand statutes. 9 Viewing availability of the declarantas a cross-check against any alleged untruthfulnessof witnesses, the Chambers Court necessarily re-jected the rationale requiring unavailability. 0 Therequirement that the declarant be unavailable waspremised on the assumption that if such trust-worthy evidence existed and the declarant wasavailable to testify at trial, testimony by a thirdparty as to the declaration would be too remote.If, however, the declarant was unavailable, itwould necessarily be in the best interests of justiceto admit the testimony of a third person whichotherwise would be lost. The Chambers Court feltit important to have no requirement as to theavailability of the declarant binding the evidentiaryprocess. Since the declarant was available in Cham-bers, the trier of fact could weigh different accountsof an alleged declaration. If the declarant wereunavailable, the declaration would still be admissi-ble.

In a concurring opinion, Justice White dealt withthe question of the Court's jurisdiction in a differ-ent manner. Justice White conceded that if thehighest state court failed to pass on a question, theSupreme Court would presume this silence was dueto improper presentation before the state courtsA'However, Justice White recognized that on occa-sion, the Court would investigate state law to de-termine if a federal question, to which the statesupreme court was silent, was properly raisedunder state procedure. This investigation would bemost appropriate here, because the state concededthe Court's jurisdiction and that the issues wereproperly raised in state courts.

Justice White pointed to Mississippi cases wherethe contemporaneous objection rule was not en-forced and where the Mississippi supreme courtconsidered an issue for the first time.C Such caseswere exceptions because fundamental constitu-tional rights were involved. Henry v. JlfississippiOconstrued this contemporaneous objection rule

35 J. WiGmoRE, EvmENcE § 1421, at 204 (Chad-bourn ed. 1970).

39 See, e.g., People v. Brown, 26 N.Y. 88, 257 N.E.2d16 (1970); CAL. Evin. CoDE § 1230 (West 1965);PRoPosED FED. R. or Ev. 8-04(b)(4).

40 410 U.S. at 301.41410 U.S. at 303-04, citing Street v. New York, 394

U.S. 576, 582 (1969).40 410 U.S. at 304-05, citing Carter v. State, 198

Miss. 523, 21 So. 2d 404 (1945); Brooks v. State,209 Miss. 150, 46 So. 2d 94 (1950).

"379 U.S. 443 (1965).

strictly, but on remand, the Mississippi supremecourt interpreted it to be flexible enough so thatdespite its non-compliance, a Mississippi appellatecourt could review the issue "to enforce constitu-tional rights in the interest of justice." ' Thus,much of the pre-Henry exception to protect funda-mental constitutional rights was preserved. 45

Therefore, Justice White allowed jurisdiction asChambers' fundamental constitutional challengeto the trial court's evidentiary rulings was properlymade to the Mississippi supreme court and thestate did not contend the issue was not properlyconsidered by the Mississippi high court.

Justice Rehnquist dissented because he did notthink the Court had jurisdiction." Justice Rehn-quist cited Street v. New York 7 which demandedthat a federal claim "be brought to the attention ofthe state court with fair precision and in duetime." 43 According to Justice Rehnquist, Cham-bers, by making his constitutional evidentiary ob-jections at motion for retrial, did not object to theconstitutional issue in due time. This tardiness ofobjection denied the court "the opportunity toreconsider ... [Chambers'] evidentiary ruling inthe light of the constitutional objection." 9 Suchan opportunity for the trial court was a valid stateinterest.50 To object timely to the ruling, but innon-constitutional terms, did not satisfy the con-temporaneous objection rule.5 Unlike the majority,Justice Rehnquist did not consider Chambers' con-stitutional objection to be the cumulative sum ofthe trial court's rulings, which could only havebeen totaled up and presented after the formaltrial. Assuming such an objection was made in duetime, Chambers' broad assertion of unfairness un-

4 Henry v. State, 253 Miss. 263, 287, 174 So. 2d348, 351 (1965).

46See Wood v. State, 257 So. 2d 193, 200 (Miss.1972) (The Mississippi supreme court considered theconstitutional question of unfair state cross-examinationdespite the failure to object at trial); King v. State,230 So. 2d 209, 211 (Miss. 1970) (A request for aperemptory instruction was allowed despite the failureto object at trial to alleged illegally obtained evidence).

46410 U.S. at 308 (Rehnquist, J., dissenting). As tothe merits, justice Rehnquist related, "I would haveconsiderable difficulty in subscribing to the Court'sfurther constitutionalization of the intricacies of thecommon law of evidence."

47394 U.S. 576 (1969).' Id. at 582.49 410 U.S. at 310.0 Id., citing Henry v. Mississippi, 379 U.S. 443,

448 (1965).51 A post-trial objection on constitutional groundsto a condemnation award was ruled not timely as theobjection made at trial was made on non-constitutionalgrounds in Bailey v. Anderson, 326 U.S. 203 (1945).