Harris v. New York/Dissent Brennan

by William J. Brennan, Jr.

United States Supreme Court

401 U.S. 222

Harris  v.  New York

 Argued: Dec. 17, 1970. --- Decided: Feb 24, 1971

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL, join, dissenting.

It is conceded that the question-and-answer statement used to impeach petitioner's direct testimony was, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), constitutionally inadmissible as part of the State's direct case against petitioner. I think that the Constitutional also denied the State the use of the statement on cross-examination to impeach the credibility of petitioner's testimony given in his own defense. The decision in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), is not, as the Court today holds, dispositive to the contrary. Rather, that case supports my conclusion.

The State's case against Harris depended upon the jury's belief of the testimony of the undercover agent that petitioner 'sold' the officer heroin on January 4 and again on January 6. Petitioner took the stand and flatly denied having sold anything to the officer on January 4. He countered the officer's testimony as to the January 6 sale with testimony that he had sold the officer two glassine bags containing what appeared to be heroin, but that actually the bags contained only baking powder intended to deceive the officer in order to obtain $12. The statement contradicted petitioner's direct testimony as to the events of both days. The statement's version of the events on January 4 was that the officer had used petitioner as a middleman to buy some heroin from a third person with money furnished by the officer. The version of the events on January 6 was that petitioner had again acted for the officer in buying two bags of heroin from a third person for which petitioner received $12 and a part of the heroin. Thus, it is clear that the statement was used to impeach petitioner's direct testimony not on collateral matters but on matters directly related to the crimes for which he was on trial. ^[1]

Walder v. United States was not a case where tainted evidence was used to impeach an accused's direct testimony on matters directly related to the case against him. In Walder the evidence was used to impeach the accused's testimony on matters collateral to the crime charged. Walder had been indicted in 1950 for purchasing and possessing heroin. When his motion to suppress use of the narcotics as illegally seized was granted, the Government dismissed the prosecution. Two years later Walder was indicted for another narcotics violation completely unrelated to the 1950 one. Testifying in his own defense, he said on direct examination that he had never in his life possessed narcotics. On cross-examination he denied that law enforcement officers had seized narcotics from his home two years earlier. The Government was then permitted to introduce the testimony of one of the officers involved in the 1950 seizure, that when he had raided Walder's home at that time he had seized narcotics there. The Court held that on facts where 'the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics,' 347 U.S., at 65, 74 S.Ct., at 356, the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), would not extend to bar the Government from rebutting this testimony with evidence, although tainted, that petitioner had in fact possessed narcotics two years before. The Court was careful, however, to distinguish the situation of an accused whose testimony, as in the instant case, was a 'denial of complicity in the crimes of which he was charged,' that is, where illegally obtained evidence was used to impeach the accused's direct testimony on matters directly related to the case against him. As to that situation, the Court said:

'Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.' 347 U.S., at 65, 74 S.Ct., at 356.

From this recital of facts it is clear that the evidence used for impeachment in Walder was related to the earlier 1950 prosecution and had no direct bearing on 'the elements of the case' being tried in 1952. The evidence tended solely to impeach the credibility of the defendant's direct testimony that he had never in his life possessed heroin. But that evidence was completely unrelated to the indictment on trial and did not in any way interfere with his freedom to deny all elements of that case against him. In contrast, here, the evidence used for impeachment, a statement concerning the details of the very sales alleged in the indictment, was directly related to the case against petitioner.

While Walder did not identify the constitutional specifics that guarantee 'a defendant the fullest opportunity to meet the accusation against him * * * (and permit him to) be free to deny all the elements of the case against him,' in my view Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), identified the Fifth Amendment's privilege against self-incrimination as one of those specifics. ^[2] That privilege has been extended against the States. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). It is fulfilled only when an accused is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will,' id., at 8, 84 S.Ct., at 1493 (emphasis added). The choice of whether to testify in one's own defense must therefore be 'unfettered,' since that choice is an exercise of the constitutional privilege, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Griffin held that comment by the prosecution upon the accused's failure to take the stand or a court instruction that such silence is evidence of guilt is impermissible because it 'fetters' that choice-'(i)t cuts down on the privilege by making its assertion costly.' Id., at 614, 85 S.Ct., at 1233. For precisely the same reason the constitutional guarantee forbids the prosecution to use a tainted statement to impeach the accused who takes the stand: The prosecution's use of the tainted statement 'cuts down on the privilege by making its assertion costly.' Ibid. Thus, the accused is denied an 'unfettered' choice when the decision whether to take the stand is burdened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testimony denying complicity in the crime charged against him. ^[3] We settled this proposition in Miranda where we said:

'The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner * * *. (S)tatements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial * * *. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.' 384 U.S., at 476-477, 86 S.Ct., at 1629 (emphasis added).

This language completely disposes of any distinction between statements used on direct as opposed to cross-examination. ^[4] 'An incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn.' People v. Kulis, 18 N.Y.2d 318, 324, 274 N.Y.S.2d 873, 876, 221 N.E.2d 541, 543 (1966) (dissenting opinion).

The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The 'essential mainstay' of that system, Miranda v. Arizona, 384 U.S., at 460, 86 S.Ct. 1602, is the privilege against self-incrimination, which for that reason has occupied a central place in our jurisprudence since before the Nation's birth. Moreover, 'we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. * * * All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government * * * must accord to the dignity and integrity of its citizens.' Ibid. These values are plainly jeopardized if an exception against admission of tainted statements is made for those used for impeachment purposes. Moreover, it is monstrous that courts should aid or abet the law-breaking police officer. It is abiding truth that '(n)othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.' Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081 (1961). Thus even to the extent that Miranda was aimed at deterring police practices in disregard of the Constitution, I fear that today's holding will seriously undermine the achievement of that objective. The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State's direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent.

Notes

1. The trial transcript shows that petitioner testified that he remembered making a statement on January 7; that he remembered a few of the questions and answers; but that he did not 'remember giving too many answers.' When asked about his bad memory, petitioner, who had testified that he was a heroin addict, stated that 'my joints was down and I needed drugs.'
2. Three of the five judges of the Appellate Division in this case agreed that the State's use of petitioner's illegally obtained statement was an error of constitutional dimension. People v. Harris, 31 A.D.2d 828, 298 N.Y.S.2d 245 (1969). However, one of the three held that the error did not play a meaningful role in the case and was therefore harmless under our decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). He therefore joined in affirming the conviction with the two judges who were of the view that there was no constitutional question involved. 31 A.D.2d, at 830, 298 N.Y.S.2d, at 249. I disagree that the error was harmless and subscribe to the reasoning of the dissenting judges, id., at 831-832, 298 N.Y.S.2d, at 250:
3. It is therefore unnecessary for me to consider petitioner's argument that Miranda has overruled the narrow exception of Walder admitting impeaching evidence on collateral matters.
4. Six federal courts of appeals and appellate courts of 14 States have reached the same result. United States v. Fox, 403 F.2d 97 (CA 2 1968); United States ex rel. Hill v. Pinto, 394 F.2d 470 (CA 3 1968); Breedlove v. Beto, 404 F.2d 1019 (CA 5 1968); Groshart v. United States, 392 F.2d 172 (CA 9 1968); Blair v. United States, 130 U.S.App.D.C. 322, 401 F.2d 387 (1968); Wheeler v. United States, 382 F.2d 998 (CA 10 1967); People v. Barry, 237 Cal.App.2d 154, 46 Cal.Rptr. 727 (1965), cert. denied, 386 U.S. 1024, 87 S.Ct. 1382, 18 L.Ed.2d 464 (1967); Velarde v. People, 171 Colo. 261, 466 P.2d 919 (1970); State v. Galasso, 217 So.2d 326 (Fla.1968); People v. Luna, 37 Ill.2d 299, 226 N.E.2d 586 (1967); Franklin v. State, 6 Md.App. 572, 252 A.2d 487 (1969); People v. Wilson, 20 Mich.App. 410, 174 N.W.2d 79 (1969); State v. Turnbow, 67 N.M. 241, 354 P.2d 533 (1960); State v. Catrett, 276 N.C. 86, 171 S.E.2d 398 (1970); State v. Brewton, 247 Or. 241, 422 P.2d 581, cert. denied, 387 U.S. 943, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967); Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968); Spann v. State, 448 S.W.2d 128 (Tex.Cr.App.1969); Cardwell v. Commonwealth, 209 Va. 412, 164 S.E.2d 699 (1968); Gaertner v. State, 35 Wis.2d 159, 150 N.W.2d 370 (1967); see also Kelly v. King, 196 So.2d 525 (Miss.1967). only three state appellate courts have agreed with New York. State v. Kimbrough, 109 N.J.Super, 57, 262 A.2d 232 (1970); State v. Butler, 19 Ohio St.2d 55, 249 N.E.2d 818 (1969); State v. Grant, 77 Wash.2d 47, 459 P.2d 639 (1969).