HARRISON v. UNITED STATES
No. 876
Supreme Court of the United States
June 10, 1968
392 U.S. 219
Argued April 4, 1968.
Francis X. Beytagh, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was brought to trial before a jury in the District of Columbia upon a charge of felony murder.1 At that trial the prosecution introduced three confessions allegedly made by the petitioner while he was in the custody of the police. After these confessions had been admitted in evidence, the petitioner took the witness stand and testified to his own version of the events leading to the victim‘s death. The jury found the petitioner guilty, but the Court of Appeals reversed his conviction, holding that the petitioner‘s confessions had been illegally obtained and were therefore inadmissible in evidence against him. Harrison v. United States, 123 U. S. App. D. C. 230, 238, 359 F. 2d 214, 222; on rehearing en banc, 123 U. S. App. D. C. 239, 359 F. 2d 223.2
Upon remand, the case again came to trial before a jury. This time the prosecutor did not, of course, offer the alleged confessions in evidence. But he did read to the jury the petitioner‘s testimony at the prior trial—testimony which placed the petitioner, shotgun in hand, at the scene of the killing. The testimony was read over the objection of defense counsel, who argued that the petitioner had been induced to testify at the former trial only because of the introduction against him of the inadmissible confessions. The petitioner was again convicted, and the Court of Appeals affirmed.3 We granted certiorari to decide whether the petitioner‘s trial testimony was the inadmissible fruit of the illegally procured confessions.4
In this case we need not and do not question the general evidentiary rule that a defendant‘s testimony at a former trial is admissible in evidence against him in later proceedings.5 A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.
Here, however, the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained,6 and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree, to invoke a time-worn metaphor. For the “essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392.7
In concluding that the petitioner‘s prior testimony could be used against him without regard to the confessions that had been introduced in evidence before he testified, the Court of Appeals relied on the fact that the petitioner had “made a conscious tactical decision to seek acquittal by taking the stand after [his] in-custody statements had been let in . . . .”8 But that observation is beside the point. The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.9 As Justice Tobriner wrote for the Supreme Court of California,
“If the improper use of [a] defendant‘s extrajudicial confession impelled his testimonial admission of guilt, . . . we could not, in order to shield
the resulting conviction from reversal, separate what he told the jury on the witness stand from what he confessed to the police during interrogation.”10
The remaining question is whether the petitioner‘s trial testimony was in fact impelled by the prosecution‘s wrongful use of his illegally obtained confessions. It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. “The springs of conduct are subtle and varied,” Mr. Justice Cardozo once observed. “One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all
No such showing has been made here. In his opening statement to the jury, defense counsel announced that the petitioner would not testify in his own behalf. Only after his confessions had been admitted in evidence did he take the stand. It thus appears that, but for the use of his confessions, the petitioner might not have testified at all.13 But even if the petitioner would have decided to testify whether or not his confessions had been used, it does not follow that he would have admitted being at the scene of the crime and holding the gun when the fatal shot was fired. On the contrary, the more natural inference is that no testimonial admission so damaging would have been made if the prosecutor had not already
It has not been demonstrated, therefore, that the petitioner‘s testimony was obtained “by means sufficiently distinguishable” from the underlying illegality “to be purged of the primary taint.” Wong Sun v. United States, 371 U. S. 471, 488. Accordingly, the judgment must be
Reversed.
MR. JUSTICE BLACK, dissenting.
It seems to me that the Court in this case carries the Court-made doctrine of excluding evidence that is “fruit of the poisonous tree” to a wholly illogical and completely unreasonable extent. For this and many of the reasons suggested by my Brother WHITE‘S dissent, I agree that holdings like this make it far more difficult to protect society “against those who have made it impossible to live today in safety.” I would affirm this conviction.
MR. JUSTICE HARLAN, dissenting.
Like my Brother BLACK and my Brother WHITE, I am unable to understand why the Court reverses this petitioner‘s conviction. There is no suggestion that the testimony in question, given on the stand with the
I do not doubt that “voluntariness” is not always a purely subjective question as to the defendant‘s state of mind; it may involve an objective analysis of the fairness of the situation in which government agents placed him. Nor would I rule out the possibility that a direct product of unlawful official activity might properly be excludable as a fruit of that activity—even where the product is so unforeseeable that a deterrent rationale for exclusion will not suffice—on the ground that the Government should not play an ignoble part.
But these concepts do not reach this case. Here, apparently in all good faith, the Government offered at one trial an out-of-court confession by petitioner. It was objected to on the ground that it had been obtained in violation of the Mallory rule. That objection was overruled, and the defense had to decide how to proceed. While defense counsel may have believed he had good grounds for reversal on appeal (as the Court of Appeals later held he did) he also had to present a defense in an effort to persuade the jury to acquit. That defense had of course to be structured to meet the Government‘s case as it stood—including but not limited to the admitted confession—and counsel decided to put his client on the stand.*
The situation was one that criminal and civil defendants face all the time: believing that error has been committed that will result in reversal on appeal, they must nevertheless present a defense, and in doing so may help the other side on retrial. The situation here is no different in principle from the sacrifice of surprise, or the conveyance of important leads to the other side, that may occur because a trial continues even after error has been committed. It is a price that is paid for having a system of justice that insists, generally, upon full trials before appellate review of points of law. It is a problem that can be avoided, within our system, only by doing what is done here, namely, reaching the wrong result as between the litigants. For me this is not acceptable doctrine.
MR. JUSTICE WHITE, dissenting.
This case and others like it would be more comprehensible if they purported to make procedures for trying criminals more reliable for finding facts and minimizing mistakes. Cases like United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Bruton v. United States, 391 U. S. 123 (1968), for example, at least could claim this redeeming virtue. But here, as in Miranda v. Arizona, 384 U. S. 436 (1966), decision has emanated from the Court‘s fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity.
Three times petitioner has been convicted of murdering his robbery victim with a shotgun. The first trial was in 1960. At the second trial, in 1963, written and oral statements by petitioner and his codefendants were introduced. Petitioner then took the stand and gave his version of the events leading to the killing. He admitted being at the scene of the crime. Conviction followed. The Court of Appeals again reversed, this time on the ground that petitioner‘s statements were wrongfully admitted, not because they were involuntary or in any way coerced, but because they violated Mallory v. United States, 354 U. S. 449 (1957), and recent decisions of the Court of Appeals in Killough v. United States, 119 U. S. App. D. C. 10, 336 F. 2d 929 (1964), and Harling v. United States, 111 U. S. App. D. C. 174, 295 F. 2d 161 (1961). By the time of the third trial, in 1966, prosecution witnesses were dead or unavailable. Considerable reliance was placed on the testimony which had been given at the second trial, including petitioner‘s admissions when he took the stand in his own defense. Harrison was convicted for a third time. It is this conviction which the Court now reverses, contrary to the judgment of the Court of Appeals. That court found no reason to exclude petitioner‘s voluntary statements, made under oath in open court and with the advice of counsel.
There is no suggestion that petitioner‘s testimony at his second trial was untruthful or unreliable. Nor does the Court hold that Harrison was compelled to take the stand and incriminate himself contrary to his privilege under the
The doctrine that the “fruits” of illegally obtained evidence cannot be used to convict the defendant is complex and elusive. There are many unsettled questions under it. The Court, however, seems to overlook all of these problems in adopting an overly simple and mechanical notion of “fruits” to which I cannot subscribe. In the view of the Court, if some evidentiary matter is causally linked to some illegal activity of the Government—linked in that broad “but for” sense of causality which rarely excludes relevant matters which come later in time—it is a “fruit” and excludable as such. This strictly causal notion of fruits is, of course, consistent with the dictum in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920), that “[i]f knowledge of [the facts] is gained from an independent source they may be proved like any others, but the knowledge gained by the Government‘s own wrong cannot be used by it . . . .” In Silverthorne, however, the “fruits” were copies and photographs of original documents illegally seized; it would be difficult to imagine a case where the fruits hung closer to the trunk of the poison tree. The Court seems to overlook the critical limitation placed upon the fruits doctrine in Nardone v. United States, 308 U. S. 338, 341 (1939), where Mr. Justice Frankfurter stated that:
“Sophisticated argument may prove a causal connection between information obtained through illicit
wire-tapping and the Government‘s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.”
Cf. Wong Sun v. United States, 371 U. S. 471, 487-488 (1963); United States v. Wade, 388 U. S. 218, 239-242 (1967). The concept implicit in the quoted statement, as I understand it, is that mere causal connection is insufficient to make something an inadmissible fruit. Rather it must be shown that suppression of the fruit would serve the same purpose as suppression of the illegal evidence itself. When one deals with the fruits of an illegal search or seizure, as in Silverthorne, or with the fruits of an illegal confession, as the Court decides that we do in this case,1 the reason for suppression of the original illegal evidence itself is prophylactic—to deter the police from engaging in such conduct in the future by denying them its past benefits. See Linkletter v. Walker, 381 U. S. 618, 634-639 (1965). Since deterrence is the only justification for excluding the original evidence, there is no justification for excluding the fruits of such evidence unless suppression of them will also serve the prophylactic end. I deem this the crucial issue, and proper resolution of it requires a different result from that to which the Court has bulled its way.
As the Court makes plain, it is “difficult to unravel the many considerations that might have led the petitioner to take the witness stand . . . .” Ante, at 224. Given the difficulty of determining after the fact why the petitioner took the stand, it would seem patent that
Even if it were true that the rule adopted by the Court served some minimal deterrent function, I would not be
I am deeply concerned about the implications of the Court‘s unexplained and unfounded decision. If Harrison‘s trial testimony was tainted evidence because induced by an illegal confession, then it follows, as the Court indicates by quoting from People v. Spencer, 66 Cal. 2d 158, 164, 424 P. 2d 715, 719 (1967), that Harrison‘s testimony would be automatically excluded even if the confessions had not been admitted. Similarly, an inadmissible confession preceding a plea of guilty would taint the plea. And, as a final consequence, today‘s decision would seem to bar the use of confessions defective under Miranda or Mallory from being used for impeachment when a defendant takes the stand and deliberately lies. All these results would seem to flow necessarily from the Court‘s adoption of a test for inadmissible fruits which relies only upon the existence of a causal link between the original evidence seized illegally and any subsequent product of it. Since precluding the prosecution from any of these uses will not serve the prophylactic end which alone justifies the exclusion of the original illegal evidence, and because all of these uses of evidence admittedly of relevance and high probative value are important to the overriding goal of criminal law—the just conviction of the guilty—I must dissent.
The Court compounds its substantive error today by the procedural ploy of switching the burden of proof to the prosecution. It rules that once it is shown that the defendant testified after inadmissible confessions were
Given the Court‘s current ideology about confessions, there is perhaps some logic on the side of the Court. But common sense and policy are squarely opposed. The important human values will not be served by the obstacles which the Court now places in the path of policeman, prosecutor, and trial judge alike. Criminal trials will simply become less effective in protecting society against those who have made it impossible to live today in safety.