Lawrence C. Miller, Jr. v. United States

judgmеnt of the District Court Judge BAZELON files Chief reversed. Judge opinion. Circuit FAHY files a concurring opinion separate Chief in reversal. BAZELON Circuit Judge BURGER dissents. my ring Judge. this dollar and and will BAZELON, Chief go get your back and wallet.’ Wat- robbery, Appellant convicted was took dollar and son about im- 22-2901, and sentenced D.C.Code§ appear- time Police Mitchell Officer years. His prisonment to six for two appellant custody. ed and took into n conviction testimony rested on During ensuing an excitement witness, Watson. complaining Cornell unknown citizen returned Watson’s described its brief the Government In he wallet to him. Watson testified testimony follows: this anyоne did not see take his wallet “ * * * Watson testified anyone away.” or see throw it July 26, about 5:15 P.M. on Appellant now claims errors in the work route home from he was en jury instructions which did not assert he boarding at and Flori- and 7th bus at the trial. A discussion of the evidence Avenue, in the District da Northwest determining these essential whether containing His wallet of Columbia. so, and, claims are valid if whether papers personal dollars and fourteen rights affect substantial within the mean- hip pocket at his left was in ing “plain of the Rule error” rule. boarding the bus he was As time. (b), Fed.R.Crim.P. slight jostle subsequent- and he felt relating I discuss first the evidence missing. ly his wallet was discovered corpus Although delicti. there was a conversation a result of As no direct evidence that was wallet indi- persons record on the bus [The person taken complain- from the “they told that he was cates that ing witness, testimony there was cir- running people two had observed jury from which could cumstances gotten had Florida Avenue down inferred have picked either that the wallet was * * got off the Watson *.”] off pocket, from his or that it was Florida Avenue at 7th bus accidentally dropped pocket from his alley. Upon enter- east into went ing picked up by was someone who ran off alley four observed Watson with it.1 including appellant, men, or five jury principal had looking through therefore two a wallet was who perform. pass tasks to belonging It had to on the Watson described truth of the witness’ uncon- him, had on his and the one he testimony tradicted boarding he had “felt a prior person bus. slight jostle” and had been told yelled, ‘Hey, my that “two wal- that’s Watson people running gave down me,’ [were] Florida it let. Give back Avenue.” testimony, If believed away appellant to the who ran chase jury then had to decide holding further the wallet. The chase still question whether these circumstаnces a number of blocks and sud- lasted warranted an inference that denly appellant stopped wallet and came was stolen dentally. dropped rather than caught acci- towards Watson who back hold of him. Watson testified that appellant

he asked for his wallet and outlining No instruction step this two replied, man, appellant ‘Here, process take requested given. was Ab- would, course, Appellant argues 1. The latter conclusion that, since all the evi acquittal require charged. of the crime dence that a crime was committed was challenge “circumstantial,” was no There to the sufficien- an instruction was re cy quired of the evidence either at trial or on that “unless there is substantial appeal, prepared and I am every facts which exclude hypothesis basis of this record to hold that the case reasonable that of improperly jury. submitted to the the verdict must be not Carter v. United U.S.App. requested, Had such an 231-232, instruction been D.C. 252 F.2d 612- give failure it would have been re- In Holland v. United versible error. 139-140, 75 S.Ct. 137- request, give my sent a an in- opinion, plain failure to such it. it was er- ordinarily affecting rights struction revers- ror would substantial to tell the judge ible af- error. But the trial here questiоn answer to this firmatively that, implied “relatively simple to arrive Rule 52 at.” testimony (b), the com- believed the of Fed.R.Crim.P. It that there follows guilt plaining witness, of the inference must abe new trial.3 should be drawn. He said: There is another matter think prob- which I we should consider it will because large “I think it is in obvious that ably arise in a new relates to trial. your measure in verdict this case proof the appellant’s complicity of in depend upon must the credence alleged the Here also there was crime. you give testimony of to the no pick direct him evidence. No one saw witnesses, the because when the pocket (if the witness’ are, decide which of witnesses these pocket was picked); indeed no one iden- your telling opinion, truth, in being tified him as on near or the bus' your I will think rest verdict of alleged at offense; the time of the and no relatively simple at.” to arrive persons him identified as one of the conveyed got well have to the This “running who off the and was bus 4 impression jury the erroneous that the down Florida Avenue.” testi- case rested on direct Government’s sought appel- The Government to link mony which, believed, practically re- alleged lant to the crime inferences quired had the conclusion that the wallet (1) unexplained possession of from pocket from been stolen of the com- recently property, (2) stolen plaining witness. flight. judge’s The trial careful instruction emphasis on judge’s trial points complete the first of these inwas determining the credi jury’s task the bility rulings Bray accord with our v. Unit minimizing testimony, and his States, U.S.App.D.C. 136, ed 113 306 F. drawing infer difficulty task the ences, of its (1962); McKnight 2d 743 v. United (1962). misleading because the more was States, C.A.D.C., 309 F.2d 660 testimony un was involved most ques difficult more contradicted. The flight, In instruction on how was not the evidence tion was whether ever, judge erroneously the trial used the true, drawn but what inference should be “рresumption.”5 word Had this error Supreme (1954), 99 L.Ed. argument, appellant alleged oral 3. On for better rule is that Court stated that “the the first time that nor neither he his law- properly instructed on where the is yer present was when the trial court doubt, such the standards for reasonable plea guilty vacated his to a lesser of- instruction on circumstan additional plea fense and reinstated his earlier confusing is and incorrect.” tial evidence charged crime. I do not interpret court, first, apparently This at challenge consider his to this action since Supreme permis ed the Court’s view as is record silent аbout the relevant mandatory with sive rather than the vari circumstances. But I would instruct circuits; Carter, ous for decided court, any after trial, permit trial at new give Holland, we failure reversed plead appellant anew. requested traditional circumstantial absolutely 4. There was no evidence that instruction. But Hunt v. appellant it was who was seen board- States, U.S.App.D.C. -, United ing leaving the bus. (1963), the “better rule” was F.2d adopted. any event, apparently In our The full instruction on was as fol- request appellant did not the Carter in lows: And, request, absent such a struction. is a further “There doctrine of law pertinent сase, of such an instruction omission that becomes in this Macaboy “plain testimony v. error.” See United and plaining witness, com- U.S.App.D.C. 53, Watson, F.2d 279 Cornell alley defendant fled where he was first confronted and ran for tending attention, failure to standard of evidence establish been called to bis' remedy it constituted reversi- would have p. at infra. ble error. See cited cases cases late decided a series In objection made; nor But no Supreme century, the United States 19th any for fuller instructions. request there evidentiary depreciated the also Court case, In the flight think context of the flight. Hickory United value of v. whole, instruction, considered as 40 L. S.Ct. affecting plain appellant’s was not error (1896), it reversed a conviction Ed. 474 my rights. opinion, substantial inBut charged judge had trial because the regarding flight, fuller instructions presumption created discuss, should, nature now which I Referring guilt. marked to “several given requested, appropriate when be ** * person had a instances ‍‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​‌​‌‌​​‌‌​​‌‌​​‌​​​​‌​​‍where future cases. undoubtedly innocent,” id. fled who assumptions underlie factual Two 420, 332, L. 16 S.Ct. at 40 160 at U.S. flight relationship and legal between flight 474, that Ed. Court concluded shortly aft- guilt: (1) flees one who that concealment) (and mere circum “are or committed when act is a criminal er weighed in and considered stances to be committing so it does is accused of he proof that with other connection concerning guilt he feels because some circumspection their which caution and feels act; (2) one that who that standing alone re when inconclusiveness quire.” concerning guilt act com- an has some at U.S. at 16 S.Ct. Id. 160 assumptions pur- Both mitted that act.6 Alberty United In v. L.Ed. 474. 10 experience, not port common to rest on 499, 511, S.Ct. principles. moral (1896), the Court L.Ed. again conviction a because reversed assumption one who The first —that flight. wrongly jury instructed on shortly a criminal is com- after act flees It noted that when is of commit- mitted or he accused ting he does feels some it concerning so because universally “it true that a is guilt act—has that been sub- man, has is conscious that he who good criticism, jected judicial a deal wrong, pursue ‘will a done certain ground that, fact, common ex- on the harmony not in with the con- course support perience does not it. a man who is conscious of duct of having an act Appeals, done which is inno- New Court of in a York right cent, proper;’ leading eighty years since it is decided case over knowledge common ago,7 said, many a matter of “There are so reasons entirely men are innocent conduct, who do such consistent with inno for fly scarcely from the scene of cence, up comes sometimes it may you brings period consider it as a circum- blocks. several This guilt. indicating If, presumption on the other stance into the case a or ele- an explained hand, defendant has his hinges ment of which consideration point presence flight principle at the where he said he around by jurors by accosted was first considered your complete satisfaction, you guilt. wоrds, witness In other are entitled flight testimony you then the element not a fac- to draw from ac- you.” [Empha- considered cept flight tor to be as credible a conclusion that supplied.] part sis of a defendant was or is instructed, You are evidence of puts Wigmore it follows: 6. “There are flight however, of law as a matter involved,— processes or two inferences merely leaving, means not means to consciousness from conduct leaving guilt guilt under a consciousness from consciousness of and then Wigmore purpose evading deed.” Evidence for the arrest. (1940). § 173 Therefore, find that the defеnd- was induced ant’s conduct Ryan fear People, v. N.Y. arrest, justice (1880). then it is a through being appre- fear of recent case which raised the is- crime guilty parties, petitioner’s jus- or from sue “whether hended as the unwillingness appear as wit- tified an an inference of sufficient to generate accept- probable arrest,” is it true as an nesses. Nor cause Supreme ‘the said, of criminal law that ed axiom Court have “[W]e consistently pursueth, probative man flee when no wicked doubted the value righteous as a but the are as bold criminal trials of evidence that the ac- sup- men hes- сused lion.’ sometimes fled the Innocent scene of an actual or posed Wong neces- itate to confront a crime.” Sun v. United —not sarily they 471, 483-484, fear because U.S. 83 S.Ct. protect them, 407, 415-416, be- will 9 L.Ed.2d 441 they do not wish their names cause caution, judicial how- chorus of This appear in connection with crimi- assump- ever, limited to the first has been being acts, nal are humiliated at shortly after a who flees tion obliged popular odium of to incur the he committed or when act criminal trial, arrest because committing feels some is accused annoy- put do not wish to be concerning has not been that аct. defending expense of them- ance or assumption that second extended selves.” concerning guilt feels some one who that act. Courts committed act has States, also Allen v. United 164 U.S. See accepted commonly have commentators 492, 154, (1896); L.Ed. 17 S.Ct. 41 528 assumption criticism. without this second States, 17 Starr v. United Wigmore judicial atti- summarizes (1897). 41 L.Ed. 577 S.Ct. assumption saying by this tude opinions appellate also Recent have not- dispute “gives no rise to ambiguity indicating of as ed the of a leaves “The commission crime feelings guilt. of In Vick v. United usually upon a consciousness (1954), F.2d Fifth impression character- which moral is a conviction reversed Circuit substantial- man is without The innocent istic. flight. ly predicated on The court noted usually guilty it; man has it. light alone has been said to “[f] has never been value evidential Its ordinarily slight value, ‘of be of none from con- The inference doubted. pointing unless there are whatever facts guilt ‘guilty’ is al- of sciousness ” prompted (cit- which it’ to the motive ways is a in evidence. It available ing cases); it went on to observe that one, powerful the on- most because may “[ajppellant have fled because of a ly hypothesis is conceivable other guilt, thought or because sense of he person’s con- the rare one * * * presence suspicious his by delusion, is caused sciousness might which lead to circumstance his in- doing by the actual and not dictment, or because he did not want ” act.9 guilt either to disclose of his brother although recognize nephew, punished Thus, and his to be some courts refusing flight may prompted by contempt for to do be so. mo- some- One feelings likely thing guilt, Appel- judi- is about as as other than tive another. may guilty, opinion his seems to lant be conviction can- cial assume that but upon conjecture prompted by feelings not rest mere is and sus- certainly guilty picion.” F.2d accused is Id. 216 at 233.8 doer. Cooper caught people also v. United in a 8. See innocent web of cir U. frequently S.App.D.C. (1954), become F.2d 39 cumstances terror- Judge Prettyman wherein observed for stricken.” that a certain this court circumstance explained by Wigmore terrorized on Evidence § “is as innocence (citing all, cases). §§ as a sense also id. at well After See being empirical suggests accused, is he But data which he but available guilty concerning this caution of a similar misdemeanour wisdom of ago Sigmund you nothing Many assumption. years of which know you legal profession: do not accuse him. Freud warned the quite truly He therefore denies * * * by astray may led “You be guilt doing case, in the so but though he as reacts a neurotic who betrays guilt his sense of re- though inno- he is were even gard to the neu- other. The adult lurking sense cent —because many rotic behaves in this guilt already in him assimilates ways just other child does. against him on this made accusation People kind of this are often to be particular must You occasion. met, question and it is indeed a one; regard possibility an idle this your technique whether will suc- only nurs- think of have distinguishing ceed in such self- it. ery, you can often observe where persons from accused who are those happens child that a sometimes really guilty.10 ” a misdeed has been accused who feelings accusation, The at observation denied present who weeps sinner without actual like a time same might peo- caught. so-called well think normal as as neurotic You has been ple recognized many as- lies, has been made while child even that the significant need scholars and is innocence; factor in its serts really dynamics contemporary child view not be so. specific human misdeed behavior.11 guilty of the Compulsion problem, Reik, Psychoanalysis Freud, Ascer this see The and the 10. (1959) 32, 41, 39, 149, taining Law of Confess in Courts of Truth Papers (1959), Vol. (1906), in Collected guilt feelings subsequently 11. For of in a p. discussions observed 13. Freud variety may contexts, see, e.g., guilt” of Abraham- from derive of that a “sense sen, Psychology (Columbia The of than from Crime rather intentions” “criminal 1960) ff; Adorno, past misdeed, in 131 Frenkel- and so-called an actual Brunswick, Sanford, Levinson, Au- The individuals. neurotic as well “normal” Personality (Harper 1950) Criminality Freud, e.g., thoritarian See, From 352; Aiclihorn, Wayward ff, (1915), 410 Youth Pa in Collected of Guilt Sense (Meridian 1955) 95, 134, 175; Freud, 4, p. 342; pers (1959), The Alexander Vol. Criminal, Complete Staub, (1923), & The Ego The and in Id and the (1956) 94, ff; XIX, Allport, (1961), the Public Psychological 139 Yоl. Works Prejudice (Anchor 1958) see, Zilboorg, p. e.g., The Nature of The ff. Also ‍‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​‌​‌‌​​‌‌​​‌‌​​‌​​​​‌​​‍48 ff; Bromberg, Psychology 355 Crime —la Pun there Criminal Act and of the Psy- Remedy, 1954): (Harcourt Cause or 1 Archives “A se Crim. Brace ishment chodynamics (1955); guilt & in ab 326 Dearman can sense of exist vere hostility. Smith, single of Unconscious Motivation and the act of one overt sence self-reproaching Polygraph Test, Psychiatry (May guilt Am.J. means a of A sense attitude, English self-accusatory 1963) 1017-20; Finch, one, & Intro- a self-at Psychiatry (Norton 1957) tacking *. This is a universal duction ff; English Pearson, phenomenon 38 & Emotional all of us.” Id. common to (Norton Living 1955.) Problems of 359 at 50. ff; Society Erikson, (Nor- course, was, Childhood and of not first Freud 1950) 86, 223, 338; Eeniohel, See, e.g., phenomenon. ton Dos- notice Psychoanalytic (Mod.Lib. Theory The of Neurosis Karamazov toevski Brothers 369; (1945) Ferenczi, 134-35, 1950) A wherein the author de- Lecture 757— Judges (1913), and Barristers in how Ivan —the brother who had scribes Theory father Further Contributions the death of the but had desired Technique Psychoanalysis (Hogarth perpetrated of all act —manifests not 1950); Man, Society symptoms guilt Flugel, Morals and of de- the traditional ff; (1945) Freud, Ego by Wigmore, A., The whereas the actual scribed dispassionate (1946) of in a the Mechanisms Defense murderer way, reacts cool 128- 29; Psychoanalysis Rеligion Wigmore Fromm, according to consistent — (Yale ff; 1950) Glueck, Psychodynam- similar, more —with innocence. For ic the Homosexual and more detailed treatment of Patterns in Sex recent Of- suggested guilt feelings flight It is not that necessarily feelings does not reflect guilt, only not guilt, reflect actual but of feelings and that which they always it, present do not reflect are many people, in innocent do Wigmore’s commonly accepted opin- necessarily This reflect actual “guilty ion “the consciousness” explanation may help jury to under- * * * strongest per- evidence that the stand and follow the instructiоn guilty doer,”12 son is should indeed the given, they should then are principle not be elevated to immutable presume guilt flight; either of law human behavior.13 may, not, as one need consider feelings tending in- When evidence of has been circumstance to show case, my opinion they may, troduced guilt; into a in need and that should, requested, explain feelings trial not, court consider jury, appropriate language, tending guilt.14 in show actual Personality AVinnicott, Psychiatry of Human Behavior: A proach Superego Denney, 66-67; 1955) 91; the Hero Rapaport, Lampl, A Case of Borrowed Sense of lahy, Oedipus, Myth Malinowski, age Society (Meridian 1955) Guilt, American Karpman, Mobilizing (1961) Kardiner in An form, Children (Evergreen 1958) 111; Saul, E., Time (1951), 105, 146; Riesman, pression, Clara Thomson Ethics of Freudian J. 63, 104; Horney, Scientific Crim. 1962), fender Schwartz, sis, Psychiatry (Evergreen 1960) 10, 15; Hodges, Psychoanalysis (1955); Klein, 42; Redi & Psychoanalytic Study Affects, The ff; Sehein, Scientific (Norton 1937) 42, 43; 1 Archives Outline Psychodynamics Schafer, (1956), Rank, The Int.J.Psychoanalysis Genesis The Neurotic The Hartmann, Psychoanalysis 42; in Theory, A Negro (1951) 202-06, 315-16; & (Evergreen On the Psychoanalysis Psychiatry (Lippincott 1951) Criminal of the Sense of Wineman, (Vintage 1959) 199, 270-71; Criminal Law and the Law Sex and (Ronald 1956) Freud’s Structural in ff; White, Ovesey, Psychosocial Study Roche, Lonely Guttmacher & Method and Psychology (1954) Knight, Psychoanalytic (Mod.Lib.1955) Psychoanalytic Psychoanalysis, The Donnelly, Coercive Persuasion Myth Crim.Psyehodynamies and Dynamics: Loving Hook, Children Who Hate Repression The Criminal Mind The Mark of Guilt, Personality ff 1960) Psychoanalysis Superego (1947), Crowd Complex (1948) The Abnormal ‍‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​‌​‌‌​​‌‌​​‌‌​​‌​​​​‌​​‍of the Birth of (1927); and the Sense of The Child (Norton 1952) Biologic Ap- ff; Jokl, Psychoanaly- (Free Guilt, and Beloved 61 Mul- Goldstein 2 Archives The Bases ff Philosophy Glazer Weihofen, ff; (Anchor A Plat- Theory, in Sav- (1927)'; Theory (1957); of Our Jones, ed. 8 Int. Press 290- As a 230; The The Op- ff; ff; & & 12. 2 13. See Statement of Mr. Justice Frankfur- the tempt liberations.” is a circumstance from which fer dissent 149 F.2d 105 highlighted the bell’ of their individual and collective sеrvation in United States v. their against everyone experience.” sions from experience. knowledge community arrested at ter formulated Augustine, do not see tage 1954) ; p. The the World of Capital Harvard 80; Ray, ler, For namics 490 and 1958); Wittels, risprudence haviorism ch. Criminology, The dissent also The Christian Guilt, Wigmore [guilt].” jury system in 39-40; The Book early Contemporary Thought “sense of instruction ff. Report says, Punishment in feelings, Way Library Reprint 1962) guide every A Treatise on the Medical Ju- recognition why (1930) of the time when daily conscience” or ** Camus, dangers The need for this caution is superficial Ethics Judges to Niebuhr, 2 Archives (2d on Evidence § 273. This recаlls the Sutherland, Its Psychology (1963) Judge of All Flesh the rules of law should be Insanity (1838 ed., require jurors Confessions, life reality we do not need to at- is not Cir., 1945), state purpose 186-87. Also cf. says Royal see, e.g., Psychoanalysis (Meridian The 1949-1953, Learned Hand’s ob- inevitably (Vale 1949) of the detail of An Cf. that “if we trust consideration of designed, drawing Commission on Crim.Psychody- Stranger ^[*] * Psychoanalysis Interpretation is to caution Watson, psychological to Maimonides, phenomenon (Everyman) “that 1958) would in- to “ (Hogarth response jury Heitner, * 102: “I Levitas, * 269-71. 53; conclu- ‘unring Vol. as the ignore flight (Vin- were John But- Be- 75- de- St. standing example, Judge. of our For decision. FAHY, Circuit suggest any juror we do that was Judge flight guilt. agree compelled Chief BAZELON: means I with to find that although Judge and I And BAZELON for the (1) it was error That separate position opinions file our impression District Court create grounds coincide. for reversal on tes that the case rested Government’s which, timony if or otherwise — —direct Judge BURGER, (dissenting). Circuit believed, required the conclusion Judge reversal FAHY’S vote for picked com wallet had from been Judge’s essentially based on the District plaining pocket rather than witness’ presumption ele- mention of “a or an accidentally. dropped this connection flight.1 The ment” in his on instruction not have also think court should I leading “plain error” that this is belief jury was remarked to its task any objection, is of reversal absent even relatively simple; assumption necessity predicated an on flight instructing (2) That in jury precise that the heard this word jury that it should be made clear to grasped legal concept presump- “aof only presumption there is no but tion” but failed to note the alternative flight be, may be, required to is not immediately ele- “or an followed indicating for an inference basis ment or is difficult consideration”. guilt. important distinction There enough to and sort out these articulate presumptiоn the law draws between a library concepts in the calm of a right infer- to draw an and the of a ample time, impossible me and it is ; ence any juror think he was to believe could new (3) compelled by of a That the event instruction to find that this permitted appellant agree trial should be meant would I change plead in the since the anew erroneous to instruct plea presumption made Court qualifi- District existed without given appellant’s here, cation, absence without such as was knowledge made. consent when case for here this would reverse no defense counsel took nоte of the even noting joins BAZELON objection. no matter made dissenting opinion a misunder- shows merely leaving, flight means not Vinson, then Associate Justice of Chief leaving conscious under argu but means court, to a similar Justice purpose of and for ness average idea man has some “The ment: you evading Therefore, find arrest. is, but we would not ex what murder conduct induced Jurors, that by the defendant’s say, pect judge know arrest, it is a fear of then is, go this man and decide if what murder you may justice consider it as a it.” Williams v. United of is guilt. indicating If, 300-301, 299, on the U.S.App.D.C. circumstance States, explained hand, has (1942). the defendant other 22-23 131 F.2d point presence at the where he said his of is a further doctrine law that “There by complaining accosted the he was first pertinent case, in this and that becomes your complete satisfaction, to witness testimony complaining wit is the flight element is not a then the of fac Watson, ness, that the defendant Cornell you. by (Emphasis tor considered to be alley first the where he was from fled added.) period and ran for a of sev confronted point brings Court desires to out one This into the case a “The blocks. eral presumption in this case and that or an or considera further element element hinges principal identification of around the that the the de- which the fact tion by jurors by single flight made a be considered has been wit- fendant that words, you is, complaining witness, guilt. ness, In other the of as evidence (cid:127) testimony You must consider in draw from Watson. entitled to Cornell are any accept your whether there is as a deliberations credible conclu which part flight part possibility on the of of mistake the of a defend sion that guilt. in this matter witness of You are or is evidence of ant was ” (cid:127) ** however, instructed, identification. as a matter of law Judge position, separate U.S.App.D.C. Hunt v. United BAZELON’S court, -, аdopted 316 F.2d is not the illus- 1963: tendency perfect trates a the to demand “And, flight certainly while does not distinguished trial, trial a fair as from presumption guilt, raise a . of it is requires which is all the Constitution still admissible evidence of con- agencies or mortal Lut- can afford. See guilt.” sciousness of wak v. United To 73 S.Ct. 97 L.Ed. 593 Fortunately accept the court not does per- unspoken meet this standard Judge position which, as BAZELON’S overlay fect-error-free-trial, would he it, read adopt would have us an in- jury charge already cases, in criminal struction which would at least confuse approaching “prolixity with barrier” probably drawing juries inhibit in explanations. more instructions and more such inferences. Fact issues and the accepted reasonable inferences from fact Judge flight This is a case of juries judges are for criminal —not —in argues, BAZELON but rather one of jury system trials and if we trust commencing chain of circumstances with attempt guide every we do no need to jury evidence from rea- which the could jury detail of Let alone deliberations. sonably appellant conclude with a minimum basic instruction later, bus, boarded the left it one block juries can infuse law with sense was found moments later with the vic- reality temper judicial and can tech- ,engaged tim’s di- wallet and with others nicality with the leaven of the common viding this se- in contents. It was experience community conscience. flight quence when occurred attempt scope should We to limit the wallet. owner return demanded jury telling jurors ‍‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​‌​‌‌​​‌‌​​‌‌​​‌​​​​‌​​‍deliberations instructions, reasonable With or without ignore experience their own and com- all likely from draw minds would be sense, mon and in a case like some- inferences circumstances these us, denigrate before other in evidence To accused. what unfavorable suggests plainly the case which though flight it as and treat isolate flight was indeed indicative placed in a it and instruction The desire to minimize if not eliminate apart something separate and vacuum flight as a source of reasonable inferenc- leading up to it tends from events represents attempt require es a futile distort facts. jurors “unring the bell” of their indi- charge Judge’s experiences. vidual and collective The District portions of the instruction italicized accurately jury that informed the case margin carefully disclose how flight alone is not sufficient evidence Judge jury District instructed from which fact only limited inferences can drawn be de- if it that the infer believed could and that can ex- leaving the scene “under fendant plained scrupulous compliance purpose and for consciousness holding Bray our v. United evading arrest.” This instruction regard- The “fuller States.2 instructions properly informed the flight” ing urged by BAZELON permissible draw inferences from may appropriate philosophical be to a appropriate flight in the when com- ease interchange lawyers judges, between experience suggest would human mon experts psychology, they are to- doing inference. so In the unnecessary Dis- tally such to a and add noth- entirely was Court within what ing trict wе to what whatever instruction recently conveyed suggests jury. often and most held No one have U.S.App.D.C. 136, 2. 113 306 F.2d 743 “relatively simple” simple con- guilt” case is and it “establishes imply error. stitutes grossly mark to wide of the again given charge did so. Note imagine a find it difficult to Since I “flight only that the instruction said clearly summary af- case more one for by jurors as evidence be considered firmance, must dissent. I * * *” only was and that this “testimony shown after you accept ” * * * Here as credible two-stage outlined, process

was a Judge con- seems

is what BAZELON something new; he relies tend for as quotation v. on an isolated from Vick Cir., (5th F.2d 228 United light 1954) read in that must be Circuit, subsequent case in the same F.2d United

Vaccaro v. (1961), said: where Fifth Circuit GAGER,Appellant, John C. “Flight is, course, evi- circumstantial v. guilt.” means I it that this dence of flight take Restaurant, SEIDEL,” “BOB Seidel’s can is a circumstance which Appellees. reaching toas considered verdict 17584. No. exactly which is what District Appeals United States Judge charge Court case. in this said District of Columbia Circuit. get general jurors only a few At best Argued June 1963. impressions judge’s from the trial say charge. is fair to think it Decided June pre- concepts understand such innocence, proof, sumptions burden Beyond credibility. criminal intent and description of

these fundamentals particular specific elements of a probably

crime, become most instructions confusing juror’s recollec- ‍‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​‌​‌‌​​‌‌​​‌‌​​‌​​​​‌​​‍and blur really elements of tion of the vital

'charge. complicated; it was

This trial was on a net worth based fraud case a tax conspiracy complex proof, or a method evidence, a sim- was, under case. ple operating “pickpocket” on a of a case had to convict order bus. doubt, beyond find, reasonable to complainant’s pilfered purse had been appellant committed the act. that charge credibility, at- which is entirely Judge BAZELON,

tacked fair to accused. If

correct witness jury believed appellant’s explanation, disbelieved course, case rest of the was “rela- of tively simple” as the District said. judge’s comment not believe

do

Case Details

Case Name: Lawrence C. Miller, Jr. v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 14, 1963

Citation: 320 F.2d 767

Docket Number: 17061

Court Abbreviation: D.C. Cir.