Petitioners, who were convicted of rape and given death
sentences which were later commuted to life imprisonment, brought
this proceeding under Maryland's Post-Conviction Procedure Act
alleging that they were denied due process of law by the
prosecution's suppression of evidence favorable to them and by
knowing use of perjured testimony. The evidence allegedly
suppressed concerned (1) a proceeding in Prince George's County
Juvenile Court pending prior to the alleged rape, in which a
caseworker recommended probation for the complaining witness
because she was beyond parental control, (2) an occurrence five
weeks after the alleged rape, in which the girl had sexual
relations with two men at a party and that night took an overdose
of pills resulting in hospitalization in a psychiatric ward for
nine days as an attempted suicide, and (3) a hearing in the
Montgomery County Juvenile Court on the day of her release from the
psychiatric ward which resulted in her commitment to a School for
Girls. The Montgomery County Circuit Court ordered a new trial,
holding that the proof did establish suppression of evidence which,
although not in bad faith, constituted a denial of due process. The
Maryland Court of Appeals reversed, holding that,
"for the nondisclosure of evidence to amount to a denial of due
process, it must be such as is material and capable of clearing or
tending to clear the accused of guilt or of substantially affecting
the punishment to be imposed in addition to being such as could
reasonably be considered admissible and useful to the defense."
Held:
The judgment is vacated, and the case is remanded to the
Maryland Court of Appeals for further proceedings. Pp.
386 U. S.
67-102.
239 Md. 458, 212 A.2d 101, vacated and remanded.
MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS, without reaching the question of the extent of the
prosecution's duty of disclosure, concluded that evidence of two
police reports which were submitted to this Court but were not
considered by the courts below in the post-conviction proceeding
justifies a remand to the Court of Appeals for it to consider
whether an inquiry should be ordered to determine the
applicability
Page 386 U. S. 67
of the rule of
Napue v. Illinois, 360 U.
S. 264, where it was held that a conviction must fall
when the prosecution, "although not soliciting false evidence,
allows it to go uncorrected when it appears," even though the
testimony may be relevant only to the credibility of a witness. Pp.
386 U. S.
73-82.
MR. JUSTICE WHITE concluded that the case should be remanded to
the Court of Appeals to obtain its views as to whether petitioners
have been afforded a full and fair hearing on the issue of
suppression of evidence concerning the mental condition of the
complaining witness and the interrelated issues of her consent and
credibility. Pp.
386 U. S.
82-96.
MR. JUSTICE FORTAS concluded that the judgment should be vacated
because the State did not carry out its obligation to disclose all
information which was specific and concrete, which was not merely
cumulative or embellishing, and which might have exonerated the
defendants or been of material importance to the defense. Pp.
386 U. S.
96-102.
MR. JUSTICE BRENNAN announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS
join.
In December, 1961, petitioners, who are brothers, were convicted
of rape of a 16-year-old girl after trial by jury in the Circuit
Court for Montgomery County, Maryland. In May. 1964, petitioners
brought this proceeding under Maryland's Post-Conviction Procedure
Act, Md.Ann.Code Art. 27, § 645A (1966 Supp.). [
Footnote 1] Their petition
Page 386 U. S. 68
alleged that the prosecution denied them due process of law in
violation of the Fourteenth Amendment by suppressing evidence
favorable to them, and by the knowing use of perjured testimony
against them. An evidentiary hearing was had before Montgomery
Circuit Judge Moorman who, in an unreported opinion, ruled that the
proofs did not sustain the allegation of bad faith or knowing use
of perjured testimony by the prosecution, but did establish the
suppression of evidence, which, although not in bad faith,
constituted a denial of due process. He therefore ordered a new
trial. The Court of Appeals of Maryland, sitting en banc, reversed,
two judges dissenting.
State v. Giles, 239 Md. 458, 212
A.2d 101. We granted certiorari. 383 U.S. 941. We would vacate the
judgment of the Maryland Court of Appeals and remand to that court
for further proceedings.
The rape allegedly occurred about midnight, July 20, 1961, near
Rocky Gorge, a swimming and fishing spot on the Patuxent River, in
a secluded, wooded area of Montgomery County. The petitioners swam
and fished there from early evening with Joseph Johnson [
Footnote 2] and John Bowie. The
prosecutrix came there by automobile shortly before midnight with
her date, Stewart Foster, and two other young men. Their car ran
out of gasoline near Bowie's parked car. The girl and Foster
remained in the car while the other young men went for
gasoline.
The girl and Foster were the State's principal witnesses. They
testified that they had been sitting in the back seat of the car
for some 15 minutes after the two young men left when a noise near
Bowie's car attracted
Page 386 U. S. 69
their attention. They saw petitioners and their companions
loading something into Bowie's car. Bowie drove away, and
petitioners and Johnson approached the stranded car. Foster rolled
up the windows and locked the doors. The girl and Foster testified
that the three demanded his money and his girl and smashed the car
windows with rocks to open the car doors. Foster unlocked the door
on his side and told the girl to get out her side and run while he
held off the three. Foster was knocked unconscious when he left the
car. The girl ran into the woods followed by John Giles who caught
up with her when she tripped and fell. Petitioner James Giles and
Johnson joined them a few minutes later. She testified that, when
one of the trio attempted to remove her clothes, she disrobed
herself below the waist and submitted to all three youths without
resistance because of fear.
Both petitioners testified in their own defense. Their version
of the events was that the three young men approached the car and
asked Foster for a cigarette, that Foster responded with epithets
and reached down as if to pick up a gun or other weapon, and that
they broke the windows to prevent his getting it. They said that
they did not know it was a girl who fled into the woods. Petitioner
John Giles testified that, when he caught up with her, she offered
to submit to him if he would help her escape from the others, but
that he declined. Petitioner James Giles testified that, when he
and Johnson joined the couple, the girl told the three that she had
had relations with 16 or 17 boys that week and two or three more
wouldn't make any difference, that she disrobed herself and invited
all three of them to have relations with her, and that he and
Johnson, but not petitioner John Giles, had relations with her.
Both petitioners testified that the girl said that, if they
were
Page 386 U. S. 70
caught in the woods she would have to say she had been raped
because "she was on a year's probation" and "was in trouble."
The credibility of the witnesses was thus important to the
outcome of the case. The Court of Appeals recognized this in
affirming the convictions on direct review:
"There was some evidence tending to indicate consent on the part
of the prosecuting witness, which, if believed by the trier of
facts, would have been a complete defense to the charge of
rape."
Giles v. State, 229 Md. at 381, 183 A.2d at 364
[
Footnote 3] Credibility was
also critical on the issue whether, in any event, petitioner John
Giles had relations with her, as she testified, or had not, as the
petitioners testified.
The evidence allegedly suppressed consisted first of the fact
that, in a proceeding pending on June 20 in the Juvenile Court for
Prince George's County, a caseworker had recommended probation for
the girl because she was beyond parental control. Also allegedly
suppressed were the facts concerning an occurrence in Prince
George's County at a party on the night of August 26, 1961, five
weeks after the alleged rape, and over three months before the
trial. The girl had sexua relations with two men at the party, and
later that night took an overdose of pills and was hospitalized in
a psychiatric ward of Prince George's General Hospital for nine
days as an attempted suicide. She told a friend who visited her at
the hospital that the two men had raped her. The friend told her
parents, who reported this to Montgomery County Police Lieutenant
Whalen, head of the investigation for the State's Attorney into the
charge against
Page 386 U. S. 71
petitioners. Lieutenant Whalen advised the mother that he had no
jurisdiction of Prince George's County offenses, after which the
girl's father filed a formal charge of rape against the two men
with the Prince George's County authorities. A Prince George's
County police officer, Sergeant Wheeler, interviewed the girl at
the hospital. She refused to say she had been raped. She told the
officer she had previously had relations with one of the men and
also that, in the previous two years, she had had sexual relations
with numerous boys and men, some of whom she did not know.
Finally, the prosecution allegedly suppressed facts concerning a
hearing conducted in the Montgomery County Juvenile Court on
September 5, 1961, apparently the day after the girl's release from
her nine-day confinement in the psychiatric ward at Prince George's
General Hospital, and three months before the trial. The hearing
resulted in the commitment of the girl to the Montrose School for
Girls, where she remained for some time. Lieutenant Whalen
testified that he had arranged this hearing with the Montgomery
County Juvenile Court authorities, although the girl was a resident
of Prince George's County. He testified that the girl's mother had
complained to him that "the boys in Prince George's County were
harassing the girl, driving back and forth past the house all
hours," and that he arranged the proceeding "to place the girl in
some place for protective custody." The Montgomery Juvenile Court
record discloses, however, that the hearing also inquired into the
necessity for the girl's confinement as a juvenile "out of parental
control and living in circumstances endangering her wellbeing." The
girl testified at the hearing that she had taken pills because she
felt that "she wanted to die and there was nothing to live
for."
The petitioners' contention was that all of this evidence tended
to support their testimony and discredit
Page 386 U. S. 72
that of the girl and Foster, and might, therefore, have produced
an acquittal or, at least, a reduction of penalty. [
Footnote 4] They also argued that knowledge
of it by the defense would have provided valuable leads to evidence
supporting a conclusion that the girl testified falsely in denying
that she consented to relations.
The petitioners were represented at the trial by appointed
counsel. [
Footnote 5] He
testified at the post-conviction proceeding that he knew nothing
before the trial of the incidents of August 26, the girl's suicide
attempt, her confinement in the hospital, the psychiatrist's
diagnosis of her mental illness, or of her commitment to the
Montrose School for Girls. He testified that he had tried, before
August 26, to interview the girl at her home, but that her mother
told him "she talked to Lt. Whalen and he told her not to discuss
the case with us." He also testified that, based on petitioners'
story to him that the girl had told them she was on probation, he
inquired of the Juvenile Courts of both Prince George's County and
Montgomery County whether there were any proceedings in those
courts concerning the girl, and was told records of such
proceedings were not released.
Judge Moorman found
"that the State withheld from the defense and suppressed both
the evidence concerning
Page 386 U. S. 73
the second rape complaint of the prosecutrix and the evidence
relative to her alleged attempted suicide and emotional
disturbance."
He ordered a new trial despite the absence of a pretrial request
by defense counsel for disclosure of the evidence suppressed.
See Brady v. Maryland, 373 U. S. 83,
373 U. S.
87.
The Court of Appeals read Judge Moorman's opinion to hold that
nondisclosure of evidence by the prosecution denies the accused due
process if the evidence could reasonably be considered admissible
and useful to the defense. The Court of Appeals viewed that
formulation to be incomplete, holding that
"for the nondisclosure of evidence to amount to a denial of due
process, it must be such as is material and capable of clearing or
tending to clear the accused of guilt or of substantially affecting
the punishment to be imposed in addition to being such as could
reasonably be considered admissible and useful to the defense."
239 Md. at 469-470, 212 A.2d at 108. The court found the
evidence allegedly suppressed did not meet that test, and held
that, in any event,
"the failure of the prosecution to disclose the information
relating to the alleged rape of August 26th and the subsequent
suicidal attempt was not prejudicial to . . . [petitioners], and
did not therefore warrant the granting of a new trial on the basis
of the denial of due process."
239 Md. at 471, 212 A.2d at 109.
The facts found by Judge Moorman do not include elements present
in earlier decisions which determined that the suppression of
evidence constituted the denial of due process of law.
See
Mooney v. Holohan, 294 U. S. 103;
Pyle v. Kansas, 317 U. S. 213;
Alcorta v. Texas, 355 U. S. 28;
Napue v. Illinois, 360 U. S. 264;
Miller v. Pate, ante, p.
386 U. S. 1;
compare United States ex rel. Almeida v. Baldi, 105 F.2d
815;
United States ex rel. Thompson v. Dye, 221 F.2d 763;
Barbee v. Warden, 331 F.2d 842. Thus, the case presents
the broad questions
Page 386 U. S. 74
whether the prosecution's constitutional duty to disclose
extends to all evidence admissible and useful to the defense, and
the degree of prejudice which must be shown to make necessary a new
trial. We find, however, that it is unnecessary, and therefore
inappropriate, to examine those questions. In
Napue v.
Illinois, supra, 360 U.S. at
360 U. S. 269,
we held that a conviction must fall under the Fourteenth Amendment
when the prosecution, "although not soliciting false evidence,
allows it to go uncorrected when it appears," even though the
testimony may be relevant only to the credibility of a witness. We
now have evidence before us, which neither Judge Moorman nor the
Court of Appeals considered, which, in our view, justifies a remand
to the Court of Appeals for its consideration whether that court
should order an inquiry to determine whether such a situation arose
at petitioners' trial. The evidence consists of two police reports,
not part of the record, which came to our attention when the State,
at our request, supplied the material considered by the trial judge
in imposing sentence.
On the morning after the alleged rape, July 21, 1961, Montgomery
County police officers, including Lieutenant Whalen and Detective
Collins, conducted interviews with the girl and Foster. The
interviews were written up in one of the police reports. In an
effort to prove the allegations of the petition, defense counsel
moved during the post-conviction proceedings that Lieutenant Whalen
be directed to produce the report for inspection. The motion was
denied; Judge Moorman ruled the report was a police "work product,"
and therefore not producible under Maryland's Rules of
Procedure.
There can be little doubt that the defense might have made
effective use of the report at the trial or in obtaining further
evidence. In the first place, the report attributes statements to
the girl and Foster that appear inconsistent with their trial
testimony. The report quotes
Page 386 U. S. 75
both as stating they were engaged in sexual relations when they
were distracted by the noise at Bowie's car, and that the girl
dressed before petitioners and Johnson approached. They testified
at trial, however, that they were merely "sitting" in the back seat
of the car from the time their companions left until their
attention was drawn to the presence of the four men at Bowie's car,
and Foster buttressed this testimony on cross-examination by
answering "No" to the question whether he "didn't take her out
there to have sexual relations with her, yourself . . . ?" Finally,
neither Lieutenant Whalen nor Detective Collins mentioned, in their
summaries at trial of what each person involved in the incident had
told them, the fact that the girl and Foster had stated they were
engaged in sexual relations when they heard the three men.
The testimony of the girl and Foster is open to the construction
that these key witnesses deliberately concealed from the judge,
jury, and defense counsel evidence of the girl's promiscuity.
[
Footnote 6] While, under the
law of Maryland, specific acts of misconduct are inadmissible to
impeach a witness' credibility,
Rau v. State, 133 Md.
613,
Page 386 U. S. 76
105 A. 867, and specific acts of intercourse are inadmissible to
establish the prosecutrix' consent,
Humphreys v. State,
227 Md. 115, 175 A.2d 777, prior inconsistent statements and
evidence of general reputation for unchastity are admissible to
impeach a witness' credibility,
see Giles v. State, 229
Md. 370, 183 A.2d 359. And to the extent credibility could have
been effectively attacked in this case, resolution of the issue of
consent necessarily would have been affected, since it turned
wholly on credibility.
The report could also have been used in connection with an issue
which has been in this case from its inception. At the original
trial, counsel sought in numerous ways to establish that John Giles
had not had intercourse with the victim. At the trial, the girl
said all three had raped her. She admitted, however, that she had
testified at the preliminary hearing and had told the police
immediately after being attacked that only two of the three had
intercourse with her. Detective Collins testified, on the other
hand, that he "questioned the girl at the station and she said all
three of the boys had intercourse with her." With specific
reference to John Giles, Collins stated that the girl
"was asked if she knew anybody in this line-up, and she walked
over and pointed to the defendant, John Giles, and stated to us, in
his presence, that he was the first . . . that had intercourse with
her. . . ."
Lieutenant Whalen denied that the girl had told him "that only
two of these boys had intercourse with her on that evening. . .
."
Counsel at the post-conviction proceedings continued to attempt
to prove John Giles was innocent of rape. He introduced newspaper
articles from the Washington Evening Star and the Washington Post
attributing to Lieutenant Whalen a story that the girl had said
only two men had raped her. When Whalen said these stories were
incorrect, counsel asked: "would your interview
Page 386 U. S. 77
report of this interview show what . . . [she] said about the
number of men who attacked her?" Whalen answered that it would.
Counsel thereupon moved for the production of the report, but the
court refused to allow him to see it because of the work product
rule. Counsel also asked the girl how many men she originally
claimed had raped her and, unlike her testimony at trial, she said
she had told the police all three had raped her.
In contrast to much of this testimony, the police report states
that, both when interviewed and at a police lineup later that day,
the girl identified petitioner John Giles not as the first to have
intercourse with her, as Detective Collins testified, but as "the
one that tried to have intercourse with her but was unable to do
so," "the man that tried to rape her. . . ." The contents of the
report thus go not only to the credibility of the State's
witnesses, but also to the issue at trial whether John Giles had
raped the girl. Yet nothing appears in the trial transcript to show
what, if any, action was taken by the prosecution to correct or
explain the inconsistencies between the testimony of the state
witnesses and the report. [
Footnote
7]
Only the most strained reading of the materials before us can
explain away the questions raised by the report without the aid of
further inquiry. A second report, filed by Sergeant Duvall, who was
first at the scene of the incident, far from proves that John Giles
penetrated the girl. His report recites that the girl "stated that
two of the . . . males had entered her, and that the third had
tried, but gave up when he saw lights coming."
Page 386 U. S. 78
While this statement would seem to indicate that John Giles, who
was the first to attempt intercourse, penetrated the girl, it must
be read in light of the fact that Duvall's report is a two-page,
third-person summary, representing what had transpired during the
tense and hectic moments immediately after the incident, when the
girl was nearly hysterical according to police testimony. The other
report, in contrast, is 22 pages long, was put together over at
least a three-day period, and contains extensive quotations of the
girl's story taken down in the relative calm of the police station
after the girl had been treated and fed, including her reaction in
personally identifying John Giles as the one who failed to have
intercourse. Moreover, Duvall's report does state that the girl
told him that only two of the men entered her, and therefore
provides no explanation for the officers' testimony that she had
said all three had entered her. In fact, far from explaining the
police testimony, the report raises a serious question as to the
accuracy of Sergeant Duvall's testimony at the original trial that
he never discussed with the girl the number of boys who had had
intercourse with her. [
Footnote
8]
The State attempted in the post-conviction proceedings to
explain the girl's inconsistent statement at the preliminary
hearing by contending that she was unaware of the difference
between the meaning of intercourse and emission, which caused her
to testify at first that only two of the men had had intercourse
with her. The state
Page 386 U. S. 79
witness who propounded this theory did not offer it at the
original trial, in which he participated, although the girl's
explanation then was that she was confused about the names of the
defendants, not about the difference between intercourse and
emission. [
Footnote 9] And the
report reveals no confusion on the latter point. She spoke there of
intercourse as a "process," and at one point stated that the second
of the youths "had intercourse for about ten minutes and reached a
climax." [
Footnote 10] She
said of John Giles not that he failed to reach a climax, but that
he failed to "insert" because he "could not get" an erection. Of
course, it is possible that she was confused despite this evidence,
and that John Giles achieved penetration. But it is not our place
to decide these issues, either for or against petitioners; we need
only determine that the evidence raises an issue of sufficient
substance to justify remanding this case for reconsideration,
rather than deciding the broader constitutional question. [
Footnote 11]
Original trial counsel testified at the post-conviction
proceeding that he had seen the prosecution's file before
Page 386 U. S. 80
trial, including the police reports. Since the reports were not
produced, it is pure speculation to conclude that trial counsel
had, in fact, seen the reports now before us. And if it were proper
to resolve this question against petitioners, the Court of Appeals
might nevertheless regard an inquiry to be in order to ascertain
trial counsel's reasons for not making use of the reports in
support of the defense he was directing on behalf of petitioners.
Finally, the determination of these questions against petitioners
would still leave open the question whether the Court of Appeals
might regard the situation as one in which the prosecution was
under a duty to disclose the discrepancies to the trial judge; the
court stated in its opinion that, where there is doubt as to what
should be disclosed, "the trial court should decide whether or not
a duty to disclose exists." 239 Md. at 471, 212 A.2d at 109.
In relying upon material not part of the record as a reason for
remand, we follow our practice of noticing supervening matter in
order to avoid deciding constitutional questions by allowing state
courts to take action which might dispose of the case.
See for
example, Patterson v. Alabama, 294 U.
S. 600;
Bell v. Maryland, 378 U.
S. 226. We follow this practice under varying
circumstances, but the principle behind it has always been the
same. This Court has
"discretion as to the time and mode in which it will exert the
powers conferred upon it. That discretion should be exercised in
the light of the relations existing, under our system of
government, between the judicial tribunals of the Union and of the
States, and in recognition of the fact that the public good
requires that those relations be not disturbed by unnecessary
conflict between courts equally bound to guard and protect rights
secured by the Constitution."
Ex parte Royall, 117 U. S. 241,
117 U. S.
251.
Page 386 U. S. 81
It is not for us to direct what the Maryland courts will do in
this case. The Court of Appeals may, for all we know, determine
that the additional evidence demonstrates prejudice to the degree
necessary under its previously applied standard to warrant a new
trial. It may remand for a hearing free of the "work product" rule.
It may reaffirm its judgment of reversal. Although relief may
ultimately be denied, affording the state courts the opportunity to
decide in the first instance is a course consistent with comity,
cf. 28 U.S.C. § 2254, and a full and fair hearing in the
state courts would make unnecessary further evidentiary proceedings
in the federal courts.
See Townsend v. Sain, 372 U.
S. 293. We would remand because of our conclusion that
the police reports, considered in the context of the record before
us, raise questions sufficient to justify avoiding decision of the
broad constitutional issues presented by affording the opportunity
to the Maryland Court of Appeals to decide whether a further
hearing should be directed.
See Henry v. Mississippi,
379 U. S. 443.
The truism that our federal system entrusts the States with
primary responsibility in the criminal area means more than merely
"hands off." The States are bound by the Constitution's relevant
commands, but they are not limited by them. We therefore should not
operate upon the assumption especially inappropriate in Maryland's
case in light of its demonstrated concern to afford post-conviction
relief paralleling that which may be afforded by federal courts in
habeas corpus proceedings [
Footnote 12] -- that state courts would not be concerned
to reconsider a case in light of evidence such as we have here,
particularly
Page 386 U. S. 82
where the result may avoid unnecessary constitutional
adjudication and minimize federal-state tensions.
We would therefore vacate the judgment of the Court of Appeals
and remand to that court for further proceedings.
[
Footnote 1]
Petitioners had previously appealed unsuccessfully from the
convictions,
Giles v. State, 229 Md. 370, 183 A.2d 359,
appeal dismissed, 372 U. S. 767, and
from the denial of a new trial,
Giles v. State, 231 Md.
387, 190 A.2d 627.
[
Footnote 2]
Johnson was tried and convicted of rape of the girl at a
separate trial in the Circuit Court for Anne Arundel County. His
application for post-conviction relief is being held in abeyance
pending disposition of this case.
[
Footnote 3]
"With respect to the presence or absence of the element of
consent, it is true, of course, that, however reluctantly given,
consent to the act at any time prior to penetration deprives the
subsequent intercourse of its criminal character."
Hazel v. State, 221 Md. 464, 469, 157 A.2d 922,
925.
[
Footnote 4]
If the jury which finds an accused guilty of rape adds to its
verdict the words "without capital punishment," the court may not
impose the death penalty, but only imprisonment for not exceeding
20 years in the penitentiary. Md.Ann.Code Art. 27, § 463 (1957). If
the jury does not add such words to its verdict, the court, at its
discretion, may impose the death sentence, a life sentence, or a
sentence in the penitentiary for not less than 18 months nor more
than 21 years. Md.Ann.Code Art. 27, § 461 (1957). The jury did not
add to its verdict the words "without capital punishment," and the
trial judge imposed death sentences. Governor Tawes subsequently
commuted the sentences to life imprisonment.
[
Footnote 5]
Other counsel are representing them in the post-conviction
proceedings.
[
Footnote 6]
The dissenting judges in the Court of Appeals were of the view
that the extensive evidence of the girl's reputation for unchastity
presented in the post-conviction record, added to the evidence of
her emotional instability, might support a defense that she
suffered from an uncontrollable weakness that petitioners might
reasonably have mistaken for consent. The majority apparently were
also of the view that, under some circumstances, suppression of
evidence pertaining to a witness' mental condition might amount to
a deprivation of due process. If this is so, the conclusion of the
majority that no such evidence existed or was suppressed in this
case is open to question, since the post-conviction court prevented
all attempts of counsel to introduce evidence of the girl's
condition (including a psychiatric diagnosis and evidence presented
at a juvenile proceeding) or of the fact that Montgomery County
police officials knew of such evidence. If a new hearing is held in
the state courts, an inquiry into these matters might be deemed
appropriate.
[
Footnote 7]
The record before us affirmatively demonstrates that both
Detective Collins and Mr. Kardy, who supervised the prosecution,
had read the report before trial. Collins testified at the trial
that he wrote up the report and had read it the night before. At
the post-conviction hearing, Kardy was asked: "[Y]ou saw the police
report prior to trial, of course? A. Yes."
[
Footnote 8]
The testimony was as follows:
"Q. Did you have a discussion with this girl about how many boys
had had intercourse with her? . . ."
"A. No."
"Q. You say you did not?"
"A. No, sir."
"Q. You never did discuss that with her?"
"A. No, sir."
[
Footnote 9]
"Q. Why are you telling a different story today than the story
you told the police immediately after this happened, and the story
you told at the preliminary hearing?"
"A. Because I have thought about it."
"Q. What do you mean you have thought about it?"
"A. Well at the time I was confused -- people were giving names,
and I had no idea of what the boys' names were."
"Q. Who was given names?"
"A. After the line-ups; after I had identified all three of the
men."
[
Footnote 10]
The report recites that she was asked the following questions,
apparently by Lieutenant Whalen, and gave the following
answers:
"Q-W. How many of them had intercourse with you?"
"A. The bigger one [John] tried first, then the other two."
"Q-W. Did any of them have an emission?"
"A. Yes, the second one and maybe the third."
[
Footnote 11]
Certainly the test cannot be, as is suggested, that a remand
would be justified only if the evidence presented "necessarily
excludes the conclusion that John Giles achieved penetration,
however slight."
[
Footnote 12]
See Hunt v. Warden, 335 F.2d 936, 941-943 (C.A.4th
Cir., 1964);
Midgett v. Warden, 329 F.2d 185 (C.A.4th
Cir., 1964) and the other cases discussed in Note, 40 N.Y.U.L.Rev.
154 193-195 (1965).
MR. JUSTICE WHITE, concurring in the judgment.
I concur in the judgment of the Court, although I am unable to
join the opinion of my Brother BRENNAN. In my view, there was no
violation of the rule of
Napue v. Illinois, 360 U.
S. 264. The argument is that, at the trial, the police
officers testified that the complaining witness had said all along
that three men had raped her, whereas the police reports supplied
to the Court after oral argument clearly indicate that the
complaining witness had told the officers at one point that only
two men had raped her. Although the fact misstated by the police at
trial bears primarily upon the credibility of the officers who
testified, it might be argued that, in addition the false testimony
bore some relationship to the credibility of the prosecuting
witness, and to the question whether both of the petitioners had,
in fact, committed rape. But these issues were not overlooked by
petitioners' counsel at trial, who then confronted the complaining
witness with the inconsistency in her allegations. Had petitioners'
counsel been less diligent, the false testimony might rise to the
level of a
Napue violation. [
Footnote 2/1]
Page 386 U. S. 83
Concerning the testimony given by Foster as to why he was with
the complaining witness on the evening of the alleged rape, there
can be no argument under
Napue, a point made clear by the
opinion of my Brother HARLAN.
Nevertheless, for the reasons which follow, I concur in the
judgment remanding the case to the Maryland Court of Appeals for
further consideration.
Petitioners here were appellees in the Maryland Court of
Appeals, having prevailed in the trial court in their
post-conviction attempt to win a new trial. In the Maryland
appellate court, they sought to sustain the judgment not only on
the grounds stated by the Circuit Court -- suppression of evidence
with respect to an alleged false rape claim and a suicide attempt
-- but on the additional ground that the State had suppressed other
evidence, including evidence with respect to the rape victim's
reputation for promiscuity and evidence with respect to her mental
condition. The Maryland Court of Appeals apparently considered it
appropriate and important to dispose of these additional
suppression claims. With respect to reputation for unchastity, the
court acknowledged
Page 386 U. S. 84
the admissibility of such evidence where consent is an issue.
The court held, however, that the prosecution could not be charged
with withholding reputation evidence, since the defense itself had
ample knowledge of the promiscuous conduct of the prosecuting
witness. As to her mental condition, the court cited with approval
People v. Bastian, 330 Mich. 457,
47
N.W.2d 692 (1951), apparently conceding that evidence of
"nymphomania" -- which the court referred to as a "type of mental
illness" -- was admissible in a case such as this. But the court
held (1) that the prosecution could be charged only with the
knowledge that the mother of the victim had at one time taken her
to a psychiatrist; (2) that there was nothing in the record to show
that the victim was suffering from nymphomania, and (3) that, even
if she was so afflicted, "there is nothing to show that this made
her incompetent as a witness or that she consented to the acts for
which the appellees were convicted."
Of course, the court's ultimate result unavoidably followed from
these factual determinations, and it would appear that the evidence
now in the record is consistent with these conclusions. But this
does not end the matter, in my view, if the inquiry permitted the
petitioners in the trial court was not all that the Maryland law
allows or that the constitution requires. And, based on the record
as it comes here, I am not at all sure that there has been a full
airing of the suppression issue or that the petitioners are
responsible for the obvious shortcomings in the evidence with
respect to the mental condition of the rape victim and the
prosecution's knowledge with respect to this matter. I am
sufficiently unsure that I would remand for further consideration
by the Maryland Court of Appeals.
To set in perspective those parts of the record which concern
me, a brief summary of the facts is necessary.
Page 386 U. S. 85
In chronological order, this case involves the alleged rape by
petitioners, a subsequent occasion upon which the complaining
witness experienced sexual intercourse with two young men (which
led to the so-called false rape claim), a suicide attempt by the
complaining witness followed by temporary hospitalization in a
psychiatric ward, a juvenile court proceeding as a result of which
the complaining witness was sent away from her home, and finally
the trial at which the petitioners were convicted. While the
complaining witness was hospitalized, she was subjected to a
psychiatric examination by Dr. Doudoumopoulis, who related his
opinion to Dr. Connor, who in turn spoke with the parents of the
complaining witness. In addition, and highly relevant to the issue
of suppression, the record of the juvenile court proceedings
reflects the fact that Lieutenant Whalen of the Montgomery County
Police Department had discussed the matter of confinement of the
complaining witness with Dr. Connor, and had arranged for and
participated in the juvenile court hearing.
The following excerpts from the post-conviction hearing
transcript are the source of my concern with the record as it comes
to us.
Dr. Connor testified that he had seen the complaining witness
daily during her hospitalization following the suicide attempt.
"Q. And on the subsequent days, could you tell us what part of
the hospital you saw her, which ward?"
"A. I saw her on A Wing, which is the psychiatric ward."
"Q. Did you request Dr. Doudoumopoulis to make a psychiatric
evaluation of Miss Roberts?"
"A. Yes, I did."
"Q. And did he report to you his evaluation or diagnosis of her
case?"
"A. Yes, he did. "
Page 386 U. S. 86
"Q. Did you concur with him?"
"A. Yes, I did."
"Q. Could you tell us what that diagnosis or evaluation
was?"
"Mr. Kardy: Just a minute, doctor. Object, Your Honor."
"The Court: Objection sustained."
Subsequently, Dr. Connor, who had not performed the psychiatric
examination, was allowed to testify concerning his nonpsychiatric
diagnosis of the patient, and his conclusion was "adolescent
reaction." The failure of the hearing to produce, through Dr.
Connor, any meaningful testimony regarding the psychiatric
condition of the complaining witness might have been presaged by
the testimony the same Doctor was allowed to give on deposition
[
Footnote 2/2] prior to the
post-conviction hearing, the contents of which follow:
"Q. Did you see [Joyce Carol Roberts] during the
hospitalization?"
"A. During the hospitalization, yes."
"Q. At that time, did you have occasion to speak to Lieutenant
Whalen of the Montgomery County Police Department about Joyce?"
"A. I spoke to someone from the Montgomery County Police
Department during that period. I don't know just exactly who it was
or the exact date, but I do recall talking to someone about
her."
"Q. And where did that conversation take place?"
"A. I believe it was in my office at 4713 Berwyn Road, in
College Park. My office was there."
"Q. Will you state the substance of that conversation?"
"Mr. Kardy: I object. "
Page 386 U. S. 87
"The Court: The objection is sustained."
"Mr. Witt: Your Honor, we are seeking to find out what
information was given to the State about the credibility of this
witness."
"The Court: He has not testified that he talked to anyone from
the State; he said he talked to someone in Montgomery County."
"Mr. Witt: Montgomery County Police Department, Your Honor."
"The Court: He said, 'to someone,' as I heard his answer."
"Mr. Witt: Can we have the answer read back?"
"The Court: Doctor, can you identify the person to whom you
talked?"
"The Witness: No, sir; I cannot. I recall there was someone from
the police department."
"Mr. Kardy: Of Montgomery County?"
"The Witness: Of Montgomery County."
"
* * * *"
"The Court: Counsel, do you proffer to show that from that
conversation the State's Attorney had knowledge that there was
evidence suppressed which would have been a defense to the
crime?"
"Mr. Witt: Yes, Your Honor."
"The Court: What specifically do you proffer to show?"
"Mr. Witt: We proffer to show that the State had knowledge of
this girl's psychiatric condition at the time."
"The Court: What difference would that make?"
"Mr. Witt: It is under
Napue against Illinois. Evidence
respecting the credibility of a witness which is in the possession
of the State at the time of the trial and which is suppressed by
State is a violation of due process."
"The Court: I will sustain the objection."
"
* * * *
Page 386 U. S.
88
"
"Q. Did you at that time have occasion to speak to either or
both of Joyce's parents?"
"A. Well, I was speaking to her mother on frequent occasions,
and I spoke to her father on one or more occasions, I don't recall
how often."
"Q. And did you discuss with them what should be done for
Joyce?"
"A. Yes."
"Q. Will you state what was said?"
"Mr. Kardy: Just a minute, Doctor. I object."
"The Court: Objection is sustained."
"Q. Did either of them tell you about any other alleged rape of
Joyce?"
"Mr. Kardy: I object."
"The Court: Sustained."
"Q. Did any member of Joyce's family tell you about any other
alleged rape of Joyce?"
"Mr. Kardy: I object."
"The Court: Sustained."
"Q. In the course of your treatment of Joyce during this period,
did you have occasion to call in another doctor?"
"A. Are you referring to hospitalization?"
"Q. Yes."
"A. Yes, I did."
"Q. And who was that doctor?"
"A. Dr. Doudoumopoulis."
"Q. Did you discuss Joyce with him after he had seen her?"
"A. Yes, I did."
"Q. Did he diagnose her as a juvenile schizophrenic?"
"Mr. Kardy: Just a minute; don't answer that. I object."
"The Court: The objection is sustained. "
Page 386 U. S. 89
"Q. Did you discuss with Dr. Doudoumopoulis what treatment Joyce
should receive?"
"Mr. Kardy: I object. . . ."
"The Court: I think it is immaterial. I will sustain the
objection."
Immediately after Dr. Connor's deposition was taken, Lieutenant
Whalen of the Montgomery County Police Department was put under
oath. Lieutenant Whalen testified that he had contacted Mr. Kardy,
the prosecutor, and that they arranged for a hearing in the
juvenile court in Montgomery County on September 5, 1961. The
reason for seeking protective custody for the girl was that, in
Whalen's words: "[T]he boys in the area were harassing the girl so
bad that she [the mother] would like to get some help for the girl.
. . ."
"Q. Were you present throughout that juvenile court hearing of
September 5, 1961?"
"A. I was in and out of the courtroom. I was not there every
second."
"Q. Let me go back a minute; isn't it a fact that, prior to this
hearing, you had talked to Dr. Connor with respect to Joyce
Roberts' mental condition?"
"Mr. Kardy: I object."
"
* * * *"
"Mr. Forer: . . . Your Honor, we had Dr. Connor on the stand
earlier today, and Dr. Doudoumopoulis; we were trying to lay a
foundation by showing that the girl's condition was such that it
would have affected her credibility. Dr. Doudoumopoulis actually
was qualified, as a qualified psychiatric expert, to say if it
would have affected her credibility. It would have been relevant to
whether or not she invited this intercourse or rejected it.
[
Footnote 2/3] And with
Page 386 U. S. 90
Dr. Connor, we also brought out whatever the doctors discovered
he had told some representatives from the Montgomery County police.
But Your Honor excluded our questioning designed to go into the
mental condition of the girl. Now, Your Honor is excluding my
asking him whether he knew about it on the grounds that we have not
established the significance of the mental condition."
"The Court: I will sustain the objection. I do not think it is
proper in this procedure."
"Q. Now let us go back to this juvenile court hearing in
Montgomery County, September 5, 1961. Was anything said at the
juvenile court hearing about the fact that Joyce Roberts had
attempted to commit suicide shortly before that date?"
"Mr. Kardy: I object."
"The Court: I will sustain the objection. "
Page 386 U. S. 91
The day before the post-conviction hearing began, Dr.
Doudoumopoulis, although subject to a bench warrant, had "left for
Maine" for two weeks. In all fairness to the presiding judge, it
should be noted that he offered to continue the hearing until the
Doctor could be reached for his testimony. But on the other hand,
the counsel for petitioners perhaps had no reason to expect that
the course of the post-conviction hearing would run any differently
from that at the deposition proceeding in advance of the hearing,
[
Footnote 2/4] where Dr.
Doudoumopoulis, and the petitioners' counsel, could achieve only
the following interchange.
"Q. Dr. Doudoumopoulis, on or about August 26, 1961, in the
course of your practice, did you have occasion to see a girl by the
name of Joyce Carol Roberts?"
"A. I saw her on the 28th of August, 1961."
"Q. Where did you see her?"
"A. At Prince George's Hospital."
"Q. What caused you to see her?"
"Mr. Kardy: I object."
"The Court: I will overrule it. I will permit that."
"Q. You may answer."
"A. Dr. Charles D. Connor had asked me to make a psychiatric
evaluation of her."
"
* * * *"
"Q. Did you interview her?"
"A. Yes, I did."
"
* * * *"
"Q. Did you reach any conclusions about her condition?"
"Mr. Kardy: Just a minute, Doctor. I object."
"
* * * *
Page 386 U. S.
92
"
"Mr. Witt: Your Honor, we are seeking to discover what the
doctor's diagnosis was, and then to link it up with the knowledge
of the State with respect to that condition. That is the
purpose."
"The Court: The objection is sustained."
"Q. Do you know Dr. Charles Connor?"
"A. Yes."
"Q. Did you discuss Joyce with him?"
"
* * * *"
"A. Yes."
"Q. Did you tell him your conclusions --"
"Mr. Kardy: I object."
"Q. -- in respect to Joyce's condition?"
"Mr. Kardy: I object."
"The Court: He can answer it yes or no."
"The Witness: Yes."
"Q. Did you discuss with him what should be done for Joyce?"
"
* * * *"
"A. Yes."
"Q. Will you tell us the discussion with respect to what should
be done with Joyce at that time?"
"Mr. Kardy: I object."
"The Court: Sustained."
"Q. Did you talk to Joyce's parents?"
"
* * * *"
"A. I think it was the mother that I talked to."
"
* * * *"
"Q. Did you have any discussion with her with respect to what
should be done for Joyce? . . . Did you discuss a hospitalization
of Joyce?"
"Mr. Kardy: I object."
"
* * * *"
"The Court: The objection is sustained."
Because the record of the juvenile court proceeding clearly
indicated that psychiatric evidence concerning
Page 386 U. S. 93
the complaining witness had flowed from the doctors into that
hearing, the record of which also reflected the presence of
Lieutenant Whalen, the petitioners' counsel sought to pursue their
inquiry through Mr. Lynn Adams, an officer of the juvenile court
who had been instrumental in the juvenile court proceedings. This
inquiry was likewise cut short:
"Q. Now, it is a fact, is it not, a Lieutenant Detective Whalen
of the Montgomery County Police Department was also present at that
hearing?"
"A. Yes, according to my information, it was."
"Q. It is a fact, is it not, that the charge against Joyce
Roberts was that she was out of parental control and living in
circumstances endangering her wellbeing?"
"Mr. Kardy: Object."
"The Court: Sustained."
"Q. Was it brought out at this hearing that Joyce Roberts had
attempted to commit suicide shortly before the hearing?"
"Mr. Kardy: Just a minute, Mr. Adams. Object."
"The Court: Sustained."
"
* * * *"
"Q. Was it brought out at this hearing that, in late August of
1961, Joyce Roberts had accused two men of raping her?"
"Mr. Kardy (To the Witness): Just a minute. Object."
"The Court: Sustained."
"
* * * *"
"Q. Did you speak, by telephone or otherwise, with a
psychiatrist by the name of Dr. Alexander Doudoumopoulis?"
"A. Yes."
"
* * * *
Page 386 U. S.
94
"
"Q. Did he give you any information regarding the mental
condition or mental health of Joyce Roberts in this conversation
that you had with him?"
"A. Did he -- yes, regarding the mental health, yes."
"Q. What was the information that he gave you regarding Joyce
Roberts' mental health in this conversation?"
"Mr. Kardy: Just a minute. Object, Your Honor."
"The Court: Sustained."
The presiding judge seems to have closed off Mr. Adams as a
source of information on the ground that he had no other choice
under Rule 922 of the Maryland Rules of Procedure governing
juvenile causes. The rule specifies that:
"A person having a direct interest in a case may examine any
part of the record thereof, except medical and case histories and
other reports which the court may designate confidential. Such a
person may also examine such histories and confidential reports
with prior written permission of the court. The court may, however,
from time to time, designate by general orders persons or agencies
who may inspect any record, or specific classes of records, without
additional written permission. Except as provided herein, no other
person may examine any juvenile record, including the docket,
without prior written permission of the court."
Md.Ann.Code, c. 900, Rule 922. At the post-conviction hearing,
the petitioners held an authorization of the juvenile court to
examine the records concerning the September 5, 1961, hearing. The
authorization included permission to
"make available said records for use, including introduction
into evidence . . . and to any persons with knowledge thereof to
testify about any aspect of the proceedings . . . involving
Page 386 U. S. 95
said Joyce Carol Roberts. [
Footnote
2/5]"
The presiding judge in the post-conviction hearing was of the
view that Rule 922 allowed the juvenile court only the power to
make the record available for examination, not to "put it in
evidence."
See Vol. I, Post-Conviction Hearing Transcript,
at 66. This, of course, does not explain why the judge himself did
not examine the record, as he had expressly been authorized to do
by the juvenile court. Had the judge made such an examination, he
might have concluded that his decision regarding the admissibility
of the record and of testimony by witnesses who had attended the
hearing would require a more complete consideration of the purpose
of and policies served by Rule 922. And, in any event -- although
this is a matter of Maryland law about which I am not at all sure
-- the Rule would not seem to be a bar to testimony by those who
had attended the juvenile court hearing when asked questions
concerning information obtained outside the juvenile court hearing.
If I am correct in this regard, the Rule could not stand in the way
of testimony by Dr. Connor as to his conversations with Dr.
Doudoumopoulis, or as to his conversations with the Montgomery
County police officer, or as to any conversations either of the
doctors might have had with Mr. Lynn Adams outside the juvenile
court hearing. An additional matter raises my doubts further about
the force which Rule 922 should have had at the post-conviction
hearing. The State has since supplied this Court with what is
apparently the complete file and record of the September 5, 1961,
juvenile court proceedings involving the complaining witness. The
State apparently no longer considers Rule 922 a bar to judicial
consideration of these items. I do not wish to suggest that the
presiding judge's exclusion of the juvenile
Page 386 U. S. 96
court record, and of possible testimony of Adams, Whalen,
Connor, and Doudoumopoulis was necessarily incorrect. But the duty
to make that decision and the right to make it in the first
instance belongs to the Maryland court, and my point simply is that
the circumstances of the post-conviction hearing in this case
compel a more complete consideration of the issue.
There is another matter for the consideration of the Maryland
court: the prosecuting attorney of Montgomery County was not
charged with the knowledge of Prince George's County officers, but
he was charged with what the police officers of Montgomery County
knew. Was he also charged with the knowledge of other Montgomery
County officials such as Lynn Adams, and, to the extent of their
involvement with Montgomery County agencies, Dr. Connor and Dr.
Doudoumopoulis?
In the end, any allegation of suppression boils down to an
assessment of what the State knows at trial in comparison to the
knowledge held by the defense. It would seem that the Maryland
Court of Appeals would reverse as unconstitutional a conviction in
a trial that included suppression of evidence tending to prove
nymphomania, or more comprehensively, suppression of evidence
concerning the mental condition of the complaining witness and the
interrelated issues of her consent and credibility. If such is the
case, it would be helpful to have the Maryland Court of Appeals'
views as to whether on this record the petitioners have been
afforded a full and fair hearing on this issue.
[
Footnote 2/1]
The fact that petitioners' counsel at trial had knowledge of the
police reports is, of course, relevant. At the post-conviction
hearing, the trial counsel, Mr. Prescott, was questioned concerning
his knowledge of the police reports.
"Q. Mr. Prescott, after your appointment as counsel for the
Giles boys in this case, did you come to see me, as State's
Attorney, to discuss the case?"
"A. I did."
"Q. And would you relate to His Honor what that discussion
consisted of and what, if anything, I let you see and have in the
case?"
"A. You let me have your entire file, as I recall. . . ."
"Q. And by the entire file, did I let you read the police report
in its entirety, sir?"
"A. You did."
"The Court: Mr. Prescott, I understood you to say that Mr.
Kardy, while you were preparing for the trial and before trial, let
you see his complete file, including the police reports?"
"The Witness: That is correct, Your Honor."
"The Court: And you are satisfied that Mr. Kardy did show you
the police reports, which he didn't have to do?"
"The Witness: Well, I am not sure he didn't have to, but he did
show them to me, Your Honor."
Transcript of Post-Conviction Hearing, Vol. II, 11, 13.
[
Footnote 2/2]
The deposition was conducted by the same judge who presided at
the post-conviction hearing.
[
Footnote 2/3]
In the course of the post-conviction hearing, the defendants
also attempted to probe the relationship between the mental
condition of the complaining witness and her credibility through
questions put to Dr. Frederic Solomon, a qualified
psychiatrist.
"Q. Doctor, do you have an opinion about how the mental illness
which you have described would affect the credibility of a witness
about the kind of circumstances which I described, that is, an
intensely personal situation in which personal motivations were
involved?"
"Mr. Kardy: Object."
"The Court: You can answer it merely yes or no."
"The Witness: Yes."
"Mr. Witt: What is that opinion?"
"Mr. Kardy: Object."
"The Court: Sustained."
"Mr. Witt: Your Honor, I offer to prove that his opinion would
be that the mental illness which he has described would
substantially affect the credibility of such a person about such an
incident."
"The Court: Well, I never heard of such a rule. I sustained the
objection. It's up to a jury to determine the credibility. How can
we take and let a man, after a trial has occurred, come in and say
the credibility was no good?"
Transcript of Post-Conviction Hearing, Vol. II, 64.
[
Footnote 2/4]
This deposition proceeding was also conducted by the same judge
who presided at the post-conviction hearing.
[
Footnote 2/5]
This document is included in the record at page 274.
MR. JUSTICE FORTAS, concurring in the judgment.
I concur in the Court's judgment in this immensely troubling
case, but I do so for the reasons which led the Montgomery County
Circuit Court to order a new trial.
On petitioners' motion for post-conviction relief, Judge Moorman
of the Circuit Court sustained the claim that
Page 386 U. S. 97
the prosecution had violated their federally protected right to
due process of law when it failed to disclose to defense counsel
evidence, known to the prosecution, concerning two incidents which
occurred about one month after the crime charged to them and four
months prior to trial. These incidents were: (1) the prosecutrix'
sexual encounter with two boys at a party, followed by the filing
and eventual dropping of a rape charge, and (2) her attempted
suicide within hours of the foregoing incident and her ensuing
hospitalization for psychiatric examination. The Circuit Court
ruled that this information could "be reasonably considered
admissible and useful to the defense," that, in consequence, the
prosecution was under a duty to disclose, and that its omission to
do so required a new trial.
The Maryland Court of Appeals reversed. It held that, even if
admissible, the evidence in question was insufficiently
"exculpatory" to warrant a new trial. The attempted suicide was
shunted aside on the ground that its "probative value" was not such
as to affect either the competence or credibility of the
prosecutrix as a witness. Both it and the rape claim were disposed
of on the assertion that "specific acts of misconduct" are not
admissible to impeach credibility, and that
"the only possible use of the facts surrounding the alleged rape
claim would be for purposes of showing the unchastity of the
prosecutrix, a fact that was already known to the defense at the
time of the rape trial."
Judges Oppenheimer and Hammond dissented. They noted that the
alleged rape claim and its abandonment might well have been useful
in corroborating the petitioners' account of what happened, that no
Maryland evidentiary rule rendered inadmissible in a rape
prosecution evidence that the prosecutrix suffered from a mental or
emotional disturbance short of "insanity," and that, in any event,
these bits of information might have furnished
Page 386 U. S. 98
the defense with important leads to other and more potent
evidence. The dissenters asserted that the majority erroneously
substituted its appraisal of the weight to be attached to the
suppressed evidence for a jury's possible evaluation, and that it
erred in applying too stringent a test of admissibility.
I do not agree that the State may be excused from its duty to
disclose material facts known to it prior to trial solely because
of a conclusion that they would not be admissible at trial.
[
Footnote 3/1] The State's
obligation is not to convict, but to see that, so far as possible,
truth emerges. This is also the ultimate statement of its
responsibility to provide a fair trial under the Due Process Clause
of the Fourteenth Amendment. No respectable interest of the State
is served by its concealment of information which is material,
generously conceived, to the case, including all possible
defenses.
This is not to say that convictions ought to be reversed on the
ground that information merely repetitious, cumulative, or
embellishing of facts otherwise known to the defense or presented
to the court, or without importance to the defense for purposes of
the preparation of the case or for trial was not disclosed to
defense counsel. It is not to say that the State has an obligation
to communicate preliminary, challenged, or speculative information.
But this is not that case. Petitioners were on trial for their
lives. The information was specific, factual, and concrete,
although its implications may be highly debatable. The charge was
rape, and, although the circumstances of this case seem to negate
the possibility of
Page 386 U. S. 99
consent, the information which the State withheld was directly
related to that defense. Petitioners' fate turned on whether the
jury believed their story that the prosecutrix had consented,
rather than her claim that she had been raped. In this context, it
was a violation of due process of law for the prosecution to
withhold evidence that a month after the crime of which petitioners
were accused the prosecutrix had intercourse with two men in
circumstances suggesting consent on her part, and that she told a
policeman -- but later retracted the charge -- that they had raped
her. The defense should have been advised of her suicide attempt
and commitment for psychiatric observation, for even if these
should be construed as merely products of the savage mistreatment
of the girl by petitioners, rather than as indicating a question as
to the girl's credibility, the defense was entitled to know.
The story of the prosecutrix is a tragic one. But our total lack
of sympathy for the kind of physical assault which is involved here
may not lead us to condone state suppression of information which
might be useful to the defense.
With regret, but under compulsion of the nature and impact of
the error committed, I would vacate the judgment of conviction and
require the case to be retried. In view of the conclusions of my
Brethren, however, I concur in the judgment of the Court sending
this case back to the Court of Appeals for reconsideration.
* * * *
ADDENDUM: My Brother HARLAN has addressed a section of his
dissent to my concurring opinion. This discloses a basic difference
between us with respect to the State's responsibility under the
fair trial requirement of the Fourteenth Amendment. I believe that
deliberate concealment and nondisclosure by the State are not to be
distinguished in principle from misrepresentation.
Page 386 U. S. 100
This Court so held in
Brady v. Maryland, 373 U. S.
83 (1963). MR. JUSTICE HARLAN concedes that the State
may not knowingly use perjured testimony or allow it to remain
uncorrected. He asserts that this satisfies "in full" the
requirements of the Fourteenth Amendment, and suggests that an
extension of these principles is neither necessary nor advisable.
This suggests that the State is never obligated to take the
initiative to disclose evidence unless its nature is such as to
impeach evidence that the State has offered. I assume that MR.
JUSTICE HARLAN would apply this principle, even though the
information might, in the hands of defense counsel, spell the
difference between death and exoneration of the defendant. I cannot
subscribe to this. A criminal trial is not a game in which the
State's function is to outwit and entrap its quarry. The State's
pursuit is justice, not a victim. If it has in its exclusive
possession specific, concrete evidence which is not merely
cumulative or embellishing and which may exonerate the defendant or
be of material importance to the defense regardless of whether it
relates to testimony which the State has caused to be given at the
trial -- the State is obliged to bring it to the attention of the
court and the defense. For example, let us assume that the State
possesses information that blood was found on the victim, and that
this blood is of a type which does not match that of the accused or
of the victim. Let us assume that no related testimony was offered
by the State. I understand my Brother HARLAN's comments to mean
that he would not require the State to disclose this information.
He would apparently regard
Miller v. Pate, ante, p.
386 U. S. 1, as the
outer limit of the State's duty. There, the prosecution
dramatically used a pair of shorts, misrepresented as saturated
with blood, to secure a conviction. I cannot acquiesce that this is
the end of the State's duty under the Constitution. Nondisclosure
-- deliberate withholding
Page 386 U. S. 101
-- of important information of the type described, which is in
the exclusive possession of the State is, in my judgment, not
reconcilable with the concept of a fair trial and with the Due
Process Clause. I can readily see that differences of opinion might
exist as to whether the nature of particular evidence is such that
nondisclosure of it should result in setting aside a conviction.
But I do not accept the notion that only where the effect of
withholding evidence is to allow perjured testimony to stand
uncorrected is there a duty to disclose. In my view, a supportable
conviction requires something more than that the State did not lie.
It implies that the prosecution has been fair and honest and that
the State has disclosed all information known to it which may have
a crucial or important effect on the outcome.
The newly amended Rule 16 of the Federal Rules of Criminal
Procedure has little to do with the matter now before the Court. On
its face, the Rule is directed to the relatively limited problem of
pretrial discovery and inspection in the federal courts. Whether
Rule 16 is adequate even for its purposes is the subject of
differences of opinion. But it does not purport to exhaust the
prosecution's duty. MR. JUSTICE HARLAN apparently finds no
inconsistency between proscription of the prosecution's knowing use
or acquiescence in the use of perjured testimony [
Footnote 3/2] and Rule 16's silence on that
subject. I find none in the requirement, recognized by this Court
in
Brady v. Maryland, supra, that the State apprise the
defendant of information of the sort described herein, and the
Rule's omission of such a requirement. My point relates not to the
defendant's discovery of the prosecution's case for purposes of
preparation or avoidance of surprise, which is dealt with in Rule
16, but with the State's constitutional duty, as I see it,
voluntarily to
Page 386 U. S. 102
disclose material in its exclusive possession which is
exonerative or helpful to the defense -- which the State will not
affirmatively use to prove guilt -- and which it should not
conceal.
Brady involved neither the knowing use of
perjured testimony nor acquiescence in its use. Nevertheless, both
the Maryland Court of Appeals and this Court concluded that the
prosecutor's conduct in withholding information material to guilt
or punishment, information which defense counsel had unsuccessfully
requested, violated due process. Although this Court included in
its statement of the controlling principle a reference to counsel's
request --
"We now hold that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution. . . . [
Footnote 3/3]"
-- I see no reason to make the result turn on the adventitious
circumstance of a request. If the defense does not know of the
existence of the evidence, it may not be able to request its
production. A murder trial -- indeed any criminal proceeding -- is
not a sporting event.
[
Footnote 3/1]
In
Griffin v. United States, 336 U.
S. 704,
336 U. S.
707-709 (1949), this Court remanded a case for
reconsideration of a ruling that certain evidence withheld by the
prosecution was inadmissible. On remand, a new rule of
admissibility was formulated and a new trial ordered.
Griffin
v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990
(1950).
[
Footnote 3/2]
Alcorta v. Texas, 355 U. S. 28
(1957);
Napue v. Illinois, 360 U.
S. 264 (1959);
Mooney v. Holohan, 294 U.
S. 103 (1935).
[
Footnote 3/3]
373 U.S. at
373 U. S.
87.
MR. JUSTICE HARLAN, whom MR. JUSTICE BLACK, MR. JUSTICE CLARK
and MR. JUSTICE STEWART join, dissenting.
The disposition of this case, the product of three opinions,
none of which commands the votes of a majority of the Court, is
wholly out of keeping with the constitutional limitations upon this
Court's role in the review of state criminal cases. For reasons
that follow, I dissent.
On the basis of the trial record, it would be difficult to
imagine charges more convincingly proved than were those against
these three youths for raping this teenage
Page 386 U. S. 103
girl. [
Footnote 4/1] Following
conviction, information came to light which seriously reflected on
the sexual habits of the girl and on the stability of her
character. These revelations were made the basis of a state
post-conviction proceeding, premised on the claim that, in failing
to disclose these data at the time of trial the prosecution had
been guilty of a deliberate suppression of material evidence and
the knowing use of perjured testimony. The post-conviction judge
found against those claims, but nonetheless ordered a new trial,
holding that the data, which he deemed would have been admissible
and useful to the defense, should have been disclosed by the
authorities. The Court of Appeals of Maryland, holding as a matter
of state law that this material was not such as to justify a new
trial, reversed. This Court, without finding any constitutional
flaw in the state proceedings, and indeed expressly recognizing
that, upon the facts as found by the state courts, petitioners'
nondisclosure claim gives rise to no federal question under
existing law, now returns the case to the Maryland Court of Appeals
for what amounts to nothing more than reconsideration.
The plurality and one of the concurring opinions urge entirely
different reasons for remanding the case in this fashion, and will
thus oblige the courts of Maryland to reconsider a series of wholly
unrelated issues. The plurality opinion and my Brother WHITE's
concurring opinion have only two common denominators: neither can
identify any federal basis for this disposition, and both
Page 386 U. S. 104
are concerned with questions which have been repeatedly
considered by the state courts. Each of the three opinions requires
discrete treatment, but I have concluded, for the reasons which
follow, that none of them offers any basis on which the Court may
properly return this case to the Maryland courts.
I
I turn first to the reasons advanced by the plurality opinion.
The unusual disposition made of this case by the plurality is
bottomed upon materials entirely outside the record before us,
furnished to this Court after the case was submitted, under the
leverage of inquiries put from the bench during the argument. The
materials are two pre-indictment police reports, the Montgomery
County Officers' Report and the Supplementary Offense Report. It
seems to me entirely improper for this Court to "retry" state
criminal cases in its own courtroom and then to return them for
reconsideration in light of materials "discovered" outside the
record during that process. Even apart from that regrettable
practice, the remand of this case is the more remarkable because
the materials on which the plurality relies are not in any sense
newly discovered. The fact is that these police reports have played
a significant role throughout the state court proceedings. They
were made available to defense counsel at the original trial stage.
They were given to and considered by the trial judge at the time of
sentence. And although demanded by the new defense counsel in the
post-conviction proceeding, their production was denied under a
state procedural rule which apparently was not contested in the
state appeal, and which is in no way now questioned by this Court
from a federal standpoint. In consequence, the ultimate rationale
for the plurality's disposition of the case is itself specious.
Page 386 U. S. 105
The use now made of these police reports is equally
unsatisfactory. The discrepancies which the plurality finds between
these reports and the trial testimony relate to two episodes.
First, the girl, Joyce, and her companion, Foster, apparently
initially told the police that they were having sexual intercourse
in their car when they noticed the presence of the other car,
whereas, at trial, Foster intimated that he and the girl were
simply sitting in the rear seat. He denied elsewhere that he and
his friends had brought Joyce out to the spot to have sexual
relations with her. Second, one of the police reports is construed
to suggest that Joyce had said that John Giles did not penetrate
her, whereas her trial testimony was that all three men had raped
her. The plurality argues that these discrepancies, if known to the
defense, might have been used to establish the girl's reputation
for promiscuity, to attack the credibility of prosecution
witnesses, and possibly to exonerate petitioner John Giles
entirely. It even suggests that the defense might have shown a
deliberate suppression of evidence or a conscious failure to
correct perjured testimony.
The short answer to all this is, of course, that the record
makes plain that defense counsel at the trial was given access to
these police reports, [
Footnote
4/2] and thus must be taken to have been aware of the very
discrepancies of which the plurality now undertakes to make so
much. There is no basis whatever in the evidence before us for the
plurality's intimation that the reports seen by counsel may not
have been those given to this Court, or for its thinly veiled
suggestion that, in not making use of the supplementary report
counsel may have been incompetent, or worse.
Page 386 U. S. 106
Beyond this, a more careful examination than the plurality has
given these reports and the record will itself dissipate the aura
of suspicion and conjecture with which this case has now been
surrounded. The plurality first suggests that perjured testimony
may have been knowingly utilized by the prosecution to establish
penetration of the girl by John Giles. Joyce initially testified at
a pretrial hearing that only Johnson and James Giles had
intercourse with her. [
Footnote
4/3] Later in the same hearing, she included John Giles,
apparently with the explanation that she had first believed that
rape requires emission as well as penetration. At trial, she
testified very specifically that John Giles had effected
penetration. On cross-examination, she conceded that her first
accounts both to the police and at the preliminary hearing
indicated that only two men had intercourse with her. She again
suggested that she had been confused. In contrast, the police
officers testified at trial that Joyce had said in questioning on
July 21 that John Giles had intercourse with her. The supposed
inconsistencies among all these accounts were plain both to defense
counsel and to the jury. [
Footnote
4/4]
Petitioners argued at the post-conviction proceeding that the
police testimony was perjured, and that Joyce had initially said
that John Giles did not attack her. They offered, in addition to
Joyce's own admissions at trial, statements from petitioners'
father, mother, and sister that a policeman had first mentioned
only two assailants to them. In a deposition hearing, Joyce said
that she did not recall ever conceding at trial that only two men
had intercourse with her. Judge Moorman concluded
Page 386 U. S. 107
that Joyce's terminological confusion adequately explained the
supposed discrepancies with the police testimony. Although
petitioners have not argued this issue here, the plurality now
points to the supplementary report to suggest again that the police
evidence might have been perjured, and remands for what it quite
evidently hopes will result in another hearing on that issue.
It seems apparent that the references to this issue in the
supplementary report are entirely equivocal. The report contains
only three references to Joyce's statements on this question.
First, Joyce is reported to have replied, when asked how many had
intercourse with her, that "The bigger one [John] tried first, then
the other two." Again, the statement is attributed to her, in the
third person, that John "tried to have intercourse with her but was
unable to do so." Finally, she is reported to have said that John
Giles "tried to insert" but "could not get" an erection. The report
indicates that John Giles was the first to begin to remove Joyce's
clothing, that he kissed her, and that he "tried" for some 10
minutes. [
Footnote 4/5]
It must first be plain that, although these references are brief
and imprecise, nothing in them necessarily excludes the conclusion
that John Giles achieved penetration, however slight. Further, it
must be recognized that the form and language of the supplementary
report indicate quite clearly that it was prepared rapidly, under
the urgency of the events, and without any expectation that its
every word would now be weighed and balanced. Little wonder that
the plurality's diligent pursuit of uncertainty has unearthed
phrases which, so it supposes, permit some room for ambiguity.
Finally, it must be remembered that, in the report, at the
pretrial hearing, and at the trial itself, the police,
Page 386 U. S. 108
the witnesses, and even counsel employed interchangeably various
terms of very dissimilar meaning to describe the acts committed
upon the girl by the defendants. The post-conviction proceeding
court expressly found that Joyce, for one, was confused by this
elusive terminology, and that this confusion explained any
discrepancies in her various accounts of these events. This finding
was not disturbed or even questioned by the Maryland Court of
Appeals. Nonetheless, the plurality attempts to escape it with the
suggestion, surrounded by cautious disclaimers, that it may
possibly have been mistaken. The plurality offers three reasons for
this suggestion. It first intimates that the finding may be
mistaken because the State proffered this explanation only at the
post-conviction proceeding. This is entirely unpersuasive; Joyce's
confusion was apparent at least as early as the original
preliminary hearing, and was not there offered by the State as an
explanation, but instead became obvious to those present simply
from the terms of Joyce's testimony. The plurality next suggests
that Joyce at trial expressed confusion only as to the names of her
assailants, and not about this terminology. This is twice
deficient: it ignores that the terms of Joyce's testimony were
perfectly well known to the state courts which made and accepted
the finding, and it is bottomed on an unreasonable construction of
the testimony. [
Footnote 4/6]
Lastly, the plurality contends that Joyce is not shown by the
supplementary report to have been confused. There are two obvious
answers. First, this assumes that the report precisely reproduces
the words used by Joyce herself to describe these events, and that
these words
Page 386 U. S. 109
may therefore be sifted and weighed to establish Joyce's
familiarity with this terminology. This is unsupported by the
report itself, which contains no formal statements, and is instead
an informal jumble of undigested information collected by the
police as they conducted their investigation. At no point can the
reader be entirely certain whether its words are the witness' or
those selected by the police interrogators to digest the
information given them. Finally, the plurality overlooks that there
is uncontested testimony that Joyce was plainly and pertinently
confused at the preliminary hearing. The plurality's speculation
that she may or may not have been confused at one stage of this
lengthy proceeding can scarcely vitiate the firm finding of the
Maryland courts that she was confused at another and more crucial
stage, and that this confusion explained any discrepancies in her
accounts of these events. In sum, I find the plurality's oblique
efforts to cast doubt on the finding of the state courts entirely
unpersuasive.
Moreover, these references in the supplementary report must be
viewed in light of the other police report furnished this Court,
the Montgomery County Officers' Report. That report makes quite
clear that Joyce indicated at the scene that John Giles "had
entered her." [
Footnote 4/7] The
plurality seeks to explain the terms of this report with two
suggestions. First, it intimates that the report may be unreliable
because it is a summary of Joyce's statements "immediately after
the incident." I should have thought that it would therefore be all
the more important. At most, the plurality's intimation is an
acknowledgment of the weaknesses of both reports. Neither report
was intended to serve as a formal and precise record; it is
therefore
Page 386 U. S. 110
extraordinarily hazardous to pyramid, as the plurality has done,
hypotheses upon strained constructions of the reports' most
abbreviated references. This simply reemphasizes the wisdom of the
State's exclusionary rule, and the corresponding impropriety of the
plurality's circumvention of that rule. Second, the plurality
suggests that the report leaves unexplained the police testimony
that Joyce had said that all three men had intercourse with her.
This assumes first that the words "gave up" in the report indicate
that Joyce meant that James Giles did not penetrate, when, in light
of the other accounts given by both James Giles and Joyce, it could
only have meant that he did not reach emission. More important, the
plurality overlooks that the only questions which have ever been
even intimated about whether any of the three youths failed to
penetrate the girl center entirely on John Giles, and this is a
plain statement in the police reports that Joyce had informed the
police at least once that John Giles penetrated her. The plurality
opinion cannot, and does not, deny that this is the most
unequivocal reference in either report to John's actions, and that
it makes plain that Joyce reported that John had penetrated her.
Given the ambiguity of the references to John Giles in the
supplementary report, Joyce's clear statement in the Officers'
Report that John Giles had penetrated, and the no less plain
statements in the supplementary report from Joyce, James Giles, and
Johnson that James and Johnson also penetrated, I am again unable
to understand how it can be thought that there might be some basis
for the attribution of perjury on this score to the police
witnesses. [
Footnote 4/8]
Page 386 U. S. 111
The asserted discrepancies among the various accounts given of
John Giles' participation by Joyce and the other prosecution
witnesses have been forcefully argued at each stage of this case,
they have been painstakingly considered by the state courts, and I
can see no warrant for inviting those courts to examine the issue
anew.
The plurality next suggests that the prosecution may also have
been privy to the use of perjured testimony or guilty of a
deliberate suppression of evidence in relation to what the girl and
Foster were doing in the car just before their assailants came upon
them. This is entirely insubstantial. Foster and the girl were
never directly asked at trial, and did not volunteer, to describe
what they had done while awaiting the return of their friends. They
were not asked if they had intercourse. The question was only once
even inferentially suggested. Foster was first asked "What did you
three boys take Joyce out there for that night?", and replied "I
told you we were going to meet some friends up there and go
swimming." The next question was "You didn't take her out there to
have sexual relations with her, yourself, did you?" and Foster
replied "No." It would doubtless have been more forthright had
Foster interjected that, whatever his original expectations, they
had, in fact, had relations; nonetheless, his explanation was an
adequate response to the precise question asked. In short, although
the evidence was, as to this point incomplete, it was, so far as it
went, consistent with the police report.
I do not see how it can be suggested that the prosecutor's
conduct in this instance was constitutionally vulnerable. First and
foremost, the contents of the police reports on this episode were
made available to the defense, and counsel elected to make nothing
of them. Second, the omitted fact in Foster's testimony could not
have had "an effect on the outcome of the trial."
Napue v.
Illinois, 360 U. S. 264,
360 U. S. 272.
Initially, it is very doubtful
Page 386 U. S. 112
that this evidence would have been admissible at trial. Under
the law of Maryland, specific acts of misconduct are not admissible
to impeach a witness' credibility.
Rau v. State, 133 Md.
613, 105 A. 867. Further, since the evidence at trial was merely
silent on these issues, and did not include inconsistent
statements, this evidence presumably would not have been admissible
on that basis to impeach the credibility of these witnesses.
Finally, although Maryland permits the admission of evidence of a
prosecutrix' general reputation for immorality, it does not permit
evidence of specific acts of intercourse.
Shartzer v.
State, 63 Md. 149;
Humphreys v. State, 227 Md. 115,
175 A.2d 777. The Court of Appeals of Maryland has in this very
case plainly said that "a prosecutrix cannot be asked whether she
had previously had intercourse with a person other than the
accused."
Giles v. State, 229 Md. 370, 380, 183 A.2d 359,
363. The evidence with which the plurality is concerned therefore
cannot "reasonably be considered admissible,"
Griffin v. United
States, 87 U.S.App.D.C. 172, 175, 183 F.2d 990, 993, under the
law of Maryland. Far more important from a federal standpoint,
evidence of Foster's relations with the girl, even if admissible,
could not have been substantially relevant to the principal factual
issues at the trial. Its omission did not discolor the meaning of
controlling facts, as did the episode involved in
Alcorta v.
Texas, 355 U. S. 28, nor
did it measurably strengthen a witness' credibility, as did the one
involved in
Napue v. Illinois, 360 U.
S. 264. It would, at most, have given the defense
another inconclusive intimation of Joyce's promiscuity, and this
could scarcely have sufficed to change the trial's outcome.
The plurality ultimately seeks to justify its disposition of
this case in terms of the rules by which this Court has given
recognition to the different roles played under the Constitution by
federal and state courts. These efforts
Page 386 U. S. 113
are entirely unpersuasive. In essence, the plurality has first
brought these police reports into the case through an informal
discovery rule of its own creation which flies into the face of an
unassailed state rule which excluded the reports, and now has
invited the state courts to reconsider the case unrestricted by the
local rule and not confined to the "Constitution's relevant
commands." This scarcely fits the plurality's professed objective
to "minimize federal-state tensions." And plainly this course finds
no support in cases in which the Court has remanded for further
consideration in light of a supervening event. Nothing here is
remotely analogous to the change in state law that occurred in
Bell v. Maryland, 378 U. S. 226, or
to the intervening judgments of this Court that took place in
Patterson v. Alabama, 294 U. S. 600, and
in
Dorchy v. Kansas, 264 U. S. 286.
What is now done is explicable only on the premise that this Court
possesses some sort of supervisory power over state courts, a
premise which, of course, traverses the most fundamental axioms of
our federal system.
II
The rationale offered for remand by my Brother WHITE's opinion
is equally unsatisfactory. At bottom, that rationale consists of
the supposition that the presiding judge at the state
post-conviction proceeding may possibly have misconstrued
applicable Maryland law, and may therefore have improperly excluded
testimony relevant to the mental condition of the prosecuting
witness. My Brother WHITE does not suggest, as I think he cannot,
that any of the rulings which he suspects to have been erroneous
were deficient under any known federal standard. All of them at
most involve, even under his premises, misapplications of Maryland
law. Each of these rulings was plain on the face of the record
presented to, and carefully considered by, the Maryland
Page 386 U. S. 114
Court of Appeals; all the materials pertinent to the evaluation
of these rulings were before that court at the time of its
review.
The court did not, of course, explicitly determine the various
questions now posed, but it did, as my Brother WHITE acknowledges,
examine the record to decide whether Joyce might have been
suffering from mental illness, or whether she was otherwise
incompetent as a witness. Such an examination must inevitably have
obliged the court to assess the very rulings and restrictions which
it must now reassess upon remand. Despite this, neither the
majority nor the dissenting opinion below expressed any doubt that
these rulings were entirely correct. At a minimum, a remand thus
needlessly prolongs an already protracted case; unfortunately, it
may also appear to endorse the substitution of the speculations of
this Court on the content of state law for the conclusions of the
State's highest court, as basis for the return of a case to the
state courts for reconsideration.
In any event, the hesitations expressed by MR. JUSTICE WHITE's
opinion about the scope of the evidence concerning Joyce's mental
condition appear unwarranted on the record before us. The record
makes plain that the court at the post-conviction proceeding
permitted the admission of substantially more evidence on this
issue than that opinion might be taken to suggest. First, the
presiding judge permitted Dr. Connor, the attending physician, to
state his diagnosis of Joyce's mental condition. In addition, Dr.
Connor was allowed to indicate that he agreed with the diagnosis
described to him by the consulting physician, Dr. Doudoumopoulis.
Dr. Connor was not, as that opinion notes, permitted to describe
that diagnosis, but the court supplemented its ruling with the
statement to defense counsel that "I would admit it if you put it
in the right manner." Both Dr. Connor and Dr. Doudoumopoulis were
allowed in
Page 386 U. S. 115
a deposition hearing to state whether they had discussed Joyce's
condition with various officials of Prince George's and Montgomery
Counties. Further, the court permitted another psychiatrist, Dr.
Solomon, to state, in reply to a hypothetical question asked by
defense counsel, his opinion of the mental condition of a girl in
Joyce's circumstances. In addition, Dr. Solomon was permitted to
describe the basis for his views, to offer his opinion as to what
her mental condition might have been some three months later (the
interval before the trial in this case), and to state that a girl
in these circumstances warranted a psychiatric examination. Dr.
Solomon was prevented from speculating only whether this condition
might have affected the girl's credibility as a witness, an issue,
the court noted, which is for the jury, and not an expert witness,
to determine. Finally, petitioners adduced very substantial
evidence of Joyce's sexual history, all of which was pertinent to
the court's determination whether she might have been suffering
from mental illness.
Perhaps more evidence of Joyce's mental condition, and of the
knowledge of Montgomery County authorities of that condition, could
conceivably have been introduced; but it is true of all criminal
prosecutions, federal and state, that some fragments of fact
broadly pertinent to the issues of the trial do not reach the
record. In any event, the petitioners themselves have apparently
never challenged any of these rulings either before the Maryland
Court of Appeals or in this Court. I can find no basis on the
record before us for remanding this case simply in the hope that
rulings of state law may now be held to have been improper, and
thus that unknown additional evidence, which may or may not be
pertinent and substantial, may then be admitted. This practice is
warranted neither by the facts of this case nor by the role given
to this Court by the Constitution in the review of state criminal
convictions.
Page 386 U. S. 116
III
.
My Brother FORTAS' proposed resolution of the case is, with
great respect, no more satisfactory, although he would, to be sure,
base its disposition upon an asserted federal question. His
reasoning, as I see it, rests at bottom upon quite fundamental
objections to the character and balance of our adversary system of
criminal justice. Neither those objections nor the conclusions
which stem from them form any part of the disposition made of this
case, in which he joins; it would accordingly be inappropriate for
me to respond in more than relatively summary fashion. I content
myself, therefore, with outlining the reasons why I cannot
subscribe to my Brother FORTAS' approach.
As I understand him, my Brother FORTAS believes that state
prosecuting officials are compelled by the Fourteenth Amendment to
disclose to defense counsel any information "which is material,
generously conceived, to the case, including all possible
defenses." This would include all information which is "exonerative
or helpful." This standard would demand markedly broader
disclosures than this Court has ever held the Fourteenth Amendment
to require. The Court has held since
Mooney v. Holohan,
294 U. S. 103,
that a State's knowing use of perjured testimony denies a fair
trial to the accused.
Mooney has been understood to
include cases in which a State knowingly permits false testimony to
remain uncorrected.
Alcorta v. Texas, 355 U. S.
28;
Napue v. Illinois, 360 U.
S. 264. The standard applied in such cases has been
whether the testimony "may have had an effect on the outcome of the
trial."
Napue v. Illinois, supra, at
360 U. S. 272.
These cases were very recently followed and applied in
Miller
v. Pate, ante, p.
386 U. S. 1. Apart
from dicta in
Brady v.
Maryland, 373
Page 386 U. S. 117
U.S. 83, the Court has never gone further. [
Footnote 4/9] Nor, in my view, does the
Constitution demand more. This standard is well calculated to
prevent the kinds of prosecutorial misconduct which vitiate the
very basis of our adversary system, and yet to provide a firm line
which halts short of broad, constitutionally required discovery
rules. It both guarantees the fundamental fairness of state
criminal trials, thereby satisfying in full the requirements of the
Fourteenth Amendment, and preserves intact the States' ultimate
authority for the conduct of their systems of criminal justice.
None of these advantages adheres to the standard suggested by my
Brother FORTAS. His reasoning must inevitably result in the
imposition upon the States, through the Constitution, of broad
discovery rules. Those rules would entirely alter the character and
balance of our present systems of criminal justice.
The extraordinary breadth of the standard apparently urged by
MR. JUSTICE FORTAS becomes more plain when that standard is
measured against Rule 16 of the Federal Rules of Criminal
Procedure, applicable in federal criminal trials. [
Footnote 4/10] Discovery under Rule 16, even as
now
Page 386 U. S. 118
amended, is restricted by a number of carefully drawn
limitations, each intended to "guard against possible abuses."
Notes of the Advisory Committee on Rules, 39 F.R.D. 176. The
defendant is permitted only to obtain certain categories of
materials, and he must in each case first move the court for their
production. These limitations fall far short of the standard urged
by my Brother FORTAS. Under his view, the information obtainable by
the defendant could not be restricted by its character or source;
failure to disclose could be justified,
post hoc, only if
the information cannot be deemed "material," generously judged. Nor
could the defendant be obliged to demand disclosure; as my Brother
FORTAS' opinion emphasizes, the burden must instead be placed upon
the prosecutor, on threat of subsequent reversal of any conviction,
spontaneously to proffer all that might prove "helpful" to the
defense. The effect which the rule urged here would thus have on
this federal and similar state discovery rules would be entirely
unlike that of
Mooney and the cases which stem from it.
Mooney simply imposes sanctions upon specified forms of
prosecutorial misconduct; MR. JUSTICE FORTAS' rule would, in
contrast, create wide constitutional obligations to disclose which,
whether operative before or during trial, would entirely swallow
the more narrow discovery rules which now prevail even in federal
criminal trials.
Page 386 U. S. 119
Issues of the obligatory disclosure of information ultimately
raise fundamental questions of the proper nature and
characteristics of the criminal trial. These questions surely are
entirely too important for this Court to implant in our laws by
constitutional decree answers which, without full study, might
appear warranted in a particular case. There are few areas which
call more for prudent experimentation and continuing study. I can
find nothing either in the Constitution or in this case which would
compel, or justify, the imposition upon the States of the very
broad disclosure rule now proposed.
IV
The unarticulated basis of today's disposition, and of the
disparate reasons which accompany it, is quite evidently nothing
more than the Court's uneasiness with these convictions, engendered
by post-trial indications of the promiscuity of this unfortunate
girl. Unable to discover a constitutional infirmity and unwilling
to affirm the convictions, the Court simply returns the case to the
Maryland Court of Appeals in hopes that, despite the plurality's
repeated disclaimers, that court will share the Court's discomfort
and discover a formula under which these convictions can be
reversed. The Court is unable even to agree upon a state law basis
with which to explain its remand. I cannot join such a disposition.
We on this bench are not free to disturb a state conviction simply
for reasons that might be permissible were we sitting on the state
court of last resort. Nor are we free to interject our individual
sympathies into the administration of state criminal justice. We
are instead constrained to remain within the perimeter drawn for
this Court by the Constitution.
I cannot find a tenable constitutional ground on which these
convictions could be disturbed, and would therefore affirm the
judgment of the Court of Appeals of Maryland.
[
Footnote 4/1]
"Consent' is, of course, the conventional defense in rape cases.
In light of the forcible entry into the car occupied by the victim,
the assault upon her companion, and her flight into the woods, it
would have been extraordinary for the jury to have believed that
this girl freely invited these youths to have sexual relations with
her, still more that the petitioner John Giles, who was the first
to pursue her into the woods (albeit allegedly not knowing that he
was pursuing a female), refused the 'invitation."
[
Footnote 4/2]
Counsel so stated three times at the post-conviction proceeding,
twice under the judge's questioning. This colloquy has been
reprinted in my Brother WHITE's opinion,
ante, p.
386 U. S.
82.
[
Footnote 4/3]
We do not have before us the transcript of the preliminary
hearing. An uncontested account of Joyce's testimony was however
given at the post-conviction proceeding.
See Transcript of
Record 270-272.
[
Footnote 4/4]
Counsel made an extended effort to discredit Joyce's testimony
based on the alleged inconsistencies in her various accounts.
See Transcript of Record 62-64.
[
Footnote 4/5]
It is important to note that the supplementary report does not,
contrary to the apparent suggestion in the plurality opinion, state
that John Giles "failed to
insert."'
[
Footnote 4/6]
Joyce did not simply suggest that she had been confused about
the names of her assailants. Under defense counsel's persistent
cross-examination she repeatedly affirmed that she was telling the
full truth, and that she did not know "what I thought" at the time
of her earlier accounts. Given her age and circumstances, this is
scarcely improbable.
[
Footnote 4/7]
Montgomery County Officers' Report 1. The report indicates that
Joyce said "two of the . . . males had entered her and . . . the
third had tried but gave up when he saw lights coming." In the
context of the other evidence, the third man could only have been
James Giles.
[
Footnote 4/8]
The plurality's diversionary suggestion that Sergeant Duvall's
testimony presents difficulties is wholly unpersuasive. His
inexplicable failure to describe Joyce's statements to him served
only to weaken the State's case, and certainly did not in any
fashion prejudice petitioners. It offers no basis on which they
would be entitled to relief.
[
Footnote 4/9]
I cannot agree that this Court in
Brady extended
Mooney in any fashion. The language in
Brady upon
which my Brother FORTAS relies was quite plainly "wholly advisory."
Brady v. Maryland, supra, at
373 U. S. 92
(separate opinion of WHITE, J.).
[
Footnote 4/10]
In substance, Rule 16 provides that, upon the motion of a
defendant, a court may permit the defendant to inspect and copy
"statements or confessions made by the defendant," the results of
physical or mental examinations and of "scientific tests or
experiments," and the defendant's testimony before a grand jury.
Further, the court may, upon a defendant's motion and upon a
showing of materiality and reasonableness, permit the defendant to
inspect and copy or photograph "books, papers, documents, tangible
objects, buildings or places, or copies or portions thereof. . . ."
The Rule expressly does not authorize the discovery or inspection
of "internal government documents made by government agents" in
connection with the case, or of statements "made by government
witnesses or prospective government witnesses . . . to agents of
the government. . . ." Other portions of Rule 16 permit a court to
make such disclosures conditional upon disclosures by the defendant
to the Government, to prescribe the time, place, and manner of
discovery, and to make suitable protective orders. Finally, the
Rule creates a continuing duty to disclose additional similar
materials obtained after compliance with an order issued under the
Rule, and permits the imposition of sanctions for failure to
satisfy that duty.